#73: Legal privilege endangered in the Netherlands
This week a very important summary proceeding took place in the Netherlands in which the protection of lawyer client privilege played a central role. In a criminal investigation which has been ongoing for years now the lawyers managed to find out that several infringements were made on their legal privilege by the Public Prosecutor’s Service (PPS). These lawyers took action against this in the investigation against their client, but they also started several civil proceedings themselves as individual lawyers. Recently these procedures have led to the publication of an internal manual of the PPS, that describes how prosecutors and investigation teams should deal with possible privileged data which has been seized or came in their possession via other legal means. This manual brought a shock to the legal profession as, according to the lawyers, this manual shows that the prosecution is deliberately violating the right to privilege by reading the information, selecting the information to use in a criminal investigation or not and by not involving a judge in the process. The summary proceeding showed that the PPS has its own interpretation of the law, which – in our opinion – erodes the legal privilege and undermines our confidence in the rule of law.
There are two articles in the Dutch Criminal Code of Procedures (CCP) that relate to the handling of privileged information. The procedure set out in article 98 of the CCP dictates that in principle privileged information will not be seized and that an investigative judge has the authority to decide upon the seizure. This procedure has been finetuned in jurisprudence.
Article 126aa of the CCP deals with the situation in which data has not been seized but gathered by other investigative methods such as telephone taps or specific demands of information. Especially in this specific situation the PPS is of the opinion that no intervention is needed of the professional entitled to the legal privilege nor of an investigative judge.
In addition to these laws the Supreme Court has clearly stated that digital data, such as e-mails, should be treated in the same way as the legislator has set out the rules and regulations around letters and documents. Furthermore, the Supreme Court has ruled that in principle it is in first instance the professional entitled to the legal privilege who should assess whether data falls under his or her privilege. It is a judge and a judge only who can take a final decision on whether the document falls under the legal privilege.
The PPS manual deserves a thorough analysis of how the PPS deals with possible legal privileged information. But what it comes down to is that in specific circumstances a public prosecutor himself or special selected ‘confidential prosecutor’ – a function which is not recognized in the law – analyses the documents and decides whether the information is privileged information and can or cannot be used for the criminal investigation. To take this decision the public prosecutor or the ‘confidential prosecutor’ reviews the possible privileged information briefly, according to the manual. The PPS is of the opinion that only in specific circumstances the professional entitled to the privilege, or an investigative judge comes into play to review the possible privileged information and takes the decision whether this information is privileged or not. And this is where the legal discussion basically evolves around.
The PPS claims to honor the lawyers legal privilege and states that the manual is not common practice. However, the PPS does claim to have the right to review possible privileged data if this data has not been seized but gathered via other legal means. The PPS explains its actions based upon the sole legal provision on this topic, while the lawyers are of the opinion that the method of operation by the PPS is clearly in violation with the law as interpreted by the Supreme Court.
We agree with the lawyers who pleaded that it is clearly set out why this interpretation of the law is contrary to the rules as formulated by the Supreme Court but also contrary to the wishes of the legislator.
For instance, the PPS ignores the parliamentary history of the law which states that investigative powers may not be used in such a way as to obtain privileged information through other investigative powers. The legislator was of the opinion that this was such a no brainer that no additional rules and regulations were needed. The PPS therefore ignores the explicit purpose of the legislator.
Was the legislator naïve? Perhaps. The PPS has so many methods to demand digital data via various ways that the law with regard to article 98 of the CCP can be circumvented. In this specific case for instance the PPS demanded all e-mail correspondence of a specific suspect from a hosting company. By doing this it received a ton of privileged information which a ‘confidential’ public prosecutor apparently reviewed, claiming this is legal based on article 126aa of the CCP.
We highly question the statement of the PPS that this manual is not common practice and we feel that the PPS should be transparent about its methods of investigations at all time and should have published its working methods. Furthermore, we highly disagree with the interpretation of the law by the PPS. We are of the opinion that the PPS erodes the right to privilege relying on an outdated article in the law en by using this methods, grossly violates this right.