Onder 3.24 Parket bij de Hoge Raad 1 november 2022

▪ The defendant must be afforded the opportunity to give his or her own version of the events and to cast doubt on the credibility of the absent witness. However, this cannot, of itself, be regarded a sufficient counterbalancing factor to compensate for the handicap under which the defence laboured ( Palchik v. Ukraine , 2017, § 48). Moreover, domestic courts must provide sufficient reasoning when dismissing the arguments put forward by the defence ( Prăjină v. Romania , 2014, § 58). In this connection, the Court has not been ready to accept a purely formal examination of the deficiencies in the questioning of witnesses by the domestic higher courts when their reasoning could be seen as seeking to validate the flawed procedure rather than providing the applicant with any counterbalancing factors to compensate for the handicaps under which the defence laboured in the face of its inability to examine a witness ( Al Alo v. Slovakia , 2022, § 65). Also, in some instances, an effective possibility to cast doubt on the credibility of the absent witness evidence may depend on the availability to the defence of all the material in the file related to the events to which the witness’ statement relates ( Yakuba v. Ukraine , 2019, §§ 49-51).

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