Decision U.no.147/2011

U.no.147/2011

On the basis of Article 110 line 3 of the Constitution of the Republic of Macedonia, Articles 56 and 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 24 November 2011, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. The application of Ljubomir Danailov Frchkoski from Skopje for the protection of freedoms and rights under Article 110 line 3 of the Constitution referring to the freedom of thought and public expression of thought, guaranteed under Article 16 of the Constitution, which the applicant considers to have been violated with the Judgment K.br.991/09 of 01.10.2010, passed by the Skopje I Basic Court – Skopje and with Judgment KZ.br.332/11 of 07.03.2011 by the Skopje Court of Appeal IS REJECTED.

2. This decision shall be published in the “Official Gazette of the Republic of Macedonia”.

3. Ljubomir D. Frchkoski from Skopje filed an application with the Constitutional Court of the Republic of Macedonia for the protection of freedoms and rights related to the freedom of thought and public expression of thought.

In his application he notes that as a columnist he published a column in the daily Dnevnik on 20.01.2009, with the headline “Frankfurt School vis-à-vis Demir Hisar School”, in which as a longstanding regular columnist in the newspaper he tried to critically deal with and express himself and draw a parallel of the political dialogue that ruled in the Republic vis-à-vis the presidential elections, alluding to the quality in which they were being run, using a metaphor in his expression, that is, “Frankfurt school” which for the columnist was a synonym of prestige and “Demir Hisar school” which was a synonym of a school from province. In his application he notes that the column referred to the then presidential candidate of the party VMRO-DPMNE, Mr Gjorge Ivanov.

In the application it is also noted that Svetomir Shkarikj, a retired professor at the “Justinian I” Faculty of Law in Skopje, and now an Advisor to the President of the Republic of Macedonia, filed a private criminal action against Ljubomir D. Frchkoski, for the criminal offences “Insult” and “Libel”, on grounds of the said text in the column “Frankfurt school vis-à-vis Demir Hisar school” and owing to the content of the part in the published column with the text” “You owe little candidate, you owe…Nobody is asking you to pay back, but you owe. You owe me and Professor Micajkov for bringing you at the Faculty and fighting in the academic council to admit you. In the council your current mentor Shkarikj was bloodthirstily against your admission (see record from the academic council at the Faculty of Law)”.

In the application it is also noted that acting upon the private criminal action, with its judgment K.br.991/09 of 01.10.2010 the Skopje I Basic Court – Skopje found Ljubomir D. Frchkoski guilty for the criminal offences of LIBEL and INSULT, and in connection with part of the content of the published column, and pronounced him a single fine of 50 daily fines in the amount of 500 euros in denar countervalue of 30,750.00 denars. It is also noted that a damage claim was made in the amount of 25,000 euros in denar countervalue, on behalf of nonmaterial damage, sustained with the violation of the honour and reputation of the private prosecutor, for which the court would decide with an additional judgment. The applicant filed an appeal against the first instance judgment with the Skopje Court of Appeal, which acting upon the appeal with its Judgment KZ.br.332/11 of 07.03.2011 rejected the same as unfounded, and confirmed the first instance judgment.

Displeased with the second instance judgment, the applicant filed for an extraordinary remedy – Request for protection of legality – with the Public Prosecutor of the Republic of Macedonia, but has not still received an answer as to the merits of the extraordinary remedy filed for.

The applicant Ljubomir D.Frchkoski considers that he had his constitutional right to thought and expression of thought violated in the criminal procedure, initiated upon the private action of the private prosecutor Svetomir Sharikj from Skopje, against him as a defendant, since in the procedure there was incorrect interpretation of the provisions of the Criminal Code that related to the offences of “Libel” and “Insult”, and all that resulted in the adoption of a sentencing judgment. Also, in the application it is noted that Ljubomir D. Frchkoski as a defendant in the criminal procedure had his right to freedom of expression of thought denied in the sense of elaboration and explanation of his pieces of evidence, and thereby he had his right to defence denied indirectly.

Furthermore, in the application it is noted that in connection with the published column there was no criminal offence of “Libel”, specifically in the part of the text “of the Council at which your current mentor Shkarikj was bloodthirstily against your admission”, as according to the applicant there was no claim, that is, expression of something which was to be condemned generally by the public, which would violate-injure the private prosecutor’s honour and reputation. The stance whether somebody supported somebody or not was a personal stance of each man and the expression of that stance in front of somebody else, according to the applicant, was in no way a violation of reputation, since the fact whether somebody was against somebody or something was not a value judgment for the man, and hence it could not be an action with which libel was being committed. According to the applicant, the private prosecutor was not a public figure and did not perform a public office and was not clear about the way in which the first instance court had established that the content in the column had influenced on him and what severe consequences he had suffered and in front of which public his honour and reputation had been ruined, given that the private prosecutor was not a public figure.

With regard to the second criminal offence of “Insult”, the applicant notes that the court draw an incorrect conclusion and found that the text “Demir Hisar school” meant the psychiatric hospital in Demir Hisar. He also notes that the entire text referred to Gj. Ivanov as a presidential candidate of VMRO-DPMNE, but the court did not sustain that, since the name of the private prosecutor was mentioned in the text although another three persons were also mentioned in the column: Gj.Ivanov, M.Micajkov and Lj.Boshkovski, and the applicant was not clear how the court had found that the text implied the private prosecutor himself.

In the application it is also noted that during the procedure the applicant Ljubomir D. Frchkoski was trying unsuccessfully to clarify that there had been no premeditation and intent to insult or libel anybody, and that actually by means of an allusion using the metaphor of “Frankfurt school”, which according to the applicant was a synonym of prestige, and “Demir Hisar school”, which according to the applicant was a synonym of a school from a province, he had wished to dwell critically and freely on the quality of the conducting of the presidential elections, and had not meant of a psychiatric hospital, that is, a degrading expression, from which the public would conclude that the members of that school had been mentally ill persons, as it had been experienced by the private prosecutor Shkarikj, which had also been sustained in the same manner by the court in its adjudication. Namely, according to the applicant, there was an incorrect stance of the court in the clarification of the dilemma whether in the case, the text “Demir Hisar school” was experienced in the public as an allusion of a “school in a province”, as the applicant had meant, or as a “psychiatric hospital” with an allusion of the “province of mentally ill persons”, as experienced by the private prosecutor, and as sustained by the court, whereby in the words of the applicant the court had attributed another meaning, opposite of the real meaning of the published text. Furthermore, in the application it is noted that the conducted procedures were in contradiction with all democratic principles since it was inadmissible for anyone to be punished for a thought, and in the context of the aforementioned, from the very property-legal claim of the private prosecutor, in the amount of 25,000 euros, it was visible that the purpose of the private prosecutor was not to protect his honour and reputation, but to gain a property advantage.

