Decision U.no.27/2013

U.no.27/2013

On the basis of Article 110 line 3 of the Constitution of the Republic of Macedonia and Articles 56 and 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 16 April 2014, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. The application of Naser Selmani from Skopje, Natasha Stojanovska from Skopje, Frosina Fakova from Prilep, Snezhana Lupevska from Skopje, Biljana Bogdanovska from Skopje and Toni Angelovski from Skopje for the protection of the freedoms and rights referred to in Article 110 line 3 of the Constitution related to the freedom of public expression filed through the Law Office of Filip Medarski from Skopje IS REJECTED.

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

3. The Association of Journalists of the Republic of Macedonia (ZNM) represented by Naser Selmani in the capacity of the President of ZNM, Naser Selmani from Skopje, Natasha Stojanovska from Skopje, Frosina Fakova from Prilep, Snezhana Lupevska from Skopje, Biljana Bogdanovska from Skopje and Toni Angelovski from Skopje, filed an application to the Constitutional Court of the Republic of Macedonia, through the Law Office of Filip Medarski from Skopje, for the protection of the freedoms and rights related to the freedom of public expression.

According to the allegations in the application, on 24 December 2012, a larger group of journalists including the applicants were present in the gallery of the Assembly Hall of the Assembly of the Republic of Macedonia to attend the session at which the budget for 2013 was supposed to be adopted. The passing of the Budget was of exceptional interest to the public because there was a conflict between the Representatives from the government and the opposition over whether the procedure was observed for the adoption of the Budget. At one point, a larger group of Assembly security staff approached the gallery and began to remove the journalists from the gallery. Some journalists reacted to this kind of removal from the gallery, for a reason that the conflict situation in the assembly hall in those moments had escalated and the public had an interest in being unobstructedly informed about these developments.

Some of the journalists, among whom were also the applicants, opposed to being removed from the gallery, following which they were forcibly ejected by the use of physical force. Their questions as to who ordered their forcible ejection and what was the ground and the need for that were not responded. Thus, they were prevented from doing their professional duty to report on the event, where there was a huge legitimate public interest.

After the event, the Association of Journalists of Macedonia reacted to the Sector for Internal Control and Professional Standards of the Ministry of the Interior and asked to have the identity of the persons who had thrown the journalists out of the hall established as well as the identity of the persons who had given the order for that with a view to sanctioning them. The response stated that on the critical day the President of the Assembly for security threats had been evacuated from the Assembly and on the basis of Article 43 of the Law on the Assembly he had authorised the police officers responsible for the security in the Assembly to establish order and to create conditions for the start of the plenary session. The response stated that there had not been found excessive use of force or abuse of powers, that the actions of the police officers had been in accordance with the law and the identity of the persons who had ejected the reporters had not been revealed.

The Association of Journalists requested in writing from the President of the Assembly to shed light on the incident and sanction those responsible. To this request the public announcement of the President of the Assembly was forwarded to the Association of Journalists. The statement noted that the emptying of the gallery had been ordered to prevent a larger-scale incident and that the President expressed regret for the event with the reporters.

On 25 December 2012, in a statement for the media Prime Minister Nikola Gruevski expressed regret for the removal of the journalists from the gallery of the Assembly of the Republic of Macedonia, that it should not have happened and that an assessment had been made, which, according to him, should not have been adopted.

In connection with the event the Association of Journalists applied to the Ombudsman, requesting him to find that this case had violated the right to freedom of expression and right to information. The Ombudsman informed ZNM that he had no jurisdiction to act upon the case.

The application states that the act of forcible expulsion of journalists from the gallery of the Assembly Hall, violated the freedom of expression guaranteed by Article 16 of the Constitution and Article 10 of the European Convention on Human Rights. The right to receive and impart information was an integral part of the freedom of expression and with the right to public information encompassed the right of the media to unobstructedly perform its activities and inform the public. The application cited the views of the European Court of Human Rights relating to Article 10 of the Convention (cases Sunday Times v. UK, Lingens v. Austria, News Verlags GmbH & Co. KG v. Austria) on the role of media in a democratic society. It states that restrictions on freedom of expression must be prescribed by law, be necessary in a democratic society, aiming at the protection of specifically defined values.

