Separate opinion

Separate opinion on the Decision U.no.27/2013

On the basis of Article 25 paragraph 6 of the Rules of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my voting against the Decision U.br.27/2013, adopted on 16.04.2014, for rejection of the application for the protection of the freedoms and rights referred to in Article 110 line 3 of the Constitution related to the freedom of public expression, I separate and explain in writing the following

S E P A R A T E   O P I N I O N

With the said Decision, with a majority vote the Constitutional Court rejected the application of Naser Selmani from Skopje, Natasha Stojanovska from Skopje, Frosina Fakova from Prilep, Snezhana Lupevska from Skopje, Biljana Bogdanovska from Skopje and Toni Angelovski from Skopje, for the protection of the freedoms and rights under Article 110 line 3 of the Constitution related to the freedom of public expression, filed through the Law Office of Filip Medarski from Skopje.

My dissenting opinion refers primarily to the inability to objectively stake my view on the subject, which I believe is a very specific case in which all information clarifying the legal and factual circumstances connected with it should have been taken into account. Given that the information, facts and evidence the Court took into consideration when making the decision were solely written by nature, I think they were insufficient to reach a meritorious and thoroughly measured decision. At the same time, I regret that the Court had not demonstrated readiness to clarify the dilemma by means of organising a public hearing in which it would have obtained an exact insight into the facts and direct detailed information about the event from all parties involved. After all, such a possibility exists in Article 55 of the Rules of the Constitutional Court, according to which as a rule a public hearing is held for the protection of freedoms and rights at which the parties to the proceedings and the Ombudsman are invited, and if necessary also other persons, bodies or organisations. Since this approach is currently absent, the Court decided to give credence to the statements and procedures outlined in the application only of one of the parties, without specifying and evaluating the evidence under the Constitution, the principles of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights by holding a public hearing.

The second important issue, which I find to be the essential legal issue, is whether the removal of the journalists from the hall of the Assembly on 24 December 2012 violated or restricted their freedom of expression. Judging from the indications in the said applications, I believe that the Court failed to respond adequately to the task in terms of whether the action which is deemed a violation of the freedom of public expression in the circumstances in which the crime was committed, was measured and evaluated analytically whether corresponding with the principle of “necessary in a democratic society” and whether a fair and proportionate balance was achieved between the action taken and the individual freedom of expression.

The Decision itself is contradictory in its statements, for a reason that first it affirmatively and broadly deals with freedom of expression, which among other things includes the freedom of public information along with the freedom to receive and impart information, then concludes that the removal of journalists is a restriction of the right of journalists to unobstructedly perform their activities and to inform the public about an event of great importance to the public, but concludes justifying the intervention (the disputed action) of the Assembly security, which is explained with the “protection of security, public safety and protection against disorder or crime, and protecting the rights of others
… ” without the existence of solid facts that would corroborate that view.

Article 16 of the Constitution of the Republic of Macedonia guarantees freedom of religion, conscience, thought and public expression of thought, along with the freedom of public information and free access to information. Under Article 70 of the Constitution, Assembly sessions are public. The Assembly may decide to work in the absence of the public by a two-third majority vote of the total number of Representatives. Relevant to the subject matter are also Article 43, paragraphs 1, 2 and 4 of the Law on the Assembly of the Republic of Macedonia, Articles 92, 93 and 94 of the Rules of Procedure of the Assembly cited in the Decision.

Of particular relevance to this case is Article 10 of the European Convention on Human Rights which guarantees freedom of expression, which includes freedom of having their own opinions and receiving and imparting information and ideas without any interference by public authority. Also, the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as provided by law that in a democratic society are measures necessary for national security, territorial integrity or public safety, protection of the order and prevention of disorder or crime, for the protection of health or morals, reputation or rights of others, for preventing the dissemination of confidential information or for maintaining the authority and impartiality of the judiciary. The structure of Article 10 indicates that the first paragraph defines freedom of expression, and the second one lists the conditions under which a state can, only on grounds prescribed by law, restrict freedom of expression.

