The right to silence for witnesses and in investigations

If you are a witness in a criminal case, you can be summoned to appear and you are legally required to answer questions truthfully. The right to remain silent belongs to the suspect, not to you as a witness – though in a limited number of situations you may refuse to answer. This article explains when.

What is the difference between a suspect and a witness?

A suspect may remain silent throughout an investigation. A witness does not have that right: once summoned, you must appear and answer truthfully, and you can be compelled to do so. Our article on the suspect’s right to remain silent covers that separate position.

When may you refuse to answer as a witness?

Three exceptions to the duty to testify matter in practice.

Family members of the accused

If you are a close relative of the accused – a spouse or registered partner, a former spouse or partner, or a relative in the direct line or to a defined degree in the collateral line – you may decline to give evidence altogether. This privilege belongs to you as the witness, not to the accused, and you must invoke it: once you start answering, you can be held to continue.

Professional confidentiality

If your profession carries a duty of confidentiality – lawyers, doctors, notaries and clergy, for example – you may refuse to answer questions about what was entrusted to you in that capacity. This privilege exists for the benefit of the person who confided in you, which is why you cannot simply waive it for your own convenience.

The privilege against self-incrimination

You may refuse to answer a specific question if answering would expose you to prosecution. This is a question-by-question privilege, not a general right to remain silent.

What if a regulator or the tax authorities ask you for information?

Outside criminal proceedings, you generally have far-reaching duties to cooperate. Supervisory authorities can require you to provide information and documents, and the Dutch Tax and Customs Administration (Belastingdienst) has wide powers to demand information, backed by sanctions if you refuse.

The limit is that you cannot be compelled to incriminate yourself. Courts draw a distinction between material that exists independently of your will – documents, records, data – which can be compelled, and statements, which cannot be used against you for a punitive sanction if you were compelled to make them. If you gave a statement under compulsion in a supervisory context, its use in a later punitive procedure is restricted.

In practice, if you are asked to attend an interview by a regulator, establish first in which capacity you are being spoken to: as someone with a duty to cooperate, or as a suspect who must be cautioned. These are different conversations with different rights, and the distinction is not always made clear to you in advance.

Can your employer require you to answer in an internal investigation?

An internal investigation is not a criminal one, and you have no right to silence in it as such: as an employee, you have a duty to cooperate with reasonable instructions. But you cannot be required to incriminate yourself in a way that is then used to dismiss you without any safeguards, and if the matter may become a criminal case, you are entitled to take advice before answering. If you are pressured into a statement, it will carry considerably less weight later than one you gave after taking advice.

In summary

• As a witness you must appear and answer truthfully; only a suspect has the right to remain silent.
• You may refuse to answer if you are a close relative of the accused, if your profession carries a duty of confidentiality, or where a specific answer would incriminate you.
• Regulators and the tax authorities can compel documents and information, but not self-incriminating statements used for punishment.
• In an internal investigation you must cooperate, but you can insist on legal advice before answering if a criminal case may follow.
• Establish your position – witness, suspect, or someone with a duty to cooperate – before you attend any interview.

Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.

How Law & More can help you with this is explained on our criminal lawyer page.