In this case the intervention of the state with the ejection of the reporters from the assembly hall and preventing them to follow the course of the session did not meet the condition of being stipulated by law and necessary in a democratic society. Article 43 of the Law on the Assembly which was invoked by the Interior Ministry and President of the Assembly did not legitimate the intervention of the assembly security, since that article (quoted in the application) did not give a possibility for intervention of the assembly security as in this case with forced expulsion of the journalists from the assembly hall and that it was an imprecise norm that did not meet the test of predictability or clarity that was required by the Court in Strasbourg for a norm to be law and provide a basis for restricting freedom of expression.

The intervention was in contradiction of a series of other provisions of the Rules of Procedure of the Assembly (Articles 2, 225, 227) and Article 70 of the Constitution of the Republic of Macedonia which related to the publicity of the sessions of the Assembly. The removal of the journalists from the assembly hall constituted essentially exclusion of the public from the session of the Assembly, which under Article 70 of the Constitution is only possible with a decision by a majority vote of the total number of Representatives. Hence, the actual intervention could not be treated to have been prescribed by law only because no decision for removal of the public had been taken by a two-third majority vote, but also because of the fact that beyond this there had been no other legal option for the removal of the reporters from the assembly hall as in the present case.

The intervention of the State does not meet the test of necessity and proportionality in a democratic society, which was established in the case law of the Strasbourg Court.

The session that the reporters were unable to attend, their inability to report on the events taking place during the session (the conflict situation which resulted in the forcible expulsion of the Representatives from the opposition) and the course of the Assembly session that followed thereafter, was one of the most important sessions of the Assembly during the year for which there was evident public interest in monitoring and reporting. With the violent removal of the journalists from the assembly hall it was clear that it constituted a disproportion between the intervention (interference) of the state and the legitimate objective that with this intervention should have been achieved, as a result of which such intervention could not be treated as “necessary in a democratic society “in terms of the ECHR.

Especially important is that the journalists did not contribute to the conflict situation in any way, because they did not in any way disrupt the order in the Assembly building, had no direct contact with the President of the Assembly nor with the Representatives, so it is not clear why they were removed in order to restore order, when they had no part in its eventual disruption. The explanation given by the Ministry of the Interior that the decision to remove the journalists had been made due to  violation of the order in the hall by a Representative was absurd, because in such cases the security could have, if needed, removed that Representative, without any hindrance from the attending journalists. The fact that information was coming from the outside about possible escalation of the protests, and a violent breaking of the police lines, which additionally complicated the security situation in the Assembly, could not be considered to be a legitimate reason for this reaction of the assembly security.

The application proposes on the basis of Article 55 of the Rules of Procedure the Constitutional Court to decide at a public hearing for which the applicants and their proxy will be invited to attend and after the hearing the Constitutional Court to find that the actions of forceable removal of the applicants from the hall of the Assembly of the Republic of Macedonia on 24 December 2012 by which they were prevented to monitor and report on the developments in the hall, violated the freedom of expression guaranteed by Article 16 of the Constitution and Article 10 of the European Convention on Human Rights.

4. At its session, on the basis of the evidence that was submitted with the application for the protection of rights and freedoms and the response received from the Assembly of the Republic of Macedonia, the Court established the following facts:

On 24 December 2012 a session was scheduled in the Assembly of the Republic of Macedonia in which the Law on Adopting the Budget of the Republic of Macedonia for 2013 should have been enacted.

For the session there was great interest by the public and media, given the importance of the Budget and the fact that in the days prior to the holding of the session, specifically during November and December, there were multiday, intensive, and at times tense discussions between the Representatives from the Assembly majority and the opposition ones on the proposed Budget within the local committee on finance and Budget in the Assembly of the Republic of Macedonia.

