EHRM, 03-04-2012, nr. 42857/05

Unlike the suspect, a witness in (preliminary) criminal proceedings is obliged to answer questions put to him or her when he or she is under oath, and any deliberate refusal to do so constitutes a criminal offence under Article 192 of the Criminal Code. However, Article 217 of the Code of Criminal Procedure grants the right not to give evidence to certain relatives of the suspect.

Article 217 of the Code of Criminal Procedure provides as follows:

The third sub-paragraph formerly applied only to the spouse and the former spouse of a suspect or co-suspect. It was amended to extend the testimonial privilege to the registered partner (or former registered partner) with effect from 1 January 1998, when the Registered Partnership Act (Wet geregistreerd partnerschap) and the Act on the Adaptation of Legislation to the Introduction of Registered Partnership into Book 1 of the Civil Code (Wet tot aanpassing van wetgeving aan de invoering van het geregistreerd partnerschap in Boek 1 van het Burgerlijk Wetboek) entered into force.

As can be inferred from the Explanatory Memorandum (Memorie van Toelichting) to Article 217 of the Code of Criminal Procedure (see Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 1913/14, 286, no. 3, p. 108), and from an advisory opinion of the Advocate General endorsed by the Supreme Court in a judgment of 7 December 1999 (National Jurisprudence Number ZD1719, published in Nederlandse Jurisprudentie (Netherlands Law Reports) 2000, no. 163), the basis for this testimonial privilege lies in the sphere of the protection of family relations. In accepting the right not to give evidence against a relative, spouse or registered partner, the legislature has acknowledged the important social value of those relationships in society and has sought to prevent witnesses from being faced with a moral dilemma by having to make a choice between testifying, and thereby jeopardising their relationship with the suspect, or giving perjured evidence in order to protect that relationship.

Article 221 of the Code of Criminal Procedure provides as follows:

Article 222 of the Code of Criminal Procedure provides as follows:

Article 223 of the Code of Criminal Procedure provides as follows:

A partnership is registered by means of a registration document drawn up by the Registrar of Births, Deaths and Marriages (ambtenaar van de burgerlijke stand) (Article 1:80a § 2 of the Civil Code); the formal requirements are similar to those of a marriage. It can be dissolved by mutual consent, by the registration of a statement to that effect signed by both parties and co-signed by an advocate or a notary, or by a court order at the request of one of the parties (Article 1:80c of the Civil Code).

The provisions of the Civil Code setting out the legal consequences of marriage apply by analogy to a registered partnership, with the exception of certain rules governing the establishment of legal family ties (familierechtelijke betrekkingen) with descendants (Article 1:80b of the Civil Code).

On 1 June 2011, in response to a request made during the Court's hearing (see paragraph 9 above), the Government supplied the following information:

The Government did not deny that the applicant and Mr A. enjoyed ‘family life’ as that term is understood within the autonomous meaning given to it in the Court's case-law. However, they dismissed any suggestion that the applicant's evidence should have been dispensed with, instead expressing the view that giving evidence in court was a ‘civic duty’ which did not, as such, interfere with ‘family life’.

In the alternative, they argued that the interference, if any, had been ‘necessary in a democratic society’ in the interests of ‘public safety’ and ‘the prevention of crime’. The duty to give evidence was essential to the proper administration of criminal justice, given that it was in the interest of society that criminal offences be punished. It followed that the power to compel witnesses to give evidence was indispensable to the prosecution of crime.

In the instant case, the importance of bringing to justice the individual responsible for causing another person's death clearly outweighed any potential consequences for the applicant's family life.

Further pointing to the need to maintain legal certainty and the effectiveness of criminal proceedings, the Government argued that extending testimonial privilege to forms of de facto family life other than marriage or registered partnership would give rise to debate on matters such as the nature and closeness of the relationship that were not properly within the province of the criminal courts; moreover, courts would in any case retain the freedom to dismiss a witness as not indispensible or unlikely to be reliable in view of the relationship in question.

