Article 6 of the European Convention on Human Rights stipulates that defendants in criminal proceedings must be given a fair trial. Part of the right to a fair trial is the right to question witnesses. This makes sense. Witness testimony can make the difference between an acquittal and a proven conviction, and the right of questioning should in principle not be withheld from the defence.
Yet practice shows that the exercise of this right is not so self-evident. Before 2021, requests to examine witnesses who had made incriminating statements against an accused were sometimes rejected because the defence had not sufficiently explained why the examination of these witnesses was important for the decision to be made by the court later. Since the Keskin judgment of 2021, requests to question witnesses who have made a statement that could be used against the accused no longer have to be explained. According to the European Court, it is self-evident that a defendant has an interest in hearing these witnesses.
Yet the debate with regard to hearing witnesses has not ended. Last year, requests to hear witnesses were refused in three different cases in different courts. Although the witnesses had made incriminating statements, the requests were rejected by the courts because the requests were made too late, namely at the substantive hearing.
On 14 October last, the Supreme Court outlined a framework under which such requests may be rejected. Essentially, a request may not be rejected only if exercising the right to interrogate would lead to too much delay of the criminal proceedings. Only if the defence has previously expressed its wish to waive the right to interrogation could the court reach a rejection. Although the defence could, of course, change its mind, the bar for granting it would then be a lot higher. If the court or court is not impressed by the defence's explanation of why it changed its mind, the court may rule that the defence has forfeited the right to interrogation. In doing so, however, the court must consider whether the accused had a fair trial overall. This discussion is also likely to continue at the European Court of Human Rights.
Thus, to avoid the risk of certain requests for questioning being rejected at the hearing, the defence should make timely decisions as to which witnesses to hear. The consequence of this ruling could be that requests will be made earlier by the defence to hear certain witnesses. Even if there are still doubts about the desire to hear these witnesses. Withdrawing a request for questioning is usually simpler than a request to still hear a witness.
Mr. D.M. Penn