CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 janvier 2021

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margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s78255940 { width:8.55pt; display:inline-block } .s65962656 { width:205.78pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   FOURTH SECTION CASE OF KESKİN v. THE NETHERLANDS (Application no. 2205/16)       JUDGMENT Art 6 §§ 1 and 3(d) (criminal) • Fair hearing • Refusal to call prosecution witnesses of decisive weight for trial’s outcome due to defence’s failure to substantiate request for their cross-examination • lack of counterbalancing factors • Distinct principles applicable to the right to examine, or have examined, prosecution witnesses and to the right to obtain the attendance and examination of defence witnesses • Accused not to be required to demonstrate the importance of a prosecution witness   STRASBOURG 19 January 2021   FINAL   19/04/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Keskin v. the Netherlands, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Yonko Grozev, President,   Tim Eicke,   Armen Harutyunyan,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Jolien Schukking,   Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the application against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a dual Dutch and Turkish national, Mr Vahap Keskin (“the applicant”), on 29 December 2015; the decision to give notice to the Dutch Government (“the Government”) of the complaints concerning the lack of an opportunity for the applicant to examine a number of witnesses in criminal proceedings against him and the summary reasoning employed by the Supreme Court ( Hoge Raad ) and to declare inadmissible the remainder of the application; the fact that although informed of their right to intervene in the proceedings under Article 36 § 1 of the Convention, the Turkish Government did not indicate within the time allowed that they wished to exercise that right; the parties’ observations; Having deliberated in private on 15 December 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the inability of the applicant to cross-examine seven witnesses whose statements were used in evidence in criminal proceedings against him, as well as an alleged lack of reasoning in a judgment of the highest domestic court. The applicant relied on Article 6 §§   1 and 3 (d) of the Convention. THE FACTS 2.     The applicant was born in 1972 and lives in Hengelo. He was represented by Mr Th.O.M. Dieben and Mr R.J. Baumgardt , lawyers practising in Amsterdam and Spijkenisse, respectively. 3.     The Government were represented by their former Agent, Mr   R.A.A.   Böcker, their Agent, Ms B. Koopman, and their Deputy Agent, Ms K. Adhin, all of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Proceedings before the Overijssel Regional Court 5 .     On 30 July 2013 the Overijssel Regional Court ( rechtbank ) convicted the applicant in absentia of having been in de facto control ( feitelijk leiding hebben gegeven ) of the fraud committed by the legal entity Fr., a company, on two other companies, Co. and Jo. In evidence against the applicant, the Regional Court used, inter alia , the statements made to the police by six witnesses – A, B, C, E, F and G –, whose statements, together with that of a seventh witness – D –, were set out in appendices to an official report drawn up by the police under oath ( ambtsedig proces-verbaal ). The applicant was sentenced to nine months’ imprisonment, of which three months were suspended. The Regional Court also ordered the applicant to pay company Jo., which had joined the criminal proceedings as a civil injured party ( benadeelde partij ) and had filed a claim for damages, the amount of 59,300.42 euros (EUR). It imposed on the applicant, by means of a penal compensation measure ( schadevergoedingsmaatregel ), the obligation to pay the same amount to the State, for the benefit of the victim, an obligation which would be replaced by 316 days of detention in the event of non ‑ compliance. Paying the money to either company Jo. or the State would absolve the applicant from the obligation to pay the other. Proceedings before the Arnhem-Leeuwarden Court of Appeal 6 .     The applicant appealed against the Regional Court’s judgment. Although he acknowledged that company Fr. had committed fraud on the two other companies, he contested that he had been in de facto control of that fraud. In the written document setting out the grounds for appeal ( appèlschriftuur ) to the Arnhem ‑ Leeuwarden Court of Appeal ( gerechtshof ) of 7 August 2013, counsel for the applicant stated that he wished to cross ‑ examine, at the hearing or before the investigating judge ( raadsheer ‑ commissaris ), the witnesses A to G whose statements to the police had been used as evidence by the Regional Court. He submitted as regards each of these witnesses that the defence had not yet had an opportunity to examine them, while incriminating statements made by them had been used in evidence against the applicant by the Regional Court. He wished to put further questions to these witnesses in relation to their earlier statements to the police. In particular, he wished to find out from witnesses A, B and F how often they had been in contact with company Fr. between July 2009 and 12 May 2010, and with whom they had been in contact. He wanted to ask witness C to whom he had sold a company named P. and what that company’s equity had been at the time of the sale. Lastly, he wished to know: from witness D, how often he had seen X.Y. (who was the director of company Fr.) or the applicant and in what capacity; from witness E, how often that witness had been in contact with the applicant and X.Y.; and from witness G, how often and where that witness had seen the applicant and X.Y. between July 2009 and 12 May 2010. 