CASE OF VAN DER HEIJDEN v. THE NETHERLANDS
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Ann Power-Forde;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Jean-Paul Costa;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Nicolas Bratza
10. The applicant was born in 1969 and lives in ‘s-Hertogenbosch. 11. On the night of 9 to 10 May 2004, a man was shot and killed in a café in ‘s-Hertogenbosch by a person believed to be the applicant’s unmarried life partner, Mr A. The applicant was understood to have been in the company of Mr A. at the relevant time. 12. According to the Government, Mr A. had been convicted of similar offences in 1998 and 2003, and on the latter occasion of attempted manslaughter using a firearm. While serving his sentence for that offence, Mr A. had been given weekend leave; it was during this particular weekend that the above-mentioned shooting took place. 13. On 25 May 2004, having been summoned as a witness in the criminal investigation that had been opened against Mr A., the applicant appeared but refused to testify before the investigating judge (rechtercommissaris). She explained that, although they were not married and had not entered into a registered partnership (geregistreerd partnerschap), she and Mr A. had been cohabiting for eighteen years in a relationship out of which two children had been born, both of whom had been recognised by Mr A. The applicant argued that on the basis of this relationship she should be regarded as entitled to the testimonial privilege (verschoningsrecht) afforded to suspects’ spouses and registered partners under Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure (Wetboek van Strafvordering; see paragraph 24 below). 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 (gijzeling), finding that the applicant’s personal interests in remaining at liberty outweighed those of the prosecution. The public prosecutor appealed against this decision to the ‘s-Hertogenbosch Regional Court (rechtbank). 14. On 2 June 2004 the ‘s-Hertogenbosch Regional Court, sitting in chambers (raadkamer), quashed the investigating judge’s decision of 25 May 2004 and ordered the applicant’s detention for failure to comply with a judicial order. It considered that it could reasonably be assumed that the applicant was able to convey what had occurred in relation to Mr A. before, during and after the shooting. It noted that, according to the provisions of Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure as in force from 1 January 1998, the (former) spouse or the (former) registered partner of a suspect were competent but not compellable witnesses, that is to say, persons entitled to testimonial privilege. It further held: “It follows from the wording and the legal history of [Article 217, opening sentence and sub-paragraph 3,] that the legislature has quite recently and unambiguously chosen not to include in the scope of [the privilege set out in Article 217, opening sentence and sub-paragraph 3,] any partners other than spouses and registered partners (as well as former spouses and former registered partners). As it does not appear that [the applicant] and the suspect are or have been married or that they are or have been registered partners, the Regional Court is of the view that [the applicant] cannot claim an entitlement to the testimonial privilege laid down in Article 217 of the Code of Criminal Procedure. This is not altered by the fact that [the applicant] and the suspect are engaged in another kind of longterm cohabitation. The Regional Court rejects the argument raised by counsel for [the applicant] that it follows from Articles 8 and 14 of the Convention that the Netherlands legislature cannot limit the group of persons (related to a suspect) entitled to testimonial privilege. An extension of that group must, also in view of the far-reaching consequences thereof, be decided by the legislature and for that reason goes beyond the judicial function (rechtsvormende taak) of the courts.” 15. In its subsequent balancing of the competing interests involved, the Regional Court noted that the facts at issue concerned one of the most serious crimes set out in the Criminal Code (Wetboek van Strafrecht) and concluded that the applicant’s personal interests were outweighed by the general interest of the truth being uncovered. It further added that the circumstance that the applicant and Mr A. were cohabiting as if they were in a marriage or a registered partnership could not lead it to balance the interests differently. Rejection of the request to issue a detention order on the basis of that circumstance would entail that the applicant was nevertheless, and in circumvention of Article 217 of the Code of Criminal Procedure, granted a right to testimonial privilege, and that would be contrary to the legislature’s choice. 16. On the same day, 2 June 2004, at around 3.30 p.m., the applicant was taken into detention for failure to comply with a judicial order. As required by Article 221 of the Code of Criminal Procedure (see paragraph 26 below), the applicant was heard on 3 June 2004 by an investigating judge, who rejected a release request by counsel for the applicant and who notified the Regional Court within the statutory time-limit of twenty-four hours after she was taken into detention. 17. On 4 June 2004 the Regional Court, sitting in chambers, examined whether the applicant’s detention should continue, and in that context it heard the applicant, who persisted in her refusal to give evidence in the criminal investigation against Mr A. The Regional Court agreed with the decision taken in chambers on 2 June 2004 that the applicant was not entitled to testimonial privilege. Concluding that the interests of the investigation in obtaining the applicant’s evidence outweighed the interests invoked on behalf of the applicant, the Regional Court decided that the applicant was to be kept in detention for twelve days, with a possibility of further extension. The applicant lodged an appeal with the Court of Appeal (gerechtshof). 