I incorrectly predicted that there's no violation of human rights in TÖLLE v. CROATIA.
Information
- Judgment date: 2020-12-10
- Communication date: 2015-09-28
- Application number(s): 41987/13
- Country: HRV
- Relevant ECHR article(s): 6, 6-1, 6-3-d, 10, 10-1
- Conclusion:
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.664169
- Prediction: No violation
Inconsistent
Legend
Communication text used for prediction
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.
Judgment
FIRST SECTIONCASE OF TÖLLE v. CROATIA
(Application no. 41987/13)
JUDGMENT
STRASBOURG
10 December 2020
This judgment is final but it may be subject to editorial revision. In the case of Tölle v. Croatia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Linos-Alexandre Sicilianos, President,Erik Wennerström,Lorraine Schembri Orland, judges,and Renata Degener, Deputy Section Registrar,
Having regard to:
the application against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Ms Neva Tölle (“the applicant”), on 17 June 2013;
the decision to give notice to the Croatian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 17 November 2020,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The applicant is the president of an association for the protection of women victims of domestic violence. She was convicted for stating that a certain D.O. had abused his wife after she had sought shelter at the association’s refuge for women. The case concerns the applicant’s complaint of the violation of her right to freedom of expression guaranteed by Article 10 of the Convention. THE FACTS
2. The applicant was born in 1956 and lives in Zagreb. She was represented by Mr I. Jelavić, a lawyer practising in Zagreb. 3. The Government were represented by their Agent, Mrs Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is the president of the Zagreb Autonomous Women’s House (Autonomna ženska kuća Zagreb, hereinafter “the Association”), an association established with the aim of providing women victims of violence with support. 6. The Association had intervened in a family dispute between a certain D.O. and his wife C.O. following a request for help from the latter. C.O. and the couple’s minor daughter had stayed at the Association’s refuge for women from February to August 2003; afterwards C.O. had taken the child abroad. 7. On 18 September 2003 the national daily newspaper Večernji list published an interview with D.O. in which he alleged that the Association was responsible for the fact that his daughter had been kidnapped by her mother, who had fled with the child abroad. 8. Later on the same day, the applicant was invited to give a telephone interview about the case on a live radio show, where she explained the circumstances of the Association’s actions in the case and denied its involvement in the kidnapping of the child. According to the applicant, D.O. was also invited to join in the show, but he never replied. The transcript of the relevant parts of the interview reads as follows:
“The host: C.O. came to you because she had been abused? The applicant: Of course, because she had been abused. I was surprised that the journalist stated that, having met D.O. several times, she had concluded that he was not an abuser. I am literally asking that journalist how long she has been an expert in assessing whether or not somebody is an abuser. In her role, personally I would never have dared to come to such a conclusion, also because it has been a well-known fact for the past twenty years that abusers abuse in the privacy of their own homes; they are not rude or aggressive [when they are] in contact with the police, or [when they are] in contact with doctors [and say] ‘oh my, that is horrible, how could she slip and fall down the stairs like that’; when they speak to social workers they are always very polite and very cooperative. The host: And the police usually buy their story? The applicant: Of course, police officers are somehow always on the side of the man. Of course, that is the tragedy and the perversion of the whole story. Of course, [the abusers] will not, or will very rarely, in a low percentage of cases, be equally rude and equally aggressive, verbally or physically, towards third parties ... [To the outside world], they always give a good impression of themselves, and only their wives, who are the victims, know how they act within the four walls of their home. ... The host: So what is the aim of this pressure, only to make the Association accountable or tarnish its reputation, or to accomplish something more concrete? The applicant: Well, I would not say so, I would not say that it was only about that. I would say that the issue is D.O., who was abusing his wife, I’m afraid, I have to confirm that because practice – not only that of [the Association], but also that of all [women’s] refuges in the world – has shown that victims speak about only one third of what they have been through, not everything. That means that there was certainly much more to it than what C.O. managed to tell us; women are ashamed to speak about it in detail, so I do not have any doubt that C.O. was a victim of abuse [perpetrated] by her husband D.O. However, I would not say that the aim was to diminish the authority or reputation of [the Association]. I would say that it was an attempt, but I dare say a poor one, to present the abuser as the victim and the victim as the abuser. So we switch roles, which is absolutely unacceptable in domestic violence cases, because this is a burning issue, which will soon be confirmed by numbers [which the Association has managed to obtain]...”