7.     The Advocate General, for the prosecution, considered that in view of the reasoning submitted for hearing each of the seven witnesses, the request should be granted. On 20 February 2014 the Court of Appeal nevertheless rejected the applicant’s request for the time being and informed counsel for the applicant that he could repeat the request at the hearing. 8 .     The official record of the hearing ( proces-verbaal terechtzitting ) of 16   September 2014 shows that counsel for the applicant repeated his request to cross-examine the seven witnesses. The Advocate General, for the prosecution, stated that she remained of the view that that request should be granted, as it was well reasoned and the statements of the witnesses at issue had been used in evidence by the Regional Court. The Court of Appeal, however, rejected the request, considering as follows: “As regards counsel’s request for the examination of witnesses [A, B, C, D, E, F and G] ..., the criterion of the interest of the defence ( verdedigingsbelang ) applies. The court finds that the interest of the defence has been insufficiently substantiated in the requests. Having regard to counsel’s explanatory statement in the written document setting out the grounds for appeal, it has not been indicated on what points these witnesses would have made incorrect statements. ...” 9 .     The applicant made a statement at the hearing, in which he said, inter alia : “I did an internship at company Fr. I was approached to do it because I knew X.Y. ... I was in the office sometimes. I do not want to say too much. I have been threatened ... I have never pretended to be X.Y. If [witness D] states that he recognises me as X.Y. from a photograph, I can tell you that this is impossible. X.Y. was the one who was present at the signing of the contract. You are showing me the photographs on pages 106 and 107 of the case file. There is a photograph of me on page 107. There is a photograph of X.Y. on page 106. You observe that there is no obvious likeness between X.Y. and myself. I agree with you. I do not look like him. I do not know anything about the depositing of annual financial statements. I was hired by X.[Y.] ... The activities I carried out for company Fr. consisted, inter alia , of answering the telephone and checking the quality of the fruit. I worked at company Fr. for a few months. About two or three months. ... I do not want to answer the question about whether I had any contact with company Jo. I also do not want to answer the question about whether I noticed anything concerning payment problems. I do not want to say anything about payments in general. ... I do not know why those witnesses state that they have had contact with me. That is simply not true. ... I know there are three witnesses who state that they have had contact with me. They are [witnesses F, D and E]. I can confirm that I have had contact with them. However, I have not pretended to be X.Y. I do not know why they state that I did. ...” 10 .     At the end of the hearing counsel for the applicant stated that he was persisting in his request to cross-examine the seven witnesses. He argued that the applicant denied that he had been in de facto control of the fraud committed by company Fr. and had pretended to be X.Y. Although counsel did not wish to say that the witnesses had lied, he submitted that the situation might have been different from that described in their statements, or more nuanced, which in any event gave rise to many questions. 11 .     On 30 September 2014 the Court of Appeal quashed the judgment of the Regional Court, convicted the applicant of having been in de facto control of the fraud committed by company Fr. on companies Co. and Jo., and sentenced him to six months’ imprisonment. It further ordered the applicant to pay company Jo. the same amount in damages and imposed the same penal compensation measure as the Regional Court had done (see paragraph 5 above). 12 .     In its judgment, in relation to the request to cross-examine witnesses A to G, the Court of Appeal considered as follows: “The court is of the opinion that the interest of the defence has been insufficiently substantiated, therefore the court rejects the request. In addition, the accused invoked his right to silence during the police interviews. At the hearing before the court the accused did not want to reply to specific questions of the court about his activities ( werkzaamheden ) at company [Fr.] No indication has been given regarding on what points the statements made to the police by the requested witnesses would be incorrect, and why. An alternative version of events has not been advanced or made plausible.” 