Resolution U.no. 48/2013

U.no. 48/2013

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Article 28 line 2 and Article 71 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 18 February 2015, the Constitutional Court of the Republic of Macedonia passed the following

RESOLUTION

1. NO PROCEDURE IS INITIATED for the appraisal of the constitutionality of the wholeness and in particular the challenged parts of Article 4 paragraph 2, Article 6 paragraphs 1, 2 and 3, Article 7 paragraph 1 item 1 and item 2 in the part: “from investigations on committed criminal offences or minor offences”, Article 8 paragraph 3, Article 9, Article 18 paragraphs 1 and 2 and Article 23 of the Law on Civil Liability for an Insult and Libel (“Official Gazette of the Republic of Macedonia”, no.143/2012).

2.  The initiative for instigation of a procedure for appraising the constitutionality of Article 3 and Article 25 paragraph 3 second sentence: “If the offender is a journalist the amount of the non-material damage may not exceed 2,000 euros in denar counter-value” of the Law noted in item 1 of this Resolution IS DISMISSED.

3. Twelve associations of citizens and foundations, associated in an informal citizens’ coalition under the name of “Front for Freedom of Expression” filed an application to the Constitutional Court of the Republic of Macedonia for instigation of proceedings to appraise the constitutionality of the whole and separate provisions of the Law noted in item 1 of this Resolution.

According to the allegations in the first part of the application, the contested law in general was unconstitutional because the procedure in which it had been adopted was contrary to Amendment XXV of the Constitution, which provided that the procedure before the courts was regulated by law adopted by a two-third majority vote of the total number of Representatives. Given that the law regulated matters relating to the initiation of the procedure, deadline for filing a claim, the competent court, urgency of proceedings, provisional judicial measures, the burden of proof in the procedure, it arose that the law regulated a previously non-existent, separate civil action, and for those reasons the law should have been passed with a two-third majority vote. In that regard, it was referred to the Decisions U.br.228/2007 and U.br.149/2008, with which the Constitutional Court overturned provisions of the Law on the Banks because they regulated the proceedings before the courts.

In the second part of the application a number of specific provisions are challenged.

Article 3 of the Law stipulated the conditions for precedence of applying the European Convention on Human Rights, but only if the court could not decide on a certain issue or if it considered that there was a legal gap or conflict of the provisions of the Law with the ECHR. This was contrary to Article 118 of the Constitution and the monist approach to international law, because the challenged provision could not determine the conditions for application of international law other than those defined by the Constitution which clearly determined that regardless whether the court may decide on certain issue on the basis of the law, there was always precedence of application of the ratified international treaties.

Article 4 paragraph 2 of the Law on Civil Liability for Libel and Insult was contrary to Article 8 paragraph 1 line 3 and Article 98 of the Constitution. Laws regulating a particular area have precedence in the application before the laws governing the matter in general and containing general rules. The impugned provision foresaw subsidiary application of the Law on Obligations, Law on Civil Procedure and Law on Enforcement, and consequently the law enjoyed the quality of lex specialis. Hence, a special law lex specialis, adopted by a simple majority, derogated the provisions of the systemic laws passed by a two-third majority (Civil Procedure Code and the Law on Enforcement), which was contrary to the constitutional provisions noted.

Article 6 paragraph 1 of the Law was contrary to Article 10 of the European Convention on Human Rights. This provision did not satisfy the test of foreseeability and clarity established in the case-law of the European Court of Human Rights. Namely, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen, if necessary, with appropriate advice, to foresee, to a degree that is reasonable in the given circumstances, the consequences that may arise from certain activity (case Muller and Others v. Switzerland). The contested provision envisaged “behavior” and “otherwise” as actions for which a liability for insult was stipulated, which included all forms of manifestation of human personality, including some forms of political and artistic expression, which, under the Convention, should not be restricted in order to accomplish the legitimate purpose – the reputation of others (eg. a cartoon or pantomime).

Article 6 paragraph 2 of the Law was contrary to Articles 16 and 25 of the Constitution and Article 10 of the European Convention on Human Rights. The impugned provision for liability for insult of a legal entity and a group of people was too broad and left room for abuse, given that no legal entity was exempted. International case law required that the holders of power, the institutions and bodies of public character, the various companies owned by the state and political parties should be prohibited from filing lawsuits for insult, which was important for democracy and open criticism against the government and the liability for the holders of public mandates. The Court in Strasbourg in its case-law emphasised that a healthy democracy required a possibility for the government to be exposed to a strict control not only by competing power holders, but also by the public and the media and that the authorities at national and local levels had to tolerate criticism of the highest degree. The contested legal solution prohibited openly criticism against public institutions and political parties which were legal entities, which was censorship that was contrary to Article 16 of the Constitution. The groups that did not have legal personality also could not invoke individual reputation and their members could sue for insult only if personally identified and directly affected.

The provisions of Article 6 paragraph 3 and Article 8 paragraph 3 of the Law were in contradiction with Article 8 paragraph 1 line 3 and Article 16 of the Constitution and Article 10 of the European Convention for the Protection of Human Rights. This for a reason that they provided for objective liability of the editor or the person replacing him and the legal person, in the way that these persons could be sued for a declaration that neither had these persons an opportunity to predict nor to prohibit nor in any way to prevent its publication (eg. when the statement is given in a contact show, interview, live coverage, etc.). This was contrary to the principle of the rule of law, legal certainty and the principles of precision, predictability and proportionality.

The practical application of these provisions meant denial of the possibility for the editor, his deputy and the legal entity to distance themselves from the statement, views and claims of the author, as a result of which they would have to establish mechanisms through which the public expression of thought, speech and public appearance would be constantly restricted, thereby seriously disabling access to information, freedom to receive and impart information, which meant censorship. Thus, these provisions opened the door to restrictions on the freedom of expression contrary to the Constitution and contrary to Article 10 of the European Convention.

Article 7 paragraph 1 item 1 of the Law in the part which stipulates that there is no liability for insult if the statement is given “in the work of the Assembly of the Republic of Macedonia, in the work of the municipal councils … unless the plaintiff proves that it was made maliciously” and Article 7 paragraph 1 item 2 in the part “or other official document from investigations on committed criminal offenses or minor offenses” were contrary to Articles 9, 13, 18, 25 and 64 of the Constitution and Article 6 of the European Convention on Human Rights.

The impugned provision of Article 7 paragraph 1 item 1 introduced the accountability of the Representatives in the highest legislative house despite the constitutionally guaranteed absolute immunity for an opinion articulated in the work of the Assembly, and of the councilors in the municipalities, who, as Representatives of the people also enjoy immunity. This was also contrary to the case-law of the European Court of Human Rights which recognised the absolute immunity of the MPs for their statements made in the work of parliament (Karhuvaara and Italehti v. Finland), and for the purposes of achieving a legitimate aim – ensuring the freedom of expression of parliamentarians on matters of public interest.

