CASE OF POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1945 and lives in Bitola. 6. On 2 December 2002 an article was published in the daily newspaper Utrinski Vesnik entitled “The uncle was stealing, Jovan was standing guard” (Вујкото крадел, Јован чувал стража). A reference to the article appeared on the front page of the newspaper. The text of the article read, in so far as relevant, as follows: “Risto Popovski, uncle of dismissed bishop J. and owner of the company Voskresenie from Bitola, together with seven boys, entered the courtyard of St. Spas church in Gevgelija and continued towards the church garage. The uncle started the engine of the tractor [inside] and drove it out of the courtyard, while his helpers warned the church housekeeper, who was upset, to step aside. During the violent disturbance, the dismissed bishop Jovan drove around waiting for the outcome... ... On the basis of an anonymous tip-off concerning the break-in, police stopped the tractor from leaving Gevgelija. The owner of Voskresenie, [the applicant], produced documents [showing] that Voskresenie owned the tractor! Only dismissed bishop Jovan knew how the tractor, which was a donation by Japan to Gevgelija’s church co-operative, happened to belong to a private company from Bitola ... (R.P.)” 7. The applicant submitted a letter to the newspaper the next day, in which he requested that it publish a retraction given the false allegations that he had stolen the tractor. In this connection he submitted a copy of a certificate issued by the Ministry of the Interior confirming that the tractor had been returned to him. He alleged that in the absence of a retraction, he would be perceived as a criminal in Bitola, a small town where people knew each other. The newspaper did not publish anything in this regard. 8. On 31 December 2002 and after several verbal requests, the applicant submitted a letter to the newspaper seeking information about the identity of the journalist (R.P.), whose initials appeared at the end of the article. 9. On 31 January (as alleged by the applicant) or 4 February 2003 (according to the Government) the applicant brought private criminal charges for defamation under sections 16(1) and (2) and 417(1) of the Criminal Proceedings Act, which was an offence punishable under section 172(2) of the Criminal Code (see paragraphs 27, 31 and 38 below). The complaint was made against B.T., editor-in-chief of the newspaper and R.P., the journalist responsible. The applicant claimed that the article had disgraced him and his family and said that he was seeking compensation for non-pecuniary loss, the amount of which was to be specified, as stated in the complaint, at the hearing. 10. On 31 March and 16 April 2003 respectively the Skopje Court of First Instance (“the trial court”) requested that the applicant complete the complaint by providing information about the identity of R.P., describing the actions imputable to the accused and submitting an original of the article. In reply, the applicant specified his complaint and informed the trial court that all his attempts to get the newspaper to reveal the identity of the journalist responsible had been to no avail. 11. During the proceedings the applicant was represented by a lawyer practicing in Bitola. The applicant alleged (without providing any evidence in support) that the first hearing had been scheduled for 23 September 2003; however, the parties agreed that between 10 October 2003 and 16 January 2007, the trial court had fixed twenty-three hearings, of which twenty were adjourned owing to the absence of either B.T., his representative or the journalist responsible. The trial court made several unsuccessful attempts to secure B.T.’s attendance with the assistance of the police. The applicant or his representative attended all the hearings scheduled. 12. At a hearing on 6 September 2005, the trial court requested that the newspaper reveal the identity of R.P., the presumed author of the article. In the absence of any reply from the newspaper, the trial court made the same request on 18 October and 24 November 2005, as well as on 24 January 2006, but they were never answered. 13. At a hearing on 7 March 2006, B.T. admitted that he had allowed the article to be published and requested additional time to identify the journalist who had written it. In a statement given on 25 April 2006, the applicant avowed that the article in question had contained defamatory allegations portraying him as a thief, which had had a significant negative impact on his personal and family life. In this connection he argued that his wife had closed her private medical practice since her office had been covered with writings describing them as “thieves” (арамии). He also alleged that his children had encountered difficulties in school due to the defamatory article. 14. At a hearing on 29 June 2006, B.T. stated that according to the newspaper’s records, the author of the text had been a certain K.J, who had confirmed as much in a telephone conversation with him. The court ordered that K.J. be summoned to the next hearing. His home address was to be obtained with the assistance of the police. 15. K.J. did not attend any of the four hearings scheduled between 19 September 2006 and 16 January 2007, despite the fact that the court had summoned him to do so. At the January hearing, the trial court stayed (запира) the proceedings because the prosecution had become time-barred. It also ordered each party to bear its own costs and expenses incurred in the proceedings. On 1 March 2007 the Skopje Court of Appeal upheld the judgment, which was served on the applicant on 24 March 2007. 16. During the proceedings, the applicant addressed the trial judge and the president of the trial court on two occasions, complaining about the way in which the trial had been conducted and alerting them to the possibility that the prosecution might become time-barred. 17. The relevant parts of the above Resolution read as follows: “6. Anti-defamation laws pursue the legitimate aim of protecting the reputation and rights of others. The Assembly nonetheless urges member states to apply these laws with the utmost restraint since they can seriously infringe freedom of expression ... 8. The Assembly deplores the fact that in a number of member states prosecution for defamation is misused in what could be seen as attempts by the authorities to silence media criticism ... 13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms ... 17. The Assembly accordingly calls on the member states to: 17.1. abolish prison sentences for defamation without delay; 17.2. guarantee that there is no misuse of criminal prosecutions for defamation and safeguard the independence of prosecutors in these cases; 17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation ...” 18. Section 141 of the Obligations Act provides for the right to claim civil compensation. 19. Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently. 20. Section 187 provides for the right to claim compensation in cases regarding damage to reputation or the dissemination of false allegations. 