{"id":117758,"date":"2020-09-17T11:44:32","date_gmt":"2020-09-17T09:44:32","guid":{"rendered":"https:\/\/www.erasmusmagazine.nl\/en\/?p=117758"},"modified":"2025-12-19T11:25:04","modified_gmt":"2025-12-19T10:25:04","slug":"the-public-prosecution-service-has-really-crossed-a-line-here","status":"publish","type":"post","link":"https:\/\/www.erasmusmagazine.nl\/en\/2020\/09\/17\/the-public-prosecution-service-has-really-crossed-a-line-here\/","title":{"rendered":"\u2018The Public Prosecution Service has really crossed a line here\u2019"},"content":{"rendered":"

Relations between the defence and the public prosecutors in the Marengo Trial, which is seen as one of the largest and most important criminal trials ever in the Netherlands,\u00a0have deteriorated to the point where the situation is almost unworkable. Criminal law specialist and attorney Joost Nan analyses the hardening of criminal attitudes and which effect this has on the administration of justice. \u201cThe\u00a0public prosecutor\u00a0is consciously pushing the limits here, and in this case they\u2019ve crossed the line.\u201d<\/p>\n

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Mr. dr. Joost Nan is Associate Professor of Criminal Law at Erasmus School of Law. As a criminal lawyer, Nan specialises in cassation cases.<\/p>\n\n\t<\/div>\n

In the Marengo Trial, 17 defendants are being tried for a spate of murders and attempted murders. Prime suspects Ridouan Taghi and Sa\u00efd 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?<\/strong><\/p>\n

\u201cThis trial provides insight into how hardened organised crime in the Netherlands has become. We\u2019re talking about serious criminal offence, perpetrated by a large number of defendants in the top echelons of this organisation. If they\u2019re proven guilty, most of them are looking at 30 years in prison, or life. This is the first time we\u2019re seeing this. What I find particularly shocking about this case \u2013 apart from the large-scale cocaine trafficking and the associated crime \u2013 is the ease with which it was decided that people had to \u2018disappear\u2019. The hacked PGP messages [the encrypted communication used by the organisation, GM<\/em>] 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 \u2013 other members of the underworld \u2013 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 \u2018lovable criminal\u2019. In Willem Holleeder\u2019s case, you had people saying: \u2018This drugs dealer is a nice bloke actually\u2019 \u2013 selling weed was presented as an innocent business. They don\u2019t say that anymore. This organisation stops at nothing.\u201d<\/p>\n\n\t

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\n\t\t\u2018The Marengo Trial provides insight into how hardened organised crime in the Netherlands has become\u2019\n\t<\/blockquote>\n\n\t<\/figure>\n\t\t<\/div>\n\t<\/div>\n

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\u2019s said to show that the lawyers had leaked information while the defendants were subject to restrictive measures. What\u2019s going on here exactly?<\/strong><\/p>\n

\u00a0\u201cIn some cases, it may be decided to keep a defendant\u2019s 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 \u2013 by influencing another defendant or witness, for example. This is called \u2018restrictive measures\u2019. 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\u2019s 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\u2019s difficult for lawyers to defend themselves against such a charge.\u201d<\/p>\n

So why did the Public Prosecution Service do it anyway?<\/strong><\/p>\n

\u201cIt would appear as if the PPS wants to paint the defence in its entirety as\u2026 well\u2026\u201d<\/p>\n

Mafia buddies, is how lawyer Christiaan Flokstra put it himself.<\/strong><\/p>\n

\u201cSomething like that. And all to influence the court\u2019s perception. While these judges are very professional. Still, it illustrates how they\u2019re waging this battle \u2013 including tactics that go beyond the strictly legal aspects.\u201d<\/p>\n\n\t

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\n\t\t\u2018In the Netherlands, we have what is known as privilege: everything you tell your lawyer should be between you and him\u2019\n\t<\/blockquote>\n\n\t<\/figure>\n\t\t<\/div>\n\t<\/div>\n

