JOINT DISSENTING OPINION OF JUDGES CASADEVALL AND LÓPEZ GUERRA

(Translation)

1. We are unable to follow the majority in finding that there has been no violation of Article 8 and that there is no need to examine the complaint under Article 14 in conjunction with Article 8 of the Convention in the present case, a case which goes directly to the right to respect for family life. In our view, it would be incompatible with that provision if the applicant’s right to respect for her family life were to be made subject to a formal requirement such as registration.

2. The existence of family life, in its autonomous Convention meaning, is a question of fact and social reality. The Court’s constant case-law has never required any formalities without which it would not be recognised. However, we will not dwell on that point as the respondent Government acknowledge such a reality in the applicant’s situation and admit that there might have been an interference (see paragraphs 40 and 41 of the judgment), with the majority arriving at the same conclusion as to the applicability of Article 8 (paragraphs 50 to 52). Once the essential element of family life had been established in the present case, certain conclusions then had to be drawn and questions addressed: whether the interference was necessary in a democratic society and, above all, whether the means used were proportionate to the legitimate aim pursued.

3. The authorities had ordered the applicant to testify, against her will and on pain of imprisonment, in a criminal case where the defendant was her partner – a man with whom she had been living for eighteen years (at the material time) and who, moreover, was the father of her two children. The constraint at issue appears to us to be unfair and cruel. Imagine the moral dilemma and question of conscience facing the applicant: should she give honest testimony with the risk of having her partner convicted; give false testimony with the risk of committing perjury; or refuse to testify and accept her deprivation of liberty? Having chosen the third option, the applicant was imprisoned for thirteen days for refusing to comply with a court order, with the threat of further twelve-day extensions until the close or end of the judicial investigation, as provided for by law (Articles 222 and 223 of the Code of Criminal Procedure).

4. The majority asked the question whether the respondent State, by prescribing in its legislation a limited category, from which the applicant was excluded, of persons who were exempted from the otherwise standard obligation to give evidence in a criminal trial, had violated the applicant’s rights under Article 8 (paragraph 65). In our view, bearing in mind that Article 217 of the Code of Criminal Procedure refers to relatives in the ascending or descending line, whether connected by blood or by marriage, to collateral relatives (siblings, uncles, aunts, nieces and nephews, and others) up to and including the third degree of kinship, and to spouses and registered partners, this cannot be regarded, to say the least, as a limited category but rather a broad category of persons. To claim that this limitation “.... ha[d] the effect of restricting the exercise of the said exemption to individuals whose ties with the suspect [could] be verified objectively” (paragraph 68) does not appear coherent. To place various relatives (uncles, aunts, nephews and nieces, whether related by blood or by marriage) in a privileged position compared to persons who cohabit and have children together is completely inconsistent with the very notion of family life as developed by the Court.

5. To the above-mentioned broad category of persons covered by Article 217 of the Code of Criminal Procedure, one must add former spouses and former registered partners. On that point it may be wondered what “sort” of family life will still exist between two persons after separation or divorce! In other words, Dutch law provides for testimonial privilege when it comes to former spouses and former registered partners – persons who are no longer married or in a registered partnership (a situation comparable to that of the applicant) and who, logically speaking, no longer live together (unlike the applicant) or may, however, still live together (which would place them in a similar situation to that of the applicant), and who may not even have had any children together (the applicant has two). By contrast, that privilege is not afforded to the applicant, whose situation is perfectly comparable. That difference in treatment, which is both inconsistent and unjustified, quite clearly engages Article 14 in conjunction with Article 8.

6. To render the protection of the applicant’s right to respect for her family life subject to a mere registration formality is not consistent with the principles laid down in the Court’s case-law. A mere formality indeed, as such an arrangement could have been ended simply by the registration of an agreement to that effect (paragraph 73). Moreover, after separation, being ex-partners and even without sharing family life, they could have continued to benefit from the privilege. The majority take the view that: “[i]t has not been suggested that the applicant was unaware of the fact that Article 217 of the Code of Criminal Procedure reserved testimonial privilege to witnesses bound to the suspect by marriage or registered partnership ...” (paragraph 70), but our own conclusion is that, “... given the length and nature of her relationship with Mr A.” (same paragraph in fine ), the contrary is more likely to be true.

7. The question of testimonial privilege not being regulated in a uniform manner in all member States of the Council of Europe, we would not claim that there is a consensus in this area. However, it is noteworthy that there are at least thirty-eight member States that recognise a right of testimonial privilege in criminal proceedings, twenty-two of which afford such right to persons in the same situation as the applicant (paragraph 36). It is not a question of proposing a uniform solution or of imposing a general obligation on all States, as the margin of appreciation comes into play here, but each situation must be carefully addressed, on a case-by-case basis, in each State. The applicant’s situation, in any event, called for an assessment by the judicial authorities that was more respectful of her right to family life, especially as it transpires from the Explanatory Memorandum in respect of Article 217 of the Netherlands Code of Criminal Procedure, and from an Advocate General’s advisory opinion, that:

“... 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.” (paragraph 25, emphasis added)

8. In the exercise of his discretionary power, the investigating judge was entitled to place the applicant in detention (Article 221.1 Code of Criminal Procedure), but he could also choose not to. He did not do so, finding that her personal interest in remaining at liberty outweighed the interests of the prosecution (paragraph 13), but the Regional Court decided otherwise. However, after thirteen days of detention, it ordered the applicant’s release, finding that “... the applicant’s detention entailed an interference with her rights under Article 8 of the Convention” (paragraph 18). Subsequently, after declaring that the third sub-paragraph of Article 217 of the Code of Criminal Procedure sought to protect the “family life” – within the meaning of the Convention – that existed between the spouses and partners referred to in that provision, the Supreme Court found that “the law [had] differentiate[d] between the different forms of cohabitation at issue here” (paragraph 21).

9. The necessity of the interference at issue remains questionable in our view. Moreover, we would emphasise that the means used were disproportionate. Thirteen days of detention with the threat of subsequent twelve-day extensions was a patently excessive measure which entailed a violation of the right to respect for family life. Ultimately, the applicant never did give evidence.

[1] . See C.L. Rozakis , “Through the Looking Glass: an ‘Insider’’s View of the Margin of Appreciation”, in La Conscience des Droits : Mélanges en l’Honneur de Jean-Paul Costa , Paris, Dalloz, 2011, p. 536.

[2] . N. Hervieu , Commentary appended on 23 March 2009 to “Les opérations escargots des chauffeurs-routiers devant la Cour de Strasbourg”, in Lettre « Actualités Droits-Libertés » du CREDOF , ( http://combatsdroitshomme.blog.lemonde.fr/2009/03/07/les-operations-escargots-des-chauffeurs-routiers-devant-la-cour-de-strasbourg-ced/ ) (translation).