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 voting against the Decision U.br.107/2010 I separate and explain in writing my
S E P A R A T E O P I N I O N
1. At the very beginning, I am obliged to point out that the pronouncement of a penalty for libel with the final judgment is a form of restriction of the freedom of expression of the applicant, guaranteed by Article 16 taken in conjunction with Article 53 of the Constitution. The question is whether, in light of the overall legal and factual circumstances in this concrete case, taking into consideration the principle of interpretation of the Constitution in the context of the European Convention for the Protection of Human Rights and Fundamental freedoms and the jurisprudence of the European Court of Human Rights, established by the Constitutional Court in its case-law, this restriction may be justified.
I do not contest that the incriminating text, namely the part of the reply to the request for the protection of legality (RPL) viewed as a separate whole, by itself, contains statements for certain facts the truthfulness of which may be the subject of proving and that their possible untruthfulness may, in principle, affect the honour and reputation of the persons it refers to. All that, in principle, may be a legitimate ground for identification of the elements of the criminal offence of “Libel” and pronouncement of a corresponding sentence, as was judged by the first and second instance courts in this concrete case. Hence, it is not disputed that the restriction passes the first two stages of the proportionality test, namely that it was envisaged by law and served to realise a legitimate objective to protect the rights of others.
However, at the level of the protection of the freedom of expression as a constitutional category, which should be ensured by the Constitutional Court, it is necessary to assess all relevant factors which place the incriminating statements in specifically defined context within which it could be meted out whether it is an unfounded or excessive restriction of the freedom of expression in its essence or unjustified violation or misuse. The factual and legal ground for such assessment is elaborated in the Decision of the Constitutional Court. What is particularly important is the analytical approach in the elaboration of the normative grounds for decision-making, as well as the description of the general stances for freedom of expression of lawyers. However, in my opinion, in item 6 of the Decision of the Court these factors are not at all or not sufficiently carefully analysed, that is, neither strict balancing of the opposed interests, nor adequate assessment of the necessity of the restriction in a democratic society and the reasons for that noted in the judgments of the courts were made.
2. First of all, I cannot concur with the understanding of the courts that “the concrete situation is not about expressed opinion in the course of providing legal assistance, but about statement of untruthful claims for the injured parties”. I do not see why the possible statement of untruths for the injured could not take place while rendering legal assistance or, why such possible statements would deprive the answer of a RPL of the character of an act rendering legal assistance? In this case it is not disputable that the statements of the applicant were made in an reply to the RPL which he drafted and submitted as a lawyer while rendering legal assistance to his client. Hence, the assessment about the balance between freedom of expression and its restriction for the purposes of protecting the honour and reputation of others must be assessed in light of this factor.
In connection with that, I consider that the provision in Article 21 paragraphs 1 and 2 of the Law on Attorneyship envisaging that the lawyer may not be held answerable for an opinion stated when rendering legal assistance in the performance of public mandates and that the lawyer in the performance of the office of a lawyer enjoys immunity, as well as the indicated judgments/resolution (K.br.485/08 and KZh.br.129/08) in which certain courts in the Republic of Macedonia expressed their stance that a lawyer may not be criminally liable for a committed criminal offence of “Libel” when he took the actions in connection with the performance of the office of lawyer, gain a high level of relevance. The applicant (and even each lawyer generally) had serious lawful and legal indications that the threshold of his freedom of expression in the acts and actions for rendering legal assistance was set very high, which gave him an objective ground for belief that he would not suffer detrimental consequences for what he was stating while taking the acts and actions of rendering legal assistance, which he invoked in the procedure before the courts. I certainly do not find that such stance of the legislator and the courts for immunity of lawyers may be a ground for belief that there is an absolute irresponsibility for the statements noted, but it points out that during the assessment of those statements, and in this concrete case, the special position of the lawyer from the aspect of his immunity must be taken into consideration. In this sense it is obvious that in the judgment the first instance court, taking