The Public Prosecutor v. Guus Kouwenhoven

This case summary is being revised and will be updated soon

Court	Supreme Court, The Netherlands
Case number	08/01322 (ECLI:NL:HR:2010:BK8132)
Decision title	Judgment
Decision date	20 April 2010
Parties	Public Prosecutor’s Office Guus Kouwenhoven
Categories	War crimes
Keywords	complicity, supplying of weapons, war crimes
Links	Judgment (in Dutch) Judgment (Summary in English)
Other countries involved	Liberia Sierra Leone

Summary

The accused, Dutch businessman Guus Kouwenhoven, was suspected of involvement in smuggling arms to Liberia (through his Liberian-based timber factories) during the Second Liberian Civil War - in violation of UN arms trade bans - and accomodating/complicity in the numerous war crimes that were committed with these weapons. He was taken into custody by the Dutch police in 2005, and put on trial.

Although the Court of First Instance found him guilty of arms smuggling (but quashed the war crimes charges), the Court of Appeal later found that he could not be convicted for any of the charges due to lack of evidence. The prosecution appealed and ultimately the Supreme Court found that the Court of Appeal had erred by not properly motivating its decision not to allow an examining judge to assess whether two anonymous witnesses - who were allegedly very close to Kouwenhoven and Charles Taylor, and therefore key to the prosecution's case - should be admitted as protected witnesses, could be provided a protected witness-status so as to testify in the case. The appeals judgment was declared null and void and the case was referred to another Court of Appeals.

The case is currently still before the Court of Appeal: due to the case being assessed anew on all facts and evidence, an enormous amount of requests relating to the admission of (new) evidence has been filed.

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 Guus 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.

Both the prosecutor and Kouwenhoven appealed against this verdict. In an interlocutory appeal, on 19 March 2007, the Court of Appeals 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, however, and as it foresaw the process to be a lengthy one, Kouwenhoven’s detention was suspended.

In appeal, the prosecution relied heavily on two main witnesses in the Charles Taylor process before the Special Tribunal for Sierra Leone (STSL), witnesses who had allegedly been close to both Kouwenhoven and Charles Taylor during the Liberian conflict and therefore had remained anonymous when they were heard (in the Dutch proceedings they are referred to as A03 and A04). Initially the STSL did not approve requests to have them heard in the Kouwenhoven trial due to the risk of their identity becoming known, compromising their safety and security. However, the STL changed its mind in 2009 (after the appeal proceedings in the Kouwenhoven trial had started) and allowed for hearing them under condition of anonymity; the prosecution requested the Court - under Art. 26a Dutch Code of Criminal Procedure - to allow an examining judge ("Rechter-Commissaris") to rule on the possible admission of A03 and A04 as protected witnesses in the current case. The Court of Appeal dismissed the request, noting that the prosecution had failed to show the necessity of hearing the witnesses. In deciding so, it considered inter alia that the defence has restrictions in examining the protected witnesses' statements, that such statements are therefore not be decisive in a case, and that the proceedings were already taking to much time, compromising the accused's right to an expeditious process. Ultimately, this meant the Court of Appeal had to acquit Kouwenhoven of all charges on 10 March 2008 due to a lack of reliable evidence.

The prosecution disagreed with the decision not to have an examining judge look at whether A03 and A04 should be admitted to the procedure as protected witnesses, and appealed to the Supreme Court.

On 5 January 2010, the Advocate-General opined in favour of the defence, arguing that the prosecution's appeal should be dismissed.

