CASE OF SELMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Public hearing);Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Non-pecuniary damage - award (Article 41 - Just satisfaction)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano
5. The applicants were accredited journalists who were authorised to report from the national Parliament. On 24 December 2012 parliamentary proceedings were held on the Budget Act for 2013. The applicants, together with other journalists, were reporting from the Parliament gallery, which was situated above the plenary hall (“the chamber”) where members of parliament (MPs) were seated. The debate on the approval of the State budget attracted considerable public and media attention, owing to the conflict between opposition and ruling party MPs as to whether or not statutory procedure had been complied with. During the proceedings, opposition MPs approached the President of Parliament (“the Speaker”) and started creating noise by, inter alia, slapping his table. Soon thereafter, Parliament security officers entered the chamber. They pulled the Speaker out of the chamber and started forcibly removing the opposition MPs. At the same time, other security officers (four officers, according to the Government) entered the gallery and started removing the applicants and other journalists. The Government stated that the security officers had informed those in the gallery that they had to leave for security reasons. The applicants denied that the reasons for their removal had been explained to them. Whereas some journalists complied with those orders, the applicants refused to leave, as the situation in the chamber was escalating and they felt that the public had the right to be kept informed as to what was going on. However, the security officers forcibly removed the applicants from the gallery. 6. The Government submitted that according to official records (a copy of which was not provided) on that occasion the first applicant had forcibly removed the identification badge from one security officer and had injured him in his chest and leg. The applicants denied that they had injured any officer and submitted that no official document had been drawn up regarding the identity of the officer in question, the nature and severity of the injury or the alleged assailant. The Government further alleged that the applicants had been allowed to follow the events in the parliamentary chamber via a live broadcast in the Parliament’s press room and the adjacent hall. The applicants contested that there had been live stream while the ejection of the opposition MPs had been ongoing, given that the cameras had allegedly been turned against the walls. 7. At the same time, two opposing groups congregated in front of the Parliament building. According to the Government, several people were injured in those protests. No further information was provided. 8. In a letter of 26 December 2012 addressed to the media, the Speaker stated, inter alia: “Having regard to the announcements (најави) that the opposition would not allow the Budget Act to be adopted and that there would be protests and incidents, I requested, under section 43 of the Parliament Act, that the Parliament security service ensure proper work at the session. I would like to underline that the Parliament security service arranges and implements necessary measures to be taken ... having regard to the fact that the gallery is part of the plenary hall, the Parliament security service considered (донело оценка) that the gallery should be vacated in order to avoid an incident of a larger scale. As Speaker, I regret that such a measure regarding the journalists was taken ...” 9. On 26 December 2012 the Association of Journalists (represented by its president, the first applicant) sent a letter to the DCPS claiming that the forcible removal of the journalists had violated their rights under Article 10 of the Convention. In the letter, the journalists pushed for proceedings to be brought against those responsible for authorising and carrying out their removal from the gallery. 10. In a letter dated 6 January 2013, the DCPS informed the applicants that a group of MPs had surrounded the Speaker during the incident of 24 December 2012, and had attempted to physically confront him. They had also insulted and threatened him, whilst at the same time damaging technical equipment. Owing to the security risk, the Speaker had been removed to a place of safety. However, the disturbance in the chamber had continued. In the circumstances, the Speaker had requested, under section 43 of the Parliament Act (“the Act”, see paragraph 17 below), that the Parliament’s security service restore order so that the discussions could continue. Journalists had been asked to leave the gallery until order was restored. The letter further stated: “An MP who had been involved in the disturbance in the chamber and other people who could have disturbed the journalists in the performance of their tasks were in the gallery. In the meantime, there was information that the protests [in front of the Parliament building] could escalate and that police cordons could be violently broken. All that threatened the security in the Parliament. For these reasons, the journalists were asked to leave the gallery and to continue following the events from the press room, at a designated area. Most of the journalists understood the seriousness of the situation and complied with that request. A smaller group of people in the gallery, including [the applicants], confronted the security officers, disregarded their orders and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg.” 11. The DCPS concluded that the law enforcement powers employed had not gone beyond the limit of what was acceptable, and that excessive force had not been used. 12. On 14 June 2013 the President of the State set up an ad hoc commission of inquiry regarding the events in the national Parliament of 24 December 2012. It was composed of five national members, two of whom were MPs. It further included two non-national observers appointed by the European Union. On 26 August 2013 the commission drew up a report, the relevant part of which reads as follows: ... 