CASE OF MAKRADULI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo
6. The applicant was born in 1965 and lives in Skopje. At the time of the events he was vice-president of the SDSM opposition party and a member of parliament. The present applications concern criminal libel proceedings brought against the applicant by Mr S.M., who at the time was a senior member of the then ruling political party and at the same time head of the Security and Counter Intelligence Agency (“the Agency”). According to the Internal Affairs Act (sections 24 and 25), the head of the Agency is appointed by the Government and is accountable to it and the competent Minister. The impugned proceedings concerned statements made by the applicant at press conferences held at his political party’s headquarters. 7. On 14 December 2007 the applicant held a press conference that was broadcast by the main news programme of the A1 television channel, which had national coverage and was the most popular channel at the time. The relevant part of the applicant’s statement at the press conference reads as follows: “In the year and a half he has formally been head of the Security and Counter Intelligence Agency and practically the head of the police, has M. (the plaintiff’s surname), abused his powers in order to influence the Macedonian Stock Exchange and have timely information to enable him to obtain a profit? Is there any truth in the rumours (гласини), which have become stronger, that police wiretapping equipment is being misused for trading on the Stock Exchange? ...” 8. The applicant submitted a transcript of the broadcast, which was also viewed at the trial (see paragraph 11 below). Besides the information described above, the transcript included a journalist suggesting that the applicant’s political party had asked the head of the Public Revenue Office whether Mr S.M. had paid taxes on his property, which had been assessed as being worth several million euros (EUR). The same programme also gave Mr S.M.’s reply, denying the allegations and stating that the money in question had been transferred to the respondent State from a foreign bank account. The transcript of the broadcast was published on the channel’s website on the same day under the headline: “SDSM: M. has wrongfully used wiretapping equipment”. 9. The applicant submitted articles published over the following days on the channel’s website, which described the subsequent exchange of comments and replies between the applicant and his political party, on the one hand, and various State institutions on the other. The articles stated that the applicant’s political party had asked the relevant institutions to investigate the origin of Mr S.M.’s assets and that the Ministry of the Interior had requested that it submit any evidence in support of its allegations. 10. On 1 February 2008 Mr S.M. brought private criminal proceedings accusing the applicant for libel, which was punishable at the time under Article 172 § 1 of the Criminal Code. He claimed that the applicant’s statement at the press conference (see paragraph 7 above) had contained defamatory allegations about him. The applicant did not submit any comments in reply. 11. The Skopje Court of First Instance (“the trial court”) scheduled twelve hearings. The applicant, who was legally represented, did not personally attend any of the scheduled hearings. Several hearings were adjourned owing to the applicant’s work in Parliament. At the trial, the court heard Mr S.M. and was provided with audio-and video-recordings of the programme on A1. The relevant part of the transcript of the hearing of 24 March 2009, when the court examined that material, reads as follows: “... The court views ... the video and audio-recording of the news programme broadcast on A1 television on 14 December 2007 on which ... there is a photo of the plaintiff S.M. and the voice of a journalist who states the following: ‘The (SDSM) ask(s) whether the head of the (Agency), S.M., earned hundreds of thousands of euros by misusing police wiretapping equipment for trading on the Stock Exchange. Their suspicions are based on a declaration of assets (анкетен лист), which S.M. submitted half a year ago, in which he specified that he possessed shares valued at EUR 300,000. SDSM ask(s) whether M. obtained any of that property during the nine months he has been in office, without submitting a declaration, and whether that was the reason for his failing to submit the declaration within the first nine months of his mandate’ The recording continues with a photograph of [the applicant] at a stand in front of the SDMS logo and states that [statement described in paragraph 7 above] ... The video material continues with a commentary by the journalist stating that: ‘S.M. replied to the allegations by SDSM by saying that the money in question was linked to a lawful business which he had abroad’ and the tape continues with the plaintiff’s statement ...” 12. The defence did not submit any evidence (including the evidence described in paragraphs 8 and 9 above). In the concluding remarks, the applicant’s lawyer stated that the applicant had made the impugned statement in an interrogatory form and as the vice-president of an opposition political party, which had the role of expressing concerns about and assessing the work of State officials. 