“They don’t fool me”, appt crown witness Nabil B. on December 12, 2017 to his girlfriend with an iPhone that he has hidden in his cell. Nabil B. has been incarcerated for almost a year after he reported himself for his involvement in underworld murders. Talks about a deal are not running smoothly, it turns out. “As long as the case serves, I decide everything. Cancer up with them.” With ‘she’, Nabil seems to indicate the witness protection team (TGB) with which the key witness-to-be talks about his life after his criminal case and the moment he is released. “I’m going to cut it off with TGB, I don’t trust those dogs,” said Nabil. He wants to “manage the situation himself.”
The law is clear: a key witness may not be financially rewarded for his statement
The new messages that became public this week in the Marengo case against top criminal Ridouan Taghi and 16 co-defendants feed an old discussion about the crown witness scheme in the Netherlands. The law is clear: a key witness may not receive a financial reward in exchange for his statement. But does the law fit in with practice? Are criminals limited by lawyers and their rules of the game?
Also read this profile of Nabil B.: from dropped student to important asset of the Public Prosecution Service
iPhone with 17,000 messages
Game rules or not: Nabil B. wants to see money. He refers to Peter La Serpe and Fred Ros, key witnesses in a case involving liquidations between 2002 and 2005 for which Willem Holleeder, among others, was convicted. “Fred Ros has gone abroad with 1.8 million and without TGB.” He says about that money: “The state is not allowed to give cash. Loan with 0.5 percent interest. Is shit. If you go bankrupt, you don’t pay anything back.”
The messages give a picture of his motives and state of mind, think lawyers Nico Meijering and Christian Flokstra, who represent Mo Razzouki, one of the main suspects in the trial. And that is not unimportant because Nabil B. signed his crown witness deal during the period that he sent these messages. That’s why they want all 17,000 messages he sent to his partner from his cell with a hidden phone to be added to the file. That phone, which was delivered by his previous lawyer last year, still contains an unknown number of messages that Nabil sent to a brother and sister.
The two counselors have seen the app traffic between B. and his partner at a police station. They’ve put the relevant parts into action this week, in the final days of court before a long summer recess. Their client, Mo Razzouki, the only one of the seventeen suspects in the Marengo criminal case to actually conduct an active defense, was good friends with B. until he accused Razzouki of being involved in several liquidations. He emphatically denies those accusations and calls his former friend “a liar”.
Taghi does that too, but he also appeals, except for a single sneer or a short answer, structurally to his right to remain silent. The other suspects have also done so in recent months, including crown witness Nabil B. To everyone’s surprise, he suspended his cooperation as a crown witness in May of this year due to problems with financial agreements related to the safety of him and his family. He only wanted to give an explanation behind closed doors. When the court refused, Nabil B. decided to challenge the court for bias.
That challenge has been rejected, but that does not mean that Nabil B. now complies with his contractual obligation to declare. In the meantime, according to his lawyers, B. can no longer explain because he is ill. An apology the court accepted.
Due to the deafening silence of the suspects and key witnesses, the handling of the criminal offenses – six murders and a series of attempts to do so – has become a one-sided exercise that amounts to reading file documents. This often concerns decrypted PGP messages that leave little to the imagination with regard to murder and manslaughter in the Utrecht criminal environment. “Sir, look at the news later”, according to the Public Prosecution Service Taghi, for example, on the day that spy shop employee Ronald Bakker is murdered. “Cancer spyshop dogs. Have played double game. But message has arrived.”
I’m a criminal and that’s a fact. Will never change mindset
Nabil B. key witness
Thanks to these kinds of reports, the court gains unprecedented insight into the methods of the men who, according to the justice system, carried out murders on behalf of Taghi. A statement that Taghi denies, incidentally. According to the Public Prosecution Service, the link between the events on the street during the liquidations and the decrypted messages shows the mercilessness of the criminal environment in which Taghi and his accomplices were active. Those accomplices also included Nabil B. who, according to himself, was involved in two liquidations and an attempt to do so.
Because he confessed his role in this, he receives a penalty of 50 percent in exchange for those statements. The Public Prosecution Service will demand 12 years in prison for those offenses instead of 24 years, according to the public part of its crown witness deal. In addition, there is a secret deal with agreements about protection, safety and his life after serving his sentence. That deal seems to be in the messages that have become known this week.
Just as the PGP messages provide insight into the liquidations, the messages between B. and his partner about his talks about the deal give special insight into the thinking of the crown witness. “This is going to be the biggest case ever in terms of liqui (liquidations). Can we get the most out of it? Step away and you’re done? No way: maximum suction. Am a criminal and that’s a fact. Will never change mindset.”
B.’s lawyers dismiss the messages as „private, aggrieved and moody pillow-talkof an angry man. According to Mo Razzouki’s lawyers, they actually show the true nature and motives of the key witness: someone who tries to make the best use of precarious circumstances and negotiates money. It is not clear whether the content is exactly correct. It is also not known whether the wishes of the crown witness have been adopted: the deal between the judiciary and B. is secret.
According to Meijering and Flokstra, the messages from Nabil B. are in stark contrast to the legal provisions on concluding deals with key witnesses. It states that incriminating statements may not be bought and that there is no negotiation with key witnesses.
Jan Crijns, professor of criminal law at Leiden University, recognizes the tension between legal reality and the actual course of events. “Formally, a key witness closes two deals with two different departments of the Public Prosecution Service,” he explains. “But I think it is very difficult for a key witness to separate those two agreements.”
What happens now in the Marengo process has happened before in the Passage process. In both cases, key witnesses (temporarily) refuse to answer questions as witnesses because of protection and safety issues. According to Crijns, it shows that this legal separation does not work in practice. “An additional problem for the court in this case is that the protection agreement with the crown witness does not have to be submitted to the court. Partly for this reason, the court has no legal instruments to settle this conflict in the event of a conflict between the Public Prosecution Service and a key witness.
According to Crijns, proper agreements must be made about witness protection. “If that is not the case, you get what is happening in Marengo: then the criminal process is burdened with problems about agreements with the witness protection team that the prosecutors, the court and the lawyers of the suspects are not aware of. That is annoying for everyone involved because questions arise that cannot be answered.”
Also read: How 50 years of the war on drugs spawned the Taghi generation
Because disclosure of those agreements is difficult for security reasons, Crijns believes that the legislator should think about an assessment by an independent judge. “This can remove distrust about, for example, the disguised remuneration of a key witness in the protection agreements. That is also better for the Public Prosecution Service. That can then point to an independent third party who has checked that there is no disguised reward for a key witness.”
Comparative international research into deals with key witnesses that Crijns conducted with colleagues shows that the Public Prosecution Service is not always responsible for the protection and safety of a key witness. In Germany, for example, the police are responsible for this. “Because this will put the Public Prosecution Service at a greater distance from the crown witness, part of the difficult discussion during the criminal trial that we are now seeing again can be avoided.”
A version of this article also appeared in NRC in the morning of July 2, 2021