Uitspraken

In its decision of 23 April 2020,2 the court set out the assessment framework to be applied when examining an appeal against a decision on status pursuant to Section 226a DCCP. Briefly, this assessment framework establishes that the assessment on appeal is limited to the examining magistrate’s decision on concealing the identity of the witness for the purpose of their questioning. On the one hand, it must be assessed whether the examining magistrate’s decision was arrived at in the correct manner and, on the other hand, whether that decision was made on the correct grounds. The test with regard to the manner in which the decision was made is a comprehensive one. The test with regard to the substance of the decision is a limited one, according to the court in its decision of 23 April 2020.

The appellant has argued primarily that the test regarding substance should have been a comprehensive one. In the alternative, the appellant has argued that in order to properly assess the examining magistrate’s decisions (whether or not in a limited fashion then), the court should at least have available the full records of the hearings on status and the unredacted versions of the witness statements that S20 and S40 gave previously to the Joint Investigation Team (hereinafter: JIT). The appellant hereby drew attention to the drafting history of the Witness Protection Act and in particular to Section 226b(5) DCCP, from which is to be inferred, according to the appellant, that the members of the council chamber should have more information available to them than the public prosecutor, the defence and the judges who will be adjudicating the criminal case.

First of all, the court states that the question of the degree of assessment on appeal is not explicitly addressed in the legislation. The drafting history of the Witness Protection Act3 contains a basis for both comprehensive and limited assessment. The highest court in the land, the Supreme Court, has not yet ruled on the matter. Initially, the case law of the lower courts with respect to the degree of assessment varied, but a practice of limited assessment has emerged over time, and indeed prior to the court’s decision of 23 April 2020, and has continued since.4 Concerning the degree of assessment, the court sees no reason in the appellant’s arguments in this proceeding, to depart from its decision of 23 April 2020. In this regard, it considers the following to be decisive.

It is apparent from the drafting history of the Witness Protection Act that the legislators entrusted assessment of whether a person may and should be designated as a threatened witness to the examining magistrate alone. After all, the examining magistrate’s role in the preliminary investigation ensures that he has a more or less complete overview of the criminal investigation. He is well placed to assess an application or a request that the identity of a witness be concealed, in the context of his knowledge of the criminal investigation as a whole. He has a good overview of the significance of the witness statement for the investigation as a whole and he can assess the gravity of the (alleged) threat against the background of what is known to him from the criminal investigation. The council chamber is not able to do so.5 The examining magistrate is also the only judge to question the person for whom possible threatened witness status is being considered. This takes place in closed session. The information so gained by the examining magistrate, and which has moreover been gained subject to special witness procedures applied by the public prosecutor, only comes to a very limited extent to the knowledge of – in this case – the public prosecutor assigned to the case, the defence and the court, in the interests of protecting the witness pursuant to the provisions of Section 226f DCCP.6

The court – in contrast to the appellant – does not infer from Section 226b(5) DCCP that the court should have the same information available to it on appeal as the examining magistrate. That provision states that the members of the council chamber do not participate in hearing the criminal case when it has been ruled on appeal that the witness is a threatened witness. The legislation states the following on that point:

In the opinion of the court, that means that the test it should apply on appeal regarding the substance of the examining magistrate’s decision is a limited one. After all, the judgment on appeal may only be based on the facts and circumstances referred to in the examining magistrate’s decision, as the court – unlike the examining magistrate – does not have a complete overview of the criminal investigation and, for that reason, is therefore also in a less favourable position to make a reasoned assessment of an application or request for the identity of a witness to be concealed.

The appellant’s application in the alternative for more documentation to be requested from the examining magistrate does not fall within the scope of that test. Access to the documents referred to by the appellant could give the court more insight into the possible nature and origins of the threats the witnesses say they (have) experience(d). However, it would not provide a complete picture of the threat, given that the examining magistrate holds more (confidential) information with respect to the threat situation than the information in the documents in question. The court, furthermore, has no reason to doubt the substance of the summarised reports of the hearing on status in which the witnesses state that a concrete threat is, or threats are, being made to him/her, explain the reasons why and state that they wish any statement they make to be anonymous because they are being threatened. The court considers in that respect that it may have a high level of confidence in the examining magistrate, as was also recognised by the legislators:

It behoves the court therefore to assess whether the examining magistrate acted reasonably in deciding to grant threatened witness status in this matter. The court shall, in principle, review the examining magistrate’s decision in light of the facts and circumstances pertaining at the time the decision was taken, insofar as they are apparent from the decision and the other information in the file available to the court.

The appellant argues that the immediacy principle was violated, insofar as the decision on status with respect to Witness S20 was rendered by the examining magistrate [Name RC 1] , while the appellant and the public prosecutor were heard on the application for granting of special status by examining magistrate [Name RC 2] .

