#63: Factory of lies

The fallibility of memory. It is a theme that comes up a lot in criminal cases. Especially if a witness has made an incriminating statement against a suspect. How reliable is that statement based on the memory of that witness? In practice, it turns out that the memory simply is not so accurate. A memory can become distorted in the course of time under the influence of many factors. During a recent TV program someone stated: “There is no bigger lie factory than the memory”. That is spot on. And if that is the starting point, it seems no more than logical to let the defense interview witnesses who have made an incriminating statement, without setting specific further requirements to the request to cross-examine such a witness. The ECtHR thinks so too, by the way.

On 4 July 2017, the Dutch Supreme Court rendered a judgment with an overview regarding the requirements to be imposed on witness requests in light of ECtHR case-law. The Supreme Court ruled that in the Dutch criminal procedure a request to summon and hear witnesses should be motivated by the defense in order to enable the court to assess the relevance of that request. This obligation applies to both defenses witnesses and witnesses of the prosecution. No distinction is made between the two. The Dutch Supreme Court does note that the court must always make sure that the procedure as a whole complies with the right to a fair trial guaranteed by Article 6 ECHR. The Supreme Court has ruled that the judge (after an earlier rejection of a request) will – if necessary ex officio – still proceed to summon and interview witnesses at a later stage.

In practice, however, requests to cross-examine a prosecution witness are rejected if the judge does not consider the grounds for the request adequate. This was the case in the recent judgment Keskin v. the Netherlands. The ECtHR ruled that this situation constitutes a violation of Article 6 of the ECHR. The ECtHR held: “The Court takes this opportunity to reaffirm the general principles relating to the right of an accused to examine or have examined witnesses against him or her, as set out in paragraphs 44‑45 above, from which it follows that the interest of the defence in being able to have those witnesses examined in its presence must in principle be presumed (see also paragraph 60 above).” In other words, the right to cross-examine a prosecution witness is paramount. Thus, the defense should in principle be given the opportunity to interview such a witness, while the Dutch Supreme Court interpretation is that the defense will not be granted that opportunity unless the conditions are met.

It seems that this judgment of the ECtHR will have to be answered by an adjustment of Dutch threshold. In any case, the defense will certainly have to make use of this specific decision. In which way the Dutch jurisprudence will adapt based on this “slap on the wrist” and how it will implement the new criteria will become apparent. Advocate General to the Supreme Court Spronken wrote quite strikingly: “A national legal system reacts to supranational case law like a body to an organ transplant: the first reflex is that of rejection and thereafter the foreign organ is assimilated into the body as well as it can be done.” Indeed, the Dutch Supreme Court has shown quite a tendency to hold a lower standard than the minimum defense rights guarded by the ECtHR. In our view, this judgment does not allow that to be a serious option. The addition in the July 4, 2017 judgment that ex officio decisions can be made to prevent a violation of Article 6 ECHR could already provide a good opening for this in everyday practice. Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.