Recordings as Evidence in the Netherlands: Artikel 152 Rv

Dutch civil procedure takes an unusually open approach to evidence. Artikel 152 lid 1 Rv provides that evidence may be given by all means unless the law provides otherwise, and lid 2 leaves the assessment of that evidence to the judge.

That is why a recording turns up so often in an employment, neighbour or contract dispute. It also means the interesting question is rarely whether a recording may be put in the file at all, but what happens if it was obtained unlawfully, and how much weight it then carries.

Information last verified on 21 July 2026. This page provides general legal information about Netherlands law and does not constitute legal advice in an individual case.

Free evidence and free assessment

Artikel 152 Rv has two limbs and they do different jobs. Lid 1 sets out the freedom of means: evidence may be given by all means, unless the law provides otherwise. Lid 2 sets out the freedom of appraisal: the assessment of the evidence is left to the judgment of the court, again unless the law provides otherwise.

There is no closed list of permitted evidence, and no formal hierarchy putting a document above a recording or a witness above a photograph. A judge may accept a recording, may find it decisive, and may equally find it adds nothing.

Artikel 153 Rv adds one limit worth knowing. An agreement departing from the statutory law of evidence is disapplied where it concerns facts giving rise to legal consequences that are not at the free disposal of the parties.

Unlawfully obtained evidence in civil proceedings

The starting point in civil proceedings is not exclusion. In its judgment of 18 April 2014 the Hoge Raad held that no general rule applies in civil proceedings under which the court may not have regard to unlawfully obtained evidence.

The court set out the reasoning behind that. In principle the general societal interest in the truth emerging in court, together with the interest of the parties in being able to substantiate their assertions, which are among the interests underlying artikel 152 Rv, outweigh the interest in excluding evidence.

Only where there are additional circumstances (bijkomende omstandigheden) is setting that evidence aside justified. The Hoge Raad framed this as a continuation of an established line, citing its earlier judgments of 7 February 1992 and 12 February 1993.

That reference point is ECLI:NL:HR:2014:942, at r.o. 5.2.3. The case itself concerned an insurer that had carried out a personal investigation into an insured person, and the same judgment holds that an intrusion into private life without a justification renders the material so obtained unlawfully obtained.

The outcome of that case is the part most often left out. The threshold was met. The Hof left the results of the personal investigation out of account, and the Hoge Raad rejected the insurer's appeal and let the exclusion stand (r.o. 5.4.2, verwerpt het beroep).

What the Hof relied on was not the unlawfulness by itself. It took the purpose of the insurers' self-regulatory Gedragscode Persoonlijk Onderzoek into account, reasoning that it does not fit the aim of self-regulation to reward an insurer that breaches the code by letting the evidence work in its favour. It added that the insurer had not made enough use of less intrusive ways of testing its suspicion, and that the insured could not be said to have provoked the improper method of gathering evidence (r.o. 3.4.6).

The practical shape of the rule is therefore a default plus an exception that is real rather than theoretical. Unlawful acquisition on its own does not remove the material from the file, and a party asking for exclusion has to point at something beyond the unlawfulness itself.

Whether a recording was lawful is a separate question

It is worth keeping two questions apart, because they are decided under different law and can come out differently.

The first is whether making the recording was lawful. For audio that turns on artikel 139a and artikel 139b Sr, whose recording limb is committed only by someone who is neither a participant (deelnemer) in the conversation nor acting on a participant's instruction, while their listening-in limb asks only about the participant's instruction. For images it turns on artikel 139f Sr, which has no participant exception at all. The detail is on recording conversations.

The second is whether the recording may be used in evidence, which is the artikel 152 Rv question dealt with above. A lawfully made recording is not automatically decisive, and an unlawfully made one is not automatically excluded.

A third question sits behind both. Data protection law does not begin when a recording is shared: artikel 4 lid 2 AVG counts collection and recording as processing, so the AVG engages when the recording is made and continues through keeping, copying and disclosing the file, unless the activity is a purely personal or household one under artikel 2 lid 2 onder c AVG. Where the material was unlawfully obtained, artikel 139e Sr can apply to holding or passing it on as well.

The criminal position is not the same

Criminal proceedings are governed by the Wetboek van Strafvordering rather than by artikel 152 Rv, and the provision usually cited is artikel 359a Sv. It is narrower than it is often made to sound.

Artikel 359a lid 1 Sv applies where it appears that procedural requirements were not complied with in the preliminary investigation (het voorbereidend onderzoek), the defect can no longer be repaired, and the statute does not itself state the consequences.

Where that is so, the court may reduce the sentence in proportion to the seriousness of the defect, may rule that results obtained through the defect may not contribute to proof, or may declare the prosecution inadmissible where the defect makes a proper trial impossible.

Artikel 359a lid 2 Sv directs the court to take account of the interest served by the rule breached, the seriousness of the defect and the harm caused by it. The provision is aimed at the conduct of the investigating authorities, so it does not translate into a general rule about a recording made by a private individual, and it does not carry across to civil proceedings.

That leaves the treatment of privately obtained unlawful material in a criminal case to the criminal court assessing the evidence before it, rather than to a rule of exclusion in artikel 359a Sv. How that assessment is made is a criminal-procedure question outside the scope of this page.