9. 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), on charges of defamation relating to her allegations that he had abused 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. 10. During the proceedings, the first-instance court heard evidence from several witnesses. The witness V.O. stated that there had been a police intervention concerning problems between D.O. and C.O., and the witness S.M.K. also gave evidence to that effect. 11. On 24 May 2007 the first-instance court acquitted the applicant. That judgment was quashed on appeal and the case was remitted, the Zagreb County Court (Županijski sud u Zagrebu) holding that the relevant facts should be established with the assistance of an expert and by questioning the radio show host. 12. In the resumed proceedings, the first-instance court commissioned an expert report from a sworn-in court expert concerning the authenticity of the audio-recording of the radio show submitted by D.O. 13. On 6 April 2009 the expert attested to the authenticity of the substance of the recording and provided a transcript of the applicant’s interview. 14. The applicant challenged the findings of the expert, asking for his opinion to be excluded from the case file. In particular, she argued that the expert had contacted D.O.’s lawyer directly during the preparation of his report, without going through official court channels. 15. On 21 April 2009 the applicant sought the disqualification of the expert witness, but her request was dismissed on the grounds that the expert had been authorised to take all necessary measures in preparing the report. 16. The first-instance court also dismissed the applicant’s proposal that the radio show host and two other witnesses, as well as one witness proposed by D.O., should be questioned, on the grounds that their testimony was irrelevant because the expert witness had already been heard. 17. On 18 May 2009 the first-instance court found the applicant guilty of insult, finding that she had tarnished D.O.’s honour and reputation by alleging that he had abused his wife. It sanctioned the applicant with a judicial admonition (sudska opomena) and ordered her to pay the costs and expenses of the proceedings in the amount of 500 Croatian kunas (HRK; approximately 70 euros (EUR)) as well as the necessary expenses incurred to D.O. and to his lawyer, the amount of which was to be determined by a subsequent court decision. The relevant part of the judgment reads as follows:
“In the present case, the court finds it established that [the applicant’s] conduct comprised all subjective and objective characteristics of the criminal act of insult ... and not defamation...
Namely, the criminal act of defamation ..., content-wise, requires the stating of a fact which is presented as being true, whereas it is untrue, [a statement] which, objectively interpreted, contains [reference to] a certain event (something which actually occurred), whose truthfulness can be established in the same way for all people. A factual statement may include a statement about a certain characteristic, but only if it represents a certain physical or psychological characteristic, whereas in all other cases a statement about a person’s characteristic normally contains a judgment about the value of a person, and therefore concerns the criminal act of insult, and not defamation. In the present case, it has been established that [the applicant] called [D.O.] an abuser, which is not an event or a physical or psychological characteristic of [D.O. ], and can therefore only be interpreted as an expression of a negative attitude or negative opinion about the value of [D.O.] as a person, the truthfulness of which cannot be assessed. However, it should be pointed out that the court established that [D.O.] had not been convicted and [that the applicant] had never alleged that she suspected or knew that criminal proceedings had been instituted against [him], or that he had been convicted of possible domestic violence. In the criminal act of insult, the object of protection is [an individual’s] honour, that is, the requirement to respect the person, whereas the content of an insult consists in a disrespecting, negative judgment on [D.O.’s] value. In this court’s opinion, [the applicant] overstepped the permissible limit by critically assessing in the said radio show [D.O.’s] respect or failure to respect of a final and enforceable decision... Public criticism may relate to a critical attitude or opinion about a person’s actions, but may not include subjective insulting judgments. By referring to [D.O.] as an abuser, [the applicant] stated a generally negative opinion of him, which is objectively insulting for the person it is directed at. ... In the light of the above, the court considers that the impugned allegations made by [the applicant] on the radio show cannot be considered justified criticism within the meaning of Article 203 of the Criminal Code, which refers to the exclusion of unlawfulness in cases of criminal offences against honour and reputation. Namely, the court has established, on the basis of [the applicant’s] manner of speech, and by placing the disputed allegation in relation to and in the context of all the content of the disputed radio show, that [the applicant] spoke about [D.O.] in a condescending manner and presented a negative and insulting judgment about [his] value as a person.”