The application further notes that in the criminal procedure there was absolutisation of the rights to protection of the image, dignity and reputation of the private prosecutor Shkarikj, vis-à-vis the general public interest, that is, the legitimate aim of the public for information on issues of public character, whereby the applicant Ljubomir D. Frchkoski had his constitutionally guaranteed rights of freedom of thought, speech and free expression of thought severely violated. The applicant was clear with the provision in Article 10 paragraph 2 of the European Convention on Human Rights and Freedoms, which safeguards the right to freedom of expression, that the right is not unconditional, but subject to possible restrictions and formalities, conditions and penalties defined by law, necessary in a democratic society and which refer, inter alia, to the rights and reputation of others, and that in conditions of local national jurisprudence, the possible restrictions or formalities, conditions and penalties with the protection of the right to free expression depend on the appraisal of the national court (state) of the legitimacy of the aim of protection and the necessity to protect that aim as a condition in a democratic society, but according to the applicant the court had disregarded the importance of the free printed medium and its role in the democratic society and made an unbalance of the interest, as in this concrete case the court awarded an excessively high and disproportionate protection of the honour and reputation of the private prosecutor.

3. At its session the Court found that on 20.01.2009 in the daily “Dnevnik”, Ljubomir D. Frchkoski, in the face of the presidential elections, in which he had also been a candidate, had published a column headlined “Frankurt school vis-à-vis Demir Hisar school”, with the following content:

“Column
Frankfurt school vis-à-vis Demir Hisar school
You owe little candidate, you owe… Nobody is asking you to pay back, but you owe. You owe me and Professor Micajkov for bringing you at the Faculty and fighting in the academic council to admit you. In the council your current mentor Shkarikj was bloodthirstily against your admission.

I owe you an apology, my dear ones! I am bothering you with representatives and views of the Frankfurt school of philosophy and am disorienting you unintentionally. Actually, in our place dominant is the Demir Hisar School which is reinforcing itself. The latest indication is the settlement of the party tender of VMRO-DPMNE for candidate for president of the Republic. The cheapest candidate won the tender (and in that sense the tender is fair). All that grotesque re-canonisation of the Macedonian identity with classicism and stupidity performed by VMRO-DPMNE has obtained its Pulp-ideologist-clown at its head.

Normally, Prime Minister should promote his personal “pollster”, and as in any comedy of public, with an intention to aid him the mentors immediately further buried him proclaiming him for a “blanched” Obama. That should be the way! The cartoon of the Macedonian stomach cramps with classicism should be brought to an absurdity!

In the analyses of the statements of his patients S.Freud uses a technique called PERSEVERATION. It is an analysis of a text-statement through the emphasis of separate words therein, repetitions and stresses and revelation through what the patient wishes to hold back/curb, conceal and reject. If we apply the same to the first statements of the “candidate” we shall disclose that he “…came from a province…he does not owe anything to anyone for his career… and that he is prepared to help Macedonia in its Euro-Atlantic integrations…”

Even to an amateur psychiatrist the content of this account which in the very beginning stresses that he came from a province, is an aggressive emphasis that he does not suffer from a complex because of that, unquestioned by anybody, which speaks of the opposite – that he has been suffering from that complex and has not managed to control it. It would probably be irrelevant for us, but demonstrates that one more in a series of burdened guys can easily come to power, whose small provincial frustrations will be treated with a big-stroke policy for Alexander fucking the Great and Greater Macedonia.

The fact that the little candidate as of “the day before yesterday” has been dealing with the antique roots of current Macedonians fits ideally into the flock of the “until yesterday” VMRO sympathisers. Both sides conceal their shallow roots in the comedia grande and connect like lego dices. However, the second element in the statement, that he does not owe anything to anyone about his career, is little likely to be believed by those who know him!

You owe little candidate, you owe… Nobody is asking you to pay back, but you owe. You owe me and Professor Micajkov for bringing you at the Faculty and fighting in the academic council to admit you. In the council your current mentor Shkarikj was bloodthirstily against your admission (see record from the academic council at the Faculty of Law). To show gratitude then he fixed my radio and Hi-Fi several times, which was fair from him.

One of these days a friend, who is familiar with the case, called me and said to me: Professor, the one who fixed your iron has become a VMRO candidate? I corrected him: “Not the iron, the radio”. And I commented: “That’s fucking life! C’est la vue!” I believe that by choosing such candidate for President of the Republic, VMRO-DPMNE opens a chance of the united opposition. There is some God’s justice in the fact that the Prime Minister’s personal pollster should prove now on himself as a candidate the polls and high figures of support for the party that he conducted.

We shall see easily if the VMRO voters from the polls will now vote in approximate figures for this candidate? What is obvious is that “classical” VMRO sympathisers will be in trouble. Brother Ljube shall “bite” up to one third of the votes from them for himself. And in the space in between a serious candidate of the opposition has a chance! I do not know if they will find one, but the space is being opened now!”

The Court also found that the person Svetomir Shkarikj, a Professor at the “Justinian I” Faculty of Law, now a retired professor, had filed a private criminal action against Ljubomir D. Frchkoski, on charges of libel and insult, and in connection with the text of the published column.

Based on the private criminal action filed before the Skopje I Basic Court – Skopje, a case was created K.br.991/09 and a criminal procedure was conducted in which verbal and material evidence was derived, as follows: by reading out the defence of the defendant given in the records from the main hearing on 02.06.2010, the examination of the private prosecutor in the capacity of an injured party and an insight into: the original excerpt from the daily Dnevnik of 20 January 2009 – the column “Frankfurt school vis-à-vis Demir Hisar school”, minutes no.08-596/2 of 29.09.1995, paper on the election of an assistant in the scholarly field of political theories at the Faculty of Law-Skopje published in the bulletin number 664 of 01.09.1995, request of 21.02.2009 with illegible entry number, records from the session of the academic council held on 29.01.2010 under entry no.02-60/1 and report no.08-547/1 of 28.06.1996.

