Het voorlopig getuigenverhoor (BPP nr. XVII) 2015/451:451 Other compelling interest

Het voorlopig getuigenverhoor (BPP nr. XVII) 2015/451

451 Other compelling interest

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

The guideline for the elaboration of the ground for rejection is that there must be considerable objections against granting the voorlopig getuigenverhoor. This ground for rejection must be interpreted in the same manner as the ground contrary to the principles of due process (less strict than abuse). I am of the opinion that this ground can play a useful role if there are problems with the person of the witness that were already brought to the attention of the court during the handling of the application (par. 10.2).

A compelling interest may exist in the following cases, which are not intended to constitute an exhaustive list:

(a)

reliance on the right to refuse to give evidence/duty of confidentiality that was announced. Following the appearance of a witness, it is in principle up to the delegated judge to render a decision in the event a witness claims to have a reason for not testifying or for not answering certain questions. However, the court may assume the existence of another compelling interest if it seems likely in advance that a witness will not make a substantive statement. Whether a different compelling interest actually exists in a specific case depends on the circumstances. The reason why a witness is of the opinion that he or she is not required to give evidence or to give only partial evidence is of particular importance in that connection (par. 10.3.2).

(b)

agreement not to use the statement of a particular witness (par. 10.3.3).

(c)

the other party is able to demonstrate that the witness is not able to give evidence on medical grounds. This would appear to me to be a compelling factor for not ordering a voorlopig getuigenverhoor with respect to the witness involved especially if the physical or mental limitation is of a temporary nature and the witness will be able to give evidence later in the principal action (par. 10.3.4).

(d)

the (emotional) burden placed on the witness. Giving evidence may place an unreasonable burden on a witness, depending on the circumstances of the case (whereby the interests of the parties are taken into account as well)(par. 10.3.5).

(e)

the witness or other persons run a real, physical danger if the witness gives substantive evidence and practical measures cannot avert that danger. I am of the opinion that hearing witnesses whose identity is unknown (anonymous witnesses) should in principle also be possible within the context of a voorlopig getuigenverhoor. The court should know the identity of the anonymous witness and the other party of the party that calls the witness should be afforded sufficient opportunity to examine the anonymous witness as effectively as possible (par. 10.3.6).

Deze functie is alleen te gebruiken als je bent ingelogd.