18. The first-instance court also dismissed the applicant’s request for the expert opinion to be excluded from the case file as unlawfully obtained evidence, but provided no reasoning as to why the radio show host had not been questioned. 19. On 7 July 2009 the second-instance court dismissed an appeal by the applicant as ill-founded. It held that although the first-instance court had failed to provide any reasons concerning the failure to question the radio show host, that did not render the proceedings as a whole unfair, given that there had been 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. 20. The applicant challenged those findings before the Constitutional Court (Ustavni sud Republike Hrvatske), which on 13 December 2012 dismissed her complaints as ill-founded. 21. The Constitutional Court’s decision was served on the applicant on 19 December 2012. RELEVANT LEGAL FRAMEWORK
22. Relevant domestic law has been cited in Miljević v. Croatia (no. 68317/13, §§ 31-32, 25 June 2020). 23. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments) provide as follows:
Article 66 § 1
“A judicial admonition is a criminal sanction which may be imposed as a warning to the perpetrator of a criminal offence for which the law prescribes a prison sentence of up to one year or a fine, if the perpetrator’s modus operandi, and the consequences of the crime suggest that the offence [committed] was light in nature. [It may also be imposed] where in view of the circumstances regarding the perpetrator and particularly his or her attitude towards the victim and the compensation for the damage inflicted by the offence, it is considered that the purpose of the [sanction] can be achieved without imposing a penalty.”
Article 199
“2. Whoever insults another through the press, radio [or] television, in front of a number of persons, at a public assembly, or in another way in which the insult becomes accessible to a large number of persons, shall be punished by a fine of up to one hundred and fifty daily wages.”
THE LAW
24. The applicant complained that her criminal conviction had violated her right to freedom of expression guaranteed in Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
25. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. (a) The applicant
26. The applicant argued that she had merely exercised her constitutionally-guaranteed right of reply to D.O.’s accusations that the Association was responsible for the kidnapping of his minor daughter, which he had made in the most widely-read daily newspaper in the country, and in print, which, by its nature, was a more permanent medium, whereas the radio show where she had given her impugned statement had been deleted from the archives of the radio station sixty days after it had been aired, and had not been aired again. 27. She further explained that although the primary reason for appearing on the radio show had been D.O.’s case, other well-known cases had also been discussed and the overall topic of the show had in fact concerned violence against women and the manipulation of the media by perpetrators of such violence. D.O. had also been invited to join in the radio show in question, but he had never replied to that invitation, either before, during or after the broadcast of the show. 28. The applicant maintained that she had had reasonable grounds to believe that D.O. had abused his wife, such as the direct testimony of the victim, the misdemeanour proceedings for domestic violence in D.O.’s family, her experience in working with female victims of domestic abuse for a decade, and the statements of the two witnesses in the criminal proceedings about the police interventions that had taken place in D.O.’s family home. 29. In any event, even if the objective elements of the criminal offence of insult had been fulfilled, the subjective element of intent had not. Putting the controversial statement into full context proved that there had been reasons to find that the statement had not been unlawful, as did the capacity in which she had appeared on the show. 30. Lastly, the applicant argued that the private prosecution had aimed to censor her work and the work of similar associations. She had been sentenced in criminal proceedings for a crime she had not committed, and anxiety regarding a potential claim for damages had to some extent determined her behaviour in the years following the impugned judgment. (b) The Government
31. The Government acknowledged that the applicant’s conviction for insult had amounted to an interference with her freedom of expression. However, her statement and the manner of her speech, put into the context of the radio show in question, could not be considered justified criticism, and had therefore tarnished the honour and reputation of D.O. In view of that, the Government argued that the decision to convict the applicant had been lawful, because it had been based on Article 199(2) of the Criminal Code, and had sought to protect the honour and reputation of D.O. 32. As to proportionality, the Government maintained that the protection of a person’s honour and reputation represented a social need in democratic societies. Accepting that the dispute at issue might, to a certain extent, have concerned a topic of public interest, the Government emphasised that the applicant’s statements had not been made in the context of defence of the Association’s reputation or in the fulfilment of its tasks. Contrary to the applicant’s allegations, she had not merely conveyed information which she had learned from the alleged victim, but rather her own opinion on the matter. In addition, the applicant had not presented any fact or evidence in the criminal proceedings which would indicate that she had actually had a justifiable reason to believe that D.O. was an abuser. The fact that D.O. might have harmed the Association’s reputation did not make it permissible for the applicant, as its representative, to insult him. 33. The domestic courts carefully examined the relevant statements and the context in which they had been made, as well as whether there had been reasons to find that the statements had not been unlawful. Lastly, the sentence imposed on the applicant had been the most lenient sanction available in criminal law, which thus could not have resulted in the applicant being censored or discouraged as regards her further activities or participation in discussions concerning domestic violence. On the contrary, as the Government pointed out, even after her conviction, the applicant and the Association had continued to be publicly active. (a) Whether there was an interference
