Speech by the Minister of Justice during the opening of the 15th conference of the International Association of Prosecutors (IAP) in the Ridderzaal on 6 September 2010

Toespraak | 06-09-2010

Ladies and Gentlemen,

It is both an honour and a pleasure to welcome you to this 15th International Association of Prosecutors Annual Conference and General Meeting, titled “Crossing Borders”. {I am mentioning this for the sake of completeness, for The Hague will also host a meeting under the name of “Crossing Border”, without ‘s’, which is a music and literature festival. But this festival will only take place in November. So perhaps some of you are in the wrong place at the wrong time. But, don’t worry, I won’t start singing. Although…. that would really be crossing borders.}

Your Royal Highness, members of the Board of Procurators General, members of the International Association of Prosecutors, ladies and gentlemen.

You are representing a large number of states from all over the world. But despite the many differences, you have much in common, for many of you are attached to the public prosecution services of your countries and are engaged in combating crime from a criminal-law perspective on that account. In the Netherlands, the key role played by the Public Prosecution Service in the prosecution of suspects has its legal basis in the Dutch Constitution. Without wanting to set the Netherlands as an example, it seems to me that it would be reasonable for every country to enshrine its public prosecution service in its constitution. Being part of the judiciary, the public prosecutor is after all the determining factor for the balanced way in which a criminal case is brought before the court. Both the court and the defence must be able to rely on the fact that a criminal case that is brought before the court by a public prosecutor has all ingredients for a fair trial. Only then will it possible for the rule of law to function properly.

Although criminal investigation and prosecution will always continue to play a material role in combating crime, I am seizing this opportunity to outline a broader approach such as we in the Netherlands have been adopting in increasingly more areas. I am referring to the joint deployment of criminal, administrative, and civil law instruments. The idea behind this integrated approach is that crime should not only be combated but also, where possible, prevented. The focus should not only be on bringing individual offenders before the court, but also on removing the breeding ground for organised crime. In addition, efforts should be directed towards getting criminals where it hurts the most, their pockets.
Like Mr. Antonio Maria Costa, executive director of the United Nations Office on Drugs and Crime, said at the presentation of the report on The Globalization of Crime last June, “criminals are motivated by profit: so let us go after their money”.

The basic principle of combating money laundering is a combination of stepping up the investigating capacity and the use of intelligence, making this combating an integrated part of any investigation process, but also by investigating in money laundering as an independent phenomenon in relation to the financial sector.

The Dutch Ministries of Justice and Finance are involved in the Financial Expertise Centre (FEC). This is an operational co-operative unit whose mission it is to enhance and maintain integrity in the financial sector by means of close co-operation among the institutions that are responsible for supervision, investigation, intelligence, and prosecution in this sector. Parties that co-operate in the FEC are the prosecution authorities, the police, the Central Bank of the Netherlands, the Netherlands Authority for the Financial Markets, and the Tax and Customs Administration. The Ministries of Justice and Finance act as monitors on the FEC Board.

We have opted for this way of working, because in the Netherlands we attach great importance to tackling financial and economic crime forcefully. We want to prevent criminal assets from flowing to society. Investments in criminal money made in the legal economy will upset the balance in normal economic relationships. I am quoting Mr Costa once again: “We must increase the risks and lower the incentives that enable the bloody hand of organised crime to manipulate the invisible hand of competition”. In addition, the proceeds of crime jeopardise social facilities and undermine social integrity. They also contaminate the financial systems, with all the risks involved, such as undesired influence and international damage to one’s reputation. Insufficient resistance against these powers will finally result in the disintegration of the rule of law. The fact is that there are already too many “failed states” in the world.  

It is not only organised crime, however, that generates criminal assets and is involved in money laundering on a large scale. In regular economies, there are also various persons active, individually or in groups, who violate financial and economic legislation on a systematic and regular basis and who benefit greatly from this. I am referring to large-scale fraudulent practices – such as tax fraud, investment fraud, and subsidy fraud –, environmental crime, and violations of supervisory legislation and international trade embargos. These actions are often accompanied by numerous insolvencies as a result of which the offenders often have lucky escapes and society must pay for the damage. These habitual offenders call for harsh measures as well. The criminal assets they amass by committing crimes in the regular economic sector have the same social disrupting effects as other proceeds from crime.

During the past few years, the Netherlands invested heavily in measures and increasing specific knowledge at the organisations concerned to be successful in confiscating criminal assets. It is essential that partners such as the public prosecution service, the police, the Financial Intelligence Unit-Netherlands, the Tax and Customs Administration, financial supervisors as well as private parties, such as insurance companies and the Dutch Banking Association work in close co-operation. Financial investigators and confiscation public prosecutors have been engaged in tackling finance-related crime at an early stage. Civil-law notaries have been encouraged to take measures against money-laundering. Supervision and disciplinary law have been tightened, and agreements have been made about which intervention is most appropriate for the crime committed: a criminal, administrative, or tax law intervention.

By now, this integrated approach has come off the ground in various other problem areas. A good example from Dutch practice is the Emergo Project at ‘de Wallen’, also known as the Amsterdam Red Light district, an area in the centre of Amsterdam that has been confronted with prostitution, human trafficking, drugs trafficking, and other forms of organised crimes. The purpose of this project is to identify the opportunity structure for organised crime at de Wallen and to dismantle it by using criminal and administrative law instruments. The aim is not only to eliminate criminal players, but also to put an end to this criminal game! The results of this approach have been clearly visible to everyone and the project also won widespread media attention from across the world.