The court has noted that the appellant was heard on the application by examining magistrate [Name RC 2] and that the decision on status with respect to Witness S20 was rendered by examining magistrate [Name RC 1] . This does not appear to be in line with the intentions of the legislators, who assigned a central role to the examining magistrate in the Witness Protection Act. Hearing all the relevant parties on the application or request that the identity of a witness be concealed is an important part of the statutory provisions, in order that the examining magistrate might take account of their views in making his decision. Seen in that light, the examining magistrate – in other words, the examining magistrate ruling on the application or request – should familiarise himself with the arguments exchanged by the parties.9 In that respect, the examining magistrate has not acted in line with Section 226a(2) DCCP. The issue is what the consequence of this must be.

In the case in hand, at the meeting on 12 March 2021 with examining magistrate [Name RC 2] , the lawyers acting on behalf of the appellant spoke from a written text (memorandum), which they provided to her, and the substance of the remainder of what was discussed at the meeting was captured in the official record of the meeting. The memorandum was appended to that official record; everything that was put to the examining magistrate on behalf of the appellant has thereby literally become part of the official record. [Name RC 1] was able to familiarise himself with these documents and it is apparent from the contested decision that he also fully did so. The examining magistrate who rendered the decision was therefore aware of both the appellant’s and the public prosecutor’s arguments and took account of them in considering the application for the granting of special status.

The question is then which of the appellant’s legal interests, if any, have been harmed10 by the fact that the decision was rendered by a different examining magistrate to the examining magistrate who heard him, through his lawyers, on the application. The appellant has not stated whether and if so which of his legal interests have been harmed by this manner of proceeding. He has not claimed that certain issues discussed at the meeting were not, or not properly, recorded in the official record. His lawyers, moreover, spoke from a written text (memorandum) which is appended to the official record. The court notes in this respect that insofar as comments or observations by the examining magistrate might be important, for example reflecting that the suspect had become emotional, they are moot in this instance as the appellant was represented by his lawyers at the meeting. Nor does the court, for its part, see which legal interests of the defence, if any, have been harmed by this manner of proceeding. In the opinion of the court, the purpose of Section 226a(2) DCCP, which is to ensure that the examining magistrate fully considers the views of the relevant parties when assessing an application for the granting of special status has, therefore, been met. The fact that the decision relating to Witness S20 was issued by a different examining magistrate to the examining magistrate who heard the parties on the application, does not therefore in this instance lead to annulment of the decision.

The appellant has argued that the examining magistrate’s refusal to afford him the opportunity to be heard again, through his lawyers, after the hearings on the status of witnesses S20 and S40 had been held, amounts to a violation of the right to be heard as referred to in Section 226a(2) DCCP.

First of all, the court states that pursuant to Section 226a(2) DCCP the appellant must be afforded the opportunity to be heard on an application for the granting of special status. The law is silent on the point in time at which that must take place. If the parties are heard in the order proposed by the appellant, whereby first the hearing on status is held with the witness and then the appellant is heard, the appellant has the opportunity to respond to what was discussed at the hearing on the status. If the order is that followed by the examining magistrate, whereby the appellant is heard before the hearing on the status, what the appellant has presented may be put to the witness at that hearing, for instance regarding whether or not the witness should be designated as a threatened witness, the reliability of the witness or the nature of the threat. Both orders have their advantages and disadvantages.

As there is no mandatory order prescribed by the law, the examining magistrate is free to determine in what order it is best to hear the parties on an application in the case in hand. There is thus no support in law for the assertion that the appellant should have been heard again after the hearings on the status.

Pursuant to Section 226a(1) preamble and sub-paragraph a DCCP, the examining magistrate shall order that the witness’s identity be concealed while he is being questioned if the witness or another person, with a view to the statement to be made by the witness, feels threatened to such an extent that it may be reasonably assumed that his life or health or the safety or stability of his family life or socio-economic existence is in jeopardy, and the witness has indicated that he/she does not wish to make a statement on account of this threat.

The appellant argues that the examining magistrate ruled in error, or at least with insufficient and/or incomprehensible reasons, that there was a threat in the aforementioned sense and that on account of that threat the witnesses did not wish to make a statement. The appellant submits that it had not been established that an actual threat existed, and that the supporting information in the reports consulted by the examining magistrate in making his assessment, was too general and outdated.

Prior to making his decision pursuant to Section 226a DCCP, the examining magistrate is required to conduct an investigation into the nature and plausibility of the threats alleged by the witness in question. He must ascertain that there is an objective and sufficiently real threat in order to grant threatened witness status. In the decisions, the examining magistrate found that such an aforementioned threat was apparent from the facts and circumstances recorded in the case file, from the context as described in the public prosecutor’s applications, from the facts pertaining to which the appellant is a suspect, as well as from the information imparted by the witness himself/herself to the examining magistrate about his/her person and his/her personal circumstances. The examining magistrate also found that the witnesses had provided reasons as to why they did not wish to make a statement in the criminal case, unless their identity was concealed, on account of those threats.