13 .     The Court of Appeal found it established that company Fr. had committed fraud on companies Co. and Jo. and the applicant had been in de facto control of that fraud. It relied on the following evidence. An extract from company Fr.’s registration in the register of companies of the Chambers of Commerce. An amendment to articles of association ( statuten ) dated 4   February 2009 entailing a change in the name of company P. to Fr. A record from the Chamber of Commerce, according to which company Fr. had deposited annual financial statements for the years 2006-2008 in July 2009. A letter from 2010 from company Fr. to company Jo. bearing the former company’s address and the words “Specialised in Eastern Europe for over 20 years”. Email exchanges between company Fr. and companies Jo. and Co. bearing company Fr.’s email address. Printouts of digital money transfers to companies Jo. and Co. bearing company Fr.’s stamp and fax number. Order confirmations sent from company Fr. to company Co. bearing the former company’s stamp and fax number. The statement which witness A had made to the police to the effect that she worked for company Co. in Italy; that contact between companies Co. and Fr. had taken place by telephone and email; that the person at company Fr. with whom she always used to speak had called himself X.Y.; that company Fr. had previously ordered fruit and vegetables from company Co., but after a certain time company Fr. had stopped paying for goods that had been delivered. The statement which witness B had made to the police to the effect that he worked for company Jo. in Spain; that the point of contact at company Fr. for company Jo. had been X.Y.; and that company Jo. had delivered goods to company Fr., but the latter company had failed to pay for them. The statement which witness C had made to the police to the effect that he had been the director of company P. until February 2009, when the shares in that company had been sold to X.Y. and that company P. had deposited with the Chamber of Commerce annual financial statements up to and including 2006. When shown the annual financial statements over 2006, 2007 and 2008 which had been deposited with the Chamber of Commerce on behalf of company Fr., he had observed that the stated equity was much higher than it had been in reality, and that the presence of stocks was mentioned, whereas company P. had not had any stocks. He also wondered how it had been possible for company Fr. to deposit an annual financial statement over 2006 under its name when there had not yet been a company Fr. at that time. The statement which witness D had made to the police to the effect that he was co-director of a company that had previously rented office space to company Fr. When asked who, according to him, was in charge at company Fr., he had replied that this was the person in a photograph shown to him, which was a photograph of the applicant. Witness D had stated that this was the person who would contact him and come to see him whenever there were problems with the payment of the rent. The statement which witness E, an estate agent, had made to the police to the effect that the applicant – to whom he had referred by name – had acted as the spokesperson for company Fr. during negotiations relating to the rental agreement between that company and the company belonging to witnesses D and G. The statement which witness F had made to the police to the effect that, in his capacity as deputy director of company Sch., he had been visited in early January 2010 by a person calling himself X.Y. who had wanted company Sch. to take care of the distribution of goods that had been ordered by company Fr. “X.Y.” had handed him a business card stating that he represented company Fr. “X.Y.” had subsequently always been present to indicate where certain quantities of particular goods should be delivered. When he had been shown a photograph of X.Y., witness F had declared that he did not know the person in the picture. After being shown a photograph of the applicant, the witness had declared that he knew the person in the picture as X.Y. The statement which witness G had made to the police to the effect that he was the director of the company that had previously rented office space to company Fr. and he had had contact with one person working at company Fr., a person who had called himself X.[Y.] He had recognised this man from a photograph of the applicant shown to him; he knew him by his first name, X. This witness had further declared that he would regularly visit company Fr.’s office and would often find three persons there, one of whom was the person featured in the above-mentioned photograph. The statement which the applicant had made at the hearing on 16   September 2014 in which he had said that he had worked at company Fr. as an intern and had been in the office sometimes. He had confirmed that he was the person featured in a photograph shown to him; the Court of Appeal noted that this photograph was the same as the one that had been shown to witness D. When he had been shown a photograph of X.Y., the applicant had agreed that he did not look like X.Y. 14 .     