A pragmatic attitude: The right to silence in the Netherlands

DOI10.1177/20322844211028312
Date01 September 2021
Published date01 September 2021
Article
New Journal of European Criminal Law
2021, Vol. 12(3) 389407
© The Author(s) 2021
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DOI: 10.1177/20322844211028312
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A pragmatic attitude: The right
to silence in the Netherlands
Peggy ter Vrugt
Maastricht University Faculty of Law, Maastricht, the Netherlands
Abstract
This article examines the workings of the right to silence in a system, which retains a large number
of the original inquisitorialelements. 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 re-
spective legal provisions. The Netherlands has diligently implemented the relevant EU Directive s
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
suspectsstatements 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.
Keywords
Directive 2016/343, right to silence, Netherlands, police interrogation, phone password
Introduction
The right to silence in the Netherlands was originally derived from the privilege against self-
incrimination, or the nemo-tenetur principle.
1
Initially, the principle against self-incrimination was
not foreseen by the legislator. In the travaux pr´
eparatoires for the 1926 Dutch Code of Criminal
Procedure (DCCP), it was stated that the suspect does not have to cooperatealthough the nemo-
tenetur 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
Corresponding author:
Peggy ter Vrugt, Maastricht University Faculty of Law, Bouillonstraat 1-3, Maastricht 6211 LH, the Netherlands.
Email: peggy.tervrugt@maastrichtuniversity.nl
1. N J¨
org, Het nemo-teneturbeginsel, aantekening 8.1, in AL Melai, MS Groenhuijsen e.a. Tekst en Commentaar:
strafprocesrecht (2016) artikel 29 SV, aantekening 8.
2. Kamerstukken II 1917/18, 77, nr 1, 4 (Parliamentary Documents).
3. Dutch Supreme Court, case of 27 June 1927, NJ 1927, 926 m.n.t. T.
further developed in the famous Mollenvangersjudgement. Here, the Supreme Court ruled that an
order to stand still, under the risk of a criminal sanction, to enable the off‌icer to conf‌irm that the
suspect is engaged in criminal activity would be contrary to the spirit of art 29 of the DCCP and the
new Code of Criminal Procedure in general, as a suspect would then be obliged to contribute to
their own conviction, which would not be in harmony with the spirit of the new DCCP.
4
This case law demonstrates that art 29 of the DCCP and the right to remain silent therein are
based on the principle that the suspect does not have to contribute to their own conviction. By
recognising this, the Dutch Supreme Court seemed to go a step further than the legislator. Whereas
the legislator primarily intended the right to silence to prevent excessive coercion during inter-
rogations, the Dutch Supreme Court seemed to emphasise the autonomous position of the suspect
within the system and explicitly link the right to silence to the nemo-tenetur principle. The rec-
ognition of the link between the right to silence and the nemo-tenetur principle, however, did not
lead the Dutch Supreme Court to interpret the right to silence in such a way as to allow the suspect to
refuse to cooperate with a blood test or a breath analyser test.
5
Instead, the Dutch Supreme Court
adopted a more narrow approach in line with the Saunders judgement of the ECtHR
6
by stating
that the nemo-tenetur principle can only be invoked in case of a criminal charge,
7
and when this
concerns material which is depending on the will of the suspect. This means that where material that
is considered to exist independently from the will of the suspect (e.g. DNA, blood and breath, but
also biometrical information to access a smartphone), the nemo-tenetur principle does not apply, and
the suspect is obliged to cooperate.
8
Due to this narrow approach of the Dutch Supreme Court, the
added value of the nemo-tenetur principle in addition to the right to silence remains unclear.
This article deals with the right to silence in the Netherlands. First, a brief introduction on the
Dutch criminal justice system is provided. Then, the scope of the right to remain silent is analysed
and the legal consequences that suspects face when they invoke the right to silence are discussed.
This article then provides for a critical analysis of the legal rules on suspects interrogations, followed
by an overview of the limitations with regard to obtaining a remedy when procedural safeguards
have been violated. Lastly, the right to silence is discussed in relationship to other procedural
defence rights, particularly the right to legal assistance.
The Dutch criminal justice system
Dutch criminal proceedings are often referred to as moderate inquisitorial with accusatorial fea-
tures.
9
One of the most important inquisitorial characteristics of the Dutch system is that the judge
will conduct inquiries exoff‌icio to establish the truth.
10
As a consequence, the suspect is seen as
a subject of the investigation and as such he is obliged to cooperate with certain investigation
4. Dutch Supreme Court, case of 16 January 1928, NJ 1928, 233.
5. PM van Russen Groen and TB Trotman,Een Zwitserse skileraar en het nemo-tenetur beginselEen stand van zaken,in
PM van Russen Groen, D Schreuders and C Waling(eds), Lets bijzondersWladimiroff-bundel (Sdu uitgevers 2002) 96.
6. Saunders v United Kingdom App no 19187/91 (ECtHR, 17 December 1996) [68]. The distinction between material
independently and dependently from the will of the suspect was f‌irst made by the ECtHR in this case. Although the case
law of the ECtHR is not very clear on this matter, the Dutch Supreme Court has decided to interpret this very narrowly.
7. Dutch Supreme Court, case of 22 June 1999, NJ 1999, 648, [4.1] and [4.5.2].
8. Dutch Supreme Court, case of 21 October 1997, NJ 1998, 173, [5.2] and [5.4].
9. Kamerstukken II 1913/14, 286, nr 3, 55 (Parliamentary Documents).
10. CPM Cleiren, Waarheid in het strafrecht: niet tot elke prijsin CPM Cleiren, RH de Bock and CJM Klaassen (eds), Het
procesrecht en de waarheidsvinding (Boom Juridische Uitgevers 2001) 17.
390 New Journal of European Criminal Law 12(3)

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