5. The absence of appropriate guidelines on dealing with such situations, including the absence of a strategy to deal with media in crisis, led to a situation in which journalists were removed from the Parliament gallery, which violated their rights to freedom of public information (слобода на јавно информирање) and publicity in the work of Parliament. Parliament should be particularly attentive and open with respect to the freedom of the press to report and to apply the best European practices in this matter ...” 13. The applicants lodged a constitutional complaint with the Constitutional Court in which they alleged a violation of their rights under Article 10 of the Convention. They submitted that the parliamentary debate and the related events regarding the approval of the State budget had been of particular public interest. The intervention of the Parliament security officers and the removal of the applicants from the gallery had been neither “lawful” nor “necessary in a democratic society”. With regard to the lawfulness of the measures taken, the applicants argued that section 43 of the Act could not be interpreted as allowing the forcible removal of journalists from the gallery by Parliament security officers. In any event, that provision had not been sufficiently foreseeable. As to the necessity of the measures, they argued that at the critical time, they had been in the gallery and had had no contact with the Speaker or MPs. Accordingly, they had not and could not have contributed to the disturbance in the chamber. Furthermore, they contested the DCPS’s arguments that there had been unauthorised people in the gallery and that the protests in front of the Parliament building had justified their forcible removal (see paragraph 10 above). They urged the court to hold a public hearing (јавна расправа) in accordance with Article 55 of the Rules of the Constitutional Court (see paragraph 24 below) and to find a violation of Article 16 of the Constitution (see paragraph 16 below) and Article 10 of the Convention. 14. At a hearing held on 16 April 2014 in the absence of the parties, the Constitutional Court dismissed the applicants’ complaint. The relevant parts of the decision read as follows: “On the basis of evidence submitted with the constitutional complaint and the reply of the Parliament of the Republic of Macedonia, the court has established the following facts: ... There was an increased interest on the part of the public and the media in (the parliamentary proceedings) given the importance of the State budget and the fact that before the proceedings, namely in November and December, there had been long, intense and sometimes tense discussions between opposition and ruling party MPs regarding the draft Budget ... On 24 December 2012 ... before the plenary debate of Parliament started, there was a disturbance by a group of MPs who started destroying technical equipment in the chamber. They prevented access to the podium, surrounded the Speaker, preventing him from carrying out his duties, whilst at the same time insulting and threatening him. Due to the security risk, the Speaker was taken out of the chamber by security personnel. The disturbance in the chamber continued. Under section 43 of the Parliament Act, the Speaker ordered police officers responsible for parliamentary security to restore order in the chamber and enable the debate to start in an orderly manner. The security personnel considered it necessary to vacate the gallery, in order to ensure the safety of those in the gallery and in the chamber. All those in the gallery, including [the applicants], were asked to leave for security reasons and to follow the events from the press centre. Most of the journalists complied with that instruction. A smaller group of people, including [the applicants], confronted the security officers, disregarded their orders, and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg. [The applicants] and other journalists, after having been removed from the gallery, remained in the Parliament building and were able to follow the live broadcast of the debate from other premises [the press centre, in a hall adjacent to the gallery]. At the same time, in front of the Parliament building, two opposing groups of people gathered. Several people were injured. The plenary debate of the Parliament of 24 December 2012 was public and it was entirely broadcast live on national television and streamed on the Parliament website. When the debate was over, the video material was made available to the public on that website ... ... The above provisions of the Parliament Act [see paragraph 17 below] and the Rules of Parliament [see paragraph 23 below] ... provide that the Speaker is responsible for maintaining order in the Parliament. In the event of disorder, he