In his defence given in the minutes for the main hearing held on 02.06.2010, while the defendant Ljubomir D. Frchkoski did not contest the content of the published column, he stated that he had not committed the criminal offences he was charged with and that the filed criminal lawsuit had no legal ground and had been filed out of lucrative reasons for the purposes of gaining a property advantage. He also stated that the said text had not referred to the private prosecutor, but to the current President Gjorge Ivanov and the publicly articulated stance of the private prosecutor against the election of that person as assistant at the Faculty of Political Sciences, which could not be considered to be a libel only because somebody expressed his opinion that somebody else had been in favour of or against somebody’s election for an academic title. He also stated that he had brought the person Gjorge to the Faculty and as his professor he had known the best who had resisted the engagement, who had boycotted the exercises, etc. He clarified that formally there were at least three meetings of the Academic Council for the election of a teaching staff at the Faculty, for which separate records were kept, but he also noted that in the concrete case at the meeting held on 29.09.1995 when it had been voted for the admission of an assistant for the scholarly field of Political Theories, the private prosecutor Shkarikj had not been present. He further noted that the column had been written 15 years after the holding of the meeting and that he had written it according to recollection, and the motive to write it had been the statement of the then candidate for president and current President Gjorge Ivanov who had said that he had not owed anyone in his career. Therefore, the column had been written with an intention to remind him and to point to him that he did owe with regard to his admission to the Faculty, and it was ironical for some people who had been against his admission now to become his advisors.

With regard to the statements in the private action for the criminal offence of “Insult”, the defendant noted that the term “Demir Hisar school” had been used as a comparison with the “Frankfurt school” which was a famous theoretical Marxist school of the previous century, and with the term mentioned he had wished to underline the huge difference between the levels of debate in those schools, and the example of which was exactly the “Frankfurt school”, with a note that he had not used the term “Demir Hisar school” as a metaphor of some mental hospital located in Demir Hisar. Regarding the use of the term “bloodthirstily”, the defendant stated that it had been used descriptively with an intention to convey somebody’s fierceness.

The private prosecutor, examined in the capacity of an injured party, stated that with the publication of the column by the defendant, he had had his honour and reputation violated and there had also been a crude violation of his integrity as a person and a university professor owing to the untruths presented in the column, that is, that he had been against the election of Gjorge Ivanov as an assistant at the Faculty, that is, the defendant’s claim that the mentor (private prosecutor) had boycotted and obstructed his election had not been true, but on the contrary, he had been appointed his mentor. Also, the private prosecutor had been a member of the Review Commission that had written the report in 1998 on the election of Dr Gjorge Ivanov as a Docent at the Faculty, and a member of the Commission for the election of this person as an Associate Professor at the Faculty, but the private prosecutor separated his opinion and gave a proposal for the said person to be elected as a Full Professor at the Faculty, and in 2006 their joint book had been published, so all that indicated a positive relationship between Gjorge Ivanov and the private prosecutor Shkarikj as his mentor, which had been familiar to the defendant.

As to the criminal offence of “Insult”, the private prosecutor stated that in the column of the defendant Gjorge Ivanov, and he himself as his mentor, had been qualified to belong to the Demir Hisar school, which term had not been used in inverted commas and that from the text it could be concluded that they had been compared with the Frankfurt school to which the defendant belonged and which school had a repute, while the Demir Hisar school was something degrading and lower, alluding that they belonged to the psychiatric hospital in Demir Hisar and that they were mentally ill, in which way the defendant Frchkoski had exposed the private prosecutor Shkarikj to a public laughingstock, wishing to degrade his reputation as a person and promoter of the person Ivanov. According to the statement of the private prosecutor, the defendant had done that consciously, with an intention to open a way for his own promotion as a presidential candidate. Furthermore, the private prosecutor stated that despite the defendant’s claims that the text of the column had not referred to the private prosecutor, he considered that the text published had referred to him, for reasons that in the text itself the name of the private prosecutor Shkarikj had been indicated.

Upon the conducted criminal procedure, with its Judgment K.br.991/09 of 01.10.2009 the Skopje I Basic Court – Skopje found the applicant Ljubomir D. Frchkoski guilty since on 20.01.2009 in the daily Dnevnik in the headline “Frankfurt school vis-à-vis Demir Hisar school”, speaking about the presidential candidate Gjorge Ivanov he stated “You owe little candidate, you owe… Nobody is asking you to pay back, but you owe. You owe me and Professor Micajkov for bringing you at the Faculty and fighting in the academic council to admit you. In the council your current mentor Shkarikj was bloodthirstily against your admission (see record from the academic council at the Faculty of Law)”, which words, according to the court, had been a vulgar untruth and damage to the honour and reputation of the private prosecutor. With the same Judgment the applicant Frchkoski was found guilty as on 20.01.2009 in the daily Dnevnik in the headline “Frankfurt school vis-à-vis Demir Hisar school” he had ranked the private prosecutor in the “Demir Hisar School”, as something degrading in the public in view of the “Frankfurt school” to which the defendant Frchkoski belonged.

The Court found that with the aforementioned actions Ljubomir D. Frchkoski had committed one criminal offence of LIBEL under Article 172 paragraph 1 of the Criminal Code, for which offence it pronounced him a fine in the amount of 30 (thirty) daily fines of 10 euros per one daily fine, in denar counter-value of 615.00 denars per one daily fine, and one criminal offence of INSULT under Article 173 paragraph 1 of the Criminal Code, for which offence it also pronounced him a fine in the amount of 30 (thirty) daily fines of 10 euros per one daily fine, in denar counter-value of 615.00 denars per one daily fine, that is, the court sentenced the defendant Ljubomir D. Frchkoski to a single fine of 50 daily fines of 10 euros per one daily fine, in denar counter-value of 615.00 denars per one daily fine, in a total amount of 500 (five hundred) euros in denar counter-value of 30,750.00 denars, which fine the defendant was required to pay within 15 days from the date the judgment became effective, under fear of forced execution.

The court decided that each party to the procedure should bear his own costs, and as to the announced property-legal claim of the injured-private prosecutor Svetomir Shkarikj, the court concluded that it would decide with an additional judgment.

