Separate opinion

Separate opinion on the Decision U.no.147/2011

On the basis of Article 25 paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my partial voting against the Decision U.br.147/2011 of 24.11.2011, I separate and explain in writing my

S E P A R A T E   O P I N I O N

Uttering a pleasure that the judges accepted the legal opinion that I stated in the context of the criminal offence of “Libel”, upon my voting against the Decision of the Court in the part referring to the criminal offence of “Insult”, my duty requires that I separate in writing my dissenting opinion.

The starting point in the analysis of the question about the possible violation of the freedom of expression in the context of the sentence for the criminal offence of “Insult”, and the sentence for the criminal offence of “Libel”, is the fact that the column refers to, and is part of, the debate on an issue of public interest, that is, nomination for a head of the state. Unlike the incriminating part with regard to the criminal offence of “Libel”, which has a clear private context and an identified focus on one person, here it is apparent that the applicant first states his own value stance about a condition in the society connected with the nomination of Mr Ivanov as President of the state, and second he does not mention at all the name of the injured as a special addressee of the statement. According to my opinion, neither does the way of expression in the given context have general insulting qualities nor may the injured party identify himself in the text as a victim of underestimation or insult, even if the text had such a quality.

The title of the column by itself implies comparison represented as a juxtaposition of two schools. In the context of the nomination for election by the citizens (or other electoral bodies, or any election), each comparison legitimately prefers one vis-à-vis another or other options. Such a type of comparisons necessarily implies an affirmation of advantages of the one, an emphasis of disadvantages of the other alternative, qualitative evaluation, etc., with a view to convincing the auditorium in the acceptance or rejection of a motion. The manner of such expression certainly has its limits, but when political expression is in question, as sustained by the Court in Strasbourg, the room for restriction of the freedom of speech on issues of public interest is small, and the participant in the debate has the right to a certain level of exaggeration, even provocation, and may use immodest statements (Lindon v. France and others). The applicant insists that he used this comparison in the headline and the text as a metaphor: Frankfurt school – a synonym of prestige, and Demir Hisar achool – a synonym of a school from province, vis-à-vis the finding of the courts that through Demir Hisar school he actually meant the psychiatric hospital in Demir Hisar, which in itself was degradation, humiliation and insult of the injured party. I concur with this explanation given by the applicant. It is not necessary to speculate what he meant, that is, what metaphor he made with the use of such headline, that is, comparison, since the explanation for that is given in the text itself, in the part in which this comparison is used. Namely, in the text: “In our state the dominant school which is reinforcing itself is the Demir Hisar school. The latest indication is the settlement of the party tender of VMRO-DPMNE. The cheapest candidate won the tender…”, what is unambiguously perceived is the characterisation of the so-called Demir Hisar school (which, certainly, does not exist as such) as a “school” which promotes “cheap” (low-value) candidates, which should be something opposite of the known Frankfurt philosophical school and its prominent representatives. Furthermore, the reference to Pulp, a character from the same named novel by Charles Bukowski, clearly suggests the negative value stance for the qualities of the presidential candidate.

These statements may sound immodest and have an underestimating tone. The first instance court even in the enacting clause of the judgment found that the defendant, probably upon his own recognition, belongs to the Frankfurt school (sic). However, in the context of a public debate on nominated presidential candidates, I believe that this type of expression is quite legitimate and not at all unusual and by itself may not be considered to be a violation of the freedom of expression. As a matter of fact, even the courts obviously share the same stance, given that the ground for the sentence and the penalty for insult were not the low evaluation of somebody’s qualities by the defendant in the context of what he stated, which he does not deny, but the understanding of the courts that Frchkoski used the Demir Hisar school as a metaphor for psychiatric hospital, and that he ranks the injured party in that school as something degrading in public. We are familiar with different forms of metaphorical or figurative expression of differences in levels, values, etc., such as “God and hatter”, or “Vienna school – Balkan stream”, “Mercedes and Zastava 750”, etc., and in the given context I see no reason the contested comparison to mean something more than that. As to the others, however, I am not familiar that anybody has been punished.