The impugned provision of Article 7 paragraph 1 item 2 was contrary to the presumption of innocence under Article 13 of the Constitution for a reason that the party sued could offend in a way by presenting information contained in official documents from investigations on committed criminal offences and minor offenses even prior to such investigations be concluded by an effective and final decision of an administrative body or court, as the disputed provision contained no exceptions for the use of information contained in official documents from investigations, and thus these documents could be used even when the administrative or court procedure was not initiated at all against the person under investigation or when the investigation resulted in a procedure in which the person under investigation was acquitted of all charges. The impugned provision was also contrary to Article 18 of the Constitution which guaranteed the security and confidentiality of personal data, for a reason that all official documents from investigations on committed criminal offenses or minor offenses were considered confidential information whose use was prohibited, and thus their use before the effective conclusion of the procedure would mean violation of the personal integrity of the citizens.

Article 9 of the Law was contrary to the principle of legal certainty, that is, the rule of law as a fundamental value of the constitutional order under Article 8 and Article 98 of the Constitution. This provision deviated from the general rules of proof in civil proceedings that were based on the principle of preponderance of evidence, according to which each party stated his facts and prove them, and the court decided which facts it would take as proven upon its discretion based on conscientious and careful assessment of each piece of evidence separately and all the evidence together and based on the results of the entire procedure (Articles 7 and 8 of the CPC). Accordingly, the burden of proof should be on both parties, and not as envisaged by the contested provision. The challenged provision again, with a special law passed by a simple majority, derogated the provisions of the systemic laws passed by a two-third majority CPC and Law on Enforcement) which was contrary to Article 98 of the Constitution.

Article 18 paragraphs 1 and 2 and Article 25 paragraph 3 second sentence were in contradiction with Article 9 of the Constitution, for a reason that journalists and editors were differentiated in comparison to other citizens and the maximum amount that could be awarded as compensation for non-pecuniary damage caused by defamation and insult was determined for them. Although the intention of the legislator was to limit the liability of journalists, the contested legal provisions were the basis for discrimination based on social status, given that the general provisions for determining the non-pecuniary damage without restricting the amount of compensation would apply to other citizens.

Article 23 of the Law was contrary to Articles 15 and 16 of the Constitution and Article 6 and Article 18 of the European Convention on Human Rights. The reasons cited were that in the provision the legislator did not foresee precisely the grounds based on which it may be requested a temporary ban on publication of a particular statement and the way in which the court would establish the merits of the request for an interim measure. Because of such a wide scope for interpretation by the courts, it represented a means of restricting freedom of expression and led to censorship which was prohibited by the Constitution. The provision was in breach of Article 6 of the European Convention on Human Rights (right to a fair trial, a fair trial and “equality of arms” because a time limit of 3 days was stipulated to rule on this request of the plaintiff, without giving an opportunity to hear the party sued. Furthermore, there was no stipulation of a right of appeal for the party sued if the court accepted the request for a ban on further publication of insulting or defamatory statements, which was in direct contradiction with Amendment XXI to the Constitution which guaranteed the right to appeal. Thus, the party sued was placed in a disadvantageous position as a party to the proceedings, contrary to Article 6 of the Convention, because a right of appeal was envisaged for the plaintiff in case of refusal of his request for issuing temporary measures.

Contested Article 23 was in direct contradiction also with Article 18 of the Convention, under which permitted restrictions of the rights and freedoms may be applied only for those purposes for which they were provided. Unfounded and unjustified restriction of the rights of the party sued in the procedure, which directly restricted the freedom of expression, did not constitute a necessary measure for the protection of the reputation or rights of others in the proceedings, as a result of which the legislator exceeded the permissible limits stipulated in Article 10 of the Convention and the purposes for which they were stipulated.

4. At its session the Court established that the Law on Civil Liability for Defamation and Insult had been adopted on 12 November 2012 and had been published in the “Official Gazette of the Republic of Macedonia” no.143/2012. It is composed of 26 articles, divided into 5 points: 1. General provisions; 2. Liability for insult and defamation; 3. Reimbursement of damages and other legal consequences of liability for insult and defamation; 4. Procedure for determination of liability and compensation of damage; 5. Transitional and final provisions.

Under Article 1 of the Law, the Law regulates civil liability for damage inflicted to the honor and reputation of a natural or legal person with an insult and defamation.

Under the contested Article 3 of the Law, if by applying the provisions of this Law the court cannot adjudicate certain issue related to the determination of liability for insult or defamation, or it considers that there is a legal gap or conflict of the provisions of this Law with the European Convention for the Protection of Fundamental Human Rights, on the principle of its precedence over domestic law it will apply the provisions of the European Convention for the Protection of Fundamental Human Rights and the views of the European Court of Human Rights contained in its judgments.

Article 4 paragraph 2 of the Law stipulates that in the procedure for establishment of liability for insult and defamation and damage compensation the provisions of the Law on Obligations, Civil Procedure Code and Law on Enforcement shall apply, unless otherwise defined by this Law.

Article 6 of the Law stipulates that a person who with an intention to disparage expresses with a statement, behavior, posting or otherwise degrading opinion towards another, which violates his honor and reputation shall be held liable for an insult. There is also liability for insult if such action belittles the reputation of a legal person, group of persons or a deceased person (paragraph 2). Under paragraph 3 of this Article, the author of the statement, the editor or the person who stands for him in the means of mass media and the legal entity may be held liable for an insult committed through a means of mass media (newspapers, magazines and other printed publications, programmes on radio and television, electronic publications, teletext and other forms of editorially shaped programme contents that are published or broadcast daily or periodically in writing, sound or image, in a manner accessible to the general public). The plaintiff in filing the lawsuit is free to decide which of the persons referred to in this paragraph he will sue for accountability and damage compensation for insult.

Under the contested Article 7 paragraph 1 item 1 of the Law, there is no liability for an insult, if: 1) the statement is given in the work of the Assembly, in the work of the municipal councils and the City of Skopje, in administrative or judicial proceedings or before the Ombudsman, unless the plaintiff proves that it is given maliciously; 2) opinion is relayed contained in an official document of the Assembly of the Republic of Macedonia, the Government of the Republic of Macedonia, the bodies of administration, courts or other government agencies, communication or other documents of international organisations or conferences, communication or other document for public information issued by competent state bodies, institutions or other legal entities, communication or other official document from investigations on criminal offenses or minor offences.

Under Article 8 paragraph 3 of the Law, if the expression or spreading of false allegations of facts is committed by means of mass media (newspapers, magazines and other printed publications, programmes on the radio and television, electronic publications, teletext and other forms of editorially shaped programme contents published or broadcast daily or periodically in writing, sound or image, in a manner accessible to the general public), the author of the statement, the editor or the person who stands for him in the means of mass media and the legal entity may be held liable for defamation. The plaintiff in filing the lawsuit is free to decide which of the persons referred to in this paragraph he will sue for accountability and damage compensation for defamation.

