Case Summary and Outcome

The European Court of Human Rights (ECtHR), delivered an interesting judgment in the case of Tölle v. Croatia about insulting allegations of domestic violence. In a newspaper article a father accused an association of being responsible for his child’s abduction by the mother. The president of this association providing support for women victims of violence replied in a radio-interview that her organisation was not involved in the daughter’s abduction and that the man had violently abused his wife. That was also the reason why mother and daughter had fled the country. The association’s president was subsequently convicted for the criminal offence of insult. The ECtHR found that this criminal conviction amounted to a violation of the association’s president’s freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The Court finds the criminal conviction for insult a sort of censorship, discouraging the promotion for support of victims of domestic violence.

This post by Dirk Voorhoof and Inger Høedt-Rasmussen originally appeared on the Strasbourg Observers blog and is adapted for our database with permission and thanks.

Facts

The applicant in this case is Ms Neva Tölle, the president of the Zagreb Autonomous Women’s House (‘the Association’), an association that supports women victims of violence. 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 stayed for several months at the Association’s refuge for women, and afterwards C.O. took the child abroad. A daily newspaper 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. The same day Ms Tölle explained the circumstances of the Association’s actions in the case and denied its involvement in child abduction. She stated that D.O. had been abusing his wife and she added:

“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.”

Ms. Tölle also said that the criticism by D.O. of her Association was to present the abuser as the victim and the victim as the abuser. She called this a “burning issue” and “absolutely unacceptable in domestic violence cases”.

A few weeks later D.O. brought a private criminal prosecution against Ms Tölle on charges of defamation relating to her allegations that he had abused his wife. Ms Tölle was found guilty of insult, finding that she had tarnished D.O.’s honour and reputation by alleging that he had abused his wife. The domestic courts were of the opinion that the accusation at issue could not be qualified as defamation, but as insult. By referring to D.O. as an abuser, Ms Tölle had stated a negative opinion of him that was ‘objectively insulting’. Ms Tölle was sanctioned with a judicial admonition and ordered to pay the costs and expenses of the proceedings, as well as the expenses incurred to D.O. and to his lawyer. Both an appeal before a second-instance court and before the Constitutional Court were dismissed.

Before the ECtHR, Ms Tölle complained that her criminal conviction had violated her right to freedom of expression guaranteed by Article 10 ECHR. She argued that she had merely exercised her constitutionally-guaranteed right of reply to D.O.’s accusations that the Association was responsible for the abduction of his minor daughter. Ms Tölle submitted that she had reasonable grounds to believe that D.O. had abused his wife, referring to the direct testimony of the victim, the 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 two witnesses. Ms Tölle also 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.

Decision Overview

The domestic courts based Ms Tölle’s conviction on the offence of insult as provided for in Article 199(2) of the Criminal Code, and the ECtHR accepts that the interference with the applicant’s right in the present case was prescribed by law. Neither was it in dispute that the interference had pursued the legitimate aim of the protection of the rights of others, namely the honour and reputation of D.O. What remained to be established was whether that interference was ‘necessary in a democratic society’, in conformity with Article 10 § 2 ECHR and the Court’s case law.

The ECtHR first notes that the present case concerns a conflict between concurrent rights, namely, on the one hand, D.O.’s right to reputation as part of his private life, and on the other hand Ms Tölle’s right to freedom of expression. Referring to Axel Springer AG v. Germany and Couderc and Hachette Filipacchi Associés v. France, the ECtHR evaluates:

1. whether the radio-interview at issue was about a matter of public interest,
2. how well-known D.O. was and the subject and context of the interview,
3. the prior conduct of D.O.,
4. the content, form and consequences of the radio-interview and
5. the severity of the sanction imposed on Ms Tölle.

The ECtHR considers that the central issue discussed in the radio-interview was about violence against women and domestic violence, an issue of important public interest and the subject of a social debate, ‘both at the material time and today’. As D.O. had given an interview in a national daily newspaper, he had entered the arena of public debate, and therefore he should have had a higher threshold of tolerance towards any criticism directed at him. Furthermore D.O. had publicly accused the Association managed by Ms Tölle of a serious criminal act in the media. In such circumstances, and bearing in mind that the right of rectification or of reply falls within the scope of Article 10 ECHR, Ms Tölle could not have been expected to remain passive and not to defend the Association’s reputation.

The ECtHR finds that 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. The ECtHR reiterates however, that although a final criminal conviction amounts to incontrovertible proof that a person has committed an offence, it is 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.The ECtHR also holds that the domestic courts did not embark on an analysis of whether Ms Tölle had had reasonable grounds to believe that D.O. had actually abused his wife. The ECtHR refers to the fact that Ms Tölle’s association had provided C.O. with shelter for several months and that witnesses had testified that there had been some sort of police interventions and allegations of domestic violence in D.O.’s family. Instead of pertinently evaluating the context of the comments by Ms Tölle, the domestic courts merely classified the impugned statement as a value judgment expressing a negative opinion of D.O. which had been objectively insulting to him.

With regard to the nature of the interference with Ms Tölle’s freedom of expression the ECtHR is of the opinion that the penalty imposed on her was mild, but that it nonetheless consisted of a criminal conviction, and consequently an entry on Ms Tölle’s criminal record. The ECtHR recognises that the sanction itself did not prevent Ms Tölle from remaining involved in the Association’s activity, but the ECtHR finds that the criminal conviction nevertheless amounted to a sort of censorship which might have discouraged her from promoting the Association’s statutory aims in the future. The ECtHR also finds that the criminal conviction strengthened D.O.’s chances of obtaining damages against Ms Tölle in civil proceedings.

The ECtHR, sitting as a Committee, concludes that the domestic courts failed to take into account that Ms Tölle had been exercising her right of reply in relation to a serious accusation made against an association of which she was the president. Neither have the domestic courts carried 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 Ms Tölle’s right to freedom of expression and the legitimate aim pursued of the protection of the reputation or the rights of others. There has accordingly been a violation of Article 10 ECHR.