Cohabiting with the Accused: The Formal Limits of Spousal Privilege Affirmed in Van der Heijden v. Netherlands

Abstract

In the wake of Europe’s evolving social landscape of family life, the European Court of Human Rights’ (ECtHR) decision in Van der Heijden v. Netherlands sheds light on the scope of spousal privilege. The ECtHR found that the Netherlands’ interference in Van der Heijden’s nontraditional family life did not violate her Article 8 right guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms . In its decision, the ECtHR upheld the formal limits of Dutch spousal privilege even though it did not protect Van der Heijden in her de facto relationship with the accused. Despite the contentious split on the court, the ECtHR reached the correct result and properly embraced family form over function in this clash between criminal procedural law and informal Dutch family lifestyle. The ECtHR adopted a formalistic approach that departs from prior Article 8 case law, although, in this case it was justified because a criminal prosecution was at stake. This Comment asserts that the court’s reasoning was appropriate in light of the margin of appreciation doctrine, the criminal context, and the letter and spirit of Article 8.