ECtHR communicates application to Dutch Government about right to question witnesses in criminal cases

On 28 June last, the European Court of Human Rights (ECtHR) has decided to communicate to the Dutch Government a complaint filed against the Netherlands.

The application alleges that the Netherlands has violated art. 6 ECHR (right to a fair trial), more specifically the right of an accused in a criminal case to question witnesses which is also guaranteed by this article.

The applicant in this case was prosecuted in the Netherlands for fraud. During the investigation into this fraud, the police interviewed several witnesses. The applicant’s lawyer was not present during these interviews. He therefore requested that he be given an opportunity to question these witnesses himself. All these request were turned down. The Court of Appeal was of the view that the defence had provided insufficient reasons as to why it wanted to interview the witnesses in question. Even though the applicant was unable to question the witnesses, all their statements were used by the Court of Appeal to sustain the applicant’s conviction. The Supreme Court upheld this decision.

The applicant subsequently turned to the ECtHR. In his application, he indicates that it is consistent case law of the ECtHR that, as a rule, the defence should be given an opportunity to cross-examine witnesses for the prosecution (so called witnesses à charge) during the court hearing. It was therefore not for the defence to provide reasons as to why it wanted to interview the witnesses in question but for the Court of Appeal to provide reasons as to why cross-examination could be dispensed with without this leading to a violation of the applicant’s defence rights.

By communicating the case, the Dutch Government is given an opportunity to respond to the complaint. After an exchange of written submissions, the ECtHR will decide if the complaint is well-founded.

The applicant in this case is represented by Thom Dieben, attorney-at-law at Jahae Raymakers, and Rob Baumgardt. The decision to communicate the case can be downloaded here.