#43: The fading and fallible memory

In many criminal investigations under the Dutch continental law system, the investigation à décharge on behalf of the defense is a challenge. Due to the inquisitorial system it is not a given that the defense can interview any and all witnesses. The defense has to convince the (investigating) judge on the interest of interviewing certain witnesses. Especially requests that are made during the investigation of the police or FIOD (financial intelligence unit) are hard to realize. Even though interviews à décharge can be of crucial importance in this early stage. The Court of Appeal in Amsterdam now acknowledges that interviewing witnesses in a later stage has influence on the memory of the witness. Therefore it also has an influence on the reliability of the evidence, which is one of the arguments for granting permission to interview witnesses on the request of the defense in an early stage.

In a recently published decision the Court of Appeal had to decide on a case regarding taxi rides without running a taximeter. The defense was first granted to interview a witness in the appeal phase. The defense argued that the right to interview witnesses in the sense of article 6 ECHR was breached. The reason was that the witness was interviewed 4 (!) years after the alleged criminal act was committed. Because of the passing of time the witness could remember the incident only on headlines.

The Court of Appeal however decided that in this particular situation article 6 ECHR was not breached. At first the suspect was offered to accept his punishment by payment of a fine (the so called “strafbeschikking”). The suspect however did not accept this and appealed to the regional court. Soon after this appeal the suspect received the indictment to appear before the court. Before the indictment was received, the defense had the possibility to ask the investigating judge to interview witnesses, this momentum was however not used. The criteria to decide upon such a request is whether there is an interest for the defense. Now the request was first made during the hearing at the regional court. At that moment the criteria is whether the request to interview the witness is necessary for the defense. This request was then denied.

The Court also states that if the witness would have been interviewed at the regional court, this would not necessarily have led to a more detailed witness interview, as at that time also a lot of time – 2,5 years – had already passed since the incident.

In our opinion the argument that the passing of time influences the ability of witnesses to give a useful interview in criminal investigations, should be taken more seriously. If the defense requests to interview witnesses during the investigation phase, these requests should be granted. With the passing of time it will become more and more difficult for the witness to remember certain matters, perhaps important details, which are relevant for the case. Even though this situation did not cause a breach of article 6 ECHR in this specific situation, this does not mean that this witness could have provided important information for the case if he would have been interviewed earlier. After all, the importance to interview this witness in the appeal case was acknowledged.

This case not only shows that the defense should make their interest to interview certain witnesses early in the investigation, it also shows that these requests should be taken more seriously to be able to establish all the relevant facts and find the truth.

If you have any questions about this subject or if are you confronted with a related issue please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

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