In relation to the evidence, the Court of Appeal held that as regards the methods by which the fraud had been committed ( oplichtingsmiddelen ), inter alia , the false impression had been created that company Fr. was a long ‑ established company. Based on the statement of witness C (see paragraph 13 at point 10), it found it established that the annual financial statements deposited by company Fr. over 2006, 2007 and 2008 had been false. It further noted the accounts of witnesses A and B about monies owed by company Fr. to companies Co. and Jo. which had not been paid. The Court of Appeal considered it proved that the offences had occurred within the domain ( sfeer ) of the legal entity Fr., as orders had been placed with companies Co. and Jo. in the name of company Fr., and the stamp, fax number and address of company Fr. had been used. Lastly, considering the statements by witnesses E, F, and G in conjunction with the statement made by the applicant at the hearing, the Court of Appeal found it established that it was the applicant who had impersonated X.Y. and had been in de facto control of the fraudulent acts committed by company Fr. Proceedings before the Supreme Court 15 .     The applicant lodged an appeal in cassation with the Supreme Court ( Hoge Raad ) in which he complained, inter alia , that by rejecting his request to call witnesses A to G for the reason that the interest of the defence had been insufficiently substantiated, the Court of Appeal had erred in law ( getuigt van een onjuiste rechtsopvatting ), and moreover its rejection and its reasoning on this point were incomprehensible ( onbegrijpelijk ), in view of the submissions made by the defence. As the Court of Appeal had proceeded to use the statements which these witnesses had made to the police in evidence against the applicant, it had failed to ensure that he had a fair trial within the meaning of Article 6 of the Convention. 16 .     The Procurator General ( Procureur-Generaal ) at the Supreme Court did not submit an advisory opinion ( conclusie ). 17 .     On 8 September 2015, providing summary reasoning, the Supreme Court declared the appeal in cassation inadmissible, applying section 80a of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ; see paragraph 21 below). RELEVANT LEGAL FRAMEWORK AND PRACTICE Examination of witnesses in appeal proceedings 18.     In so far as relevant to the present case, a defendant in appeal proceedings may request to have witnesses summoned for examination by indicating in the written document setting out the grounds for appeal which witnesses he or she wishes to have called to the hearing (Article 410 § 3 of the CCP). The Court of Appeal may refuse, by reasoned decision, to make an order to summon the requested witnesses if it finds, inter alia , that it may reasonably be assumed that the defendant will not be prejudiced in his or her defence as a result of that decision (Article 410 of the Code of Criminal Procedure ( Wetboek van Strafvordering ); hereinafter “the CCP”). The manner in which provisions of the CCP relating to the calling and examination of witnesses should be applied, has been set out in case-law of the Supreme Court. Case-law of the Supreme Court relating to requests TO call witnesses 19 .     In a leading judgment of 1 July 2014 (ECLI:NL:HR:2014:1496), the Supreme Court set out broadly how the rules in force under the CCP relating to the calling or examination of witnesses at the request of the defence were to be interpreted. It held as follows, in so far as relevant: “The interest of the defence 2.4.     In principle, the accused has the right to have examined at the hearing all witnesses whose examination he considers to be in the interest of his defence. Under the current Dutch system of criminal procedure, the accused is able to give effect to that right by bringing witnesses to the hearing. Other than that, he is dependent on the Public Prosecution Service, whose tasks include summoning witnesses. The Public Prosecution Service may refuse to comply with a request to call a witness made by or on behalf of the accused. The accused, or counsel on his behalf, may then seek the opinion of the court about that refusal at the hearing. The Public Prosecution Service – [or] in the event of that service’s refusal or omission to call witnesses requested by the defence, the court – may refuse to grant the request on the ground that, inter alia , no prejudice to the defence of the accused will reasonably be caused as a result (hereafter also referred to as ‘the interest of the defence’). 2.5.     In case-law and in legal doctrine, it is accepted that that criterion obliges the Public Prosecution Service and the court, respectively, to assess a request to call witnesses from the point of view of the defence, and having regard to the interest of the defence in the request being granted. This means that it can only then be said that the rejection of the request will not reasonably cause prejudice to the defence of the accused if either the points about which the witness is able to make a statement cannot reasonably be of relevance for any decision to be taken in the criminal case, or if it must reasonably be excluded that the witness would be able to state anything about those points. 