Alinea 22 Hoge Raad 10 februari 2009

"49. The Court is of the opinion that the obtention by the National Police Internal Investigation Department - for the purposes of an officially commissioned fact-finding inquiry - of recordings of (telephone) conversations between the applicant and Mr R. that had been made by the latter with technical equipment made available for this purpose by the National Police Internal Investigation Department constituted an interference with the applicant's private life and/or correspondence (in the sense of telephone communications) which was imputable to a public authority. The Court would note that the recording of private (telephone) conversations by a conversation partner and the private use of such recordings does not per se offend against Article 8 if this is done with private means, but that by its very nature this is to be distinguished from the covert monitoring and recording of communications by a private person in the context of and for the benefit of an official inquiry - criminal or otherwise - and with the connivance and technical assistance of public investigation authorities. In that respect, the Court observes that in the present case, although the recordings of the applicant's conversations were made by Mr R. on a voluntary basis and for his own purposes, the equipment was provided by the authorities, who on at least one occasion gave him specific instructions as to what information should be obtained from the applicant. In these circumstances, the Court considers that the authorities ''made a crucial contribution to executing the scheme'' and it is not persuaded that it was ultimately Mr R. who was in control of events. To hold otherwise would be tantamount to allowing investigating authorities to evade their responsibilities under the Convention by the use of private agents (see M.M. v. the Netherlands,cited above, par. 40).

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