According to the jurisprudence of the European Court of Human Rights, which interprets and applies this right, the purpose of protection of freedom of expression must be interpreted broadly to encompass not only the content of information and ideas, but also various forms and means through which they are expressed and received. It also means a positive obligation for the state through action to assist the respect for this right, and where it is threatened to find a form to protect, affirm and promote it. Any restrictions on freedom of expression can be based on one or more of the reasons listed in Article 10, paragraph 2 of the Convention, but only when there are clear legal bases for that allowing procedural and substantive guarantees and the objective is proportional, that is, corresponds to the balance between private versus public interest. Practically, journalists represent one of the specific categories of persons who are “holders of the right to expression.”

The European Court of Human Rights analyses each case in its entirety and in the context of the circumstances connected with it, whereby priority is always given to freedom of expression, and each restriction of the same must be an exception, which, if existing, must be interpreted very strictly and clearly. Such an assessment, particularly takes into account that the applied measure or restriction be prescribed by law; have a clear and legitimate purpose, and be necessary in a democratic society. The Court in particular takes account whether the restriction in the concrete case was “proportionate to the legitimate aim sought” and whether the explanation of the national authorities was “relevant and satisfying.”

Generally accepted view is that a healthy democracy presupposes direct control not only by the legislature and judicial authorities but also by the public or the media, which nourish the vitality of public debate. Freedom to receive information and ideas includes the right to request, access and collect information through lawful sources. This of course means that despite the media and journalists providing information to disseminate, this freedom includes the right of the public to be adequately informed especially when it comes to matters of public interest. In this respect, the European Court of Human Rights has a clear position that states cannot put themselves between the transmitter and receiver of information because they have the right to come into direct contact with one another upon their own will. The duty of journalists is to impart information and ideas on all matters of public interest and in a manner consistent with their duties and responsibilities, whereby the public has a right to receive them. Otherwise, journalism cannot perform its role of “public watchdog” critic, guardian of democracy and progress.

Considering the above-noted provisions and principles, I believe that in this case of great importance is the profession of the applicants, given that they are accredited journalists in the Assembly of the Republic of Macedonia, who based on their professional obligation followed in person a very important event of interest to the public, and which was obvious and expected to get a dramatic scale. It is a fact that the adoption of the Law on the Adoption of the Budget of the Republic of Macedonia for 2013, which was that day on the agenda of the Assembly of the Republic of Macedonia, was an event of particular public interest for which the public had a right to be informed.

I believe that it was crucial in its decision-making the Constitutional Court to clarify and explain the justification of the assessment and the reason for which it was decided that journalists must be removed from the gallery, especially since their removal was followed by events in the assembly hall that were of public interest and were not covered at all by the media. The Court had to assess such a degree of justification with the application of the instruments regularly used by the European Court of Human Rights, which means to assess whether the measure was prescribed by the law, whether it had a legitimate aim and whether it was proportionate and necessary in a democratic society.

In order to determine the facts and realise value assessment on the necessity of the action of removing the journalists from the gallery, it was necessary to clarify what was the reason for the Assembly security to decide to remove the journalists from the gallery, despite the apparent fact that all incidents and disorder in Assembly stalls were clearly physically isolated and distant from it. Absurd is the claim that it was done for the “security of the journalists” when it is an apparent fact that they were sitting in their seats and were extremely passive, with no action taken part in the events, but only observed, for which they have a legitimate right, because it is part of their professional reporting activity. It is also a fact that the journalists did not contribute to the conflict situation in any way (it is not negated in the letter of the Assembly either), they did not violate the order in the Assembly building, had no direct contact with the President of the Assembly or the Representatives, or the events outside of the Assembly building. Given this factual situation, despite the not completely clarified issues, it is clear that there is no “imperative necessity” for the taken disputed action, because people staying in the assembly gallery because of its physical separation in terms of the assembly hall cannot be directly involved in the events, nor contribute to an even larger-scale incident connected with the events inside. It is also evident that the journalists did not feel danger to their integrity, and for these reasons neither did they seek nor expect protection.

