Witnesses and their statements are very important for assessing cases, both in civil disputes and in criminal proceedings. They are essential for reconstructing events as they actually took place. The importance of a witness statement can hardly be overestimated. It gives the court a direct view of the actual situation, through the eyes of someone who was there. Witnesses therefore play an indispensable role in the legal system. Their statements contribute to establishing the truth and to justice. This page describes the situation in the Netherlands.
How testifying works
How and when a witness gives a statement depends on the stage of the case and the context.
Witnesses during the police investigation
When a criminal offence is suspected, the police carry out an investigation and look for evidence. In doing so, the police can sometimes call on witnesses. The police then write down the witness statement. After the interview at the police station, you are asked to read this statement, pass on any comments and sign the statement. The police can also ask you to come to the station to identify the suspect. This is done through a one-way mirror (identity parade). The police can decide to let the case rest or can send the file to the public prosecutor (officier van justitie), who has to decide whether someone will be prosecuted. If the public prosecutor decides not to prosecute, this is called a dismissal (seponeren). Sometimes the public prosecutor can offer the suspect an out-of-court settlement (transactie).
Witnesses before the examining magistrate
The public prosecutor can decide that additional investigative measures are needed that go further than the police investigation. The examining magistrate (rechter-commissaris) must give permission for this. The examining magistrate can, for example, summon a witness to answer questions. While the witness gives evidence, a court clerk (griffier) writes down what is said. The suspect's lawyer can also ask questions. It is possible to ask the examining magistrate for the assistance of an interpreter. In principle, the suspect will know the identity of the witness. Sometimes witnesses are seriously threatened. In that case there is a special procedure and the identity is kept secret from the suspect's lawyer and the suspect themselves. It is then also not necessary to appear at the public court hearing.
Witnesses at the hearing
Anyone who has given evidence before the examining magistrate usually does not have to come to the court hearing. Sometimes it is decided that the account does need to be repeated at the court hearing. This can happen at the request of the public prosecutor. This is called a witness for the prosecution (getuige à charge). In this case, the witness has an incriminating statement that can be used against the suspect. In addition, the witness can be called by the suspect and their lawyer. This is then a witness for the defence (getuige à décharge), a witness who can be useful in defending the suspect. Both witnesses are summoned by the public prosecutor. People also sometimes speak of an incriminating statement and an exculpatory statement. Here, too, it is possible to get the assistance of an interpreter.
Testimony during the hearing is public testimony that anyone can attend, including journalists. Only by way of exception is it decided to hear the case behind closed doors. The witness can also ask for the case to be heard behind closed doors. On the day of the court hearing, you are allowed to bring someone with you to the hearing. The witness reports to the porter, who tells them where to go.
During the examination of the witness, the judge establishes the identity of the witness and asks about their occupation. The witness then takes the oath or makes the affirmation that they will tell the whole truth and nothing but the truth (Article 290 of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv)). The examination then starts and the witness may tell their story. Questions can also be asked. Usually these concern an explanation of matters the witness previously told the police or the examining magistrate.
Witnesses on appeal
It is possible that the suspect or the public prosecutor lodges an appeal. Other judges (raadsheren) then look at the case again. In principle, the decision to appeal must be made within fourteen days of the judgment. Usually no witnesses are called at that stage, because the earlier testimony is used. Sometimes, however, the court of appeal (gerechtshof) may decide to call witnesses after all, for example if someone has not previously been heard by the district court. In practice, a lot of time often passes between the events and the moment someone has to testify before the court of appeal. As a result, people sometimes no longer remember clearly what happened. The witness may say so honestly during the testimony.
Witnesses to official deeds
In addition to testifying in criminal proceedings, you sometimes also have to be present as a witness to an official deed. At a formal marriage ceremony, for example, two to four witnesses are needed. Some notarial deeds may also require witnesses to be present. In that case, the notary's office often uses employees of its own office as witnesses. This is permitted.
Liability and the witness statement
In liability cases, a witness statement is sometimes requested as well. This is the case, for example, with a road traffic accident. Witnesses, such as a passenger or an independent witness who saw the accident happen, will then be asked to give a written statement. It is important that this statement includes, among other things, the date and place where it was drawn up. Such witness statements can be used in discussions with the car insurer or can be added to the file, and they can also be very valuable. It is important that this witness statement is truthful and based on the witness's own observations.
