Mr. dr. Joost Nan is Associate Professor of Criminal Law at Erasmus School of Law. As a criminal lawyer, Nan specialises in cassation cases.

In the Marengo Trial, 17 defendants are being tried for a spate of murders and attempted murders. Prime suspects Ridouan Taghi and Saïd R. succeeded in evading the law for quite a while, but were both arrested last year, in Dubai and Colombia respectively. It has already been called the largest and most important criminal trial in the Netherlands ever. What makes it so special?

“This trial provides insight into how hardened organised crime in the Netherlands has become. We’re talking about serious criminal offence, perpetrated by a large number of defendants in the top echelons of this organisation. If they’re proven guilty, most of them are looking at 30 years in prison, or life. This is the first time we’re seeing this. What I find particularly shocking about this case – apart from the large-scale cocaine trafficking and the associated crime – is the ease with which it was decided that people had to ‘disappear’. The hacked PGP messages [the encrypted communication used by the organisation, GM] show how little qualms they had about ordering a hit on someone. It only took two text messages and someone hopped on a scooter. And not just internal assassinations – other members of the underworld – but also the brother of the key witness, Nabil B., or the lawyer Derk Wiersum in September of last year. There were even discussions about having a public prosecutor murdered. In the Netherlands, we would occasionally cultivate this idea of the ‘lovable criminal’. In Willem Holleeder’s case, you had people saying: ‘This drugs dealer is a nice bloke actually’ – selling weed was presented as an innocent business. They don’t say that anymore. This organisation stops at nothing.”

By now, the defence and the public prosecutors are at loggerheads. One reason for this is an official report that was added to the dossier. It’s said to show that the lawyers had leaked information while the defendants were subject to restrictive measures. What’s going on here exactly?

 “In some cases, it may be decided to keep a defendant’s contacts with the outside world to a bare minimum, or even cut them off altogether. This is done to prevent them from frustrating the course of the trial – by influencing another defendant or witness, for example. This is called ‘restrictive measures’. The Public Prosecution Service (PPS) now alleges that several lawyers have nevertheless passed on information in an earlier phase of this trial. This is said to have become clear from the PGP messages. The problem is not only that it remains to be seen whether the lawyers overstepped the mark in terms of the Code of Conduct and criminal law, but it’s mainly about timing. If the PPS concludes that a lawyer was in breach of the restrictive measures, this is a very serious matter. It involves filing a complaint with the president of the local bar. It may subsequently be decided to impose a disciplinary sanction on the attorney in question. In addition, it may be decided that the defendant is no longer allowed to see the attorney during the term of the restrictive measures. But adding this document to the dossier at this point? It will no longer affect the trial itself, and it’s difficult for lawyers to defend themselves against such a charge.”

So why did the Public Prosecution Service do it anyway?

“It would appear as if the PPS wants to paint the defence in its entirety as… well…”

Mafia buddies, is how lawyer Christiaan Flokstra put it himself.

“Something like that. And all to influence the court’s perception. While these judges are very professional. Still, it illustrates how they’re waging this battle – including tactics that go beyond the strictly legal aspects.”

A second complaint centres on the fact that lawyers Nico Meijering and Leon van Kleef were trailed in Dubai last year because there were indications that they would be meeting Taghi, who was still on the lam. Do they have a point?

“Absolutely. This is unheard of. In the Netherlands, we have what is known as privilege. Anyone can turn to a lawyer – but also a doctor, notary or a member of the clergy, for example – and be sure that his or her information does not end up in someone else’s hands. There are a few exceptions. If following or wiretapping a lawyer enables you to locate the proverbial ticking bomb, this privilege is subordinate to a greater good. The same thing when lawyers are themselves suspected of a serious punishable offence: if I were to sit here as a lawyer and discuss with you how we could kill the rector magnificus, our conversation wouldn’t be covered by professional privilege. But in all other cases, everything you tell your lawyer should be between you and him. And this includes the simple fact that someone is, or could become, your attorney.”

In this case, the Public Prosecution Service says: ‘Taghi wasn’t a client of Meijering and Van Kleef at that point’.

