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ECLI:NL:RBDHA:2020:3761

Instantie
Rechtbank Den Haag
Datum uitspraak
23-04-2020
Datum publicatie
23-04-2020
Zaaknummer
09/748006-19 Translation
Rechtsgebieden
Strafrecht
Bijzondere kenmerken
Hoger beroep
Raadkamer
Beschikking
Inhoudsindicatie

Decision on appeal against decisions of the examining magistrate on granting threatened witness status under Section 226a DCCP with regard to the MH17 trial. Decisions on granting such status are subject to limited review. The suspect was wrongly deprived of the opportunity to be heard on the prosecutor’s applications prior to the decisions. In this instance, the decisions were, however, not set aside provided that the suspect was later afforded that opportunity. That did not happen in the case of one witness and so that decision was set aside. The examining magistrate did indeed have reason to grant said status to 12 other witnesses.

* unofficial translation.

This English translation is provided for information purposes only. In the event of discrepancy, the original text in Dutch shall prevail.

Vindplaatsen
Rechtspraak.nl
Verrijkte uitspraak

Uitspraak

DISTRICT COURT OF THE HAGUE

Criminal Law

Public Prosecutor’s Office No.: 09/748006-19

Council chamber numbers: 20/366, 20/367, 20/368, 20/369, 20/370, 20/371, 20/372, 20/373, 20/374, 20/375, 20/376, 20/377, 20/378

Decision of the District Court of The Hague, three-judge criminal division, on the appeals against decisions pursuant to Section 226a of the Code of Criminal Procedure, made by the examining magistrate in the District Court of The Hague, of 15 January 2016 (X48), 5 July 2018 (V11), 19 December 2018 (V22), 1 February 2019 (V7), 5 March 2019 (V43), 13 March 2019 (V44), 13 March 2019 (V47), 26 March 2019 (V52), 10 April 2019 (V45), 16 April 2019 (V49), 27 April 2019 (V51), 14 May 2019 (V54), and 5 December 2019 (V9), received at the registry of this court on 6 February 2020, from:

[Appellant] ,

born on [date] at an unknown location,

choosing the office of his lawyers as his address for the case in hand

Mr. B.C.W. van Eijck and Mr. A.S. van Doesschate,

address: Oostmaaslaan 71, 3063 AN Rotterdam,

(hereinafter referred to as the appellant).

1 Introduction

1.1

In a criminal investigation referred to as Primo, the appellant is suspected of participating in intentionally causing flight MH17 to crash on 17 July 2014 by firing a BUK missile at the airplane, killing all occupants of the airplane.

1.2

Witnesses were questioned as part of the criminal investigation. In response to applications by the public prosecutor, the examining magistrate ordered that the identity of thirteen witnesses be concealed for the purpose of their questioning. The examining magistrate granted them the status of threatened witness. This decision concerns the matter of whether or not the examining magistrate erred in making that decision. The relevant legal framework is set out in Sections 226a to 226f of the Dutch Code of Criminal Procedure (hereinafter: DCCP). These Sections were incorporated by Act of 11 November 1993 amending the Code of Criminal Procedure, the Criminal Code and several other laws (witness protection)1. For the sake of brevity, the court will refer to this law as the Witness Protection Act. The full text of these sections of law is attached to this decision.

2 Procedure

2.1

In the context of the Primo investigation into unknown suspect(s) (an investigation into persons unknown), the public prosecutor applied to the examining magistrate on 15 January 2016 and on 28 May 2018 to have a witness questioned pursuant to Section 226a DCCP. By decisions of 15 January 2016 (X48) and 5 July 2018 (V11) respectively, the examining magistrate granted the applications made by the public prosecutor and ordered that the identity of these witnesses, designated as X48 and V11, be concealed for the purpose of their questioning and that they be granted threatened witness status. Between 15 January 2016 and 24 March 2016 (X48) and 5 July 2018 and 25 September 2018 (V11), the examining magistrate questioned X48 and V11 as witnesses in the Primo investigation. The official records of examination were provided to the Public Prosecution Service by the examining magistrate.

