More scope for using intelligence information

The scope for using information provided by the General Intelligence and Security Service (AIVD) in criminal prosecutions is to be increased. Officials from the Service will be able to discuss the content of their intelligence reports in more detail with examining magistrates. Examination of anonymous witnesses will also be permitted. In addition, intelligence reports from the AIVD can henceforth be used directly as evidence. This is the substance of a bill that has been tabled in the Lower House by Justice Minister Piet Hein Donner. The Minister also wishes to create a better and clearer framework for the use of information from intelligence and security services in the investigation and prosecution of terrorists.

The scope for using information from intelligence and security services is limited. This has to do with the nature of that information, which often affects national security. The key is to strike the right balance between using information as evidence in criminal prosecutions and the ability to test the reliability of information. The protection of AIVD officials, their information and the methods used to gather that information are key. Under the proposal, examining magistrates will be empowered to hear AIVD employees - anonymously where appropriate - when investigating the origins of certain information. They must furthermore explain in the official report of their examination why certain information cannot be disclosed for reasons of national security.

The new arrangement is of particular importance for trial judges who have to assess the reliability of intelligence reports from the AIVD during criminal trials. AIVD witnesses can usually not say very much at public hearings because of national security considerations. The trial judge will in such cases be able to call on the examining magistrate to investigate the reliability of an intelligence report. The examining magistrate will then take cognisance of all facts and arrive at an opinion; it will then be up to the trial judge to weigh the evidential value of the examining magistrate’s findings.

The Minister’s proposal is in line with European practice, which regards constraining the rights of defence as acceptable if national security is at stake. On the other hand, verification of the reliability of witnesses must be placed in the hands of independent judges, while the parties involved in the criminal process must be able to help decide which issues the examining magistrate will investigate. Ultimately the trial judge establishes whether sufficient information is available for a proper assessment of the case. The Minister’s proposal satisfies these conditions. He is also proposing that the present law of evidence be amended so that henceforth intelligence reports will carry the same status as independent and full written documents to which judges can attach evidential value without restrictions.

This press release is taken from the website of the Ministry of Justice