We, independent criminal lawyers, seek your attention with this open letter. We are very concerned about criminal justice in the Netherlands. Normally we only call attention to this in individual cases. Now, however, a limit has been reached that makes us unite to take this exceptional step and temporarily rise above the level of individual cases and suspects. The social importance of the proper administration of justice is simply too great.
What matters is the following. For several years, police and prosecutors have increasingly focused their investigations on seizing, tapping and hacking encrypted communication services. The Dutch Police High Tech Crime Team plays a key role in this because of its considerable technical expertise - a dubious honor, given that the Netherlands has been a leader in wiretapping for years. The modus operandi of the Dutch police and judiciary was as follows. First, a separate, nationwide investigation was launched for each communications service, the initial contention of the prosecution in each case being that those individual services, including their founders, directors and employees, were the real and only suspects. In those investigations, all content-related communications as well as metadata, such as location data, of all users were intercepted. Beforehand, it is not easy to see what use this would be to the investigation of those communication services. Yet this was fully exploited in order to subsequently transfer "suspect" data to other prosecutors to start new investigations against users or to prosecutors who were already investigating a suspect. What happens to users' data that cannot be linked to crimes is unknown. Examples of communications services that have been targeted in this way include Ennetcom, PGPsafe, EncroChat and SkyECC.
That form of detection is innovative and cross-border. In itself, there is nothing wrong with that and we even endorse the social usefulness of new, advanced investigation methods in the fight against serious crime. However, the deployment of such new investigative methods does require transparency if there are questions about the actual course of events. Only in this way can the judge ultimately adequately assess the extent to which the evidence obtained
- is lawful: does that detection include crossing boundaries of the law? and
- reliable: does that detection produce evidence of integrity and completeness?
There is no such thing now. Judges systematically reject the many requests from many lawyers to simply clarify the factual course of events, which is quite apart from the legal consequences. This is important because in the meantime strong, factual indications have become known that fundamental human rights of citizens or suspects have been violated or are in danger of being violated.
1. First and foremost, the right to a fair trial is at stake in many cases. Review of the legality and reliability of evidence obtained is made legally and factually impossible because prosecutors and judges are satisfied with the idea-fixe that the decrypted communications are usable for evidence. Indeed, prosecutors have even deliberately provided misleading information to judges, while our criminal justice system is built on the trust of prosecutors acting with integrity. In the process, international cooperation appears to be used not only to combat crime, but at the same time to deliberately limit the ability of those who emerge from that investigation as suspects to mount an effective defense.
All further inquiry into this requested by us, on behalf of clients, is sidestepped by falsely asserting that evidence obtained from other countries may be assumed to have been lawfully obtained (the so-called "interstate reliance principle"). It hasn't. At least, that is the least that can be debated where all the facts have to come to the surface: after all, the evidence was usually secured (in part) on Dutch territory, with meaningful assistance from the Netherlands and without the citizens concerned being able to bring any legal action (abroad) against it. In that case, the Netherlands, as a sovereign country, is obliged to conduct its own review against the laws and regulations as they apply in the Netherlands and, for that matter, in the rest of Europe, in order to provide legal protection for citizens. This is all the more true now that it has become apparent that misleading information has been provided repeatedly from the public prosecutor's office, and in France there has already been evidence of illegalities (at EncroChat). If the prosecution is nevertheless convinced of the lawfulness, it is hard to see why it does not disclose how the data was obtained and processed. Because judges are content with this attitude and they routinely reject requests for further investigation, ambiguity persists and, more importantly, little legal protection remains.
The same applies to reliability: it is assumed that the evidence is reliable, while on many occasions the digital technology used has proven to be flawed. Nevertheless, not being allowed and able to test reliability increases the unacceptable risk of an unjust conviction.
2. In addition, the right to privacy of all citizens is under pressure. We are concerned about the scale of the intrusions on private communications and how they are handled: bulk interception has taken place, violating the communication secrecy of a total of hundreds of thousands of citizens worldwide. The jurisprudence's response to this is that there was no bulk interception, but a targeted interception, aimed at all those citizens worldwide, most of whose identities are unknown. The concept of targeting is thus no longer subject to particular requirements. This is contrary to law (including Art. 8 ECHR and Art. 7 EU Charter): there was no concrete suspicion against those individual citizens and no proportional deployment. We therefore cast aside the argument that the hacked services are only used by criminals who have forfeited their right to privacy through their criminal actions. Most of the users have even remained unknown to date; the fact that encrypted communications are suitable for use by criminals does not mean that encrypted communications are exclusively intended for, let alone used by, criminals.
Citizens also have the right to data protection (Art. 8 EU Charter). However, how that data is stored and handled, even beyond detection, is particularly opaque.