As to proportionality, the Government pointed to the possibility of registering a partnership as an alternative to marriage, this being available to the applicant with a minimum of cost and formality. It would have made her relationship with Mr A. official and verifiable, and would have secured to her the privilege now claimed before the Court.

Finally, the Government submitted the results of a survey covering fifteen Council of Europe member States from which it appeared that the system in the Netherlands was in no way unusual.

The applicant stressed the length and stability of her family relationship with Mr A. It had lasted eighteen years prior to the events complained of; during that time cohabitation had been constant, interrupted only by a prison sentence (related to an earlier crime) which Mr A. had begun to serve in 1998. Moreover, she and Mr A. had had two children together (born in 1990 and 2002), both of whom Mr A. had recognised as his; they bore his family name. The only difference between her family situation and one formalised by marriage or registered partnership was thus the absence of any formal act.

The applicant argued that her family was as worthy of protection as any marriage-based or registered union in so far as the rationale of testimonial privilege in the sphere of the protection of family relations was concerned. It was merely for the convenience of the courts that they were relieved of the need to assess whether a de facto family attracting the protection of Article 8 existed. In her case, there could scarcely be any doubt on the matter.

Cohabitation and marriage were moreover treated equally in other fields of Netherlands law, such as taxation, alimony, tenancy and social security; this caused no difficulties in normal life. Other Convention States Parties in fact afforded testimonial privilege to cohabitees and to persons engaged to be married to a suspect.

At all events, in the applicant's submission her evidence had not been needed to determine the truth in Mr A.'s case: ample other evidence had been available.

The Court reiterates that the notion of ‘family life’ in Article 8 is not confined solely to families based on marriage and may encompass other de facto relationships (see, among many other authorities, Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31; Keegan v. Ireland, 26 May 1994, § 44, Series A no. 290; Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297-C; X, Y and Z v. the United Kingdom, 22 April 1997, § 36, Reports of Judgments and Decisions 1997-II; and Emonet and Others v. Switzerland, no. 39051/03, § 34, ECHR 2007-XIV). When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have demonstrated their commitment to each other by having children together or by any other means.

The applicant's relationship with Mr A. had lasted eighteen years by the time of the events complained of; they had lived together for much of this time, at least until 1998 when Mr A. went to prison on grounds unrelated to the present case. Two children were born to them, both recognised by Mr A. The Court therefore finds that ‘family life’ existed between the applicant and Mr A. This is not disputed by the respondent Government.

The Court finds that, even though the obligation imposed on the applicant to give evidence was a ‘civic duty’ as submitted by the Government, the attempt to compel the applicant to give evidence in the criminal proceedings against Mr A. constitutes an ‘interference’ with her right to respect for her family life.

All agree that the interference was ‘in accordance with the law’ in that it was provided for by Article 221 of the Code of Criminal Procedure.

It is not contested that the interference pursued a ‘legitimate aim’ — namely the protection of society by inter alia ‘the prevention of crime’, that concept encompassing the securing of evidence for the purpose of detecting and prosecuting crime (see Société Colas Est and Others v. France, no. 37971/97, § 44, ECHR 2002-III; see also K. v. Austria, no. 16002/90, Commission's report of 13 October 1992, § 47, Series A no. 255-B).

At the outset, the Court reiterates the fundamentally subsidiary role of the Convention system and recognises that the national authorities have direct democratic legitimation in so far as the protection of human rights is concerned (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII). Moreover, by reason of their direct and continuous contact with the vital forces of their countries, they are in principle better placed than an international court to evaluate local needs and conditions (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24; Müller and Others v. Switzerland, 24 May 1988, § 35, Series A no. 133; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; Fretté v. France, no. 36515/97, § 41, ECHR 2002-I; and A, B and C v. Ireland [GC], no. 25579/05, § 223, ECHR 2010-…).

