Decision U.no.107/2010

U.no.107/2010

On the basis of Article 110 line 3 of the Constitution of the Republic of Macedonia, and Articles 55, 56 and 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 16 February 2011, following a public debate held on 16 February 2011, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. The request of the person Levko Tanevski, a lawyer from Skopje, for the protection of the freedoms and rights under Article 110 line 3 of the Constitution, referring to the public expression of thought, guaranteed under Article 16 of the Constitution, violated by the Judgment K.br.80/2010 passed by the Basic Court in Shtip on 11 December 2009 and Judgment KZh.br.94/2010 passed by the Court of Appeal in Shtip on 22 March 2010, IS REJECTED.

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

3. Levko Tanevski, a lawyer from Skopje, filed a request with the Constitutional Court for the protection of the freedoms and rights under Article 110 line 3 of the Constitution referring to the freedom of conviction, thought and public expression of thought, violated with the judgments noted in item 1 of the present Decision.

According to the submitter of the request, the said judgments with which he was found guilty for an expressed opinion in rendering legal assistance violated Article 8 line 1, Article 16 paragraphs 1 and 2, Article 53 and Article 54 of the Constitution of the Republic of Macedonia, Article 19 of the International Pact on Civil and Political Rights and Article 10 paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Additionally, according to the submitter of the request, the judgments violated Article 21 paragraphs 1 and 2 of the Law on Attorneyship, under which a lawyer may not be held answerable for an expressed opinion while rendering legal assistance and performing public mandates, and that a lawyer enjoys immunity in the performance of the activity of an attorney. At the same time, there was also a violation of Article 176 of the Criminal Code, under which “a person who articulates something offensive for another person in the performance of an official duty, political or other social activity shall not be punished” which also includes the attorneyship. Given these legal provisions, the Resolution K.br.485/08 of the Skopje I Basic Court and Resolution KZh.br.1298/08 of the Skopje Court of Appeal were submitted to the first instance court, in which in a same legal situation the lawsuit of the plaintiff against the body for libel had been dismissed, which as pieces of evidence had been properly derived at the haring on 16.03.2009 in the procedure conducted against him, but the court had not cited them at all in the first instance judgment. According to the submitter of the request, in such and similar cases where an opinion is expressed in the performance of the official duty first of all by judges, public prosecutors and attorneys, there are legal obstacles for conducting a procedure against the holders of these functions for an opinion articulated in these procedures.

What the submitter found contradictory were the statements of the first and second instance courts meaning that the attorney was not sentenced for the opinion articulated as an attorney, when in the very enacting clause of the judgment it reads: “As an attorney of the plaintiff AD “Jaka Tabak” …

The truthfulness and untruthfulness of the statement owing to which the attorney Levko Tanevski was sentenced could have been established in the case in which he appears as a representative (P.br.831/99), and could not be established in a procedure against him for a libel. The attorney Levko Tanevski is the first attorney in the Republic of Macedonia (maybe in Europe as well) who has been sentenced for the criminal offence of libel for stated facts and circumstances conveyed by his parties in the lawsuit that they filed and which was with similar content as the incriminating statement (and not as established by the first and second instance courts that the attorney filed this lawsuit). After this precedent which is in contradiction with the Criminal Code and the Law on Atorneyship a path is opened for every judge, attorney and public prosecutor to be sued for statements made in the procedures, and our courts in other procedures for criminal offence of libel shall establish the truthfulness, that is, untruthfulness of the statements made in another case.

The legal protection for an articulated opinion also exists in the European Convention on Human Rights in Article 10 which is part of the legal order of the Republic of Macedonia, and which was applied by the Court of Appeal in Bitola acting upon the appeal of a punished attorney in another case for an expressed opinion (KZh.br.802/2009).

The truthfulness of the statements that were the subject-matter of the criminal procedure could have been established additionally also from the effective judgment of the Shtip Basic Court P.br.555/09 of 12.03.2009 and Judgment GZh.br.1553/09 of 10.11.2009. The reasons that were the subject-matter of the criminal procedure were the reasons to reject the lawsuit claim in a civil procedure for collection of pecuniary claim of the plaintiffs S.N. and V.N.

