Communicated on 12 May 2015

FIRST SECTION

Application no. 28032/12 Nikola GELEVSKI against the former Yugoslav Republic of Macedonia lodged on 21 November 2012

STATEMENT OF FACTS

The applicant, Mr Nikola Gelevski , is a Macedonian national, who was born in 1964 and lives in Skopje . He is represented before the Court by Mr F. Medarski , 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.

On 28 March 2009 a group of students from the Architectonic Faculty gathered on a peaceful protest, which had been duly declared to the authorities, on the main square in Skopje in order to express their disagreement with the construction of a church on the square announced by the Government. Another group of “counter-protestants” gathered at the same time on the square disrupting the students ’ protest. In 2009 Progress Report regarding the respondent State, the European Commission stated the following:

“ With regard to freedom of assembly and association , the overall situation is satisfactory. However , there were two occasions when peaceful and legal public events were violently disrupted. One was a student protest in Skopje against the government ’ s plan to build a church on the main square ...”

On 31 March 2009 in an article published in the daily newspaper ‘ Utrinski vesnik ’ under the title “Megaphones from the Fuhrer ’ s street”, the applicant, a journalist and a columnist, commented on the events of 28 March 2009. He referred to public statements of “ Janko Jadiburek , Bi č ikliski and Latas ” (journalists) on the basis of which he concluded in the article that “ Janko Jadiburek is the most direct supporter of the new fascist voice ( изблик )” and that “ Bičikliski and Latas continued calling for lynch of those who think otherwise ( неистомисленици ) ”. The applicant ’ s article further stated inter alia that:

“ Bi č ikliski , Jadiburek , Latas , Nedelko , Tomic and others [journalists] are not problematic in view of their clear political agenda: to transform the country into a totalitarian ‘ kasaba ’ of little black Grujo (referring to the Prime Minister) and his гуланфери, гилиптери and bus-driven bashibazouk that is transported all around as part of the project called ‘ Fraternity of cities ’ ( Братимења на градови ) [in order] to discipline those who think otherwise (batters from Gostivar arrive to beat 50 students gathered on their own city square in order publicly to express their opinion ... When battering buses of VMRO will arrive next time, people of Skopje will be better organised, at least to protect their children; and the bear of violence will start dancing in front of the doors of inciters, like Latas , Bi č ikliski and Jadiburek ...

Jadiburek and others alike him, I say, are not problematic only because they transformed the journalism and the public work into a spin service of a political and mafia-type partnership in the operation of dissolving the Republic of Macedonia, but they are problematic because in the most direct and blatant way they violate the highest, and still valid, legal document of this State: the Constitution (then, the applicant cited the constitutional provisions which provide for the freedom of public expression and peaceful assembly and association) ...All this speaks about the fascist nature of the government of Nikola Gruevski (the Prime Minister) and his threatening phalanxes ...”

On an unspecified date, Mr Dragan Pavlovic-Latas (see above, “the plaintiff”), lodged criminal charges against the applicant accusing him of defamation and insult regarding his article published in Utrinski vesnik . Both crimes were punishable under the Criminal Code.

On 10 June 2010 the Skopje Court of First Instance (“the trial court”) found the applicant guilty on both accounts and imposed on him a fine of 600 euros (EUR) with thirty days ’ imprisonment in default, ordered him to pay a court fee and a further EUR 15 0 to cover the plaintiff ’ s trial costs. The court found that the applicant had deliberately made untrue and unsubstantiated statements in the article capable of creating a public image of the plaintiff as a dishonest and incompetent person. Accordingly, he infringed the reputation and dignity of the plaintiff, who was the editor-in-chief of the newspaper Ve č er and the news of the TV channel ‘ Sitel ’ . The court dismissed the applicant ’ s arguments that in the article he had discussed the political determination and behavior of the mentioned journalists, including the plaintiff, which in no way could have been understood as an attack of their reputation and dignity. In this context, according to the applicant, were the plaintiff ’ s public statements in which he “had used hate speech” and “(the applicant) had started the article in order to protect people from that political lynch ...” His aim had been to safeguard the Constitution and the freedom of peaceful assembly and association of the students.

On 22 September 2011 the Skopje Court of Appeal ruled partly in favour of the applicant and upheld his conviction only on account of defamation (it found that the applicant could not be held guilty on both accounts for the same article). It imposed on him a fine of EUR 320 with sixteen days ’ imprisonment in default . The court dismissed the applicant ’ s argument that the article had contained a value judgment. In this connection the court stated:

“In order that a statement is regarded a value judgment, it should not be related to a concrete event, concrete happening, and it should be made in abstracto . In the present case, the published text concerns a concrete event in reality and it contains a factual assertion that is subject to substantiation, proving and determination. The burden of proof is on the ... accused.”

On 2 May 2012 the Constitutional Court dismissed the applicant ’ s constitutional appeal in which he complained of a violation of his freedom of conviction, conscience, thought and public expression of thought protected under Article 16 of the Constitution. The court reproduced the judgments of the courts of general competence and found inter alia that:

“In the present case, the courts, through the judgments, punished publicly expressed opinion of (the applicant), as a necessary measure for the protection of the reputation, dignity and authority of another citizen. It was so since (the applicant), relying on his freedom of public expression, violated the protected right of another citizen, namely Mr Dragan Pavlovic-Latas .

...

It is clear that the article articulates the author ’ s personal opinion about the governing policy of the actual political party [in power] in the Republic of Macedonia, with which he obviously disagrees. In the impugned parts [of the article] (the applicant) describes (the plaintiff), a journalist and an editor-in-chief, as a spokesperson, affiliate and a ‘ megaphone ’ of that politics, which, according to the author of the article, is of a fascist nature, and qualifies the victim as belonging to the threatening phalanxes.

... the court finds that the reasons given by the trial and appeal courts are acceptable and that the State ’ s interference is proportionate to the legitimate aim of protecting the reputation of the victim ...”

This judgment was served on the applicant on 21 May 2012.

The applicant submitted excerpts of articles published by the plaintiff between 9 February and 23 March 2009 in the newspaper Ve č er in which the plaintiff, as stated by the applicant, looked as “an apologist of the politics of the ruling political party VMRO-DPMNE and a harsh critic of all political rivals and those who think differently from this party.”

C OMPLAINT

The applicant complains under Article 10 of the Convention about his criminal conviction for defamation.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention?