452 Danger of losing evidence

A voorlopig getuigenverhoor can be requested not just for gathering evidence, but also for the purpose of securing evidence, because there is a danger that evidence will be lost. The danger of losing evidence exists if the person of the witness threatens to be no longer available before he can be heard in the principal action. This is first the case if there is a real danger that the witness becomes unavailable. Secondly, loss of evidence exists if there is a real danger or even certainty that the witness will die. There is no longer a danger of losing evidence if a witness has recovered from a lifethreatening disease such as cancer. Thirdly, a danger of losing evidence exists if the witness suffers from a progressive illness that impairs the memory or the physical condition of the witness, which means that it is uncertain whether the witness will be able to give evidence when the witness examinations are held in the principal action. The mere deterioration of the memory of a healthy witness does not constitute a danger of losing evidence.

The establishment of the truth runs a real and direct danger in the case of danger that evidence is lost, because the witness (probably) can no longer be heard at a later moment during the principal action. I therefore consider that the rule that the voorlopig getuigenverhoor can be rejected on the basis of four grounds for rejection should not apply if the court holds that there is a danger that evidence is lost. Alignment should be sought with the German selbständige Beweisverfahren if there is a danger that evidence is lost: a voorlopig getuigenverhoor must be granted, unless the evidence given by the witness in all probability cannot contribute to the decision in the principal action in any way and at any time. An exception should apply in the event giving evidence places such a psychological and/or physical burden on the witness that establishing the truth should give way to the compelling interests of the witness (par. 6.7).