2.6.     This regime means, on the one hand, that the Public Prosecution Service and the court, respectively, exercise restraint as regards the use of the power to reject the request. On the other hand, it presupposes that the defence provide adequate substantiation for the request. A rejection of the request is thus perfectly conceivable when the request is not substantiated, or is substantiated so summarily that the court is unable to apply the criterion of the interest of the defence to the request. The defence may be required to substantiate in respect of each of the witnesses it wants to be called why the examination of that witness is important with regard to any decision to be taken in the criminal case pursuant to Articles 348 and 350 of the CCP. Examples in this context are the substantiation of requests for the examination of witnesses for the defence ( getuigen à décharge ) whose statements may support the dispute of the charges, or [requests] for the examination of witnesses against the accused ( getuigen à charge ) who have made statements in the preliminary investigation, in order to test the credibility and reliability of these persons or the statements made by them. ... Review in cassation 2.73.     In cassation proceedings [the focus of the proceedings] is no longer whether or not to call or examine a witness, but exclusively the review of the decisions of the trial courts in that regard. ... 2.74.     It is not possible to complain in cassation proceedings about the correctness of the ... decisions. After all, the Supreme Court cannot assess whether the Court of Appeal was correct in not calling or examining a witness. It is possible to complain in cassation proceedings about the criterion which the Court of Appeal applied and the comprehensibility of the decision. 2.75.     In this connection, reference must be made to section 80a of the Judiciary (Organisation) Act, which entered into force in 2012, and the significance of this provision for the scope of a review in cassation as regards the above-mentioned decisions. Section 80a of the Judiciary (Organisation) Act provides that an appeal in cassation may be declared inadmissible on the ground that the appellant obviously has insufficient interest in the cassation appeal. For that reason, it may reasonably be expected that the defence – in cases where that interest is not obvious – provide an elaboration in the written statement of the grounds for appeal in cassation of what its interest is in the complaint. ... 2.76.     In the assessment of the rejection of a request to call witnesses, the question in cassation proceedings is ultimately whether the decision is comprehensible in the light of, on the one hand, the basis for the request as submitted by the defence, and on the other hand, the grounds on which it was rejected – as though [these reasons] were communicating vessels. ... 2.77.     Taking into account the restraint with which, as a result of section 80a of the Judiciary (Organisation) Act, a review in cassation is to be conducted in respect of cases in which the interest in quashing [a decision] is not obvious, such a review will therefore, more than in the past, focus on the question of whether the decision of the trial court to call or examine witnesses [or not do so] is comprehensible. In this regard, it must be noted that that comprehensibility can only be assessed to a limited extent in cassation proceedings, having regard to the fact that the weighing up and assessment of the circumstances of the case are the preserve of the trial courts.” 20 .     On 4 July 2017, thus after the judgment of the Supreme Court in the present case (see paragraph 17 above), the Supreme Court issued two leading rulings (ECLI:NL:HR:2017:1015 and ECLI:NL:HR:2017:1219) in which it addressed the question – which had arisen in part in response to the Court’s case-law – of how the Supreme Court’s requirements with regard to the substantiation of requests to call and examine witnesses related to a defendant’s right to a fair trial as referred to in Article 6 of the Convention. In so far as relevant, the Supreme Court held as follows: “3.3.1.     Given the autonomous meaning accorded to the term ‘witnesses’ in the opening words and sub-paragraph (d) of Article   6 paragraph 3 of the European Convention on Human Rights (ECHR), any incriminating or exculpatory statement made by any person in connection with a criminal case, such as one contained in an official report drawn up under oath, is, from the perspective of the ECHR, regarded as a statement by a witness within the meaning of that provision. On the basis of that provision, the defence is entitled to a reasonable and effective opportunity to examine (or have examined) witnesses at some stage in the proceedings. Article 6 of the ECHR does not, however, give a defendant an unlimited right to have witnesses examined. 3.3.2.     