Communicated on 16 March 2017

FIRST SECTION

Application no. 60266/14 Igor SPIROVSKI and Irena SPIROVSKA against the former Yugoslav Republic of Macedonia lodged on 21 August 2014

STATEMENT OF FACTS

The applicants, Mr Igor Spirovski and Ms Irena Spirovska , are Macedonian nationals who were born in 1960 and live in Skopje.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 21 February 2012 the applicants lodged a private criminal complaint ( приватна кривична тужба ) against G.N. and G.C., alleging defamation ( клевета ) under Article 172 § 1 of the Criminal Code . The complaint was lodged in relation to an allegation made by the defendants in a written request submitted to the municipal authorities seeking the annulment of the applicants ’ building permit. The allegation was that the applicants had committed a criminal offence by occupying property belonging to the defendants. The applicants also submitted a claim for compensation in respect of non-pecuniary damage in the amount of 1,000,000 Macedonian denars (MKD) each.

On 23 April 2012 the Skopje Court of First Instance ( Основен суд Скопје ) upheld the complaint and ordered them to pay a fine. The court further confirmed the applicants ’ entitlement to compensation. However, it decided that the amount of that compensation should be determined in an additional judgment, in accordance with section 102 of the Criminal Proceedings Act ( им се досудува основата на имотно правното барање за надомест на штета за чија висина судот ќе одлучи со дополнителна пресуда ).

On 17 October 2012 the Skopje Court of Appeal ( Апелационен суд Скопје ) partially allowed an appeal by the defendants and imposed on them a suspended fine. It upheld the remaining part of the first-instance judgment, which thereby became final.

On 9 November 2012, as part of legislative reform decriminalising offences concerning matters of honour and reputation, Parliament amended the Criminal Code and removed the offence of defamation from the sphere of criminal law. Article 7 of the Criminal Code Amendments Act ( Закон за изменување и дополнување на Кривичниот Законик , Official Gazette no.142/2012 – hereinafter “the Amendments Act”) provided that with the entry into force of the above-mentioned legislative amendments, the enforcement of all sentences and awards of compensation in respect of criminal offences against honour and reputation should be stayed.

At the same time the Act on Civil Liability for Insult and Defamation ( Закон за граѓанска одговорност за навреда и клевета , Official Gazette no. 143/2012 – hereinafter, “the Civil Liability Act”) was enacted. It regulated the conditions governing civil liability for insult and defamation.

On 5 December 2012 the applicants lodged a civil claim against G.N. and G.C. on the basis of the Civil Liability Act. They argued that the defendants ’ responsibility for defamation had been established within the framework of criminal proceedings by the final judgment of the Skopje Court of First Instance of 23 April 2012. By the same final judgment, that criminal court had allowed their compensation claim. However, it had left the question of the amount of compensation to be determined in an additional judgment. As a result of the subsequent legislative intervention, the amount of compensation to be paid – even though the claim for that compensation had been allowed by the final judgment of a criminal court – had remained undetermined. The applicants requested that a civil court determine the amount of compensation to be paid and lodged separate claims for non-pecuniary damages in the amount of MKD 180,000 per applicant.

On 8 July 2013 the Skopje Court of First Instance dismissed the applicants ’ claims as ill-founded. It dismissed the applicants ’ arguments that the merits of their claim had been determined in the criminal proceedings, relying on Article 7 of the Amendments Act. It further held that the impugned statement given by the defendants in their request to the municipal authorities, which under the previous legislation had been considered to constitute the criminal offence of defamation, would not suffice to establish the defendants ’ liability under the new civil liability regime. The court, relying on section 10(1) of the Civil Liability Act, concluded that the defendants were not liable for defamation, as the impugned statement had been made within the context of court proceedings.

The applicants appealed against the first-instance judgment. They complained that the first-instance court had infringed their property rights, as guaranteed under Article 1 of Protocol No.1 of the Convention, because it had dismissed their compensation claim, even though their entitlement to compensation had already been established by the final judgment given by the criminal court. They further complained that the first-instance court had incorrectly applied the Civil Liability Act in dismissing their claim.

