This project is funded by the European Union
WITNESS PROTECTION IN THE NETHERLANDS
Saskia de Vries, seconded prosecutor to the IPA 2010 project Fight against organised
crime and corruption: Strengthening the Prosecutors' Network
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Legal basis: duty of care
Supplying information
will cause serious risks
to the witness
The state which is using
information provided by
the witness, has the
responsibility for the
safety of the witness
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Basic principles of witness protection
• ECHR: duty of care for a State is limited by reasonable
possibilities and does not have to be a disproportional
burden.
• The prime responsibility for his/her safety is with the
witness/victim: cooperation is of vital importance.
• “your safety is our concern, but your own responsibility”.
• The State is responsible for safety measures, not for safety.
• The intended witness has to cooperate fully e.g. to supply all
necessary information, in order to conduct a complete riskassessment and to minimize security threats.
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International legal framework
• United Nations Convention against transnational
organized crime (Palermo Convention)
• Supplementing Protocol to this Convention
• Council of Europe Convention on action against THB
• EU Framework Decisions
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National legal framework
• No special legislation on WP
• The legal basis is just one provision in the Dutch
Code on Criminal Procedure
• B9 procedure for victims of THB
• Protective measures during the court proceedings
(ordered by the judge)
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WITNESS PROTECTION AND THE
PROTECTED WITNESS
Two separate institutions
• Witness protection program is the responsibility of the
Public Prosecutor
• The status of protected witness is decided on by the judge
• In theory a witness can be in the witness protection
program, but not recognized as a protected witness by the
judge
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Intake into WP
• A possible witness indicates he wants to
cooperate to the Public Prosecutor dealing
with the criminal case, but is fearing for his
own safety and the safety of his family
• The PP asks the Special Prosecutor for WP for
an analysis of the safety risks for the witness
• WP program is not negotiable. It has to be
necessary. It is separate from a plea
agreement.
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Procedure WP (1)
• The witness is assigned a (financed) lawyer
• The special PP on WP negiotiates the terms of agreement
with the witness and his lawyer
• The government attorney draws up an agreement, signed
by the witness and the PP on WP
• There is NO involvement from the judge
• The agreement ONLY covers the WP program. If the
witness also negotiates a plea agreement, this will be a
separate agreement with the PP who deals with the
criminal case. The judge has to accept the plea agreement
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Procedure WP(2)
• The agreement between the witness and the public
prosecutor is covered by civil law
• Disagreements originating from the agreement are
dealt with by an arbitrating judge (the civil judge is
explicitly excluded)
• The agreement is secret and its contents are only
known by the parties. The agreement does not
become part of the criminal file
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Procedure WP(3)
• The Board of Procurators General (comparable to
Prosecutorial Council) takes the final decision
• In sensitive and costly matters the Minister of justice
is informed
• A special Public prosecutor for WP exercises the daily
authority over the WPU and is adviser to the Board
• The WPU decides which security measures are
appropiate
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Protected witness
• A witness in the WP does not necessarily have to be a
protected witness
• The status of protected witness is given by the
(investigating) judge. The status can be appealed in the
court of appeal by the defence
• The identity of a protected witness is sealed and only
known to the investigating judge (and not the judges on
the case)
• Not only the prosecution, also the defense can ask for this
status for a witness
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Statements of the protected witness
• The protected anonymous witness will not be heard in
open court, but only in the chambers of the investigating
judge (under oath)
• These statements can be used as evidence
• Statements of the protected (anonymous) witness can
never be the main body of evidence
• The investigating judge has the responsibility to keep the
identity of the witness secret and can take certain
measures to ensure this
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Procedural measures by the court and the
investigating judge
• when health and mental welfare of the witness are at risk: the
witness can be heard by an investigating judge in session closed to
the public.
• when in court: the judge can prevent answers to a specific
question, when it endangers the safety of the witness.
• the investigating judge can give special permission to a trusted
person to the witness and/or his lawyer to attend the hearing.
• For European countries: Videoconference.
• Standard safety measures such as: voice-distortion, disguise,
witness-box, special transport to and from the court to be decided
by the judge
Questions?
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