Article 9 of the Law stipulates that the party sued is obliged to prove the truthfulness of the facts contained in the claim (paragraph 1). The party sued that will prove the truthfulness  of his claim or prove that he had a reasonable ground to believe in its truthfulness shall not be liable for defamation (paragraph 2). Notwithstanding paragraphs 1 and 2 of this article, the burden of proof falls on the plaintiff who as the holder of a public function has a legal duty to explain the specific facts that are most directly related or relevant to the exercise of his function, if the party sued proves that he had reasonable grounds for bringing the claim that is of public interest (paragraph 3). Notwithstanding paragraphs 1 and 2 of this Article, it shall not be allowed to prove the truthfulness of facts concerning the private life of the plaintiff, unless revealing such facts is done in a scientific, literary or artistic work, a serious criticism, in performing official duty, journalist profession, political or other social activity, in defense of the freedom of public expression, of thought or other rights or protection of the public interest (paragraph 4). If defamation consists in publicly blaming another of having committed a criminal offence or having been convicted of such an offense, liability is excluded if the statement was given in the public interest and if the person who gave it proves its truthfulness or proves that he had grounds to believe in the truthfulness of such facts (paragraph 5).

At its session the Court also found that under Article 18 of the Law, the court may not award as compensation for non-material damage caused by the insult or defamation by a journalist in performing his journalist profession an amount exceeding 2,000 euros in denar counter-value (paragraph 1). Under paragraph 2 of this Article, the court may not award as compensation for non-material damage caused by an insult or defamation by an editor or the person replacing him an amount exceeding 10,000 euros in denar counter-value.

Under Article 23 of the Law, with the filing of a lawsuit for establishment of liability and compensation of the damage, the injured party may submit to the court a request for determination of temporary judicial measure that consists in the prohibition of further publication of the insulting or defamatory statements. The request should contain the grounds for believing that point to the insulting or defamatory nature of the statement and its detriment to the honour and reputation of the injured party (paragraph 2). The court shall issue temporary prohibition of further publication only if the insulting or defamatory statement was already released and if it is reasonably confident that its further publication will inflict irreparable non-pecuniary or pecuniary damage to the injured party (paragraph 3). The court will decide by resolution to impose a temporary ban within three days from the date of submission of the request. The prohibition applies only to the specific insulting or defamatory statement (paragraph 4). The court will reject the request referred to in paragraph 1 of this Article if it does not contain sufficient grounds to believe that it refers to insulting or defamatory statement which is detrimental to the submitter, or if the court considers that in the concrete case there are grounds for exclusion of liability for insult or defamation. The submitter is entitled to appeal against the resolution to the higher court within three days from the date of its submission (paragraph 5).

Under Article 25 paragraph 3 second sentence, if the perpetrator is a journalist the amount of non-pecuniary damage may not exceed 2,000 euros in denar counter-value.

5. Under Article 8 paragraph 1 lines 1, 3, 4 and 11 of the Constitution, the fundamental values of the constitutional order of the Republic of Macedonia are the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution; the rule of law; the division of state powers into legislative, executive and judicial; and the respect for the generally accepted norms of international law.

Under Article 9 of the Constitution, citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. All citizens are equal before the Constitution and law.

Pursuant to Article 16 paragraph 1 of the Constitution, the freedom of personal conviction, conscience, thought and public expression of thought is guaranteed. Under paragraph 2 of the same Article, 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 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 25 defines that each citizen is guaranteed the respect and protection of the privacy of his/her personal and family life and his/her dignity and repute.

Pursuant to Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution and all other regulations in accordance with the Constitution and law. Everyone is obliged to observe the Constitution and laws.

Under Article 54 paragraph 1 of the Constitution, the freedoms and rights of the individual and citizen may be restricted only in the cases defined by the Constitution. Pursuant to paragraph 4 of the same Article, the restriction of the freedoms and rights may not apply to the right to life, the interdiction of torture, inhuman and degrading 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 Amendment XXV which replaced Article 98 of the Constitution, the judicial power is exercised by the courts (paragraph 1). Courts are autonomous and independent. Courts adjudicate on the basis of the Constitution and laws and international agreements ratified in accordance with the Constitution (paragraph 2). Types, competence, foundation, repeal, organisation and composition of courts, and the procedure before them, is regulated by law, which is adopted with a two-third majority vote of the total number of Representatives.

Under Article 118 of the Constitution, the international agreements ratified in accordance with the Constitution are part of the internal legal order and may not be changed by law.

Under Article 8 of the European 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.

Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe stipulates that everyone has the right to freedom of expression. This right includes freedom to hold opinions and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, which include duties and responsibilities, may be subject to certain formalities, conditions, restrictions or penalties as are prescribed by law, which in a democratic society are measures necessary for national security, territorial integrity or public safety, prevention of disorder or crime, protection of health or morals, reputation or rights of others, for preventing the spread of confidential information or for maintaining the authority and impartiality of the judiciary.

6. The Law on Civil Liability for Defamation and Insult is an expression of the new concept of civil liability for insult and defamation by their decriminalisation, which has a starting point the fact that the previous law on criminal-legal protection from insult and defamation is no longer in operation, that is, that liability for insult and defamation should be sought in a civil, rather than criminal proceedings. This transfer of liability from criminal-legal to civil liability for defamation and insult is considered to be a significant acquisition and quality of this Law.

On the occasion of a previously filed application the Constitutional Court had appraised the accordance of the whole of the Law on Civil Liability for Defamation and Insult (in terms of the provision of Article 16 paragraph 7 of the Constitution) and with its Decision U.br.133/2013 of 13 March 2004 had not initiated a procedure for appraising the constitutionality of the whole Law.

The application in this case challenges the Law as a whole because it was passed by a simple majority vote, not a two-third majority vote, as it was a procedural law.

The Court found the allegations in the initiative to be unacceptable, for a reason that from the purpose and content of the Law as defined in Article 1 of the Law, under which this Law regulates civil liability for damage inflicted to the honour and reputation of a natural or legal person with insult and libel, it arises that it is a material law regulating liability for defamation and insult, and not a procedural law. Although liability for defamation and insult, as a specific liability is governed by this Law which is lex specialis, that liability will be determined in civil proceedings, which is governed by the Civil Procedure Code. That means in the procedure for civil liability in addition to this Law the provisions of the Civil Procedure Code shall also apply, which was adopted by a two-third majority vote. The Law itself indicates this in the disputed provision of Article 4 paragraph 2. Hence, the Court finds it undisputed that the Law on Civil Liability for Defamation and Insult regulates material issues related to liability and requirements for establishing and excluding liability for defamation and insult, and refers to the application of the procedural rules laid down in the law that was passed by a two-third majority vote. Accordingly, it finds that there may not be question raised as to the conformity of the entire Law with the provision of Amendment XXV to the Constitution of the Republic of Macedonia.

7. In respect of Article 4 paragraph 2 and the question about the relation of the Law on Civil Liability for Defamation and Insult and the Law on Obligations (to the application of which is referred in the contested provision), in the said Decision U.br.133/2013 the Constitutional Court pointed out that ” the Court also finds to be unfounded the allegations in the application that the Law on Obligations (Article 189) regulated the matter related to violation of reputation, honor, freedom or rights of the individual, as a result of which there was no need to adopt the contested Law. This is because the challenged Law is lex specialis in relation to the Law on Obligations and regulates in detail the matter related to civil liability for damage inflicted on the honour and reputation of a natural or legal person with an insult or defamation. Accordingly, it may not be accepted that this approach of the legislator led to violation of the principle of the rule of law as a fundamental value of the constitutional order of the Republic of Macedonia”.

