THE HAGUE, Netherlands (CN) — In a rape case that sparked outrage over the ruling that a finger in the anus is no more sexual than a handshake, Croatia won a bit of save-face for protecting the victim’s privacy.
The endorsement came Thursday from the European Court of Human Rights but is not without caveat. In a critical dissent, one judge at the France-based court questioned whether the restriction on public access came at the price of open-justice principles.
“I fully accept that the avoidance of secondary victimization is a significant consideration in the conduct of the trial in these types of cases,” Judge Pauliine Koskelo wrote Thursday. “When, however, the alleged victim has already voluntarily exposed herself to publicity, during the ongoing criminal proceedings, by giving interviews and sharing her own view and perspective on their subject matter, such an approach will to some extent lighten the weight to be attributed to the risk of secondary victimization through the publicity of the trial, in particular where — as in the present case — the entire trial is closed to the public and not only the testimony or cross-examination of the alleged victim.”
The case stems from the April 2005 assault of professional basketball player Ilisha Jarret, an American who fought to have the trial held privately after local authorities gave her name to the media.
Jarret had moved to Gospic, Croatia, about seven months earlier and identified the man who broke into her hotel room and attacked her as Josip Mraović, the owner of a local construction business.
Described in contemporary press reports as something of a regional strongman, Mraović was initially acquitted of the charges after a trial that was closed to the public at both his and Jarret’s request.
Maciej Szpunar, an advocate general at the European Court of Justice whose role is akin to that of a U.S. magistrate, emphasized in an interview that the right to a public trial is not absolute.
It isn’t only cases involving traumatized victims where proceedings are closed — divorcing couples, companies involved in disputes over property information, and governments when national security issues are at stake all want privacy. “You have to balance conflicting fundamental rights,” Szpunar said.
Jarret’s case drew widespread attention, even under seal, when it was reported that Mraović was acquitted because the judge ruled that “neither the finger nor the anus have the property of sexuality, sexual organs.”
Nacional, a weekly news magazine published in Zagreb, called the decision the “most ridiculous blemish on the Croatian justice system.”
Following a reversal by Croatia’s Supreme Court, Mraović was retried in 2007. This time, he pushed for the proceedings to be public, but the court deferred to Jarret’s request for privacy.
Jarret had terminated her contract with the Gospic basketball club days after her attack but gave multiple media interviews about her ordeal in the years after she left Croatia. Today she is the co-owner of the Dominican Republic basketball team Samana Gladiadores, along with her husband, Samana Mayor Raulin Ramon.
“I came to tell the truth at the hearing. So I came back,” Jarett told reporters at the start of Mraović’s second trial. “I want what happened to me to serve as an example to others. I don’t want that to happen to anyone else and for a girl to have to go through what I am.”
Convicted of rape and sentenced to prison, Mraović failed Thursday to show that he was denied a fair trial.
“[Jarret’s] newspaper interviews had not dispensed the state from its positive obligation to protect her rights in the present case,” the unsigned opinion from the European Court of Human Rights states. “In her interviews, she had had control over the information she had shared with the public, whereas in court hearings this had not been the case, bearing in mind the rights of the accused. It had been equally open to the applicant to give statements to the media and, when he had done so, the applicant had made offensive remarks about the victim using racist and discriminatory language.”
For the dissenting Judge Koskelo, however, Jarret’s disclosures to the media required the court to conduct a balancing test rather than blindly follow the statutory norms.
“Nor is there any indication that the domestic court considered the extent to which the protection of the rights of the victim required the public to be excluded from the hearings,” Koskelo added.
The right to a fair and public hearing is guaranteed under Article 6 the European Convention on Human Rights. It is the treatise upon which the rights court in Strasbourg was founded, but it is not without its limits.
“Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice,” the convention states.
It was signed in 1950 — only five years after the end of World War II — with a focus on the right to fair and public trials. Legal researcher Ana Harvey noted in an interview on Mraović’s case that the concept of open justice “is universally recognized and long-standing.”
Socrates’ trial in 399 BCE took place before a jury of 501 Athenian citizens as well as a crowd of spectators. In Medieval times, rulers used public trials to demonstrate their power. And in France, the law guaranteeing trials to be held in public dates back to the French Revolution.
“Open justice puts the sovereign under scrutiny,” said Harvey, who edited a book on the subject last year.
But how it is implemented, she added, varies widely across countries.
“The justice system should operate in a manner that does not increase the suffering of victims of crime or discourage them from participating in it,” the judges wrote in Thursday’s ruling against Mraović, which notes that he was grinning in the 2007 trial as Jarret sobbed on the witness stand.
Koskelo called it “too simplistic,” however, for the court to find that Jarret’s media interviews gave her control that the trial could not offer about what she shared.
In a footnote, the judge notes that Jarret’s attorney is said to have given the media part of Mraović’s defense.
“To the extent that this has occurred, I find it troubling that the party in whose interest the whole trial has been closed to the public may nevertheless feel free to make selective disclosures from the ongoing proceedings to the media,” Koskelo wrote. “Such a risk renders it even more questionable to apply such a global measure.”
Courts have a number of options to balance the right to a public trial against the right to privacy. The ECHR itself anonymizes names in public documents. At the International Criminal Court, the world’s court for atrocity crimes, lawyers can request the court go into a closed session when discussing sensitive topics, which includes muting audio to the public gallery. In Dutch courts, video of proceedings can only show the faces of the judges and the prosecutors, not witnesses or defendants.
“Sunlight is said to be the best of disinfectants,” U.S. Supreme Court Justice Louis Brandeis famously wrote in 1913.
But it was only this month, thanks to the court closures due to the coronavirus pandemic, that America’s highest court is now broadcasting live arguments for the first time in its storied history.
Harvey recited some of benefits the public gets from open access, from allowing citizens to see how the judicial system works to being able to file amicus briefs, documents submitted by parties who are not directly involved in the dispute but have expertise or insight on relevant issues.
That education can go beyond just informing citizens. In the famous Urgenda decision last year, the Dutch high court ruled that the government had an obligation under the European Convention on Human Rights and other treaties, to reduce greenhouse gas emissions. Since that decision, a number of similar lawsuits have been brought in other courts in Europe.