#61: How (not) to patch up flawed evidence

The practice of the right to interview witnesses has, over the years, been the subject of many litigation procedures in the Netherlands. The European Court of Human Rights (ECHR) also decides upon this matter on a regular basis. The case law of the ECHR offers guidance on how national judges should deal with these issues. But the decisions of the national (lower) courts are not always in accordance with the ECHR standards. This also applies to the case which is nationally known as the ‘chalet murder’. In this case the Dutch Supreme Court had to decide whether a statement of a witness who was not interviewed by the defense can be used as supporting evidence for a statement of another witness who was also not interviewed by the defense.

Earlier in this case, the court of appeal answered this question affirmative. According to the court of appeal the evidence is not decisively based on the statement of the witness who was not questioned, since the evidence is based on “two independent, incriminating statements”, “which mutually support each other”.

The Supreme Court however overturns this decision in the recent decision of 12 January 2021. The Supreme Court decided that if the conviction is (partly) based upon statements of several witnesses who could not be interviewed by the defense, the aforementioned supporting evidence should be found in other evidence than those statements. The Supreme Court refers to the judgment of the ECHR in the case of Schatschaschwili v. Germany. Partly on the basis of this judgment, the Dutch Supreme Court provided the “roadmap” for the right to interview witnesses in the national context in its judgment of 4 July 2017.

The consideration from Schatschaschwili v. Germany that is particularly relevant is the following:

“In its judgment in Al-Khawaja and Tahery the Court addressed the requirement of the existence of sufficient counterbalancing factors to secure a fair and proper assessment of the reliability of the evidence in the context of cases in which convictions were based solely or to a decisive extent on the evidence of absent witnesses.”

In the present case on the ‘chalet murder’, the court of appeal found that the defense was not able to cross-examine the witnesses, despite their request to do so. Although the court of appeal has ruled that the conviction is not based to a decisive degree on the absent witnesses, the Supreme Court finds that the opposite appears from the reasoning of the court of appeal. The Supreme Court does not accept this, as the decision of the court of appeal implies that the supporting evidence of a non-interviewed witness can (also) be found in a statement of another non-interviewed witness. The Supreme Court overturns the decision and refers the case back to the court of appeal.

In our opinion, this decision of the Supreme Court is correct. The case involves evidence that is not considered sufficiently reliable without supporting evidence. The reliability cannot then be created with other equally flawed (supporting) evidence.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

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