ECLI:NL:RBDHA:2020:14984, Rechtbank Den Haag, 12-05-2020, 09-748006-19 Engelse vertaling ECLI:NL:RBDHA:2020:6609
Rechtbank Den Haag — Uitspraak 
Datum: 2020-05-12 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: Further to the court quashing an order made pursuant to Section 226a of the Code of Criminal Procedure (ECLI:NL:RBDHA:2020:6265), the examining magistrate finds that they cannot apply the provisions of Section 226b, paragraph 3 of the Code of Criminal Procedure to the official record of the examination of an anonymous witness produced pursuant to Section 226a and to the official record produced pursuant to Section 226e of the Code of Criminal Procedure in the MH17 case. The official record of the examination had been released to the Public Prosecution Service and entered in the prosecution file after threatened witness status had been sought and granted as part of the investigation into an unknown suspect.

THE HAGUE DISTRICT COURT
  
    Criminal law
    
  
  
    Examining magistrate
    Case number: 09/748006-19
    
  
  
    Official record pursuant to Section 226b(3) of the Code of Criminal Procedure
    
    
      in the criminal proceedings against the defendant:
    
    
  
  
    [defendant]
    [date of birth], place of birth unknown.
    
  
  
    The proceedings
    By order of 23 April 2020 a full-bench chamber of this district court (hereinafter: the court) quashed the examining magistrate's order of 5 July 2018 made pursuant to Section 226a of the Code of Criminal Procedure with respect to witness V11 and denied the public prosecutor's application of 28 May 2018 for witness V11 to be granted the status of threatened witness.
    
    
      By letter of 29 April 2020 the public prosecutor expressed their views on the implications of the court's decision for the official record of the examination of witness V11 as drawn up by the examining magistrate (hereinafter: the official record of the examination). First, the public prosecutor argued that the power to apply the provisions of Section 226b, paragraph 3 of the Code of Criminal Procedure (namely the power to destroy the official record of the examination) had now passed to the trial court. The public prosecutor therefore requested the examining magistrate to consult with the trial court on this matter. Second, the public prosecutor raised the question of whether it was possible and desirable to remove the official record of the examination from the file and then to destroy it. The public prosecutor argued that various interpretations were possible on this point and the defence ought to be given the opportunity to express its views.
    
    
    
      The examining magistrate invited the defence to respond to the public prosecutor's letter. The defence submitted its response on 8 May 2020. In that response the defence argued that the law (namely Sections 226a and 226b of the Code of Criminal Procedure) and the district court's decision were clear and that the official record of the examination must be destroyed.
    
    
  
  
    Destruction of official record of examination
    With respect to witness V11, the following applies:
    
      
        On 28 May 2018 the public prosecutor in the Primo criminal investigation submitted an application pursuant to Section 181 in conjunction with Section 226a of the Code of Criminal Procedure with regard to an unknown suspect.
      
      
        By order of 5 July 2018 the examining magistrate granted that application.
      
      
        Between 5 July 2018 and 25 September 2018 the examining magistrate examined witness V11 as a threatened witness in accordance with the provisions of Sections 226c to 226f of the Code of Criminal Procedure.
      
      
        The official record of the examination was released to the public prosecutor, who added it to the prosecution file (redacted official record of examination by district court of witness V11 [number]).
      
      
        Thereafter the defence lodged an appeal against the aforementioned order of the examining magistrate, which was declared well founded on 23 April 2020 (see above under ‘The proceedings’).
      
    
    
    
      Pursuant to Section 226b, paragraph 3 of the Code of Criminal Procedure, if the appeal against an order made pursuant to Section 226a, paragraph 1 of the Code is deemed to be well founded and the examining magistrate has already examined the witness (subject to Sections 226c to 226f of the Code), the examining magistrate must ensure that the official record of the examination is destroyed. Article 226b, paragraph 3 of the Code of Criminal Procedure follows logically from Section 226a, paragraph 3, which provides that if the examining magistrate proceeds with the examination of the witness while the order granting threatened witness status is still open to appeal, the examining magistrate must not release the official record of the examination of the witness until the appeal has been decided.
    
    
    
      In the case of witness V11, the examining magistrate did not withhold the official record of the examination, which had been produced in an investigation into an unknown suspect, but released it to the public prosecutor, who then added it to the file. In such a case the destruction of the official record of the examination is no longer possible because the examining magistrate is no longer the holder of that official record. It is not within the power of the examining magistrate to remove (or arrange for the removal of) an official record from the prosecution file. In addition, the case was brought to trial on 9 March 2020 and from that point onwards the trial court decides on the composition of the prosecution file.
    
    
    
      The defence argued that the rules laid down in Sections 226a to 226f of the Code of Criminal Procedure were violated in the case of witness V11 because the official record of the examination was released before the appeal had been decided. However, this defence argument fails to recognise that the application for the granting of threatened witness status to witness V11 and 
      the associated order was made in an investigation into an unknown suspect. As long as that order had not been served on a specific suspect, it could not be appealed. The legislative history demonstrates that in an investigation into an unknown suspect, if the statement of a threatened witness is to be used in evidence, the defence must first be given the opportunity to question the threatened witness and that it is assumed that the public prosecutor will participate in the interview (Parliamentary Papers, House of Representatives 1991-1992, 22 483, no. 3, p. 25; Parliamentary Papers, House of Representatives 1992-1993, 22 483 no. 6, p. 9). This implies that in an investigation into an unknown suspect the official record of the examination will generally be released to the public prosecutor immediately, with a view to the progress of the criminal investigation. The fact that the court considered that the public prosecutor could and should have lodged an application specifying the name on 28 May 2018 because an official report had been drawn up on 25 October 2016 outlining the offences the suspect was suspected to have committed (which the examining magistrate was not in possession of at the time of granting threatened witness status on 5 July 2018) does not warrant a different conclusion. Taken together with the fact that the suspect was not given the opportunity to express his views on the application (either beforehand or afterwards) this does – in view of the considerations of the court – provide a ground for quashing the order granting threatened witness status and subsequently denying the application, but it does not follow that the official record of the examination, drawn up in the course of an investigation into an unknown suspect, was at the time released in violation of Sections 226a to 226f of the Code of Criminal Procedure.
    
    
    
      The examining magistrate sees no reason to consult the trial court on this matter, as suggested by the public prosecutor. Destruction of the official record of the examination by the examining magistrate is no longer possible in this case. It is up to the trial court to assess the legal implications that must ensue from the court's order of 23 April 2020.
    
    
  
  
    Conclusion
    On the basis of the foregoing the examining magistrate finds that the provisions of Section 226b, paragraph 3 of the Code of Criminal Procedure cannot be applied to the official record of the examination of witness V11 produced by the examining magistrate. It follows that the same holds in relation to the official record drawn up pursuant to Section 226e of the Code of Criminal Procedure (official record of actions and findings involved in investigating the reliability of the witness statement by V11) of 20 February 2019.
    
    
      Official record drawn up in Badhoevedorp on 12 May 2020.
      [Examining magistrate]