Rights Court Balks at Off-Limits Witnesses in Dutch Trial

Vahap Keskin should have been allowed to cross-examine the witnesses who testified against him at his trial in absentia, according to the ECHR.

The European Court of Human Rights in Strasbourg, France. (Photo via CherryX/Wikipedia)

STRASBOURG, France (CN) — A man convicted of fraud in the Netherlands should be given a new trial, the European Court of Human Rights ruled Tuesday, flagging the Dutch court’s bar against witness cross-examination.

Vahap Keskin had been tried in absentia in 2013, and the European Court of Human Rights, or ECHR, ruled that the Netherlands violated fair trial rights when an appeals court denied his request to cross-examine seven witnesses who testified against him.

“It cannot be said that the Court of Appeal established good factual or legal grounds for not securing the attendance of prosecution witnesses,” the seven-judge panel wrote. 

It’s unclear from court filings why Keskin was initially tried in absentia, but he was found guilty there in part based on the testimony of seven witnesses who testified that he was responsible for a fraud. Keskin was ordered to pay 59,300.42 euros ($70,000) in damages and sentenced to nine months in prison. 

Keskin acknowledged on appeal that fraud had occurred but said he was not responsible. “I do not know why those witnesses state that they have had contact with me. That is simply not true,” he told the Arnhem‑Leeuwarden Court of Appeal in 2014. 

An adviser to the court agreed that Keskin’s lawyers should be able to cross-examine the witnesses but the court itself rejected his request. “The court is of the opinion that the interest of the defence has been insufficiently substantiated, therefore the court rejects the request,” the appellate court wrote. The Dutch Supreme Court denied a request to hear the case and Keskin filed a complaint with the ECHR, claiming that he did not get a fair trial. 

The Strasbourg-based court was created by the 1953 European Convention on Human Rights and hears cases on political freedom and human rights.

It said Tuesday Keskin’s requests to cross-examine witnesses “were not rejected on grounds such as death or fear, absence on health grounds or the witnesses’ unreachability, nor on grounds related to the special features of the criminal proceedings; the Court of Appeal’s sole justification for the rejection of the requests lay in its finding that the applicant had failed to substantiate the defense’s interest in the examination of these witnesses.”

The seven people had given their statements to the police and those statements were submitted as evidence in the original trial. The appeals court ruled that Keskin did not prove that cross-examining those witnesses would have led to an acquittal. 

The ECHR noted that this decision was in line with an earlier Dutch Supreme Court decision on substantiating requests to cross-examine witnesses and wrote: “The Court takes this opportunity to reaffirm the general principles relating to the right of an accused to examine or have examined witnesses against him or her from which it follows that the interest of the defense in being able to have those witnesses examined in its presence must in principle be presumed.” 

In the application to the court, Keskin’s lawyers claimed that “his case was a typical illustration of a worrying trend in Dutch criminal procedure whereby ever more stringent requirements were imposed on the defence to substantiate requests to call witnesses and obtain their attendance at trial.” 

The ECHR recommended that Keskin be given a new trial. “The reopening of the domestic proceedings at the request of the interested person would be the most appropriate way to redress the violation,” the court wrote. Although the ECHR has no mechanism to force a country to offer a new trial, it noted that the Netherlands does have a procedure to do so.

The court also awarded Keskin 692.65 euros ($850) for legal fees. 

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