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Anyone summoned as a witness is, in principle, obliged to appear and testify truthfully — but the right to refuse to testify constitutes an important exception to this. Family members, professionals bound by professional secrecy, and those who would incriminate themselves may refuse to testify. Important: you must invoke this right yourself, as the judge will not point it out to you. You can read how this works below.
Witness examinations in legal proceedings
In legal proceedings , witnesses can be crucial; a statement can even be decisive. Anyone summoned as a witness in the Netherlands is obliged to appear. Ignoring such a summons can be a criminal offense, and the judge can even compel someone to testify (detention in a hostage situation). Anyone who testifies takes an oath and must answer truthfully. Intentionally making a false statement — perjury — is a criminal offense.
The privilege against self-incrimination: the exception
In certain situations, a person has the right not to testify: the right to refuse to testify. This applies to:
- Family members of the parties to the proceedings, such as spouses, registered partners, children and parents — and also ex-spouses and stepchildren;
- Who would expose himself or his family to criminal prosecution by testifying;
- People bound by professional secrecy, such as lawyers, doctors, clergy, notaries, and probation officers.
Source protection for journalists
Recent case law of the European Court of Human Rights (ECtHR) makes it clear that journalists do not always have full privilege against self-incrimination, but under certain circumstances do have the right to protect their sources. This source protection serves freedom of expression and freedom of the press.
The responsibility lies with the witness
Important: the judge is not required to indicate that someone has the right to refuse to testify. The witness must invoke it themselves. If they do so, the judge must in principle honor it. If they do not, the testimony is valid and the judge may take it into account.
The situation is different with intercepted telephone conversations: if, for example, a conversation between a lawyer and his client is accidentally intercepted and ends up in the case file, the Public Prosecution Service must remove those documents in any case and may not submit them to the judge.
Frequently Asked Questions
Am I required to testify?
In principle yes, if you are summoned. Ignoring the summons can be a punishable offense, and the judge can even compel you to testify, unless you have the right to refuse to testify.
Who has the right to refuse to testify?
This includes, among others, close family members of the parties, professionals bound by professional secrecy (such as lawyers and doctors), and anyone who would incriminate themselves or a family member with a criminal offense.
Must the judge inform me of my right to refuse to testify?
No. You must rely on it yourself. If you do not, your statement is valid and the judge may use it.
Do journalists have legal privilege?
Not always fully, but under certain circumstances they are entitled to source protection to protect freedom of the press.
Help with litigation and witnesses?
We guide you through every phase of a dispute, from preparing your case and engaging witnesses to advice on the impact of legal privilege and your representation during the proceedings.
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