The submitter of the request notes that the statements made on the case P.br.831/99 (merged with P.br.555/09) are in legal connection with the subject-matter of the dispute, and at the same time it was established that the statement was true in the civil procedure, and in the criminal procedure K.br.80/2010 the same statements were shown as untrue. Hence, the question put is whether the Basic Court in Shtip and the Court of Appeal in Shtip present the damaged parties (S.N. and V.N.) on two occasions as dishonest when they reject their lawsuit claim in the amount of 600,000.00 Denars and adjudicate them 9,000.00.

An interpretation of the Bar on Article 21 of the Law on Attorneship was also submitted to the case, which was not considered.

The request also notes that the submitter was not enabled to prove the truthfulness of the statements in the incriminating statement since the court did not accept to derive evidence that was proposed by him: hearing of the witness, obtaining of the cases KO.br.112/2007 and KO.br.117/2007 and to have an insight into them, and to derive evidence by having an insight into specifically enumerated cases, petitions, minutes and decisions that had been submitted during the first instance and appellate proceedings, although in the second instance judgment it was charged to derive other pieces of evidence that were necessary to properly establish the facts.

The absurdity of the sentencing judgment was even bigger given the fact that owing to the truthfulness of the statements established in the judgment P.br.555/09 the lawyer Levko Tanevski managed to annul the agreement on lawyer representation, and the Criminal Court found the same statement as untrue and found him guilty despite the legal obstacle to conduct a procedure against the lawyer pursuant to Article 21 of the Law on Attorneyship.

In addition to the case P.br.831/99 which “Jaka Tabak” – Radovish was conducting through the attorney Levko Tanevski against the plaintiffs for the annulment of an agreement on lawyer services, there were such lawsuit also by other trade companies such as “JAKA 80” – Radovish which was conducting a dispute against S.N. for the annulment of an agreement on lawyer representation where a remuneration of 8% of 7,680,470.00 Denars was agreed, which fact could be established by the Judgment of the Supreme Court of the Republic of Macedonia Rev.br.766/07 of 9 July 2008.

Furthermore, according to the submitter of the request, the offence with which the lawyer Levko Tanevski was charged was not a criminal offence pursuant to the Criminal Code. Namely, as an effect and subject-matter of the committing of the criminal offence of libel it was required to state something untrue. From the statements of the lawyer Levko Tanevski it was possible to establish with certainty that these were true statements and that his beliefs were corroborated with evidence given before the court in a procedure upon the case P.br.831/99 merged with 555/99), in which procedure the plaintiffs did not indicate with anything that the what was noted in the statements was untrue.

In order to have a criminal offence of libel, it is required for the claim to be such that what is stated or conveyed may cause detriment to honour and reputation. In this concrete case the personal opinion of the offender about what statement may cause detriment to the damaged, or, eventually, the personal feeling of the harmed or injured, must not be decisive, although in principle stating something untrue that affects him subjectively should be a libel also according to a general value judgment.

For these reasons, according to the submitter, the court established incorrectly the non-material damage only on the evidence derived by a neuropsychiatrist for sustained non-material damage.

At the same time, the request notes that in no moment whatsoever, neither even when making the statement nor even now did the lawyer Levko Tanevski wish to assign value negative stance to the plaintiffs, nor to offend the same for a simple reason that the statements were given in a procedure in which the plaintiffs request to exercise pecuniary claims for which Levko Tanevski’s client believed were without merits.

The submitter of the request concomitantly considers that the court determined the amount of the damage in contradiction with the Law on Obligation Relations, Law on Civil Proceedings and Criminal Procedure Code, for a reason that the plaintiffs did not have a division of the claimed amount of 300,000.00 denars each, on ground of which they claimed damage from the non-material damage. The first instance court did the division on its own initiative, without having a specified lawsuit claim, on the basis of its own assumption that the plaintiffs claimed 150,000.00 denars each for inflicted pain, that is, 150,000.00 denars each for violation of repute, from which one gets the impression that Article 189 of the Law on Obligation Relations was not applied. According to the submitter, such way of determination of the damage compensation turned into a ground for material gain and the plaintiffs were enabled what they had been unable to obtain – the amount of 600,000.00 denars in the civil proceedings upon the case P.br.831/99 to obtain in the criminal procedure when an amount of 400,000.00 denars was adjudicated to them for inflicted non-material damage.

