Information Note on the Court’s case-law 35

October 2001

Osmani and Others v. "the former Yugoslav Republic of Macedonia" (dec.) - 50841/99

Decision 11.10.2001 [Section II]

Article 10

Article 10-1

Freedom of expression

Conviction of elected local representative belonging to minority for fomenting ethnic intolerance: inadmissible

Article 11

Article 11-1

Freedom of peaceful assembly

Conviction of elected local rep resentative belonging to minority for fomenting ethnic intolerance: inadmissible

The applicant was elected mayor of Gostivar. Following a decision of the local council of the municipality, the flags of the Republics of Albania and Turkey were flown togethe r with the Macedonian flag in front of the town hall. The Constitutional Court ordered the local authorities to remove the Albanian and Turkish flags from the front of the town hall and declared the decision unconstitutional. A few days later, the applican t held a meeting and called citizens of Albanian ethnic origin to ensure that the Albanian flag would not be removed. The speech contained the following passages: “we will sacrifice our lives but not the flag”; “our territories in Macedonia are ours, this should be acknowledged once and for all and on these territories our flag will always be flown”; “the [Government’s] black hand wishes to cover with blood our national flag but they have first to think thoroughly as we will give a slap for a slap”. Inter-c ommunity tensions arose when citizens of Macedonian ethnic origin tried to remove the Albanian flag. The applicant organised armed shifts to protect the Albanian flag and set up crisis headquarters. Inter-ethnic tensions intensified. The applicant was susp ended from his public function and subsequently found guilty of the following offences: (i) stirring-up national, racial and religious hatred, disagreement and intolerance by a public official, (ii) organising resistance against a lawful decision or activi ty of a state organ and, (iii) non-execution of a Constitutional Court decision by a public official. He was initially sentenced to thirteen years and eight months’ imprisonment, the sentence being later reduced to seven years. The Constitutional Court dis missed his complaint that his right to freedom of expression had been infringed. He was eventually granted an amnesty and dispensed from serving the rest of his prison sentence. Overall, he spent one year and three months in prison.

Inadmissible under Articles 10 and 11: The applicant’s amnesty did not convey the idea that his conviction had been unlawful or that it had had no adverse effects on him. In particular, there was no indication that the authorities acknowledged any violation of the Con vention. Therefore, the amnesty granted to the applicant did not deprive him of his status of victim.

As to the availability of effective domestic remedies, the applicant did not complain about the lack of compensation for his conviction but about the con viction itself. Following the amnesty, he could only request the reopening of criminal proceedings on the basis of new facts or evidence. As he was no longer able to challenge effectively his conviction before domestic courts, it could not be considered th at any effective domestic remedy was available to the applicant.

The applicant’s conviction constituted an interference with the exercise of his freedom of peaceful assembly which was prescribed by law and pursued the legitimate aims of prevention of disor der and crime, national security and public safety as well as protection of freedoms and rights of others. While freedom of peaceful assembly, in the same manner as freedom of expression, is important for everyone, it is especially so for elected represent atives of the people. In the instant case, special attention was to be given to the content of the applicant’s speech and its context as well as to the assembly which the applicant convened, with a view to determining whether they can be considered as inci ting to violence. The assembly was convened following the display of the flags of the Republics of Albania and Turkey and after the Constitutional Court’s interim order had been served on the local council and the applicant. Some parts of the latter’s spee ch delivered at the assembly and addressed to citizens of Albanian origin encouraged the use of violence. Besides, the applicant, who was a well-respected figure among the Albanian community, convened the assembly and delivered his speech in full knowledge of the Constitutional Court’s decision and the risk that it would cause public riots, disorder and clashes with the police. He nonetheless organised armed night shifts to watch over the flags, set up crisis headquarters, etc. It also transpired from the d ocuments in the case-file that the applicant implemented the unconstitutional and unlawful decision of the Gostivar local council to put the flag of the Republic of Albania in front of the Town Hall, that he breached his duty as a mayor to enforce the Cons titutional Court’s order and that he was actively involved in planning and setting up crisis headquarters and armed shifts to protect the flag of the Republic of Albania. Overall, the applicant’s speech and his acts as well as the meeting which he organise d undoubtedly played a substantial part in the occurrence of the violent events of May and July 1997. According to the Constitutional Court’s decision, the applicant directly called citizens of Albanian origin to resist the implementation of a final court decision, thereby encouraging inter-ethnic tensions and creating a general feeling of insecurity among the population. In view of these elements, the criminal law measures taken by the domestic courts answered a pressing social need and sufficient reasons were given by the domestic authorities to justify the applicant’s conviction. As to whether the measures were proportionate, the applicant was not charged immediately after his speech but only after its consequences were felt. Moreover, his conviction was not only based on his having convened an assembly and made the impugned speech but also relied on the enforcement of the local council’s decision to display the flags in breach of the Constitutional Court’s decision and the failure to inform the Government of the local council’s decision. Moreover, the applicant benefited from an amnesty after having served one year and three months of his sentence, which was initially quite severe. The time he spent in prison could not be considered disproportionate: manif estly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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