Case Summary and Outcome

The European Court of Human Rights found that the criminal conviction of a grandmother for breaching the confidentiality of administrative custody proceedings violated her freedom of expression. The case concerned Ms N.Š.’ participation in a television interview where details about the administrative custody proceedings concerning her granddaughter were disclosed, including her granddaughter’s name. She was criminally convicted for disclosing information that had been confidential, despite claims that she informed the journalists not to publicize such information and despite prior instances where the same information was publicized in the media. The Zagreb Municipal Criminal Court dismissed the applicant’s proposals to hear further evidence on these claims. Her conviction was upheld by the Zagreb County Court and the Constitutional Court. The European Court of Human Rights held that, ultimately, an extensive balancing exercise was needed between the competing rights of freedom of expression and the privacy of the child. The domestic courts failed to properly conduct this exercise, instead engaging in too “formalistic” an approach. The Court found Ms N.Š.’ freedom of expression under Article 10 of the European Convention of Human Rights was violated.

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Facts

The applicant in this case was Ms N.Š. On May 20, 2007, the applicant’s daughter and son-in-law died in a car accident. The couple’s five-month-old daughter, N.G., was injured in the accident.

The local Social Welfare Centre gave provisional custody of N.G. to her uncle (her father’s brother). A dispute arose between the paternal and maternal family members over N.G.’s custody. The dispute resulted in administrative proceedings before the Centre (first the D.S. Centre and then the K. Social Welfare Centre) and the Ministry of Health and Social Welfare, and judicial proceedings before the relevant courts.

In January 2009, the Centre gave custody of N.G. to her uncle. The applicant’s family appealed, and the case was remitted to the Centre. In October 2010, the Centre again gave custody of N.G. to her uncle, which was then upheld by the Ministry. The applicant’s family challenged this decision in the relevant administrative court.

Both the accident and the family dispute garnered considerable media attention. The applicant was interviewed in an article in Jutarnji list, a national newspaper, where she discussed the Centre’s decision and subsequent proceedings. Revealed details were later confirmed by the Centre’s director. In both instances, the name of the child was explicitly mentioned.

On April 10, 2008, a television show called Provjereno discussed the case at length. Specifically, it was mentioned how the mother’s family could not accept that N.G.’s name was explicitly mentioned by the journalist in the television report. On March 16, 2010, an article was published in Večernji list, another national newspaper, where the applicant contended that the child had been given to her uncle without anybody consulting the applicant or her family. The article further suggested that the D.S. Centre had lacked impartiality. In a further article of March 18, 2010 in Jutarnji list, the applicant contended that she suspected that various “connections” had been instrumental in the D.S. Centre’s adoption of the decision in favour of the uncle. She also pointed to the findings of an expert report that stated custody of the child should be granted to the applicant’s family.

On April 7, 2010, the applicant, her husband, and her other daughter, D.Š., took part in a television show called Proces which was broadcast on a national channel. During the interview, the applicant and D.Š. raised various issues regarding the alleged malfunctioning of the social welfare system, including the relevant court proceedings concerning custody and contact of N.G. Further explanations about details of the case were provided by the journalist. The report contained scenes that focused on the introductory and operative portions of the multiple decisions of the Ministry and the Centre with the child’s name visible, a brief overview of the decision’s reasoning with the child’s name shown and information about the appeal. It was not certain who was displaying the documents, though the applicant was shown touching documents in separate scenes.

After the broadcast of the Proces report, N.G.’s uncle lodged a criminal complaint against the applicant and D.Š. for breaching the confidentiality of the administrative proceedings before the Centre, specifically by disclosing N.G.’s full identity. On August 31, 2011 the State Attorney’s Office indicted the applicant and D.Š. on that charge.

The case was initially examined by the Zlatar Municipal Court which found the applicant and D.Š. guilty as charged. They appealed and the case went to the Zagreb Municipal Criminal Court for trial. N.G.’s uncle testified that the officials of the relevant welfare centre had repeatedly informed the applicant and her daughter that the public was excluded from the proceedings. The defense requested to hear from the editor and journalist of Proces, the applicant’s husband and son, and for previously disclosed information from the Provjereno show to be reviewed. The trial court refused all proposals as irrelevant. The applicant argued that she had no intention of disclosing the documents or N.G.’s name publicly but only had the documents with her to demonstrate everything that went wrong in the proceedings. She also claimed that she warned the journalist not to disclose N.G.’s name, which he had promised not to do, and that she was never warned about the proceedings’ confidentiality – only her lawyer warned her about disclosing N.G.’s identity.

