Communicated on 23 February 2016

FIRST SECTION

Application no. 75245/12 Marjan MICEVSKI against the former Yugoslav Republic of Macedonia lodged on 19 November 2012

STATEMENT OF FACTS

The applicant, Mr Marjan Micevski , is a Macedonian national who was born in 1966 and lives in Skopje. He is represented before the Court by Mr D. Kadiev , a lawyer practising in Skopje.

A. The circumstances of the case

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

The applicant was a basketball referee licensed by the National Basketball Federation (KFM) and the International Basketball Federation (FIBA). He was also a chairman of a local basketball club.

In 2009 he alerted the KFM to alleged irregularities in how it was run. On 21 November 2009 the president of the KFM sent an email to the applicant, the relevant parts of which read as follows:

“In my capacity as President of the KFM, I am obliged to draw your attention to the fact that for some time you have made unsubstantiated and false statements which are harmful to the KFM ’ s reputation ... if you continue to make defamatory statements, an application for disciplinary action against you will be submitted ...”

On 24 November 2009 an article was published in the Nova Makedonija daily newspaper with the headline “Did KFM President threaten FIBA referee?” The article reproduced the email sent by the KFM president to the applicant and referred to statements submitted by the applicant to the KFM concerning alleged irregularities related to basketball.

On 23 December 2009 the KFM ’ s Disciplinary Commission, relying on section 22 of the KFM ’ s Disciplinary Rules (see “Relevant domestic law” below), issued an order preventing the applicant from performing any basketball-related activities for one year ( забрана на вршење работи во кошаркарскиот спорт во времетраење од една година ) . The relevant parts of the order read as follows:

“On several occasions [the applicant] made false allegations about the work of the bodies and organs of the KFM which damaged its reputation. On 21 November 2009 the President of the KFM contacted [the applicant] by email in order to draw his attention to the false statements he had made about Macedonian basketball. He invited him, in a friendly manner, to stop such behaviour, which is harmful for the entire organisation.

Since [the applicant] continued, on 24 November 2009 the President of the KFM lodged a disciplinary application with the Disciplinary Commission of the KFM. [The applicant] ... made a statement in which he referred to various applications that he had submitted to the KFM, from November 2006 onwards. (According to him) none of those applications had been transmitted to the Disciplinary Commission.

The Disciplinary Commission declines jurisdiction to rule on those allegations, that is the applications ... since they are time-barred.

The Disciplinary Commission is of the opinion that the penalty will have a positive effect (and that it is) in the interests of the reputation and traditions of basketball ...”

On 26 December 2009 the applicant appealed to the Arbitration Commission of the KFM, arguing that the Disciplinary Commission ’ s decision had lacked reasoning and had been arbitrary. In that connection, he complained that it had not specified his allegations, nor the newspapers where they had been published. He further denied making false allegations damaging to the KFM ’ s reputation. He relied on Article 10 of the Convention.

On 28 January 2010 the Arbitration Commission, as a second-instance body within the KFM, dismissed the applicant ’ s appeal and upheld the order of the Disciplinary Commission. In so doing, it made reference, inter alia , to section 22 of the Disciplinary Rules of the KFM; the allegations published in the newspaper Makedonski sport of 25 and 27 November 2009 (without any further details); and a “Letter to basketball supporters” of 24 November 2009 written by the applicant.

The applicant challenged those decisions before the Skopje Court of First Instance. Relying on Article 10 of the Convention and the importance to him of the issues at stake, he asked the court to annul the order against him on the same grounds as in his appeal to the Arbitration Commission (see above).

On 9 July 2010 the Skopje Court of First Instance admitted the applicant ’ s claim and annulled the impugned decisions. The relevant parts of the judgment read as follows:

“... the [KFM ’ s Commissions] neither specified the alleged false allegations that the applicant had made in newspapers nor explained how had they had damaged the reputation of the KFM. Had that been the case, (the KFM) could have asked the competent courts to establish that [the applicant] had defamed (the KFM) and damaged its reputation. (It was not sufficient that the KFM) relied on section 22 of the Disciplinary Rules without proving ...”

On 20 January 2011 the Skopje Court of Appeal set that decision aside and instructed the lower court to examine, in repeat proceedings, whether the courts had jurisdiction to decide the applicant ’ s claim.

By a judgment of 29 April 2011, the Skopje Court of First Instance dismissed the applicant ’ s claim due to lack of jurisdiction. The relevant parts of the first-instance court ’ s decision read as follows:

“... the impugned decisions are rendered under section 22 of the Disciplinary Rules of the KFM ...

.. the court cannot examine the lawfulness of the Disciplinary Commission ’ s decision since it is based on a provision of the Disciplinary Rules of the KFM. This means that the subject of the dispute is outside the competence of courts.

... the defendant is a voluntary association of citizens, in which its members operate on a voluntary basis. They are required to respect the rules provided for in the acts adopted by the bodies of the [KFM]. The claimant, as a member of the KFM, agreed [to abide] by the rules specified in its acts, including the Disciplinary Commission. ... Therefore, the court considers that the claimant can protect his rights within the limits of the acts of [the KFM] as an association, by having recourse to all the legal remedies specified by those acts ... and not before a court.”

The applicant challenged that decision, arguing that the first-instance court had not indicated which body had competence to decide his claim. Furthermore, he submitted that the decisions of an association of citizens must be subject to judicial review. Otherwise, associations would have unlimited powers to decide issues, in violation of human rights and freedoms. He relied on Article 50 of the Constitution, as well as sections 5 and 8 of the Law on Courts (see “Relevant domestic law” below).

On 20 September 2012 the Skopje Court of Appeal dismissed an appeal by the applicant for the same reasons as given in the lower court ’ s decision.

B. Relevant domestic law

1. The Constitution

Article 50 § 1 of the Constitution provides that e very citizen can seek to have his or her human rights and freedoms protected before the courts, including before the Constitutional Court.

Article 110 § 3 of the Constitution provides that the Constitutional Court protects, inter alia , the freedom of belief, conscience, thought and the public expression of thought.

2. The Courts Act of 2006

Under section 5(1) of the Courts Act, the courts protect human rights and freedoms, unless they fall within the competence of the Constitutional Court.

Under section 8(1) of the Act, a court can only decline jurisdiction if such jurisdiction is conferred by law to another State body.

3. Disciplinary Rules of the KFM

Section 22(1) of the Disciplinary Rules of the KFM provides that a person who has disseminated false, defamatory statements about the KFM, its members, the holders of an office or its bodies can be subjected to a fine or an order banning him or her from any basketball-related activity for up to two years.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he was denied access to court with respect to his grievances against the KFM ’ s order. By having restricted his access to court, the respondent State did not protect his right to freedom of expression under Article 10 of the Convention.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention applicable in the present case? If so, did the applicant have access to court to contest the order preventing him from performing any basketball-related activities for a year? If that is not the case, was the deprivation of the right of access to court justified in the applicant ’ s case?

2. Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference in terms of Article 10 § 2?

3. Were the applicable rules on the jurisdiction of the courts regarding the issues raised in the present case sufficiently precise and foreseeable? The Government are invited to provide copies of any relevant court decisions.