It is undisputed that on the basis of Article 43 of the Law on the Assembly of the Republic of Macedonia, the President of the Assembly authorised the police officers responsible for the security in the Assembly to restore order in the assembly hall and to create conditions for the start of the session. The letter stated that on its part it was the Assembly security which assessed that it was necessary to clear the gallery, for the security of those present and the people who were in the hall. The dilemma for which I believe the Constitutional Court should have also obtained information is again related to Article 43, since as seen from the attached letter from the applicants (journalists) to the Ministry of the Interior, the Sector for Internal Control and Professional Standards, it remains unclear and unanswered what is the identity of the persons who had removed them from the gallery and who had ordered such intervention.

I also believe that there was avoidance of the essence of the issue of the violation of freedom of expression with the explanation that the journalists then unobstructedly followed the Assembly session, which implies that they are responsible only for monitoring the session and nothing more than that. Regarding the credentials that journalists obtain to monitor the work of the Assembly, it is a fact that they do not specify anything in particular, in terms of the actions that the journalist was granted accreditation for, or what he/she is supposed or allowed to cover in the media. The services of the Assembly have a list of accredited journalists, cameramen, sound experts, etc. which is updated at the beginning of each calendar year, based on a letter written by the editorial staff from where they are coming, in which it is usually asked to grant the accreditation. Based on this approval, journalists and others enter the Assembly with their editorial or journalistic cards or only with an ID. Therefore, it is illogical to argue (as stated in the letter from the Assembly) that they were later on allowed to follow the assembly session unobstructedly, consciously avoiding the fact that the reporting does not cover only the session of the Assembly as such, but all events related to the work of the Assembly, including the disorder and tense situations that preceded the session. Practically, the journalists were denied to monitor the events that are tied to the Assembly and the situation of people who are elected representatives of the citizens, and that is undoubtedly of particular public interest. It is also unclear if there had been real care about the safety of journalists those who had been in the hallways or the press centre had not been removed either, which indicates how meaningful the assessment was that journalists were threatened in the gallery, and not in the corridors of Assembly that communicate with the assembly hall.

In this context, it is important to note that the events in the Assembly of the Republic of Macedonia of 24 December 2012 resulted in a several-month crisis that ended with the signing of the Report of the specially formed Expert Committee, composed of Representatives, legal experts and foreign officials which contains legal qualifications and recommendations which has its own particular political weight. It states that “the lack of appropriate guidelines for dealing with this kind of situations, including the absence of a strategy for dealing with the media in crisis situations resulted in the removal of the Assembly gallery, which violated the guaranteed rights of freedom of media and publicity in the work of the Assembly of the Republic of Macedonia. The Assembly should with caution and openness treat the freedom of the media to report and apply the principles of best European practice in this segment.” It is a fact is that the Prime Minister and the President of the Assembly expressed regret for the removal of the journalists from the gallery, whereby the President of the Assembly said he would seek a procedure to be conducted by the competent authorities to establish liability for the event.

Undoubtedly, freedom of public expression seen in the light of the role that media play in its embodiment, is one of the basic pillars of an open, democratic and accountable, responsible society. Citizens have the right to be familiar with the information that allows them to exercise their civil rights and duties, to participate in the social mainstream of their country, and among other things, to keep abreast of the activities of the Representatives who legitimately represent them in the Assembly and participate in the decision-making process. In fact, through the media as transmitter of information it is the citizens who initially possess that right, which is essentially the right of the civilian public, not the media in themselves, which exercise it on their behalf. Finally, because of these democratic values, I can just once again express my regret that the Constitutional Court did not attempt to clarify fully all elements of this case, which would contribute to a thoroughly reasoned and good judgment.

Dr Natasha Gaber-Damjanovska
Judge at the Constitutional Court

Decision U.no.27/2013

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