Skip to content

When the fox is guarding the henhouse

21 januari 2019

 

On 9 January 2019, the Public Prosecution Service (PPS) in the Noord-Holland district released a press communiqué about the decision whether or not to prosecute two police officers and a public prosecutor from the Noord-Nederland district who had been subject to an investigation. The civil servants in question were accused of committing forgery of documents relating to the official record of a witness interrogation. Although the PPS established that mistakes were made, it considered criminal prosecution too severe a response to the accusations and believed that a disciplinary measure was more appropriate. It is rather remarkable that the PPS reacts so mildly when its ‘own’ officials are concerned. Once again, the weak point in the criminal proceedings is disclosed, namely the accuracy of an official record made by investigating officers. All the more reason to study this case in further detail.

The inaccuracy of an official record of a witness interrogation

The lawyers of the three suspects reported the inaccuracies in the official record of the witness interrogation, which related to three passages.

The first phrase was ‘later it turned out that the interrogation was mistakenly not sound-recorded’. During the interrogation, the investigating officers decided – with the consent of the lawyer – not to use recording equipment, although this would have been appropriate for the case in question. A month later, when the case prosecutor instructed that an official record was to be drawn up, the investigation officers had to declare why they did not record the interrogation and chose to write down the phrase as quoted above. In particular the term ‘mistakenly’ was questioned, but the PPS disputed this to be an ‘unfortunate wording’ and denied that it had been done deliberately.

The second phrase that was disputed was ‘after the witness did not carefully read the statement and refused to sign it’. However, this phrase related to a remark the witness’s lawyer made to the investigating officers during a telephone conversation. Although the PPS admitted that it would have been better, more scrupulous and more correct if had been mentioned that the lawyer made this remark on behalf of the witness, this did not display deliberate intent either in the opinion of the PPS.

The third phrase was about the place and signing of the official record: the document stated ‘Pijnacker, 30 January 2017’ as the date and location of the interrogation, while it was in fact on approximately 23 February 2017 in Meppel. Regarding this third phrase, the PPS came to the conclusion that forgery of documents had been committed (Article 225, paragraph 1 of the Dutch Penal Code).The public prosecutor handling the case was informed about these inaccuracies by the witness’s lawyer but still the prosecutor let the official record be part of the case file without giving further information about the reason why this was done. Here too, the PPS concluded that forgery of documents (Article 225, paragraph 2 of the Dutch Penal Code) had been committed, however – as stated above – without prosecuting.

 

Reference points for options other than settlement by a criminal court

It is remarkable how in this case the PPS came to the conclusion not to prosecute. Although we are not arguing that these civil servants should have been punished more severely, we wonder if those considerations would also have been decisive in a fraud case against non-civil servants.

 

Firstly, there is the negative media attention that was given to the investigation officers and the public prosecutor during the court hearing. More and more often, it is common practice for the media to be informed at the start of an investigation, but this usually does not stop the PPS  from prosecuting someone for forgery of documents (for some recent similar fraud cases in which the suspects were acquitted, we refer to Dutch case law[1]).

As the PPS states in its policy, it is currently turning its spotlight on ‘facilitators’, for instance civil-law notaries, tax advisors, accountants and attorneys, which means that documents drawn up by these facilitators are scrutinised at length even though from a legal point of view they are usually not incorrect. According to the PPS there are grounds for adopting an accommodating attitude in forgery cases in which procedural aspects are at stake. However, we think that those reasons may often equally apply in cases involving facilitators.

Finally, the PPS announced earlier in the media that it will apply disciplinary law when there is not enough evidence to prove criminal facts if the conduct of the facilitator has been qualified as negligent. Although the parties involved will undoubtedly experience a disciplinary measure as a punishment, it will not be made public and compared to a public hearing or a disciplinary action, it may altogether be considered as much less drastic. Or perhaps a bill is being prepared to make disciplinary actions public as well?

Apart from the doubts prompted by the press release, it also offers some clues about how to convince the PPS in cases of forgery of documents that other solutions should prevail over taking criminal action.

 

The evidential value of the official record

The second aspect of this case is the official record, to which a particular evidential value is assigned (Article 344, paragraph 2 Dutch Code of Criminal Procedure). When preparing for the criminal proceedings, the court will primarily focus on this particular document. Therefore, this should mean that an official record made by an investigation officer should be beyond all doubt. Nevertheless, the opposite is true. As every attorney knows, the official record of a witness interrogation contains a ‘succinct representation’ that summarises all questions and answers as if it were a client’s statement, although the client often did not say more than a simple ‘yes’ or ‘no’. Semantic discussions, the lack of verification questions, changing the order of quotes and different interpretation of intonation often lead to substantial discussion (see also the blogs – in Dutch – on Vaklunch.nl, #12, #43, #99, #132, #148 and #168). Given that the official records and the obligation to report are repeatedly disputed, these issues should be given high prioritisation in the current efforts to modernise the Code of Criminal Procedure.

However, as is evident from the literature (in Dutch[2]), nothing new under the sun is to be expected from this and therefore vigilance is still necessary, for the witness who will be questioned as well as for the defence and the criminal court judge. It is essential that a witness statement should be put down in writing as literally as possible and that every question and the corresponding answer from the witness are precisely noted. If there are doubts about the accuracy and completeness of the official record, it is up to the defence and the judge to look at it critically.

 

[1] ECLI:NL:RBOBR:2017:6647, ECLI:NL:GHSHE:2017:2861, ECLI:NL:RBMNE:2017:3333,

[2] D.A.G. van Toor PhD LLM BSc, 'Het dossier als fundament voor de rechterlijke beslissing', Platform Modernisering Strafvordering 2018-10, p.