The court also decided to have an excerpt from the Judgment K.br.991/09 of 01.10.2010 published in the daily Dnevnik at the cost of the defendant, within 15 days from the date the judgment became effective.
In the reasoning of the judgment the court noted that from the verbal and material evidence that the court derived during the procedure, it established without any doubt that the defendant had committed the criminal offences he was charged with.

Namely, the court established that in the column the defendant Ljubomir D. Frchkoski had presented untruths when invoking the record from the academic council at the Faculty of Law he claimed that the private prosecutor Shkarikj had been bloodthirstily against the admission of the candidate Gjorge Ivanov (now President of the Republic of Macedonia) as an Assistant at the Faculty of Law, that is, that there had been a negative stance of the private prosecutor Shkarikj against the person Gjorge Ivanov. The court established that from the paper for the election of an Assistant in the scholarly field of political theories at  the Faculty of Law – Skopje published in the Bulletin no.664 of 01.09.1995, record no.08-596/2 of 29.09.1995 and report no.08-547/1 of 28.06.1996, from which documents what arose as undisputed was that the private prosecutor could not have been against the election of the person Gjorge Ivanov as an Assistant and oppose the election bloodthirstily, since he had not attended at all the Academic Council of the Faculty when that person had been elected as an Assistant, but on the contrary the Review Commission, whose member the private prosecutor Svetomir Shkarikj had also been, had submitted a paper to the Academic Council of the Faculty with a report in which inter alia it had been noted that it had been with special pleasure that the candidate LLM Gjorge Ivanov had been proposed to be elected as an Assistant in the said field, and at the session held on 29.09.1995 of the Academic Council of the Faculty the said person had been elected unanimously as an Assistant, which session the private prosecutor Shkarikj had not attended, that is, he had had justified reasons to be absent, which was noted in the record from the held session. On 26.06.1996, upon the decision of the Academic Council of the Faculty a Commission was set up to evaluate the suitability of Assistant LLM Gjorge Ivanov to begin with the preparation of his doctor’s degree, in which Commission the private prosecutor Shkarikj was a member. Thereby, as apparent from the Commission’s Report, the court found that the private prosecutor had been assigned to be the mentor of the candidate in the preparation of his doctor’s degree.

From the aforementioned, the court established that neither had the private prosecutor been bloodthirstily against the election of Gjorge Ivanov at any moment nor he had had a negative stance towards the same, and thereby it concluded that the claims stated in the column had deviated from the established existing facts and that by their content were suitable to inflict damage on the private prosecutor’s honour and reputation.
The court found that from the content of the column it arose that the defendant Frchkoski had placed the mentors of the then presidential candidate Gjorge Ivanov, and now current President of the Republic of Macedonia, in the ranks of the “Demir Hisar school”, as in the assessment of the court the defendant had used that term as a metaphor for the psychiatric hospital in Demir Hisar, which in itself had been degradation, humiliation, insult and violation of the private prosecutor Shkarikj’ s integrity, as a person and a longstanding university professor.

Hence, the court judged that in the concrete case the said text in the published column written by the defendant contained untrue factual claim, that is, a claim that some facts had existed although they had not existed, and the defendant had not proven them, and these allegations by their content had inflicted damage on the private prosecutor’s honour and reputation, and also statements insulting and degrading the personality of the private prosecutor as a longstanding university professor, recognised and appreciated in his profession.

Ljubomir D. Frchkoski lodged an appeal with the Skopje Court of Appeal against the first instance judgment, on grounds of committed substantial violations of the provisions of the criminal procedure, incorrect and incomplete establishment of the facts, incorrect application of the Criminal Code, and the decision on the criminal sanction, as well as against the decision for the publication of the judgment in the press.

Acting upon the appeal lodged, the Skopje Court of Appeal passed its Judgment KZ.br.332/11 rejecting the appeal altogether for lack of merits and confirming the judgment of the first instance court.

The court assessed the statement in the appeal about a committed substantial violation of the provisions of the criminal procedure, but did not sustain the same as it established that the appealed judgment did not contain defects on grounds of which it could be examined with regard to its correctness and legality, given that the enacting clause in the judgment was clear and understandable, and the reasoning contained sufficient reasons for the established decisive facts and the legal stances taken by the court.

Namely, the court did not sustain the statement in the appeal that the first instance court had committed a substantial violation of the provisions of the criminal procedure since in its decision-making it had overstepped the indictment, that is, had made requalification of the criminal offences ex officio to the detriment of the defendant, as the private prosecutor had charged the defendant under the Articles 172 paragraph 2 and 173 paragraph 2 of the Criminal Code, which had been removed from the CC and those qualifications of criminal offences with which the defendant had been charged were no longer criminal offences, in which case pursuant to Article 368 paragraph 1 item 1 of the CPC under which “the court shall pronounce a judgment acquitting the defendant if the offence he is charged with is no criminal offence under the Code”, owing to which according to the statements in the appeal the first instance court should have passed an acquitting judgment, and not to make a requalification, but the second instance court found that those statements in the appeal had no merits since pursuant to Article 364 paragraph 2 of the Criminal Procedure Code the first instance court was not bound by the motions of the private prosecutor in view of the legal judgment of the offence, on the basis of which after properly establishing that the defendant’s actions contained all relevant elements for committed criminal offences of LIBEL under Article 172 paragraph 1 of the CC and INSULT under Article 173 paragraph 1 in this concrete case found the defendant guilty of those criminal offences.

The second instance court also rejected the statements in the appeal that the first instance court had not applied properly Article 381 paragraph 2 of the CPC, under which “there is a substantial violation of the provisions of the criminal procedure even if the court, while preparing the main hearing or during the main hearing, or when adopting the judgment, fails to apply, or applies incorrectly, some provision in this Code, or violated the right of the defence at the main hearing and that influenced or could have influenced the legal and proper adoption of the judgement”, when at the main hearing held on 29.09.2010 rejected the evidence submitted – Record from the session of the Institute for Political and Legal-Political Studies and Decision on the schedule of working tasks for the 1997/98 school year, which was proposed by the defendant, for reasons that the second instance court found that the first instance court had correctly rejected the motion of the defendant’s defence attorney to derive the aforementioned evidence, as the subject-matter of decision-making in the procedure had been a concrete criminal-legal event, and the proposed evidence had not had influence and relevance for the establishment of relevant facts in connection with the event, that is, for the establishment of the facts.
Also, the second instance court assessed that the first instance court had established the facts properly and completely, when from the verbal and material evidence derived in the procedure it had found that the defendant had stated the incriminating words in the column.

