When it comes to protecting family life, the Strasbourg Court is torn between realism and formalism. The recent Grand Chamber case of van der Heijden v Netherlands is a good example of this. The Court showed itself to be deeply divided over a question of testimonial privilege – meaning the right not to testify against one’s family member or partner. By 10 votes to 7 (and additionally 3 concurring judges expressing their hesitation), it held that the Dutch State cannot be criticized for limiting testimonial privilege to those who are related by blood and those who have formalized their relationship through marriage or registration.
At first glance this may well seem reasonable, but you might change your mind – as I did – when you hear the facts of this case. In a nutshell: Ms. van der Heijden was kept in detention for 13 days because she refused to comply with an order to testify against her life-partner, with whom she had been cohabiting for 18 years and with whom she has two children. In what follows, I will argue that it is regrettable that the Court departs from a flexible approach that puts people and not legal categories first.
One night a man was shot dead in a café and the police suspected A of being the shooter. They summoned van der Heijden, the long-time partner of A. and mother of his children, as a witness. She refused to testify however, arguing that the testimonial privilege accorded to spouses and registered partners also applied to her. The Regional Court subsequently ordered her detention for failure to comply with a legal order. She was kept in detention for 13 days in total. She eventually complained to the Strasbourg Court that the attempt to compel her to give evidence constituted a violation of her right to family life (Article 8 of the Convention).
Judgment: Courting Legal Fiction
The Court begins by acknowledging that there is “family life” between the applicant and her partner A. Thus, the attempt to compel her to give evidence was an interference with her family life – the question was whether this could be justified. The interference was in accordance with the Dutch law and the aim of the law is legitimate (namely “the prevention of crime”), so the Court’s assessment turns on the issue of necessity. Was the interference “necessary in a democratic society”? The Court holds that:
[Privileged ] 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. (par. 65)
The applicant argued that she enjoyed the same kind of protected relationship with A., even though their relationship had not been formalized. The Court is not convinced:
“States are entitled to set boundaries to the scope of testimonial privilege and to draw the line at marriage or registered partnerships. . .. Marriage confers a special status on those who enter into it; the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences . . . Likewise, the legal consequences of a registered partnership set it apart from other forms of cohabitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. The absence of such a legally binding agreement between the applicant and Mr A. renders their relationship, however defined, fundamentally different from that of a married couple or a couple in a registered partnership”. (par. 68)
Apparently, the Court thinks that the applicant has chosen not to play according to the accepted rules of the game and she must bear the consequences of that:
The applicant has chosen not to register, formally, her union and no criticism can be made of her in this regard. However, having made that choice she must accept the legal consequence that flows therefrom, namely that she has maintained herself outside the scope of the “protected” family relationship to which the “testimonial privilege” exception attaches. That being so, the Court does not consider that the alleged interference with her family life was so burdensome or disproportionate as to imperil her interests unjustifiably. (par. 76)
Thus there is no violation of Article 8. And lastly, in a (regrettably) familiar move, the Court declines to assess whether the Dutch distinction between formalized and un-formalized relationships is discriminatory under Article 14.
There are two incisive dissenting opinions by Judges Tulkens, Vajić, Spielmann, Zupančič and Laffranque, and Judges Casadevall and López Guerra respectively. I recommend reading them, but unfortunately I have no space to discuss them here.
Discussion: Between Realism and Formalism
The Court has a distinguished history of flexibility and realism in determining what constitutes family life under Article 8. Ever since Marckx v Belgium (1979), concerning the ties between an unmarried mother and her daughter, the test is whether a relationship constitutes de facto family life. This willingness to look beyond established legal categories and at the reality of family life as experienced by the applicant has subsequently shown itself in many cases. Some cases concerning LGBT-rights come to mind, such as E.B. v France (see also this article on heteronormativity by Paul Johnson); and Schalk and Kopf v Austria (see blog post here), as well as the case of Şerife Yiğit v Turkey (concerning a marriage that was formalized in accordance with Islamic rites rather than State law, see blog post here).
On the other hand, there are family-life cases in which the Court insists on legal formalism. Besides the present judgment, examples include the recent Gas and Dubois v France(concerning the refusal to let a woman adopt the child of her same-sex partner); and Burden v UK (about the burden of inheritance tax for two unmarried sisters who had lived their whole lives together). An emphasis on existing legal categories impedes the Court to ‘see’ the applicants’ point of view in these kinds of cases, where the applicants do not fit the traditional heterosexual/married model.
Quite frankly, I find this area of case law baffling. When is a relationship worthy of legal recognitionand protection? What is the decisive factor in determining whether the Court goes to the side of legal formalism or applicant-oriented realism? Is it the existence of a European consensus? The majority maintains that there is no consensus regarding testimonial privilege in Europe (par. 61). In a thorough discussion of the van der Heijden judgment (in French), Nicolas Hervieu points to the ‘malleability of the concept of European consensus’. Or, another option, is the real issue here the valorization of heterosexual marriage?
Ultimately, the question is which kinds of relationships deserve legal recognition and protection. In looking for an answer, a human rights court should care about people rather than about legal categories. The Grand Chamber fails in that respect in van der Heijden.