13. On 3 November 2009 the trial court, sitting as a single-judge (Judge V.M.), found the applicant guilty of defamation and fined him EUR 1,500 with seventy-five days’ imprisonment in default. It also ordered him to pay court fees of EUR 30 and a further EUR 230 to cover Mr S.M.’s costs. The court further ruled that the operative part of the judgment should be published at the applicant’s expense via A1 television’s news programme. The relevant parts of the judgment read as follows: “... The accused is the vice-president of SDSM ... ... [the applicant] said [the words described in paragraph 7 above] from a podium which had the SDMS logo behind it ... ... a statement ... must contain certain facts and ... be false ... The fact of that which ... is expressed or disseminated being false constitutes the core of the criminal offence of libel. Consequently, a victim is not required to prove that a defamatory statement is false, rather the accused is obliged to prove (the veracity of) what was said ... ... based on the audio and video material to hand the court finds that [the applicant] made statements about [Mr S.M.] in a form capable of persuading an ordinary viewer ... that they are truthful ... ... the court does not deny that questions can be put to and answers sought from State officials ... It is true that every person, including a member of a political party, as is [the applicant], has the right to put questions of public interest, to criticise the work of the Government and to express concerns about someone who holds the highest office in the executive. This makes the victim a ‘legitimate target’ of constructive criticism and public debate, but not of statements and assertions that had no factual basis, as in the present case. ... the court cannot accept, as contrary to the evidence, [the applicant’s] defence that the allegations were made in an interrogatory form (in an attempt) to obtain an answer from the victim as a State official. (Given) the manner in which the applicant expressed his allegations and other circumstances, the court has found that the [applicant’s] allegations are false and (represent) an assertion made in an interrogatory form, which have had a considerable effect on the claimant’s reputation and dignity. The defence cannot rely on Article 176 of the Criminal Code and (claim) that the (impugned) expression should have been examined in the context of the position he held, namely vice-president of an opposition political party. Such a status does not entitle him to express or disseminate untruthful allegations which are detrimental to the reputation and dignity of a third party. ... the court considers that the fact that [the applicant] has already been convicted by a final judgment of the same offence is an aggravating factor ...” 14. On 11 May 2010 the Skopje Court of Appeal, sitting as a three-judge panel composed of Judges M.S., L.I.Sh. and S.K., upheld the trial court’s judgment, finding no grounds to depart from the established facts and the reasoning. 15. Based on legislative amendments of November 2012, on 12 February 2013 (see paragraph 36 below) the trial court stayed the execution (се запира постапката за извршување на санкција) of the sanction (a fine) imposed on the applicant. 16. The applicant paid Mr S.M.’s costs for the criminal proceedings. He did not pay the court fees and did not publish the trial court’s judgment via A1, which ceased to exist in 2011. 17. The applicant lodged a constitutional appeal with the Constitutional Court in which he complained that his conviction had violated his right to freedom of expression. He reiterated his arguments that he had been punished for a question that he had raised at a press conference that had been held on behalf of his political party. The question had been addressed to the public and had been based on information submitted to his political party about suspected irregularities in the work of a State official. The aim had been to stimulate public debate on whether the official had been diligent in performing his official duty. 18. By a decision of 23 February 2011 (served on the applicant on 30 March 2011), the Constitutional Court by a majority dismissed the applicant’s appeal. It noted that he had not attended any of the scheduled hearings and held that freedom of expression was not absolute and could be restricted in accordance with the law. In that connection, it referred to Article 172 of the Criminal Code, which punished the dissemination of untrue information that could affect the reputation and dignity of a third party. The court further held that: “The way in which [the applicant] expressed his opinion (мислење) in public concerning the performance of public duties by a public official (in an interrogatory form, as a member of an opposition political party, from a political party’s podium (говорница), the consequences of his public action ...), without trying to prove the veracity of his question or statement, taken as a whole, represents an action which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but in substance it affects the reputation and dignity of the citizen who holds that public office at the time and violates those values. Accordingly, the statement lost the attributes of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).” 19. In comments submitted in reply to the Government’s observations (November 2015), the applicant informed the Court that Mr S.M. had brought civil proceedings against him after his conviction, seeking compensation for non-pecuniary damage. The claim was examined at three levels of jurisdiction. By a final judgment of 9 April 2014 the applicant was ordered to pay 550,000 Macedonian denars (MKD) plus interest in respect of non-pecuniary damage and MKD 46,180 for the trial costs incurred by Mr S.M. in the compensation proceedings. 