Information Note on the Court’s case-law 224
December 2018
Kryževičius v. Lithuania - 67816/14
Judgment 11.12.2018 [Section IV]
Article 8
Article 8-1
Respect for family life
Spouse compelled to testify in criminal proceedings in which his wife was a “special witness”: violation
Facts – The applicant was the director of an accounting-services company and his wife the financial director. In December 2013 the applicant’s wife was granted the status of “special witness” in relation to a pre-trial investigation into payments she had made on behalf of a client. In April 2014 the applicant was called as a witness in the same criminal investigation but refused to give testimony in relation to his wife’s actions on the basis of spousal privilege. As a result he was fined EUR 188. The applicant appealed against the decision and requested a referral of the matter to the Constitutional Court, arguing that Article 31 of the Constitution prohibited compelling a person to testify against his or her family members. His appeal was dismissed on the ground that the exemption from testifying under the Code of Criminal Procedure only related to family members of a suspect or accused but not of “special witnesses”. The request for referral was considered “subjective and legally unfounded”.
In September 2014 the applicant gave testimony as a witness in the investigation, which was subsequently discontinued on the ground that no criminal offence had been committed.
Law – Article 8
(a) Applicability – The Court had previously found that an attempt to compel an individual to give evidence in criminal proceedings against someone with whom that individual had a relationship amounting to family life constituted an interference with his or her right to respect for his or her family life. In order to determine whether there had been such interference in the present case, the Court had to examine whether the status of “special witness” granted to the applicant’s wife was sufficiently similar to the status of a suspect, to the extent that the criminal proceedings could be said to have been “against” her.
In that connection, the Court noted that granting the applicant’s wife “special witness” status in the pre-trial investigation had been an indication that the authorities had at least had some grounds to suspect that she had taken part in criminal activity, which precluded them from questioning her as an ordinary witness. It would appear that nobody else had been granted the status of “special witness” or suspect in the criminal proceedings in issue, thereby indicating the significance of the applicant’s wife’s role in the investigation. As to the Government’s argument that the applicant had been called to testify only about the structure and activities of his company and not about any circumstances “directly related” to his wife, the Court noted that testimony obtained under compulsion which appeared on its face to be of a non-incriminating nature could ultimately be deployed in criminal proceedings in support of the prosecution’s case, for example to contradict or cast doubt upon statements of the accused or evidence given during the trial, or to otherwise undermine his or her credibility. Punishing the applicant for having refused to testify in the criminal proceedings in which his wife had “special witness” status had therefore constituted an interference with his right to respect for family life, and Article 8 of the Convention was thus applicable.
(b) Merits – The interference had been in accordance with the law and pursued the legitimate aims of the prevention of crime and the protection of the rights and freedom of others.
Under Lithuanian law, the status of “special witness” was close to that of a suspect in several important aspects, such as the existence of at least some suspicion that the individual had committed acts constituting criminal activity, and his or her exemption from liability for refusing to testify or for giving false testimony. However, none of the domestic legal instruments relating to the status of “special witnesses” addressed the question of the testimonial privilege of their family members and close relatives. In addition, neither the explanatory report to the draft amendment of the Code of Criminal Procedure nor the recommendations adopted by the Prosecutor General had provided any arguments as to why – notwithstanding the similarities between the status of “special witness” and that of a suspect – that privilege should remain limited to family members and close relatives of suspects.
In the applicant’s case, neither the senior prosecutor nor the district court had addressed in substance his arguments that the two statuses had been sufficiently similar, and that the testimonial privilege of family members should also have been applicable to him. Instead, they merely referred to the text of the Code of Criminal Procedure and observed that the family members of “special witnesses” were not mentioned therein. Furthermore, the authorities made no attempt to explain why the testimonial privilege was being refused to persons in the applicant’s situation, in particular in the light of the prohibition to compel anyone to testify against his or her family member being enshrined in the Constitution. The district court also dismissed the applicant’s request to refer the matter to the Constitutional Court. Finally, the Government had not provided any arguments as to why the testimonial privilege was limited to family members and close relatives of suspects. On the contrary, they seemed to acknowledge the extent of the similarities between those two statuses, by affirming that “in practice” the testimonial privilege was also granted to family members and close relatives of “special witnesses”.
Given the foregoing, the authorities had failed to demonstrate that compelling the applicant to testify in the criminal proceedings in which his wife had “special witness” status had been “necessary in a democratic society” within the meaning of Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage and EUR 357 in respect of pecuniary damage.
(See also Van der Heijden v. the Netherlands [GC], 42857/05, 3 April 2012, Information Note 151)
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This summary by the Registry does not bind the Court.
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