From what has been noted it arises that the Law on Civil Liability for Defamation and Insult as a separate law aims at fully regulating civil liability for defamation and insult, so in addition to the reference to other laws regulating compatible relations it further regulates more precisely also the issues which in the said laws (Law on Obligations, Civil Procedure Code, Law on Enforcement) are governed in a general way, or are not regulated at all. Hence, the Court finds to be unacceptable the allegations in the application that this Law derogated the provisions of these laws, as it is in the function of their further development and precision. The mere fact that the Law on Obligations regulates in a general manner, inter alia, the grounds for compensation of damage,is not an obstacle for the legislator within its constitutional powers (Article 68 paragraph 1 line 2 of the Constitution) with another law to further regulate certain issues as it is the case with the present Law, which is not a violation of the Constitution. The Court has expressed this stance so far in several cases (Resolution U.br.235/2008 of 24 June 2009, Resolution U.br.67/2007 of 16 April 2008).

Consequently, the Court finds that there is no ground to question the accordance of the provision of Article 4 paragraph 2 with the provisions of the Constitution specified in the application.

8. From the analysis of Article 6 paragraph 1, it appears that it defines the liability for insult, that is, its elements: the intention to disparage, the manner of expression, that is, the act of committing the insult and its effects – violation of honor and reputation. With the decriminalisation of insult, it is no longer a criminal offence but a civil offense for which civil liability is foreseen and as a civil offence its elements, including the act of committing, must be defined by law. Given the fact that all possible ways and forms of expression may potentially be a source of violation of dignity, honor and reputation, the legislator chose this way of formulating the insulting action, which in addition to the well-defined (statement, behavior, publication) covers also the insult done otherwise. The Court finds the allegations in the application that certain forms of artistic expression (such as cartoons or pantomime) should not be restricted in any case for the purposes of achieving the legitimate aim – the protection of the reputation of others, to be unacceptable for the following reasons.

Namely, the Court finds it clear that humour and satire as special forms of artistic expression in its nature and essence always involve a certain degree of exaggeration, and even provocation, and in that sense their authors enjoy protection under Article 10 of the European Convention on Human Rights. As often pointed out by the European Court of Human Rights in its case-law: “Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably accepted by the public, but also the expression which “insults, shocks or disturbs the State or any part of the population”… Those who create, perform, distribute or display works of art contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence, the obligation of the State to not unduly prejudice their freedom of expression. Artists and those who promote their work are certainly not immune from the possibility of limitations set out in paragraph 2 of Article 10 of the Convention. Anyone who exercises freedom of expression undertakes, in accordance with the explicit terminology of that paragraph, “duties and responsibilities” whose volume will depend on his particular situation and the means he uses (case of Vereinigung Bildener Kunstler v. Austria, App.no.68354.01, Judgment 25 January 2007). After all, it is so regulated by the Law on Civil Liability for Defamation and Insult (in Article 7 paragraph 2) which provides for the exclusion of liability for insult for a person who in a scientific, literary or artistic work presents degrading opinion of another person, if 1) from the manner of expression or from its other circumstances it arises that it has no meaning of an insult; 2) if it did not cause significant damage to the honour and reputation of the person, and 3) if it was not brought solely in order to humiliate another person or to downplay his honor and reputation. It remains to the court, in accordance with the positive case-law, domestic and international, to appraise in case by case whether certain artistic expression has inflicted defamation and insult.

Hence, the Court finds to be unacceptable the stance in the application that cartoons and pantomime as forms of artistic expression under the Convention should not be restricted at all in order to accomplish the legitimate purpose – the reputation of others, for a reason that in some cases certain works of art may be considered to be extremely offensive to religious or moral convictions of believers of a particular religion or be considered defamatory or offensive to certain individuals identified in the work. In such circumstances, the legitimate aims of protecting public morals or the rights of others may in some cases be considered to be justification of appropriate measures against artistic expression: “obligation to avoid as far as possible expression that is offensive to others and thus violating their rights and does not contribute to any form of public debate that may lead to progress in humane relations. Given that, as a matter of principle it can be considered necessary in certain societies to sanction or even prevent improper attacks on objects of religious reverence, provided that always any “formality”, “condition”, “restriction “or” penalty be proportionate to the legitimate aim (Otto-Preminger-Institut v. Austria, App.no.13470/87, Judgment of 20 September 1994).

Similarly, the Federal Constitutional Court of Germany in its decision BVerfGE 75, 369 1 BvR 313/85, argued that the cartoon that violates the essence of personal honour and dignity protected by Article 1 of the Basic Law, is not covered by freedom of artistic creativity referred to in Article 5 paragraph 3 of the Basic Law.

From the above, the Court concluded that the various forms of artistic and satirical expression could not in advance and automatically be regarded as inoffensive, but their impact should be assessed on a case by case basis, whereby it should, in particular, be appraised the specific circumstances such as the subject-matter of artistic expression, its context, the status of the person involved, the intention of the author to violate the rights of another person, the form of expression, etc. Also, the term “behavior” may cover certain gestures that could be considered offensive in a particular context and specific situation. The same applies to the part of the provision “otherwise”, which may cover a multitude of previously unforeseen actions which may also in certain context be offensive. “The external manifestation of human personality can encompass many different forms that cannot fall under the aforementioned categories (Separate opinion, partly consenting and partly dissenting of the Judge De Meyer in the case Muller and Others v. Switzerland, App.No.10737/84, Judgment 24 May 1988”. Hence, reasonable predictability for each case is difficult to achieve, because it is impossible to regulate it in detail in advance.

Thus, the actual evaluation is the task of the courts which apply the law in individual cases. The Constitutional Court finds that the fact that the disputed provision of Article 6 paragraph 1 of the Law formulates insult with the terms “behavior” and “otherwise” does not make the provision vague, imprecise and too widely set, as a result of which the Constitutional Court did not question the conformity of this provision with the Constitution and Article 10 of the Convention.

According to the applicants the impugned provision of Article 6 paragraph 2 of the Law was too broad and left room for abuse given that no legal person was exempted. The contested legal solution prohibited openly criticism of public institutions and political parties which are legal entities, which was censorship that was contrary to Article 16 of the Constitution.

The Court finds these allegations to be unfounded, for a reason that their acceptance would mean denial of the fact that legal persons, groups of persons and deceased persons have reputation and dignity that may be infringed by offensive or defamatory statements. According to academic Vladimir Kambovski: “Legal entities are not fictions, but a reality, in addition to enjoying reputation as a collectivity theur also summarize in themselves  the honour of all individuals, members of the legal entity. It is a collective honour, which in addition to resulting from the honor of everyone individually also contains reputation that the entity as a whole has acquired.” Comment of the Criminal Code of RM, published by Matica, 2011, p.744.