The examining magistrate found the existence of a real and objective threat to be plausible on the basis of the following considerations with respect to the statement to be made by Witness S20:

On the basis of similar considerations, the examining magistrate found the existence of a real and objective threat to be plausible with respect to the statement to be made by Witness S40, whereby the following was recorded in the contested decision regarding this witness (to whom the JIT also assigned an assumed identity):

Specifically with regard to Witness S20, the examining magistrate also found the following:

Specifically with regard to Witness S40, the examining magistrate also considered the following:

It behoves the court therefore to assess whether the examining magistrate acted reasonably in coming to these decisions. The test as to whether these decisions were reasonable is limited to how comprehensible the reasons provided for these decisions were.

The court finds that it appears from the examining magistrate’s decisions that both Witness S20 and Witness S40 have spoken about real threats, directed against their person, related to providing a statement in the criminal case against the appellant. In their previous statements to the JIT, both witnesses specifically referred to matters which may play a role in this criminal case.

In assessing the threat, the examining magistrate took into consideration, among other things, the ‘report on security risks for witnesses in the JIT-MH17 investigation’ of December 2018, in which the Public Prosecution Service described, with reference to reports from international organisations and NGOs, risks that exist for persons speaking out on politically sensitive matters in Eastern Ukraine and the Russian Federation ,as well as the ‘Report on the Human Rights Situation in Ukraine, 1 August 2020 - 31 January 2021’ from the United Nations Office of the High Commissioner on Human Rights (OHCHR). Contrary to what the appellant argues, it does not appear that the examining magistrate should not have included this information in his/her assessment. It is true that the information is of a general nature, not directly related to the witnesses in this case and therefore not decisive either. However, that does not mean that this information is irrelevant when it comes to assessing the nature and the plausibility of the threat(s) alleged by the witnesses. The court does not accept the appellant’s argument that based on the examining magistrate’s reasoning, every witness making a statement in this case could or should be designated as a threatened witness. The threat in the meaning of Section 226a(1) preamble and sub-paragraph a DCCP, is after all not solely determined on the basis of the general threat situation emerging from the aforementioned reports. Rather, what witnesses state regarding real threats against their person related to providing a statement, in particular, is also important for that determination, as is what the examining magistrate ascertains in that regard from other sources.

The aforementioned reports refer to wide-scale human rights abuses in Ukraine, committed by all parties involved in the conflict, to which civilians have also fallen victim, and that there are risks for persons who speak out on politically sensitive issues in Ukraine and in the Russian Federation. It appears from the OHCHR updates, referred to by both the appellant and the public prosecutor, that arbitrary and incommunicado detention is still taking place in occupied areas in Eastern Ukraine. The appellant asserts that, based on recent OHCHR updates, the security situation appears to have significantly improved and that there are considerably fewer conflict-related detentions. The court finds that – as was also argued by the public prosecutor at the hearing – the issue is whether this is not merely a decrease in the number of reported cases of such detentions, rather than a decrease in the actual number of cases. It emerges, namely, from the OHCHR information that conflict-related prisoners are forced to sign a statement undertaking not to give any information about their detention to anyone. Whether or not that is the case, it is a fact that conflict-related arbitrary and incommunicado detention is still taking place and, therefore, in that sense the security situation has not improved significantly.

In the opinion of the court therefore, the examining magistrate did provide sufficient reasoning for the decisions. The decisions show that the examining magistrate did examine the nature of the alleged threats and the plausibility thereof. The examining magistrate could not be required to describe the facts and circumstances recounted by the witnesses in greater detail, given the need to keep the identity of the witnesses concealed.

The appellant argues that the examining magistrate’s decisions are defective in that it is not apparent from them that the proportionality and subsidiarity requirements have been met. In that respect, the appellant submitted that it is not apparent that the requirements cannot be met with less stringent measures than full anonymity and that, in so doing, the examining magistrate did not take account of the significance of the witness statements for the ruling on the evidence and the grounds therefor in the criminal case against the appellant. The court determines that this argument refers to subsidiarity. It shall, therefore, not address the matter of proportionality hereinafter.

It can be inferred from the drafting history of the Witness Protection Act that application of the rules set out therein must meet the subsidiarity requirement. That means that the means employed (the obligation to testify despite a serious threat) must virtually be the sole means of serving the interest (prevention of criminal offences or the right to a fair trial).11

In the decisions, the examining magistrate found as follows:

Therefore, in the opinion of the court, the examining magistrate did comply with the requirements relating to subsidiarity in a comprehensible manner. The examining magistrate correctly presumed that, given the court’s instruction, he/she could not fail to question the witnesses. This does not alter the fact that the examining magistrate was fully aware of the issue of subsidiarity and assessed whether the witnesses could be questioned with less stringent measures than full anonymity.

It should be noted that the need to keep a witness’s identity concealed can require that the real facts and circumstances based on which the examining magistrate arrived at his decision are given in summary form. The examining magistrate cannot, therefore, be required to provide more detailed reasoning for the decisions on that point than was done here.