Obliged to testify or not
Witness statements play an important role in investigating criminal offences and in reaching a fair judgment. Witnesses can help to establish the truth. In some cases you are obliged to testify, and sometimes you can invoke the right to refuse to give evidence (verschoningsrecht). The witness receives a summons to give a witness statement through a writ of summons (dagvaarding) or a bailiff (deurwaarder). The summons states the consequences if the witness does not turn up, where and when they must testify and which facts they may be asked about. The employer is obliged to give the witness the opportunity to go and testify.
| Situation | Obliged to testify? |
|---|---|
| Interview by the police | No |
| Summons by the examining magistrate in a criminal case | Yes, unless the right to refuse to give evidence applies |
| Summons for the hearing in a criminal case | Yes, unless the right to refuse to give evidence applies |
| Summons as a witness in a civil case | Yes, unless the right to refuse to give evidence applies (Article 165 Rv) |
| Witness at a wedding or to a notarial deed | No, that is a voluntary role |
Witnesses at the police station
Anyone who witnesses a criminal offence may be approached by the police to share their observations. Although that cooperation can be of great importance to the investigation, you are not legally obliged to give a witness statement at the police station. The witness is free to decide whether or not to provide information. It is advisable to write down the name of the police officer concerned for any later contact. The witness may, for example, change their mind later or remember something new.
Witnesses during the preliminary investigation or the hearing
The situation changes when a judge summons the witness, either during the investigation by the examining magistrate or during the hearing before the criminal court. In these cases, the witness is legally obliged to appear and testify. Ignoring a summons can lead to coercive measures by the police to ensure attendance. Refusing to answer can in certain cases lead to detention to compel testimony (gijzeling), if this is urgently necessary for the investigation. In principle, minor witnesses are not heard during the hearing, but during the preliminary investigation before the examining magistrate or at the police station.
The right to refuse to give evidence and not testifying
There are exceptions to the obligation to testify. This is known as the right to refuse to give evidence (verschoningsrecht). Who can invoke it differs per procedure.
- Criminal case: relatives of the suspect (blood relatives or relatives by marriage in the direct line and in the collateral line up to and including the third degree) and the (former) spouse or registered partner (Article 217 Sv); anyone who is bound to secrecy by virtue of their profession or office, such as doctors and lawyers (Article 218 Sv); and anyone who would expose themselves or a close relative to the risk of a criminal conviction (Article 219 Sv).
- Civil case: the (former) spouse, registered partner or life partner of a party and blood relatives or relatives by marriage of a party up to and including the second degree, anyone who is bound to secrecy by virtue of their office or profession, and anyone who would expose themselves or a close relative to the risk of a criminal conviction (Article 165 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, Rv)).
The right to refuse to give evidence must be actively raised during the court case; the judge does not do this for the witness.
This is how testifying at the hearing works
- Receive a summons
The witness receives a summons stating where and when they must testify and what the consequences are if they do not come.
- Report to the court
On the day of the hearing, the witness reports to the porter. You are allowed to bring someone with you.
- Identity, oath or affirmation
The judge establishes the identity and asks about the witness's occupation. The witness then takes the oath or makes the affirmation.
- Examination
The witness says what they observed and answers questions. Where it applies, the witness can invoke the right to refuse to give evidence.
- Allowance
Afterwards, the witness can receive an allowance for time, travel expenses and necessary costs.
Taking the oath and perjury
It is important that a witness statement is the truth. That is why witnesses must first take the oath, promising to tell the truth. Anyone who takes the oath and then lies commits perjury (meineed). Perjury is a criminal offence (Article 207 of the Criminal Code (Wetboek van Strafrecht)). It carries a prison sentence of up to six years or a fine of the fourth category. For perjury in criminal cases, this can even rise to a prison sentence of nine years or a fine of the fifth category. Anyone under the age of sixteen does not have to take the oath, but is urged to tell the truth. If the judge believes perjury has been committed, the judge will order an investigation into perjury during the hearing. The public prosecutor and the suspect can also ask the judge to include an investigation into perjury.
Detention to compel testimony (gijzeling)
Anyone who refuses without lawful grounds to answer questions or to take the oath or make the affirmation can be taken into detention to compel testimony (gijzeling). This means that the witness is held until they give a statement after all.
- Criminal case, at the hearing: the court can order detention for a maximum of thirty days if this is urgently necessary for the investigation. There is no legal remedy against this order; however, the witness can ask to be released from detention and can appeal against a refusal (Articles 294 and 223 Sv).
