The Rotterdam judge Jacco Janssen is not known as someone who talks with flour in his mouth. In characteristic fashion, at the beginning of December, during an interim hearing in the face mask criminal case against Sywert van Lienden and his two business partners, he showed what he thought: “Disappointing.”
Janssen referred to a document in which fourteen detectives from the FIOD investigative service state under oath that they cannot remember how – in particular with which search terms – they investigated the two computers of main suspect Van Lienden. It contains thousands of files that are strictly confidential because they concern communications between Van Lienden and his lawyers. Due to the right of non-disclosure – the right of lawyers to keep communications with their clients confidential – the investigation team is not allowed to take note of this
Van Lienden and co-suspects Bernd Damme and Camille van Gestel suspect that the detectives did see the files. When they gained access to the FIOD data room in Utrecht in preparation for their case, they found seized files on the investigation service’s servers.
Non-profit deal
The three are being prosecuted for, among other things, defrauding the Dutch state by concluding a supposedly non-profit face mask deal in 2020, which earned them more than 20 million euros. And since the first day of hearing of their criminal case in December 2024, Van Lienden and his co-suspects have been trying to gain more clarity about how the FIOD investigation service handled those seized attorney documents.
The three suspects find the Rotterdam court partly on their side. This forced the investigation team to put on paper how it searched Van Lienden’s computers. Their search can then be repeated and it will become clear whether the team came into contact with documents that are not authorized to be disclosed. The software program with which the FIOD searched the computer files could automatically keep track of what the investigators did, but the now legally required ‘log function’ was turned off – so as not to slow down the software, according to the Public Prosecution Service. That is why the detectives themselves had to be consulted.
I no longer remember which search terms I used
The official report with their statements, seen by NRChas thirteen variations on the same answer. “I no longer remember which search terms I used,” explains one detective. “I, officer [X]declare that I no longer remember whether and which search terms I used in the investigation,” reports the other. One FIOD employee knows how to name three search terms, but has forgotten the rest.
Disappointing, according to the Rotterdam court, which is now consulting the confidential ‘FIOD journals’: internal diaries in which investigators record their activities. The FIOD must record what those newsreels report about the investigation into Van Lienden’s computers in a supplementary report, the court decided on December 3. If this “doesn’t provide an answer again”, chairman Janssen warned, the court will question the two leading investigating officers themselves.
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Recusal by the Public Prosecution Service is rare
That same evening, the public prosecutor requested the audio recording of the hearing because of a possible request for recusal. The court refused: that recording is only for internal purposes. The next day, the Public Prosecution Service retaliated against the judges for alleged bias. The special recusal chamber of the Rotterdam court will consider that request on Monday. If it is declared well-founded, the criminal case will start from the beginning with new judges.
Although hundreds of requests for recusal are submitted every year, a recusal by the Public Prosecution Service is highly exceptional. The Public Prosecution Service thus questions a crucial core value of the judiciary – impartiality. Over the past twenty years, the Public Prosecution Service only retaliated against the court in a handful of cases.
“Recusal by the Public Prosecution Service will only be considered after careful internal consideration,” the Public Prosecution Service said in a response. It does not want to make any substantive announcements prior to the hearing and will not ask any further questions NRC unanswered. Since the challenge is formally a matter between the court and the Public Prosecution Service, Van Lienden’s lawyer Rosa van Zijl does not want to respond substantively. The Rotterdam court also announced that it would remain silent until the substantive hearing.
From the written defense of the judges involved to the recusal chamber, seen by NRCit appears that the challenge is related to four statements by Judge Janssen during the December hearing. Because Janssen’s fellow judges Christine Sikkel and Janneke van der Klashorst did not contradict him, the Public Prosecution Service also avenged them.
Statements without context
The three do not accept their revenge. According to the judges, the grounds for disqualification of the Public Prosecution Service “cannot in any way, either individually or in combination, lead to the conclusion that we are biased.” According to the judges, there is also no appearance of bias – which can also lead to recusal.
According to the judges, the Public Prosecution Service quotes Janssen’s statements “not (completely) correct” or without context. In their defense, the court firmly supports Janssen’s “disappointing” statement: “because the official report is too.”
Percentages are of course always smaller than absolute numbers. That’s true
The judges also respond to other accusations. Janssen said during the hearing that the two computers of main suspect Van Lienden “contain many confidential documents”, referring to the approximately six thousand documents that fall under the legal privilege. During the hearing, public prosecutor Annemarie Schaafsma objected to this: she pointed out that this only included 1 percent of the files on the computers.
In the request for recusal, the Public Prosecution Service states that the court wrongly did not respond to the officer’s criticism. However, with the detailed transcript of the hearing in hand, the judges state that this is not correct. For example, Janssen said: “Percentages are of course always smaller than absolute numbers. That is true.” At the same time, the judges point out that
Stibbe litigated for years
The right of non-disclosure was included in the law in 1926. Its importance was emphasized by the Supreme Court in March 2024 in a press release: “Anyone who engages a lawyer must be able to assume that what he or she discusses with that lawyer is and remains confidential.” As soon as it is suspected during criminal investigations that confidential documents have been seized, the police and the judiciary must, according to the country’s highest court, “do what is necessary to prevent infringements of the right of non-disclosure as much as possible.”
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The Supreme Court’s rulings were related to Castor’s criminal investigation into the Brabant asset manager Box Consultants, suspected of fraud. Investigating officers appeared to have had access to more than three thousand confidential lawyers’ emails. Thanks to the Stibbe law firm, which litigated for years to uncover the legal privilege violations, the criminal case was dismissed by the Public Prosecution Service in October 2023.
Chief officer Michiel Zwinkels of the Functional Public Prosecutor’s Office – charged with combating fraud – put on the fine clothes at the time and stated “everything about it [te willen] do to prevent repetition of mistakes.”
Skirmishes over legal professional privilege
The face mask criminal case, called ‘Full Sutton’, shows some similarities with the Castor case. Here too, the criminal investigation is carried out by the FIOD under the leadership of the Functional Public Prosecutor’s Office. Here too, due to skirmishes over legal privilege, the actual suspicions were not yet dealt with years after the start of the investigation. Here too, investigating officers have little recollection of their dealings with confidential documents.
And here too, the Public Prosecution Service strongly opposes further investigation into how the FIOD handled confidential documents. “There is no likelihood that the FIOD investigators took note of the documents that are not confidential,” said officer Schaafsma last July, when she unsuccessfully resisted the request to have the fourteen FIOD investigators explain how they searched the computers.
But there are also many differences between the criminal cases. The most striking: the court was resented in the face mask criminal case.
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