In a state governed by the rule of law, such as the Netherlands, safeguarding the rights of a suspect is crucial. These rights are not only essential for protecting the individual freedom and integrity of the suspect, they also form the basis of a fair and just legal system. A suspect is considered innocent until proven guilty according to law, a principle known as the 'presumption of innocence'. The rights of a suspect include, among other things, the right to a fair trial, the right to legal assistance from a lawyer and the right to remain silent. These rights ensure that suspects are not treated unlawfully and provide a safeguard against arbitrary and unfounded deprivation of liberty. This page describes the situation in the Netherlands.
Europe and the rights of suspects in criminal proceedings
In Europe, borders have disappeared and people and goods can move freely. One result of this is that European citizens are increasingly becoming involved in criminal proceedings in other EU countries. To ensure that suspects in such circumstances get a fair trial, the European legislator has adopted a number of directives that have strengthened the rights of the suspect.
Right to interpretation and translation
In criminal proceedings in Europe, a suspect always has the right to an interpreter. This right applies from the moment the suspect is made aware that he or she is suspected or accused of a criminal offence. The right ends when it has been finally established whether or not the suspect committed the criminal offence. This follows from European Directive 2010/64/EU. In practice, this means that the suspect is assisted free of charge by an interpreter at all police interviews and hearings. Summonses and judgments, among other documents, must also be translated.
Right to information
During the criminal proceedings, the suspect has the right to information. This means that the suspect must be informed about his rights (access to a lawyer, free or subsidised legal aid, interpretation, translation and the right to remain silent) and about the accusation. The letter of rights for the suspect must also provide information about, among other things, the right of access to the case file or documents in the case file, the right to inform a person of the deprivation of liberty, the right to inform the consular authorities and the right to urgent medical assistance. All this follows from Articles 3 and 4 of European Directive 2012/13/EU.
Right of access to a lawyer
A suspect must always be able to get legal support from a lawyer without undue delay, which follows from European Directive 2013/48/EU. The suspect must also be given the information needed to find a suitable lawyer, and the confidentiality of communication with the lawyer must be guaranteed.
Presumption of innocence
Directive 2016/343/EU lays down a presumption of innocence. This means that the suspect must be presumed innocent until it has been established in law that this is not the case. Public statements may therefore not refer to the guilt of the suspect before then.
Contact with third parties and consular authorities
European Directive 2013/48/EU requires that the suspect must be able to communicate with the consular authorities and third parties. This means that the suspect must be able to inform at least one person of the deprivation of liberty. It must be possible to communicate this without delay. This could be, for example, a partner, a family member or a good friend. In addition, the suspect must also be able to inform the consular authorities.
Right to be present at the hearing
It is important that the suspect has the opportunity to be present at the trial; otherwise the suspect is entitled to a new trial. The suspect can also choose not to be present. In that case, it is important that the suspect has been informed of the hearing in good time, and of the consequences of not attending. If the suspect is represented by a lawyer at the hearing, there is no problem in any case.
Rights of the minor suspect
Minor suspects must be given extra protection. That is why European Directive 2016/800/EU lays down a number of minimum rules intended to protect the rights of these young suspects. In addition to the general rights that apply to all suspects, children have, for example, the right to a medical examination, the right to inform the person with parental authority and the right to be accompanied by a person with parental authority during the trial. The European directive also imposes extra obligations on the member states themselves. Examples are the obligation to make recordings of interviews with children and the obligation to keep minor and adult detainees separate from each other.
Rights of vulnerable persons
With European recommendation 2013/C 378/02, the European Commission aims to give extra protection to the rights of vulnerable persons. This means, among other things, that the legal representative must be informed of the criminal proceedings. Particularly vulnerable persons, persons who are not able to understand the criminal proceedings, may also not be given the option of waiving their right to a lawyer. The vulnerable person must be given access to a medical examination to assess his or her condition. Audiovisual recordings must also be made of police interviews with vulnerable persons.
Right to free legal aid
Not all suspects have sufficient financial means to pay for a lawyer. Anyone who does not have sufficient financial means to do so is entitled to legal aid under European Directive (EU) 2016/1919. When assessing this, account must be taken of, among other things, the personal and social situation of the suspect, the complexity of the case, the seriousness of the offence and the possible sentence.
Rights of the suspect in the Netherlands
The European rights above are mostly minimum rights that can be strengthened further by the member states and the courts. This means that suspects in some countries, for example in the Netherlands, may have more rights than set out above. An insight into the main rights of suspects in the Netherlands is therefore appropriate. A number of points are explained below.
Information sheet for the suspect
The European directive states that a suspect has the right to information. For this purpose, specific information sheets have been drawn up containing an informative notice to the suspect. There is an information sheet for adults, for adults who have been arrested under a European Arrest Warrant and for minor suspects who are suspected of a criminal offence. These information sheets are available not only in Dutch, but also in countless other languages. These include not only European languages, but also, for example, Vietnamese, Somali, Sranan Tongo and Papiamento. You can consult these information sheets in Dutch below.