2.2

On 21 November 2018 (V7), 27 November 2018 (V9 and V22), 26 February 2019 (V43), 6 March 2019 (V44, V45 and V47), 13 March 2019 (V52), 2 April 2019 (V49), 12 April 2019 (V51) and 2 May 2019 (V54), the public prosecutor made an application for a witness to be questioned pursuant to Section 226a DCCP in the Primo investigation against the appellant. These witnesses are referred to as V7, V9, V22, V43, V44, V45, V47, V49, V51, V52, and V54. In addition, the public prosecutor requested that the appellant not be given the opportunity to be heard on this matter, at this stage of the investigation, and that the decision granting of status should not be served on the appellant. Finally, the public prosecutor requested that the witnesses be questioned before the examining magistrate’s decisions pursuant to the applications became final.

2.3

By orders of 5 December 2018 (V9), 19 December 2018 (V22), 1 February 2019 (V7), 5 March 2019 (V43), 13 March 2019 (V44 and V47), 26 March 2019 (V52), 10 April 2019 (V45), 16 April 2019 (V49), 27 April 2019 (V51), and 14 May 2019 (V54), the examining magistrate granted the applications of the public prosecutor pursuant to Section 226a DCCP and ordered that the identity of V7, V9 , V22, V43, V44, V45, V47, V49, V51, V52, and V54 be concealed for the purpose of their questioning and that they be granted threatened witness status. The examining magistrate also granted the applications of the public prosecutor referred to under 2.2 and stipulated that the public prosecutor was not to be present during the questioning, nor was he to be given the opportunity to submit questions for the witness or to stipulate topics which he deemed relevant to be raised during questioning.

2.4

Between 1 February 2019 and 1 May 2019 (V7), on 5 March 2019 (V43), between 13 March 2019 and 13 June 2019 (V44), between 5 December 2018 and 5 March 2019 (V9), between 19 December 2018 and 19 March 2019 (V22), between 14 May 2019 and 14 August 2019 (V54), between 10 April 2019 and 10 July 2019 (V45), between 27 April and 27 July 2019 (V51), between 13 March 2019 and 13 June 2019 (V47), between 16 April 2019 and 16 July 2019 (V49), between 26 March 2019 and 26 June 2019 (V52), the examining magistrate questioned V7, V43, V44, V9, V22, V54, V45, V51, V47, V49, and V52 as witnesses in the Primo investigation. These interviews were not provided to the Public Prosecution Service. In the order granting status, the examining magistrate has always determined that she would keep the official record of questioning to herself until the decision on the requested status became final.

2.5

By letter of 7 August 2019, the examining magistrate informed the appellant that he, as a suspect in the criminal investigation into the circumstances of the crash of flight MH17, may exercise his defence rights with respect to certain investigative steps. The appellant was given the opportunity to comment on a number of applications submitted by the public prosecutor, at a meeting on 17 October 2019 at the Schiphol Judicial Complex. This letter, which was accompanied by a Russian-language translation, was served on the appellant by the authorities of the Russian Federation on 14 October 2019. The appellant did not respond to this letter (in time). At the meeting on 17 October 2019, which was not attended by the appellant, the examining magistrate provided the decisions in response to the applications pursuant to Section 226a DCCP for service to the public prosecutor. On 22 October 2019, the examining magistrate received a letter from E. Kutina in Moscow, dated 16 October 2019, addressed to the Council for the Judiciary in The Hague and received by the latter on 18 October 2019, introducing herself as the appellant’s 'legal representative' and requesting on his behalf that the meeting on 17 October 2019 be postponed. The examining magistrate informed Ms Kutina by letter of 1 November 2019 that the examining magistrate can only respond to applications made by the appellant himself or a lawyer authorized under Dutch law.

2.6

After Mr. Van Eijck and Ms Ten Doesschate presented themselves as counsel for the appellant on 16 January 2020, the examining magistrate sent them a letter on 28 January 2020 to give them the opportunity to be heard with respect to the applications for granting the requested status in order that they might express their views on the prosecutor 's applications regarding witnesses V7, V9, V22, V43, V44, V45, V47, V49, V51, V52, and V54 by 7 February 2020. At the request of counsel, a postponement was granted until 17 February 2020. On 17 February 2020, counsel informed the examining magistrate that they would not take this opportunity, because - in short - the appellant should have been heard prior to the decisions granting the requested status being issued. In an official report of findings, drawn up on 24 February 2020, the examining magistrate found that the defence had not taken a position on the substance of the applications for granting status and that this meant that she had no reason to further consider the matter of the status granted in the decisions made pursuant to Section 226a DCCP.

