Communicated on 12 May 2015

FIRST SECTION

Application s no s . 64659/11 and 24133/13 Jani MAKRADULI against the former Yugoslav Republic of Macedonia lodged on 30 September 2011 and 1 April 2013 respectively

STATEMENT OF FACTS

Mr Jani Makraduli (“the applicant”) is a Macedonian national. He was born on 28 March 1965 and lives in Skopje. He is represented before the Court by Ms S. Joševska, a lawyer practising in Skopje.

The applicant, at the material time, was the Vice-president of the political party “Social Democratic Union of Macedonia” (“SDSM”), which was, at the time, in opposition. He was also a member of the national Parliament.

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

A. Application no 64659/11 (lodged on 30 September 2011)

On 14 December 2007 the applicant held a press conference in the premises of SDSM, which was broadcasted in the news on a TV channel under the title “SDSM: (S.)M. abuses tapping equipment”. The applicant stated inter alia that:

“Has (S.)M., during this year and a half while he is formally the Head of the Security and Counter Intelligence Agency (“the Agency”) and practically head of police, abused the office in order to influence the Macedonian Stock Exchange and have timely information that would enable him to obtain certain profit? Are public concerns, which become stronger, that police tapping equipment is misused for trading on the Stock Exchange, true?”

The applicant ’ s statement, as specified in articles published on 14 and 15 December 2007 on the web site of the same TV channel, concerned S.M. ’ s declaration of assets in which he submitted that he possessed shares which value had been 300,000 euros (EUR). The article of 14 December 2007 contained S.M. ’ s reply in which he denied the applicant ’ s allegations and stated that the money in question had been transferred on his bank account from a foreign account. In the following days, the Ministry of the Interior invited the applicant to submit any evidence regarding his allegations. With submissions of 18 December 2007, SDSM, represented by the applicant, informed the Ministry that the Anti-Corruption Commission and the Public Revenue Office had not taken any measures against S.M. notwithstanding that he had submitted the declaration of assets several months after he had been appointed Director of the Agency. It requested that the Ministry take necessary measures.

On 1 February 2008 S.M. brought private criminal charges accusing the applicant of having made defamatory allegations about him.

On 3 November 2009 the Skopje Court of First Instance (“the trial court”) found the applicant guilty of defa mation punishable under section 172 of the Penal Code. It imposed on him a fine of EUR 1,500 with seventy-five d ays ’ imprisonment in default, ordered him to pay a court fee of EUR 30 and a further EUR 230 to cover the trial costs of S.M. The court further ruled that the operative part of the judgment should be published , at the applicant ’ s expense, in the news of the same TV channel. The court decided in summary proceedings, in the absence of the applicant, who despite being properly summoned, had failed to attend any court hearing. It stated that:

“(given) the way in which the applicant expressed his allegations and other circumstances, the court considers that the (applicant ’ s) allegations are untrue and (represent) an assertion made in interrogatory form which considerably had affected the reputation and dignity of the claimant.”

The court rejected the applicant ’ s defense that the allegations had been made in the political context in which he, as a leader of the opposition party, had been entitled to express concerns and put questions concerning the work of public officials. In this connection the applicant referred to section 176 of the Penal Code under which insulting statements were not punishable if expressed inter alia in a political context, if they were justified and without intent to insult . The court held that the applicant had been entitled to comment and express concerns about the work of S.M., who had been accordingly a “legitimate target” of a constructive criticism and debate, but he had not been entitled “to make statements and assertions without any factual basis.” The office that the applicant held did not entitle him “to disseminate and express untruthful allegations which are detrimental for the reputation and dignity of a third person.” In determining the penalty, the court considered inter alia as aggravating the applicant ’ s previous criminal record in relation to similar offenses. On 11 May 2010 the Skopje Court of Appeal confirmed the trial court ’ s judgment finding no grounds to depart from the established facts and the given reasoning.

On 23 February 2011 the Constitutional Court dismissed the applicant ’ s constitutional appeal in which he complained that the courts of general jurisdiction had violated his freedom of expression. The court held that the freedom of expression was not absolute and that it could be restricted in accordance with the law. In this connection it referred to section 172 of the Penal Code, which punished the dissemination of untrue information that could affect the reputation and dignity of a third person. The court further held that:

“The way in which the (applicant) expressed his opinion in public concerning the performance of a public office by a public official (in an interrogatory form, as a member of the opposition political party, from the stand ( говорница ) of the political party, the consequences of his public action ... ) without trying to prove the veracity of his question or statement, taken as a whole, represents an action, which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but it affects, in substance, the reputation and dignity of the citizen which holds, at the time, the public office and violates these values. Accordingly, such a statement lost the contents of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).”

B . Application no 24133/13 ( lodged on 1 April 2013 )

On 9 September 2007 the applicant held a press conference in the premises of SDSM regarding public sale of a building land in the central area of Skopje planned for the construction of a hotel. It was broadcasted in the news of a TV channel. The applicant presented information regarding the selected company alleging that it was close to company Orka Holding, which was owned “by persons who are very close to [the Prime Minister] and M. (the family name).” He further alleged that there had been a deal in order that the land, which was State-owned, would be given to people who were in close family or party ties with the Prime Minister. As described in the trial court ’ s judgment (see below), the applicant stated that:

“The attractive location behind the shopping mall ‘ Ramstor ’ planned for the construction of a hotel was allocated to a company supported ( зад која стои ) by Orka Holding ... After this mega scandal has been revealed, the biggest dilemma is whether the Academy Award for the most corrupted politician would be given to the Prime Minister or his cousins? Those who have created or those who have implemented the deal?”