And the Constitutional Court itself in its constitutional jurisprudence has established that legal persons have business reputation and integrity which also enjoys protection. Namely, in the Decision U.br.9/2009 of 13 May 2009, in the context of the request for evidence for no criminal record in order to establish the conditions for performing the activity of a legal person, the Court stated that: “Respect for moral integrity and dignity of the citizen in itself incorporates the role of the state which should guarantee the protection of the integrity and dignity in a way that will provide protection in the event when these values ??are threatened by another …. This, according to the assessment of the Court, applies equally to physical and legal entities as subjects of law and whose business reputation and integrity should also enjoy protection”.

Guaranteeing freedom of expression under Article 10 of the Convention in a democratic society highlightedly includes intensive public debate and expression of critical opinions, especially of the state, public institutions and political parties. The need for public debate through intensive exchange of information and free expression of opinion on them ensures the functioning of an open, democratic society, which gives its opinion on matters of public interest. In this sense it is implied that the courts in their work must take into account and avoid the so-called chilling effect (effect of deterrence, restraint) or restrictive measure that would act as a spontaneous self-censorship of the mass media when broadcasting information of a general, public interest. Regarding the disputed provision, the Court considers that, according to the given formulation, it also does not narrow down “the limits of permissible criticism” which is expected to be more elastic and wider with regard to the government and politicians vis-à-vis the citizens. The context of the Law implies that and in accordance with the jurisprudence of the European Court of Human Rights it is clear that there should be a greater degree of tolerance in criticism of public figures, particularly when issues of their work are raised that are of public interest for the whole society.

From all that has been stated it follows that it may not be denied in advance that legal persons and groups of people have a reputation that should be protected, to which the allegations in the application refer. These categories of entities as holders of honor and reputation must enjoy protection through the envisaged possibility in the contested Article 6 paragraph 2 and Article 8 paragraph 2 of the Law on Determination of Liability for Defamation and Insult directed at them. The task of the courts that apply the Law is on the basis of the specific circumstances of each individual case and from the factual material that is available to them, to make a right balance between the protection of the reputation of these persons and freedom of expression.

Regarding this issue, the Venice Commission in its opinion on the Law on Protection against Defamation of the Republic of Azerbaijan indicated that: “It is not clear why a complaint cannot be filed on behalf of a group of persons. In this context it should be mentioned that Article 34 of the European Convention on Human Rights recognises the right to address the Court also to “… every ….group of individuals claiming to be victims of a violation of the rights contained in the Convention and its protocols by one of the High Contracting Party.” As protection against defamation implicitly enters into Article 8 of the Convention relating to the second paragraph of Article 10 of the Convention, the vulnerable groups in society could be left without defense against libel unless they are enabled to make use of their collective strength and to seek protection against defamation. Therefore, it is proposed not to exclude the possibility of libel lawsuit be filed by or on behalf of a group of people whose reputation is attacked with a defamatory statement/s.” Document CDL-AD(2013)024 of 14 October 2014, paragraph 85.

Based on the above, the Court concludes that there is no ground to question the accordance of the provision of Article 6 paragraph 2 of the Law on Civil Liability for Defamation and Insult with the provision of Article 16 of the Constitution.
9. From the content of the provisions of Article 6 paragraph 3 and Article 8 paragraph 3 of the Law it arises that they regulate liability for insult and defamation committed through means of mass media, that is, the so-called public insult and public defamation, for which the author of the statement, the editor or the person replacing him and the legal person may be held liable, whereby the plaintiff freely decides against which of these individuals he will file a lawsuit for establishment of liability and compensation of damages.

The responsibility of the author of the statement, the editor or the person replacing him and the legal entity is a generally accepted rule of liability in case of libel and insult committed through a public medium in the legislation of most European countries.

The circumstances to which the application refers, when the insulting or defamatory statement is given in a contact show, interviews, live coverage, according to the Court is factual issue which should be established by the court in each individual case in assessing the proportionality and balance between the right to freedom of expression and the protection of reputation, whereby the court will be obliged to apply the case-law of the European Court of Human Rights. The European Court of Human Rights in the case Jersild v. Denmark (Jersild v. Denmark, App.15890/89, Judgment of 23 September 1994) pointed out that: “The information based on interviews is one of the most important means through which the press can play its vital role of a “watchdog”. Punishing a journalist for assisting in the transmission (dissemination) of statement that has been given by another person in an interview, would seriously impede the contribution of the press to discussion of matters of public interest and should not be envisaged, unless there are particularly strong reasons for doing so”.

In assessing the necessity and proportionality of the measure the European Court of Human Rights specifically takes into account not only the content, but also the form and tone of the statement and the medium through which it is transmitted. Thereby, the Court is milder when the defamatory statement is given in the context of an oral exchange or heated debate, because in such cases the applicant may not think carefully and in advance, as is the case in written statements.

In view of the statements made in the programs broadcast live, the Strasbourg Court held that: “In the context of the proceedings for defamation or insult, the Court must balance a number of additional factors in assessing the proportionality of the contested measure. First, in view of the manner of dissemination of the statements in question the Court makes a distinction between a programme that is broadcast live and recorded programme. When it comes to oral statements made in the programme live, the Court considers that this element does not provide an opportunity to the host of the show to reformulate, refine or remove the statements before they are published ” (case Lionarakis v. Greece, App.1131/05 judgment of 5 July 2007).

In the case Gunduz v. Turkey (App.3507/97, Judgment of 4 December 2003), the Court held that: “… the applicant’s statements were made during the television broadcast live, so he had no opportunity to reformulate, or refines them or withdraw them before being published (see Fuentes Bobo v. Spain, no.39293/98, Judgment of 29 February 2000). Similarly, the Court considers that the Turkish courts, which are in a better position than an international court to evaluate the impact of such comments, did not pay special attention to this factor. The Court considers that while balancing the interests of free speech and those protecting the rights of others according to the test of necessity in Article 10 paragraph 2 of the Convention, it is necessary to give more weight than that of national courts in their application of domestic law to the fact that the applicant participated in a live, public debate.”

Also, in the case Filatenko v. Russia (App.73219/01 Judgment of 6 December 2007): “The Court points out that the format of the show was designed as to encourage the exchange of views and arguments, so that opinions expressed do counterbalance each other and the debate to maintain the attention of the audience. The applicant was presenter and channeled the questions received from the audience which he was recording on paper and was giving them to the participants. The programme was broadcast live on television, so the possibility of the applicant to reformulate, refine or withdraw the statements before being released was limited. The Court reiterates in this regard that punishing the journalist for having formulated questions in a certain way would seriously interfere with the contribution of the press to discussion of matters of public interest….”.

From what has been noted it arises that the disputed provision of Article 6 paragraph 3 and Article 8 paragraph 3 defines the general liability for libel and insult committed through the mass media, but from it does not automatically follow that the editor or the person who replaces him will always and in any case be responsible for the statement given by another person (the author of the statement) in a show which is broadcast live, for a reason that it is a factual issue that should be determined by the court in each concrete case. Furthermore, in Article 6 paragraph 3 and Article 8 paragraph 3 it is stated that they “may” be held liable for defamation or insult, which implies that the plaintiff is not required to file a lawsuit against all three entities, nor the court is obliged to determine liability for all three entities. Accordingly, the Court finds that there is no ground to question the conformity of the provision of Article 6 paragraph 3 and Article 8 paragraph 3 with the principle of the rule of law under Article 8 paragraph 1 line 3 of the Constitution and the freedom of expression guaranteed by Article 16 of the Constitution of the Republic of Macedonia, and in connection with Article 10 of the European Convention on Human Rights.

