About agreements between the Dutch Public Prosecution Service and key witnesses, in relation to the integrity of the Public Prosecutor

On 18 March of this year, the Dutch news forum NOS stated that key witness Peter la S. was offered 1.4 million euros for co-operating in the monster trial proceedings about numerous underworld liquidations (referred to as the ‘Passage-proces’). The Dutch Public Prosecution Service claimed this money was intended to guarantee the safety of key witness La S, and was not intended as compensation for his incriminating statements.

Shortcomings revealed

This is not an isolated incident. During the last few years there has been a lot of commotion about the negotiations between the Dutch Public Prosecution Service and La S. in the Passage-proces. On several occasions Peter la S. threatened to suspend his co-operation with the Public Prosecution Service and soon after the 1.4 million issue, Peter la S. stated that he had been threatened and extorted by the Public Prosecution Service to change and disguise particular statements. The Public Prosecution Service, in turn, threatened to cease the whole co-operation agreement and to breach its commitment to financially support La S. The Passage-proces is the first big public trial under the Dutch key witness regulations. The ongoing hustle between Peter la S. and the Public Prosecution Service perfectly illustrates the shortcomings of regulations concerning Dutch key witnesses. It illustrates how the Public Prosecution Service has put itself in a vulnerable position, due to its dependency on the willingness of La S. to co-operate. This may lead to a reconsideration of the basic principles of the Public Prosecution Service when closing deals with (ex-)criminals and its legitimacy. How does this phenomenon relate to the integrity of the Public Prosecution Service?

Nothing wrong? Dealing with criminals

The Public Prosecution Service states that maintaining law and order sometimes requires closing deals with key witnesses, for instance when there is a lack of evidence. The fact that a particular key witness may be a criminal or ex-criminal is for the Public Prosecution Service no reason to disapprove of such deals. However, we believe the discretion that the Public Prosecutor must take into account explicitly demands that it does not get involved with criminals, when based on a horizontal legal relation. This inevitably reduces the credibility of this institute, so that citizens may lose their faith in it and the legitimacy of the Public Prosecutor may decrease as a consequence. Besides, it is not unthinkable that key witness statements do not always contain the truth. Key witnesses often have a substantial interest in making statements that are of great value to the Public Prosecution Service. As a result, it may be possible that key witnesses exaggerate or even make up statements, tempted by the benefits proposed by the Public Prosecutor. Because of this, incriminating evidence gathered by co-operating with key witnesses runs the serious risk of being unreliable (even more so than with ‘regular’ witnesses, due to the benefits which are part of the deal for key witnesses). Considering the high risk of unreliability, the Public Prosecution Service must be careful when bringing this kind of evidence to court. In doing so, it may confirm the notion of a ‘crime fighter’ who will do anything to see a suspect convicted, even if this is at the expense of discovering the truth in court and its own integrity.

Crime fighting vs. integrity

We believe closing deals with key witnesses – possible (ex)criminals – as such is reprehensible. Moreover, using incriminating evidence gathered by co-operating with key witnesses, and thus running a great risk of unreliability, conflicts with truth finding in court and damages the Public Prosecution Services’ integrity. The urge to come to a conviction and the willingness to sacrifice all of the values stated here points towards a crime fighting attitude. Although maintaining law and order as such is very important, gathering enough evidence in order to come to a conviction must always be inferior to a certain level of integrity. The key witness scheme does harm this integrity so that for fundamental reasons the foundations of the key witness scheme deserves to be rethought.