On 24 December 2012 the representatives of the media, among whom were the applicants, were in the Assembly building, some of them were in the press centre, some in the corridors of the Assembly, and part in the gallery of the Assembly Hall in order to follow the session.

When trying to start the scheduled plenary session, in the hall there was a violation of the order by a group of Representatives who began to destroy the technical equipment in the hall, blocked the Assembly rostrum, surrounded the President of the Assembly preventing him from execution of his function. The surrounding and physical reaching for the President was accompanied by insults and threats.

Due to security threats, the President of the Assembly was taken out of the hall by the security, but the incidents in the hall continued.

Pursuant to Article 43 of the Law on the Assembly of the Republic of Macedonia, the President of the Assembly approved the police officers responsible for the security in the Assembly to restore order in the assembly hall and create conditions for the start of the session. The Assembly security estimated that the gallery needed to be emptied, for the safety of those present in the gallery and the people who were in the hall.

All present in the gallery, including the applicants, were asked by the security to leave the gallery for safety reasons and to follow the developments from the press center.

Most of the journalists acted upon the recommendation, and smaller part of the present including the applicants began to confront the Assembly security, did not act upon the orders of the police officers and gave active and passive resistance, whereby one of the police officers was injured in the leg.

The applicants along with the other representatives of the media after leaving the hall remained inside the Assembly and from the other rooms (press center, hall adjacent to the gallery) could follow the live broadcast of the session.
Simultaneously outside the Assembly of the Republic of Macedonia there were gatherings of two opposing groups whereby several people were injured.

The session on 24 December 2012 was public and available for monitoring. It was broadcast from start to finish in live coverage on the Assembly channel of the Macedonian Radio and Television via web streaming on the Assembly website. After the conclusion of the session a video of it was attached and available to all visitors to the website of the Assembly, and also the shorthand notes.

The next day after the event, in a statement made before the media, the Prime Minister Nikola Gruevski articulated regret for the removal of the journalists from the gallery of the Assembly of the Republic of Macedonia: “Probably in the entire chaos such an assessment was made which in my opinion should not have been made. However, such an assessment was made and that’s what happened.”

On 26 December 2012 the Association of Journalists of Macedonia filed a petition to the Ministry of the Interior – Sector for Internal Control and Professional Standards, requesting to identify the people who were part of the Assembly security and to initiate procedure for establishing their responsibility and to disclose the identity of persons who had given the order to the Assembly security to forcibly remove the journalists and to determine their liability.

The Interior Ministry replied that from the checks conducted it could not be established that excessive use of force and abuse of powers had been applied, that is, that the actions of the police officers had been in accordance with the Law on the Assembly, the Law on the Police, the Code of Police Ethics and bylaws of the Ministry.

On 26 December 2012 the Association of Journalists also requested in writing from the President of the Assembly of the Republic of Macedonia Mr. Trajko Veljanovski to provide information on who had ordered the removal of the journalists, which was the legal basis of the decision and to take legal action for the purposes of clarification of the incident.

On 26 December 2012 the President of the Assembly Trajko Veljanoski gave a press statement which said among other things:

“Considering that it was announced that the opposition would not allow the budget to be adopted and protests and incidents were announced, on the basis of the Law on the Assembly Article 43 I asked from the Assembly security to ensure a regular course of the session. I want to remind that the measures required are planned and taken by the members of Assembly security. Let me remind that at the beginning without bans journalists were present in the gallery of the plenary hall. After the first incident happened, when I, as the President of the Assembly was attacked, when the technical equipment was also destroyed, and the security had to take me out of the plenary hall, the competent Assembly security, given that the gallery is in fact part of the plenary hall, made an assessment that the gallery must be empty so that no major incident could happen.

