Testimonial Privilege: Van Der Heijden v The Netherlands
| Author | Lee Stuesser |
| Published date | 01 July 2012 |
| DOI | 10.1350/ijep.2012.16.3.407 |
| Date | 01 July 2012 |
| Subject Matter | Case Note |
CASE NOTE
TESTIMONIAL PRIVILEGE:VAN DER HEIJDENVTHE NETHERLANDS
CASE NOTE
Testimonial privilege: Van Der
Heijden vThe Netherlands
By Lee Stuesser*
Professor of Law, Bond University
Keywords Testimonial privilege; Spousal privilege; Competency; Compellability
n the case of Van Der Heijden vThe Netherlands1the European Court of
Human Rights grappled with the scope of testimonial privilege and
specifically whether a de facto partner of an accused should be accorded
a privilege not to testify against her partner. The law in the Netherlands provided a
testimonial privilege for ‘spouses’ and for ‘registered partners’, but not for those
in de facto relationships.
In May 2004 a man was shot and killed in a cafe. The shooter was believed to be Mr
A, who was the applicant’s unmarried life partner. In fact, the applicant was
believed to be with Mr A at the time of the shooting. The applicant was summoned
as a witness in the murder investigation. She refused to testify before the investi-
gating judge. She argued that, although she was not in a registered partnership
with Mr A, for all intents and purposes they were partners. They had cohabited for
18 years in a relationship out of which two children were born; the youngest was
two years old at the time.
The prosecution relied on Article 217 of the Code of Criminal Procedure, which
under para. 3 excused the spouse or registered partner of a suspect of the
obligation to give evidence or answer questions. Since the applicant was not
involved in a registered partnership she was compelled to testify. The applicant
doi:10.1350/ijep.2012.16.3.407
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2012) 16 E&P 323–328 323
I
1 [2012] ECHR 588.
* Email: lstuesse@bond.edu.au.
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