Van der Heijden v Netherlands
| Judge | JUDGES BRATZA (PRESIDENT),COSTA,TULKENS,CASADEVALL,VAJIC,SPIELMANN,BIRSAN,ZUPANCIC,FURA,HAJIYEV,MYJER,POPOVIC,MALINVERNI,LOPEZ GUERRA,BIANKU,POWER-FORDE,LAFFRANQUE |
| Judgment Date | 03 April 2012 |
Private and family life – Family life – Cohabitation – Testimonial privilege – Applicant and A cohabiting for 18 years and having two children – Applicant and A not being married and not having entered into registered partnership – Applicant summoned as witness in criminal investigation against A – Under domestic law testimonial privilege afforded to suspect’s spouse or registered partner – Applicant not entitled to testimonial privilege – Applicant detained for failure to comply with judicial order to give testimony – Whether applicant denied respect for her family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
A man was shot and killed by a person believed to be the applicant’s unmarried life partner, A. At the time of the shooting A had been serving a sentence for attempted manslaughter using a firearm and had been given weekend leave. The applicant, who was understood to have been in the company of A at the time of the shooting, was summoned as a witness in the criminal investigation that had been opened against A. She appeared but refused to testify before the investigating judge, explaining that, although they were not married and had not entered into a registered partnership, she and A had been cohabiting for 18 years in a relationship out of which two children had been born. The applicant argued that on the basis of that relationship she should be regarded as entitled to the testimonial privilege afforded to suspects’ spouses and registered partners under art 217 (set out, so far as material, at para 24, below) of the Code of Criminal Procedure. Although being of the view that the applicant was not entitled to testimonial privilege, the investigating judge rejected the public prosecutor’s request to issue an order for the applicant’s detention for failure to comply with a judicial order, finding that the applicant’s personal interests in remaining at liberty outweighed those of the prosecution. The public prosecutor appealed against that decision. The regional court quashed the investigating judge’s decision and ordered the applicant’s detention for failure to comply with the judicial order to give testimony. It considered that it could reasonably be assumed that the applicant was able to convey what had occurred in relation to A before, during and after the shooting and further held that the applicant was not entitled to the testimonial privilege set out in art 217 since the legislature had unambiguously chosen not to
include in the scope of the privilege any partners other than spouses and registered partners. The Court of Appeal dismissed the applicant’s appeal. The Supreme Court declared inadmissible for lack of interest the applicant’s further appeal on points of law. Nevertheless it saw fit to consider the applicant’s first complaint that the Court of Appeal had incorrectly upheld the ruling of the regional court in which it was concluded that she was not entitled to the testimonial privilege of art 217, as well as her second complaint that to deny her that privilege was contrary to arts 8 (set out, so far as material, at para 38, below) and 14 (set out at para 79, below) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention). The Supreme Court rejected the first complaint and, as to the applicant’s grievance based on arts 8 and 14 of the Convention, held that art 217 sought to protect the ‘family life’ within the meaning of art 8 that existed between spouses and registered partners and that there was an objective and reasonable justification for not granting that privilege to other partners, having regard to the fact that the privilege was an exception to the statutory duty to testify delimited in a clear and workable manner. Relying on, inter alia, art 8 of the Convention, the applicant complained to the European Court of Human Rights that she had been the victim of a lack of respect for her ‘family life’ in that an attempt had been made to compel her to give evidence against A, with whom she was in a stable family relationship.
Held – (By a majority) Any right not to give evidence constituted an exemption from a normal civic duty acknowledged to be in the public interest. States were entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. The legislature was entitled to confer a special status on marriage or registration and not to confer it on other de facto types of cohabitation. Marriage conferred a special status on those who entered into it; the right to marry was protected by art 12 of the Convention and gave rise to social, personal and legal consequences. Likewise, the legal consequences of a registered partnership set it apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what was determinative was the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally binding agreement between the applicant and A rendered their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership. The legislature chose to regulate the question of the compellability of witnesses by providing that persons in the applicant’s position who wished to avail themselves of testimonial privilege had to have registered their relationship, formally, or to be legally married. There was no suggestion that the applicant and A were prevented for some reason from contracting marriage or entering into a registered partnership. The applicant, having chosen not to formally register her union, had to accept the legal consequence that flowed therefrom, namely that she had
maintained herself outside the scope of the ‘protected’ family relationship to which the ‘testimonial privilege’ exception attached. That being so, the alleged interference with her family life was not so burdensome or disproportionate as to imperil her interests unjustifiably. Furthermore, the deprivation of liberty to which the applicant was subjected did not constitute, in the circumstances of the instant case, a disproportionate interference with her rights under art 8 of the Convention. It followed that there had been no violation of that provision (see paras 67, 69, 71, 72 and 76–78, below); Burden v UK (2008) 24 BHRC 709 and Yigit v Turkey (2010) 53 EHRR 872 considered.
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ApplicationIn an application (no 42857/05) against the Netherlands to the European Court of Human Rights on 30 November 2005 Gina Gerdina van der Heijden complained that, in violation of art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, an attempt had been made to compel her to give evidence in criminal proceedings against her long-standing companion with whom she was in a stable family relationship. The application was allocated to the Third Section of the court which, on 7 December 2010, relinquished jurisdiction in favour of the Grand Chamber. The facts are set out in the judgment of the court.
3 April 2012. The EUROPEAN COURT OF HUMAN RIGHTS (Grand Chamber) delivered the following judgment (with separate opinions annexed thereto).
JUDGMENT. Procedure1. The case originated in an application (no 42857/05) against the Kingdom of the...
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