If the defence has not had a reasonable and effective opportunity to examine (or have examined) a witness, the use of a statement made by that witness may be incompatible with Article 6 of the ECHR. In this connection, the judgment by the European Court of Human Rights (ECtHR) in the case of Schatschaschwili v.   Germany (15 December 2015, no. 9154/10) states as follows: [Citation, in English, of paragraphs 101, 105 (in part), 107, 110 (in part), 113 (case-law references omitted) and 117-18 of the Schatschaschwili judgment.] Case-law of the Supreme Court 3.4.     In its judgment of 1 July 2014 [see paragraph 19 above] the Supreme Court outlined how the national rules currently in force under the Code of Criminal Procedure on calling or examining witnesses named by the defence should be interpreted. ... Further consideration 3.5.     In accordance with the case-law of the Supreme Court, an official report drawn up under oath which contains a witness statement made to an investigating officer may be used as evidence against the defendant by the court. However, this principle applies only in so far as the defendant’s right to a fair trial as referred to in Article 6 of the ECHR is guaranteed. In the ECtHR’s recent case-law on the right to a fair trial, the emphasis with regard to the right to examine witnesses has been on assessing the ‘overall fairness of the trial’, partly by means of several related subsidiary questions formulated by the ECtHR (in paragraph 107 of the judgment in Schatschaschwili v. Germany cited above at 3.3.2). The decisive factor in this connection is whether the trial, judged as a whole, was fair. This can be definitively evaluated only in retrospect. When applying the case-law of the ECtHR in the interpretation of (national) rules concerning the calling or examination of witnesses named by the defence, it should however be borne in mind that the national court must take decisions on the calling and examination of witnesses during the criminal trial itself. 3.6.     Against this background, it is the Supreme Court’s view that, under the rules of Dutch criminal procedure, when the defence asks a trial court to call or examine witnesses, it must substantiate its request to enable the court to assess the relevance of the request in the light of the applicable statutory provisions. This requirement also helps to enable the court to take the right to a fair trial as referred to above into account in its assessment of the request at the earliest possible stage. The reasoning in support of such a request should explain why the examination of each of the witnesses named by the defence is important with regard to any decision to be taken in the criminal case pursuant to Articles 348 and 350 of the CCP. Article   6 paragraph 3 (d) of the ECHR is not an obstacle to the requirement that such a request be substantiated. Nor does the ECtHR’s case-law on the right to examine witnesses dictate the setting of less strict requirements on substantiating a request to call and examine witnesses. After all, the ECtHR’s case-law also formulates the defendant’s obligation to substantiate such a request ‘by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth.’ [A footnote here makes reference to Perna v. Italy ([GC], no. 48898/99, §   29, ECHR 2003 ‑ V), and Poropat v. Slovenia (no. 21668/12, § 42, 9 May 2017)] 3.7.1.     The opening words and sub-paragraph (d) of Article 6 paragraph 3 of the ECHR provide that everyone charged with a criminal offence has the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. In its rules on summoning and examining witnesses, the Code of Criminal Procedure does not distinguish between witnesses for the prosecution and witnesses for the defence, or, to put it in other words, witnesses who (could) testify against the defendant or on the defendant’s behalf. 3.7.2.     As regards the requirements to be met by a request to examine a witness, it makes no difference in principle whether the request concerns a witness for the prosecution or a witness for the defence. As a rule, however, the public prosecutor includes any witness statement made during the preliminary judicial investigation in the case file, in order to indicate, in the light of Article 149a paragraph 2 of the CCP, that in the view of the public prosecutor, the substance of the witness statement could reasonably be relevant for the decisions to be taken by the court. Nevertheless, this does not automatically mean that the examination of that witness would also be significant with regard to any decision to be taken in the criminal case pursuant to Articles 348 and 350 of the Code of Criminal Procedure. Therefore, it is not sufficient, when substantiating a request to examine a witness, simply to state that a statement by that witness was included in the case file. Nor, in the context of appeal proceedings, is it sufficient to state that the court of first instance made use of the witness statement as evidence. Rather, a substantiated request must explain, given that the statement already given by the witness has been included in the case file, why the examination of the witness is relevant. 3.7.3.     