as a starting point the stance that the statement was not an opinion stated while rendering legal assistance, did not deal at all with this question, but it simply dismissed the invoking of the applicant to his immunity, finding that such defence “is given in order to avoid criminal liability”. I also consider that the stance of the courts that the capacity of the applicant as a lawyer should be taken as an aggravating circumstance may not be accepted. On the contrary, the noted provision of the Law on immunity of lawyers, and the understandings of the said courts, even the nature of the profession of lawyer, speak that the lawyer, who is expected, sometimes even fiercely, to defend the interests of his clients, may be restricted in his expression only in exceptional cases, such as it was concluded also by the European Court on Human Rights (Nikula v. Finland, 2001). The reason being that legal immunity make sense exactly when it is about statements which, otherwise, have some punishable character. Hence, it is difficult to accept that there was some balanced approach in this regard by the courts when they pointed out that “the defendant is a lawyer and he as a lawyer knew that such actions are unlawful and considered a criminal offence”, and at the same time not to find that the defendant, being a lawyer and an attorney, knew that under the law and according to the understanding of courts in the Republic of Macedonia he enjoyed immunity. Nevertheless, what I, and the courts, find as undisputed is that the statements in the acts for rendering legal assistance that may not be brought to some reasonable connection with the legal matter or the subject-mater of the dispute may not be covered by the privilege of immunity.
3. Accordingly, the key question is whether in this concrete case there is such connection between the incriminating part of the reply to the RPL and the subject-matter of the dispute in which the applicant was rendering legal assistance? In order to answer this question it is necessary to view the incriminating part of the reply to the RPL in the context of the civil dispute, the statements in the RPL and in the structure of the wholeness of the reply to the RPL. In the final judgment it is stated that the court appraised the incriminating part with the rest of the content of the written reply to RPL, but found that it was not connected with the legal matter for which the civil dispute was initiated between the parties in the case P.br.831/99. Also, it should be noted that in their judgments the courts found that in the incriminating text the aplicant stated untrue statements about the injured parties, and the aim was to present them as dishonest lawyers who wished to earn a lot of money with dishonest work. It is obvious that the majority of the judges at the Constitutional Court accept this stance. My opinion differs.
Namely, in the reply to the RPL the applicant, invoking the correctness of the final judgment in the civil dispute with which the contract concluded between the injured parties as lawyers and “Jaka Tabak” for provision of lawyer’s services had been annulled, owing to a disproportion of “give and take”, opposes the statements of the Public Prosecutor that in this case the courts did not establish an “obvious” disproportion, but only “disproportion” of mutual “give and take”, which could be the ground for breaking, but not annulling the contract, and the thesis of the Public Prosecutor’s Office that an unlimited reward may be stipulated with a contract. The motive for the last opposition may be seen in the part of the RPL in which the Public Prosecutor’s Office indicates that Article 1 paragraph 2 of the Tariff for provision of lawyer’s services defines that the lawyer and the party may freely agree on the reward. In the reply, the applicant reiterates the findings of the facts of the case by the civil court and expresses a stance that it is still an “obvious disproportion” of mutual “give and take” and notes: “The contract for lawyer’s representation must be in accordance with the basic principles of the Law on Obligation Relations: conscientiousness and honesty, prohibition of misuse of the right and in this case first of all the principle of equal value of “give and take”. It is furthermore stated: “In the proposed RPL there is not a single legally relevant fact on the basis of which the first instance decision may be repealed and the wish of the parties sued to earn 40,000 EUROS (principal debt and interest) without carrying out any action whatsoever is, to put it most mildly, DISHONEST, and the enablement of the parties sued to take money without performing any action, with virtual legal actions, was collaboration in the performance of the unlawful actions”. Immediately after this stance follows the incriminating part, and after it the following stance is noted: “It is surprising that the support for such claims of the parties sued is provided by the Basic Public Prosecutor’s Office of RM through the filed unfounded REQUEST FOR THE PROTECTION OF LEGALITY under the veil that it was not about invalidity but about breaking a contract, when the parties sued themselves during the entire procedure invoke to an absolute right to freedom of agreement and that they fully realised the agreement”.
