On April 20 2010, the Dutch Supreme Court (Hoge Raad) examined a judgment by the Court of Appeals of The Hague concerning the alleged involvement in war crimes by a Dutch national. The Hoge Raad eventually quashed the earlier judgment, stating that the request of the public prosecution office to refer the case to the examining magistrate to hear two witnesses anonymously, is insufficiently motivated.

The suspect, Guus K., is being prosecuted for the alleged involvement in war crimes committed by Liberian forces and/or militians and involvement in illegal arms deals with the regime of Charles Taylor between 2000 and 2003.
Initially, the District Court of The Hague sentenced Guus K. to 8 years’ imprisonment for violating prohibitions on the supply of arms to Liberia in 2001, 2002 and 2003. The court acquitted the defendant of charges referring to a number of actions that have been penalized under the Criminal Law in Wartime Act.
Both the defendant and the public prosecutor appealed against this sentence. During the proceedings in appeal, further investigation has been conducted by a national police unit. After the Sierra Leone tribunal agreed upon hearing two witnesses on the accusations, the advocate general at the Court of Appeals requested reference of the case to the examining magistrate to hear these witnesses anonymously. The Court of Appeals turned down this request. On 10 March 2008 the court of appeals acquitted the suspect of all charges.

The public prosecution then took the case to the Hoge Raad, claiming that the decision of the court of appeal to turn down the request to hear the two witnesses was not sufficiently motivated. According to the public prosecution it had a peculiar position in the trial proceedings. Because the Sierra Leone Tribunal had agreed upon hearing both witnesses in a rather late stage of the trial and had agreed under the condition that the witnesses should be heard anonymously by the examining magistrate, there was no other option for the advocate general at the court of appeal than to request the reference of the case to the examining magistrate, which is exactly what she did. The request was substantiated by summaries of the statements that the witnesses had made before the investigating police unit. As a result the request was to be judged under the criteria whether the necessity of the hearing of both witnesses was evident to the court. According to the public prosecution this criteria should, under the given circumstances, be applied in a more lenient way.
In his advisory opinion of 5 January 2010, the advocate general for the Hoge Raad, P.C. Vegter, advised the Hoge Raad to reject the appeal in cassation by the public prosecution.

The Hoge Raad sustained the appeal in cassation. This case is about witnesses who only became familiar to the advocate general at the Court of Appeals after the trial examination had started. By instruction of the Sierra Leone Tribunal, these witnesses could only be heard anonymously by the examining magistrate. Therefore, the public prosecution had no other possibility than to request to the court during the trial session to refer the case to the examining magistrate to hear both witnesses anonymously. Under these circumstances the court should have left the public prosecution more opportunity to have these witnesses heard. In this light the decision of the Court of Appeals is not comprehensible – taking the summaries of the statements the witnesses made into account - and thus its judgment suffers a failure in its motivation. The Hoge Raad therefore quashed the judgment of the Court of Appeals of The Hague and referred the case to the Court of Appeals of ‘s-Hertogenbosch for a new examination and judgment.

The Court of Appeals of ‘s-Hertogenbosch will re-examine the case, taking the judgment of the Hoge Raad into account.

Source:

Press release by the Dutch Supreme Court, 20 April 2010

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