“What a load of humbug. They went to Dubai as lawyers. Taghi could have become their client there after they arrived. And even if this didn’t happen: they were in Dubai to talk with another client. There’s no reason why the police had to know that. And I’d like to reiterate, perhaps unnecessarily: someone doesn’t even have to be a client. Incidentally, you can also claim this privilege even when you aren’t a client. If you visit me in my office but I decide not to take your case, our meeting will still be covered by professional privilege and my duty of confidentiality as to what we discussed. Otherwise, people might feel hesitant to share a legal problem.”

Ridouan Taghi was the Netherlands’ most wanted criminal. He is the principal defendant in the most important criminal trial in years, and involved in an organisation that has a seriously disrupting effect on our society. If you can arrest someone like that, shouldn’t you simply go ahead and do it?

“The end justifies the means? That’s probably their position at the PPS too. But no matter how serious a case, and how serious the charges, we’re still talking about a suspect here. A lot of people forget that they could become a suspect too, and that it’s very nice to live in a country where one is presumed innocent until proven guilty, and where the authorities need to abide by their own rules. And this also means that as a citizen, you are free to seek a lawyer’s assistance without consequence. The PPS itself stated that it would be pushing the limits here. In this case, they crossed the line – and I suspect they knew what they were doing. You could compare it to a striker who has broken through the other team’s defence and is tackled just before the box. Or Suarez who handles the ball to stop a goal. Except this time, it isn’t about which team will be promoted or drops out of some football league. The entire country is following this case. You’d expect both the lawyers and the Public Prosecution Service to play it strictly by the book.”

Image credit: Bas van der Schot

Is this part of a broader trend?

“We can increasingly see all sorts of non-legal pressures on trials like this. The Public Prosecution Service no longer enjoys the position of authority it used to have. And the judiciary faces the same problem. Recently, someone even had a chair thrown at him because the deceased’s survivor thought a sentence was too lenient. Generally speaking, we can see that victims are assigned an increasingly important role in the proceedings. The victim is allowed to offer his or her perspective on the case, submit documents and in some cases sue for substantial damages. This has let public opinion into the courtroom via the backdoor. People want stiff sentences. As a public prosecutor, you can never entirely ignore that kind of pressure. And then you occasionally see that people are taking less heed of the rules than they should.”

In an interview with the broadcaster NOS, Professor of Legal Psychology Peter van Koppen said that the folks at the Public Prosecution Service may need to go back to university for a while.

“I once heard a public prosecutor say: ‘My gown is my armour.’ I don’t think that’s the right attitude. We seem to have lost sight of the fact that the public prosecutor is a magistrate – as is a notary, for example. He is a party to the proceedings, so if he believes the defendant should be convicted of the offence, he can try to bring this about. But he should also keep the public interest in mind, and even the defendant’s. For example, if he’s working on a case surrounding a brawl, he’s obliged to include all information relevant to the case in the dossier and submit this to the judge. This includes statements that the defendant struck someone, but also a statement – should this have been made – that nothing had happened. A lawyer doesn’t have to do this: he’s allowed to leave out evidence that weakens his case. The only thing he isn’t allowed to do is lie.”

Image credit: Bas van der Schot

In the meantime, there’s more and more talk of the Netherlands being a ‘narco-state’, and the undermining of its institutions is becoming a serious problem. Maybe this pit bull mentality is the only way to tackle these challenges?

“The question is whether you really want to live in a country where detection methods are becoming less and less restrained and where suspects’ right are increasingly subservient to the end result. I don’t, at any rate.”

Do you have any advice as to how the PPS and the defence should resolve this conflict?

“Right now, it’s no longer about the case itself, but about how the PPS and the defence lawyers are fighting in the gutter. In principle, a brawl like this should be fought outside of the courtroom, rather than in the defendants’ presence. And the court itself doesn’t really have use for it either. Maybe they should do a mediation programme together. Get it out of their system, and then continue from there. Because that’s what they’ll have to do eventually anyway. Neither the lawyer nor the public prosecutor will be taken off the case. And a drawn-out conflict like this is bad for everyone. It’s bad for the legal profession, bad for the Public Prosecution Service and bad for the administration of justice.”