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. Continue reading