If the request to examine a witness concerns a person who has not yet made a statement as part of the preliminary judicial investigation, the reasoning behind the request must relate to the relevance of the witness giving a statement by means of examination to any decision to be taken in the criminal case pursuant to Articles 348 and 350 of the CCP. Specifically, reasons must be given as to why the witness’s testimony could assist the defence in contesting the charges or support a defence or position that relates to one of the other decisions to be taken by the court pursuant to Articles 348 and 350 of the CCP. 3.8.1.     The court’s assessment of whether a request to examine witnesses is properly substantiated and whether it should be granted must be made in the light of all the circumstances of the case, and with due regard for the applicable criterion. If the court denies a request, it must state the factual and/or legal grounds on which its decision rests in the official record of the proceedings or in the judgment. This obligation on the court to give its reasons is based in part on Article 6 of the ECHR. 3.8.2.     In the context of an appeal in cassation, the assessment of the denial of a request to examine witnesses essentially concerns the question of whether the decision was comprehensible in the light of two interconnected elements: on the one hand, the reasoning underpinning the request, and on the other hand, the grounds on which it was denied. 3.9.     As observed at 3.5., the national court takes decisions on calling and examining witnesses during the trial. However, this does not detract from the requirement that, before giving judgment, the court must satisfy itself that the proceedings as a whole have respected the right to a fair trial that is guaranteed by Article 6 of the ECHR. If necessary, it must either proceed ex proprio motu – on the basis of Article 315 paragraph 1, Article 346 paragraphs 1 and 2, or Article 347 paragraph   1 of the CCP – to call and examine one or more witnesses, or it must consider, when deciding on its findings as to whether the charges are proved, what (if any) consequences should be attached to the fact that the defence did not have the opportunity to examine or have examined the relevant witness(es) at any stage in the proceedings, despite undertaking initiatives to that end.” Section 80 a of the Judiciary (Organisation) Act 21 .     Section 80a of the Judiciary (Organisation) Act entered into force on 1 July 2012. In so far as relevant, it provides as follows (references to other domestic legislation omitted): “1.     The Supreme Court may, after taking cognisance of the advisory opinion of the Procurator General ( gehoord de procureur-generaal ), declare an appeal in cassation inadmissible if the complaints raised do not justify an examination in cassation proceedings ( de aangevoerde klachten geen behandeling in cassatie rechtvaardigen ), because the appellant obviously has insufficient interest in the cassation appeal ( klaarblijkelijk onvoldoende belang heeft bij het cassatieberoep ) or because the complaints obviously cannot succeed ( klaarblijkelijk niet tot cassatie kunnen leiden ). 2.     The Supreme Court shall not take a decision as referred to in the first paragraph without first taking cognisance of: ... b.     [in criminal cases,] the written statement of the grounds for the cassation appeal ( de schriftuur, houdende de middelen van cassatie ) ... 3.     The cassation appeal shall be considered and decided by three members of a multi-judge Chamber ( meervoudige kamer ), one of whom shall act as president. 4.     If the Supreme Court applies the first paragraph, it may, in stating the grounds for its decision, limit itself to that finding.” 22.     For relevant domestic case-law and practice relating to the application of section 80a of the Judicial (Organisation) Act, see El   Khalloufi v.   the   Netherlands ((dec.), no. 37164/17, §§ 22-26, 26   November 2019). Possibility to reopen criminal proceedings 23 .     Article 457 of the CCP governs the possible means of obtaining revision ( herziening ) of final domestic judgments. In 2002 a new sub ‑ paragraph was added, in order to create the possibility to reopen criminal proceedings in instances where the Court had found a violation of the Convention. Article 457 provides as follows, in so far as relevant: “1.     Following an application by the Procurator General or by the former suspect in respect of whom a judgment or appeal judgment has become irrevocable, the Supreme Court may, for the benefit of the former suspect, review a judgment entailing a conviction rendered by the courts in the Netherlands: ... b.     on the grounds of a ruling ( uitspraak ) of the European Court of Human Rights in which it has been determined that the European Convention for the Protection of Human Rights and Fundamental Freedoms or a Protocol to this Convention has been violated in proceedings which led to a conviction or a conviction for the same offence, if review is necessary with a view to legal redress as referred to in Article 41 of that Convention; ...” 24 .     