The second instance court appraised the statements in the appeal that in its judgment the first instance court had only repeated the private prosecutor’s statements, without thereby establishing in what way the column had influenced the private prosecutor, that is, whether he had been insulted for the text in the column or for another reason and that the first instance court had not established the manner in which the private prosecutor had suffered severe consequences from the alleged violation of his honour and reputation. The defendant found it unclear how the first instance court had established that the statements stated in the column, that is, that the private prosecutor had been against the election of Ivanov as an Assistant, had not been truthful, which it had established that from the Record of the session of the Academic Council on 29.09.1995, at which Ivanov had been elected as an Assistant and which had not been attended by the private prosecutor, when at least three sessions of the Academic Council had been held for the election of an Assistant, and in the column it had not been explicitly noted which session had been in question. According to the defendant, the evidence and conclusions derived by the court, in terms of the existence of positive relations between the private prosecutor and the person Gjorge Ivanov in the period from 1995 until present day, had not been of relevance at all for the case, since in the column the defendant had mentioned the relations between them in period prior to Ivanov being elected as an Assistant. However, the second instance court did not sustain these arguments in his appeal as having merits since it assessed that the first instance court had established the untruthfulness of the defendant’s claim that the private prosecutor had been bloodthirstily against the admission of the candidate as an Assistant at the Faculty of Law not only from the record no.08-596/2 of 29.09.1995 but also from the paper for the election of an Assistant in the scholarly field of political theories at the Faculty of Law, Skopje, published in the bulletin no.664 of 01.09.1995, and from the report no.08-547/1 of 28.06.1996, from which the court had established without any doubt that the Review Commission, whose member the private prosecutor had also been, had submitted a report to the Academic Council of the Faculty in which inter alia it had been noted that it was with special pleasure to propose the candidate LLM Gjorge Ivanov to be elected as an Assistant in the said field, and at the session of the Academic Council held on 29.09.1995, which the private prosecutor had not attended due to justified reasons, the said person had been elected unanimously as an Assistant. And on 26.06.1996 upon the decision of the Academic Council of the Faculty, a Commission had been set up to evaluate the suitability of the Assistant LLM Gjorge Ivanov to begin to prepare his doctor’s dissertation and the private prosecutor had been a member of this Commission, and also as apparent from the Commission’s Report, the private prosecutor had been assigned to be the candidate’s mentor for the doctoral paper.

In the context of the aforementioned, the second instance court found that there was lack of merits for the statements in the appeal meaning the first instance court had established the untruthfulness of the facts presented in the Column only on the basis of an inspection into the record from the session of the Academic Council of 29.09.1995, and had not taken into consideration the defendant’s statements that at least three sessions had been held for the election of an Assistant, and in the Column it had not been explicitly noted which session the defendant had in mind, since from the record itself it had been established that on 29.09.1995 the Academic Council elected Gjorge Ivanov as an Assistant, and on the other hand the defendant had not substantiated his statements in the appeal with corresponding evidence in the sense that there really had been three sessions of the Academic Council and that at one of those possibly held sessions records had been drafted from which it would arise that the defendant’s statements in the Column were true.

The second instance court appraised the statement in the appeal that the first instance court had assessed an irrelevant period for the existence of a positive relation between the private prosecutor and the person Gjorge Ivanov, that is, the period from 1995 until present day, and found that the statements were not founded, since the first instance court had judged the relation between the private prosecutor and Ivanov for the very period as noted in the Column, that is, the period before Ivanov had been elected as an Assistant. The said is for reasons that from all the pieces of evidence it was confirmed that there had not been negative relation between the said persons, and at the same time during the procedure the defendant had failed to present any piece of evidence from which it would have arisen to establish the existence of a different, that is, negative relation between the private prosecutor and the person Gjorge Ivanov, in the period both prior to his election as an Assistant and after that period. Therefore, the court found that the first instance court had properly established that the defendant’s claims presented in the Column had been untrue since those claims had deviated from the existing facts that the first instance court had established and which, by their content, had been suitable to cause detriment to the private prosecutor’s honour and reputation.

In the statements in the appeal with regard to the criminal offence of INSULT, the defendant stated that the first instance court had established incorrectly that the defendant’s intention had been to degrade the private prosecutor by ranking him among the “Demir Hisar school”, that is, that assessing that part of the Column the first instance court had been wrong in believing he had meant the psychiatric hospital in Demir Hisar. However, the second instance court found those statements in the appeal to be without merits, since it established that the first instance court had assessed properly that in the said Column the defendant ranked the mentors of the then presidential candidate in the Demir Hisar school, that it had assessed properly that the defendant had used that term as a metaphor for the psychiatric hospital in Demir Hisar, which had been an insult to the private prosecutor, both as a person and a university professor.

The second instance court also judged that the first instance court had acted and had taken the decision on the criminal sanction properly, since taking into consideration all aggravating and mitigating circumstances the first instance court had assessed properly that with the criminal sanction meted out in that way the aims of punishment, in the field of both special prevention and general prevention, could have been expected to be achieved.

Finally, the second instance court appraised the statements in the appeal with regard to the decision of the first instance court for publication of the judgement in the press. However, since the reasons for which the judgment had been appealed in that part were not stated in the appeal, and given that in the concrete case the defendant had been found guilty of two criminal offences committed through the public mass media, the second instance court judged that the first instance court had decided correctly upon the request of the private prosecutor to have an excerpt from the judgment published in the daily Dnevnik, where the Column written by the defendant had also been published.

4. Pursuant to Article 8 paragraph 1, lines 1, 3 and 11 of the Constitution of the Republic of Macedonia, the fundamental freedoms and rights of the individual and citizen recognised in international law and defined in the Constitution, the rule of law, and the respect for generally accepted norms of international law, are stipulated among the basic values of the constitutional order of the Republic of Macedonia.

Article 11 of the Constitution defines that physical and moral integrity of the individual are irrevocable.

Article 16 paragraph 1 of the Constitution guarantees the freedom of conviction, conscience, thought, and public expression of thought.

Under Article 25 of the Constitution each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and his/her dignity and repute.
Article 50 paragraph 1 of the Constitution defines that every citizen may invoke the protection of freedoms and rights determined by the Constitution before the regular courts, as well as before the Constitutional Court of Macedonia, through a procedure based upon the principles of priority and urgency.