34. The Government conceded that the applicant’s conviction for insult on account of her statements in the media had constituted an interference with her right to freedom of expression as guaranteed by Article 10 § 1 of the Convention (see paragraph 31 above). The Court sees no reason to hold otherwise. (b) Lawfulness and legitimate aim
35. The domestic courts based the applicant’s conviction on the offence of insult as provided for in Article 199(2) of the Criminal Code (see paragraph 23 above). The Court accepts that the interference in the present case was prescribed by law. 36. Furthermore, it was common ground that the interference with the applicant’s right had pursued the legitimate aim of the protection of the rights of others, namely the honour and reputation of D.O. 37. What remains to be established is whether that interference was “necessary in a democratic society”. (c) “Necessary in a democratic society”
38. The Court notes that the present case concerns a conflict between concurrent rights, namely, on the one hand, D.O.’s right to reputation – part of his private life – and the applicant’s right to freedom of expression on the other. The general principles deriving from the Court’s case-law as regards the requirement of necessity in a democratic society in this type of cases have been summarised in a number of previous cases (see, among many other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78‐975, 7 February 2012; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 82-93, 10 November 2015). 39. The Court’s task in the present case is to examine whether, during their assessment, the domestic courts applied the criteria established in its jurisprudence on the subject, and whether the reasons that led them to take the impugned decisions were sufficient and relevant to justify the interference with the right to freedom of expression (see Cicad v. Switzerland, no. 17676/09, § 52, 7 June 2016). It will do so by examining the criteria established in it case-law (see Couderc and Hachette Filipacchi Associés, cited above, § 93) which are of relevance to the present case. (i) Contribution to a debate of public interest
40. There is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among many other authorities, Narodni List D.D. v. Croatia, no. 2782/12, § 60, 8 November 2018). It transpires from the transcript of the radio show in the present case and from the applicant’s submissions that the radio show discussed D.O.’s family case and other well-publicised cases of violence against women (see paragraphs 8 and 27 above). The Court therefore considers that the discussion in the present case – about violence against women and domestic violence – was clearly one of important public interest and the subject of a social debate, both at the material time and today. (ii) How well known is the person concerned and the subject of the report
41. Although D.O. was not a public figure, prior to the applicant’s impugned statement he had given an interview stating that the association run by the applicant had been responsible for his daughter’s kidnapping (see paragraph 7 above). Given that his interview had been published in a national daily newspaper, D.O. had thus entered the arena of public debate, and therefore should have had a higher threshold of tolerance towards any criticism directed at him (see Bodrožić and Vujin v. Serbia, no. 38435/05, § 34, 23 June 2009). (iii) Prior conduct of the person concerned
42. The Court cannot disregard the fact that the applicant made the impugned statements only after D.O. had publicly accused the association which she managed of a serious criminal act in the media. In such circumstances, and bearing in mind that the right of rectification or of reply, as an important element of freedom of expression, falls within the scope of Article 10 of the Convention (see Kaperzyński v. Poland, no. 43206/07, § 66, 3 April 2012, and Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX), the applicant could not have been expected to remain passive and not defend the Association’s reputation in the same way (see Marunić v. Croatia, no. 51706/11, § 52, 28 March 2017). (iv) Content, form and consequences of the publication