What makes a recording useful in practice

Because artikel 152 lid 2 Rv leaves the weight of evidence to the judge, the quality of the recording matters as much as its admissibility. A file that raises more questions than it answers is worth little even when nobody objects to it. The points below are practical observations about how a recording is assessed in a file, not statutory requirements.

None of them makes an unlawfully made recording lawful. A recording made in breach of artikel 139a, artikel 139b or artikel 139f Sr can be accepted in evidence and still expose the person who made it to prosecution, to a claim under artikel 6:162 BW, or to enforcement by the Autoriteit Persoonsgegevens.

Four things generally decide how far a recording carries.

• Who is speaking can be established. A recording in which the voices cannot be attributed proves less than the same conversation reported by a witness who can be questioned.
• When it was made can be established. A date and time that can be checked against other material in the file, such as a calendar entry or an email, are worth more than a bare file date.
• It is continuous. An unbroken recording of a whole conversation invites fewer objections than a short extract, since a fragment can always be said to have lost the context around it.
• The original is preserved. Keeping the original file, rather than only a re-encoded copy or a transcript, leaves the material open to being checked.

A transcript is a helpful aid but is not a substitute. It is the recording that is the evidence, and a transcript is one party's rendering of it.

Where the case is heard, and what the other side sees

For employment disputes the forum is the subdistrict court, the kantonrechter. Artikel 93 sub c Rv assigns cases concerning an employment contract (arbeidsovereenkomst), a collective agreement (CAO), an agency, tenancy or consumer sale agreement and consumer credit to the kantonrechter telkens ongeacht het beloop of de waarde van de vordering, regardless of the amount at stake.

The EUR 25,000 figure in artikel 93 sub a Rv is a separate and independent basis of jurisdiction for money claims generally. It does not cap the categories in sub c, so a large employment or tenancy claim still goes to the kantonrechter.

Evidence put before the court is not private to the party producing it. Artikel 19 lid 1 Rv obliges the judge to give the parties the opportunity to put and explain their positions and to comment on all documents and other material brought to the attention of the court.

The same provision bars the judge from basing a decision against a party on material that party has not been sufficiently able to address. Producing a recording therefore means the other side sees it and can respond to it.

The wider framework of Dutch recording and surveillance law is on the Netherlands recording laws section page, and a shorter country summary sits in the Netherlands entry in the world recording survey. For the surrounding employment rules see the Netherlands employment law section page, and for the country map the Netherlands law overview.

Frequently Asked Questions

Is a secret recording admissible as evidence in a Dutch civil court?

Artikel 152 lid 1 Rv allows evidence to be given by all means unless the law provides otherwise, and there is no general rule that a civil judge must ignore unlawfully obtained evidence. In its judgment of 18 April 2014 the Hoge Raad held that the interest in the truth emerging in court in principle outweighs the interest in exclusion, and that setting evidence aside is justified only where additional circumstances (bijkomende omstandigheden) are present, which in that case they were. Admission is a separate matter from lawfulness: a recording can be accepted in evidence and making it can still have been an offence under artikel 139a, artikel 139b or artikel 139f Sr.

What are bijkomende omstandigheden?

The phrase comes from the line of case law confirmed by the Hoge Raad on 18 April 2014 and describes circumstances beyond the mere fact that the evidence was obtained unlawfully. That judgment is itself an example of the threshold being met. The Hof left an insurer's investigation results out of account because rewarding an insurer that had breached its own sector code would defeat the purpose of that code, because the insurer had not made enough use of less intrusive alternatives, and because the insured had not provoked the improper investigation, and the Hoge Raad upheld that decision. Whether such circumstances are present is assessed by the judge on the facts of the individual case.

Can I use a recording of a meeting with my employer in a dismissal case?

Evidence in civil proceedings is free under artikel 152 lid 1 Rv, so a recording is capable of being put in evidence. Two questions remain separate from that. Whether making the recording was lawful is decided under the criminal provisions and the AVG, and how much weight the recording carries is left to the judge by artikel 152 lid 2 Rv.

Does the judge have to accept what a recording appears to show?

No. Artikel 152 lid 2 Rv leaves the assessment of evidence to the judge unless the law provides otherwise. A recording is weighed alongside the rest of the file, and its value depends on matters such as whether the voices and the date can be established and whether the audio is continuous.

Which court hears a Dutch employment dispute?

The subdistrict court, the kantonrechter. Artikel 93 sub c Rv assigns cases concerning an employment contract (arbeidsovereenkomst), a collective agreement (CAO), an agency, tenancy or consumer sale agreement and consumer credit to the kantonrechter telkens ongeacht het beloop of de waarde van de vordering, that is, regardless of the amount at stake. The EUR 25,000 threshold in artikel 93 sub a Rv is a separate and independent basis of jurisdiction and does not cap those categories.

Does artikel 359a Sv apply to a recording I made myself?

Artikel 359a Sv is about procedural defects (vormverzuimen) in the preliminary investigation that can no longer be repaired, and it addresses the consequences of failures by the investigating authorities. It is not a general rule about material produced by a private person, and it does not carry across to civil proceedings, which run on artikel 152 Rv.

Will the other side see the recording?

Material put before the court becomes part of what the other party is entitled to respond to. Artikel 19 lid 1 Rv requires the judge to give the parties the opportunity to state their positions and to comment on all documents and other material brought to the attention of the court, and prevents the judge from basing a decision against a party on material that party has not been able to address.