Rechters over zwijgen

Judge(s) about silence. The role of the silence of the accused in the evidential reasoning of the Dutch criminal law judge The right to remain silent and the privilege against self-incrimination are, according to the ECtHR, ‘generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6.’ EHRM 8 februari 1996, nr. 18731/91, NJ 1996/725 m.nt. G. Knigge ( Murray/Verenigd Koninkrijk ), §45. The right to silence is, however, not absolute and adverse inferences can be drawn from it. Whether adverse inferences drawn from silence constitute a violation of article 6 of the Convention has to be regarded in light of all the circumstances of the specific case at hand. Therefore it is yet unclear what the consequences of the silence of an accused are in practice, in relation to the evidence in a case. In this paper I researched the role of silence in the evidential reasoning of criminal law judges. To do so, I interviewed 20 Dutch criminal law judges. In this exploratory study, I found that, in line with previous research, silence can be seen as the absence of an (alternative) explanation for the evidence. In addition to this and previous research, silence can, depending on the specifics of the case, be taken as an indication of guilt. This paper provides insights concerning the use of silence by judges in practice, but also provides information in a broader perspective, concerning the way judges determine whether the evidence has reached the beyond a reasonable doubt-threshold.