For this assessment when it comes to the presence of reporters, I express my condolences as the president. I shall seek that the competent institutions conduct proceedings to establish liability for the event, and I want to once again appeal that I shall continue to make efforts for maximum openness and transparency of the Assembly.”

On 26 December 2012 the Association of Journalists addressed the Ombudsman in writing and asked him to initiate proceedings on this case and find that the case violated the right to freedom of expression and right to information.

The Ombudsman informed in writing that he asked the Interior Ministry to determine whether the officers from the Assembly security had acted in accordance with the rules for maintaining order in the Assembly building and the response by the Ministry of Interior but that despite the expressed concerns and position of the Ombudsman about the importance of freedom of information, he had no authority to act.

The Association of Journalists through its President Naser Selmani, he in his personal capacity, Natasha Stojanovska, Frosina Fakova, Snezana Lupevska, Biljana Bogdanovska and Toni Angelovski, through the Law Office of Philip Medarski, on 22 February 2013 filed an application with the Constitutional Court for the protection of the freedom and right to public expression of thought.

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

Under Article 51 of the Rules of the Constitutional Court of the Republic of Macedonia, each citizen who believes that an individual act or action infringed his/her right or freedom set out in Article 110 line 3 of the Constitution of the Republic of Macedonia may request protection from the Constitutional Court within 2 months from the date of delivery of the final or effective individual act, that is, the day of finding out about the action with which the violated was made, but not later than 5 years from the date of its taking. In the application, under Article 52 of the Rules, it is necessary to state the reasons why protection is sought, acts or actions with which they are violated, the facts and evidence on which the request is based, and other data necessary for the decision of the Constitutional Court.

Pursuant to Article 8 paragraph 1 line 1 of the Constitution of the Republic of Macedonia, basic freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution are one of the fundamental values of the constitutional order of the Republic of Macedonia.

Pursuant to Article 16 of the Constitution, which relates to civil and political freedoms and rights, the freedom of personal conviction, conscience, thought and public expression of thought is guaranteed. The freedom of speech, public address, public information and the establishment of institutions for public information is guaranteed. Free access to information and the freedom of reception and transmission of information are guaranteed. The right to reply via the mass media is guaranteed. The right to a correction in the mass media is guaranteed. The right to protect a source of information in the mass media is guaranteed. Censorship is prohibited.

Article 10 of the Council of Europe European Convention for the Protection of Human Rights and Fundamental Freedoms envisages that 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. 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.

In connection with the publicity in the work of the Assembly, the presence of journalists and maintenance of order in the Assembly, the following provisions of the Constitution, Law and the Assembly and the Rules of Procedure of the Assembly are relevant:

Article 67 paragraph 2 of the Constitution stipulates that the President of the Assembly represents the Assembly, ensures the application of the Rules of Procedure of the Assembly and performs other duties determined by the Constitution and Rules of Procedure of the Assembly.

Under Article 70 of the Constitution, the sessions of the Assembly are public. The Assembly may decide to work without the presence of the public by a two-third majority vote of the total number of the Representatives.

Under Article 43 paragraph 1 of the Law on the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” no. 104/2009), the maintenance of order in the Assembly building and the premises in which the Assembly works is secured by a special service. The persons from the special service for maintaining the order in the Assembly premises wear insignia of the Assembly of the Republic of Macedonia on a noticeable place of their clothes.
Under paragraph 2 of this Article, the authorised officials of the state government bodies cannot without the approval of the President of the Assembly have access to the premises referred to in paragraph (1) of this Article, or take action against the Representatives, the workers in the Service and other citizens.

Paragraph 3 of the said Article of the Law stipulates that carrying weapons in the Assembly building is not allowed except for persons authorised to maintain order in the building.

Pursuant to paragraph 4, the President of the Assembly shall, after consulting the Vice Presidents and coordinators of the parliamentary groups, decide and adopt measures on the liability for a breach of order in the Assembly by Representatives and external entities taking part in the work of the Assembly.

