The public interest

Recently I read in a magazine for lawyers the proposition that my Amsterdam confrere Mr. A. Moszkowicz would not have integrity. Moszkowicz, according to the editor-in-chief of that magazine, one of Cleve's, allegedly took a run at the core values of the legal profession by instituting a lawsuit on behalf of his client Wilders. Moreover, Moszkowicz is said to have insufficient expertise in the field of constitutional law to conduct such proceedings, according to the editor in chief. What would show that Moszkowicz was not an expert is not mentioned.

I don't know whether Moszkowicz is competent enough or not in the field of constitutional law and whether, if necessary, he has received sufficient advice. I'm not an expert myself and so (just like van Kleef) I can't judge that. However, I do know something about the core values of the legal profession. One of those core values is that the lawyer is pre-eminently biased. As an advocate he will also have to fully commit himself to points of view that he does not share and that may not be so obvious. This has nothing to do with lack of integrity, quite the contrary. A lawyer must defend his client's point of view. He may only take limited account of other interests, including the public interest.

This is not the case for members of the judiciary and the public prosecutor's office, who should act and decide with the public interest in mind.
Unfortunately, I have to conclude with some regularity that this does not happen.

In my own practice I now see, for example, the action of the Public Prosecutor's Office in the so-called Okura case, an attempt to liquidate a known Serbian criminal. The court of appeal acquitted the accused, who had been sentenced by the court to eight years, of all charges. The public prosecutor signed cassation before he had even been able to read the verdict and also issued a press release to that effect. Later a second press release was issued to the effect that and why the cassation was continued. Meanwhile I was confronted with the legal basis of this cassation. It is fourteen pages of text, thirteen and a half of which consist of a repetition of the argument of the Public Prosecution Service on appeal ('napleiten', one of the minor horrors in criminal law).

The half-page text that the complaint should contain is sheer, legal nonsense.
Valuable time of the advisor and the judges of the Supreme Court is being wasted by this muscular display, intended solely to let the public know through the newspaper that the Public Prosecutor's Office is taking firm action against the Yugo Mafia . This has nothing to do with the public interest.

When the Public Prosecutor's Office does come to a justified decision, it sometimes wants to be the judge who puts a spanner in the works. A poignant example of this is the so-called 'sucker lawsuit' against my Breda confrere Eric Thomas. Mr. Thomas is said to have said the word 'sucker' during an interrogation of a policeman in the office of the examining magistrate. The man made a report of insult but the public prosecutor did not want to prosecute. The tormented policeman then turned to the court with the request to order the prosecution. The Court of Appeal in 's Hertogenbosch agreed with the policeman, with the result that three judges will soon have to deal with this hopeless case, which was not desired by the Public Prosecution Service itself. A decision of three councillors that is not in the public interest and can at least be called 'stupid'.