4. At its public debate and at the session, and from the insight into the evidence submitted and obtained, the Court found that on 1 March 1999 a contract was made for provision of lawyer’s services between the lawyers V.N. and S.N. from Skopje, as providers of the lawyer’s services and “Jaka Tabak” – Radovish, as the user of the lawyer’s services, represented by the general manager Z.M. Under this contract, the lawyers committed themselves to represent “Jaka Tabak” – Radovish in the procedures upon a lawsuit for violated possession against natural persons, with a proposal to render an interim measure for securing a non-pecuniary claim against natural persons, both before the Basic Court in Shtip, and before the higher courts. “Jaka Tabak” – Radovish committed itself to pay an amount of 650,000.00 denars to the lawyers for the services provided, upon an invoice sent, by 30 April 1999 at the latest, irrespective of the outcome of the disputes. The parties envisaged for the contract to be unbreakable, and in case of dispute competence of the Shtip Basic Court.

From the excerpt from the trade registry Sl.br.40/99 of 4 March 1999 it arises that at the time the contract was made, there was an ongoing procedure in the Shtip Basic Court for harmonisation and change of a previously authorised person of “Jaka Tabak” – Radovsih, but on 4 March 1999 when the excerpt was made the resolution for harmonisation and change was not effective.

Upon the expiration of 30 April 1999, the lawyers V.N. and S.N. from Skopje, submitted an invoice no.18/99 to “Jaka Tabak” – Radovish for the payment of the agreed amount of 650,000.00 denars, but “Jaka Tabak” – Radovish did not pay the invoice, following which the lawyers filed a lawsuit for the payment of a debt with the Shtip Basic Court. The lawsuit was entered under P.br.555/99.

On 16 September 1999 “Jaka Tabak” – Radovish filed a lawsuit against V.N. and S.N., and Z.M., all from Skopje for the annulment of a contract for provision of lawyer’s services. The lawsuit was entered under P.br.831/99, and it contains a special proposal for merger with the procedure upon the case P.br.555/99. Upon the lawsuit filed by “Jaka Tabak” – Radovsih Levko Tanevski, a lawyer from Skopje, was engaged as a proxy.

With its Judgment P.br.831/99 of 10 May 2005 the Shtip Basic Court sustained the lawsuit claim of the plaintiff “Jaka Tabak” – Radovish, annulled the contract made for the provision of lawyer’s services owing to a disproportion of mutual provisions, charged the parties sued V.N. and S.N. to pay the costs of the procedure. In the passing of the judgment, Levko Tanevski appeared as a proxy of the plaintiff, as apparent from the introduction to the judgment.

In the passing of the judgment, the Shtip Basic Court made an insight into the contract made and established that the contracting parties had not envisaged the making of written petitions, but presentation of the Company before the courts in Shtip and Radovish. From the insight into the cases, which were entered before the Basic Court in Radovish (P.br.47/99 and P.br.45/99) and other acts it was established that not a single hearing had been held on the cases, as it had been agreed upon, from where the court found that the lawyers sued had not represented the Company (with the exception of one drafted minutes). The fact that the parties sued took only one written action-drafting of a petition for which the lawyer’s reward is 10,000.00 denars the court found to mean a big difference between the value of the actions taken by the lawyers, which had not been envisaged in the contract, and the agreed amount for representation (650,000.00 denars), for which reasons the lawsuit claim for annulment of the contract was sustained.

The Shtip Court of Appeal, with its judgment GZh.br.1935/2005 of 10 May 2005, rejected the appeal of V.N. and S.N. for lack of merits and confirmed the first instance judgment, confirming the stance of the lower court for the existence of an apparent disproportion between the obligations of the contracting parties.