Under Article 91 of the Rules of Procedure of the Assembly of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia” nos.91/2008, 119/2010 and 23/2013) the President of the Assembly is responsible for the maintenance of the order at the session. The President of the Assembly may warn and take away the floor from the Representative for violation of the order of the session.

Under Article 92 of the Rules of Procedure, the Speaker shall warn the Representative if with his/her behavior, by taking the floor when the president did not give him the floor, by interrupting a speaker or by similar procedure he/she violates the order of the session. The President of the Assembly shall take the floor away from the Representative when he/she with his/her speech at the session violates the order, and at the same session he/she is has been called upon twice to respect the order of the session.

Article 93 of the Rules of Procedure stipulates that the President of the Assembly removes a Representative from the session when, despite the warning, that is, taking away the floor, he/she disturbs the order at the session or uses expressions that undermine the dignity of the Assembly. The Representative who is removed from the session is obliged to immediately leave the hall in which the session is held. If the President of the Assembly cannot maintain the order at the session, he/she shall order a short interruption of the session.

Pursuant to Article 94 of the Rules of Procedure, the provisions for maintaining order at the session of the Assembly shall apply to all participants in the session.

Under Article 225 of the Rules of Procedure of the Assembly, the Assembly provides information to the public on the work of the Assembly and working bodies, as well as the permanent delegations to international organisations.
Under Article 227 of the Rules, representatives of the media may, in accordance with the regulations of the internal order of the Assembly, attend the sessions of the Assembly and meetings of working bodies to inform the public about their work.

6. Freedom of expression is a subjective right that is inextricably linked to human personality and is a prerequisite for the exercise of many other rights and freedoms. The guarantee of this freedom in the Constitution of the Republic of Macedonia is at such a level that allows its direct exercise, without the support of special legal regulation while allowing its direct protection on the basis of the Constitution by the Constitutional Court, under Article 110, paragraph 1, line 3 of the Constitution.

Freedom of the media as an integral part of freedom of expression, which inter alia includes the freedom of public information and the freedom to receive and impart information, also are foundations of a democratic society because free communication of information and ideas on political and other social issues of public concern is essential for any society. This implies freedom of the media to get information on the basis of which they can perform their role, to comment and report on all important issues of public interest without restrictions in order to inform the public.

Neither does the Constitution of the Republic of Macedonia contain any special nor general legal reservation that would define the limits on the exercise of freedom of thought and public expression of thought, which is why its border should be sought in the wholeness of the Constitution and its provisions, thereby taking into account the above mentioned international documents ratified in accordance with the Constitution.

This high level of guarantee of freedom of thought and its public expression in the Constitution of the Republic of Macedonia, interpreted in international law cannot be applied indefinitely. In order to secure the community, the legal system must sometimes limit the freedom of the individual to protect the freedom of others.

From the above provisions of the Law on the Assembly of the Republic of Macedonia and the Rules of the Assembly of the Republic of Macedonia it arises that the publicity in the operation of the Assembly is provided by the presence of reporters at the sessions of the Assembly and working bodies. From these provisions (Article 91 of the Rules of Procedure of the Assembly of the Republic of Macedonia) it also follows that the President of the Assembly is responsible for the maintenance of the order of the sessions, who may take more measures for a violation of the order of the session (reprimand, taking away the floor of a Representative, removal of the Representative from the session). The provisions for maintaining order at the session of the Assembly apply to all participants in the session.

According to the assessment of the Court, the action to remove the journalists from the gallery of the Assembly Hall is an interference with the right of journalists to unobstructedly perform their activities and to inform the public about an event that is undoubtedly of major importance for the citizens of the Republic of Macedonia – developments in the Assembly in connection with the adoption of the Budget for 2013 and for which the public had a great interest to follow and be informed.