2.7

In a comprehensive official report of actions and findings, drawn up on 18 December 2019, the examining magistrate explained the course of events before, during and after the witnesses were questioned and described certain general aspects of these interviews.

2.8

An appeal against the examining magistrate’s decisions was filed on 6 February 2020 on behalf of the appellant.

2.9

After a written exchange of views, the court dealt with the appeals at an in camera hearing, not open to the public, on 2 April 2020. The public prosecutor, Mr. W.N. Ferdinandusse and Ms Ten Doesschate were heard in chambers.

3 Positions of the parties

3.1

The appellant has taken the position that the examining magistrate’s decisions and the subsequent course of events have formal and substantive defects and that the resulting errors are serious and irreparable, such that the decisions should be reversed. The court will discuss the grounds of the appeals hereunder.

3.2

The public prosecutor has taken the view that the appeals are inadmissible, insofar as the appellant is contesting decisions made by the examining magistrate other than the decisions granting the status of threatened witness. For the rest, the public prosecutor took the position that the appeals should be dismissed.

4 Findings of the court

4.1

Assessment framework

4.1.1

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

4.1.2

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.

4.1.3

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.

4.1.4

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.

4.1.5

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:

"The interests of the witness at issue are such that, in my view, he or she should be able to have a decision made against him by the examining magistrate reviewed on appeal. The witness's right to be heard and to file an appeal against an unwelcome decision relates only to a decision regarding concealment of his or her identity for the purpose of the questioning.3"

4.1.6

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.

4.1.7

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:

"Once it has been decided by the competent court that the identity of that witness should be concealed, the matter is no longer open to debate for the duration of the proceedings. Implementation of the proposal to allow the validity of a ruling on anonymity to be reviewed by a court in a separate proceeding would be seriously hampered if the matter as to whether the anonymity of the witness for the purpose of questioning had been rightly invoked by the witness in light of the conditions set out in proposed Section 226a(1) could repeatedly be examined by the court. Therefore, a witness with respect to whom such a decision has been made should be considered a threatened witness for the duration of the criminal proceedings.4

4.1.8

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

4.1.9

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.

4.1.10

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.

4.1.11

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

4.1.12

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

"Given his role in leading the preliminary judicial investigation, the examining magistrate is usually well apprised of the state of affairs in the preliminary investigation and has a good understanding of the significance of the anonymous witness statement for the investigation as a whole. Due to his position, he is au fait with the criminal networks operating and can better assess the gravity of the threat than the trial court or the council chamber.7

The council chamber does not have those attributes, according to the legislators:

"The decision on whether or not the new procedure under art. 226a-e should be applied [can] indeed be entrusted to the examining magistrate […].The examining magistrate leading the preliminary judicial investigation ex officio has an excellent overview of the state of the investigation. In this context, he can assess the merits of applications from the witness or the Public Prosecution Service for the person concerned to be questioned under anonymity. Adjudication of the validity of such applications by the council chamber would be based on a somewhat isolated assessment of the matter by three judges who would have to study a case file, with which they were hitherto unfamiliar."8

4.1.13

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.

4.1.14

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.

4.1.15

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.

4.2

Infringement of Section 226a(2) DCCP? (ground of appeal I)

4.2.1

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.

4.2.2

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.

Witnesses in an investigation against a named person or persons (witnesses V7, V9, V22, V43, V44, V45, V47, V49, V51, V52, and V54).