20. On 9 September 2007 the applicant held a press conference at SDSM’s offices regarding the public sale of State-owned building land in the central area of Skopje, where the construction of a hotel was planned. It was broadcast on local television news. According to a transcript of the entire press conference (evidence not submitted to the criminal courts), the applicant presented the events involved and information obtained from the State authorities regarding the sale in question. He further detailed the conclusions of research done by his political party, showing that the company that had been selected was incorporated in the respondent State at the same address as O. Holding (a local company) and was partly owned by a company which had business ties with O. Holding. In that connection, he alleged that a deal had been done so that “the land would be given to people who had close family or party ties” with the Prime Minister. As described in the trial court’s judgment (see below), the applicant stated that: “The attractive location behind the ‘Ramstor’ shopping mall planned for the construction of a hotel was granted to a company supported (зад која стои) by O. Holding ... After the revelation of this megascandal, the biggest dilemma is whether the Academy Award for the most corrupt politician should be given to the Prime Minister or his cousins? To those who created or to those who carried out the deal?” 21. By a press release of the same date (9 September 2007) sent “in relation to the press conference held by the political party SDSM and with a view to provide the public with objective and correct information” the Ministry of Transport and Communication informed the media about the procedure and the selected company. 22. In reply to a request for information, SDSM notified the public prosecutor on 1 October 2007 about the company that had been selected (it was registered at the same address as O. Holding and its manager was a former O. Holding employee), alleging that it had not met the requirements of the sale. It further requested that the public prosecutor investigate whether the transaction had been in conformity with the Anti-Corruption Act. 23. On 19 September 2007 Mr S.M. brought private criminal charges, accusing the applicant of making (see paragraph 20 above) defamatory allegations about him. He denied ever having had any connection, private or professional, with the public sale of the land. He had also not signed the sale contract with the company that had been chosen. The applicant did not submit any comments in reply. 24. The trial court scheduled seventeen hearings. The applicant was represented by a lawyer, but did not attend any of the scheduled hearings in person. Some of the scheduled hearings were adjourned because the court bailiff was unable to serve summonses on the applicant. At the trial, the court heard Mr S.M. and viewed audio and video material of television coverage of the applicant’s statement. The defence did not submit any evidence, not even the information submitted to the public prosecutor (see paragraph 22 above). 25. On 23 February 2011, after one remittal, the trial court, sitting as a single-judge (Judge D.G.I.), convicted the applicant of defamation. It fined him EUR 1,000 with one hundred days’ imprisonment in default, ordered him to pay a court fee of EUR 30 and a further EUR 375 to cover Mr S.M.’s trial costs. Relying on the latter’s testimony, the court held that the applicant’s allegations had concerned Mr S.M., regardless of the fact that he had not been identified by name. That was because the applicant had previously given false statements about Mr S.M. and had often referred to him as “the Prime Minister’s cousin”. Mr S.M. admitted that he had had contact with the managers of O. Holding, although that had been as friends. He had had no cooperation with them in business terms or been involved in any way in the construction of the hotel. 26. The relevant parts of the trial court’s judgment read as follows: “... the court considers ... that [the applicant’s] [statement described in paragraph 20 above] could have a considerable effect on the complainant’s reputation and dignity ... since he is the holder of a public office and (such) statements are disseminated quickly and aggressively in public. That the complainant was not identified by his full name by the [applicant] is irrelevant since the relevant circumstances clearly and unequivocally suggest that the matter concerned [Mr S.M.]. Furthermore, the news presenter identified the complainant by his surname. ... The [applicant’s] assertion, (which he made) as vice-president of a political party, contained untrue allegations about the complainant susceptible of violating his honour and reputation ... [The statement in question] was not substantiated with any evidence because the private complainant, as head of the Agency, does not have the competence to participate in the public sale of State-owned land and the accused did not present any evidence that [Mr S.M.] was privately involved in the sale transaction in question ...” 27. On 18 May 2011 a three-judge panel (Judges Z.N., L.I.Sh. and G.S.) of the Skopje Court of Appeal dismissed an appeal by the applicant in which he had complained, inter alia, that the complainant had not been identified in his statement, which had been made in an interrogatory form and in a political context and, accordingly, not punishable, as specified in Article 176 of the Criminal Code (see paragraph 34 below). The court upheld the trial court’s judgment, finding that the applicant had made a false assertion (тврдење со невистина содржина) about the complainant. It continued: “It is a statutory presumption that a statement of fact harmful to the honour and reputation of a third party is untrue. The burden of proof therefore rests with the accused to prove that the assertion is true. Accordingly, [the applicant] was required to prove that his statement was true, which is not the case ... The contents of the statement, the time, place and way in which it was given imply that it was serious and that it could objectively create a perception in the minds of third parties about certain facts. This court finds [the statement] defamatory since the factual assertion contained therein was able objectively to affect the reputation and dignity of the private complainant.” 