Article 29 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv) sets out the suspect’s right to silence (zwijgrecht). A suspect is not obliged to answer questions and must be told so before the interview begins: the caution (cautie). The interviewer may not do anything aimed at obtaining a statement that was not given freely.
Table of contents
What does the caution involve?
The caution is the notice that you are not obliged to answer questions. Under the second paragraph, it must be given before the interview starts, and the official report (proces-verbaal) must record that it was given.
What pressure is prohibited?
The first paragraph prohibits anything intended to obtain a statement that cannot be said to have been made freely. Examples are:
- threats;
- misleading promises;
- an interview that lasts unreasonably long.
When does the right to silence apply?
Whenever you are questioned as a suspect: by the police, a special investigation service (bijzondere opsporingsdienst), the investigating judge or the court. You may refuse to answer all questions, or answer only some. Before the first interview, you can consult a lawyer about whether silence is wise (Article 28c Sv).
What if the caution was not given?
The defence can ask the court to attach consequences to this procedural defect under Article 359a Sv. One possible consequence is that the statement may not be used as evidence. This is relevant, for example, when someone was asked questions at an accident scene after already being regarded as a suspect.
Frequently asked questions
Can silence be used against me?
Silence alone cannot prove guilt, but in some cases a court may take into account that no explanation was given for strong incriminating evidence.
Must I give my name?
Yes. The right to silence does not cover your identity details.
Related terms
- Right to silence
- Procedural defects
- Article 28c Code of Criminal Procedure (consultation before interview)
- Article 28d Code of Criminal Procedure (lawyer during police interview)
- Evidence in criminal cases
For help with a police interview, see our criminal lawyer page. Want to know what this means for your situation? Book a free introductory meeting.
