A pragmatic attitude: The right to silence in the Netherlands

Peggy Ter Vrugt

doi:10.1177/20322844211028312

Abstract

This article examines the workings of the right to silence in a system, which retains a large number of the original ‘inquisitorial’ elements. The right to remain silent was and is a highly contested issue in the Netherlands, which is reflected in the fragmented and often contradictory nature of the respective legal provisions. The Netherlands has diligently implemented the relevant EU Directives and the ECtHR case law in legislation and/or through case law, including the case law on adverse inferences. However, tensions with the right to silence arise indirectly through legislative provisions and case law. Relevant examples are the provisions on interrogative pressure, on the use of suspects’ statements made before invoking the right to silence and on the provision of access to digital data (such as phone passwords) by suspects for the purposes of investigation.

Highlights

The right to silence in the Netherlands was originally derived from the privilege against selfincrimination, or the nemo-tenetur principle.[1]
In the travaux preparatoires for the 1926 Dutch Code of Criminal Procedure (DCCP), it was stated that the suspect ‘does not have to cooperate’ the nemotenetur principle as such was not explicitly mentioned.[2]
The privilege against self-incrimination was recognised for the first time in the case law of the Dutch Supreme Court in a case of 1927,3 and it was

Summary

Introduction

The right to silence in the Netherlands was originally derived from the privilege against selfincrimination, or the nemo-tenetur principle.[1]. According to Dutch case law all questions asked to a person designated as a suspect, by investigating officers, concerning that person’s involvement in a criminal offence are to be regarded as an interrogation.[21] the right to silence is most relevant during the investigative stage, it applies throughout the entire criminal proceedings, that is, during court hearings.[22]. See art 273(2) of the Dutch Code of Criminal Procedure Investigating officers using their control powers – for example, the police monitoring compliance with the Traffic Act or when conducting customs control – have a compulsory obligation to provide caution when they are interrogating a person. See : Dutch Supreme Court, case of 20 February 2018, ECLI:NL:HR:2018:247, Dutch Supreme Court, case of 16 April 2013, ECLI:NL:HR:2013:BY5706 and Dutch Supreme Court, case of 20 February 2018, ECLI:NL:HR:2018:247 [3.3]

29. For instance

Findings

Conclusion