67816\/14<\/a><\/p>\nJudgment 11.12.2018 [Section IV]
\nArticle 8
\nArticle 8-1
\nRespect for family life<\/p>\n
Spouse compelled to testify in criminal proceedings in which his wife was a \u201cspecial witness\u201d: violation<\/p>\n
Facts \u2013 The applicant was the director of an accounting-services company and his wife the financial director. In December 2013 the applicant\u2019s wife was granted the status of \u201cspecial witness\u201d in relation to a pre-trial investigation into payments she had made on behalf of a client. In April 2014 the applicant was called as a witness in the same criminal investigation but refused to give testimony in relation to his wife\u2019s actions on the basis of spousal privilege. As a result he was fined EUR 188. The applicant appealed against the decision and requested a referral of the matter to the Constitutional Court, arguing that Article 31 of the Constitution prohibited compelling a person to testify against his or her family members. His appeal was dismissed on the ground that the exemption from testifying under the Code of Criminal Procedure only related to family members of a suspect or accused but not of \u201cspecial witnesses\u201d. The request for referral was considered \u201csubjective and legally unfounded\u201d.<\/p>\n
In September 2014 the applicant gave testimony as a witness in the investigation, which was subsequently discontinued on the ground that no criminal offence had been committed.<\/p>\n
Law \u2013 Article 8<\/p>\n
(a) Applicability \u2013 The Court had previously found that 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. In order to determine whether there had been such interference in the present case, the Court had to examine whether the status of \u201cspecial witness\u201d granted to the applicant\u2019s wife was sufficiently similar to the status of a suspect, to the extent that the criminal proceedings could be said to have been \u201cagainst\u201d her.<\/p>\n
In that connection, the Court noted that granting the applicant\u2019s wife \u201cspecial witness\u201d status in the pre-trial investigation had been an indication that the authorities had at least had some grounds to suspect that she had taken part in criminal activity, which precluded them from questioning her as an ordinary witness. It would appear that nobody else had been granted the status of \u201cspecial witness\u201d or suspect in the criminal proceedings in issue, thereby indicating the significance of the applicant\u2019s wife\u2019s role in the investigation. As to the Government\u2019s argument that the applicant had been called to testify only about the structure and activities of his company and not about any circumstances \u201cdirectly related\u201d to his wife, the Court noted that testimony obtained under compulsion which appeared on its face to be of a non-incriminating nature could ultimately be deployed in criminal proceedings in support of the prosecution\u2019s case, for example to contradict or cast doubt upon statements of the accused or evidence given during the trial, or to otherwise undermine his or her credibility. Punishing the applicant for having refused to testify in the criminal proceedings in which his wife had \u201cspecial witness\u201d status had therefore constituted an interference with his right to respect for family life, and Article 8 of the Convention was thus applicable.<\/p>\n
(b) Merits \u2013 The interference had been in accordance with the law and pursued the legitimate aims of the prevention of crime and the protection of the rights and freedom of others.<\/p>\n
Under Lithuanian law, the status of \u201cspecial witness\u201d was close to that of a suspect in several important aspects, such as the existence of at least some suspicion that the individual had committed acts constituting criminal activity, and his or her exemption from liability for refusing to testify or for giving false testimony. However, none of the domestic legal instruments relating to the status of \u201cspecial witnesses\u201d addressed the question of the testimonial privilege of their family members and close relatives. In addition, neither the explanatory report to the draft amendment of the Code of Criminal Procedure nor the recommendations adopted by the Prosecutor General had provided any arguments as to why \u2013 notwithstanding the similarities between the status of \u201cspecial witness\u201d and that of a suspect \u2013 that privilege should remain limited to family members and close relatives of suspects.<\/p>\n
In the applicant\u2019s case, neither the senior prosecutor nor the district court had addressed in substance his arguments that the two statuses had been sufficiently similar, and that the testimonial privilege of family members should also have been applicable to him. Instead, they merely referred to the text of the Code of Criminal Procedure and observed that the family members of \u201cspecial witnesses\u201d were not mentioned therein. Furthermore, the authorities made no attempt to explain why the testimonial privilege was being refused to persons in the applicant\u2019s situation, in particular in the light of the prohibition to compel anyone to testify against his or her family member being enshrined in the Constitution. The district court also dismissed the applicant\u2019s request to refer the matter to the Constitutional Court. Finally, the Government had not provided any arguments as to why the testimonial privilege was limited to family members and close relatives of suspects. On the contrary, they seemed to acknowledge the extent of the similarities between those two statuses, by affirming that \u201cin practice\u201d the testimonial privilege was also granted to family members and close relatives of \u201cspecial witnesses\u201d.<\/p>\n
Given the foregoing, the authorities had failed to demonstrate that compelling the applicant to testify in the criminal proceedings in which his wife had \u201cspecial witness\u201d status had been \u201cnecessary in a democratic society\u201d within the meaning of Article 8 of the Convention.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
Article 41: EUR 3,000 in respect of non-pecuniary damage and EUR 357 in respect of pecuniary damage.<\/p>\n
(See also Van der Heijden v. the Netherlands [GC], 42857\/05, 3 April 2012, Information Note 151)<\/p>\n