- Information sheet for adults
- Information sheet for adults (European Arrest Warrant)
- Information sheet for minors (12 to 18 years)
Rights of suspects
In the Netherlands, a suspect has a number of rights that closely match the European rights mentioned earlier. The most important rights of suspects in the Netherlands are set out below. Bear in mind that the public prosecutor (officier van justitie) may sometimes depart from these rights. For example, you may temporarily not be allowed to inform anyone of the deprivation of liberty, or you may not be allowed to see certain documents. Good reasons are needed for this.
- Right to know which criminal offence you are suspected of
- Right to remain silent (right not to answer questions)
- Right to speak to a lawyer before the first interview
- Right to have the lawyer present during the interview
- Right to urgent medical care or medication
- Right to inform a third party of the deprivation of liberty
- Right to inform the consulate or embassy
- Right to inspect documents
In practice, a lawyer is called in as standard if you are suspected of a very serious criminal offence, for example murder. For other criminal offences, you can choose for yourself whether or not you want to call in a lawyer. For serious criminal offences, the police will make sure that a lawyer is called in; for less serious criminal offences, you have to contact a lawyer yourself. If you have said that you do not want a lawyer, you can always change your mind later. You can never permanently waive the assistance of a lawyer.
Rights of minor suspects
Suspects aged between 12 and 18 can also be arrested or interviewed in the Netherlands. The police must then tell you what you are suspected of and arrange a lawyer for you. The police must also inform the parents that the child has been arrested, and of the further course of the investigation. The assistant public prosecutor (hulpofficier van justitie) will inform the minor suspect of his rights and will ask questions, during which the minor suspect has the right to remain silent. The minor suspect is also entitled to a free medical examination, in which the doctor checks whether he or she is able to undergo an interview or police investigation. The minor suspect is also entitled to a translator or interpreter. In any case, the parents (or guardian or carers) may call and visit the minor suspect. A trusted person may also be present during the interview, although in consultation with the public prosecutor this can sometimes be refused.
Right to a lawyer and legal expenses insurance
Legal expenses insurance can be useful for anyone suspected of a criminal offence. Whether or not the legal expenses insurance covers this depends on the specific policy and the nature of the case. In cases where the suspect became involved in a criminal offence unintentionally, such as a traffic accident with injury, the insurance will usually provide legal assistance. The insurance gives the suspect the option of choosing a lawyer. However, for crimes committed intentionally, there is usually no cover. Sometimes the insurer may also pay first and later, when it is established that you are guilty, ask for the amounts paid to be returned. If you are in doubt about the cover of your legal expenses insurance, it is advisable to tell your lawyer. The lawyer will then check for you whether or not the legal expenses insurance provides cover and up to what amount. The lawyer can also check whether you are eligible for subsidised legal aid.
Course of the trial and rights of the suspect
In Dutch criminal law, a person remains a suspect (verdachte) during the trial as well. Before the prosecution begins, a suspect is the person against whom there is a reasonable suspicion of guilt of a criminal offence; after that, it is the person against whom the prosecution is directed (Article 27 of the Dutch Code of Criminal Procedure, Wetboek van Strafvordering). When the case comes before the court, the suspect formally stands trial for the offences charged. At every stage, the suspect has specific rights. These rights are intended to guarantee fair and just treatment, such as the right to legal assistance from a lawyer, the right to remain silent and the right to test evidence and to question witnesses.
All about the course of criminal proceedingsFrequently asked questions about the rights of the suspect
In the Dutch legal system, a suspect enjoys various rights that are crucial for guaranteeing fair treatment. These rights serve as protection against unlawful deprivation of liberty and ensure that the suspect gets a fair trial. Below, we answer some frequently asked questions about the rights of a suspect, including the right to remain silent.
What is the right to remain silent?
The right to remain silent (zwijgrecht) is the right of a suspect not to answer questions from the police or the judicial authorities. This right protects the suspect against self-incrimination (against the risk of accusing yourself of a criminal offence).
What rights does a suspect have?
A suspect has various rights, including the right to a fair trial, the right to legal assistance from a lawyer, the right to remain silent and the right of access to relevant documents in the case file. These rights are intended to protect the integrity of the suspect and the right to a fair trial.
When do you have the right to remain silent?
A suspect has the right to remain silent from the moment of arrest or interview. This means that he or she has the right to remain silent during interviews by the police or during the court hearing.
What are the rights of a vulnerable suspect?
Vulnerable suspects, such as people with an intellectual disability or a mental health condition, are entitled to extra protection. This includes, among other things, the right to assistance from a legal representative and the right to special care during the interview. Moreover, they cannot simply waive the right to a lawyer. This is to guarantee that a vulnerable suspect also gets a good defence.
What are the rights of a minor suspect?
Minor suspects are entitled to extra protection. In addition to the general rights of all suspects, they are also entitled to assistance from a guardian or parent during interviews. They are also entitled to information in language they can understand.
Does a suspect have the right to see documents in the case file?
Yes, a suspect has the right to inspect documents in the case file. This is important for preparing the defence.
Can the right to remain silent be used against you?
In principle, the right to remain silent may not be used against a suspect, and certainly not as proof of guilt. It is a fundamental right that protects the suspect. When determining the sentence, however, account can be taken of the extent to which someone has cooperated with the investigation and takes responsibility.
Do I have the right to remain silent during the interview?
Yes, during the interview a suspect has the right to remain silent. The police even tell you about this right at the start of the interview.