Displeased by the judgment, the lawyers S.N. and V.N. submitted a proposal with the Public Prosecutor’s Office for raising a Request for the protection of legality, to which the lawyer Levko Tanevski gave an answer which contains the statement for which later on he was sentenced for the criminal offence of “Libel”. In the request for the protection of legality the Public Prosecutor considered that the law had been violated, since in his opinion, the lawyer and the party may agree on the reward and costs and manner and means of payment upon their free choice, which was defined in the Contract on provision of lawyer’s services, concluded pursuant to Article 1 paragraph 2 of the Tariff for reward and compensation for the work of lawyers. According to him, if the court established that for the reasons of the decisive facts the contract had not begun to be realised at all, that is, that the parties sued had not fulfilled their obligation, the plaintiff could have requested a break of the bilateral contract, and not annulment of the contract.

In the answer to the Request for the protection of legality, the proxy Levko Tanevski, noted, inter alia, that the lawsuit claim upon the case P.br.831/99 had been filed owing to the basic reason – obvious disproportion of the mutual provisions. More specifically, for lawyer’s actions of 5,000.00 denars envisaged in the Tariff for reward and compensation of the lawyers, a remuneration of 650,000.00 denars had been agreed, and actions for 6,000.00 denars had been realised. According to him there was not a single legally relevant fact on the basis of which the first instance judgment could be repealed, and the wish of the parties sued to earn 40,000.00 euros (principal debt and interest) without performing any action was, in his opinion, “to put it most mildly, dishonest”, and the enablement to take that money, on the basis of “virtual actions”, that is, without taking any action whatsoever was collaboration in the performance of the unlawful actions. Then follow the statements for which later on the lawsuit was filed, which read as follows: “This is even more weird since the same party sued four years ago had concluded a number of such contracts with several companies from the area of the Court of Appeal from Shtip, which were still staggering in the legal labyrinths of the Shtip Basic Court where the neighbourhood competence was agreed under these contracts for lawyer’s representation, where the lawyers agreed and took only several legal actions, and they disproportionately request a compensation of several tens of thousand euros, and thereby the lawyers are seated in Skopje”.

With its Resolution GZZ.br.142/2006 of 23 May 2006 and 6 June 2007 the Supreme Court of the Republic of Macedonia sustained the request for the protection of legality and the case P.br.831/99 was remitted to the first instance court to be adjudicated again.

In parallel with the procedure upon the case P.br.831/99 there was also an ongoing procedure upon the case P.br.555/99 upon the lawsuit of V.N. and S.N. against “Jaka Tabak”, for a debt and on 20.05.2008 this case was merged with the case P.br.831/99, following which the Basic Court in Shtip took its judgment P.br.555/99 of 12.03.2009 partially sustaining the lawsuit claim of V.N. and S.N. and charged “Jaka Tabak” to pay the plaintiffs the amount of 9,100.00 denars for debt, and for the claimed difference until the amount of 650,000.00 denars it rejected the claim for lack of merits. At the same time, the lawsuit claim of “Jaka Tabak” was partially sustained in a manner that the court broke the contract for provision of legal assistance concluded with V.N. and S.N. for the amount of 640,000.00 denars, and for the amount of 9,100.00 denars the contract remained in force. With its judgment GZh.1553/09 of 01.11.2009 the Court of Appeal in Shtip confirmed the first instance judgment.

Considering that in the answer to the request for the protection of legality in the procedure upon the case P.br.831/99 the criminal offence of “Libel” under Article 172 paragraph 1 of the Criminal Code had been committed, on 20 June 2006 the lawyers V.N. and S.N. filed a lawsuit against the lawyer Levko Tanevski.

In the criminal procedure the Basic Court in Shtip on several occasions took judgments which were repealed by the higher court, owing to essential violations of the procedure and incompletely and improperly established facts of the case. Finally, with the judgment K.br.80/2010 of 11 December 2009, Levko Tanevski was found guilty of the committed criminal offence and punished with a fine and charged to compensate non-material damage to the plaintiffs S.N. and V.N.