Related developments

The investigative judge was right in 2007 in expecting the trial to be a lengthy one. Since the referral to the Court of Appeal in 2010, no judgment has been issued yet. This is mostly due to the investigations, which have resulted in a number of interlocutory decisions:

Kouwenhoven argued that the prosecutor be declared inadmissible, because evidence would have been withheld by the prosecution. The Court disagreed, however, and found on 21 December 2010 that the concerning new documents, which had been at the disposal of the prosecution already, were lawfully added to the dossier. The Court added that the defence still had the right to examine the evidence (p. 2).
Basing himself on Art. 6 ECHR, Kouwenhoven also argued that the charges for complicity in war crimes (para. 4 of the Conclusion) should be quashed because the prosecution had allegedly created the impression that Kouwenhoven would not be prosecuted for the underlying facts, hence violating the principle of legitimate expectations. The Court disagreed (decision of 1 February 2011). Since the Supreme Court had set aside the previous judgments and referred the case back to the Court of Appeal, the latter Court must carry out a complete and comprehensive examination of the facts and statements before it. In this light the prosecution is allowed to bring in new facts; even though it had opted for acquital of the accused on certain charges previously, such new facts might give rise to a reorientation of the charges (pp. 3-4).
In the same decision the Court admitted numerous witnesses (notably, Charles Taylor - see para. 12), allowed inspection of several locations in Liberia, and permitted Kouwenhoven to ask the prosecution around hundred questions, which the prosecution was only allowed to not answer if it substantiated any decision not to do so.
On 1 March 2011, both Kouwenhoven and the prosecutor filed several requests concerning the examination of facts, (witness) statements and locations. Six weeks later, on 12 April 2011, the Court allowed a number of those (inter alia permitting three months time to assess security risks in case of disclosure of personal information of confidential witnesses; permitting the search for and hearing of witnesses outside Liberia; and obliging the prosecution to provide insight in the way it approaches and deals with witnesses). Requests for disclosure of all correspondence with other countries, foreign organisations and agencies; to record all statements on tape; and to have the prosecution issue all plans, construction and cadastral data of all locations and routes as mentioned by witnesses, are dismissed due to lack of appropriateness and usefulness.
New requests led to additional interlocutory decisions on 5 July and 9 September 2011. Following the abovementioned assessment of security risks of witnesses, the Court allowed the prosecution to file a request with the examining judge to decide on providing confidential witnesses with the protected witness-status (p. 5). Also, the Court decided it would file a request for judicial assistance with the Liberian authorities as soon as two additional Liberian witnesses were located (p. 6).

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, 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 complicity in war crimes committed by Liberian armymen and militias using those weapons.

Core legal questions

Was the Court of Appeals correct in dismissing the prosecution's request to allow the examining judge to assess whether the anonymous main witnesses could be heard as protected witnesses?

Specific legal rules and provisions

Article 226a of the Dutch Code of Criminal Procedure.

Court's holding and analysis

The Supreme Court emphasised that when a court decides to deny a request conform Art. 226a (i.e. to have an examining judge assess whether a potential witness can be heard as protected witness), this decision must be properly explained. The Court of Appeals had not done so; its judgment had not made (sufficiently) clear why it was deemed unnecessary to have the examining judge look at the request, and neither had it become clear which standard of "necessity" had been applied (paras. 3.2-3.4).

The consequence of this failure reaches to the core the the case, for if the witnesses had been heard, the outcome of the proceedings might very well be influenced. Hence the Supreme Court quashed the judgment of the Court of Appeal (of The Hague), and referred the case back to the Court of Appeals (of 's Hertogenbosch) for settlement (para. 5).

Instruments cited

Dutch Code of Criminal Procedure, 15 January 1921 (in Dutch only).

Related cases

Guus Kouwenhoven's client Charles Taylor, former president of Liberia, was accused and ultimately found guilty of providing arms and financial and moral support to the Revolutionary United Front (RUF) and the Armed Forces Revolutionary Council (AFRC) rebel forces, which had committed on an enormous scale crimes against humanity and war crimes during the Sierra Leone civil war. The Special Court for Sierra Leone sentenced him to 50 years' imprisonment in 2013.

Another Dutch arms dealer who was accused of war crimes was Van A. Van A. was alleged to have (knowingly) supplied chemicals to Saddam Hussein which were used to fabricate the chemical weapons used in (inter alia) the Halabja massacre. The Dutch Supreme Court ultimately found him guilty in 2009, convicting him to 16 and a half year imprisonment.