Onder 3.24 Parket bij de Hoge Raad 1 november 2022

▪ Possibility for the applicant or defence counsel to question the witness during the investigation stage. These pre-trial hearings are an important procedural safeguard which can compensate for the handicap faced by the defence on account of absence of a witness from the trial ( Palchik v. Ukraine , 2017, § 50). Moreover, the Court has accepted that in exceptional circumstances there may be reasons for hearing evidence from a witness in the absence of the person against whom the statement is to be made on the condition that his lawyer was present during the questioning ( Šmajgl v. Slovenia , 2016, § 63). However, there may nevertheless be circumstances where the defence counsel’s involvement alone may not suffice to uphold the rights of the defence and the absence of a direct confrontation between a witness and the accused might entail a real handicap for the latter. Whether an applicant’s direct confrontation with the witness against him or her was needed, is a matter Guide on Article 6 of the Convention – Right to a fair trial (criminal limb) European Court of Human Rights 99/130 Last update: 31.08.2022 to be determined on the facts of each case on the basis of the Court’s criteria for the assessment of the overall fairness of the proceedings under Article 6 § 3 (d) ( Fikret Karahan v. Turkey , 2021, §§ 39-40);

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