Confidential telephone conversations of lawyers automatically destroyed

Tapped telephone conversations between suspects and their lawyers will be destroyed automatically as from next year. The confidential telephone conversations between a suspect, who is tapped by the police in the course of criminal investigations, and his/her lawyer are destroyed immediately by a technical facility at the police, and therefore not recorded or listened in on. To make this possible the lawyer must use (a) predetermined telephone number(s) that is/are known to the police. This working method offers the best possible guarantees that the confidential nature of these telephone conversations is maintained. This is evident from a letter from Minister of Justice Hirsch Ballin to the Lower House that was released today.

Pursuant to Section 126 aa of the Dutch Criminal Code conversations between persons whose phones are tapped and their lawyers must be destroyed. After all, suspects must be able to communicate confidentially with their lawyers. In practice, however, this destruction did not always occur. A technical facility at the National Police Services Agency (KLPD) will see to it that in future these conversations are destroyed immediately. To make this possible, lawyers must inform the KLPD in advance (via the Bar Association) which telephone and fax numbers they wish to use for such conversations.

Lawyers should handle their protected telephones and faxes carefully. Failing to fulfil this duty of care can and will have disciplinary consequences. It was agreed with the General Council of the Netherlands Bar Association that the correct fulfilment of this duty of care will be supervised via the regional Deans. Provisions have also been made as to what the lawyer should do if a client pressures him to hand over his protected phone. Under all circumstances the lawyer must report such abuse to the Bar Association immediately. A previous proposal to save conversations between holders of confidential information for a certain period of time will not be necessary, according to the Board of Prosecutors General. After all, in on-going criminal investigations the Public Prosecution Service has other ways of gathering information about the possible abuse of telephone numbers of holders of confidential information. In such cases the Public Prosecution Service will inform the Bar Association. If there are reasons to believe that a protected telephone is being abused, the Public Prosecutions Service can also retrieve the traffic data to find out who was called at what time with the telephone concerned. In addition, lawyers who are subject to criminal investigations themselves can be tapped, provided that the examining magistrate has given his permission.

Technical facilities are currently being installed in the interception centres of the police and procedures are being established for collecting the relevant telephone numbers of lawyers. It is expected that the new working method can be implemented in the first half of 2011.