WHAT DOES THE EXAMINATION OF WITNESSES MEAN IN THE NETHERLANDS?
As is inherent in basically every court proceeding, evidence plays a key role in Dutch civil proceedings, too. Under Dutch procedural law, evidence includes witness evidence, which can either be submitted in writing by means of witness statements or be obtained by an examination of witnesses during an oral hearing. The right to submit witness evidence is a general and fundamental principle in Dutch law of civil procedure. Therefore, a court can reject the witness evidence offered only on relevant and sufficient grounds, which is highly exceptional. This article addresses the question how the examination of witnesses in the Netherlands works and when a witness examination should be requested before a Dutch court.
can i be SUMMONED AS A WITNESS IN THE NETHERLANDS?
First, the parties explain how they intend to provide evidence. Parties may wish to submit witness evidence. Subsequently, witnesses are summoned, and witness hearings are scheduled. Then, the opposing party can submit evidence in rebuttal. The examination of witnesses is recorded in the minutes, which are sent to the lawyers after the hearings.
Persons who can provide evidence in a case that is dealt with before a civil court in the Netherlands, may be ordered by that court to appear in court on a certain date and give evidence. This applies also to persons who are not a resident of the Netherlands. Persons that have been summoned as a witness in a civil case are usually obliged to appear. In relation to this, if an employee is summoned to appear in court to provide witness evidence, their employer is obliged to give the employee the opportunity to attend the examination of the witness. If a witness cannot come, for example due to illness, the court must be informed in advance. In such an event, the court can then decide that the hearing will be rescheduled.
the EXAMINATION OF WITNESSes: HOW IT GOES in practice
When a witness is called the judge, a court employee will guide them to the courtroom. If there are more witnesses to be heard, each of them is examined individually by the court. Hence, in general, no other witnesses are in the courtroom during the witness examination. The witness is first asked to state their name, date of birth, profession, and place of residence. Further, they must explain their relationship to the parties. Witnesses of 16 years or older, are requested to take an oath. Under oath, a witness must answer all the questions truthfully. Giving false statements under oath (that is, perjury) is a punishable offence in the Netherlands.
The examination starts with questions about what the person saw or heard as a witness. The witness can describe the facts of the case as experienced by them. When the court has finished its questions, also the parties have the opportunity to examine the witness about the facts of the case. During the statement of the witness, the court will record the statements in the minutes and at the end of the examination proceed to the reading of their depositions to the witnesses. If a witness agrees with the content of the statement, they can sign it on the spot. Further, witnesses are compensated for lost time, and they receive travel expenses and any other necessary expenses. These costs are paid by the party who summoned the witness in the proceedings.
REQUEST FOR THE EXAMINATION OF WITNESSES by a Dutch lawyer
Under Dutch law, a lawyer can also request the examination of witnesses in civil proceedings even before court proceedings are initiated. In that case, a judge will decide whether to grant the request. This preliminary examination of witnesses is regulated in Article 186 of the Dutch Code of Civil Procedure. A preliminary examination of a witness enables the party requesting it to clarify certain facts before the proceedings are initiated. In this way, the chances of a court case can be assessed more adequately. A request for a preliminary examination of witnesses must be clear and unambiguous. The request has to address the importance and relevance – or even necessity – of the witness evidence as well as the facts and allegations that the witness is asked to testify about. It must be clear that the examination of the witness contributes to the claims at stake. Besides the request for a preliminary examination of witnesses, a lawyer can also request that the
hearing be held behind closed doors. Especially in family matters such a witness hearing behind closed doors may be preferred above public hearings. Our Dutch lawyers can also substitute scheduled witness hearings of a foreign matter before a court in the Netherlands.
Besides the examination of witnesses during an oral hearing, it is also possible to submit only written witness statements to the court. In particular in cross-border matters this opportunity has the advantage that witnesses do not have to attend a witness hearing in person before a Dutch court.
NO WITNESS EXAMINATIONS IN DUTCH PROCEEDINGS for interim measures
Under Dutch law, examinations of witnesses are not possible in the context of proceedings for interim measures. Such proceedings are intended to proceed quickly in cases where there is an urgency to protect certain rights and interests and to avoid or terminate an infringement of rights and interests. Consequently, the nature of proceedings for interim measures is incompatible with time-demanding witness hearings.
DUTCH LAWYER SPECIALIZED IN THE EXAMINATION OF WITNESSES
Do you have questions about Dutch procedural law or do you need specific legal support in the Netherlands for an examination of witnesses before a Dutch court? Our Dutch lawyers in the Netherlands will be happy to help you.
T: +31 (0)20 – 210 31 38
E: mail@maakadvocaten.nl
Contact: Remko Roosjen | Dutch lawyer specialized in the examination of witnesses