10. The impugned provision of Article 7 paragraph 1 item 1 in the part: “in the work of the Assembly, in the work of the municipal councils and the City of Skopje, in administrative or judicial proceedings or before the Ombudsman, unless the plaintiff proves that it is given maliciously” defines the grounds for exclusion of liability for insult, by determining the so-called “privileged statements”. According to the text of the provision, these are statements given “in the work of the Assembly, in the work of the municipal councils and the City of Skopje, in administrative or judicial proceedings or before the Ombudsman.” This concerns the so-called material immunity, that is, immunity for an expressed opinion and it most frequently concerns Representatives, that is, Members of Parliament. It is believed that freedom of thought and speech of the elected representatives of the people is essential to a democratic society, as a result of which almost all constitutions of the European states contain provisions on this form of immunity. The Venice Commission in its Report on the scope and revocation of parliamentary immunities (Document of the Venice Commission CDL-AD(2014)011 of 21 March 2014) – calls this immunity “irresponsibility” or “special freedom of speech” and it means immunity from all judicial procedure for voting and attitudes expressed by the MPs in performing their function. This immunity is closely linked to the parliamentary mandate and protects MPs when acting in an official capacity – when discussing and deciding on political issues.

According to the case-law of the European Court of Human Rights, parliamentary immunity has a “legitimate aim of protecting free speech in Parliament and maintaining the separation between the legislative and judicial powers” and that these rules “cannot in principle be regarded as imposing a disproportionate restriction on the right of access to the court” for third parties under Article 6 of the Convention (Case A.v. United Kingdom, App.no.3537, Judgment of 17 December 2001).

Substantive immunity as immunity for an opinion is defined in the Constitution of the Republic of Macedonia for the Representatives of the Assembly of the Republic of Macedonia – pursuant to article 64 paragraph 2 of the Constitution, the Representative cannot be held criminally liable or be detained for an opinion or vote in the Assembly; then for judges – Amendment XXVII – under which a judge cannot be held criminally liable for an opinion and decision-making in the adoption of court decisions. Other public functionaries who enjoy immunity under the Constitution are the President of the Republic (Article 83 paragraph 2 of the Constitution), the President of the Government of the Republic of Macedonia (Amendment XXIII to the Constitution) and the judges at the Constitutional Court (Article 111 paragraph 2). However, the Constitution stipulates that these functionaries enjoy imunity, without thereby defining the content of the immunity, that is, without specifying the material-legal immunity.

Regarding the members of the municipal councils, in accordance with Article 43 paragraph 3 of the Law on Local Self-Government, the council member cannot be held criminally liable or be detained for an opinion or vote in the council. The same is provided for the mayor in Article 52 paragraph 4 of the Law on Local Self-Government.

Pursuant to Article 38 of the Law on the Ombudsman (“Official Gazette” nos.114/2009 and 60/2003) the Ombudsman and Deputy Ombudsmen cannot be called to account for a given opinion and taken actions, measures and activities in the performance of its function.

From the content of the disputed provision of Article 7 paragraph 1 item 1 it follows that the grounds for exclusion of liability for insult for a statement made in the work of the Assembly, in the work of municipal councils and the City of Skopje, in administrative or judicial proceedings or before the Ombudsman, refer to persons for whom in the Constitution and these laws it is stipulated that they enjoy immunity, that is, that it is worded in a way that is consistent with the constitutional provisions. Accordingly, the Court found that no question may be raised as to the conformity of this provision with the provisions of the Constitution invoked by the applicants.

In terms of the provision of Article 7 paragraph 1 item 2 in the part “or other official document from investigations on committed criminal offenses or minor offences”, the Court finds that the allegations in the application for violation of Article 12 of the Constitution of the Republic of Macedonia in which the principle of presumption of innocence is established and Article 18 which guarantees the security and confidentiality of personal data, are unfounded. This for a reason that the use of official documents from the investigation of a criminal offence or minor offense is regulated by specific provisions of the Criminal Procedure Code that provide sufficient safeguards against their abuse, that is, to prevent their use before the effective conclusion of the investigation. Accordingly, the Court found that there may be no reasonable question raised as to the constitutionality of this provision of the Law.

Article 9 of the Law determines the burden of proof in proceedings for civil liability for libel and insult that is on the side of the party sued, that is, the person who brought up false facts, who is obliged to prove their truthfulness. False claim is an element of defamation, so there is no defamation if the party sued proves the truthfulness of what he expressed or spread, and which damaged the honour and reputation of the plaintiff. According to Prof. Kambovski, the question of proving the truthfulness in libel is in relation to the principle of inviolability of the honour and repute and the principle of truth – that is, what is more valuable for the law, whether it is truth or honour: “Between these two principles obviously there is a collision. It is resolved as follows: the injured party, the defamed one is protected by the presumption of an honest man (quisquis praesumitur bonus), and the offender is obliged to prove the truthfulness of his assertion (exception veritatis). Thus, the injured party is not obliged to prove the falseness of a defamatory statement. He is protected by the said presumption: everyone is presumed to be honest. This (natural) presumption is in consistence with the right of everyone to be treated as an honest man, which is standing behind honour as an object of protection. On the other hand, proving that someone is honest, that he enjoys a good reputation, etc. is extremely difficult, significantly harder than proving the existence of a statement negating that honour, since the determination of the honour and reputation of a person necessarily requires comprehensive determination of all the circumstances that make up honour and reputation”. Vladimir Kambovski, Criminal Law – a separate part, NIO “Studentski Zbor” Skopje, 1988. Thisis also the line of the Venice Commission which in its opinion on the Law on Protection from Defamation of the Republic of Azerbaijan (Document CDL-AD(2013)024, 11-12 October 2013 (paragraph 98)) indicated that placing the burden of proof on the plaintiff is too heavy burden, and even impossible task, and that such an approach is inconsistent with the tradition in European countries where the parties sued have to prove that the facts are true and not misleading.

From these specifics stems the justification of the contested legal solution for the burden of proof in libel be on the party sued. The European Court of Human Rights also in its case-law established that in principle, it is not inconsistent with Article 10 for the defendant in defamation proceedings to have the burden of proof, that is, to prove to a reasonable civilian standard the truthfulness of the defamatory statement (McVicar v. The United Kingdom, App.46311/99, Steel and Morris v. the United Kingdom, App.68416/01).

The position of the party sued is in a particular manner facilitated when the statement is directed at a public official and concerns a matter of public interest with the exception envisaged in paragraph 3 of Article 9 of the Law, under which the burden of proof falls on the plaintiff who as the holder of public office has a legal duty to give an account of specific facts that are most directly related or relevant to the exercise of his function, if the party sued proves that he had reasonable grounds for bringing the claim that is of public interest. Similarly, the Venice Commission in its Opinion on the Law on Defamation of Italy indicated that: “However the burden of proof should not be imposed as an obligation of the author (the perpetrator) of the offence in case where it is impossible for him/her to prove the truthfulness or when it would require unreasonable effort for him/her, and the plaintiff has access to relevant facts”. Document CDL-AD(2013)038, of 6 December 2013.

