7. Testimonial privilege

7. Testimonial privilege

416. An attempt to compel an individual to give evidence in criminal proceedings against someone with whom that individual had a relationship amounting to family life constituted an interference with his or her right to respect for his or her “family life” (Van der Heijden v. the Netherlands [GC], § 52; Kryževičius v. Lithuania, § 51). Such witnesses are relieved of the moral dilemma of having to choose between giving truthful evidence and thereby, possibly, jeopardising their relationship with the suspect or giving unreliable evidence, or even perjuring themselves, in order to protect that relationship (Van der Heijden v. the Netherlands [GC], § 65). For this reason, it can only apply to oral evidence (testimony), as opposed to real evidence, which exists independently of a person’s will (Caruana v. Malta (dec.), § 35). 417. The right not to give evidence constitutes an exemption from a normal civic duty acknowledged to be in the public interest. Therefore, where recognised, it may be made subject to conditions and formalities, with the categories of its beneficiaries clearly set out. It requires balancing two competing public interests, i.e. the public interest in the prosecution of serious crime and the public interest in the protection of family life from State interference (Van der Heijden v. the Netherlands [GC], §§ 62 and 67). 418. The Court, for example, accepted that restricting the exercise of the testimonial privilege to individuals whose ties with the suspect could be objectively verified by drawing the line at marriage or registered partnerships (but not extending it to long-term relationships) was acceptable (Van der Heijden v. the Netherlands [GC], §§ 67-68). Kryževičius v. Lithuania concerned a spouse compelled to testify in criminal proceedings in which his wife was a “special witness”. The exemption from testifying under the domestic law only related to family members of a “suspect” or “accused” but not of a “special witness”. Nonetheless, as this status was sufficiently similar to the status of a suspect, the criminal proceedings could be said to have been “against” the applicant’s wife. Hence, punishing the applicant for refusing to testify in the criminal proceedings involving his wife as a suspect, constituted an interference with his right to respect for his “family life” (§ 51). Refusing testimonial privilege to the spouse was found to be in violation of Article 8 in this case (§§ 65 and 69).