However, it should be taken into consideration that the exercise of freedom of public information and freedom to receive and impart information, as guaranteed by Article 16 of the Constitution of the Republic of Macedonia and Article 10 of the European Convention for the Protection of Freedoms and Rights as integral elements of freedom of expression are not absolute, that is, they are subject to restrictions set forth in paragraph 2 of Article 10 of the European Convention. Pursuant to paragraph 2 of Article 10 of the European Convention, these restrictions must be prescribed by law and be necessary in a democratic society for the accomplishment of any of the legitimate aims listed in this provision, such as protecting security, public safety, to protect against disorder or crime, and to protect the rights of others.

The legal basis for the application of the contested measure is Article 43 of the Law on the Assembly that determines who is responsible for maintaining order in the Assembly building – special Assembly security service – and who authorises the President of the Assembly to decide and adopt measures for accountability for violation of the order in the Assembly by the Representatives and external entities that participate in the work of the Assembly.

In assessing the reasonableness and necessity of the application of the contested measure, that is, the action of removing the journalists from the assembly hall, the starting point must be the specific circumstances of the case, that is, the events of 24 December 2012 inside the Assembly building, that is,, in the hall for sessions, as well as the riots and disturbances of order taking place in front of the Assembly building. Namely, what must be considered is the tense atmosphere in the Assembly Hall which practically precluded regular and normal start and course of the session. In this sense, one should take into account in particular the fact that the said situation resulted from the circumstance that following the entry of the President of the Assembly in the plenary hall in order to start the scheduled session, he was attacked by a large group of Representatives and immediately taken outside the hall by the security. In such an occurring situation, accompanied, in objective terms, with a whole range of incidents, disarray, breaking of the inventory, which culminated with throwing objects around the room and towards the gallery, the security estimated, and in the interest of protecting the integrity and lives of the journalists present in the gallery, to act in such a way as to refer them to a safer place in which their lives would not be endangered. This assessment of the Assembly security, which is of solely security and in the function of protecting the persons present in the Assembly, should in no way be put in correlation with the guaranteed right of journalists to be present in the Assembly and to report on events to which they themselves were also direct witnesses. After all, the present journalists, most of them on the same day, submitted and published their reports in the evening editions of their media, suggesting that in the present case there cannot be a violation of freedom of expression of the present group of journalists.

This practice of the security bodies is a common way of procedure in these and similar situations when it comes to threatening or guaranteeing the security of the representatives of the media in reporting from crises areas, demonstrations, and other potentially dangerous events, or the presence on incident situations with a potential security risk.

The very fact that since the morning of December 24, 2012 journalists were present in the Assembly and in front of the Assembly building and were reporting on the developments suggests that despite announcements and expectations that the discussion and adoption of the Budget would take place in a tense atmosphere, journalists were given access to the Assembly building and the gallery of the Assembly Hall in order to perform their job and to inform the public about the session. That means that there was no advance intent to obstruct the journalists and prevent them from reporting on the session. Also, after leaving the gallery hall, the applicants and other media representatives had the opportunity to stay in other rooms in the building – the press center which is equipped with computer equipment from where they could follow the live broadcast of the session, which broadcast also went live via web streaming on the Assembly website and the assembly channel of MRT.

From the above, it may be inferred that the very presence of reporters in the hall and direct reporting does not make a session public, since there are more ways that allow publicity of the work of the Assembly which were applied in this case. Physical removal of journalists from the gallery of the Assembly Hall which was imposed by the concrete situation of escalating chaos and disorder in the hall was intended to protect them and to ensure order in the hall, not to prevent the exercise of their activity – informing the public – and to restrict their freedom of expression.

Consequently, the Court found that the violent removal of journalists – applicants from the gallery hall of the Assembly of the Republic of Macedonia on 24 December 2012 had not violated their freedom of expression.

7. On the basis of what has been stated, the Court decided as in item 1 of this Decision.

8. The Court took this Decision with a majority vote in the following composition: the President of the Court Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

U.br.27/2013
16.04.2014
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
ELENA GOSHEVA

Separate opinion

 

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