Criminal Justice in Europe: A Comparative Study

By Phil Fennell; Christopher Harding et al. | Go to book overview

change its mind at a later stage when it considers the summons 'without merit' or 'superfluous?61 In cases where the statements of witnesses abroad have been used, Dutch case law reverses the order given by the European human rights case law. Instead of trying to come as close as possible to the 'normal' situation and inviting the witness to come to the court-room in the Netherlands, it regards the hearing of the witness abroad as priority.62 In this respect Dutch practice is not in accordance with the requirements of Article 6. The fact that the witness resides abroad as such cannot be seen as an impossibility in the sense of the Asch judgment. Various mutual assistance treaties give the Dutch authorities the opportunity to hear the witness in the presence of the accused. In some recent decisions, the Supreme Court has required efforts to be made to reach the witness abroad.63 These decisions appear to indicate a hopeful development.


CONCLUSION

In England and Wales, the defendant generally has a right to confront and examine an identified witness in open court. However, in the Netherlands more reliance is placed on written testimony; the right of the defendant to examine a child witness, an intimidated witness, or a witness abroad is frequently restricted to the submission of written questions. These differences cannot be attributed solely to the legal systems' interpretation of, and compliance with, the provisions of Article 6. It is argued that the fundamental difference lies in the historical development of the systems and the distinction between the adversarial and inquisitorial mode of trial and the way in which the truth is established (see Chapter 3).

In the common law system, the trial is the focal point of the whole procedure and the decision-makers come unprepared to the trial. As a result, those who prepare the trial--the parties--have to present the evidence to the decision-maker. This explains why live testimony and oral communications are preferred.64 In England and Wales the principle of open justice, the strong oral tradition, and rule against hearsay are themselves generally sufficient to ensure compliance with Article 6, and measures taken to protect witnesses are comparatively limited. However, in the Netherlands, the procedure is hierarchical and sequential. At each successive stage the dossier is taken as the starting point. The Dutch system relies on the skill and

____________________
61
HR, 13 March 1979, [ 1979] NJ 268.
62
This may be caused by the fact that it often concerns witnesses against the defendant, which were heard during the investigative stage of the proceedings: see, e.g. European Commission, T v. Netherlands, App. 13143/87, 9 November 1989.
63
HR, 2 June 1992, [ 1993] NJ 119; HR, 29 September 1992, [ 1993] NJ 222.
64
Mirjan Damaška, Two Faces of Justice and State Authority ( New Haven, Conn.; Yale University Press 1986), 65 et seq.

-299-

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