Supreme Court overturns rejection of conditional witness request – Article 6 of the ECHR
A successful appeal by Linda van der Hut against the court’s decision on a conditional witness request by the defence.
In cassation, Linda complained about the court’s rejection of a (conditional) request by the defence to call witnesses. After repeating relevant considerations from HR:2023:1516 regarding the requirement that the defence take the “necessary initiative” and from HR:2021:576 and HR:2021:1418 regarding cases in which the interest in calling and hearing a witness must be presumed, the assessment of the “overall fairness” of the proceedings and the weight of the statement in question, the Supreme Court considered that:
“2.5.1 The court considered that it would have been “reasonable” to submit the request earlier than during the appeal proceedings, while “it cannot be said that the defence was not (already) given the opportunity to hear the aforementioned persons as witnesses”, as a result of which the request does not meet “the requirements for such a request”. With regard to those requirements, the court of appeal considered that the defence “takes the necessary initiative to make such a request and submits a firm and clear request stating that the defence wishes to exercise its right of examination”.
2.5.2 The court’s rejection of the request (…), based on these considerations, which was supported by the defence on the grounds, among other things, that the previous statements made by those witnesses were incriminating, is (…) insufficiently substantiated. The Supreme Court takes into account that (…) the court’s ruling that the defence’s (conditional) request does not meet the requirements is not understandable. In this context, it is important that (…) the fact that the defence did not make use of a previous opportunity to express its wishes regarding the examination of witnesses, even though there was no obstacle to doing so at that time, does not in itself constitute sufficient grounds for rejecting such a request in this case. The Supreme Court further takes into account that the Court of Appeal accepted the proven statement partly on the basis of the statements of [1] and [2], which were contested by the defendant, without the defence having been able to question these witnesses. It is important to note that the court of appeal did not appear to have examined whether there was a valid reason for not calling these witnesses, nor did it further consider the weight of the statements made by [1] and [2] in the evidence structure in its considerations. The court’s ruling that the proceedings as a whole comply with the right to a fair trial guaranteed by Article 6 of the ECHR is therefore not sufficiently substantiated. (…)”
Read the full judgement here.
