The obligation of a spouse to give testimony to a criminal case in which his wife was a “special witness”, a stage ie before being characterised as a suspect, is contrary to the right to the protection of family life
Kryževičius v. Lithuania 11.12.2018 (no. 67816/14)
Witness against his wife. The applicant’s refusal to testify as a witness in a case where his wife was a “special witness”, a witness being investigated regarding her own potential criminal activity. Imposition of a fine for the refusal to testify and an inability of the applicant to appeal against that. The “non-disclosure” privilege was limited to family members and close relatives of a suspect, but was not granted to relatives of the “special witness”. According to the ECtHR, the national authorities should have provided relevant and sufficient reasons for refusing to grant the applicant the “non-disclosure” privilege in a criminal proceedings in which his spouse had the status of “special witness”. Unnecessary intervention in a democratic society. Violation of the right to protection of family life.
Article 2 of the 7th Protocol
The applicant, Donatas Kryževičius, is a Lithuanian national who was born in 1983 and lives in
The case concerned the Lithuanian authorities’ efforts to compel Mr Kryževičius to give testimony in
criminal proceedings in which his wife had had the status of a “special witness”, and his subsequent
inability to appeal to a higher court the fine resulting from his refusal to do so.
In 2012, Mr Kryževičius’s wife provided accountancy services to company M on behalf of company A.
Mr Kryževičius was the Director of this latter company, and his wife was the Financial Director. The
Director of company M made a complaint to the police in which he alleged that the applicant’s wife,
during her work for him, had unlawfully transferred funds from his business to other companies,
including company A. The police opened a pre-trial investigation in November 2013.
In December of that year, the applicant’s wife was granted “special witness” status. This status
allows prosecutors to question, as a witness, people who might give testimony about their own
possible criminal activity.
On 9 April 2014, Mr Kryževičius was called as a witness. He refused to testify on the subject of his
wife’s actions and the payment to company A and was fined. He contested this fine with a senior
prosecutor and with a district court, arguing that the relevant legal provision allowing family
members of a suspect to refuse to testify also applied to the family of special witnesses, but his
complaints were dismissed. The decision of the district court was final.
Relying in particular on Article 8 (right to respect for private and family life) of the European
Convention on Human Rights, Mr Kryževičius complained that the authorities had violated his right
to family life by requiring him to testify against his wife.
THE DECISION OF THE COURT
Violation of article 8
(a) Whether there has been an interference with the applicant’s right to respect for his family life
The Court considers that granting the applicant’s wife the status of a “special witness” in a pre-trial investigation was an indication that the authorities had at least some grounds to suspect that she had taken part in some criminal activity, which precluded them from questioning her as an ordinary witness. It also notes that, according to the documents submitted to it by the parties, nobody else was granted the status of a “special witness” or a suspect in those criminal proceedings, thereby indicating the significance of the applicant’s wife’s role in those proceedings.
(b) Whether the interference was in accordance with the law
The applicant was given a fine by a prosecutor, in accordance with Article 163 of the CCP. The prosecutor, the senior prosecutor and the district court ruled that the applicant was not entitled to refuse to testify in the criminal proceedings because Article 82 § 2 of the CCP did not guarantee such a right to the family members or close relatives of a “special witness”. The Court is therefore satisfied that the interference in question was in accordance with the law, as required by Article 8 § 2 of the Convention.
(c) Whether the interference pursued a legitimate aim
The Court observes that neither of the parties explicitly addressed the question of whether compelling the applicant to testify in the criminal proceedings in which his wife had had the status of a “special witness” had pursued a legitimate aim. Nonetheless, in their observations, the Government stated that the category of a “special witness” was necessary in order to enable the authorities to investigate criminal activities even when there was insufficient evidence to recognise any specific individual as a suspect. The Government also submitted that the testimonial privilege granted to family members and close relatives could not be absolute, as those individuals might be able to provide information which did not directly concern their relatives, but was nonetheless relevant to the investigation. In such circumstances, the Court is prepared to accept that the impugned interference pursued the aims of the prevention of crime and the protection of the rights and freedoms of others, as provided for in Article 8 § 2 of the Convention.
(d) Whether the interference was necessary in a democratic society
The Court has already found that, under the Lithuanian law, the status of a “special witness” is close to that of a suspect in several important aspects, such as the existence of at least some suspicion that the individual has committed acts constituting criminal activity, and his or her exemption from liability for refusing to testify or giving false testimony. In the Court’s view, in the present case, it is not called to assess whether the status of a “special witness” as such is compatible with the Convention, or what specific rights a person holding that status should have. It observes, however, that none of the domestic legal instruments relating to the status of “special witnesses” addressed the question of the testimonial privilege of family members and close relatives. In addition, neither the explanatory report to the draft amendment of the CCP nor the Recommendations adopted by the Prosecutor General provided any arguments as to why, notwithstanding the similarities between the status of a “special witness” and that of a suspect, that privilege should remain limited to the family members and close relatives of suspects. In such circumstances, the Court considers that the domestic authorities in the applicant’s case should have provided relevant and sufficient reasons for refusing to grant the testimonial privilege to the applicant, who was a family member of a “special witness”.
In his complaints before the domestic authorities, the applicant argued that the statuses of “special witnesses” and suspects were sufficiently similar, and thus the testimonial privilege of family members provided for in Article 82 § 2 of the CCP should be applicable to him . However, neither the senior prosecutor nor the Klaipėda District Court addressed in substance the applicant’s arguments or took note of his particular circumstances – they merely referred to the text of the above-mentioned provision and found that the family members or close relatives of “special witnesses” were not mentioned there . Those authorities did not make any attempt to explain the reasoning behind the testimonial privilege being refused to persons in the applicant’s situation, in particular in the light of the prohibition to compel anyone to testify against his or her family members or close relatives enshrined in the Constitution, and the Klaipėda District Court dismissed his request to refer the matter to the Constitutional Court.
Nor did the Government, in their submissions to the Court, provide any arguments as to why the testimonial privilege was limited to the family members and close relatives of a suspect, and refused to those of a “special witness”. On the contrary, the Government seemed to acknowledge the extent of the similarities between those two statuses, by affirming that “in practice” the testimonial privilege was granted to the family members and close relatives of “special witnesses” .
Non violation of article 2 of the 7th Protocol
The Court considers that, in the present case, it is not necessary to address the Government’s argument that the offence for which the applicant was punished was not “criminal” within the meaning of Article 2 § 1 of Protocol No. 7 to the Convention . It observes that the fine for refusing to testify was given to the applicant by the prosecutor. In accordance with domestic law, the prosecutor did not have the authority to order the applicant’s detention . In this connection, the Court notes that it has previously found that offences which were not punishable by imprisonment were of a minor nature and thereby fell within the exceptions permitted under Article 2 § 2 of Protocol No. 7 to the Convention. By contrast, had the applicant been at risk of being detained for refusing to testify, he would have had the possibility of an appeal to a higher court, as provided for by the domestic law.
In the light of the foregoing circumstances, the Court considers that this complaint is manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
357 euros (EUR) (pecuniary damage), EUR 3,000 (non-pecuniary damage) and
EUR 605 (costs and expenses)(echrcaselaw.com editing).