Uitspraken

The court must first ascertain the scope and the nature of the test it should apply in these proceedings.

First of all, the court states that, in enacting the Witness Protection Act, it was the legislators’ intention to establish a set of statutory provisions that upholds the rights of threatened witnesses and suspects in criminal proceedings. In the case of witnesses, protection of the right to a private life, in particular, as enshrined in Section 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR), is relevant. In the case of suspects, the right to a fair trial, as laid down in Section 6 of the ECHR, is relevant2.

In the case of a serious threat to a witness’s life, health or social functioning, giving effect to his or her rights may entail his or her identity being concealed for the purposes of questioning in criminal proceedings. However, withholding the identity of a witness may be at odds with the suspect's right to a fair trial. This right is based on the principle that the defence be given an adequate and proper opportunity to question a witness incriminating the suspect. Concealing the identity of a witness limits the scope for the defence to question that witness. To compensate for this limitation, the legislators have established an arrangement, by means of the Witness Protection Act, in which the examining magistrate, rather than the defence, questions the witness directly and without restriction. In the view of the legislators, that arrangement sufficiently off-sets the limitations on the defence with respect to questioning.

The basic premise of the Witness Protection Act is that the examining magistrate decides whether or not to keep the witness's identity concealed with respect to his questioning, owing to an (alleged) threat. This is laid down in Section 226a(1) DCCP. Pursuant to Section 226b(2) DCCP, the examining magistrate's decision is open to appeal by the public prosecutor, the suspect, and the witness.

It can be deduced from the drafting history of the Witness Protection Act that the legislators notably considered that the option to file an appeal should be provided to enable the witness to safeguard his or her rights, in the event that the examining magistrate dismissed an application to conceal his or her identity. The legislators explained the purpose of the appeal as follows:

In view of this, the review on appeal is therefore limited to the decision of the examining magistrate regarding whether or not to conceal the identity of the witness for the purpose of his or her questioning.

If it is established on appeal that the examining magistrate has rightly decided to keep the identity of the witness concealed, that decision cannot subsequently be questioned at trial. The legislators wished to ensure that the matter as to whether a witness has correctly been classed as a threatened witness within the meaning of Section 226a(1) DCCP would not fall to the trial court:

The question as to whether applying the provisions of the Witness Protection Act does indeed sufficiently counterbalance the restriction on the defence with respect to questioning, and whether the suspect's right to a fair trial as referred to in Section 6 ECHR is ensured, cannot be answered by means of an appeal. That question can only be answered in light of the criminal proceedings as a whole, including whether and to what extent the testimony of the witness contributes to the ruling on the evidence made by the trial court. The trial court may also take into account the manner in which the provisions of the Witness Protection Act have been applied in so doing.5

With respect to the appeal referred to in Section 226b(2) DCCP, the court must therefore assess the examining magistrate's decision to conceal or not to conceal the witness's identity. On the one hand, the court must examine whether the decision was arrived at in the correct manner and, on the other hand, whether the decision was made on the correct grounds.

The test with regard to the manner in which the decision was made is a comprehensive one: were the formal requirements met by the examining magistrate in arriving at his decision? If so, the court must then examine the substance of the decision, that is to say: the examining magistrate's finding that the witness or another person consider themselves to be under threat, with a view to the statement to be made by the witness, such that they reasonably fear for their life, health or safety, or the stability of their family life, or their socio-economic existence, or that of another person.

The legislators chose to entrust the assessment of whether a witness should be regarded as a threatened witness, to the examining magistrate alone. According to the drafting history of the Witness Protection Act, this choice was based on reasons both of principle and of a practical nature.6

One of those reasons was the role that the examining magistrate played in the (then) judicial preliminary investigation:

Although the preliminary judicial investigation has been abolished,9 the aforementioned reasoning is still valid. The examining magistrate, as the judge assigned to the preliminary investigation, currently has the task of supervising conduct of the criminal investigation. This involves overseeing the lawful application of investigative powers, progress of the investigation, and that the investigation is balanced and comprehensive.10 In that capacity, the examining magistrate has a more or less complete overview of the criminal investigation. As a result, he is well placed to properly assess an application to conceal the identity of a witness. For example, based on the information available to him on the criminal investigation, he can assess the gravity of the alleged threat to the witness. The examining magistrate is in a better position to do this than the council chamber, which does not have that information at its disposal.