The Court finds unfunded the specific allegations in the application for inconsistency of this provision with the general rules of evidence in civil proceedings, for a reason that it is special, specific matter that is regulated by the disputed Law on Civil Liability for Libel and Insult which as lex specialis has a precedence in the application in relation to the other laws in the field of civil proceedings – Civil Procedure Code and others.

Consequently, the Court found that there is no ground to question the consistence of Article 9 of the Law with the provisions of the Constitution invoked by the applicants.

11. The allegations in the application that the contested provisions of Article 18 paragraphs 1 and 2 and Article 25 paragraph 3 second sentence formed the basis for discrimination based on social position are unacceptable for us, for a reason that from the analysis of the whole of the Law on Civil Liability for Libel and Insult it stems that the provisions of the Law actually distinguish between defamation and insult in general and defamation and insult committed through mass media (public defamation and public insult) and that they provide for special rules on the responsibility of journalists and other media workers (editor, a person who replaces him) vis-à-vis the legal person. The law also contains several provisions defining specific cases, that is, circumstances that exclude the responsibility of the journalist and the editor and some relating solely to this category of people (journalists, editors). This approach of the legislator stems from the special role played by journalists and media in general in society and in the performance of their core business – informing the public on matters of public interest. Hence, we believe that it cannot be drawn a sign of equality between cases of defamation and insult committed by a journalist and those committed by an ordinary citizen in a different context.

The role of the press and the media is to transmit information on matters of public interest. “Not only does the press have the task to transmit this information and ideas: the public also has a right to receive them. If that is not the case, the press could not play its vital role of a “watchdog” in a democratic society”. “The most attentive examination by the Court is necessary when, as in the present case, the measures or sanctions taken or imposed by the national authorities may discourage the participation of the press in debates over matters of legitimate public interest.” Bladet Tromso and Stensaas v. Norway (App.No.21980/93, Judgment 20 May 1999).

Hence, it follows that because of the role of journalists in a democratic society, they have reinforced protection under Article 10 of the Convention. However, the exercise of freedom of expression carries with it certain “duties and responsibilities” which also apply to journalists. According to the European Court: “in exercising the right to freedom of expression, the press must act in a manner consistent with its obligations and responsibilities … These duties and responsibilities receive special meaning when … the information the press transmits may have a serious impact on the reputation and rights of individuals. Furthermore, the protection that journalists have under Article 10 is subject to the requirement that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism”. Times Newspaper Ltd. v. U.K. App.nos.3002/03, 23676/03, Fressoz and Roire v. France (App.no.29183/95, Bladet Tromso and Stensaas v. Norway).

From the explanation of the Law it follows that the reasons for its adoption are the numerous court proceedings for insult and libel against journalists, excessive sentences and high amounts of compensation, uneven case-law, etc. In the opinion of the Government regarding the allegations in the application in conjunction with Article 18 paragraphs 1 and 2  it is stated that “the highest limit for compensation for non-pecuniary damage is in accordance with the Constitution, given the fact that this is only limitation on the courts in determining the amount of non-pecuniary damage, which directly protects journalists and contributes to the strengthening of freedom of expression.”

Regarding the compensation of the damage, the Law on Civil Liability for Defamation and Insult contains several provisions relating to the compensation of damages (pecuniary and non-pecuniary damage) and the criteria and circumstances the court should take into account when determining the amount of compensation. Thus, under Article 15 of the Law governing compensation for damage for insult, the amount of pecuniary compensation for the damage should be proportionate to the damage done to the reputation of the injured party and in its determination the court shall take into account all the circumstances of the case, in particular the circumstances under Article 13 which refer to mitigation of damages (apology and public taking back) and Article 14 which regulates the right of response, denial, reply and correction, and the property of the party sued. Article 16, which regulates the compensation of damages for defamation, it is stipulated that remuneration should be proportionate to the damage caused and to cover the non-pecuniary damage inflicted on the honour and reputation of the injured party, as well as the proven pecuniary damage as real damage and lost profit. In this case, the court should also take into account all the circumstances of the case, in particular the circumstances under Articles 13 and 14 and the financial situation of the party sued (Article 16 paragraph 2). Paragraph 3 of this Article stipulates that the court will take into account as special circumstances the circumstances that lead to the realisation of material or other advantage from the party sued with its execution. Apart from these specific provisions, Article 17 of the Law stipulates that in determining the amount of compensation for non-material damage in terms of this Law it shall have regard to the provisions of the Law on Obligations. The allocations made in the Law represent the highest amount of compensation for non-material damage which the court must not cross and which in essence may constitute a protective framework. In accordance with the positive case-law of the European Court of Human Rights, the compensation of the plaintiff should be mostly focused on his moral satisfaction, not the financial aspect of compensation. This again is related to the assessment of the court that applies the law, depending on the specific circumstances of each case.

The Council of Europe Parliamentary Assembly Resolution 1577(2007) entitled “Towards decriminalisation of defamation” urged member states “to establish reasonable and proportionate maxima of compensation and interest in defamation cases so as not to endanger the sustainability of the medium; and to provide legal guarantees against awarding compensation and interest that are disproportionate to the actual injury”.

In that sense is also the case-law of the European Court of Human Rights which held that “national laws relating to the calculation of damages for injury to reputation must provide an opportunity to take into account the various factual situations. It requires a considerable degree of flexibility, so that judges can evaluate damages, so that they comply with the relevant case”(case of Tolstoy Miloslavsky v. UK, Appl.No.18139/91, Judgment of 13 July 1995). In that particular case the Court found that the damages of 1.5 million pounds were a violation of the rights under Article 10 of the Convention. The European Court pointed out that what was important for the amount of damages was to have “reasonable relationship of proportionality” with the damages inflicted and to take into account all the circumstances of the case. In such circumstances is also the property status of the parties sued. In the case of Steel and Morris v. U.K. the Court in Strasbourg held that the compensation that was supposed to be paid by the two applicants in the amount of 36,000 pounds and 40,000 pounds for injury to business reputation of McDonalds, was disproportionate “although relatively modest according to the modern standards in libel cases in England and Wales” because such amounts were very high compared with the modest incomes and resources of the parties sued (Steel and Morris v. UK, App.No.68416/01, Judgment of 15 February 2005).

The case-law of the European Court of Human Rights shows that excessive amounts for damages for defamation by themselves can mean a violation of Article 10 of the Convention, even if it is confirmed that in the case there was defamation. Thus, for instance, in the case Kasabova v. Bulgaria, the Strasbourg Court held that the amount of compensation for non-pecuniary damage, which was more than 70 minimum wages, that is, more than 35 monthly salaries of the applicant is excessive and disproportionate to the caused damage and that can have a deterring effect on other journalists in reporting on matters of public interest.