Under Article 54 of the Constitution, the freedoms and rights of the individual and citizen can be restricted only in cases defined by the Constitution, that is only during states of war or emergency, in accordance with the provisions of the Constitution, whereby the restriction of freedoms and rights cannot discriminate on grounds of sex, race, colour of skin, language, religion, national or social origin, property or social status. Under paragraph 4 of this Article, the restriction of freedoms and rights cannot be applied to the right to life, the interdiction of torture, inhuman and humiliating conduct and punishment, the legal determination of punishable offences and sentences, as well as to the freedom of personal conviction, conscience, thought and religious confession.

Pursuant to Article 110 line 3 of the Constitution, the Constitutional Court protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity, as well as to the prohibition of discrimination among citizens on grounds of sex, race, religion or national, social or political affiliation.

The constitutional-court protection does not apply to all freedoms and rights defined in the Constitution, but to some of them, that is, only to those that are within the competence of the Constitutional Court of the Republic of Macedonia, defined in Article 110 line 3 of the Constitution. However, pursuant to the cited Article 50 paragraph 1 of the Constitution, the citizen may exercise the protection of the rights that are not subject to constitutional-court protection before the courts in a procedure based on the principles of priority and urgency.

The Constitution of the Republic of Macedonia takes as a starting point the guarantee of the very freedom of conviction, conscience, thought and public expression of thought, in a manner that is general for all individuals and the provision referred to in Article 54 paragraph 4 of the Constitution, which excludes the restriction of this freedom, must be interpreted precisely from this aspect. However, that does not mean that there is no restriction whatsoever for the individual in the manifestation of the generally guaranteed freedom of conviction, conscience, thought and public expression of thought. The boundaries of manifestation of this freedom for the individual are in the legally sanctioned actions, irrespective of whether they concern criminal or civil legal sanction. Hence, a constitutional-legal dispute whether there is a violation of the constitutionally guaranteed freedom of public expression of thought through the sanctioning of its manifestation, is reduced to a constitutional-legal assessment whether such sanction has violated the very content of the constitutionally guaranteed freedom of the individual to state his opinion publicly without any restriction, or it is a sanctioned action which, although having as its occurring form the public expression of thought, has actually lost the sense of freedom of thought and public expression of thought which is guaranteed and protected by the Constitution, moving into an action violating other constitutionally protected freedoms, rights and interests.

While freedom of expression is protected in international documents, it is also restricted. Namely, under Article 12 of the Universal Declaration of Human Rights: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
These freedoms and rights are also governed by Article 18 of the Universal Declaration under which everyone has the right to freedom of thought, conscience and religion, and under Article 19 of the Declaration everyone has the right to freedom of thought and expression, with that that under Article 29 paragraph 2 of this Declaration in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Pursuant to Article 17 of the International Covenant for Civil and Political Rights: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Under Article 19 of the International Covenant for Civil and Political Rights:

“Everyone shall have the right to hold opinions without interference.

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided for by law and are necessary:

a) for respect of the rights of reputations of others;
b) for the protection of national security or of public order (ordre public), or of public health or morals.”

Under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms: “Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others in a democratic society”.

Pursuant to Article 10 of the Convention:

“Everyone has the right to freedom of expression, this right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The International Covenant for Civil and Political Rights and the European Convention on Human Rights take as a starting point the right of the individual to freely manifest his conviction and conscience and to freely express his thought, without any restriction and in any form, but at the same time refer to the restrictions of this freedom, which must be expressly defined by law and which are required, that is, necessary in a democratic society in order to protect the rights of freedoms of other persons, national security or public order, health or morals.

Freedom of thought and public expression of thought is a subjective right which is permanently linked with human personality. The guarantee of this freedom in the Constitution of the Republic of Macedonia is at such level that enables its direct exercise, without support of special legal regulation and at the same time enables its direct protection on the basis of the Constitution by the Constitutional Court, pursuant to Article 110 paragraph 1 line 3 of the Constitution. Also, the Constitution of the Republic of Macedonia does not contain even a special or general legal reservation which would define the limits of the exercise of the freedom of thought and public expression of thought, owing to which its limit should be sought in the comprehensiveness of the Constitution and its determinations, taking into consideration thereby the international documents ratified in accordance with the Constitution.

This high level of guarantee of the freedom of thought and its public expression in the Constitution of the Republic of Macedonia may not be valid without any limits, as interpreted in international law. With a view to securing common life, the legal order sometimes must restrict the freedom of the individual in order to protect the freedom of others, that is, to restrict its validity in content.

It is not disputed that the issue of the freedom of expression and its restriction or misuse is very sensitive, in particular when that freedom should be balanced with the right to privacy, honour and reputation, as a result of which it should be defined in each concrete case.

In this concrete case, through the taken court decisions the court sanctioned the publicly expressed opinion of the applicant Frchkoski as a measure it considered to be necessary for the protection of the honour, reputation and authority of another citizen, since by taking an advantage of the right to freedom of public expression the applicant Frchkoski endangered a protected right of another citizen, in this concrete case of the person Shkarikj.

Hence, it is necessary to make an analysis of the sentence and sanction of Ljubomir D. Frchkoski for both criminal offences separately, and in the direction of whether the sentence and sanction for the criminal offences of LIBEL and INSULT are a justified restriction of his freedoms and rights, or that is not the case, that is, whether the courts achieved a fair balance between the need for protection of the reputation and honour of the injured party and the freedom of expression of the applicant in the context of the circumstances of the case.

In the analysis of both situations, according to the Court it is required to take into consideration that the contested column refers to the commenting on the nomination of Mr Gjorge Ivanov for President of the Republic of Macedonia by VMRO-DPMNE, with an apparent stance of the author against that choice and therefore, according to the Court, it should be treated as a text that is an integral part of a debate on an issue of public interest. The election of a President of the state is certainly an issue of a priority political public interest. Hence, the assessment of the incriminating part of that column, and the assessment of the reasons of the courts presented as a ground for the sentencing judgment in the interest of protecting the honour and reputation of the injured party, should take place in that context.

