12 July 2018

Dutch Council of State clarifies when public authority should caution in fine procedures

The highest administrative law court in the Netherlands has recently clarified that a public authority must issue a formal caution when interviewing an alleged offender with the intention of imposing an administrative fine. If no such caution has been given, the authority cannot use the interviewee’s statement as evidence of facts that the fine is based on.

However, where employees have not been interviewed “on behalf of” their company, but rather as “witnesses” to an incident, the right to remain silent does not apply to them. In this case, there is no obligation to give a caution and the interviewing public authority can use their statement as evidence to support the facts on which the fine issued to the company is based.

Persons cannot be compelled to incriminate themselves. This “nemo tenetur” principle also applies during administrative fine procedures. However, several public authorities have supervisory powers as well as investigative powers. When an authority exercises its supervisory powers, there is a duty to cooperate and the right to remain silent does not apply. If there is a suspicion that an offence has been committed, there is a transfer of competence from supervisory to investigative. Due to the nemo tenetur principle, this transfer results in a limitation of the duty to answer questions and, sometimes, to provide information. The moment of this transfer is not always clear.

If the caution has not been given, the authority cannot use the statement as evidence for the facts underlying the administrative fine. The Council of State emphasised in its ruling that when company employees are not being interviewed “on behalf” of the company – but for example, as a witness to a company incident – the right to remain silent does not apply. However, if the interview takes place with the intent to issue a personal fine to the employee – for example, because the employee had actual control of the violation – he or she has an individual right to remain silent.