Comfort against unlimited professional wrights of silence.

What is a professional right of silence? Certain practitioners of profession carry a duty of silence regarding their contacts with clients and the activities within their profession, like doctors, lawyers, notaries and clergies. This professional right to remain silent is reaching that far (in the Netherlands), that that right is placed even above the law, those (that can claim that right) are able to claim their professional right to remain silent in front of a judge. If they choose to speak, then they act even on their own risk, and they risk to be addressed to justify themselves in front of a disciplinary court. Added to this also should be mentioned that between the various disciplines a difference arose about how rigid these rules have to be applicated. Lawyers with pressing questions can apply for a consult with the Dean of lawyers, but for doctors this situation is set very difficult.

Research pointed out that the cult of silence in the first place is to protect the proper group of profession above the interest of clients. By law study of the book of prosecution it showed out that the professional right of silence also has/can have a obstructive operation in the criminal process if we talk about the prosecution of crimes, and that is detrimental for justice and is promoting individuals above the law in comparison to those that can not claim that professional right of silence. The negative effects are very: those that can claim professional right of silence can block searching on professional related issues as well as seizure of goods etc. And with this, there is also a collegial duty to remain silent, which is preventing colleagues to report criminal facts when noticing. Also international investigation-requests are being impeded with.

But not only offenders are enjoying protection with their professional right of silence (under the obligation that blamable acts are also under that very professional right of silence0, also the expert that has to supply a judicial judging advise can claim that professional right to remain silent with then. The professional right of silence is for protecting the proper group of profession at the first place and is a violation of constitution because she is promoting professional colleagues above others that can not claim a professional right of silence and thus is threatening justice seriously in her dignity.

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Those that want to claim a professional right of silence still should be heard, but under a protected/shielded status by the Judge alone. The legislation already knows such a kind of protection for justice-employees involved in investigation / prosecution. Searching, seizure related to the professional right of silence, and the expert research / advise should be added to such a protection-procedure.

Experts / witnesses that can claim to remain silent.

Art 51j lid 3 Experts can claim to remain silent (professionally) based on Art 217 to 219a

Art 217 to claim to remain silent because of a close relative up to third degree and former married ex-partners (is normal)

Art 218 to claim silence by profession, office or position

Art 219a If the judge is not preventing to speak, Art 226l offers an entry for protection (analog for employees in detection/prosecution with support of the Art 162 duty of criminal report precisely because of their profession). Art 219b To claim silence by state’s interest, other specific subject.

OFFENDERS can claim silence inherent related to their profession.

Art 98 lid 2 Professionally involved with right of silence blocks seizure.

Art 125 c Professionally involved with right of silence blocks searching.

Art 125 l Professionally involved with right of silence blocks pc-searching.

Art 126 c likewise blocks searching in financial criminal investigations. Art 552 ob The government describes approval of blocks in telecommunication- tapping with a foreign country when a foreign investigation is at hand.

ENTRYArt 161 Everybody carrying knowledge of a criminal offence is allowed to make a criminal report of, or either a complaint.

Art 162 lid 1 duty of making criminal report for those in professional obligation by office when finding crime incidentally.

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Art 162 lid 4 like as lid 1 for (organs of/and) legal person who’s tasks are described by or with the law, as far as general Orders in Council are applicable.

Art 226 l lid 2 protection of employees of detection / prosecution of criminal facts according as for protected witnesses if there is a reason for. Should be placed under Magistrates mandate Art 226 c screened execution of Art 226 t/m p

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