The Public Prosecutor v. Guus Kouwenhoven

Court	Court of Appeal of The Hague, The Netherlands
Case number	BA0852
Decision title	Interlocutory Judgment
Decision date	19 March 2007
Parties	Public Prosecutor’s Office Guus Kouwenhoven
Categories	War crimes
Keywords	anonymous witnesses, fair trial, self-defence, supplying of weapons, war crimes
Links	Interlocutory Judgment (in Dutch only)
Other countries involved	Liberia Sierra Leone

Summary

Guus Kouwenhoven was convicted in first instance for his involvement in supplying arms to Liberia and acquitted of having committed war crimes during the Second Liberian Civil War (1999-2003).

Both the prosecutor and Kouwenhoven appealed against this verdict. In an interlocutory appeal, the Court of Appeals most importantly rejected the motion of the defense to bar the prosecutor from prosecuting this case. Based on the information before it, the Court did not find grave violations of Kouwenhoven's right to a fair trial. The Court did sustain the defense’s motion to have more witnesses heard by the investigative judge. The Court foresaw this to be a lengthy process, and therefore suspended Kouwenhoven’s detention.

Procedural history

Guus Kouwenhoven, a Dutch national, was taken into custody on 18 March 2005. He was charged with participation in war crimes – by complicity, incitement or promotion – committed by Liberian troops and/or militia between 2000 and 2002; and with supplying arms to the government of Liberia, between 2001 and 2003, in contradiction to Dutch regulations implementing UN Security Council Resolutions and EU regulations. The defense held that Kouwenhoven had been denied of his right to a fair trial and that it had been impossible for the defense to test the legal basis and reliability of the investigation results. Regarding the supplying of weapons, the defense argued that, if the Court would consider Kouwenhoven’s part in this to be proven, the supplying of weapons would be justified as Liberia had the right to defend itself against attacks of rebels under Article 51 of the UN Charter.

The District Court acquitted Kouwenhoven of war crimes, but found him guilty of involvement in illegally supplying weapons. He was sentenced to 8 years imprisonment on 7 June 2006. The prosecution appealed against Kouwenhoven's acquittal of war crimes. The defense repeated its argument that the prosecution’s working methods had irreparably and seriously harmed Kouwenhoven’s right to a fair trial.

Related developments

On 10 March 2008, the Court of Appeal acquitted Kouwenhoven of all charges due to the ultimate lack of conviction that needs to be founded on reliable evidence (paras. 13-14). On 20 April 2010, the Supreme Court referred the case back to the Court of Appeals, as it considered that the Court of Appeal had insufficiently motivated its decision not to allow the prosecution to have witnesses testify anonymously (para. 11). The case is currently pending at the Court of Appeal in ‘s-Hertogenbosch (the Netherlands).

Legally relevant facts

In response to the armed conflict in Liberia and Guinea, the UN Security Council issued Resolutions 1342 (2001) and 1408 (2002), which prohibited the supply of weapons to Liberia. The Council of the European Union issued similar Regulations. In order to implement these measures, the Sanctions Regulations Liberia 2001 and 2002 were issued in the Netherlands.

During this conflict, Guus Kouwenhoven owned the Royal Timber Company (RTC) and held an important position in the Oriental Timber Company (OTC). Both companies were situated in Liberia. Allegedly, Kouwenhoven imported weapons into Liberia, in violation of the UN Security Council Resolutions, Council of European Union Regulations and the Dutch Sanctions Regulations. He was also charged with war crimes. The District Court, in first instance, acquitted him of war crimes, but sentenced him to eight years imprisonment for his involvement in supplying weapons to Liberia.

Core legal questions

Has the prosecution irreparably and seriously harmed Kouwenhoven's right to a fair trial and should it therefore be barred from prosecution?
Can the Accused have more witnesses - notably, Charles Taylor (who was at the time in pre-trial detention at the Special Court for Sierra Leone on charges for war crimes and crimes against humanity committed during the Second Liberian Civil War) - heard?
Can detention be terminated or suspended?

Specific legal rules and provisions

Articles 67a(3) and 410 of the Dutch Code of Criminal Procedure.

Court's holding and analysis

The Court held that a serious violation of the foundations of proper legal procedure can lead to the prosecutor being barred from prosecuting. However, in this case the protests against the working methods of the National Criminal Investigation Department were not of such severity that they should lead to the ultimate sanction of banning the prosecution from prosecuting (para. 2).

The Court sustained the motion to have several more witnesses heard, although it considered with regard to Charles Taylor that this witness might not be available for questioning, as he was at that time in pre-trial detention because of his prosecution at the Sierra Leone tribunal (paras. 3-4). Regarding the defense’s motion to add several documents to the file, the Court held that it was necessary for the security of several witnesses and confidants not to add most of the requested documents (paras. 4-5). Given the fact that the investigative judge would need considerable time to continue the investigation resulting from the conclusions of this interlocutory appeal, the Court suspended Kouwenhoven's detention. (paras. 5-6).