On 2 April 2014 the Skopje Court of Appeal dismissed the applicants ’ appeal and upheld the first-instance judgment. It reiterated the first-instance court ’ s findings as to the effect of Article 7 of the Amendments Act with regard to the stay of the enforcement of sanctions and compensation claims in respect of criminal offences against honour and reputation. The second-instance court also held that under the Civil Liability Act there were grounds for exclusion of the defendants ’ liability for defamation, given that the impugned statement had been an expression of their subjective opinion and had been given within the context of administrative proceedings for the protection of the defendants ’ property rights.

B. Relevant domestic law

The relevant provision of the Criminal Proceedings Act – consolidated version ( Закон за кривичната постапка – пречистен текст , Official Gazette no.15/2005) reads:

Section 102

“(1) A court shall decide on compensation claims.

(2) When the court delivers a judgment by which the accused is convicted on the charges [in question], it decides fully or partially on [any] compensation claim. If the evidence in the criminal proceedings does not provide a sufficient basis for a full or a partial decision on the compensation claim, and an attempt to secure additional evidence would unjustifiably prolong the criminal proceedings, the court will decide only on the merits of the claim ( ќе го досуди основот ) , or it will decide on the merits of the claim and partially on the amount [to be awarded]. As regards the amount [to be awarded] or the remaining part [thereof], the court will decide by means of an additional judgment. If the amount of the compensation claim cannot be established with other evidence, or adducing other evidence would result in a significant delay in the proceedings, the court will decide on the amount of the compensation claim, or a part thereof, in an additional judgment, [thus] ensuring just satisfaction. An appeal may be lodged against [such an] additional judgment within eight days of the day of receipt [of the additional judgment by the parties]. ...”

The relevant provisions of the Criminal Code Amendments Act ( Закон за изменување и дополнување на Кривичниот Законик , Official Gazette no.142/2012) read:

Article 1

“Article 172 “defamation” [and] Article 173 “insult” ... are deleted from the Criminal Code.”

Article 7

“With a day of the entry into force of this Act the enforcement of sanctions or awarded damages by means of a final judgment in respect of criminal offences against honour and reputation under Title XVIII of the Criminal Code shall be stayed ( се запираат ) .

Criminal or civil proceedings for criminal offences against honour and reputation under Title XVIII of the Criminal Code which were initiated before the entry into force of this law, but which have not been completed, shall be stayed. A claimant is entitled to lodge a claim, seeking the determination of liability for insult or defamation and for damages under the law, within one month of receipt of the decision on the staying of the proceedings.

In respect of acts of insult or defamation which took place before the entry into force of this law, a claimant can institute proceedings for liability and damages under the law within three months of the day on which he found out or should have found out about the insulting behaviour or defamatory acts and the identity of the person that caused the damage [in question]. Such proceedings can be instituted up to one year after the day on which the insulting or defamatory statement was made.”

The relevant provisions of the Act on Civil Liability for Insult and Defamation ( Закон за граѓанска одговорност за навреда и клевета , Official Gazette no. 143/2012) read:

Section 1

“This law regulates civil liability for damage caused to the honour and reputation of a natural or a legal person by insult and defamation.”

Section 8

“(1) A person is liable for defamation if he makes untrue statements which are detrimental to another person ’ s honour and reputation, before a third party, with the intent to damage that person ’ s honour and reputation, even though he knew or ought to have known that those statements were untrue. ...”

COMPLAINT

The applicants complain, under Article 1 of Protocol No. 1 to the Convention, that the retrospective dismissal of their finally determined right to receive compensation for defamation violated their property rights.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ peaceful enjoyment of possession, within the meaning of Article 1 of Protocol No.1?

2. If so, was that interference in the public interest and in accordance with the conditions provided by law, within the meaning of Article 1 of Protocol No.1? Did it impose an excessive individual burden on the applicants?