Following the hearing on July 19, 2012, the Municipal Court found the applicant and her daughter guilty of committing the criminal offence under Article 305 § 1 of the Criminal Code, taken in conjunction with Section 271 of the Family Act. They were sentenced to four months’ imprisonment, suspended for two years. The Municipal Court argued that it was clear from the recording that the applicant was the one who displayed the documents, and she was aware of the public’s exclusion from the Centre’s administrative proceedings. Overall, the applicant had acted “knowingly and deliberately” [para. 30] when disclosing the information with a motive to influence how the administrative proceedings progressed.

The applicant challenged that judgment before the Zagreb County Court, arguing that the Municipal Court had failed to take into account the context and circumstances of the case relating to the public’s prior knowledge and the role of the journalists. The County Court dismissed the applicant’s appeal as unfounded and endorsed the Municipal Court’s findings.

The applicant lodged a constitutional complaint with the Constitutional Court. She complained of a breach of her right to a fair trial under Article 6 §§ 1 and 3 (d) and freedom of expression under Article 10 of the Convention, and the corresponding provisions of the Constitution. On April 25, 2013, the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.

On May 21, 2013, the applicant lodged an application complaining that her criminal conviction violated Article 10 of the European Convention on Human Rights.

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Decision Overview

The main issue before the Court was whether the applicant’s conviction in pursuit of the child’s privacy was properly balanced with the competing right of her freedom of expression.

The applicant argued that there had been an interference with her freedom of expression and that it was not entirely evident whether she was convicted of disclosing N.G.’s name or of disclosing information about the administrative proceedings. Either way, all relevant information, including N.G.’s name, had been disclosed publicly beforehand with no prior prosecutions. It was also not evident which part of the proceedings had been confidential. The applicant believed that the criminal prosecution was intended to silence her criticism of how the domestic authorities had handled N.G.’s case.

The Government highlighted that the applicant had been convicted only for showing the journalist and cameraman a decision from the confidential custody proceedings; she was not punished because of her criticism and her claim was thus outside the scope of Article 10’s protection. Furthermore, there was no doubt that she had displayed those documents during the interview and that she had been aware of the custody proceedings’ confidentiality. The Government added that her conviction had pursued a legitimate aim of protecting the rights of N.G. and ensuring that the custody proceedings accorded with the child’s best interests. Any prior disclosure of N.G.’s name was irrelevant to the applicant’s duty not to disclose.

Firstly, the Court reiterated that Article 10 is applicable to information and ideas that “offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” [para. 61]. Article 10 also protects the form in which ideas are expressed, which the Court outlined was was applicable to the “public dissemination of confidential information in the media” [para. 62] – referencing Stoll v. Switzerland ECtHR [2007] 69698/01; Ricci v. Italy [2013] 30210/06; Bédat v. Switzerland ECtHR [2016] 56925/08. Therefore, Article 10’s principles did apply in such proceedings and the applicant’s complaint was admissible. On this basis, the applicant’s criminal conviction amounted to an interference with her Article 10 rights.

Secondly, in taking account of the rest of its findings, the Court considered that it was unnecessary to reach a definite conclusion on the lawfulness of the interference. Still, it rearticulated that Article 10’s “prescribed by law” [para. 78] not only required a legal basis in domestic law, but also referred to the quality of the relevant law. In terms of foreseeability, a norm could not be regarded as a “law” unless it was communicated to enable people to regulate their conduct and foresee the consequences of such conduct.

Thirdly, given the sensitive issues concerning children and the protection confidentiality provides, the Court accepted that the interference in question pursued the legitimate aim of protecting the rights and interests of N.G.

Lastly, referencing Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina ECtHR [2017] 17224/11, the Court outlined the principles for assessing the necessity of an interference: “necessary” implies a “pressing social need” [para. 92] and States have a margin of appreciation in assessing that need’s existence along with European supervision. Thus, they should have applied standards that conform with Article 10’s principles and “relied on an acceptable assessment of the facts” [para. 92].