4.2.3

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 law does not provide for hearing the views of the suspect on the public prosecutor’s application to be postponed in an investigation against a named person or persons (i.e. not with respect to persons unknown). The public prosecutor has thus requested a departure from statutory procedure. If the examining magistrate grants this application, the interests of the suspect may suffer harm, as the suspect will be deprived of an opportunity to challenge the application and to express his views prior to the examining magistrate making her decision. This is an infringement of a procedural right enjoyed by the suspect. (…)

The examining magistrate has taken into account that the present investigation pertains to criminal offences that allegedly resulted in flight MH17 crashing on 17 July 2014, killing 298 people. The offenses in question are therefore very serious. These offences occurred in an area in which a conflict involving multiple parties is prevailing. The outcome of the criminal investigation may therefore be of significance to one or more parties involved in that conflict. Investigation of the offences is currently ongoing. In light of that conflict and the associated interests at play, it is possible that when it becomes known which persons have been identified as suspects by the public prosecutor, one or more parties may have an interest in influencing, directing and/or obstructing the investigation.

The public prosecutor has plausibly argued that the witness’s statement is important for the investigation and establishing the truth. Furthermore, it has been ascertained that the witness originates from, or is regularly present in, an area in which a conflict and/or war prevails and that that entails significant risks for the witness.

It is the view of the examining magistrate that the importance of the investigation not being influenced and/or obstructed and of the witness being questioned at this time is such that the identified infringements of the suspect's rights are justified under the circumstances in question. (…)

The examining magistrate will make every effort to compensate the suspect for the infringements made. The possibility of the suspect being heard on the application at a later point in time is, in particular, being considered and the best form for this will have to be contemplated in due course (…)

It follows from the above that the following measures will be taken:

- The suspect will not be heard on the application pursuant to Section 226a DCCP at this time;

- (…)".

4.2.4

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.

4.2.5

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:

"I hereby give you the opportunity to convey your position on these applications, with respect to your right to be heard on the matter of whether the requested status should be granted, and to do so in writing no later than 7 February 2020. If you avail of this opportunity, an official report of findings will be drawn up thereon and added to the documents in the case relating to the witness(es) concerned."

4.2.6

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:

"I note that the defence has not adopted a position on the substance of the applications for granting the requested status. As a result, I see no reason for further consideration of the status granted in the decisions taken pursuant to Section 226a DCCP.

4.2.7

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.

4.2.8

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.

Witnesses in an investigation into persons unknown (witnesses V11 and X48)

4.2.9

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.

4.2.10

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.

4.2.11

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:

'If the suspect becomes known at a later stage and is designated in the application referred to in Section 181(3) DCCP, the suspect and his counsel must, in order that the statement of the threatened witness might be used as evidence, nonetheless be given the opportunity to question the threatened witness. In that case, whether or not at the direction of the trial court, the threatened witness would have to be questioned a second time by the examining magistrate, in accordance with Sections 226c-226f."12

4.2.12

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.

4.2.13

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.

4.2.14

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.

4.3

Infringement of Sections 226a(3), 226b(1), 226d(1) and(2) DCCP? (grounds of appeal II to V)

4.3.1

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.

4.3.2

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.

4.4

Failure to meet the requirements of proportionality and subsidiarity? (ground of appeal VI)

4.4.1

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

4.4.2

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

4.4.3

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

4.4.4

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.

4.5

Judge not independent and impartial and no effective remedy? (ground of appeal VII)

4.5.1

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.

4.5.2

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.

4.5.3

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.

4.5.4

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.

4.6

No threat as defined in Section 226a(1) DCCP (ground of appeal VIII) and no connection between the threat and the refusal to give a statement? (ground of appeal IX)

4.6.1

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.

4.6.2

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.

4.6.3

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

4.6.4

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.

4.6.5

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

"When hearing the views of the witness on their status, the examining magistrate first checked whether the witness felt threatened, and whether the witness was only willing to give a statement if his or her identity was concealed for that reason. All witnesses for whom an application had been made have adopted this position.

For the sake of protection, the threat and fear could not be set out in more specific terms than has been done in the present official reports for each witness without disclosing information about the witness's identity. The examining magistrate then investigated the nature and gravity of the threat asserted by the witness concerned.

By letter of 30 November 2018, the public prosecutor substantiated the position of the Public Prosecution Service regarding the nature and gravity of the threat in more detail. Enclosed with this letter was a report from the Public Prosecution Service regarding the safety risks for witnesses in the JIT MH17 investigation. The examining magistrate concluded from the report that witnesses in this investigation may face a specific danger. The fact that there is a situation in Eastern Ukraine that for the time being has been defined as an armed conflict by various international organisations and NGOs is very relevant in answering the question as to whether there is an actual threat. Several reports state that there are strong indications that all parties to the conflict are guilty of wrongful detention, inhuman treatment and violence against persons known for criticising that party. To substantiate the threat, the public prosecutor has also argued that cooperating with the investigation by giving a statement as a witnesses will be regarded as detrimental by one party or the other.

