JOINT DISSENTING OPINION OF JUDGES TULKENS, VAJIĆ, SPIELMANN, ZUPANČIČ AND LAFFRANQUE

(Translation)

1. We were unable to support the majority’s conclusion that there had been no violation of Article 8 of the Convention, or of Article 14 taken in conjunction with Article 8. Without returning to the factual and legal aspects of this case, which have already been dealt with elsewhere, we share some of the observations in the joint dissenting opinion of Judges Casadevall and López Guerra and wish to supplement that opinion on certain points.

2. On being summoned to appear in the context of a judicial investigation into a murder, the applicant refused to testify against her partner, with whom she had enjoyed a stable family life for eighteen years, but without entering into a marriage or a registered partnership, and had had two children, who were recognised by the father as his own. Contrary to the decision of the investigating judge, but at the request of the public prosecutor, she was imprisoned by the Regional Court for refusing to comply with a court order. As she persisted in her refusal to testify, her requests for release were denied and she was deprived of liberty for the statutory twelve-day period. That period could have been extended by further periods of twelve days until the completion of the judicial investigation (Articles 221 and 222 of the Netherlands Code of Criminal Procedure).

3. In the applicant’s case, this singular situation stemmed from Article 217 of the Code of Criminal Procedure, as in force from 1 January 1998, which exempted certain persons, including “the (former) spouse or the (former) registered partner” of a suspect, from the obligation to testify or to answer certain questions (sub-paragraph 3). It is not in dispute that the raison d’être of this exemption lies in the protection of family relationships. The legislature sought to ensure that those concerned would not have to face “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” (paragraph 25 in fine of the judgment).

Article 8 of the Convention

4. Even though the obligation to testify constitutes a “civic obligation”, as the Government argued, it is not in dispute that the authorities’ attempt to oblige the applicant to testify against her partner in the criminal proceedings against him constituted an “interference” with the applicant’s right to private and family life (paragraph 52 of the judgment).

5. In order to ascertain whether this interference was necessary in a democratic society, the majority begin by referring to the lack of common ground , which, although “not in itself decisive, ... militates in favour of a wide margin of appreciation” (paragraph 61 of the judgment), thus rendering any other argument superfluous. As Judges Casadevall and López Guerra have also observed, a more precise analysis of the comparative law material presented by the Court concerning testimonial privilege in the member States of the Council of Europe shows that, on the contrary, there is indeed common ground in this area, that is to say that a majority of States would de facto have exempted the applicant from testifying in such a case (paragraphs 31 et seq. of the judgment). This observation confirms, once again, the relative nature of the Court’s approach to the existence of a consensus and, more generally, raises the question whether it should not be “disentangled” from the margin of appreciation [1] in certain types of cases.

6. The Court then bases its reasoning on a starting point that we consider erroneous, since it overlooks the structure of the Convention right in question. Under Article 8, the Court takes the view that the present case involves two competing interests , namely the interest in the protection of family life from State interference and the interest in the prosecution of serious crime, both being important, having regard to the common good (paragraph 62 of the judgment). This presentation is quite simply contrary to the spirit and letter of Article 8 of the Convention. Respect for family life is not only an interest but a right guaranteed by Article 8 § 1. The prevention of crime is, for its part, an interest included among the exceptions to the enjoyment of the right in Article 8 § 2. Whilst the right must be interpreted broadly, the exceptions must be construed narrowly. It is therefore incorrect, in the present case, to state that these are two competing interests that must be weighed in the balance . Looked at rigorously, an assessment of the necessity of the interference must be followed by an examination of its proportionality .

7 . The foregoing observation is not purely formal but goes to the substance of the right guaranteed by Article 8. The majority in fact suggest that the needs of an investigation could be met, from now on, without regard to the obligation to respect fundamental rights, and this would be a serious and worrying departure from the Court’s previous case-law (see, among many other authorities, Saadi v. Italy [GC], no. 37201/06, ECHR 2008). As one commentator has observed, “[by choosing the technique that consists in] placing the right to be protected on a par with its possible limitations ... and by combining it with the broad margin of appreciation afforded to States in conflicts of this kind, the Court appears to be giving much wider scope to limitations of freedom” [2] .

8. The sole difference between the applicant and persons who were exempted from the obligation to testify lay in the fact that she was not married or in a registered partnership, thus entailing treatment based on discrimination, as will be shown below in relation to Article 14 of the Convention taken together with Article 8 ( infra , §§ 13 et seq.). Taking Article 8 alone, whilst it is understandable that the exemption should be accorded to ex -spouses and ex -partners, in particular because of the need to protect any children they may have had together, it does not appear logical for those who have maintained a stable family life with the person against whom they are asked to testify to be denied such an exemption merely on the grounds that their relationship is of a de facto nature. The Government acknowledge that the general assumption underlying the exemption of spouses and registered persons from the duty to testify is that their relationship with the suspect or accused is so close that it is unfair to hold them to that duty. Whether married, registered or having a similar long-lasting relationship, de facto , all partners of suspects who are called to give evidence are faced with the same moral dilemma by having to make a choice between testifying, and thereby possibly jeopardising their relationship with the suspect, or giving false evidence in order to protect that relationship.

