A defendant can be convicted only where the court has become convinced, on the basis of lawful evidence, that the offence was committed. Lawful means the evidence comes from the sources the law recognises; convincing means the court is actually persuaded.
Legal basis
Article 338 of the Dutch Code of Criminal Procedure imposes that double requirement. Article 339 lists the lawful means of evidence: the court’s own observation, statements by the defendant, by witnesses and by experts, and written documents. Article 341(4) prohibits evidence resting solely on the defendant’s statement; Article 342(2) contains the familiar rule unus testis nullus testis: evidence cannot rest solely on one witness’s statement. Article 344(2) makes an exception for an official report by an investigating officer, which can suffice on its own. For witnesses the defence has not been able to question, the requirements formulated by the European Court of Human Rights in Al-Khawaja and Schatschaschwili apply: the more weight the statement carries, the more counterbalancing safeguards are needed.
How it works in practice
The defence rarely focuses on whether something happened, and almost always on whether the evidence meets the statutory test. Hearing witnesses before the investigating judge is the key instrument; requests must be made in good time and with reasons, because the court applies either a necessity or a defence-interest criterion depending on the stage.
Where it goes wrong
Investigative requests are made only at the hearing and refused under the stricter criterion. A second error is not challenging the reliability of a single incriminating statement, which is precisely where the minimum evidence rules bite. Third, digital evidence such as messages from intercepted communication services is accepted without questioning its provenance and integrity.
Related terms
Evidence connects to the right to silence, to procedural defects and to the summons.
Are you standing trial? Our criminal lawyers test the evidence against the statutory minima.
