Comfort against unlimited Dutch professional rights to remain silent even in front of a Judge.

1. 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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2. 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.
ENTRY
Art 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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3. 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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