From the content of the legal provisions relating to compensation for damages, and the criteria set out in the case-law of the European Court of Human Rights, it appears that the Law offers sufficient grounds and criteria based on which in applying the law, depending on the circumstances of each case, the court will measure the amount or level of compensation (fixing the highest amount of compensation for non-material damage, the requirement of proportionality between the amount of compensation with the damage caused to the reputation, the obligation to take into account all the circumstances of the case, including the financial situation of the party sued, the obligation to apply the European Convention and the case-law of the European Court of Human Rights). Starting from the special role played by the media in a democratic society, the Court considers that the determination of the highest amount of compensation for non-material damage which concerns insult and defamation committed by a journalist, editor or legal entity arises from the need for them to be protected from excessively high amounts of compensation for damages in case of defamation and insult, that is, that these provisions have a protective character. The question as to whether the amounts set down in the Law are high or not is a matter of suitability that is appraised by the legislator, while the question as to how these provisions are applied in practice is within the competence of ??the judiciary, that is, the courts, which directly apply the law. The Constitutional Court considers that regular courts are obliged to consistently apply the provisions of the law concerning the proportionality of the compensation and the damage done and based on the circumstances in each individual case to weigh and individualise the amount of compensation which should be proportionate to the damage to the reputation of the injured party. The maximum amounts of compensation for non-pecuniary damages should be applied only in the most serious cases where it is established that the statement was false, given with the intent to damage the reputation, contrary to the rules of journalistic profession.

Consequently, the Court found that there was no ground to question the conformity of Article 18 paragraph 1 and paragraph 2 with Article 9 of the Constitution of the Republic of Macedonia.

12. The Court also did not accept the arguments in the application in terms of Article 23, which regulates interim judicial measures for prohibition of further publication of insulting or defamatory statements. The Court considers that Article 23 paragraph 3 precisely defines the grounds when the court may pronounce these measures (the statement to be already published and to have reasonable assurance that its further publication will inflict irreparable damage to the injured party). The Court also considers that the right to appeal of the party sued in the present case is not violated, given that in the appeal against the judgment he may also appeal the resolution ordering an interim measure.

Consequently, the Court found that there was no ground to question the accordance of the provision of Article 23 of the Law with the constitutional provisions invoked by the application.

13. Under Article 28 line 2 of the Rules of the Constitutional Court, the Constitutional Court will dismiss the application if it had already decided on the samematter and there are no grounds for a different decision.

The disputed provision of Article 3 of the Law had already been appraised by the Constitutional Court and with its Resolution U.br.133/2013 of 12 March 2014 it had not initiated proceedings for assessment of its constitutionality. In its resolution the Court stated that: “the legal regulation of the exercise of freedom of expression and information, according to which restrictions on these rights must be in accordance with international documents on human rights and fundamental freedoms, which are part of the internal legal order and the application of the views of the European Court of Human Rights contained in its judgments, is precisely aimed at the protection of the said rights and freedoms recognised in international law and set down in the Constitution and respect for the generally accepted norms of international law, which is in accordance with the provisions the Constitution referred to by the applicant. According to the Court, the contested Article 2 paragraph 2 and Article 3 of the Law do not violate Article 8 paragraph 1 line 4, Amendment XXV and Article 118 of the Constitution, as stated in the application. This for a reason that the European Convention for the Protection of Human Rights and Fundamental Freedoms was ratified by the Republic of Macedonia and thus, under Article 118 of the Constitution, it is part of the internal legal order. Under Amendment XXV to the Constitution, the courts judge on the basis of the Constitution and laws and international agreements ratified in accordance with the Constitution. Hence, it follows that the application of the European Convention for the Protection of Human Rights and the views of the European Court of Human Rights contained in its judgments in proceedings to resolve certain issues related to the determination of liability for insult or defamation, which is conducted before a competent court in the Republic of Macedonia, is precisely aimed at operationalisation of these constitutional provisions.”

In the said initiative this provision is again challenged in terms of Article 118 of the Constitution, but with completely opposing arguments. In the application on the case U.br.133/2013 the applicant considered that the source for the adoption of the contested Law could not have been the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular not the case-law of the European Court of Human Rights, but only the Constitution of the Republic of Macedonia, that the international agreements were ranked on the third place in the hierarchy of legal acts, after the Constitution and the laws. In the said application the applicants believe that from the constitutional provision of Article 118 it clearly follows that ratified international instruments always have precedence in application.

Consequently, the Court considers it necessary to point out that from Article 118 of the Constitution it follows that international agreements ratified in accordance with the Constitution are between the Constitution and laws and cannot be changed by law. However, from the Law as a whole, especially from Article 2 paragraph 2 of the Law, it appears that the basic intention of the Law is to directly observe and apply the principles enshrined in the European Convention on Human Rights and the case-law of the European Court of Human Rights, in accordance with the Constitution, taking into account the process of ratification. Hence, the Court considers that the contested Article 3 cannot be analysed separately from Article 2 of the Law, that is, that it does not set additional conditions for the application of the Convention, but provides additional security to the respect for modern standards enshrined in the European Convention on Human Rights and the case-law of the Court in Strasbourg, in the function of protection of the rights. The provision of Article 3 regulates any possible exceptions that would occur in practice, whereby it provides their coverage by the Convention and the case-law of the European Court of Human Rights. Consequently, the Court found that the analysis of the contested provision does not provide grounds for a different decision from the Court’s decision expressed in Resolution U.br.133/2013, that is, that the application in regard to this Article  should be dismissed on the basis of Article 28 line 2 of the Rules of the Constitutional Court, due to res judicata.

Article 25 paragraph 3 second sentence which reads: “If the offender is a journalist the amount of non-pecuniary damage may not exceed 2,000 euros in denar counter-value”, was also assessed by the Constitutional Court, which with its Resolution U.br.85/2013 of 5 February 2014 did not initiate proceedings. In the explanation of the above resolution, the Court considering the allegations in the applications, put the emphasis on the transitional regime, set out in paragraph 2 and the first sentence of paragraph 3 of Article 25, so that it did not directly address the contents of the second sentence, which is subject to challenge in this application. The arguments for lack of merits of the allegations in the application challenging this legal solution are explained above, in the section of the explanation concerning Article 18 paragraph 1 of the Law.

Based on the above, the Court finds that the conditions for dismissal of the application are met in terms of Article 25 paragraph 3 second sentence, on the basis of Article 28 paragraph 2 of the Rules, that is, due to res judicata.

14. On the basis of what has been stated, the Court decided as in items 1 and 2 of this Resolution.

15. The Court passed this Resolution, with regard to item 1, in the part referring to the law as a whole, Article 7 paragraph 1 item 1 and item 2 in the part: “from investigations on committed criminal offences or minor offences” and Article 23,  with a majority vote, and with regard to Article 3, Article 4 paragraph 2, Article 6 paragraphs 1, 2 and 3, Article 8 paragraph 3, Article 9, Article 18 paragraphs 1 and 2, and Article 25 paragraph 3 second sentence, unanimously, in the following composition: the President of the Court Elena Gosheva, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. U.br.48/2013

Separate opinion

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