It is therefore primarily the responsibility of the national authorities to make the initial assessment as to where the fair balance lies in assessing the need for an interference in the public interest with individuals' rights under Article 8 of the Convention. Accordingly, in adopting legislation intended to strike a balance between competing interests, States must in principle be allowed to determine the means which they consider to be best suited to achieving the aim of reconciling those interests (see Odièvre v. France [GC], no. 42326/98, § 49, ECHR 2003-III).

While it is for the national legislature to make the initial assessment, the final evaluation as to whether an interference in a particular case is ‘necessary’, as that term is to be understood within the meaning of Article 8 of the Convention, remains subject to review by the Court (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 101, 4 December 2008).

A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case (see, among other authorities, Dickson v. the United Kingdom [GC], no. 44362/04, § 77, ECHR 2007-XIII, and A, B and C v. Ireland [GC], cited above, § 232).

The margin will tend to be relatively narrow where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights (see S. and Marper, cited above, § 102).Where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the State will be restricted (see, among other authorities, Dickson, cited above, § 78; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-IV; S. and Marper, cited above, ibid.; and A, B and C v. Ireland, cited above, ibid.).

Where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (see, among other authorities, Evans, cited above, § 77; Dickson, cited above, § 78; and A, B and C v. Ireland, cited above, ibid.).

Turning to the case in hand, the Court first observes the wide variety of practices among Council of Europe member States relating to the compellability of witnesses (see paragraphs 31–36 above). Although the lack of common ground is not in itself decisive, it militates in favour of a wide margin of appreciation in this matter.

The Court recognises that there are, in fact, two competing public interests at issue in this case. The first is the public interest in the prosecution of serious crime. The second is the public interest in the protection of family life from State interference. Both interests are important, having regard to the common good. In balancing those competing interests the respondent Government have considered that the public interest in the protection of family life weighed heavier in the scales than the public interest in criminal prosecution, but they have set limits on the scope of the ‘family life’ that attracts statutory protection. They have done so by requiring formal recognition of the ‘protected’ family relationship before permitting the ‘testimonial privilege’ exception to arise. This formal recognition can be obtained either through marriage or by way of registration of the relationship. The public interest in the prosecution of crime involves, of necessity, putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions (see, among other authorities, Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII; more recently, Branko Tomašić and Others v. Croatia, no. 46598/06, § 49, ECHR 2009-… (extracts); Opuz v. Turkey, no. 33401/02, § 128, ECHR 2009-…; and Rantsev v. Cyprus and Russia, no. 25965/04, § 218, ECHR 2010-… (extracts)). It should be added that the duty of High Contracting Parties to deter or punish crime extends to other Convention provisions involving the active protection of individuals' rights against harm caused by others: in fact, the Court first formulated such a duty in finding a violation of Article 8 of the Convention (see X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91).

The corollary of the duty incumbent on the High Contracting Party is that for individuals it is a ‘normal civic duty’ to give evidence in criminal proceedings. Indeed, the Court has so stated in Voskuil v. the Netherlands (no. 64752/01, § 86, 22 November 2007).

Exceptions to this civic duty have been recognised in the case-law of the Court. Thus, the suspect himself or herself enjoys the privilege against self-incrimination. This privilege, recognised in principle by the Commission under Article 10 of the Convention (see the Commission's report in the case of K. v. Austria, cited above, § 45), has been identified by the Court as lying at the heart of the rights which the defence enjoys under Article 6 (see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports 1996-I; and Saunders v. the United Kingdom, 17 December 1996, § 68, Reports 1996-VI; more recently, Jalloh v. Germany [GC], no. 54810/00, § 97, ECHR 2006-IX, and Gäfgen v. Germany [GC], no. 22978/05, § 168, ECHR 2010-…). Journalists, too, may derive from Article 10 of the Convention the right to decline to give evidence in certain circumstances in so far as they have a legitimate need to conceal the identity of their informants (see Goodwin v. the United Kingdom, 27 March 1996, § 45, Reports 1996-II; see also the case-law overview given in Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 59–63, 14 September 2004).

