IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
The applicant, Mr Slobodan Ivanovski, is a Macedonian national who was born in 1946 and lives in Skopje. He was represented before the Court by a lawyer practising in Skopje, the former Yugoslav Republic of Macedonia. On 27 October 1997 an individual brought criminal charges for defamation against the applicant, who at that time was a police officer. In a summary procedure, on 3 October 2000 the Basic Court Skopje II Skopje found the applicant guilty and sentenced him to four months’ imprisonment suspended for one year. It found that the applicant told a third person (“the witness”) that the complainant would be convicted and sentenced to three years’ imprisonment and that he was unfit to carry a gun and that it would be seized. The court found the accusations credible and convicted the applicant of defamation. It, inter alia, stated: “...the defendant [name] on 15 October 1997 visited the witness [name] at his work in the elementary school ... on which occasion he made untruthful statements about the complainant [name] and told him that the latter would be sentenced to at least 3 years imprisonment and that he was unfit to carry weapons and his pistol would be taken away...The court finds that the accused [name] and the witness [name] took part in the incident by taking into account the clear and precise statement of the witness [name] who described the critical incident and the defendant’s statement, who states that he did meet with the witness on the stated day...” Before the decision was reached, on 3 October 2000, the court held a public hearing, which was attended by the complainant, the applicant and the witness to whom the defamatory statements were allegedly made. The applicant’s lawyer was not present at the hearing. She had not been properly summoned, which the court expressly noted in the minutes. However, despite the absence of the applicant’s lawyer, the court held the hearing as the applicant had been warned at the previous hearing held on 5 July 2000 that the (next) hearing would be held even in the lawyer’s absence, as legal representation was not compulsory and as the applicant had failed to secure the presence of his lawyer. The applicant did not explicitly object to the hearing proceeding in the absence of his lawyer. He did not ask for an adjournment and consented to giving evidence and himself put questions to the witness. In his evidence to the court, the applicant stated that he had been served with the criminal complaint, but that he was not able to judge whether to remain silent or to defend himself. He rejected the accusations and declared himself not guilty. He stated that he had known the complainant for about 40 years and they had recently met more often, as he was divorcing and was asking for some consultations with the complainant who was a retired lawyer. He started seeing the complainant’s daughter. Their relations became troubled when the applicant allegedly refused the complainant’s proposal to transfer some property to the name of his daughter. He admitted that he occasionally saw the witness while on official visits to the school where the latter worked, but that he did not make any of the alleged defamatory statements to him. The complainant stated that he had only known the applicant for several years and that he visited his house occasionally. As the applicant allegedly had asked him to found a company to enter into business relations with the underground in some neighbouring countries, he stopped all contact with him. After a couple of months, the complainant complained to the police authorities that the applicant was peering into his house, due to which internal disciplinary proceedings within the Ministry of the Interior were instituted against the latter. The event was noticed by the witness, who was a neighbour. He confirmed that, during the disciplinary proceedings, the applicant visited him several times in the school and threatened him to make him withdraw the statement. In the course of those visits, the applicant made untrue statements about the complainant to the witness which were the subject of criminal charges. The witness confirmed that the applicant was the one who peeked into the complainant’s house, about which he made a statement to the police authorities. The applicant allegedly visited him several times at the school in order to persuade him to be objective and not to make statements against him in the disciplinary proceedings. He stated that the applicant did not tell him anything against the complainant, except not to be under his influence and to give an objective statement in the disciplinary proceedings. He also said that he thought that the applicant had mentioned to him that a gun would be seized from the complainant and that he would go to prison, but that he did not understand how would that be done and by whom. He received neither threats nor anything else from the applicant. He was also contemplating to complain to the police authorities about the applicant’s visits. He, inter alia, stated: “... Sometime after that incident, the defendant ... visited me at work, and if I can say so, to pressure me because I understood he found out that a disciplinary procedure was initiated at his work place. He was telling me to be impartial and not to take the side of [name] the complainant, since he was my neighbour and he would definitely try to influence me to give a statement against him. During all those meetings, the defendant [name] was showing me pictures illustrating that he was in contact with the complainant’s [name] family. He was telling me about [name] his daughter, but he didn’t tell me anything about the complainant [name]. I repeat again that regarding the complainant [name] all he was saying was not to be under his influence