In a comparable way, we have tackled organised cannabis cultivation: from a criminal and administrative and civil-law point of view. This means that – in addition to the police, the judicial authorities, and other public services – private parties, such as energy companies, housing associations, and insurance companies have also taken measures. All this is done to frustrate those involved in organised cannabis cultivation as much as possible. They risk eviction from their houses, tax assessments for income they failed to report, bills for electricity stolen, and increases of premiums for insurance policies – or even cessation of insurance by the insurance company. In short, a broad range of instruments that has proved successful in combating organised cannabis cultivation.

A similar example is the approach to property fraud. If only because of the scope of this sector, it is obvious that fraud, money laundering, and organised crime in this area constitute a constant threat to our entire economy. This was the reason to turn the spotlights on this sector in 2008. In coordinated and concerted actions, including tax, administrative, and criminal law instruments, a close look was taken on all links in the chain. The purpose was to fight abuse, not by means of investigation and prosecution alone, but also by putting up barriers and removing underlying factors which – whether intentional or not – encourage abuse.
Let me give you two examples: the civil-law notary will be obliged to provide information at the request of the tax authorities or the public prosecution service about specific transactions made through the bank accounts he uses to manage funds for his clients. In addition, fraud with valuation reports will be discouraged by a more stringent and uniform standardisation.

I would like to continue by highlighting the importance of international co-operation.
In combating financial crime, international co-operation is indispensable. The Netherlands supports the goals of the European Stockholm Programme in relation to the subject of economic crime. We believe that this programme rightly focuses on tackling financial crime, organised or otherwise, within the Union by taking firm measures such as further developing the exchange of information and co-operation between the Financial Intelligence Units and Asset Recovery Offices, stepping up possibilities, and developing the capacity to increase the confiscation of assets of criminals and combining all available tax, civil, and criminal law instruments.

The fact that transnational crime can only be combated at the international level is also evident from the report of the United Nations Office on Drugs and Crime I just mentioned. The report insists that, since crime has gone global, national responses are inadequate: they displace the problem from one country to another. It is therefore essential to improve political and judicial co-operation at the international level. On the proposal of the Netherlands, the UN Convention against Transnational Organised Crime pays attention to the prevention and combating of national and transnational abuse of legal persons in Article 31. All this requires knowledge of each other's legal systems and mutual confidence in each other's possibilities and working methods. This confidence may be incited by practical co-operation when countries, for instance, experience similar problems. For example, the Netherlands is currently co-operating with Germany and Belgium on a structural basis in their approach to drugs trafficking, the production of synthetic drugs and cannabis cultivation, and human trafficking. Enforcement agencies are exchanging information and conducting joint investigations.
We should furthermore strengthen the co-operation with international organisations. For a co-operation to be efficient within the EU, it is, for instance, essential that enforcement agencies have access to confidential data and analyses made by Europol on the basis of information from the Member States. And the EU Ministers of Justice and Internal Affairs must establish common priorities for the fight against organised crime and other forms of crime on the basis of Europol’s Organised Crime Threat Assessment. Ensuring that these priorities in operational activities are realised requires international co-operation and cross-border actions.

As you may know, the EU Member States concluded a fundamental treaty among them at the end of 2007. This treaty is referred to as the Treaty of Lisbon. One of the special provisions in this treaty is the possibility to establish an EPP, a European Public Prosecutor. In time, the EPP could develop into an important institute to protect the financial interests of the Union. Think in this context, for instance, of measures against VAT or carousel fraud. This is a form of crime that has posed a challenge to individual states for years – some of you will undoubtedly consider this an understatement. In future discussions about the establishment of a European Public Prosecutor, there will undoubtedly be important questions about matters such as its exact embedding within the existing European institutions, and in particular about its relationship to Eurojust, as laid down by the Treaty, and to us such an essential point as the necessity of democratic control. The exact details of the relationship to the competent authorities in the Member States will, however, still require a lot of thought. The fact that the Treaty provides that the national court has jurisdiction in matters that will be taken to court by the EPP is of fundamental importance in that respect.
In my opinion, the effectiveness of all those efforts would considerably increase if we did not limit ourselves to the deployment of criminal law instruments, but also tried administrative and civil law instruments in this context. The experience we have gained in the Netherlands in this area has convinced me that we could also achieve significant results with this approach at the international level.  

Ladies and gentlemen, it was a fortunate choice to hold the 15th conference of the International Association of Prosecutors in The Hague, for The Hague is known as the legal capital of the world, where many international organisations and tribunals operate.
It is also the last conference that will be held under the leadership of Henk Marquart Scholtz as Secretary-General. As Secretary-General, Henk has honoured the principles of the International Association of Prosecutors with great verve. He organised and visited innumerable meetings all over the world. For 15 years, he has given up his comfortable position as an advocate general in a district in the northern part of the Netherlands – leaving home and hearth – to dedicate himself to the cause of the public prosecutors. As Henk’s fellow-countryman, I am proud of him having created such a prominent profile for the International Association of Prosecutors during the past 15 years. And, in particular, I greatly appreciate his efforts to enable as many colleagues as possible from as many countries as possible to participate in the conferences by means of a Granting Program. I would like to thank him sincerely for this.

[I have the pleasure in informing you that already in April 2008, I had the honour of giving Henk the decorations that go with his knighting by Her Majesty the Queen as a Knight of the Order of Orange-Nassau.]

I wish you a pleasant stay in the Netherlands and I am looking forward to the results of a productive conference.