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.”