The examining magistrate considers this plausible. The threat strongly applies to witnesses who live, work or regularly stay in the conflict area, or who have relatives who do so. This may also be a relevant circumstance for other witnesses, for example, if the statement to be made may be assumed to be detrimental by one of the parties to the conflict. Some parties to the conflict are more powerful than others, but all are willing and able to commit acts of violence. In addition to these general circumstances, the examining magistrate took into account the personal experiences of the witness when assessing whether there was a specific threat. In the opinion of the examining magistrate, it has been established with regard to witnesses who have been granted threatened witness status that the disclosure of his or her identity constitutes a threat to the fundamental interests or rights of the witness or of a person for whom the witness is the care provider or is responsible, that this danger or threat is specific, and that there is an objective reason for fear, all relating to the statement to be given. The examining magistrate has in each case held the threat and fear of these witnesses plausible on the basis of their personal circumstances as explained by the witness and of the substantiation provided by the public prosecutor in his application pursuant to Section 226a DCCP and his letter in extenso.”

4.6.6

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:

"In the process of assessing the witness's application to be questioned anonymously, the nature and reality of the threats against the backdrop of the gravity of the offence committed are central."17

4.6.7

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.

4.6.8

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.

4.6.9

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.

4.6.10

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.

5 Conclusion

5.1

The foregoing leads to the following conclusion.

5.2

The appeals against the examining magistrate’s decisions concerning witnesses X48, V7, V9, V22, V43, V44, V45, V47, V49, V51, V52, and V54 must be dismissed.

5.3

The appeal against the decision regarding witness V11 must be allowed and that decision must be reversed. Pursuant to Section 448(1) DCCP, the court will do what the examining magistrate should have done and dismiss the public prosecutor's application with respect to witness V11.

6 Decision

The court:

in the case assigned council chamber number 20/368

- allows the appeal;

- reverses the examining magistrate’s decision of 5 July 2018 pursuant to Section 226a DCCP with respect to witness V11;

- dismisses the public prosecutor's application of 28 May 2018 with respect to witness V11.

in the cases assigned council chamber numbers 20/366, 20/367, 20/369, 20/370, 20/371, 20/372, 20/373, 20/374, 20/375, 20/376, 20/377, and 20/378

- dismisses the appeal.

This decision was made in council chamber by:

Mr A.M. Boogers Presiding Judge

Mr B.W. Mulder Judge

Ms M.T. Renckens Judge

in the presence of Ms W.G. Terwel Registrar

and issued on 23 April, 2020.

This decision was signed by the Presiding Judge and the Registrar.

This decision is no longer open to ordinary forms of review.

Appendix: Sections 226a to 226f of the Code of Criminal Procedure

Section 226a

1. The examining magistrate shall order, either ex officio or on application of the public prosecutor or of the suspect or of the witness, that the witness’s identity be concealed while he is being questioned, if:

a. 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

b. the witness has indicated that he does not wish to make a statement on account of this threat.

In the other case he shall reject the application.

2. The public prosecutor, the suspect, and the witness shall be given the opportunity to be questioned on this matter. A lawyer shall be granted to the witness who does not yet have legal representation. The board of the Legal Aid Council shall arrange the assignment of said lawyer by order of the examining magistrate.

3. The examining magistrate shall not proceed with the questioning of the witness as long as his decision is open to appeal and, if an appeal has been filed, until it has been withdrawn or a decision given thereon, unless postponement of the questioning is not in the interest of the investigation. In that case the examining magistrate shall not release the official record of questioning of the witness until a judgment has been rendered in the appeal proceedings.

Section 226b

1. The decision given by the examining magistrate pursuant to Section 226a(1) shall be reasoned, dated and signed and shall be promptly notified in writing to the public prosecutor and served on the suspect and the witness, stating the time limit within which and the manner in which the legal remedy available against the decision must be exercised.

