Criminal Investigation and Privacy in Dutch Law
TILT Law & Technology Working Paper Series, Version 1.0, September 2016
55 Pages Posted: 13 Sep 2016
Date Written: September 11, 2016
The law regulating criminal investigation both legitimates the government’s use of power and limits it by setting conditions for intrusions on fundamental rights and liberties. Privacy is one of the most prominent issues in establishing and limiting investigation powers. This paper analyses criminal investigation in relation to privacy in Dutch law, with particular focus on privacy-related limitations and safeguards to criminal investigation powers. As part of a large-scale project on privacy protection in the 21st century, together with similar country studies, it will facilitate comparative legal analysis of criminal investigation (a relatively under-researched field), and also help to better understand privacy, as the forms and scope of privacy protection in criminal investigation law tell us something about how legislators conceptualise privacy, and how and to what extent the law protects different types of privacy. After an introduction on Dutch criminal procedure, investigation powers are discussed that reflect limitations grounded in the protection of places, persons, things, and data.
The paper concludes that bodily privacy is seen as the core of privacy, and that spatial privacy and communicational privacy are also relatively strongly protected, albeit with limitations stemming from traditional interpretations of what requires protection (the physical home, closed communications contents). The public zone knows very limited privacy protection. Often, the regulation of criminal investigation seems primarily based on ensuring that law enforcement can use the investigation methods that they (are perceived to) need, with privacy safeguards being put into place only where this is required by Dutch or European constitutional law. Together with the limited sanctioning of unlawfully obtained evidence, this suggests a pragmatic approach to criminal investigation regulation, with a primacy of crime-fighting over legal protection.
Keywords: Privacy, Criminal Investigation, Criminal Law, Constitutional Law, Investigation Powers, Search and Seizure, Surveillance Powers
JEL Classification: K14, K42
Suggested Citation: Suggested Citation