From the insight made into the Judgement K.br.80/2010 of 11 December 2009 of the Basic Court in Shtip, it was established that with the said judgment the defendant Levko Tanevski from Skopje had been found guilty of two committed criminal offences of “Libel” under Article 172 paragraph 1 of the Criminal Code for which he had been sentenced to pay 50 daily fines, that is, an amount of 30,750.00 denars, and to pay an amount of 180,000.00 denars to the damaged V.N. for non-material damage for suffered mental pains owing to the violation of the repute and honour and an amount of 220,000.00 denars to S.N. from Skopje for non-material damage for suffered mental pain owing to a violation of the repute and honour, within 15 days from the date the judgment became effective.

The offences were committed since Levko Tanevski, as the lawyer of “JAKA TABAK” Radovish, in his written petition of 22 May 2006 submitted through the Shtip Basic Court to the Supreme Court of the Republic of Macedonia, giving an answer to the request for the protection of legality filed by the Public Prosecutor’s Office of the Republic of Macedonia, against the judgment P.br.831/99 of 10 May 2005 of the basic Court in Shtip and against the judgment GZh.br.1935/2005 of 19 January 2006 of the Shtip Court of Appeal, stated a number of untruths about the damaged V.N. from Shtip and S.N. from Skopje, which was detrimental to their repute and honour achieved as lawyers. He did this in a way that he stated: “This is even more weird since the same party sued four years ago had concluded a number of such contracts with several companies from the area of the Court of Appeal from Shtip, which were still staggering in the legal labyrinths of the Shtip Basic Court where the neighbourhood competence was agreed under these contracts for lawyer’s representation, where the lawyers agreed and took only several legal actions, and they disproportionately request a compensation of several tens of thousand euros, and thereby the lawyers are seated in Skopje”, although none of the assertions was true.

At the main hearing the plaintiffs remained with their lawsuit fully and requested that the defendant be found guilty of two criminal offences of “Libel” under Article 172 paragraph 1 of the Criminal Code and proposed that the court adjudicate them non-material damage for mental pains owing to a violation of their honour and repute for each of them individually a total amount of 300,000.00 denars.

In his defence the defendant Levko Tanevski personally and through his defence attorney stated that he did not plead guilty and that pursuant to Article 21 of the Law on Attorneyship he could not be held answerable for an opinion stated while rendering legal assistance and requested that he be acquitted.

In the probative proceedings, the court heard the plaintiff – the damaged V.N. who remained fully with his claim made on 16 March 2009, heard the plaintiff the damaged S.N., read the answer to the request for the protection of legality filed before the court on 22 May 2006, judgment P.br.831/99 of 10 May 2005, the slip receipt with a proposal for execution with a resolution for permission for execution I.br.1494/99 of 19 May 1999, invoice no.18/99 of 2 April 1999, the contract for provision of lawyer’s services of 1 march 1999, the psychiatric finding and opinion of 23 April 2008 by the forensic expert, and judging each piece of evidence separately and all of them together and the defence of the defendant the court established the following:

“In this concrete situation by submitting an answer to the request for the protection of legality through the Shtip Basic Court to the Supreme Court of RM Skopje, the defendant noted untrue claims in the same about the plaintiffs for which third persons also learned given the petition request was filed through the Shtip Basic Court to the Supreme Court of RM in Skopje, and in that way he damaged the honour and repute of the plaintiffs who have been working for many years as successful lawyers who have proven themselves in the environment where they have been living and working.

From the statement of the damaged V.N. it was established that the plaintiffs had not concluded contracts as noted by the defendant in the petition request – Answer to the request for the protection of legality of 22.05.2006, that is, that what had been stated in the petition request was untrue and it was established that the same is untruth for the plaintiff V.N. as a lawyer, and the plaintiff S.N., which damaged the honour and repute they enjoy in the society as lawyers. ……..

………At the main hearing, from the evidence derived that was proposed by the defendant it was not proven that the claims noted in the petition were true and it was not proven that there had been any contracts made by he plaintiffs with legal subjects in the area of Shtip Court of Appeal where the plaintiffs requested disproportionate compensation for their work………..