- Criminal case, before the examining magistrate: the examining magistrate can order detention, after which the court decides within two days; the detention lasts a maximum of twelve days each time and can be extended (Articles 221 and 222 Sv).
- Civil case: at the request of a party, the judge can order detention, at that party's expense, for a maximum of one year (Article 173 Rv).
The judge sets a new time at which the witness will be heard again.
Tips for a good witness statement
When taking a witness statement, it is important that it is accurate and reliable and is steered as little as possible. These tips will help.
- Let the witness speak freely: It is important that the witness gets the opportunity to tell their story without interruptions. This encourages a complete and undisturbed recollection of the events.
- Record basic details: Write down who was spoken to and the date and location of the conversation.
- Avoid suggestions: Do not interrupt the witness with your own interpretations or suggestions. This can influence the witness's memory and reduce the accuracy of the statement.
- Encourage precision, not speculation: Encourage the witness to give as many details as possible, but emphasise that guessing is not necessary. It is better to say that you do not know something than to give uncertain information.
- Consider an audio recording: A statement can also be recorded through an audio recording, for example with a smartphone. This provides an unaltered and direct record of the testimony.
- Focus on facts: Advise the witness to stick to what they observed directly, without adding information heard from third parties. This helps to keep the statement pure and objective.
- Take statements individually: If there are several witnesses, take a statement from each of them separately. This prevents influence and ensures that each testimony is unique and independent.
Reimbursement of costs for a witness statement
A witness has to be present at the hearing and has to travel to the court. This means they cannot work or, for example, have to arrange a babysitter for the children. To help with the costs of appearing before the judge, the witness is entitled to an allowance, for example for the time spent, travel expenses and having to take time off work.
Witness in a civil case
After the examination, the judge asks whether the witness wants an allowance; anyone who refuses cannot change their mind later. If the witness was summoned by a party, that party pays the allowance. If the judge summoned the witness, the State pays (rechtspraak.nl). If the witness lives too far away, the judge can have the examination carried out by a judge near the witness's place of residence (Article 174 Rv).
Witness in a criminal case
If the criminal court hears witnesses at the request of the suspect, the government pays the costs of those witnesses: an allowance for the time spent, travel expenses and any additional necessary costs (rechtspraak.nl).
Reimbursement of witness statements by legal expenses insurance
Legal expenses insurance reimburses various legal costs, including the costs of witnesses. In legal proceedings, witnesses can be crucial in supporting a case, but calling witnesses also involves costs. Think of travel expenses and compensation for lost working time. The costs of a professional witness or expert in particular can be high. In these cases, legal expenses insurance can offer a solution by covering not only the costs of legal assistance, but also these additional costs for witnesses. This ensures that policyholders have the best possible access to all the resources they need to strengthen their case.
Frequently asked questions about witnesses and witness statements
Witnesses play a crucial role in the legal process. Their statements can influence the outcome of court cases and are essential when carrying out official acts, such as a marriage. Below are answers to some frequently asked questions about the role of witnesses and the requirements a witness statement must meet.
When is a witness statement valid?
A witness statement is valid when it has been given voluntarily and knowingly, preferably in writing or possibly through audio and/or video recordings. Ideally, the witness statement is also signed by the witness.
Why do there have to be witnesses at a wedding?
Witnesses at a wedding provide the legal confirmation of the ceremony and confirm that the marriage was entered into voluntarily and knowingly by both parties.
What is a witness statement?
A witness statement is a formal account in which a witness describes what they saw, heard or experienced in relation to a specific event or situation.
How old does a witness have to be?
For a wedding or a registered partnership, the witnesses must be eighteen years of age or older. In criminal cases, minor children can also be called as witnesses. Minor children are, however, given extra protection. For example, it may be decided that the minor will be examined in a separate room and not in the courtroom.
What is a witness for?
A witness serves to give an objective account of events and can help verify facts and circumstances in legal proceedings or on formal occasions.
Why is a witness not allowed to lie?
Lying as a witness undermines the course of justice and can lead to legal consequences, such as a prison sentence or a fine. The integrity of testimony is essential for fair and accurate administration of justice.
Is a witness statement public?
This depends on the case and the legal context. In principle, a court hearing is public, so the witness statements given there are public too. In some cases it may be decided to depart from this and hear the case behind closed doors.
What requirements must a witness statement meet?
A witness statement must be accurate, complete and truthful. Ideally, it contains specific details about the time, place, people involved and the event itself.