#03: Dutch pragmatism is taking over
The public prosecutor’s office in the Netherlands is of the opinion that professional privilege creates an obstacle in criminal investigations, mostly in fraud cases. In a public statement a public prosecutor stated that professional privilege is misused by for instance lawyers in order to cover up potential evidence in fraud cases. The public prosecutor’s office requested the judicial powers to clarify the scope of the professional privilege. It is not clear whether this public request of the public prosecutor’s office was obeyed. However we notice an increasing number of judicial decisions in which the professional privilege is object of discussion. While the professional privilege has a lot of interesting aspects we would like to lift out one topic. In this article we concentrate on the rules and procedures with regard to a search and seizure of for instance a law firm. Furthermore we question whether the current practice meets the criteria of the European Court of Human Rights (ECHR).
In the Netherlands the procedure for searching the premises of for instance a law firm has a legal basis in article 98 of the Criminal Procedural Code. This article emphasizes that information bound by professional secrecy cannot be seized unless the professional entitled to the privilege i) agrees with the seizure, ii) the information is the subject of the crime (corpus delicti) or iii) the documents were helpful to committing the crime (instrumenti deliciti). The search of a law firm has to be authorized by an investigating judge. This judge – in principle – will be present during the search of the law firm.
The warrant should specify which information is aimed to be seized and the search should be conducted in such a way that the professional secrecy is protected and no material is seized that is protected by this professional secrecy. Ideally the documents are inspected by the professional in order for him to take a decision whether these documents are protected by his professional privilege. This decision is to be made by the holder of the professional privilege and by him only. As a rule the magistrate must respect the selection made by this professional. Only in case of reasonable doubt that the documents are not protected by his professional privilege the magistrate may oppose the decision of the professional. But even when the examining magistrate doubts the legitimacy of the selection made by the professional it remains of crucial interest to handle this cautiously. In order to lighten the burden for the lawyer in the specific case to make an assessment the presence – and if needed assistance – of a representative of the bar is obliged.
While this procedure sounds protective of the professional privilege, practice shows something different. In fact when the authorities decide to search a law firm, the premises will be ‘surprised’ by not only the prosecutor and the investigating judge, also the financial fraud police (FIOD) is present. Since law firms in general do not like to find themselves visited by the financial fraud police – and this is an euphemism – a practical solution is created. In practice the selection process will not take place at the law firm immediately. Instead, the file of the client who is investigated will be seized as a whole. The file is sealed and seized by the investigating judge. The investigating judge will keep the file and the digital information under his responsibility. We understand the reasoning to agree with this pragmatic solution. However, in principle this way of search and seizure causes an infringement of the right to privacy as set out in article 8 of the Convention. We will come back to this later.
Our main objection relates to the way the seized information will be handled after the seizure. It is not uncommon that both the physical and the digital file contain a lot of information and therefore it is almost impossible for the professional to go through all (digital) information to make a selection. The same applies for the investigating judge. The solution of the investigating judge is that a FIOD investigator – who is not directly involved in the investigation against the client of the lawyer – is promoted to being a ‘secrecy investigator’. However, this predicament does not find its basis in the law, it is just a practical solution and gives a false sense of security. This secrecy investigator inspects all seized information and selects the relevant documents. After this the lawyer who is involved is invited to the office of the investigating judges where he can inspect if the selected documents – by the ‘secrecy investigator’ – are protected by his professional privilege. If the investigating judge decides that the documents are not protected by the lawyers’ professional privilege, the professional can request to seal the documents in anticipation of a complaint procedure under Article 552a of the Criminal Procedural Code. In this procedure the secret character of the seized documents is reconsidered and judged by other judges. We believe that the involvement of the financial fraud police – the FIOD – handling the selection of the documents is an infringement to the right of privacy as stipulated in article 8 of the European Convention and we will explain why.
In the jurisprudence of the European Court of Human Rights (ECHR) is decided that a search and seizure at for instance a law firm should meet four general requirements. First, it must be proportionate in the light of the facts, the measure of a search and seizure of a law firm’s premises should be “relevant” and “sufficient”. The criteria the Court has taken into consideration in determining this latter issue are among others i) the circumstances in which the search order has been issued, in particular if further evidence was available at that time, ii) the content and scope of the warrant, iii) the manner in which the search was carried out, including the presence of independent observers during the search, and iv) the extent of possible repercussions on the work and reputation of the person affected by the search. Second, the search and seizure should be based on a warrant issued by a judge or it must be subject to post factum judicial scrutiny. Third, there must be a reasonable suspicion and reasonable grounds for that suspicion that evidence will be found at the firm of the specific lawyer. Finally the Court assesses whether the search itself was reasonably limited, which is substantiated via the search warrant and the way the search is executed. These requirements are for instance stipulated in the case Iliya Stefanov vs. Bulgaria of the European Court.
Moreover, the Court has set out strict criteria for the required independent observer in the case of Golovan v. Ukraine. The Court has held that such an observer should have the requisite legal qualification in order to effectively participate in the procedure. Moreover, he should also be bound by the lawyer-client privilege to guarantee the protection of the privileged material and the rights of the third persons. Lastly, the observer should be vested with the power to be able to prevent any possible interference with the lawyer’s professional secrecy.
Based on the criteria as set out by the ECHR it becomes clear that no material subject to legal professional privilege may be removed from the premises. Moreover, the seized material should not exceed the material as specified in the warrant. The practical solution of the Dutch investigating judge to seize the complete physical file and all digital information is thus – according to us – in principle an infringement of the rights of the European Convention for Human Rights.
That being said we do not underestimate the interests of not having the financial fraud police present at a law firm and value a more practical solution. However, we believe that the selection afterwards should be viewed at as an extension of the search and seizure. Therefore the selection procedure should be protected by the same safeguards article 8 provides for. This selection procedure should be at least been surveilled by an independent observer. This observer should not be involved in the FIOD organization in any kind in order to safeguard his independence. Furthermore, the seizure of the digital information should be narrowed down by specific search words, in such a way that this selection does not exceeds the warrant of the investigating judge as long as this warrant meets the criteria of article 8.
Altogether, Dutch pragmatism is taken over without safeguarding the fundamental rights in the best possible way. An Attorney General in The Netherlands – an independent advisor of the Dutch Supreme Court – recently raised this issue in a specific case as well. Unfortunately the Supreme Court did not respond to this issue, presumably because it did not have to in order to take a decision in that specific case. We hope – and find it necessary – that the Supreme Court will soon take the opportunity to assess this aspect of the Dutch practice when it comes to seizing documents and digital information protected by professional privilege. We are of the opinion that pragmatism should not be the leading argument to decide how the procedure is executed. The protection of the professional privilege should be.
What do you think of this pragmatic procedure? And what is the legal and practical situation in your country?