2. Appeal against the decision may be filed with the court determining questions of fact, before which the case is being prosecuted, by the public prosecutor within fourteen days after the date of the decision and the suspect and the witness within fourteen days after service of the decision.

3. The court shall decide as soon as possible. If an appeal against an order given pursuant to Section 226a(1) is deemed well-founded, and the examining magistrate has already questioned the witness in accordance with Sections 226c-226f, the examining magistrate shall ensure that the official report of the questioning of the witness is destroyed. The examining magistrate shall prepare an official report thereof. Section 226f shall apply mutatis mutandis.

4. The decision given in chambers shall not be open to appeal.

5. If it has been irrevocably decided in appeal that the witness is a threatened witness, the members

of the court, under penalty of nullity, shall not participate in the court questioning. Section 21(3) shall not apply.

Section 226c

1. Before questioning a threatened witness, the examining magistrate shall establish his identity and state that he has done so in the official report.

2. The witness shall be put under oath or admonished to tell the truth in accordance with the provisions of Section 216.

3. The examining magistrate shall question the threatened witness in such a way as to ensure that his identity remains concealed.

Section 226d

1. If required in the interest of concealing the identity of the threatened witness, the examining magistrate may determine that the suspect or his defence counsel or both of them may not attend the questioning of the threatened witness. In the latter case the public prosecutor may not attend the questioning either.

2. The examining magistrate shall notify the public prosecutor, the suspect or his defence counsel, if he has not attended the questioning of the witness, as soon as possible of the substance of the witness’s statement and give him the opportunity to submit the questions he would like to be put to the witness, either by telecommunication, or if this would be contrary to the interest of concealing the identity of the witness, in writing. Questions may be submitted before the start of the questioning, unless the interest of the investigation does not permit any delay in the questioning.

3. If the examining magistrate prevents the public prosecutor, the suspect or his defence counsel from learning of an answer given by the threatened witness, the examining magistrate shall have entered in the official report that the question was answered.

Section 226e

During the questioning the examining magistrate shall investigate the credibility of the threatened witness and enter a statement to that effect in the official report.

Section 226f

1. The examining magistrate shall take the measures which are reasonably necessary to ensure that the identity of a threatened witness and any witness in respect of whom an application as referred to in Section 226a(1) has been submitted, is concealed until an irrevocable judgment in the matter has been given, where possible in consultation with the public prosecutor.

2. To that end, the examining magistrate shall be authorised to omit information regarding the identity of the witness from the case documents or to have case documents anonymised.

3. The examining magistrate and the clerk shall sign or certify the anonymization.

1 Bulletin of Acts and Decrees 1993, 603.

2 Parliamentary Papers II 1991-92, 22 483, no.3, p. 7-13.

3 Parliamentary Papers II 1991-92, 22 483, no.3, p. 20.

4 Parliamentary Papers II 1991-92, 22 483, no.3, p. 18. See also Supreme Court 30 June 1998, NJ 1999, 88, paragraph 6.3.5.

5 See, for example, Supreme Court June 30, 1998, NJ 1999, 88, paragraph 6.4.3, and Supreme Court June 10, 1997, NJ 1997, 585 paragraph 6.4.

6 Parliamentary Papers II 1991-92, 22 483, no.3, p. 13-17.

7 Idem, p. 16.

8 Parliamentary Papers II 1992-93, 22 483, no. 8, p. 4.

9 Examining Judges (Extended Powers) Act, Bulletin of Acts and Decrees 2011, 600.

10 Parliamentary Papers II 2009-10, 32 177, no.3, p. 1-2.

11 Parliamentary Papers II 1991-91, 22 483, no.3, p. 20.

12 Parliamentary Papers II 1991-92, 22 483, no.3, p. 25.

13 Parliamentary Papers II 1991-92, 22 483, no.3, p. 5-6, 24.

14 Compare Supreme Court June 30, 1998, NJ 1999, 88, paragraph 6.3.5.

15 Parliamentary Papers II 1992-93, 22 483, no.6, p. 11.

16 Parliamentary Papers II 1991-92, 22 483, no.3, p. 19.

17 Parliamentary Papers II 1992-93, 22 483, no.6, p. 8.