18. On 15 June 2004 the Regional Court, sitting in chambers, examined a request by the prosecution of 14 June 2004 to extend the applicant’s detention. After hearing the public prosecutor, the applicant and her lawyer the Regional Court rejected the request and ordered the applicant’s immediate release. It found that the interest of the truth being uncovered in the criminal proceedings against Mr A. was outweighed by the applicant’s personal interest in being released, also taking into account the fact that the applicant’s detention entailed an interference with her rights under Article 8 of the Convention (“mede gelet op het feit dat de vrijheidsbeneming van de getuige een inbreuk op artikel 8 van het EVRM tot gevolg heeft”). 19. On 24 June 2004, the ‘s-Hertogenbosch Court of Appeal dismissed the applicant’s appeal (hoger beroep) and upheld the impugned decision of 4 June 2004. 20. On 31 May 2005, after noting that the applicant had been released on 15 June 2004, the Supreme Court (Hoge Raad) declared inadmissible for lack of interest the applicant’s subsequent appeal on points of law (cassatie). The Supreme Court nevertheless 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 Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure, as well as her second complaint that to deny her this privilege was contrary to Articles 8 and 14 of the Convention. 21. Having noted the wording of Article 217, opening sentence and subparagraph 3, of the Code of Criminal Procedure as in force since 1 January 1998, the Supreme Court rejected the first complaint. As to the applicant’s grievance based on Articles 8 and 14 of the Convention, the Supreme Court held: “Testimonial privilege as laid down in Article 217, opening sentence and sub-paragraph 3, of the Code of Criminal Procedure seeks to protect the ‘family life’ within the meaning of Article 8 of the Convention that exists between the spouses and partners referred to in that provision. By granting this privilege to spouses and registered partners but not to other partners – even when such partners, like the applicant and her partner, cohabit in a sustained fashion – the law differentiates between the different forms of cohabitation at issue here. Even assuming that this can be said to constitute a difference in treatment of persons in the same situation, there is an objective and reasonable justification for this difference in treatment, having regard to the fact that the granting of testimonial privilege to spouses and registered partners is an exception to the statutory duty to testify, which exception makes the interest of uncovering the truth yield to the interests of those relationships, with the statutory arrangement delimiting this exception in a clear and workable manner, thus serving legal certainty.” 22. No further appeal lay against this ruling. 23. 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. 24. Article 217 of the Code of Criminal Procedure provides as follows: “The following shall be excused the obligation to give evidence or answer certain questions: 1º: the relatives in the ascending or the descending line of a suspect or co-suspect, whether connected by blood or by marriage; 2º: the relatives ex transverso [i.e. siblings, uncles, aunts, nieces and nephews, etc.] of a suspect or co-suspect, whether connected by blood or by marriage, up to and including the third degree of kinship; 3º: the spouse or former spouse, or registered partner or former registered partner, of a suspect or co-suspect.” 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. 25. 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. 26. Article 221 of the Code of Criminal Procedure provides as follows: “1. If, when questioned, the witness refuses without any lawful reason to answer the questions put to him or to make the required statement or take the required oath or affirmation, the investigating judge shall, if this is urgently required in the interest of the investigation, either proprio motu or if so requested by the public prosecutor or by the defence, order that the witness shall be detained for failure to comply with a judicial order until the Regional Court has given a decision in the matter. 2. The investigating judge shall notify the Regional Court within twenty-four hours after the detention has commenced, unless the witness is released from detention before then. The Regional Court shall, within forty-eight hours [from the notification], order that the witness be kept in detention or released.” Article 222 of the Code of Criminal Procedure provides as follows: “1. The Regional Court’s order for the witness to remain in detention shall be valid for no longer than twelve days. 2. However, as long as the preliminary judicial investigation (gerechtelijk vooronderzoek) remains pending, the Regional Court may, on the basis of the findings of the investigating judge or at the request of the public prosecutor, after having again questioned the witness, extend the validity of the order again and again (telkens) for twelve days each time.” 27. Article 223 of the Code of Criminal Procedure provides as follows: “1. The investigating judge shall order the witness released from detention as soon as he has fulfilled his obligation or his evidence is no longer needed. 2. The Regional Court may at any time order the witness released from detention, whether on the basis of the findings of the investigating judge, proprio motu or if so requested by the public prosecutor or by the defence. The witness shall be heard or summoned beforehand. 