The first instance court sustained fully the account of the injured party (page 5 of the judgment) that the Demir Hisar school was an allusion that the persons belonging to it were part of the psychiatric hospital in Demir Hisar and that they were mentally ill. I consider that this understanding is an exaggerated construction which does not arise from the text and may by imputed only. In the text there is no indication whatsoever pointing to the mental status of the presidential candidate, or to any person that is mentioned or not in the column, or that there is a logic to mention Demir Hisar as a city only in connection with the psychiatric hospital, for which it is a question how many people in Macedonia know about. Well, Demir Hisar surely also has some other characteristics, including the one that it is city in a province. In that sense, the applicant’s statement that the sentence for an insult and the penalty were pronounced not for what he said but for what he meant is acceptable, according to the conclusion of the court and the injured party.

As the European Court of Human Rights has often emphasised, freedom of expression is a basis of a democratic society and one of the principal preconditions for its progress and for self-realisation of each individual. Pursuant to paragraph 2 of Article 10 of the Convention, this freedom is applied not only to information and ideas that are accepted positively and are considered not to be offensive or towards which we act indifferently, but also to those that are offensive, shocking or disturbing. Such are the requirements of pluralism, tolerance and broad-mindedness, without which there is no democratic society. Freedom of expression may be the subject of exceptions under the conditions referred to in Article 10 of the Convention, but they must be interpreted strictly, and the need for any restriction must be established convincingly.

In this concrete case, the manner of expression of the applicant as a participant in the public debate on the nomination of Mr Ivanov for president of the state, as an issue of public interest, with the use of the said comparison and its explication in the text, may not be generally considered to be exceeding the frontiers of freedom of expression in a democratic society, and his punishment leads to a discouragement of the participants in the public debate to use severe rhetoric and leads to avoidance of any value approach whatsoever towards issues and individuals that are the subject of public political interest. In such very cases the courts should formulate the standards of creation of public opinion in a democratic society and in that context recognise the importance of the constitutional right to freedom of expression which must be accounted for when deciding on the possible violations of honour and reputation, irrespective of whether in a criminal or civil context, as the creation of public opinion may take place only through a clash of opinions that are freely expressed. In that sense, if somebody feels insulted with a public statement given by somebody else, he certainly may reply publicly, as in this concrete case Mr Shkarikj did in the same daily. This particularly applies to cases when there is a clash of value stances through which, as in the concrete case, public opinion is created for the political choice between different options. In light of the aforementioned, it is not difficult to assess that in the judgments of the courts the constitutional value of freedom of expression in the given context and its importance in a democratic society was fully ignored in the effort to ascribe to Mr Frchkoski’s statements an insulting quality.

Finally, in the text of the column in which this comparison of schools is made and explained, there is no mention in any way of Mr Shkarikj as the subject of address. In that incriminating part of the column, the applicant stated a value stance about a condition in the society, in which, in his opinion, the “Demir Hisar school” is dominant and is reinforcing itself, which (condition) resulted in the nomination of certain candidate for president of the Republic, to which the applicant expressly objects. Hence, it is obvious that in the incriminating text the applicant expresses a negative stance on two issues: a condition in the society and a person, namely Mr Ivanov. The injured party’s recognition in this part of the column and the acceptance of that belief by the courts, in my assessment, has no real factual ground and is based on alleged allusions that the injured party and the courts recognised in the text, without evaluating the circumstance that the name of the injured party is not at all mentioned in that part of the text and the general notion of the expression “in Macedonia it is the Demir Hisar school that is dominant and reinforcing itself”. And if such recognition is allowed, then all those considering themselves to be mentors of Mr Ivanov, the members of the VMRO-DPMNE as the proposers of the presidential candidate, all people from Demir Hisar, all supporters of Mr Ivanov as a candidate, and even all those who voted for him in the elections, may recognise themselves in the column and be insulted as being members of the Demir Hisar school. I do not believe that such an approach, as sustained in the decisions of the courts, may satisfy the standard of admissibility of the restriction of freedom of expression in a democratic society, namely, only if the need for that is established in a convincing way. In this case, the incriminating value comparison, used in a political speech, may not be treated as insulting, in itself, and may not, in its general notion, be considered to be directed at the injured party specifically. In any case, the contested judgments do not contain sufficient and convincing reasons for such a conclusion.

On the basis of what has been noted, I consider that the said judgments, in the part in which the applicant was sentenced and punished for the criminal offence of “Insult”, violate the applicant’s right to freedom of public expression of thought under Article 9 of the Constitution, interpreted in the context of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the jurisprudence of the European Court for Human Rights in Strasbourg.

Igor Spirovski
Judge
at the Constitutional Court
of the Republic of Macedonia

Decision U.no.147/2011

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