Referencing Stoll v. Switzerland ECtHR [2007] 69698/01; Klein v. Slovakia ECtHR [2006] 72208/01, the Court also reiterated that freedom of expression is exercised with “duties and responsibilities” and is thus subject to narrow exceptions that concern public interest. Additionally, where expression criticizes State bodies, those bodies should accept wider limits of acceptable criticism.

The Court also touched on the possibility that Article 10 could conflict with the rights of the child under Article 8 and that these rights deserve equal respect. Additionally, significant weight must be attached to what serves the child’s best interest. Altogether, the Court stressed that a State’s courts are better placed to determine how the right balance is struck between competing rights. They retain a margin of appreciation for Article 10 matters whilst the Court requires a strong reason to substitute its view.

Taking into account the media attention in this case, the Court noted that the applicant participated in a debate capable of contributing to matters of public interest, particularly regarding “the proper functioning of the system of childcare proceedings” [para. 103]. Thus, the applicant’s right to inform the public of alleged deficiencies about the domestic authorities clashed with the right of N.G. to have her privacy.

If proceedings were held in private, there may have been a reasonable expectation that any information revealed would be kept private. The Court emphasized that children have little or no control over their personal data. Domestic authorities must carefully balance between the freedom to speak about matters of public interest and the protection of the child’s best interests and privacy rights. The latter consideration means that the child’s interests have “high priority” [para. 106], especially when an action has an undeniable effect on a child.

None of the considerations were balanced in the judgments of the domestic courts, particularly there was a failure to consider the involvement of public interest and whether there was a debate contributing to matters of public interest. Thus, confidentiality of custody proceedings could not be protected “at any price” [para. 108] and other issues had to be taken into account. The Municipal Court refused to consider that the information was previously disclosed publicly. Moreover, the Municipal Court failed to distinguish between the disclosure of the information about the custody proceedings from the disclosure of the child’s identity and her personal data.

Overall, the applicant’s participation in the television interview should have been assessed in “the wider context” [para. 113] of the entire media coverage. This included pursuing and discussing the journalists’ role in the disclosure of information and accounting for the fact that the applicant had acted in good faith to raise issues about the social welfare services, both of which the Municipal Court failed to do. The Court contended that various considerations were not considered, and the domestic courts took a “purely formalistic approach to the notion of confidentiality of proceedings” under the Criminal Code. Such a formalistic approach contradicted the Court’s case-law and forewent a proper review of whether the interference was ultimately justified. Based on the domestic courts’ failure to consider all relevant circumstances outlined, the Court found that there was a violation of Article 10 of the Convention.

Besides Article 10, the applicant complained of a lack of fairness of the criminal proceedings against her for breaching the administrative proceedings’ confidentiality under Article 6 §§ 1 and 3(d) of the Convention. The Court found this complaint admissible because it was linked to the Article 10 one, but the findings relating to Article 10 made it unnecessary to examine the issue separately. The Court awarded the applicant 7,500 euros in respect of non-pecuniary damage.

Judges Koskelo and Eicke concurred that there had been a violation of Article 10 but expressed certain reservations regarding the reasoning. Regarding lawfulness, the judges hesitated to support the conclusion that the domestic law satisfied the requirements of the “quality of the law” since it was unclear what “constituted the punishable conduct and how the specific facts could be subsumed under the domestic provisions” [para. 3]. Thus, foreseeability of criminal liability for the facts was not certain. Regarding necessity/proportionality, they reemphasized the balancing act needed. Referencing Yleisradio Oy and Others v. Finland (dec.) [2011] 30881/09, which dealt with competing considerations of the same rights, the judges noted that freedom of expression could be legitimately restricted on grounds of privacy protection, but a proper balancing must be performed – highlighting the lack of any balancing exercise in this case.

Lastly, regarding the child’s best interests, the judges found it “incongruous” [para. 9] to focus on the best interests of the child where the central issue was that no other considerations were taken into account besides that of the confidentiality of the proceedings. That UNCRC principle “taken as a primary consideration” [para. 10] is not plausibly applicable to the ECHR framework, which balances competing rights in its own manner. In terms of Article 10, the child’s best interests do not substitute for the necessary balancing act. Overall, “overstating the role” which this principle plays regarding Convention provisions is unhelpful and “risks being misleading” [para. 14].

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