“We are at an impasse and that affects this process,” said Mark Dunsbergen, lawyer for Saïd R., on Wednesday in the Schiphol Judicial Complex during the resumption of the Marengo trial surrounding main suspect Ridouan Taghi. The situation will become “unworkable” if a solution is not found quickly, says Dunsbergen.
The intention is to deal with Marengo substantively from the beginning of next year. However, this threatens to become difficult if lawyers cannot consult with their clients. “It is not a matter of not wanting to visit, it is about whether there is still a fair trial if you cannot prepare the case,” said Saïd R.’s other lawyer Robert van ‘t Land.
According to him, R. is frustrated by all those extra restrictions and measures in the EBI in Vught where he is detained, and he sincerely wonders whether he will still receive a fair trial.
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New law
On November 1, a new law came into effect in which the rules for suspects and criminals in high-security departments, such as the EBI (Extra Secure Institution) in Vught and in AITs (Department for Intensive Supervision) were tightened. There is now ‘visual surveillance’, with the aim of preventing – as it is called – ‘continued criminal conduct’: or continuing with criminal matters.
It now appears that the cameras are aimed at the faces of lawyers, suspects and on the table so that files and laptops are visible. Because it is not clear to lawyers whether – and who – can read and perhaps even listen in, the Bar Association has indicated that confidentiality can no longer be guaranteed between lawyers and their clients.
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46 lawyers then stopped working in mid-November. They see visual surveillance as a gross violation of their duty to speak confidentially with their clients.
According to the lawyers, the ball is now in the court of the State Secretary of Justice and the Judicial Institutions Agency (DJI) as the executor of the law. There should be more clarity next year at the latest.
‘The court knows that the issue exists’
The Amsterdam Court of Appeal, which is handling the Marengo case, now says it can take “no position” on this. “The court knows that this issue is happening. We must safeguard the fairness of the trial, and this plays a role in that. But we are not taking a position now.” The chairman did say that he hopes that “the wrinkles will be ironed out quickly.”
“I can hardly believe that we have sunk so low together,” said Brian de Pree, lawyer for Mohamed R. after the hearing. His client is in an AIT department. “We have not visited since the new law came into effect. The client does not want us to come by either. It creates a chilling effect: you no longer dare to discuss anything if you are not sure whether someone is watching,” says Niels van Schaik, Mohamed R.’s other lawyer.
The first consequences of the lawyers’ strike are already clear: last week, judges were forced to postpone major cases because lawyers had indicated that they could not speak to their clients.