43. The Court has repeated time and again the distinction that needs to be made between statements of fact and value judgments (see, among many other authorities, Morice v. France [GC], no. 29369/10, § 126, ECHR 2015) as well as that Article 10 protects not only “information” or “ideas” that are favourably received or regarded as inoffensive, but also to those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24). 44. In the present case, the applicant took part in a live radio show as the representative of the Association on the day when D.O.’s newspaper interview was published. Given the nature of live broadcasting, the applicant had but a limited opportunity to reformulate, refine or retract any statements before they were made public (compare Reznik v. Russia, no 4977/05, § 44, 4 April 2013, and Ghiulfer Predescu v. Romania, no. 29751/09, § 52, 27 June 2017). Moreover, the Government did not contest the fact that D.O. had also been invited to join in the show, but had never responded to that invitation (see paragraph 8 above), and had therefore willingly renounced the opportunity to respond directly to the applicant’s allegations during the show. 45. In assessing the nature of the impugned statements, the domestic courts limited their analysis to the fact that D.O. had never been convicted of domestic violence and that the applicant had never claimed that she suspected or knew that criminal proceedings had been instituted against him (see paragraph 17 above). However, although a final criminal conviction amounts to incontrovertible proof that a person has committed an offence, the Court has already found it unreasonable to similarly circumscribe the manner in which allegations about that person’s criminal conduct are proved in the context of a defamation or insult case (see, in this connection, Kasabova v. Bulgaria, no. 22385/03, § 62, 19 April 2011). 46. Furthermore, while it is true that, when concluding that the applicant had insulted D.O., the domestic courts classified the impugned statement as a value judgment, they did not take into consideration that it concerned a matter of public interest, nor did they embark on an analysis of whether the applicant had had reasonable grounds to believe that D.O. had actually abused his wife, despite the fact that her association had provided his wife with shelter for several months (see paragraph 6 above) and that during the criminal proceedings several witnesses had testified that there had been some sort of police interventions and allegations of domestic violence in D.O.’s family (see paragraph 10 above). Instead, the courts interpreted the impugned statements rather narrowly, as the applicant’s negative opinion of D.O. which had been objectively insulting to him (see paragraph 17 above). (v) Severity of the sanction
47. Lastly, although the penalty imposed on the applicant was mild, it nonetheless consisted in a criminal conviction, and consequently an entry on the applicant’s criminal record (see Długołęcki v. Poland, no. 23806/03, §§ 44-45, 24 February 2009). Furthermore, while the sanction itself did not prevent the applicant from remaining involved in the Association’s activity, it nevertheless amounted to a sort of censorship which might have discouraged her from promoting the Association’s statutory aims in the future (see GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland, no. 18597/13, § 78, 9 January 2018) and the criminal conviction indeed strengthened D.O.’s chances of obtaining damages against the applicant in civil proceeding. (vi) Conclusion
48. In the light the foregoing, the Court considers that the domestic courts did not put forward relevant and sufficient reasons for the interference with the applicant’s freedom of expression or give due consideration to the principles and criteria laid down by the Court’s case‐law for balancing that freedom with the right to respect for private life. In particular, they failed to take into account that the applicant had been exercising her right of reply in relation to a serious accusation made against an association of which she was president, or carry out an adequate proportionality analysis with a view to assessing the overall context in which the impugned expressions had been used and their factual basis. They thus exceeded the margin of appreciation afforded to them and failed to strike a reasonable balance of proportionality between the measures restricting the applicant’s right to freedom of expression and the legitimate aim pursued. 49. There has accordingly been a violation of Article 10 of the Convention. 50. The applicant complained that the criminal proceedings against her had been unfair in that the trial court had refused to question the radio show and relied on unlawfully obtained evidence, in breach of Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
51. The Government argued that the applicant had had a fair trial in which she had used all her procedural rights to contest the admissibility of evidence and object to court decisions rejecting her proposals for witnesses to be questioned. They also submitted that the merits of her objections and complaints had been properly addressed by the domestic courts. 52. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible. 53. Having regard to the finding relating to Article 10 of the Convention, the Court considers that it is not necessary to examine whether there has been a violation of Article 6 in this case (see, among other authorities, Standard Verlags GmbH and Krawagna-Pfeifer v. Austria, no. 19710/02, § 65, 2 November 2006, and Kwiecień v. Poland, no. 51744/99, § 62, 9 January 2007). 54. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
55. The applicant claimed 6,600 euros (EUR) in respect of non‐pecuniary damage. 56. The Government contested that claim. 57. Having regard to all the circumstances of the present case, the Court accepts that the applicant suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant the full amount claimed, plus any tax that may be chargeable. 58. The applicant also claimed 58,750 Croatian kunas (HRK – approximately EUR 8,000) for the costs and expenses incurred before the domestic courts and the Court. 59. The Government contested those claims. 60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 covering costs under all heads, plus any tax that may be chargeable to the applicant. 61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:
(i) EUR 6,600 (six thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata Degener Linos-Alexandre SicilianosDeputy RegistrarPresident