or she can take several measures (warning, denial of the right to speak, exclusion of MPs). Provisions regarding order during parliamentary proceedings concern all those participating in the session. The court considers that the removal of [the applicants] from the gallery amounted to an interference with their freedom to carry out their professional duties and to inform the public about events that were of considerable interest for the citizens of the Republic of Macedonia – the events in Parliament regarding the approval of the State budget for 2013, in which the public had significant interest in following and being informed about. ... The legal ground for the impugned measure was section 43 of the Parliament Act, which specified who was responsible for keeping order in the Parliament building – a special security unit, and which authorised the Speaker to decide and take measures in the event of disturbance of that order by MPs and other external persons participating in the work of Parliament. As to the necessity of the measure ... it has to be examined in the light of the the events that took place inside the Parliament building, namely in the chamber, as well as the disorder outside the Parliament building. The strained atmosphere in the chamber, which prevented a regular and normal start of the proceedings, has to be taken into account. In this connection it is to be noted ... that a larger group of MPs assaulted the Speaker, who was immediately removed from the chamber by security officers. There were a number of incidents, including damage to furniture, which culminated in objects being thrown in the chamber – some in the direction of the gallery. In such circumstances, the Parliament security service considered that in order to protect the journalists in the gallery, they should be moved to a safer place where they would not be in danger. Such an assessment should not be viewed as conflicting with the journalists’ right to attend parliamentary proceedings and report on events that they witnessed. In fact, the journalists – most of them on the same day – submitted and published their reports in the evening editions of their newspapers, which implies that there was no violation of their freedom of expression. The actions of the security officers constitute standard practice for these and similar situations in case of endangerment, i.e. protection of media representatives while reporting from places of crises, demonstrations and other potentially dangerous events ... The fact that the journalists had been present within and outside the Parliament building since the morning of 24 December 2012, and were reporting on the events as they occurred, confirms that, notwithstanding the indications and expectations that discussion about the approval of the Budget would be tense, they were allowed access to the Parliament building and the gallery in order to carry out their function and inform the public about the debate. Accordingly, there was no preconceived idea to prevent the journalists from reporting on the debate. After they left the gallery, [the applicants] and other media representatives were allowed to remain in the parliamentary press centre ... from where they could have followed the live broadcast on the Parliament website and on the dedicated TV channel. ... The physical removal of journalists from the gallery required by the concrete escalation of chaos and disorder aimed to protect them and ensure order in the chamber, and not to restrict their freedom of expression or to prevent them from carrying out their function, i.e. to inform the public.” 15. In a dissenting opinion, Judge N.G.D. of the Constitutional Court stated, inter alia, the following: “... My dissenting opinion mainly concerns the inability objectively to decide the case ... I consider that the written information, facts and evidence available to the court were insufficient ... The decision [of the Constitutional Court] contains contradictory reasons given that it ... establishes that the removal of journalists amounted to an interference with their right to carry out their function and to inform the public about an event of indisputable public interest, but it finds that such an intervention was justified ... without there being a solid factual basis in support of that finding. ... I think that it is of crucial importance that the Constitutional Court clarifies and explains the reasonableness of the assessment of the situation and the reason for which the journalists were removed from the gallery ... In order to establish the facts and assess the need for [their] removal ... it was necessary to determine the reason which prompted the security officers to remove them, despite the undisputed fact that all the incidents and disorder in the Parliament chamber were physically and clearly isolated and distant from [the gallery]. It is absurd that [such a removal] was carried out ‘for the safety of journalists’, when it is clear that they were in their seats and were completely passive; they did not participate in the events at all, but only observed ... It is a fact that the journalists did not contribute to the conflictual situation in any respect [not disputed by Parliament]; they did not disturb order in the Parliament building; they were in direct contact neither with the Speaker or the MPs, nor with the events outside the Parliament building ... Besides, it is clear that the journalists themselves did not feel threatened; so they did not seek and expect any protection.”