1. A little over twelve years ago the Kingdom of the Netherlands ratified the European Convention of Human Rights and its First Additional Protocol. This study constitutes an inquiry into the application in the Netherlands of the rights guaranteed by the Convention and the Protocol, the influence they have exercised on the State organs that create or apply the law and their impact on the Dutch legal order in general. Such a study is the more called for, since the self-executing provisions of the Convention and Protocol, after publication, are directly applicable in the municipal legal order of the Netherlands, without any transformation or incorporation into national law being necessary. Moreover, these provisions take precedence over any contrary provisions of municipal law, whether enacted before or after the coming into force of the Convention. It can thus be said that the Dutch legal system— which will be explained hereafter in greater detail—perhaps more than that of any other Party to the Convention allows those falling within its ambit to profit from the rights and freedoms which the Convention extends. It will be interesting to note to what extent actual practice in the Netherlands with regard to the Convention conforms to this theory. A survey of Dutch practice would moreover also allow of comparisons with that in other States parties to the Convention.

The purpose of this chapter is to examine in what way evidence conflicts are actually solved in the United States and in the Netherlands and to see whether application of the harmony-concern-reliance test leads to more satisfactory results. Each of the following sections commences with a discussion of Dutch law, then turns to American law, and concludes by suggesting in a “resolution” what seems the best solution. In Chapter V these resolutions will be comprised to a set of rules.