Information Note on the Court’s case-law No. 151
April 2012
Van der Heijden v. the Netherlands [GC] - 42857/05
Judgment 3.4.2012 [GC]
Article 8
Article 8-1
Respect for family life
Refusal to grant long-term cohabitee privilege against testifying in criminal proceedings against partner: no violation
Facts – The applicant was summoned as a witness in connection with a criminal investigation into a fatal shooting, but refused to testify before the investigating judge on the grounds that her fifteen-year cohabitation with the principal suspect by whom she had two children entitled her to the same testimonial privilege as was accorded to spouses and registered partners of suspects under the Code of Criminal Procedure. She was subsequently detained for thirteen days for failure to comply with a judicial order to testify. On appeal the Supreme Court ruled that testimonial privilege as laid down in the domestic law sought to protect “family life” between spouses and registered partners only, not between other partners, even if long-term cohabitees. Any difference in treatment to which that situation could be said to give rise was objectively and reasonably justified by the need for the truth to be uncovered and for legal certainty when making exceptions to the statutory duty to testify.
Law – Article 8: The attempt to compel the applicant to give evidence against her long-term partner had interfered with her right to respect for her family life. That interference had been “in accordance with law” and had pursued the legitimate aim of the prevention of crime.
As to whether the interference had been necessary in a democratic society, the wide variety of practices followed by member States regarding the compellability of witnesses militated in favour of allowing the States a wide margin of appreciation when balancing the two competing public interests at stake: prosecuting serious crime and protecting family life from State interference.
The Netherlands was among the many member States to have elected to create a statutory testimonial privilege for certain categories of witness. Since the right not to give evidence constituted an exemption from a normal civic duty acknowledged to be in the public interest, it could, where recognised, be made subject to conditions and formalities, with the categories of its beneficiaries clearly set out. Netherlands law had done this in a “clear and workable manner” by limiting the exemption to close relatives, spouses, former spouses, registered partners and former registered partners of suspects, thus restricting its exercise to individuals whose ties with the suspect could be objectively verified. The member States were entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. The Court did not accept that the applicant’s suggestion that her relationship with her partner, albeit equal to a marriage or registered partnership in societal terms, should attract the same legal consequences as formalised unions. The determining factor was not the length or supportive nature of the relationship but the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of this legally binding agreement made the applicant’s relationship with her partner fundamentally different from that of a married couple or a couple in a registered partnership. Were the Court 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.
Even though some member States, including the Netherlands, treated married couples and those in marriage-like relationships equally for other purposes, including social security and taxation, these issues were governed by different considerations unrelated to the important public interest of prosecuting serious crime. There was no suggestion that the applicant and her partner had been prevented from getting married or entering into a registered partnership. She was not to be criticised in any way for choosing not to. However, having made that choice, she had to accept the legal consequence that flowed from it, namely that she remained outside the scope of the “protected” family relationship to which the “testimonial privilege” exception attached. In these circumstances, the Court did not consider that the alleged interference with her family life had been so burdensome or disproportionate as to imperil her interests unjustifiably. Nor had her thirteen-day detention been disproportionate as the domestic law had contained sufficient procedural safeguards.
Conclusion: no violation (ten votes to seven).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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