This means that the test that the court must apply with regard to the substance of the examining magistrate’s decision is a limited one. After all, a full review would require the council chamber to make the same assessment of an application to conceal the identity of a witness as the examining magistrate has conducted, although the (council chamber of the) court is not equipped to do so. This means that the court must investigate whether the examining magistrate could indeed reasonably have decided to grant the status of threatened witness to the witness concerned.

In principle, the court reviews a decision by the examining magistrate in light of the facts and circumstances prevailing at the time of that decision, insofar as they are apparent from the decision and the other information in the case file available to the council chamber. It may, nonetheless, be the case that circumstances subsequently arise which are of such importance that they cast a different light on the examining magistrate’s decision and are such that, had they been known to the examining magistrate, he or she could not reasonably have reached his or her decision.

Pursuant to Section 226a(1) DCCP, upon application by the public prosecutor, the suspect or the witness, the examining magistrate decides ex officio that the witness's identity is to be concealed in respect of his or her questioning. Pursuant to the second paragraph, the public prosecutor, the suspect, and the witness are given the opportunity to be heard in this regard. It can be deduced from the drafting history of the Witness Protection Act that the legislators intended that those involved be heard prior to the examining magistrate taking his or her decision11.

The appellant has argued that he was wrongly deprived of the opportunity to be heard regarding the public prosecutor’s applications before the examining magistrate made her decision.

The examining magistrate did not give the appellant the opportunity to be heard on the public prosecutor’s applications before making her decision. She explained this in the various decisions as follows:

The examining magistrate has thus acted in infringement of Section 226a(2) DCCP, given that the purpose of that provision is to give the suspect the opportunity to be heard on this matter prior to the decision. The issue is what the consequence of this must be. The consequence is not explicitly provided for in law.

As stated above, the examining magistrate has substantiated her decision to deviate from article 226a(2) DCCP. |She has provided the reasons why she did not give the appellant the opportunity to be heard prior to taking her decision in this case. Furthermore, she has stated that she would endeavour to compensate the appellant for infringement of his rights. To that end, she did the following. By the aforementioned letter dated 7 August 2019, the examining magistrate informed the appellant that he was being afforded the opportunity to comment on the applications at a meeting on 17 October 2019 at the Schiphol Judicial Complex. By letter dated 28 January 2020, the examining magistrate gave counsel the opportunity to convey their position on the applications. In that letter, the examining magistrate stated the following:

In her letter, the examining magistrate explicitly refers to being "heard on the matter of whether the requested status should be granted". In addition, she states that she would draw up an official report of findings further to that hearing. Although the examining magistrate does not explicitly state it in her letter, this statement does not exclude the possibility that she would reconsider her decision on granting the requested status in light of counsel’s position or that she would devote further consideration to it. That the examining magistrate intended to do so is evident from the official report of findings of 24 February 2020, in which she writes:

In the opinion of the court, that which Section 226a(2) DCCP aims to ensure has indeed been achieved. That provision serves to enable all parties involved to comment on whether a witness should be considered as a threatened witness, in order that the examining magistrate may consider the views of all parties involved when addressing that question. By nonetheless giving the appellant and his counsel the opportunity to comment on the applications, which might have led to reconsideration or further considerations by the examining magistrate, justice has been done to the intent of the law. Those additional considerations could then have been included in the present appeals if desired.

If the intentions of the examining magistrate were unclear to counsel, the onus was on counsel to obtain clarification. Counsel did not do so, nor did they adopt a position on the substance of the applications in their written response of 17 February 2020, not even in the alternative. They did so at their own risk and expense and those choices do not alter the above considerations.

The applications pursuant to Section 226a DCCP regarding witnesses V11 and X48 were made in the context of an investigation against suspect(s) unknown. For that reason, the examining magistrate did not give the appellant the opportunity to be heard on the prosecutor’s applications.

The court finds that the appellant was first identified as a suspect in the Primo criminal investigation on 25 October 2016, when an official report of suspicion was drafted with respect to him.

At the time of the examining magistrate’s decision of 5 July 2018 on the application regarding witness X48, the appellant had therefore not yet been identified as a suspect. The examining magistrate therefore neither could nor should have given him the opportunity to be heard regarding the application before deciding on it. The drafting history of the Witness Protection Act shows that the legislators provided a procedure for situations occurring after a suspect is known:

At the time of the examining magistrate’s decision of 5 July 2018 on the application regarding witness V11, the appellant had indeed been identified as a suspect. That no decision had yet been taken on whether to prosecute the appellant, as the public prosecutor has argued, does not change this. This means that the public prosecutor could and should have filed an application on behalf of the appellant with regard to V11. Had the public prosecutor done so, the examining magistrate would have had to provide the appellant with an opportunity to be heard in advance in respect of the application, based on Section 226a(2) DCCP. Since the application was, wrongly, not filed on behalf of the appellant, he has, as a result, been denied the opportunity to be heard in advance regarding the application.

