Report No. 198

7.10 Netherlands

An Act known as 'Witness Protection Act' (Act of 1 of 1994) was enacted by the Parliament. Prior to this Act, the Supreme Court formulated the conditions under which anonymous witness statement could be used in evidence in criminal cases. Many of these conditions can be found in this Witness Protection Act. The legislature broadly distinguished three different categories of anonymous witnesses.

The first category comprises of witnesses with respect to whom there is well founded assumption that they will incur problems in connection with their testimony or that they will be hindered in the further exercise of their profession. These are mainly police officers who have met the accused while working undercover. These witnesses are granted limited anonymity and are heard either by the examining Magistrate or by the trial court. In these cases, the Judge does not disclose the witness's identity and, takes measures to prevent his identity from being disclosed. These measures do not prevent direct questioning of the witness on appearance at the trial.

The second category of anonymous witnesses are those who fear for their lives, health or safety, or the disruption of their family life or socio economic existence. In such cases, the Examining Magistrate may grant him complete anonymity. The Examining Magistrate takes the witness statement in such a way that the identity of the witness is concealed. The defendant, his counsel or both may be denied access to the hearing. It is also stipulated that the Public Prosecutor may also not be present when the defence is denied access.

However, the Examining Magistrate gives the absent defendant, his counsel and public prosecutor the opportunity to present questions they wish to ask by telecommunication or alternatively in writing. The examination is conducted by the Examining Magistrate in the privacy of his office. The witness does not have to appear during the investigation at the trial and his statement taken by the Examining Magistrate can be used in evidence.

The third category of anonymous witnesses is of those persons whose names appear in police reports, and who are examined without listing their identity.

There are three cumulative requirements for the use of statements in evidence in the case of completely anonymous witnesses. First, the witness must be recognised by the Examining Magistrate as a threatened witness. Second, the case must involve a serious crime for which detention or remand is permitted. Third, the judge cannot decide that the defendant as guilty solely on the basis of the statements of completely anonymous witnesses.

It is the Examining Magistrate who determines whether or not a witness will be granted complete anonymity. A court order to conceal the identity of the witness during the examination may be elicited by the public prosecutor, the defence, or by the witness himself. The Examining Magistrate may also give such an order ex officio.

The trial judge may order the Examining Magistrate to conduct an enquiry into the need for anonymity. But before taking any decision with respect to granting anonymity to witness, an opportunity of hearing is given to the defendant, his counsel and the witness. A decision of granting complete anonymity to the witness concerned can be appealed against. A panel of three judges sitting in chambers, decide an appeal.

In order to safeguard the anonymity of the witness, in practice he is usually separated and sometimes also acoustically, from the defence and the public prosecutor. Examination of the witness may take place at a secret location and at a time that is kept secret from the defence until the last minute. During the examination, the Examining Magistrate, the witness and the court clerk, are separated from the defence and the public prosecutor. Communication takes place by an audio link, whereby a voice destruction device is generally used.