………The incriminating text noted in item 1 of the enacting clause of the judgment, in particular judging this text with the remaining of the content of the written petition – Answer to the request for the protection of legality, the aim of the defendant was to present the plaintiffs as dishonest lawyers who wished to earn a lot of money with dishonest work. The defendant was aware that he was stating untruths in the petition and that those untruths could damage the honour and repute of the plaintiffs but he concurred with that and submitted this petition to the court. The defendant is a lawyer and as a lawyer he knew that such actions are illegal and are a criminal offence of libel……

The court assessed the defence of the defendant that with what he had written in the answer to the request for the protection of legality he had not stated any untruths which are detrimental to the honour and repute of the plaintiffs and that pursuant to Article 21 of the Law on Attorneyship he could not be held answerable for an opinion stated while rendering legal assistance, but did not trust it since it is in contradiction with the evidence derived at the main hearing and was given with a view to avoiding criminal liability……….

This concrete situation does not concern an opinion given while rendering legal assistance but statement of untrue claims for the damaged-plaintiffs which the defendant concluded on his own and thereby he damaged their honour and repute. ……..The untruths stated that are described in the enacting clause of the judgment are untruths given with a view to discrediting and disparaging and underline dishonesty of the plaintiffs as lawyers and this is in contradiction with the professional standards of ethics of the lawyers, that is, such conduct of the defendant is contrary to the Code of Professional Ethics of Lawyers, since the stated untruths are articulate by a colleague lawyer in a court procedure. The court established that this case cannot concern a legal opinion stated about the plaintiffs in the petition, while rendering legal assistance, since the incriminating text has nothing to do with the legal matter for which the dispute was initiated between the parties in the case P.br.831/99, does not refer to facts and evidence in connection with this legal matter, and in the opinion of this court the text written in the answer to the request for the protection of legality is given with a view to present the lawyers-parties sued in that dispute as dishonest.

……The court took as aggravating circumstances the fact that the criminal offence had been committed against two persons who are his colleagues lawyers and that it had been committed in a court procedure………”

Pursuant to Article 102 paragraphs 1 and 2 of the Criminal Procedure Code the court decided on the property-legal claim of the plaintiffs.

Displeased with such judgment passed by the Shtip Basic Court, the defendant Levko Tanevski from Skopje lodged an appeal against the judgment K.br.80/2010 of 11 December 2009. Acting upon the appeal the Court of Appeal in Shtip passed its Judgment KZh.br.94/10 of 22 March 2010 rejecting the defendant’s appeal for lack of merits and confirming the first instance judgment.

Deciding upon the appeal lodged, and upon previous evaluation of the statements in the same, the Court of Appeal in Shtip established that the allegations in the appeal about committed essential violations of provisions of Article 355 paragraph 1 item 11 of the Criminal procedure Code were not true since the first instance judgment was clear, understandable and not contradictory to the evidence derived. All relevant facts were established on the basis of which it was decided on the existence of the criminal offences, and in the reasoning of the judgment the first instance court gave sufficient reasons for all decisive facts that comprise the elements of the criminal offence of “Libel” under Article 172 paragraph 1 of the Criminal Code.

According to the Court of Appeal, the first instance court clearly stated which evidence it trusted and for which reasons the defence of the defendant rejected for lack of merits, and that the first instance court determined the suffered non-material damage properly being guided by the finding and opinion of the forensic expert and determined the compensation appropriately.

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

Article 16 of the Constitution of the Republic of Macedonia guarantees the freedom of conviction, conscience, thought and public expression of thought. Under Article 54 of the Constitution, the freedoms and rights of the individual and citizen may be restricted only in cases defined by the Constitution, only during a state of war or emergency, under the provisions of the Constitution, whereby the restriction of the freedoms and rights may not be discriminatory on grounds of sex, race, colour of skin, language, religion, national or social origin, property or social status. The restriction of the freedoms and rights, under paragraph 4 of this Article may not refer to the right to life, prohibition of torture, inhuman and degrading treatment and punishment, legal determination of punishable offences and penalties as well as the freedom of conviction, conscience, thought and public expression of thought and religious confession.
Under Article 19 of the International Covenant on Civil and Political Rights, 1) Everyone shall have the right to hold opinions without interference; 2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice; 3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.
Under Article 10 of the Convention, 1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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

The Constitution of the Republic of Macedonia takes as a starting point the guarantee of the very freedom of conviction, conscience, thought and public expression of thought, in a manner that is general for all individuals and the provision in Article 54 paragraph 4 of the Constitution which rules out restriction of this freedom must be interpreted from this very aspect of generality.