The central question which the Court must consider is whether by prescribing in its legislation a limited category, from which the applicant was excluded, of persons who were exempted from the otherwise standard obligation to give evidence in a criminal trial, the respondent Party violated the applicant's rights under Article 8. In this regard, the Court notes that the Netherlands is among the many Council of Europe member States that have elected to create a statutory testimonial privilege for certain categories of witnesses. This has been done in a ‘clear and workable manner’, as the Supreme Court indicated (see paragraph 21 above), by delimiting specific categories of persons including, among others, the spouse and any former spouse of the suspect and any person who is, or has been, in a registered partnership with the suspect. Such witnesses are relieved of the moral dilemma of having to choose between giving truthful evidence and thereby, possibly, jeopardising their relationship with the suspect or giving unreliable evidence, or even perjuring themselves, in order to protect that relationship.

It is the position of the applicant that she was entitled to the same privilege in relation to Mr A. by virtue of her family life with him, which was to all intents and purposes identical to marriage or a registered partnership except that it had never been formalised.

The Court would point out that any right not to give evidence constitutes an exemption from a normal civic duty acknowledged to be in the public interest. It must accordingly be accepted that such a right, where recognised, may be made subject to conditions and formalities, with the categories of its beneficiaries clearly set out.

In so far as the domestic law of the respondent Party grants an exemption from the duty to give evidence based on family life, it is limited to close relatives, spouses, former spouses, registered partners and former registered partners of suspects (Article 217 of the Code of Criminal Procedure; see paragraph 24 above). This has the effect of restricting the exercise of the said exemption to individuals whose ties with the suspect can be verified objectively.

The Court does not accept the applicant's suggestion that her relationship with Mr A., being in societal terms equal to a marriage or a registered partnership, should attract the same legal consequences as such formalised unions. States are entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. The legislature is entitled to confer a special status on marriage or registration and not to confer it on other de facto types of cohabitation. Marriage confers a special status on those who enter into it; the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (see, mutatis mutandis, Burden v. the United Kingdom [GC], no. 13378/05, § 63, ECHR 2008-…; and Şerife Yiğit v. Turkey [GC], no. 3976/05, § 72, ECHR 2010-…). 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 is determinative is 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 Mr A. renders their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership (see Burden, cited above, § 65). The Court would add that, were it to hold otherwise, it would create a need either to assess the nature of unregistered non-marital relationships in a multitude of individual cases or to define the conditions for assimilating to a formalised union a relationship characterised precisely by the absence of formality.

It has not been suggested that the applicant was unaware of the fact that Article 217 of the Code of Criminal Procedure reserved testimonial privilege to witnesses bound to the suspect by marriage or registered partnership; nor indeed would it seem likely that such was the case, given the length and nature of her relationship with Mr A. (see, mutatis mutandis, Şerife Yiğit, cited above, §§ 84–86, ECHR 2010-…).

The Netherlands 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 is no suggestion that the applicant and Mr A. were prevented for some reason from contracting marriage. For that matter, the Court has held that the public interest in retaining a suspect's prospective spouse as a compellable witness was not of itself sufficient to override the right to marry, guaranteed by Article 12 of the Convention (see, mutatis mutandis, Frasik v. Poland, no. 22933/02, §§ 95–96, ECHR 2010-… (extracts)).

Nor is it apparent that there was anything to prevent the applicant and Mr A. from entering into a registered partnership. For the purposes of Article 217 of the Code of Criminal Procedure, such an arrangement would have had the same legal consequences as a marriage. Moreover, they could have dissolved such a union at will, without incurring the cost and inconvenience of divorce proceedings (see paragraph 28 above).