3. If the witness’s request to be released from detention is refused, he may appeal within three days of the official notification of the decision, and in the event that his appeal is dismissed, he may within the same time-limit lodge an appeal on points of law. ... 4. In any event, the public prosecutor shall order that the witness be released as soon as the preliminary judicial investigation has been closed or discontinued.” 28. 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). 29. 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). 30. 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: “In 1997/1998 article 217 of the Code of Criminal Procedure (CCP) was amended to the extent that the right to be exempted from testifying would also apply to a witness who had entered into a registered partnership with the defendant. This amendment in itself did not lead to any debate on the question whether other forms of relationships should be entitled to the same exemption. However, this amendment – among many others – was a consequence of the introduction of registered partnership, which in turn was preceded by a full survey (concluded in 1985, [Parliamentary Documents, Lower House of Parliament, 15401, no. 5]) of all legislation that made a distinction between married and unmarried couples. With regard to article 217 CCP the survey mentioned that an amendment should be considered to the effect that the article would include a life partner (p. 16). Following this survey the Kortmann committee [a committee tasked with reviewing legislative projects, named after its chairman, Professor S.C.J.J. Kortmann] presented its report ‘Partnerships’ (Leefvormen, 20 December 1991) to the Cabinet. The committee was of the opinion that the best way to remove all existing distinctions would be to introduce two new possibilities of registering partnerships in addition to marriage. Together these three forms of registration could be used as categories in most legal provisions that attached legal consequences to different types of partnerships. Following further discussion in parliament ([Parliamentary Documents, Lower House of Parliament, 15401, nos. 9, 10 and 11]) the Government decided to introduce only one new form of registration, which then became known as registered partnership. In doing so, the Government accepted that in several instances, specific provisions might be required to accommodate situations of family life not covered by the accepted categories. However, in the context of article 217 CCP this was not considered necessary.” 31. All Council of Europe Member States have addressed in their legislation the question whether in criminal proceedings the spouse of the defendant can be compelled to give evidence. The following is a brief and necessarily condensed survey of the position in the various domestic legal orders. It is based on information available to the Court at the time of its hearing (see paragraph 8 above). 32. In no Council of Europe member State, with the exception of France and Luxembourg, are spouses obliged to give evidence in criminal proceedings in which the other spouse is a suspect. In a few cases, namely Belgium, Malta and Norway, exclusion of the evidence of the suspect’s spouse is automatic; in general, however, the spouse may opt to give evidence or claim a privilege or an exemption when called as a witness. 33. The possibility formally to register a partnership exists in Austria, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Slovenia, Spain (some of the autonomous communities), Sweden, Switzerland, Ukraine and the United Kingdom. Some of these States allow such registration only if the parties are of the same sex (including Austria, Denmark, Finland, Germany, Hungary, Slovenia and Sweden); the other member States concerned provide registration of a partnership as an alternative to marriage when the parties are a man and a woman. 34. Of the twenty member States that allow the registration of partnerships, thirteen are prepared to exempt the suspect’s registered partner from giving evidence: these are Austria, Belgium, the Czech Republic, Germany, Iceland and the Netherlands, whose legislation explicitly so provides, and Denmark, Finland, Hungary, Norway, Sweden, Switzerland and the United Kingdom, whose laws assimilate registered partnership to marriage in this aspect as in others. Greece and Ireland do not extend this privilege to registered partners; France and Luxembourg grant no testimonial privilege at all. 35. A minority of member States – namely Austria, Andorra, Finland, Georgia, Germany, Hungary, Iceland, Liechtenstein, Lithuania, Norway, Poland, Portugal, Slovakia, Sweden, Turkey and Ukraine – exempt the person engaged to be married to the suspect from the duty to give evidence. However, apart from Finland, Germany, Hungary, Iceland, Norway, Sweden and Turkey, these member States qualify this exemption by requiring evidence of the existence of a bond similar to marriage, such as stable cohabitation or a child born of the relationship. 36. Cohabitees who are not married, engaged to be married or in a registered partnership with the suspect appear to be dispensed from giving evidence unconditionally only in Albania, Andorra, Lithuania and Moldova. By contrast, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia, “the Former Yugoslav Republic of Macedonia”, Hungary, Iceland, Italy, Liechtenstein, Montenegro, Norway, Portugal, Serbia, Slovakia, Spain, Sweden and Switzerland require proof of the marriage-like nature of the relationship, usually in the form of children born of it, demonstrable financial arrangements or length of cohabitation. It would appear that the other Council of Europe member States do not permit a person merely cohabiting with the suspect to withhold his or her evidence.