Alinea 49 Parket bij de Hoge Raad 9 maart 2021

56. As to any requirement for the defence to substantiate a request to examine prosecution witnesses, the Court reiterates, as already set out in paragraph 44 above, that the underlying principle of the right contained in Article 6 § 3 (d) of the Convention in relation to the examination of prosecution witnesses is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him or her. This principle requires that a defendant be able to test the truthfulness and reliability of evidence provided by witnesses which incriminates him or her, by having them orally examined in his or her presence, either at the time the witness was making the statement or at some later stage of the proceedings (see paragraph 46 above). Therefore, in a situation where the prosecution relies on such a witness statement and the trial court may use that statement to support a guilty verdict, the interest of the defence in being able to have the witness concerned examined in his or her presence must be presumed and, as such, constitutes all the reason required to accede to a request by the defence to summon that witness (see paragraph 45 above).

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