It appears from the drafting history of Article 457 § 1 (b) that it was intended for cases where the Court had established that a violation of the Convention had taken place. Creating the possibility of a review of the final domestic judgments would enable reparation of the damage caused by that violation as far as possible (Explanatory Memorandum ( Memorie van Toelichting ), Parliamentary Documents, Lower House of Parliament 2000 ‑ 2001, 27   726, no. 3, p. 1). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 ( d ) OF THE CONVENTION 25 .     The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that he had been denied a fair hearing, in that he had not been afforded an opportunity to put questions to seven witnesses whose statements to the police, incriminating him, had been used against him. Article 6, in so far as relevant, reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” The Government’s request to strike out this part of the application under Article 37 § 1 of the Convention 26 .     On 29 December 2016 the Government submitted a unilateral declaration with a view to resolving the issues raised by this part of the present application. They further requested the Court to strike the application out of the list of cases in accordance with Article 37 of the Convention. The Government submitted that it could not be ruled out that Article 457 § 1 (b) of the CCP (see paragraph 23 above) offered scope for the applicant to apply for a retrial following a strike-out decision of the Court, since that provision required a “ruling” from the Court, a term which might also relate to decisions. It was, however, up to the Supreme Court alone to assess whether any application for a retrial under that provision could be considered well founded. 27 .     The applicant disagreed with the terms of the unilateral declaration. Moreover, he argued that under domestic law, a strike-out decision, unlike a judgment of the Court finding a violation, might not provide grounds for reopening his case at domestic level, which was the main aim of his application. 28.     The relevant general principles on unilateral declarations have been summarised in Jeronovičs v. Latvia ([GC], no. 44898/10, §§ 64-71, ECHR   2016) and Aviakompaniya A.T.I., ZAT v. Ukraine (no. 1006/07, §§ 27-33, 5   October 2017). 29 .     The Court reiterates that, as a rule, where a violation of Article 6 of the Convention is found, a retrial or the reopening of the proceedings, if requested, represents in principle the most appropriate form of redressing that violation (see, among other authorities, Sejdovic v. Italy [GC], no.   56581/00, § 126, ECHR 2006-II, Öcalan v. Turkey [GC], no. 46221/99, §   210 in fine , ECHR 2005 ‑ IV, Cabral v. the Netherlands , no. 37617/10, §§   42-43, 28   August 2018 and Chernika v. Ukraine , no. 53791/11, § 82, 12   March 2020). The Court finds no reason to hold otherwise in the circumstances of the present case, also having regard to the applicant’s submission that the aim he pursued with the present application was the reopening of the criminal proceedings against him (see paragraph 27 above). It is therefore necessary to address the question of whether a procedure by which such a reopening can be requested is available to the applicant. 30.     The Court notes that Article 457 § 1 (b) of the CCP provides for the possibility to reopen proceedings on the basis of a ruling of the Court in which it has been determined that the Convention has been violated (see paragraph 23 above); it further notes that it appears from the drafting history that this provision requires the Court, in that ruling, to have found that a violation of the Convention has taken place (see paragraph   24 above). 31.     The Court therefore cannot agree with the Government’s submissions on this point (see paragraph 26 above) and finds that, under Dutch law, a decision of the Court striking out (part of) an application from its list does not provide the same assured access to a procedure allowing for the examination of the question of whether to reopen domestic criminal proceedings as a Court judgment finding a violation of the Convention (see Van der Kolk v.   the   Netherlands [Committee] , no. 23192/15, § 5, 28 May 2019; and, mutatis mutandis , Aviakompaniya A.T.I., ZAT , cited above, § 38, and Romić and Others v. Croatia , nos. 22238/13 and 6 others, § 85, 14 May 2020). 32.     For the above reasons, the Court cannot find that it is no longer justified to continue the examination of this part of the application. Moreover, respect for human rights, as defined in the Convention and its Protocols, requires it to continue the examination of this part of the application. The Government’s request for this part of the application to be struck out of the list of cases under Article 37 of the Convention must therefore be rejected. Admissibility 33.     The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions (a)    The applicant 34.     The applicant submitted that the Court of Appeal’s rejection of his request to examine the seven prosecution witnesses, for the reason that the interest of the defence had been insufficiently substantiated in that request, was incomprehensible, having regard to the reasons he had advanced in support of the request. Moreover, his case was a typical illustration of a worrying trend in Dutch criminal procedure whereby ever more stringent