28. On 12 February 2013 the trial court stayed the execution of the fine it had imposed (see paragraph 36 below). The applicant paid the court fees and the trial costs incurred by Mr S.M., who did not claim compensation for damage in respect of this criminal conviction for defamation. 29. The applicant lodged a constitutional appeal with the Constitutional Court in which he claimed that as a representative of a political party he had been required to bring to light information that had been brought to his attention. He had not made a factual statement but had raised a question regarding allegations of corruption. 30. By a decision of 12 September 2012 (served on the applicant on 1 October 2012) the Constitutional Court unanimously dismissed the applicant’s constitutional appeal for protection of the right to freedom of expression. The court held that: “In the concrete case, the court ... punished [the applicant] ... as a necessary measure for the protection of the reputation, dignity and authority of another person. That was because [the applicant], by relying on freedom of public expression, interfered with the protected right of another person, namely Mr S.M ... [The applicant] is a member of parliament and vice-President of the SDSM and he made the statement in SDSM’s headquarters (if the statement had been given in Parliament, he would have enjoyed immunity and private charges would not have been possible). Although freedom of expression is important for all, it is particularly important for representatives of the people ... Therefore, interference with a Member of Parliament’s freedom of expression calls for the closest scrutiny by the court. Analysis must be made ... of whether (the applicant’s) conviction and sanction represent a justified restriction of his rights and freedoms ... namely whether the courts struck a fair balance between the need to protect the reputation and dignity of the victim and [the applicant’s] freedom of public expression. The freedom of political debate is not of an absolute nature ... the court notes that the impugned statement concerns the public sale of State-owned building land ... and should be considered in the context of a debate concerning an issue of public interest, which in particular was of prime political interest ... The court considers that the veracity of the statement ... was of primary importance for the courts. Those courts ... established that [the applicant’s] statement was not true or that there was no evidence to prove the contrary. ... the court has the right and duty to assess whether the courts enabled [the applicant] to prove the veracity of (his) statement. In this connection the court finds that [the applicant] was able, during the entire proceedings, to present evidence as to the veracity of his statement. In the absence of proof to confirm the veracity (of the statement) or the existence of a strong basis for it to be regarded as truthful, the court must accept the courts’ findings that the statement was false. Despite the fact that the statement is part of a public debate, the question is whether (it) ... had any impact or was relevant for the public as a contribution to a better understanding of the issue subject to public debate ... The way in which the (applicant) expressed his opinion (мислење) in public concerning the performance of a public office by a public official (in an interrogatory form, as a member of an opposition party, from the podium (говорница) of the political party, the consequences of his public action ...) without trying to prove the veracity of his question or statement, taken as a whole, represents an action which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but in substance it affects the reputation and dignity of the citizen who holds the public office at the time and violates those values. Accordingly, the statement lost the attributes of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).” 31. By a judgment of 20 May 2008 the trial court, sitting as a singlejudge (Judge D.G.I.), had found the applicant guilty of making defamatory allegations about the then Minister for Transportation and Communications regarding the public sale of the same State-owned land subject to application no. 24133/13 above. The applicant was convicted and fined EUR 1,000 for the following statement, which was made at a press conference on 12 September 2007 at the offices of his political party: “... by selling land to a company that does not fulfil the (statutory) conditions, Minister J. obviously committed a criminal offence-abuse of office. We therefore expect that the public prosecutor will immediately lodge an indictment”. 32. As explained in the judgment, the court established that when the applicant had made the statement, the procedure for the public sale of the land was still ongoing, namely the relevant standing committee within the Ministry had not yet submitted its proposal to the Minister about the best bidder. The Minister had then granted the land to the best bidder in December 2007. Furthermore, several institutions, which had reviewed the work of the committee, had not found any irregularities. The court did not accept the applicant’s defence (he did not attend any of the scheduled hearings) that his statement had been an expression of a reasonable suspicion about the public sale of the land. The court refused the following defence applications: to examine a member of the standing committee; to admit committee minutes in evidence regarding the public sale; and to hear information from the public prosecutor about the committee’s work. It held that the proposed evidence concerned the committee’s work which was not the subject of the proceedings. A three-judge panel of the Skopje Court of Appeal (Judges M.S., L.I.Sh. and V.Dz.) upheld the lower court’s judgment. Both courts considered that the applicant had made the statement in his own name and not on behalf of his political party.