A suspect in the Netherlands is not obliged to answer questions. Before any questioning he must be told this, which is known as the caution. Silence is not evidence of guilt and no adverse inference may be drawn from it as such.
Statutory basis
Article 29 of the Code of Criminal Procedure contains both the right and the duty to caution. The right is an expression of the privilege against self-incrimination protected by article 6 of the European Convention on Human Rights, as developed by the European Court in cases such as Saunders. A statement obtained without a caution being given at the right moment is in principle inadmissible, and the same applies where the right to consult a lawyer was denied.
How it works in practice
Exercising the right is a tactical decision that changes as the file develops. Early in an investigation, when the defence does not yet know what the police have, silence is usually the safer course; once the file is complete, a well-prepared statement can be the strongest available defence. The right protects statements, not material that exists independently of the suspect’s will: blood, breath and documents that must be kept under a statutory obligation can still be demanded.
Where it goes wrong
A partial answer is the classic trap. Someone answers the harmless questions and refuses the difficult ones, which produces a statement that supports the prosecution on the points it does cover. A second problem is a statement that is later found to be demonstrably untrue: while silence carries no consequence, a lie that is shown to be a lie can be used against the suspect. Third, the caution is often given late in regulatory investigations, where an obligation to cooperate with a supervisor turns into a criminal enquiry.
Related terms
Suspect, police custody and summons.
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