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?<\/strong><\/p>\n

\u201cAbsolutely. This is unheard of. In the Netherlands, we have what is known as privilege. Anyone can turn to a lawyer \u2013 but also a doctor, notary or a member of the clergy, for example \u2013 and be sure that his or her information does not end up in someone else\u2019s 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\u2019t 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.\u201d<\/p>\n

In this case, the Public Prosecution Service says: \u2018Taghi wasn\u2019t a client of Meijering and Van Kleef at that point\u2019.<\/strong><\/p>\n

\u201cWhat 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\u2019t happen: they were in Dubai to talk with another client. There\u2019s no reason why the police had to know that. And I\u2019d like to reiterate, perhaps unnecessarily: someone doesn\u2019t even have to be a client. Incidentally, you can also claim this privilege even when you aren\u2019t 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.\u201d<\/p>\n\n\t

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\n\t\t\u2018A lot of people forget that they could become a suspect too, and that it\u2019s very nice to live in a country where one is presumed innocent until proven guilty\u2019\n\t<\/blockquote>\n\n\t<\/figure>\n\t\t<\/div>\n\t<\/div>\n

Ridouan Taghi was the Netherlands\u2019 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\u2019t you simply go ahead and do it?<\/strong><\/p>\n

\u201cThe end justifies the means? That\u2019s probably their position at the PPS too. But no matter how serious a case, and how serious the charges, we\u2019re still talking about a suspect here. A lot of people forget that they could become a suspect too, and that it\u2019s 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\u2019s assistance without consequence. The PPS itself stated that it would be pushing the limits here. In this case, they crossed the line \u2013 and I suspect they knew what they were doing. You could compare it to a striker who has broken through the other team\u2019s defence and is tackled just before the box. Or Suarez who handles the ball to stop a goal. Except this time, it isn\u2019t about which team will be promoted or drops out of some football league. The entire country is following this case. You\u2019d expect both the lawyers and the Public Prosecution Service to play it strictly by the book.\u201d<\/p>\n

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\n\t\t\u2018I once heard a public prosecutor say: \u2018My gown is my armour.\u2019\u2019\n\t<\/blockquote>\n\n\t<\/figure>\n\t\t<\/div>\n\t<\/div>\n

Is this part of a broader trend?<\/strong><\/p>\n

\u201cWe 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<\/a> thrown at him because the deceased\u2019s 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.\u201d<\/p>\n

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.<\/strong><\/p>\n

\u201cI once heard a public prosecutor say: \u2018My gown is my armour.\u2019 I don\u2019t think that\u2019s the right attitude. We seem to have lost sight of the fact that the public prosecutor is a magistrate \u2013 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\u2019s. For example, if he\u2019s working on a case surrounding a brawl, he\u2019s 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 \u2013 should this have been made \u2013 that nothing had happened. A lawyer doesn\u2019t have to do this: he\u2019s allowed to leave out evidence that weakens his case. The only thing he isn\u2019t allowed to do is lie.\u201d<\/p>\n

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In the meantime, there\u2019s more and more talk of the Netherlands being a \u2018narco-state\u2019, and the undermining of its institutions is becoming a serious problem. Maybe this pit bull mentality is the only way to tackle these challenges?<\/strong><\/p>\n

\u201cThe question is whether you really want to live in a country where detection methods are becoming less and less restrained and where suspects\u2019 right are increasingly subservient to the end result. I don\u2019t, at any rate.\u201d<\/p>\n

Do you have any advice as to how the PPS and the defence should resolve this conflict?<\/strong><\/p>\n

\u201cRight now, it\u2019s 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\u2019 presence. And the court itself doesn\u2019t 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\u2019s what they\u2019ll 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\u2019s bad for the legal profession, bad for the Public Prosecution Service and bad for the administration of justice.\u201d<\/p>\n\n\t

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