further developed in the famous ‘Mollenvangers’judgement. 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’.
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.
Instead, the Dutch Supreme Court
adopted a more narrow approach –in line with the Saunders judgement of the ECtHR
that the nemo-tenetur principle can only be invoked in case of a criminal charge,
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.
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-
One of the most important inquisitorial characteristics of the Dutch system is that the judge
will conduct inquiries exofficio to establish the truth.
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 beginsel—Een stand van zaken’,in
PM van Russen Groen, D Schreuders and C Waling(eds), Lets bijzonders—Wladimiroff-bundel (Sdu uitgevers 2002) 96.
6. Saunders v United Kingdom App no 19187/91 (ECtHR, 17 December 1996) . 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 prijs’in 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)