Resolution of the ECHR of December 11, 2018 in the case of Kryzevicius v. Lithuania (application N 67816/14).
In 2014, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Lithuania.
The case was successfully considered an application about the duty of the spouse to testify in a criminal case in which his wife was a "special witness". The case has violated the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was the director of the accounting services company, and the applicant's spouse was the financial director. In December 2013, the claimant’s wife was granted “special witness” status in connection with the pre-trial investigation of the payments she made on behalf of the client. In April 2014, the complainant was called as a witness in the same criminal investigation, but he refused to testify on the actions of his wife on the basis of marital privilege. As a result, the applicant was fined 188 euros. The applicant appealed against this decision and asked to transfer the case to the Constitutional Court, arguing that Article 31 of the Constitution prohibits forcing a person to testify against members of his family. His appeal was rejected on the grounds that exemption from testifying in accordance with the Criminal Procedure Code related only to family members of the suspect or the accused, and not to “special witnesses.” The request to transfer the case was found to be “subjective and legally unfounded”.
In September 2014, the applicant testified as a witness during the investigation, which was subsequently terminated because no crime had been committed.
QUESTIONS OF RIGHT
Regarding compliance with Article 8 of the Convention. (a) Applicability. The European Court has previously established that an attempt to force a person to testify in a criminal process against someone with whom this person had a relationship that could be considered family life constituted an interference with his or her right to respect for family life. In order to determine whether such an interference took place in the present case, the Court had to determine whether the status of a “special witness” granted to the applicant's wife was sufficiently similar to the status of the suspect to the extent that it was possible to say that the criminal proceedings were conducted. ” against "her.
In this regard, the European Court noted that the provision of “special witness” status to the applicant’s wife during the pre-trial investigation indicated that the authorities of the respondent state had reason to suspect her of involvement in criminal activities, which prevented her from being interrogated as a regular witness. It appears that no other person in the criminal process in question was granted the status of “special witness” or suspect, which demonstrates the important role of the applicant's wife in the investigation. As to the argument of the Lithuanian authorities that the applicant was called to testify only about the structure and activities of his company, and not about any “relevant circumstances” to his wife, the European Court of Justice noted that the statements received in order, which apparently did not have an accusatory character, could ultimately be used in criminal proceedings to support the allegations of the prosecution, for example, to refute or question the testimony of the accused or to prove the proceedings submitted during the trial, or otherwise undermine the credibility of him or her. Thus, the applicant’s punishment for refusing to testify during the criminal proceedings in which his wife had the status of a “special witness” constituted an interference with his right to respect for family life, and therefore the provisions of Article 8 of the Convention apply in the present case.
(b) The merits of the complaint. The intervention was carried out in accordance with the law and pursued the legitimate aims of preventing crimes and protecting the rights and freedoms of others.
In accordance with Lithuanian law, the status of a “special witness” is close to the status of a suspect in several important aspects, such as having at least some suspicion that the person committed the acts constituting the crime and in his release from liability from testifying or giving false testimony. However, none of the legal documents of the respondent state concerning the status of “special witnesses” addressed the issue of the privileges of members of their families and close relatives. In addition, neither the explanatory report to the draft amendment to the Criminal Procedure Code, nor the recommendations adopted by the Attorney General, provided any reason for why, despite the similarity between the “special witness” status and the status of the suspect, this privilege should remain limited to family members and close relatives of the suspects.
In the applicant's case, neither the senior prosecutor nor the district court essentially considered his arguments that the two statuses were sufficiently similar and that the privilege of family members to testify was also applied to him. Instead, they simply referred to the provisions of the Criminal Procedure Code and noted that the family members of the “special witnesses” were not mentioned in them. In addition, the authorities of the respondent state did not attempt to explain why the persons in the applicant's situation were denied testimony, in particular, in the light of the prohibition on coercing anyone to testify against his or her family member, enshrined in the Lithuanian Constitution. . The District Court also rejected the petitioner's request to transfer the case to the Lithuanian Constitutional Court. Finally, the authorities of the respondent state did not provide any arguments as to why the privilege to testify was limited to family members and close relatives of the suspects. On the contrary, as follows from the case file, they recognized a certain degree of similarity between the two statuses, confirming that “in practice” the privilege of evidence was also granted to family members and close relatives of “special witnesses”.
Thus, the Lithuanian authorities failed to demonstrate that the applicant’s coercion to testify in the criminal proceedings in which his wife had the status of a “special witness” was “necessary in a democratic society” within the meaning of Article 8 of the Convention.
The case was a violation of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant 3,000 euros in respect of non-pecuniary damage and 357 euros in respect of pecuniary damage.