Judgments alerting the legislature

Criminal Division

A court’s own observation
This ruling presents a shining specimen of the interaction between the courts and the legislature. The key issue in this case was whether the court’s own observation of a video or audio recording may be used as evidence.

Article 340 of the Dutch Code of Criminal Procedure provides: ‘the court’s own observation shall be understood to mean the court’s personal observations made during te court’s hearing’. This provision dates back to 1926. A question that often arises nowadays is how a court should handle visual materials, including digital materials. Must these visual materials always be viewed by the court at the hearing even if the materials are already in the file? The pending legislation to modernise the Dutch Code of Criminal Procedure will include separate rules regarding the use of visual and audio recordings (including digital recordings). In anticipation of this new legislation, and keeping in mind the question that arose in this case, the Supreme Court took the opportunity of this judgment to clarify what is within and beyond the scope of the current code. The Supreme Court ruled that the scope of Article 340 of the Code of Criminal Procedure even now permits visual and/or audio recordings to be used as evidence under certain circumstances. The same applies to the court’s own observation outside the context of a hearing. The following conditions must be met in this respect: (i) that recording must be raised as an issue by the court at the hearing, (ii) the defendant/defence counsel and the Public Prosecution Service must have been afforded the opportunity to take cognisance of the recording, for example because it is already in the file, and (iii) neither the defendant nor defence counsel nor the Public Prosecution Service object to the recording being shown or played back at the hearing. The court is required to put an oral statement on the record briefly summarising the content of any visual and/or audio recording which is part of the procedural documents but which is not viewed or heard during the hearing.

Supreme Court 24 September 2019, ECLI:NL:HR:2019:1414