However, this does not mean that there is no restriction whatsoever for the individual in the manifestation of the generally guaranteed freedom of conviction, conscience, thought and public expression of thought. The limits of manifestation of this freedom for the individual are in the actions sanctioned by law, irrespective of whether it is a criminal or civil-legal sanction. Hence, the constitutional-legal dispute whether there is a violation of the constitutionally guaranteed freedom of public expression of thought by means of sanctioning its manifestation is reduced to a constitutional-legal assessment whether this sanction has violated the very content of the constitutionally guaranteed freedom of the individual to publicly express his opinion without any restrictions whatsoever, or is a sanctioned action which, although as its manifested form has the public expression of thought, has actually lost the sense of freedom of thought and public expression of thought which is guaranteed and protected by the Constitution, transforming into an action violating other constitutionally protected freedoms, rights and interests.

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

Such high level of guarantee of the freedom of thought and its public expression in the Constitution of the Republic of Macedonia, interpreted in light of international law may not be applied without restrictions. For the purposes of ensuring joint life, the legal order must restrict the freedom of the individual in order to protect the freedom of others, that is, to restrict their application in content.

Freedom of expression of thought of lawyers is a special context.

Under Article 53 of the Constitution, attorneyship is an autonomous and independent public service, which ensures legal assistance and carries out public mandates in accordance with law.

The Law on Attorneyship defines that a lawyer is free, autonomous and independent in his work and within the frameworks of the law, acts of the chamber and authorisation he decides autonomously on the manner of representation of the rights and interests of the party. Pursuant to this Law, the lawyer provides legal assistance to the party conscientiously and professionally pursuant to law, code of ethics of lawyers and other acts of the chamber, and keeps what the party has entrusted to him in confidentiality.

Pursuant to Article 21 paragraph 1 the lawyer may not be held answerable for an opinion articulated while providing legal assistance and performing public mandates, and pursuant to paragraph 2 of the same article of the Law, in the performance of the activity of a lawyer the lawyer enjoys immunity. Pursuant to paragraph 3 of this article of the Law, the lawyer may not be deprived of his liberty or detained for a criminal offence committed while performing the activity of a lawyer without prior consent of the Bar of the Republic of Macedonia.

The Law on Attorneyship in a separate part regulates the issue of liability for a violation of the duty of a lawyer and the reputation of the attorneyship. Articles 30-32 of the Law defines the more serious violations of the duty of a lawyer, disciplinary measures that may be pronounced against a lawyer (public reprimand, fine in the amount of up to ten-time amount of the annual bar fee and interim termination of the right to perform the activity of a lawyer for a period of up to one year), the right to an appeal and the right to court protection. It should be pointed out that disciplinary punishment of a lawyer on the basis of these provisions is in the hands of a competent body of the Bar.

Starting from the specific role of lawyers in the process of the protection of the right of their clients and in the direction of promoting the aims of justice, the Basic Principles of the Role of the Lawyer were adopted at the 8th UN Congress for Prevention of Crime and Treatment of Perpetrators held in Croatia in 1990, according to which principles lawyers should enjoy civilian and penal immunity for relevant statements made in good faith in written or verbal accounts in their professional addresses before a court, in order to be able to perform their professional functions without threats, obstruction, mistreatment or inappropriate interference, not to be subjected to legal accusations or administrative, economic or other sanctions …professional obligations, standards and ethics. In the administration of justice, lawyers will always conduct in accordance with law and recognised standards and ethics of the legal profession.

In Recommendation No.R2000(21) of the Council of Europe Committee of Ministers, member States are recommended to take and reinforce all measures they consider necessary in order to implement the freedom of exercise of the profession of lawyer whereby it is provided for that lawyers should not be subjected to laws with any sanctions whatsoever or pressure in case as they act in line with their professional standards.

