Opinion: Our BOB (Special Investigative Powers) information campaign

POSTED: 03/19/12 12:30 PM

The arguments against the law on special investigation methods we heard in parliament last week show that this necessary piece of legislation is little understood. Especially the so-called concerns about privacy make no sense. All this made one MP even label the legislation as a necessary evil. But the funniest thing is that some parliamentarians think there is a need for an information campaign “to inform the people.”
But “the people” – those who go about their everyday business like law-abiding citizens – don’t give a rat’s behind about this law; at least they shouldn’t worry about it because they will never become the subject of one of the methods law enforcement will have at its disposal once the law goes into effect.
If there is an information campaign at all, it ought to be conducted in the Pointe Blanche prison for the inmates, and maybe in selected places (like bribery-sensitive departments in the civil service). But we bet our bottom dollar that Joe Average won’t even bother to show up if Minister Duncan organized an information evening at the Belair Community Center. Politicians – those who have really read all the material provided to them about the law – ought to know everything there is to know by now about these special investigation methods, so they don’t need an information campaign either. For interested readers however, we present here a concise version of what such an information campaign could look like: a mix of useful anecdotal background information plus the dry facts.
We thought it rather remarkable that one of the most vocal opponents of the law, National Alliance MP Louie Laveist, was absent from parliament during the vote last week. This way Laveist will maintain that he never voted against it – though he did not vote in favor of it either.
Laveist is, as we have noted before, the only parliamentarian who was ever subjected to one of these special investigation methods. In 2007, a special detective team was flown in from the Netherlands to assist in the bribery-investigation against Laveist. The officers put the politician under structural observation. Because there was no legal basis for using this method back in 2007, attorney Cor Merx used it as an argument in favor of his client during the appeal hearing in the Common Court of Justice. Instead of sending Laveist to jail for 18 months, the court mitigated his punishment by cutting the term in half and suspended the remaining 9 months. This means that because the law on special investigation methods was not in place at the time, Laveist escaped an unconditional prison sentence. This also explains his opposition against the legislation.
On May 24 the appeals court has to do the Laveist-case again at the orders of the Supreme Court. It sent the case back to the local court because it had added the evidence against Laveist in a separate document to its verdict, instead of including this in the verdict itself. Nobody expects that the Common Court will arrive at a different conclusion this time around. The only effect the exercise will have is that it may take until 2014 before the verdict becomes irrevocable – that’s seven years after Laveist accepted in his function as Commissioner of the island territory a free plane ticket from a company that expected him to help it get the contract for equipping the new government administration building with furniture.
But let’s get back to the BOB, the Wet Bijzondere Opsporingsbevoegdheden as the disputed legislation is called in Dutch. What are the methods our snooping investigators will now be allowed to use?
The one most feared by MP Laveist (and others): structural observation. Officers are allowed to systematically follow a suspect and register his or her behavior or presence in a certain location with a hidden camera.
The next method: infiltration. This allows undercover officers to participate in a group, or to assist it, once there is a reasonable suspicion that the group is committing or planning crimes. In this role, undercover officers are allowed to commit crimes themselves if this is necessary to maintain credibility within the group.
Number three: pseudo-purchases or providing pseudo-services to a suspect.
Four: structural gathering of information about a suspect without revealing that this is done by a law enforcement officer.
Five: the authority to enter a privately owned “closed premise” (not being a house) without the owner’s permission or to install equipment there to record the location, to secure trace evidence or to install equipment to record the presence or the movement of goods.
Six: recording confidential communication with a technical appliance.
Seven: internet and phone tapping.
The premise that this is all way too invasive is wrong. What the BOB actually does is regulate when and under which conditions law enforcement officers are authorized to use these methods. Everything officers do under BOB-legislation has to be recorded and it has to be added to the case file. This gives defense attorneys the opportunity to evaluate the methods that were used against their clients.
It is therefore not so that a policeman is allowed to use any of these methods on his own initiative. The public prosecutor’s office decides when these methods can be used. There must be a suspicion about serious crimes, there must be a reasonable suspicion that crimes are planned or committed in an organized way. In the Netherlands the BOB also applies to suspicions about terrorist acts, but this only became possible after the introduction of additional legislation.
This is about all there is worth knowing about the BOB for interested law-abiding citizens and for those with less respect for the law: you could be put on candid camera, but not for keeping a girlfriend on the side, or even for cheating the tax office. To qualify, criminals must be occupying themselves with serious crimes. Civil servants and politicians (the latter based on historical evidence) ought to keep this in mind, because we figure that bribery and embezzlement may fall within the scope of this law.

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