21. Under sections 188 and 189, the court can order the publication of a judgment in which a human rights violation has been found, a retraction or any other form of redress. The court can also award just satisfaction irrespective of whether an award for pecuniary damage has been made. 22. Under section 365, a compensation claim becomes time-barred three years after the victim becomes aware of the damage and the person responsible. The absolute limitation period for compensation is five years after the occurrence of the damage. 23. The running of the limitation period is suspended if a claimant brings an action before a court or competent authority with a view to determining or securing his or her claim (section 377). 24. Under section 379, if a court rejects an action for lack of competence or on another ground unrelated to the merits of the claim, and if the claimant resubmits that claim within three months of the decision becoming final, the limitation period is considered to have been suspended by the first action. This applies if a court or competent authority advised the person concerned to pursue his or her claim by means of a separate civil action. 25. After the limitation period has been suspended, it starts running again and the time elapsed before the suspension is deemed to fall within the statutory limitation period. If the limitation period was suspended by a claim brought in the course of other proceedings, it starts running after settlement of the dispute (section 381(1) and (3)). 26. Under section 26(1)(1) of the Criminal Code, an editor-in-chief of a newspaper or other periodical publication could be held criminally liable for offences committed through that or other types of media if the identity of the author remained unknown until the end of the trial. 27. Under section 172(1) and (2) of the Criminal Code, any person who disseminated false defamatory allegations about another person could be subjected to a fine or six months’ imprisonment. Acts of defamation committed in public or through the use of media were punishable by a fine and by up to one year’s imprisonment. 28. Under section 184(1), defamation as stipulated in section 172 was subject to private prosecution. 29. Since November 2012, sections 172 and 184 of the Criminal Code (see paragraphs 27 and 28 above) have no longer been in force (Official Gazette no. 142/2012). 30. Under section 13 of the Criminal Proceedings Act 1997, in force at the material time, proceedings were supervised by a judge, who was responsible for conducting them without delay. 31. Under section 16(1) and (2) of the Act, criminal proceedings were instituted at the request of an authorised prosecutor. In respect of criminal offences subject to public prosecution, the authorised prosecutor was the public prosecutor whereas in respect of criminal offences to be prosecuted privately, the qualified prosecutor was a private prosecutor. 32. Section 96 provided that a civil-party claim (имотноправно барање) relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed them. The civil-party claim could concern monetary compensation, the restitution of property or the annulment of a legal act. 33. Under section 98(2) and (3), a civil-party claim could be brought in the course of the criminal proceedings before they were concluded at first instance. Such a claim had to be specified and supported with evidence. 34. Section 99(1) provided that the victim could withdraw (откажe) the civil-party claim until the end of the trial and pursue it by means of a separate civil action. Such a claim could not be repeated in the course of the criminal proceedings, unless otherwise provided by law. 35. Under section 100, the court could question the accused and examine the circumstances relevant for the civil-party claim, and had to collect evidence and consider everything that was relevant to decide it. If a decision on the civil-party claim would significantly delay the proceedings, the court would restrict itself to gathering evidence which would be impossible or significantly difficult to gather at a later stage. 36. Section 101 provided that the court was responsible for deciding a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation. In the latter case, the court could advise him or her to seek the remainder by way of civil proceedings. The same applied if evidence taken in the criminal proceedings was insufficient for the court to award any damages (section 101(2)). 37. In case of an acquittal or dismissal of the prosecution, if the proceedings were discontinued or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)). 38. Under section 417(1), criminal proceedings had to be instituted on the basis of either a charge brought by the public prosecutor or a private criminal complaint. 39. Sections 110 to 114 of the Criminal Proceedings Act 2010, which enter into force on 1 December 2013, provide for the same rules on civil-party claims as those specified in the 1997 Criminal Proceedings Act (see paragraphs 32-37 above). 40. Under section 11(3) of the Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal liability. 41. Section 200 lists grounds under which civil proceedings are stayed by operation of the law. Under section 201(2), the civil court may stay proceedings if the decision depended on whether n offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty. 42. The Law concerns civil liability for violation of the honour and reputation of physical and legal persons through insult or defamation. The law provides for freedom of expression and states that any restrictions thereon shall be in conformity with the European Convention on Human Rights and the Court’s case-law. Under the Law, the potential victim can seek publication of a retraction, a public apology or rectification. It further regulates the procedure regarding claims for compensation for pecuniary and non-pecuniary loss sustained as a result of the insult or defamation, as well injunctions the court can order if parties so request. 43. The Government submitted a copy of a final judgment of 21 December 2010, in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10). 44. They further provided a copy of a judgment in which the Supreme Court dismissed a legality review request (барање за заштита на законитоста) lodged against final judgments rendered in civil proceedings. It concerned a dismissal by the lower courts of an action for damages brought eight years after an alleged crime had been committed and after the criminal courts had acquitted the alleged offender. The Supreme Court found that the statutory limitation period for compensation claims relating to an alleged crime started to run from the moment the victim had lodged a civil-party claim in the criminal proceedings. Since the victim had not made such a claim, the fact that he had instituted the criminal proceedings had not suspended the running of the statutory limitation period concerning the compensation claim (Гзз.бр.35/2007 of 9 and 18 October 2007).