Challenge by Public Prosecution Service in the face mask case: ‘Court is biased’

To substantiate that the three Rotterdam judges in the face mask criminal case should be replaced due to bias, the Public Prosecution Service did not put forward even a single prosecutor on Monday afternoon.

“The Public Prosecution Service no longer has confidence that the court will do impartial justice,” ‘crimefighter’ Lars Stempher – the public prosecutor who sentenced Willem Holleeder to life in prison – addressed the special recusal chamber of the Rotterdam court on Monday. It must assess whether the judges in the face mask process are biased or whether they have created that appearance with their actions.

The Public Prosecution Service is prosecuting Sywert van Lienden and business partners Bernd Damme and Camille van Gestel, among other things, for defrauding the Dutch state by concluding a supposedly non-profit face mask deal in 2020, which earned them more than 20 million euros.

To the frustration of the Public Prosecution Service, the criminal trial against the three, which started more than a year ago, is not getting off the ground. So far, the hearing days have been filled with skirmishes over the legal privilege. According to the defense, this right of lawyers to keep communications with their clients secret may have been violated by the FIOD investigation team, which had access to two computers of main suspect Van Lienden full of confidential communications with lawyers.

OM took a rare step

To gain clarity, the court extended a helping hand to the suspects. After the Public Prosecution Service first had to let the FIOD determine how many confidential files were on Van Lienden’s two computers, the court demanded an official report in which fourteen FIOD investigators would declare under oath the search terms they had used to search those computers. It turned out that they could not remember that. Court chairman Jacco Janssen lit the fuse when he called this “disappointing” at the beginning of December.

A day later, the Public Prosecution Service took an extremely rare step: it submitted a request for recusal. Not only against Judge Janssen, but also against his two colleagues, because they had not corrected him. It is highly exceptional that the Public Prosecution Service itself decides to challenge the case. This has only happened a handful of times in the past twenty years. With such a request, the Public Prosecution Service questions the core value of the judiciary – impartiality.

Public prosecutor Stempher used the word biased no fewer than nine times on Monday. He even went so far as to say that the court was actually “biased isThat is a much more serious accusation than the fact that the judges have created the appearance of bias – which, according to the Public Prosecution Service, is also the case.

He criticized Janssen’s comment in December that Van Lienden’s computers contain “many confidential documents”: documents subject to legal privilege. According to the Public Prosecution Service, the court thus “goes along with the reasoning of the defense”.

Judges do not accept recusals

Even more serious, the Public Prosecution Service finds that Janssen made several comments about the credibility of FIOD reports. Such reports are drawn up under oath of office and are considered legal evidence in criminal law and are in principle accepted as true. According to the Public Prosecution Service, Janssen’s comments show that he considers the reports “not credible in advance”.

For example, the court chairman raised the question about the fourteen FIOD investigators who cannot remember search terms: is that “just clumsy or is there a certain degree of awareness in it”?

It was revealed that the three judges do not accept their recusal and have refuted it extensively NRC last week on the basis of court documents. They believe, among other things, that Janssen’s statements have been incorrectly and not in the right context by the Public Prosecution Service.

The judges did not have to repeat this defense at the recusal chamber. They therefore largely remained silent.

However, there was a sharp answer to the question from the recusal chamber – which will deliver its ruling on Wednesday, January 28 – what the two fellow judges think about the fact that they have also been challenged because of Janssen’s comments. “It is indeed true that I have not refuted those comments,” Janneke van der Klashorst replied. “I attach importance to noting that I stand behind every word.”

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