1. Regarding the criminal offence of LIBEL, first of all it is necessary to remove one incorrect perception. Namely, the applicant complains in particular of the circumstance that he was not able to derive evidence, before the courts, connected with the relations between the injured party and Mr Ivanov, and the relations between him and Mr Gjorge Ivanov. Such assessment about the relations in which these persons were is also contained in the judgment of the courts. However, it is not the task of the Constitutional Court to establish and declare what the relations between these persons were (these persons know between themselves). What should be assessed for the purposes of decision-making whether in this case the courts reached a fair balance of the right to honour and reputation of the injured party and the freedom of expression of the applicant are the answers to the following questions:

– Is the statement that the injured party, Mr Shkarikj, was against the election of Mr Ivanov for an Assistant in the given time a statement of fact and, if so, is it true or not;
– Does the expression of that fact in the contested column have some function in the public debate, such as the debate for a candidate for head of the state; and
– Does the expression of that fact in public may objectively affect the honour and reputation of the injured party.

a) According to the Court, it may not be disputable that the incriminating statement is a statement for the existence of a fact and that, by itself, its truthfulness may be proven. It seems that this is also not disputable for the applicant, who, in his column, expressly indicates the proof about the existence of that fact – namely the record from a session of the academic council at which the injured party was allegedly against the election of Mr Ivanov. Such procedure objectively reinforces the assurance of the statement and contributes to a strong belief for the reader that the facts presented are true.

In this context, the first priority for the courts was to establish the truthfulness of the incriminating statement, as a ground to establish whether in this case the essence of the criminal offence of Libel exists. Those courts established that the injured party had not attended at all the academic council at which a decision-making had been taken about the election of Mr Ivanov, and therefore the injured party could not have been against the election. While the applicant, in that procedure, noted that there had also been other sessions of the academic council at which the same issue had been debated, he did not indicate a possibly another record as a direct proof of the truthfulness of his statement. The indications of the applicant that he had actually obtained such knowledge from the cooperation with Mr Ivanov and therefore, owing to the closeness with him, he knew who had been in favour of or against him at the Faculty, were not regarded by the courts to be relevant and they assessed that the applicant’s statement was not true, that is, that there was no evidence to the contrary.

This court sees no reason not to sustain this finding of the courts. Although the Constitutional Court is not competent to reassess the facts in the criminal case in the role of an instance court, in the context of the protection of freedom of expression it, nevertheless, has the right and obligation to assess whether the courts enabled the defendant to prove the truthfulness of the incriminating statement. In this context, according to the Court the applicant had a possibility during the entire procedure to present evidence about the truthfulness of his statement. In an absence of a piece of evidence which would categorically corroborate the truthfulness of the statement, or would demonstrate a strong ground to be considered as such, what remains for this court is but to accept the finding of the court that the statement was untrue.

b) Although the column is part of a public debate, the question is whether the presentation of that data about the relation of Mr Shkarikj to Mr Ivanov in the given situation has some influence on or relevance for the public as a contribution to better perceiving the subject-matter of the public debate (the nomination of Mr Ivanov and the stances on him). The question is relevant since in such context sometimes it is possible for the public interest to require a higher tolerance threshold for statements that affect individuals and their personal value. This is not such a case.

According to the Court, the circumstance whether Mr Shkarikj was against the election of Mr Ivanov as an Assistant at the Faculty of Law, does not provide any relevant information to the public to form an opinion about that candidate for president of the state and to assess whether it will support him or not. The incriminating statement simply presents claims for facts for certain attitude of Mr Shkarikj to Mr Ivanov in a precisely defined situation in the past. In other words, according to this Court, such statement is not in favour of the debate on the issue of interest to the public, but has a purely private context, that is, is focused on one natural person and his actions. Thereby, the Court took into consideration the applicant’s statement that the part of that text was only reaction to Mr Ivanov’s public statement that he did not owe anything to anyone for what he had achieved in his life. What this Court finds to be undisputed is that the indication of one’s own name and the name of another person as the persons to whom the candidate owes is a legitimate answer which contains information on the person that is the subject-matter of the public debate, although that reaction is personally motivated. However, in the assessment of this Court, that does not change the fact that the presentation of the action of Mr Shkarikj does not speak anything about the presidential candidate, although speaks to him, but speaks about Mr Shkarikj.

In this context, the Court finds unacceptable the statements in the application that in the criminal procedure the rights to protection of the image, dignity and reputation of the private prosecutor Shkarikj were absolutised vis-à-vis the general public interest, that is, the legitimate aim of the public for information on issues of public character, whereby the applicant had suffered a severe violation of his constitutionally guaranteed freedoms and rights. From the aspect of these statements, according to this Court, no observation may be made to the courts that they without justification focused on the legitimate aim for the protection of the reputation and honour of the citizen, and ignored the general public interest, since the relation professor-mentor and candidate for an assistant and their mutual relation (whether positive or negative), is not at all in relation with the general public interest, and hence, their presentation in public is irrelevant and unjustified, especially if untrue. Hence, according to the Court, the presentation of facts about relations between natural persons that cannot have relevance and are not of necessary interest for the society and wider public may not be covered with freedom of expression, if they are not true and infringe upon the rights of others. This applies equally to the statements that the court ignored the relevance of the free printed medium and its role in the democratic society and made an unbalance of the interest, by awarding in this case an excessively high and disproportionate protection of the honour and reputation of the private prosecutor.

c) There is no doubt for the Court that the presented statement objectively affects the honour and reputation of the injured party. Namely, honour and reputation are not acquired only by acting in the public sphere, but especially with the relation to other people where respect, friendship, collegiality, sincerity, etc., are benefactors that create the integrity of social relations. Hence, according to the Court, the publicly expressed untrue statement about the relation of one person with another, with which their relations based on the said benefactors may be questioned, as well as the perception of the public about the conduct of the person in given situations, may be the source of violation of the honour and reputation of the individual as a friend, colleague, mentor, etc.

In this context, the Court did not sustain the statement in the application that the stance whether somebody supported somebody else or not, was a personal stance of each human and that the expression of that stance in front of somebody else in no case meant violation of somebody’s reputation, and hence that action could not be libel. Neither may be accepted his statements noted as questions and conclusions in the sense that Shkarikj was not a public figure and did not perform a public office and the applicant found it unclear in what way the first instance court had established that the column had influenced him and what severe consequences he had sustained and before which public his honour and reputation had been violated, given the fact that the private prosecutor was not a public figure. This for reasons that the protection of the freedoms and rights are equally guaranteed to everyone and everybody, irrespective of whether they are citizens performing public offices or not, which means that everyone has the right to freedom of expression, irrespective of whether he is a regular columnist or not, whether he is a public figure or not, as on the other hand everyone has the right to respect for his privacy and family life, regardless whether he is a public figure or not. The classification of citizens into figures with public offices or citizens who do not belong in such classification may have an impact only on the determination of the threshold of acceptable criticism for these persons, which is higher for high-ranking public servants, and lower for private persons, which on its hand is reflected and has an impact on the level of protection of the freedoms and rights of the citizen, that is, on the level of interference of the state in the restriction of the freedoms and rights, when it is justified and in concordance with law.

