Information Note on the Court’s case-law 240
May 2020
Mraović v. Croatia - 30373/13
Judgment 14.5.2020 [Section I]
Article 6
Criminal proceedings
Article 6-1
Public hearing
Exclusion of public from entire rape trial in order to protect victim, even though she had given interviews to media about the case: no violation
[This case was referred to the Grand Chamber on 12 October 2020]
Facts – During the applicant’s first trial on rape charges he asked for the proceedings to be in camera. He was acquitted but his acquittal was quashed. He wished his second trial to be held in public, but the victim’s request for an in camera hearing was upheld. During the second trial, the victim gave several interviews to national newspapers on the subject in which the experience of giving evidence during the trial was discussed.
Law – Article 6 § 1: In criminal proceedings concerning such a serious and intimate crime as rape, in line with the applicable international and European Union standards, the exclusion of the public from part or all of the proceedings might be necessary for the protection of rape victims’ private life, in particular their identity, personal integrity and dignity. This might be necessary not only to protect the victims’ privacy, but to protect them from secondary trauma and/or re-victimisation. The foregoing was crucial in order to encourage the victims of sexual abuse to report the incidents and allow them to feel secure and able to express themselves candidly on highly personal issues – often humiliating or otherwise damaging to their dignity – without fear of public curiosity or comment. The justice system should operate in a manner that did not increase the suffering of victims of crime or discourage them from participating in it. However, due regard had also to be had to the rights of accused persons, including their right to public scrutiny of the criminal proceedings against them.
The nature of the charges and the sensitive content of the testimony to be provided by the victim in the present case might and did call for limitation of the applicant’s right to a public hearing, all the more so given the significant media attention on that case since its very outset. The reasons given by the county court for the exclusion of the public had a clear basis in domestic law. It was true that the county court had applied the relevant provision somewhat automatically, without performing a detailed balancing of the applicant’s right to a public hearing against the interests of the protection of the victim’s private life, or providing an extensive explanation as to why it had been necessary to exclude the public from the entire trial, and not only from certain hearings. However, when reviewing that decision on appeal, the Supreme Court had concluded that it had not resulted in a breach of any of the applicant’s rights in the criminal proceedings. Moreover, the prosecution and the defence had been given an opportunity to submit their arguments on the matter. Furthermore, even if the right to a judgment pronounced publicly was distinct from the right to a public hearing as such, the pronouncement of the county court’s judgment against the applicant had been open to the public and broadcast by multiple television channels, which must have contributed to the public scrutiny of administration of justice in that particular case.
The specificity of the present case lay in the fact that the victim had previously given interviews in national newspapers on several occasions. However, the foregoing did not dispense the State from its positive obligation to protect her privacy as well as to protect her from secondary victimisation. This was so, first, because in her statements to the media the victim had controlled the information she was sharing, whereas in the courtroom this had not been possible in view of the applicant’s rights. Indeed, cross-examination of a rape victim in court is highly sensitive as it necessarily reveals information about the most intimate aspects of the victim’s life. Second, in the present case the State had been under an obligation to provide an even higher degree of protection to the victim, given that the police authorities had breached her privacy by unlawfully publishing her personal information at the very outset of the case.
The Court found it important to emphasize that intimate details from a rape victim’s life could be disclosed at any stage of a criminal trial against the alleged perpetrator and not only during cross-examination of the victim. Consequently, since the present case concerned the need to protect the victim’s integrity and dignity, as well as protect her from further embarrassment and stigmatisation, in the Court’s view, closing only part of the proceedings would not have sufficed to protect her rights in the particular circumstances of the present case.
In sum, bearing in mind the highly intimate nature and the seriousness of the charges in the present case, which involved one of the most humiliating attacks on a person, the Court was satisfied that the discretion which the county court had exercised was not incompatible with the applicant’s right to a public hearing.
Conclusion: no violation (six votes to one).
(See also Y. v. Slovenia, 41107/10, 28 May 2015, Information Note 185)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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