Furthermore, we signal the risk of a sliding scale. Other (encrypted) communication services, such as Signal and Whatsapp, also use strong, end-to-end encryption. Those services, too, are already being placed in a suspicious corner or are at risk of being placed there, while that suspicion is based solely on the use of strong encryption and the protection of one's privacy. From the magistracy, no control, through fact-finding, takes place (as yet).
It is for these reasons that we now speak out in this way. We are talking about violations of fundamental human rights of everyone, especially of suspects in criminal cases. All citizens, including suspects, must be able to rely on the government and count on its protection. In criminal cases, they must even be able to rely on the presumption of innocence: guilt of an offence cannot and must not be assumed until the evidence that could serve as a basis for it has been thoroughly examined. Currently this does not happen and is thus even (actively) prevented by the magistracy. In this way, the remedy becomes worse than the disease. In this way, the rule of law is truly undermined.
We therefore call on the various state powers to exercise (mutual) control for the sake of a balance between truth-seeking and effective punishment on the one hand and the rule of law and incorruptible investigation on the other, as is currently the case in other European countries, such as France and Italy. Currently, the legal profession has no role in this. This irrevocably stands in the way of the proper administration of justice. Therefore we urge
- Parliamentary questions, explaining the role of Dutch authorities in international cooperation in investigations into the aforementioned communications services;
- transparency from the Ministry of Justice and Security and the Public Prosecution Service about the role of Dutch authorities in that international cooperation;
- critical examination by judges in individual criminal cases where defendants are confronted with evidence resulting from that international cooperation.
Signatories, all registered as attorneys at law with the Netherlands Bar Association: Ruud van Boom, Justus Reisinger, Yannick Quint, Ruben Poppelaars, Francoise Landerloo, Bas Janssen, Tony Boersma, Sven Flier, Sarah Melliti, Minke Greeven, Jan-Hein Kuijpers, Bob Kaarls, André Seebregts, Lejla Ibisevic, Haroon Raza, Lily van Poucke, Özlem Saki, Louis de Leon, Yassine Bouchikhi, Ruben den Riet, Miriam Levy, Mark Teurlings, Sjoerd van Berge Henegouwen, Arne Kloosterman, Willem van Vliet, Herman Verberkmoes, Cem Polat, Remco Kint, Michiel Lamers, Noortje Lut, Carmen Willekes, Ester Blok, Maarten Hoevers, Karin Blonk, Fabian Siccama, Kera Durdu, Suzanne van Bunnik, Guy Weski, Guy Koppen, Ronald van der Graaf, Suzanne Brinkman, Joost Vedder, Eline van Egmond, Barry van de Luijtgaarden, Dennis Vlielander, Menno Heinen, Gerald Roethof, Yehudi Moszkowicz, Daniëlle Schaddelee, Laurens Nooijen, Manon Aalmoes, Vincent van der Bom, Justus Faber, Leanne Toet, Hans Otto den Otter, Aram van Galen, Suna Polat, Geoffrey Woodrow, Idriss van Straalen, Bo Maenen, Gwen Jansen, Mark Broere, Kim Elema, Vincent van Biljouw, Joost Denissen, Adarsh Sewgobind, Martijn Houweling, Mariette van Pelt, Wiekash Ramnun, Gitte Stevens, David Rutten, Arnout Schadd, Jori Schadd, Leon Klewer, Felix Laros, Remko Oerlemans, Nancy Dekens, Caspar Jansen, Gertjan Mooren, Kasper Regter, Vasco Chorus, Tommy Straten, Teddy Arkesteijn, Cem Kekik, Winston de Brouwer, Justin Kotter, Bas van Leeuwen, Leon Rommy, Yasemin Karga, Marcello Jansen, Jill Leyten, Bas Kurvers, Daniël Fontein, Tom Deckwitz, Fébe Schoolderman, Wouter Hendriks, Brian de Pree, Noa de Leon, Henk van Asselt, Joris van Roggenkamp, Marco Bos, Rob Zilver, Sanne Schuurman, Mark Dunsbergen, Robert van 't Land, Jasper van Rijsbergen, Joris Kersemaekers, Sanne van Minderhout, Anne-Claire Tönis, Marlies Broekert, David Penn, Leonie van der Grinten, Ester van Elst, Jaap van Rooijen, Simcha Plas, Veerle Hammerstein, Marcel van Gessel, Benjamin Heinrici, Marie-José Beukers, Hans Duin, Jan Zevenboom, Raymond Frijns, Tarkan Kocabas, Peter van Zon, Micha Jonge Vos, Michael Berndsen, Kerem Canatan, Eric Steller, Clarice Stenger, Tom Gijsberts, Vincent Poelmeijer, Patrick van der Meij, Susanne Boersma and Inez Weski.