For these reasons, the Court found that the interference of the state is proportionate with the legitimate aim for the protection of the reputation of the injured party and, in the judgment of this Court, the courts based their decisions on an acceptable assessment of the relevant facts and the court reached a fair balance between the two rights and did not interpret the principle of freedom of expression too restrictively, nor did it interpret the aim for the protection of the reputation of the injured party too extensively. The Court also found that the severity of the fine pronounced for libel is a moderate and proportionate measure within the circumstances of the case.

Taking into consideration the aforementioned, the Court found that establishing all legally relevant facts and circumstances and taking the challenged decision in the part for the criminal offence of “libel” the first instance and second instance courts acted within the frameworks of their court competences, owing to which there may not be said that the right to freedom of public expression of thought was violated.

2. With regard to the criminal offence of “Insult”, the courts also established that the defendant had committed that offence since in the column he had used offensive terms about the private prosecutor. Namely, the courts found to be undisputed that from the very column headlined “Frankfurt School vis-à-vis Demir Hisar School”, and then the text in the column with the words “In our country as a matter of fact the dominant school which is being reinforcing itself is the Demir Hisar School”, it arose that the defendant used those terms as a metaphor for the Psychiatric Hospital located in Demir Hisar, with a view to qualifying the mentors of the person Gjorge Ivanov, that is, the very private prosecutor Shkarikj as his mentor, as mentally ill persons, exposing the private prosecutor to a public ridicule, wishing to degrade his reputation as a person and promoter of the person Ivanov. Thereby, the courts did not sustain the defendant’s defence that those terms had not been used in view of the private prosecutor in that direction, but that the term “Demir Hisar School” had been used as comparison with the “Frankfurt School” which was a known theoretical Marxist school of the last century, and therewith he had wished to stress the huge difference between the levels of debate in those schools, and not as a metaphor for the mental hospital located in Demir Hisar. The courts did not accept this defendant’s defence, since from the verbal and material pieces of evidence derived at the main hearing it was established beyond any doubt that the terms used referred to the private prosecutor Shkarikj for reasons that in the text itself the last name of the private prosecutor was pointed out and the category was blanched with Obama, which had been used by the private prosecutor himself when proposing the person Gjorge Ivanov as a presidential candidate, and the criminal offence of ‘Insult’ was committed by the person who would insult somebody else, whereby what is considered as an insult is a statement (verbal or written) or conduct which degrades and humiliates other person, who may be noted in the statement expressly, but to be sufficient from the content of the statement to be able to establish undoubtedly to whom it is related. Hence, the courts established without any doubt and ambiguity that the term “Demir Hisar School” had been used as a metaphor for the Psychiatric Hospital located in Demir Hisar, and that thereby the private prosecutor had been publicly insulted.

In the analysis of the question about the possible violation of the freedom of expression in the context of the conviction for the criminal offence of ‘Insult’, it is necessary to make an analysis whether the incriminating part with regard to the criminal offence of ‘Insult’ implies connection with the person Shkarikj. While from the wholeness of the column it arises that the applicant presents his own value stance about the nomination of Mr Ivanov for president of the state, from the content of the statement in the column about the situation with the relations through the term used in the heading “Frankfurt School vis-à-vis Demir Hisar School” and then in the text of the column with the words “In our country as a matter of fact the dominant school which is being reinforcing itself is the Demir Hisar School”, and then in the continuation of the text of the column “… and as in any comedy of public, with an intention to help him the mentors immediately further buried him declaring him to be a “blanched” Obama…”, according to the Court the reference to the “mentors” recognises an allusion of the person Shkarikj as a mentor of the person Ivanov and supporter of his nomination, and thereby suggestion to the reader to create a negative value stance for the person Shkarikj, and an insult for the person Shkarikj, recognised and appreciated in his long-standing profession as a university professor. In this direction, while the applicant in his column speaks about the nomination of Mr Gjorge Ivanov for president of the state, and it is undisputed that the presidential elections are of public interest, according to the Court in this concrete case in the expression of his opinion the applicant interfered into a private sphere, that is, into the integrity of an individual who is not a public figure, and therefore according to the Court it infringes upon the rights of others and may not be covered with freedom of expression.

For these reasons, while the Constitutional Court is not competent to reevaluate the facts in the criminal case in the role of an instance court, in the context of the protection of freedom of expression it assessed the applicant’s statements in the application that he had only wished to make a comparison of two schools, juxtaposed in quality, that is, to make a parallel of the political dialogue ruling in the Republic of Macedonia vis-à-vis the presidential elections and that his use of the term “Demir Hisar school” had not meant at all the psychiatric hospital located in the city of Demir Hisar, but the term had been used as a synonym for a school from a province. However, this Court does not find reasons not to sustain the finding of the courts for different facts than the ones established.

Hence, according to the Court, in this concrete case it may be justifiably concluded that the terms used in part of the column point to the private prosecutor and imply an insult for him. Consequently, the Court assessed that in this case the courts had also considered the individual’s private interest when sanctioning the expressed opinion.

For these reasons, the Court found that establishing all legally relevant facts and circumstances and taking the contested decisions, in the part of the criminal offence of “Insult” the first and second instance courts had acted within the frameworks of their court competences. Consequently, the Court found that in this case there cannot be a violation of the right to freedom of thought and public expression of thought either, since using the right to freedom of public expression the applicant Frchkoski threatened another protected right of another citizen, in this concrete case of the person Shkarikj.

5. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

6. The Court took the present decision, with regard to the criminal offence of “Libel”, in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Dalishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Igor Spirovski, Dr Gzime Starova, Mr Vladimir Stojanoski, and Dr Zoran Sulejmanov, and with regard to the criminal offence of “Insult” the Court took the decision with a majority of the votes in the same composition. (U.br.147/2011)

Separate opinion

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