Admittedly, some Contracting Parties, including the respondent, treat a variety of arrangements agreed between private individuals within both marriage and marriage-like relationships in equal manner for other purposes, including social security (see, as an example concerning the same Contracting Party, Goudswaard-van der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI) and taxation (see, again as an example concerning the same Contracting Party and mutatis mutandis, Feteris-Geerards v. the Netherlands, no. 21663/93, Commission decision of 13 October 1993). These, however, are issues governed by different considerations which are not germane to the present case and which have nothing to do with the important public interest in the prosecution of serious crime.

As to the applicant's suggestion that the availability of other evidence sufficient to ground the conviction of Mr A. meant that her evidence was unnecessary in the first place, the Court reiterates that the question whether there is a need to take evidence from a particular witness is in principle one for the domestic courts to decide. It has frequently held as such under Article 6 § 3 (d) of the Convention (see, among many other authorities, Engel and Others v. The Netherlands, 8 June 1976, § 91 Series A no. 22; Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158; Asch v. Austria, 26 April 1991, § 25, Series A no. 203; Vidal v. Belgium, 22 April 1992, § 33, Series A no. 235-B; Doorson v. the Netherlands, 26 March 1996, § 67, Reports 1996-II; Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports 1997-III; and Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003-V). The same applies when the witness is called by the prosecution, not the defence.

It is recognised that the interests of witnesses are, in principle, protected by substantive provisions of the Convention, Article 8 among them; this implies that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled (see, among other authorities, Doorson, cited above, 26 March 1996, § 70; Van Mechelen, cited above, § 53; and Marcello Viola v. Italy, no. 45106/04, § 51, ECHR 2006-XI (extracts)). However, it follows from the reasoning set out above that those interests in the instant case were not unjustifiably imperilled. The applicant has chosen not to register, formally, her union and no criticism can be made of her in this regard. However, having made that choice she must accept the legal consequence that flows therefrom, namely that she has maintained herself outside the scope of the ‘protected’ family relationship to which the ‘testimonial privilege’ exception attaches. That being so, the Court does not consider that the alleged interference with her family life was so burdensome or disproportionate as to imperil her interests unjustifiably.

Finally, the Court observes that the applicant was detained for thirteen days. However, it must be noted that this measure was imposed upon her for failing to comply with a judicial order?in this case an order to give testimony in a criminal case concerning murder. The Court accepts that any measure which involves the detention of a person is a serious one. However, in the circumstances of this case, it is satisfied that the domestic legal provisions governing the making of a detention order contain sufficient safeguards, which include

While a witness cannot appeal against that decision, he or she may apply to the Regional Court to order his or her release and may also appeal against any refusal to grant such an application. The Court is of the view that the deprivation of liberty to which the applicant was subjected did not constitute, in the circumstances of the present case, a disproportionate interference with her rights under Article 8 of the Convention.

It follows that there has been no violation of that provision.

The Government argued that the applicant's situation was not comparable to that of a witness bound to a suspect by marriage or a registered civil union simply because of the absence of any formal act publicly demonstrating the permanence of the bond.

Assuming that a question could arise under Article 14 at all, the Government submitted that ‘objective and reasonable justification’ for the distinction made lay in the protection of the traditional family based on the bond of marriage (or registered partnership); these two forms of cohabitation enjoyed a special legal status which the legislature had not wished to extend to de facto cohabitation.

While admittedly other forms of cohabitation were recognised for purposes such as taxation or social security, this stemmed from reasons peculiar to the legislation concerned that were mostly of a financial nature and had nothing to do with the existence of family ties.

The applicant considered her situation to be the same as that of the spouse or registered partner of a suspect, the only difference being the fact that the relationship was never formalised. She therefore felt entitled to claim the same protection that was afforded to married or registered couples. Unlike the situation in social-security related cases, where the Court had found a distinction between married and unmarried couples not to be discriminatory, in this case there was no drain on the finances of the State. As such, a ‘reasonable relationship of proportionality’ was lacking.