The trial regarding a case of rape that took place behind closed doors did not violate the defendant’s right to a fair trial. Victim’s protection from second victimization

JUDGMENT

Mraović v. Croatia 14.05.2020 (no. 30373/13)

see here

SUMMARY

The case concerned a balancing of the applicant’s right to a public hearing in proceedings against him on charges of rape and the victim’s right to the
protection of her private life.
The European Court of Human Rights held, by six votes to one, that there had been:
no violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

The Court found that the domestic court’s justification for excluding the public from the
proceedings, namely protecting the victim’s private life, had been reasonable.

It pointed out in particular that the State had been obliged to protect her from secondary
victimisation, given the highly sensitive nature of her cross-examination in court, which necessarily
revealed information about the most intimate aspects of her life.

Moreover, such information could have been disclosed at any stage of the applicant’s criminal trial,
and therefore closing only part of the proceedings would not have been sufficient to protect her
from further embarrassment and stigmatisation.

PROVISION

Article 6

PRINCIPAL FACTS

The applicant, Josip Mraović, is a Croatian national who was born in 1948 and lives in Gospić
(Croatia).

In 2005 a local basketball player reported to the police that the applicant had sexually assaulted her.
He was immediately arrested on suspicion of rape and the local police published a press statement
disclosing the victim’s identity.

The applicant was acquitted by the first-instance court later in the year following proceedings which,
at his request, were closed to the public.

However, following a retrial, he was found guilty of rape in 2008 and sentenced to three years’
imprisonment.

During those proceedings he twice requested that the case be heard in open court so as to ensure
more objective reporting, arguing that the victim had given interviews to the media, while he had
been stigmatised. The court dismissed his requests, as it considered that exclusion of the public was
necessary for the protection of the victim’s private life.

The decision to allow the trial to be held in camera was subsequently reviewed on appeal by the
Supreme Court, which concluded that there had been no breach of the applicant’s rights in the
criminal proceedings.

A constitutional court appeal by the applicant was dismissed as ill-founded in 2012.
The victim also brought a successful action for damages against the State for the police revealing her
identity in the statement just after the incident.

THE DECISION OF THE COURT…

First, the Court stressed the importance of protecting the rights of sexual abuse victims in criminal
proceedings. In particular, the justice system should not increase the suffering of victims of crime or
discourage them from reporting incidents.

In the present case, although the victim had given interviews in national newspapers, in the Court’s
view the State had nonetheless been under the obligation to protect her from secondary
victimisation. In her statements to the media she had controlled the information she had been
sharing, whereas in court that had not been possible given the applicant’s rights of defence. Indeed,
the cross-examination of a rape victim in court was highly sensitive as it necessarily revealed
information about the most intimate aspects of the victim’s life.

The Court also accepted that the State had been under an obligation to provide an even higher
degree of protection to the victim in the present case given that the police authorities had breached
her privacy by unlawfully publishing her personal information at the very outset of the case.
Furthermore, such information could be disclosed at any stage of a criminal trial, not only during a
victim’s cross-examination. Therefore, closing only part of the proceedings would not have been
sufficient to protect her from further embarrassment and stigmatisation.

In sum, the Court was satisfied that the domestic court using its discretion to decide that the
proceedings should not be held in public had not been incompatible with the applicant’s rights and it
had been reasonable for it to consider that that approach had been required for the protection of
the victim’s private life.

Moreover, such an approach had been in line with current EU and international standards on the
matter.

There had therefore been no violation of Article 6 § 1 of the Convention.

Separate opinion

Judge Koskelo expressed a dissenting opinion which is annexed to the judgment.


ECHRCaseLaw

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