Alinea 117 Parket bij de Hoge Raad 16 december 2003

"32. Here, the Court of Appeal was called upon to examine the case as to the facts and the law. In particular, it had to make a full assessment of the question of the applicant's guilt or innocence. The only limitation on its jurisdiction was that it did not have the power to increase the sentence imposed by the City Court. However, the above-mentioned question was the main issue for determination also before the Court of Appeal. In the circumstances of the present case that question could not, as a matter of fair trial, have been properly determined without a direct assessment of the evidence given in person by the applicant - who claimed that he had not committed the act alleged to constitute the criminal offence) - and by the complainant. Accordingly, the Court of Appeal's re-examination of Mr. Ekbatani's conviction at first instance ought to have comprised a full rehearing of the applicant and the complainant. The limitations on the Court of Appeal's powers as a result of the prohibition of reformatio in pejus related only to sentencing. They cannot be considered to be relevant to the principal issue before the Court of Appeal, namely the question of guilt or innocence. Neither can the fact that the case-file was available to the public.

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