Communicated on 28 September 2015
SECOND SECTION
Application no. 41987/13
Neva TÖLLE
against Croatia
lodged on 17 June 2013
STATEMENT OF FACTS
The applicant, Ms Neva Tölle, is a Croatian national who was born in 1956 and lives in Zagreb. She is represented before the Court by Mr I. Jelavić, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
An NGO for the protection of women’s rights (of which the applicant was director) intervened in a family dispute between D.O. and his wife C.O. following a request for help from C.O.
On 18 September 2003 the national daily newspaper Večernji list published an interview with D.O. in which he alleged that the applicant’s NGO was responsible for the fact that his daughter had been kidnapped by her mother C.O., who had fled with the child to Taiwan.
On the same day the applicant was invited to give an interview about the case to a radio show on the radio station Obiteljski radio. In her interview, the applicant explained the circumstances of her NGO’s involvement in the case, and stated, inter alia, that D.O. had molested his wife.
On 19 December 2003 D.O. brought a private criminal prosecution against the applicant in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu), in respect of charges of defamation relating to her allegations that he had molested his wife. He provided a copy of the recording of the radio show and an expert report concerning its authenticity, asking that those be admitted in evidence.
During the proceedings, the Zagreb Municipal Criminal Court heard evidence from several witnesses. Witness V.O. stated that there had been a police intervention concerning the problems between D.O. and C.O., and witness S.M.K. also gave evidence to that effect.
On 24 May 2007 the Zagreb Municipal Criminal Court acquitted the applicant on the grounds that it had not been proven that she had committed the offence in issue, that it was no longer possible to obtain the original audio recording of the show from the radio station, and that there was no other conclusive evidence against her.
D.O. challenged that judgment before the Zagreb County Court (Županijski sud u Zagrebu), and on 26 February 2008 the Zagreb County Court quashed it and remitted the case for re-examination. It held that the relevant facts should be established with the assistance of experts and by questioning the host of the radio show.
When the proceedings resumed, the Zagreb Municipal Criminal Court commissioned an expert report from M.Đ. concerning the authenticity of the audio recording.
On 6 April 2009 M.Đ. produced a report which attested to the authenticity of the substance of the recording and provided a transcript of the applicant’s interview.
The applicant challenged the findings of the expert, asking for his evidence to be excluded from the case. In particular, she argued that the expert had contacted the counsel for the prosecution in preparing his report.
On 22 April 2009 the Zagreb Municipal Criminal Court dismissed the applicant’s complaints on the grounds that the expert had been authorised to take all necessary measures in the preparation of the report.
On 18 May 2009 the Zagreb Municipal Criminal Court found the applicant guilty of tarnishing D.O.’s honour and reputation by alleging that he had molested his wife. It gave the applicant a court caution and ordered her to pay the costs and expenses of the proceedings.
The Zagreb Municipal Criminal Court held that the applicant had overstepped the limits of an acceptable critique and reply to D.O.’s newspaper interview, particularly since her statement had represented a value judgment without a sufficient factual basis, given that D.O. had never been convicted of an offence relating to domestic violence.
The Zagreb Municipal Criminal Court also dismissed the applicant’s request for exclusion of the expert evidence from the case file as unlawfully obtained evidence, but provided no reasoning as to why the radio show host had not been questioned.
The applicant challenged that judgment before the Zagreb County Court, and on 7 July 2009 the Zagreb County Court dismissed her appeal as ill-founded. It held that, although the first-instance court had failed to provide any reasoning concerning the questioning of the radio show host, that did not render the proceedings as a whole unfair, given that there was sufficient evidence for the applicant’s conviction. It also considered that the first-instance court had struck a fair balance between the applicant’s freedom of expression and the protection of D.O.’s rights.
The applicant challenged those findings before the Constitutional Court (Ustavni sud Republike Hrvatske), and on 13 December 2012 the Constitutional Court dismissed her complaints as ill-founded, upholding the findings of the lower courts.
The decision of the Constitutional Court was served on the applicant’s representative on 19 December 2012.
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 (d) and Article 10 of the Convention about her criminal conviction for insulting D.O. and the lack of fairness of the relevant criminal proceedings.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, has there been a breach of the applicant’s right to a fair trial with regard to the admission of evidence in the case file, and with regard to the opportunity she had to obtain the examination of relevant witnesses?
2. Has there been an interference with the applicant’s freedom of expression within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
In particular, have the domestic authorities struck a fair balance between the interests inherent in the applicant’s freedom of expression and the protection of the rights of others?
The Government are requested to submit two copies of the relevant documents in the applicant’s case.
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