CONCURRING OPINION OF JUDGE COSTA, JOINED BY JUDGES HAJIYEV AND MALINVERNI

(Translation)

1. I voted with the majority in finding that there had been no violation by the Netherlands of Article 8 of the Convention.

2. I did so, however, with great hesitation and now feel the need to explain my position.

3. The applicant, Ms van der Heijden, had been living with Mr A. for 18 years and together they had two children, both of whom Mr A. recognised as his. For reasons best known to themselves they have never married, nor have they entered into a registered partnership (in France this would be known as a “Pacs” ( pacte civil de solidarité )). One day in 2004, while the applicant and her partner were in a café, a man was shot and killed there. Mr A. was suspected of the murder and a criminal investigation was opened against him. Some two weeks later Ms van der Heijden was summoned by the investigating judge as a witness in the criminal investigation. She refused to testify, arguing that she should be regarded as entitled to the testimonial privilege afforded by the Netherlands Code of Criminal Procedure to the current or former spouses and registered partners of suspects. The Code also provides that refusal to testify constitutes a criminal offence. Following complex criminal proceedings, which are summarised in paragraphs 13 to 22 of the judgment, the domestic courts rejected the applicant’s testimonial privilege defence and she was imprisoned, but was finally released after thirteen days. It should be noted that she did not ultimately testify against (or in favour of) her partner.

4. Ms van der Heijden’s main complaint was that the measure taken against her to compel her to testify, namely a judicial order combined with a sanction, constituted a disproportionate interference with her right to respect for private and family life and thus breached Article 8 of the Convention. She further complained that she had been a victim of discriminatory treatment in breach of Article 14 of the Convention. The judgment dismissed her complaints, finding that Article 8 had not been breached and that it was not necessary in those circumstances to examine the complaint under Article 14 taken in conjunction with Article 8.

5. The judgment contains the classical reasoning. There had certainly been an interference with the applicant’s rights under Article 8. However, the measure complained of had been in accordance with the law, which deliberately drew a distinction between de facto partners on the one hand, and registered partners and spouses on the other; it pursued a legitimate aim, namely the prevention of crime, and had not been disproportionate to that aim.

6. My hesitations related to that last point. I accept that the obligation to testify in criminal proceedings is a civic duty and that the exemption from that obligation, namely the privilege afforded to certain persons, such as close relatives (ascendants, descendants, etc.) and spouses of murder suspects, must be interpreted restrictively . I also have no difficulty accepting that in the context of its margin of appreciation the legislature may draw the line wherever it sees fit and that it is arguably not unreasonable to reserve the privilege for registered partners and to exclude other partners – even though in the present case, in view of the stability of the relationship, one may question the ratio decidendi of the national legislature. I thus agree, noting incidentally that the reasoning is more relevant to Article 14 than to Article 8, but that is of little import.

7. What is more difficult to accept, however, is that in addition to the fact that Ms van der Heijden was not entitled to claim testimonial privilege, even though the suspect was her longstanding partner and father of her two children, she was actually imprisoned as a means of compelling her to fulfil her duty.

8. In many countries there are various “normal civic obligations” (to use the wording of Article 4 § 3 (d) of the Convention): payment of taxes (see Article 1 § 2 of Protocol No. 1), jury service (see the Zarb Adami v. Malta judgment of 20 June 2006), compulsory military service (where it exists) or service in the country’s armed forces in time of war or mobilisation, voting (where mandatory), assisting a person in danger, etc. It is admittedly not illegitimate to exert a degree of constraint, whether dissuasive or punitive, or both, in order to render such obligations effective and to ensure the law is enforced. For example, tax evasion or fraud is often harshly punished, because public finance will be undermined if taxpayers stop paying their taxes. Similarly, many criminal codes impose harsh punishments for failure to assist someone in danger. The Court has always accepted that, in principle, the choice of law-enforcement policy is left to the discretion of the State (unless it is arbitrary) – see, for example, Salabiaku v. France , judgment of 7 October 1988, § 97.

9. In the present case the applicant was imprisoned for thirteen days. Is that excessive? Technically, under the domestic law, it was not a sentence , strictly speaking, but a measure accompanying the judicial order to testify. Be that as it may, there is a difference between the technical classification and the reality. She was indeed deprived of her liberty, which is something very serious, even crucial in the general scheme of the Convention. It was therefore with considerable reluctance that I resigned myself to considering that Article 8 had not been breached in respect of Ms van der Heijden. But how would I have reacted and voted if the deprivation of liberty had been much longer? Good question – but I know the answer only too well.

10. It seems to me that, ultimately, States such as the Netherlands and others that have such a system should reflect “objectively” on its advantages and disadvantages. Admittedly, the prosecution of crime, the judicial elucidation of cases, the principle of justice due to victims, are all strong factors to be taken into account; refusal to testify should not be easy or futile and cannot be allowed to undermine social policies of such importance. But a witness who does not wish to testify in a case such as the present may also have serious reasons for not doing so – reasons that are not frivolous, such as affection for the partner, fear of reprisal or the possible reactions of the couple’s children. It is thus important to reflect on properly adapted means of incitement or even constraint.