When you are summoned by the Dutch court to testify, you are obliged to give evidence (art. 165 paragraph 1 DCCP). In certain cases, a witness can invoke his right of non-disclosure. This means that the witness has the right to leave questions from the judge unanswered. The question is who can invoke the right of non-disclosure and at what time

Witness interrogation

In legal proceedings, the parties themselves can determine who they call as witnesses. If the witness does not appear at the hearing, does not answer the questions put to her or refuses to sign the statement, the witness can be criminally convicted. The questions you are asked must be answered truthfully, it is therefore punishable to intentionally make a false statement.

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Various witnesses who can invoke the right of non-disclosure

A witness who has been called must always appear in court. If the witness has not appeared at the hearing, the judge can order that the witness be brought before him by the public authorities (art. 172 DCCP). Under certain circumstances, a witness can invoke his right of non-disclosure. By invoking the right of non-disclosure, a witness can leave the relevant question(s) unanswered.

When a witness can invoke the right of non-disclosure, he is not required to testify. The following parties may waive the obligation to testify:

  • The (former) spouse and the (former) registered partner of a party (art. 165 paragraph 2a DCCP).
  • The blood relatives or relatives of a party, spouse or registered partner up to the second degree are included (art. 165 paragraph 2a DCCP).
  • Parties that are obliged to secrecy by virtue of their office, profession or position, such as lawyers, civil-law notaries, doctors and clergy (art. 165 paragraph 2b DCCP).

If you as a witness are not listed here, you cannot invoke the right of non-disclosure.

Breach of right of non-disclosure

Nevertheless, the right of non-disclosure can be breached in exceptional situations. Case law of the Supreme Court has shown that in very special circumstances, a witness cannot invoke the right of non-disclosure. For example, parties that are obliged to maintain secrecy by virtue of their office, profession or position must still provide information in exceptional cases. In cases like this, it is important to get the truth before secrecy. Such an exceptional situation can arise, for example, if the lawyer himself is also suspected of a (serious) criminal offence.

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Invoke the right of non-disclosure? VIOTTA is happy to help

The lawyers at VIOTTA are happy to help you with questions about non-disclosure rights, or other obligations during a testimony.

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VIOTTA is a law firm based in Amsterdam and is specialized in advising on the areas of corporate law, mergers and acquisitions, contract law and corporate & commercial dispute resolution. We advise in transactional matters and litigate in commercial disputes. VIOTTA provides legal advises to its clients on Dutch corporate law matters, such as corporate governance, board structures, director’s duties and liabilities, joint ventures and other collaborations. VIOTTA advises purchasers, sellers, management and other stakeholders in domestic and cross border mergers and acquisitions (M&A).

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