9. According to the majority, it was necessary to interfere with the applicant’s right to respect for her family life because giving evidence must be considered a civic duty and it would be going too far if public authorities had to justify the impact that results from this public duty in each and every case. This argument appears irrelevant to us. We submit that it is not that the duty to give evidence in itself always constitutes a disproportionate interference with family life. Rather, we contend that compelling the applicant to testify against her partner, by depriving her of her liberty, constitutes an interference with her family life. The emphasis does not lie on the duty to give evidence in criminal proceedings in general, but on the pressure that is used to extract evidence from a party to a relationship within “family life” in the sense of Article 8 of the Convention, which extends to de facto relationships. It is the coercion used to force the applicant against her will to testify against her partner that causes the violation. In fact, the applicant was “penalised” for refusing to testify.

10. We are not persuaded that the determination of the existence or not of such a solid and continuous relationship would necessarily compromise the principle of legal certainty or lead to practical problems. Firstly, it would be for the suspect and/or his or her partner to substantiate the character of their relationship. Moreover, this obligation already rests on the witness who claims that he or she is married to, or that he or she has a registered partnership with, the suspect. It is further to be noted that information concerning, for example, cohabitation and the presence of children can be found in the public registries and in the municipal personal records database. Lastly, in other branches of the Netherlands law, such as taxation, child maintenance, leases and social security, no distinction is drawn between marriage, registered partnership and other forms of living together as a couple. If in those other areas, albeit “governed by different considerations which are not germane to the present case” (paragraph 74 of the judgment), there is no particular difficulty, the same principle should apply a fortiori when it comes to giving evidence in judicial proceedings, which is a less frequent situation.

11. Having regard to the aforementioned reasons behind the granting of testimonial privilege, as well as to the consequences of a refusal to testify, we consider that there may exist special circumstances under which it must be concluded that the suspect and his or her non-marital and non-registered partner have such a solid and continuous family life that the protection of that family life has to prevail over the duty to testify, irrespective of the reasons why the suspect and his or her partner have not entered into a marriage or a registered relationship.

12. Lastly, the nature and burden of the measure of constraint, decided without taking account of the social circumstances, on a discretionary basis and without any possibility of appeal (paragraph 77 of the judgment), must necessarily come into play in the examination of proportionality. The applicant who, at the material time, was the mother of two children, the youngest being only two years old, was deprived of her liberty for thirteen days. The measure was imposed on her because of her refusal to comply with a court order, namely, an order to give testimony against her partner in a criminal case concerning murder. In other words it was a measure of deprivation of liberty to compel the applicant to testify (called Beugehaft in German), because if she had agreed to do so she would have been released (Article 223 of the Code of Criminal Procedure), thus entailing a risk of abuse that is commonly associated with inquisitorial systems. As to the procedural safeguards mentioned in the judgment (paragraph 77 of the judgment), we find them quite simply irrelevant when it comes to such a serious measure involving a restriction of the right to liberty guaranteed by the Convention. The measure of constraint thus imposed appears to us to be an interference that is out of proportion with the applicant’s right to respect for her family life.

Article 14 of the Convention in conjunction with Article 8

13. With regard to Article 14 of the Convention, in conjunction with Article 8, the Government argue that this is not a case of equal circumstances, because testimonial privilege is linked only to cohabitation that has been publicly demonstrated by means of a formal procedure: marriage or registered partnership.

14. As set out before, the rationale of the testimonial privilege stems from the inherent unfairness of holding life-partners to the duty to testify against each other because of the profound moral dilemma this causes. The substantial aim of the privilege is the protection of “family life”, which has an important social value in society and exists regardless of formal registration. This social value (and human right) is considered so important that in nearly every judicial system family members are exempted from giving evidence against each other, even if this is detrimental to the process of establishing the truth. Should the protection of this privilege then be dependent on formal registration? Taking into consideration the underlying principle of the testimonial privilege there is no objective or reasonable justification for a difference between a long-standing and stable family relationship and partners who are married or have been registered as partners.

15. The majority rely on the fact that there has been no suggestion that the applicant was prevented for some reason from entering into a marriage or a registered partnership (paragraphs 72 and 73 of the judgment), thus implying that she could somehow have protected herself against the risk of being called upon one day to testify against her partner, whose criminal background was known to her. We find such an argument speculative, but above all circular, since it presupposes and implicitly but undoubtedly acknowledges a violation of Article 14 of the Convention in conjunction with Article 8. Moreover, it runs counter to the Convention’s dominant philosophy to the effect that the rights guaranteed are not conditional.

16. The issue, central to the whole case, is therefore an unfounded discrimination between couples that are married / registered and those who are not. We are dealing with a situation in which the right not to give evidence , as it is qualified by the majority (paragraph 67 of the judgment), is accorded to protect family life, whereas it follows logically from our constant case-law that, once a right has been accorded, the State cannot be allowed to discriminate unjustifiably between different categories of persons afforded this right (see, inter alia , Stec and Others v. the United Kingdom , decision [GC] of 6 July 2005). The formalistic problem with the position of the majority is therefore one of not taking into account the discrimination between two classes of people – those accorded the right because they are married or registered, and those not accorded the right because they are not. The concern here is arbitrariness, in the sense that the Netherlands law accords equal status to the de facto living together (cohabitation) of different people for many other purposes, yet not in respect of testimonial privilege, while the majority still accept that there was family life in the present case (paragraph 51).

17. In conclusion, we are of the view that there has also been a violation of Article 14 of the Convention in conjunction with Article 8.