On 19 September 2007 S.M. lodged private criminal charges against the applicant on account of defamation.

On 1 October 2007 SDSM submitted information to the public prosecutor regarding the selected company and requested that he investigate whether the arrangement had been compatible with the Act against Corruption.

On 23 February 2011, after one remittal, the trial court convicted the applicant of defamation. It imposed on him a fine of EUR 1, 0 00 with a hundred days ’ imprisonment in default, ordered him to pay a court fee of EUR 30 and a further EUR 375 to cover the trial costs of S.M. The court decided again in the absence of the applicant, who despite being properly summoned, had failed to attend any court hearing . According to S.M. ’ s statement given at the trial, there had been no doubts that the applicant ’ s allegations had concerned him irrespective that the applicant had not identified him in person. It was so since the applicant had often referred to him as “the Prime Minister ’ s cousin”. He admitted that he had contacts with the managers of Orka Holding, but they were as among friends. He had no business cooperation with them nor was he involved in any way in the construction of the hotel. The court accepted that the applicant ’ s statement concerned S.M., in particular since the news presenter had identified the complainant by his surname. It found that the applicant ’ s assertion had not been substantiated with any evidence. Furthermore, the private complainant, as Director of the Agency, had no competence to participate in the public sale of a State-owned land. The court concluded that the applicant ’ s statement could considerably affect the reputation and dignity of the complainant, given in particular, the fact that he was a holder of a public office and “(such) statements are disseminated fast and aggressively in public.” In determining the penalty, the court considered as aggravating the frequency of similar crimes, as well as the fact that there were other similar proceedings initiated by the complainant against the applicant.

On 18 May 2011 the Skopje Court of Appeal dismissed the applicant ’ s appeal in which he complained inter alia that the complainants had not been identified in his statement which had been given in political context and accordingly, not punishable, as specified in section 176 of the Penal Code. The court confirmed the trial court ’ s judgment holding that the applicant had expressed untrue assertion about the complainant. The burden of proof rested with the applicant who had failed to prove that his assertion was true. The court further stated that:

“The contents of the statement, time, place and way in which it was given, imply that it was serious and that it could objectively create a perception by third persons about certain facts. This court finds [the statement] defamatory since the factual assertion contained therein could objectively affect the reputation and dignity of the private complainant.”

On 14 September 2011 the public prosecutor informed the applicant that there were no grounds to initiate legality review proceedings ( барање за заштита на законитоста ).

On 12 September 2012 the Constitutional Court dismissed the applicant ’ s constitutional appeal for protection of the freedom of expression. The court held that:

“In the concrete case, the court ... punished [the applicant] ... as a necessary measure for the protection of the reputation, dignity and authority of another person. It was so since [the applicant], by having relied on the freedom of public expression interfered with a protected right of another person, namely S.M....

[The applicant] is a member of the national Parliament, Vice-President of SDSM and he gave the statement in SDSM. ’ s headquarters ...

An analysis needs to be made ... whether (the applicant ’ s) conviction and penalty represent a justified restriction of his rights and freedoms ... namely whether the courts struck a fair balance between the need to protect the reputation and dignity of the victim and [the applicant ’ s] freedom of public expression. The freedom of political debate is not of an absolute nature ... the court notes that the impugned statement concerns the public sale of State-owned building land ... and it should be considered in the context of a debate concerning an issue of public interest, in particular of primary political interest ...

The court considers that the veracity of the statement was of pr imary importance for the courts. Those courts did not consider value judgments as relevant and established that [the applicant ’ s] statement was untrue or that there is no evidence to prove the contrary.

... the court has the right and duty to assess whether the courts enabled [the applicant] to prove the veracity of (his) statement. In this connection the court finds that [the applicant] was able, during the entire proceedings, to present evidence as to the veracity of his statement. In the absence of proof which would confirm the veracity (of the statement) ... the court cannot but accept the court ’ s findings that the statement was untrue.

Despite the fact that the statement is part of a public debate, the question is whether (it) ... had any impact or was relevant for the public, as a contribution for better understanding of the issue subject to public debate ...

“The way in which the (applicant) expressed his opinion in public concerning the performance of a public office by a public official (in an interrogatory form, as a member of the opposition political party, from the stand ( говорница ) of the political party, the consequences of his public action ... ) without trying to prove the veracity of his question or statement, taken as a whole, represents an action, which only appears to fall within the ambit of the freedom of conviction, conscience, thought and public expression of thought, but it affects, in substance, the reputation and dignity of the citizen which holds, at the time, the public office and violates these values. Accordingly, such a statement lost the contents of the freedom (of thought and public expression of thought) and (represents) an abuse of (that freedom).”

COMPLAINT

The applicant complain s under Article 10 of the Convention that his conviction and the imposed penalty violated his rights under this provision .

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?