and to give an impartial statement in the disciplinary procedure. That is all he was telling me. I say that he did not tell me anything regarding the complainant [name] as a person. I cannot quote him precisely, but I think that at one occasion, the defendant [name] mentioned that allegedly the complainant’s [name] pistol would be taken away and that he would be going to prison. But I did not understand in which context and by whom and in which way this would be done.” The court refused the applicant’s request to summon several witnesses for the purpose of describing his relations with the complainant and his daughter as irrelevant for the offence of which he was accused. The applicant appealed the court’s verdict on, inter alia, the following grounds: that the trial court violated his right to defend himself as he was tried in the absence of his lawyer; that the court erred in establishing the facts, especially in that it based its decision solely on the witness’s statement, which was not credible; and that it failed to call and examine the witnesses as proposed by the applicant. On 13 July 2001 the Appellate Court of Skopje dismissed both the applicant’s and his lawyer’s complaints as ill-founded. Regarding the applicant’s allegations of a violation of his right to defend himself before the trial court, the Appellate Court stated that: “...according to the minutes of the hearing held on 5 July 2000, the accused was warned that if he would not secure the presence of his lawyer for the hearing scheduled for 3 October 2000, it would be held in her absence, as legal representation for criminal offences of that type was not compulsory. As the accused, despite the warning of the trial court, failed to secure the presence of his lawyer, the court finds that the trial court has properly decided to hold the hearing in the absence of his lawyer for representation was not compulsory. Thus, it did not violate his right to defend himself...” The court dispensed with a hearing, albeit applicant’s request. On 26 September 2001 the Public Prosecutor refused the applicant’s request to lodge a request for protection of legality with the Supreme Court. Proceedings on the appeal Article 362 “(1) A notification of the Chamber’s session will be given to the defendant and his lawyer, the person damaged as a complainant or to the private prosecutor who, within the period prescribed for the appeal or reply to the appeal, have requested to be informed about the session or have proposed a hearing to be held before the second instance court (Articles 364 to 366). The Chairman of the Chamber or the latter may decide a notification about the Chamber’s session also to be given to the parties when they have not requested it or to the party which has not requested it, if their presence would be useful for any matter to be clarified...” Article 364 “(1) The hearing before the second instance court will be held only if it is necessary for new evidence to be presented due to an erroneously or incompletely established facts or for the evidence be re-presented and there are no justified reasons for the case be referred back to the first instance court for a retrial. (2) For the hearing before the second instance court the defendant and his counsel, the prosecutor, the person damaged, the defence attorneys and legal representatives of the complainant, the person damaged as a complainant and the private prosecutor are summoned, as well as the witnesses and experts whom the court will decide to be heard...” Summary proceedings Article 416 “In the proceedings before the court in first instance for crimes of which a fine or imprisonment up to three years is prescribed as a main punishment, the provisions of Articles 417 to 430 of this Code will apply. If these provisions do not otherwise provide, the other provisions of this Code will be accordingly applied.” Article 431 “(1) When the second instance court decides on appeal against the judgment of the first instance court delivered in a summary proceedings, both parties will be notified about the Chamber’s session only if the Chairman of the Chamber or the Chamber finds that the presence of the parties would be useful for the clarification of any matter...” Defamation Article 172 “(1) A person who expresses or spreads some untruth about another, which could damage his honor and reputation, shall be fined or sentenced to imprisonment of up to six months. (2) If the crime from par. 1 is committed by means of the press, radio, television, or through other public media or at a public gathering, the offender shall be fined or sentenced to imprisonment of up to one year. (3) If the untruth that is expressed or spread is of such significance that it caused or could have caused severe consequences for the complainant, the offender shall be sentenced to imprisonment of three months to three years. (4) If the accused proves the truth of his statement, or if he/she proves that he had reasonable grounds to believe in the truthfulness of what he had stated or spread, he shall not be punished for defamation, but may be punished for insult (article 173), respectively for slight by reproach about a crime (article 175). (5) A person who falsely expresses or spreads about another that he/ she has committed a crime which is prosecuted in the line of duty, he/ she shall be punished for defamation, even though he/ she had had reasonable grounds to believe in the truthfulness of what he/ she expressed or spread, if the expression or spreading is not performed under the conditions from article 176, item 2. The truthfulness of the fact that another has committed a crime for which he/ she is prosecuted in line of duty may be proved only with a sentence that has come into effect and with other evidence only if the prosecution of the trial is not possible or is not allowed.”