A pragmatic attitude: The right to silence in the Netherlands

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.