In the context of the basic principles of the role of lawyers and the Recommendation of the Committee of Ministers, in the Judgment Nikula v. Finland (item22) the Court in Strasbourg indicates to the research of the International Centre for Legal Testify, conducted with regard to a number of countries of the Council of Europe (for instance, Belgium, Denmark, France, Italy, the Netherlands, Spain, Sweden and the United Kingdom) and some other states (Australia, Canada and South Africa), on the basis of which it concludes that most of them give a privilege to lawyers with regard to statements made while representing the parties in court. While the scope and application of this privilege differs from one country to another, each state included in the research recognises that the ability of the lawyer to express himself is closely connected with the obligation of the lawyer to defend his client. The privilege for the alleged statements of libel enables the defence attorney to contest as efficiently as possible relying even on facts for which they cannot be certain if they are true. For instance, in the Netherlands the statements that the prosecutor misused his/her discretionary right is almost regularly made by the lawyers of the defence. Potentially relevant statements that are totally without merits are simply not taken into consideration. Where criminal sanctions are admissible in theory (item 24 of the judgment), in most of the legal systems studied by the Centre in its research, they are rarely applied in practice and that is usually in extreme circumstances and under condition the intention to be able to be demonstrated (seen), contrary to the usual carelessness. Even in a situation when the statements of the lawyer may in principle be the subject of restrictions, they are generally applied only when the statement is not only libelling but also without any connection with the procedure or the parties.

6. Accepting the stated general stances about the special position of the lawyers and their role in the legal system, the Court considers that the lawyer should have the freedom of expression of thought, stances and criticism as long as he does that within the frameworks of the procedure for the purposes of successfully representing the interests of clients. The lawyer should be free to express his opinion without restraint from stating legally relevant factual claims referring to the opposite party including its lawyer.

The Court does not find disputable that the question of freedom of expression and its restriction or misuse is very sensitive, in particular when that freedom should be balanced with the right to privacy, honour and reputation that should be established in every concrete case.

In this concrete case, taking into consideration the established facts of the case, that is, the content of the contested judgments, the statements in the request, the provisions in the Law on Attorneyship, the case-law of the European Court for Human Rights, the Court judged that there is no violations of the freedom of public expression of thought which is manifested with qualification of the expressed opinion as a committed criminal offence of “Libel” or more specifically according to the Court the pronouncement of penalty for libel is not restriction of the freedom of expression of thought of the submitter of the request guaranteed in Article 16 of the Constitution.

This is for a reason that this concrete case concerns allegations for professional inappropriate work of the lawyers that the submitter of the request wanted to present as dishonest.

Since this concrete case refers to expressed stances and criticism which by their content have the character of libelling statements, the Court considers that the threshold of tolerance for restriction of the freedom of expression is justifiable lower. The expression of offensive criticism exceeding the harsh criticism and with which the lawyer personally disparaged and offended them, according to the Court may not be justified with the claim that the lawyer strongly believed that he did not intend to question their honour and reputation with the stances and criticism he articulated.

The Court believes that the stated stances that damaged the honour and reputation of the lawyers could be acceptable in certain circumstances, and in particular in the case of defending the client by the lawyer for serious criminal offences for which a prison term is threatened, whereby the tolerance threshold may be higher than in other cases as it was done in this concrete case.

Given the fact that in this concrete case the stated opinion, stances and criticism exceeded the limits of possible tolerance, that is, exceeded the allowed limits and thereby violated the honour and repute of the lawyers, the Court found that establishing all legally relevant facts and circumstances and taking the appealed decisions the first and second instance courts acted within the frameworks of their judicial competences, owing to which there may not be a question of a violation of the right to freedom of public expression of thought.

With regard to the statements in the request that the established non-material damage was too high that is, disproportionately determined by the first and second instance courts, it is an issue that goes beyond the sphere of competence of the Constitutional Court.

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

8. The Court took the present decision with a majority vote in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Dr Trendafil Ivanovski, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.

U.no. 107/2010
16 February 2011
Skopje

PRESIDENT
of the Constitutional Court of the Republic of Macedonia,
Branko Naumoski

Separate opinion

 

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