The above means that there is a defect in the manner in which the decision was reached by the examining magistrate regarding witness V11. In the case of witness V11, the appellant was not given the opportunity to be heard afterwards, unlike in the decision on witnesses in the investigation specifically in respect of the appellant. By letter of 7 August 2019, the examining magistrate had allowed the appellant to comment on several applications submitted by the public prosecutor, but in view of the documents available to the court, the court assumes that this letter related only to the witnesses questioned in the investigation specifically in respect of the appellant. The examining magistrate gave counsel the opportunity to express their views in a letter dated 28 January 2020, but this letter did not relate to the application regarding witness V11 either.

In view of the considerations at 4.1.13 and 4.2.7 above, the examining magistrate had a duty to assess the application by the prosecutor, in the light of matters that could have been raised by the appellant and/or his counsel. By not giving the appellant the opportunity to be heard beforehand or afterwards, the examining magistrate was unable to take account of the appellant's opinion in her assessment. This omission can no longer be remedied, since the official record of the questioning of witness V11 has already been made available to the Public Prosecution Service. In the view of the court, the lack of opportunity for the appellant to be heard (if need be, after the fact) on the application for granting the requested status means that the decision regarding witness V11 must be reversed.

The appellant has argued that the examining magistrate wrongly infringed several provisions of the Witness Protection Act. He challenges the decision by the examining magistrate to question the witnesses before the decisions were final, the decision not to notify the appellant of the decisions without delay by means of service, the decision not to allow the appellant to be present when the witnesses were questioned, the decision to inform the appellant as soon as possible of the substance of the statement made by the witness, and the decision not to allow the appellant to provide questions for the witnesses prior to them being questioned.

As was considered above at 4.1.9, it is the appeal court as referred to in Section 226b(2) DCCP that must review the examining magistrate’s decision on whether to conceal the identity of the witness. The aforementioned decisions by the examining magistrate are not covered by this. These decisions taken after the status had been granted do not affect the manner in which the decision was reached or the substance of the decision to grant status. These decisions are therefore not subject to judicial review in the present proceedings. As follows from that which has been considered at 4.1.8 above, grounds of appeal against these decisions may be raised at trial, such that the trial court may ultimately decide on them.

The appellant argued that the examining magistrate’s decisions wrongly fail to demonstrate that the requirements of proportionality and subsidiarity have been met.

It may be inferred from the drafting history of the Witness Protection Act that application of the provisions therein must meet the requirements of proportionality and subsidiarity. Thus, the means used must be reasonably proportionate to the interest to be served and must be virtually the only means to serve that interest.13

The examining magistrate has repeatedly held in the various decisions that she has taken into account the requirements of proportionality and subsidiarity.

It should be noted that the specific facts and circumstances based on which the examining magistrate reached her conclusion may have had to be provided in summary form, owing to the need to conceal the identity of a witness.14 As a result, the examining magistrate could not be expected to substantiate her decision to a greater degree than she did. The court considers that it is sufficiently clear from the examining magistrate’s decisions that her decision to conceal the identity of the witnesses is in reasonable proportion to the interest to be served, and that this interest could not be served in another way.

The appellant has argued that he has been denied the right to have his case dealt with by an independent and impartial judge. According to the appellant, the examining magistrate appeared to be biased against him by not giving him the opportunity to be heard on the application.

Whatever else may be said of this argument, the court is of the opinion that it exceeds the scope of the present proceedings. Insofar as the appellant believes that the examining magistrate has shown bias against him, it is open to him to seek to have the examining magistrate disqualified.

Furthermore, the appellant has argued that he has been denied the right to an effective remedy, because the examining magistrate provided the official record of the questioning of witness X48 to the public prosecutor and entered it in the case file before the decision on the status of witness X48 had become final.

As previously considered at 4.2.11, the decision on the application regarding witness X48 was taken at a point in time when the appellant had not yet been identified as a suspect. The matter as to whether the examining magistrate should have waited until the decision on X48’s status had become final, before providing the official record of the witness’s questioning and, if so, what the consequences should be, exceeds the scope of the present proceedings, for reasons stated above at 4.3.2.

