Since 2006, the Netherlands has had a statutory provision on ‘collaboration with justice’. This is one of the more far-reaching investigative tools in criminal cases, by which promises are made to otherwise unwilling ‘offender witnesses’ in order to persuade them to cooperate with the authorities, by testifying in the prosecution of others. Earlier this month, a comprehensive study on this instrument, conducted by a team of researchers at Leiden Law School and commissioned by the Research and Documentation Centre of the Dutch Ministry of Justice and Security, was published (see here). In it, a comparison is made between the law and practice of the Netherlands and that of several other jurisdictions – Germany, Italy and Canada –, all of which also provide for an instrument on collaboration with justice. Based as it is on legal and empirical research (the latter in the form of interviews with key practitioners in the field), the study offers a unique insight into the instrument in the four different countries.
The publication of the study did not go unnoticed in the Dutch media (see e.g. here and here). Only 4 weeks earlier, reports surfaced that the brother of Nabil B., a collaborator of justice who had been identified as such only a week earlier, was executed in broad daylight in Amsterdam North. This led to widespread shock, not least because the victim does not appear to have been involved in any criminal activity, in any way.
These events bring into sharp focus the dilemmas associated with the instrument of collaboration with justice, entailing as it does the promise of benefits to persons who themselves are suspected of, or who have been found guilty of, committing (serious) criminal offences, often in the context of an organised crime network. Indeed, in the immediate aftermath thereof, proponents of the instrument drew on the incident in Amsterdam North to illustrate the importance and necessity of the instrument in the fight against organised crime; while opponents drew on it to call into question the expediency of using the instrument in cases involving murder after murder, given that those involved may be prepared to stop at nothing. Against the further backdrop of more long-standing calls in the Netherlands to widen the scope for using the instrument of collaboration with justice, the study therefore comes at a time where fundamental questions are being asked regarding the legitimacy of the instrument and the type of cases in which it should be used.
Recent events in the Netherlands also demonstrate that cooperation with the authorities may have significant consequences for the safety of the collaborator and his/her family. For this reason, a duty of care rests on the state to take measures to protect the physical safety of the collaborator and, where necessary, those close to him/her. The study shows that in the Netherlands, witnesses are increasingly being facilitated financially by the state to organise their own protection. It also shows that the fact that witnesses have, in some cases, sought to use their statements as a bargaining tool to negotiate (or renegotiate) the terms of their protection, and the lack of transparency of any agreement made with the witness regarding physical protection are a cause for concern among most practitioners. For this reason, the study argues for more external scrutiny of such agreements.
In 2013, the then Minister of Security and Justice indicated in a letter to the Lower House of Parliament that he considered it necessary to widen the scope for using the instrument of collaboration with justice, in terms of the benefits that may be promised as well as the types of cases in which the instrument is available. As part of the current legislative process for modernising the Dutch Code of Criminal Procedure, this topic is once again up for consideration by the Dutch legislator. The study provides a solid basis on which to determine whether or not to introduce a new statutory provision on collaboration with justice, or to refine the existing one. It also gives cause for reflection on the concerns expressed by the Minister in his letter to the Lower House of Parliament, i.e. that the instrument is too narrow in scope and subject to too many restrictions to be able to be a weapon in the fight against organised crime. Among other things, the study shows that, in terms of what may be promised to witnesses suspected of the most serious offences, the Netherlands, where the sentence may be reduced by a maximum of fifty percent, does not appear to be out of step with the other countries. However, the same cannot be said for witnesses suspected of less serious offences. For this reason, the study argues for a differentiated model of ‘benefits’, in which the amount of sentence reduction is made dependent on the seriousness of the criminal offence of which the witness is suspected, as is the case in some of the other countries. It is, in any case, clear that the legislature has a difficult task ahead, in that clear decisions will have to be made in an area that is both complex and controversial. Moreover, as the study shows, the success of the instrument of collaboration with justice is not solely determined by the statutory framework in place and its scope; many other factors play a role in this regard.