Speech is silver, silence is golden?! Towards adapting the rules on the informer (pentito)

The Minister for Justice Vincent Van Quickenborne recently announced several measures that would make the rules on informers more efficient in order to combat organized crime and drug-related crime.

This announcement prompts us to examine the rules on informers (or justice collaborators) (pentiti) more closely.

From old Jerusalem to Palermo, and now Brussels

When one thinks of the first pentito in the broadest sense, Judas Iscariot would come to mind. But the best-known “modern” pentito can be found among the Italian Mafia leaders in the 70s and 80s, when Italy was plagued by extreme left- and right-wing terrorism. This led to the first experiment in which accessories or aiders and abettors could be given lenient sentences or better detention conditions in exchange for betraying other perpetrators (higher up in the hierarchy).

This system of using pentiti (the term used to refer to Mafia members turned informers) became known worldwide when the Italian authorities used it to take down the Mafia. For example, that’s how the lamenting investigating judge Giovanni Falcone gained insight into the Sicilian Mafia (Cosa Nostra)—through the pentito Tommaso Buscetta.

The success of this informer (pentito) system in Italy and other European countries (which adopted the Italian system) to fight organized crime did not go unnoticed by Belgian lawmakers. Moreover, the Belgian legislature fostered the secret hope that a pentito would be able to break the Bende van Nijvel (Nivelles Gang) case.

In the summer of 2018, the rules on informers (or justice collaborators) were introduced into Belgian criminal procedural law.

Up to now, there has only been two known cases in which this system was used, namely the Proper Handen (Clean Hands) case (concerning alleged fraud in Belgian pro-league football) and the Qatargate case (concerning alleged corruption by members of the EU Parliament).


Pentiti à la Belge 

The Belgian legislature deliberately chose not to use the statutory definition of the term pentito as it is plausible that the pentito’s willingness to testify is not really motivated by genuine regret, but rather the result of unashamed opportunistic behaviour, or out of resentment towards “competing colleagues.”

The Belgian legislature describes a pentito as “a person who—in exchange for bargains concerning criminal prosecution, criminal sentence or imprisonment—gives substantial, revealing, true, and complete testimonies about the involvement of third parties and, if appropriate, his or her own involvement in the commission or attempted commission of crimes.”

Despite the potential lack of any form of regret by the pentito, we will still use the term pentito for the sake of this article’s readability.


Is everyone a pentito?

The pentito must be a perpetrator, accessory, or aider and abettor of a certain crime. However, the pentito does not have to testify about a crime in which he is or she is involved, although this is of course possible.

One can become a pentito during a judicial inquiry conducted by an investigating judge, during the period when the case is being handled by the court, and even afterwards while the sentence is being served.

One can take on the role of a pentito only if he or she testifies about the crimes (or attempted crimes) that are listed in Article 90ter §§2–4 of the Criminal Code, which cover the most serious crimes in Belgium, such as terrorism, murder, drug trafficking, and money laundering, among others.


Pro memoria: the Memorandum

Offering a person to become part of the pentito programme comes from the Public Prosecutor’s Office. The offer must mention the bargains proposed by the Public Prosecutor’s Office in exchange for the pentito’s testimonies. It must also stipulate a back-up punishment that is enforceable should the pentito fail to satisfy the conditions of the memorandum.

Nothing prevents the prospective pentito (himself or herself, or through his or her lawyer) from seeking information from the Public Prosecutor’s Office beforehand to decide whether or not he or she wishes to submit himself or herself to the pentito programme.

If the pentito accepts the offer from the Public Prosecutor’s Office, this is documented in a memorandum. The pentito must be assisted by a lawyer when this memorandum is being drafted.

The statements that were given during the negotiation phase before the memorandum was drawn up will not be (or become) confidential if the parties do not eventually conclude a memorandum.


What goes around comes around!

In exchange for the pentito’s testimonies, the Public Prosecutor’s Office offers “bargains” to the pentito, which are set out in the memorandum.

These bargains can relate to how prosecution will conduct the criminal proceedings as well as how the sentence will be enforced.

Depending on the nature and the category of the crime that was committed by the pentito, he or she can be given a more lenient sentence, which can be lower than the minimum required by law. For crimes that were committed without violence, prosecution could even propose that the pentito simply plead guilty, so he or she would not have to serve any sentence.

Moreover, the Public Prosecutor’s Office can also offer bargains regarding the seizure of assets and property that relate to the crimes committed.

The bargains could also relate to sentence enforcement. For instance, prosecution can promise to draw up a favourable report and submit it to the sentence enforcement court or be passive towards the authorities that are responsible for collecting fines, for drawing up seizure warrants, for enforcing a prison sentence, etc.


Who says A must say B!

By signing the memorandum, the pentito undertakes to give complete, correct, and revealing statements within a specified time. As these statements are made by a pentito, they may never be anonymous.

In other words, the pentito must communicate new or not-yet-corroborated information to the investigators. Moreover, the pentito must be honest and provide all information concerning his or her own involvement.

If the statements given are found to be incomplete or untrue after the memorandum has been ratified, the bargains that were granted can be revoked, and the back-up punishment that is stipulated in the memorandum can be imposed.


The court’s judicial “passivity”

The memorandum concluded between the pentito and the Public Prosecutor’s Office is still subject to judicial supervision after the pentito has testified. This means that the court will check whether the conditions for application of the rules on the pentiti are satisfied, whether the offences were correctly described in the memorandum, and whether the bargains offered by the Public Prosecutor’s Office are proportionate.

Only after having verified these elements will the judge be able to ratify the memorandum and impose the sentence that was agreed upon.

If the judge refuses to ratify the memorandum, a new memorandum will be drawn up (the judge may not adapt the memorandum by himself or herself), or the case will just have to run its course. In such scenario, the pentito will still have to appear before the judge. All documents relating to the previous pentiti programme and all statements that were given as part of it will then be deleted from the case-file. They may no longer be used as evidence of the crimes that form the subject-matter of the statements given by the former pentito.


The pentito in Belgium

Because a pentito’s statements may never be anonymous, the success of this “investigation technique” is rather limited. In organized crime, acts of revenge against the pentito or people from his or her entourage are bound to happen. Consequently, the criminals behind such crime are more reluctant to become pentiti.

For now, it seems that the usefulness of a pentiti programme lies mainly in the context of white-collar crime (or financial or economic crime), where the risks of retaliation are lower.

This article is written by

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