Pursuant to Section 226a(1) DCCP, an examining magistrate orders that with respect to questioning a witness, his or her identity be concealed, if the witness or another person, with regard to the statement to be made by the witness, may feel threatened in such a manner that they reasonably fear for their life, health or safety or the stability of their family life, or their socio-economic existence, and the witness has indicated that he does not wish to give a statement because of this threat.

The appellant has argued that the examining magistrate wrongly, or in the alternative, with insufficient substantiation, reached the conclusion that the aforementioned threat existed, and that the witnesses did not wish to give a statement because of that threat.

Before taking a decision pursuant to Section 226a DCCP, the examining magistrate is required to investigate the nature of the threats asserted by the witness and their plausibility. The drafting history of the Witness Protection Act indicates that a mere fear that the witness may have that something unpleasant will occur does not usually suffice.15 However, the threat need not consist of specific actions or statements by the suspect, but may be inferred from the character or reputation of the suspect or the criminal circles in which the suspect operates. Conceivably, threats in which the suspect neither has any part nor culpability may lead to witnesses being ensured of anonymity.16

In the various decisions, the examining magistrate has in each case held that the aforementioned threat is apparent from facts and circumstances stated in the case file, from the context as described in the applications by the public prosecutor, from the offences the appellant is suspected of having committed, as well as from the statements by the witness to the examining magistrate about his or her person and his or her personal circumstances, or those of other persons. The examining magistrate has also held t in each case hat the witness has substantiated that he or she does not want to give a statement in the criminal case, unless his or her identity is concealed, as a result of this fear.

In the comprehensive report of actions and findings of 18 December 2019, the examining magistrate explained this as follows:

The appellant is suspected of extraordinarily serious offences carrying the most serious criminal penalty available under Dutch criminal law, namely life imprisonment. Contrary to what the appellant has argued, the examining magistrate rightly took the gravity of these offences into account when assessing the threat. This was also what the legislators intended according to the drafting history of the Witness Protection Act:

A “report on risks to the safety of witnesses in the MH17 JIT investigation” is attached to the various applications by the public prosecutor, and may be considered to form part of those applications. The assessment of the examining magistrate relies in part on that report. The report, refers to reports from international organisations and NGOs, and states that there are large-scale human rights infringements in Ukraine and that there are risks to individuals speaking on politically sensitive topics in Ukraine and in the Russian Federation. For example, the OHCHR's “Report on the human rights situation in Ukraine (16 February to 16 May 2018)” details a large number of human rights infringements committed by all parties involved in the conflict, of which civilians fell victim too. It also shows that freedom of expression is very limited in the part of Ukraine controlled by armed groups. The FIDH-CCL's report “Eastern Ukraine: Civilians Caught in the Crossfire” reports on systematic detention, threats and ill-treatment of individuals by separatist armed groups in Eastern Ukraine. There are also accounts of persons being prosecuted by pro-Ukrainian armed forces for alleged support to the opposing party. Contrary to what the appellant has argued, there is no reason why the examining magistrate should not have taken account of this information in her assessment. Although the information is of a general nature and does not pertain directly to the witnesses in this case, it is not irrelevant when it comes to assessing the credibility of the threat alleged by them.

Likewise, contrary to what the appellant has argued, the examining magistrate has, in light of the additional explanation set out in the comprehensive official report. provided sufficient reasons for her assessment. The decisions show that the examining magistrate has investigated the nature of the alleged threats and the credibility thereof, with due respect for the considerations set out under 4.6.3 above. The examining magistrate could not be required to describe in more detail the facts and circumstances relayed by the witnesses, given the need to conceal the witnesses’ identity.

The court therefore concludes that the examining magistrate was in a position to make a reasonable decision to grant the status of threatened witness to the witnesses.

The appellant also referred to developments that have taken place in Ukraine since the examining magistrate’s decisions were made. In particular, the appellant pointed out that the conflict has subsided since 2019. Be that as it may, this does not alter the fact that there is very strong evidence that all parties involved in the conflict are guilty of violence against persons known to be critical of that party, while the examining magistrate has found it plausible that statements made by the witnesses may be regarded as detrimental by one of the parties to the conflict. The appellant’s arguments regarding recent developments are therefore of insufficient weight to cast a different light on the examining magistrate’s decision, nor do they indicate that the examining magistrate could not reasonably have reached her decision, had these developments also been known her.