In my opinion, the essence of the entire reply to the RPL, with and without the incriminating part, is in the claim of the applicant that the acceptance of the RPL and the repeal of the first instance judgment would be in particular in contradiction with the principle of honesty in obligation relations, which he, as a legal principle, expressly invokes and requests from the Supreme Court to sustain his position. The applicant openly states his value judgement that charging a high reward for a disproportionately small number of actions in the case in which he is representative is dishonest, and that he is against providing such position to the injured parties. I consider that the statement of such a stance of the applicant in the attempt to protect the interests of his client in the dispute before the court is quite legitimate, irrespective of the fact that it is objectively reflected on the perception of the persons involved in the dispute. In this sense, the fierce criticism of the views and proposals of the RPL on the basis of the principle of honesty affects not only the injured parties but also the Public Prosecutor’s Office which, in the perception of the applicant, advocates stances that are not in favour of his client. As to the injured parties, the fierceness is more distinct given that this concrete dispute concerns their very actions in the relations with the client of the applicant in a concrete legal matter as an opposing party. As a matter of fact, the principle of honesty in a concrete dispute cannot be debated in an abstract way, without making a connection with a concrete conduct of concrete persons. However, I do not find that such context may shift and transfer the focus of the argumentation from the field of support for respect for the principle of honesty in obligation relations onto the field of personal discredit of the participants in the civil proceedings as dishonest persons. The easy inclination to the latter, as it was done in the contested judgments, annuls the fundamental meaning of this legal principle, thereby discouraging lawyers and parties in the procedure to invoke it. In such a perception, other parts of the reply, and not only the incriminating one, could be also qualified as being directed at the personality of the injured parties.
In light of this perception of the entire reply to the RPL, in my opinion it would be difficult for the incriminating part to be qualified as having some other aim than the one held by the wholeness of the reply. While, as I already underlined, I agree that that part by itself contains claims about the injured parties which under certain conditions may be a ground for incrimination, it is nevertheless clearly addressed to the Supreme Court in order to achieve the same aim – to contest the RPL from the aspect of the protection of the principle of honesty in obligation relations. In this sense, the possible intention of the applicant to present the injured parties as dishonest, as recognised by the first instance court, is not greater or more original in this part of the reply to the RPL compared with the other parts in which it is explicitly noted that in the concrete legal matter they acted in contradiction with the principle of honesty. The injured being the opposing party in the procedure upon the concrete case simply cannot avoid such, unpleasant to them, expression. However, that does not mean that such unpleasantness should be a ground for interruption of the debate whether in this concrete case the principle of honesty in obligation relations was violated. Hence, I am not convinced that the understanding of the applicant of the principle of honesty in obligation relations expressed in the reply could gain different, personal aim in the incriminating part and that owing to that this part of the reply may lose the context of an address to the Supreme Court. The incriminating statements, even if we find them to be carelessly formulated, are still only one part of the entire reply to the RPL as a legal remedy and are not content of some separate act which was submitted to the court or revealed in the public without any reason, with a sole intention to libel the injured parties. On the contrary, they are obviously in the function of qualifying the conduct of the injured parties as an opposing party in the concrete civil dispute, as a ground for contesting the intentions of the RPL.
4. In this sense, in this concrete case, it is undoubted that the stated opinions, stances or criticism were made in a written petition which was accessible to a small circle of people, engaged in an official capacity, according to the nature of the matters in court procedures. I cannot agree with the understanding of the first and second instance courts that the clerks in the courts should be treated as third persons, implying that the petition was communicated to the wider public. On the contrary, the communication of the reply to the RPL had an official and internal character without any doubt, and the public was not informed about it at all, which is a ground to conclude that the incriminating statement had an extremely limited effect, which should be an important factor of the decision-making (also for the European Court for Human Rights, see: Steur v. the Netherlands, 2003; Skalka v. Poland, 2003).
5. In the end, I should point to one procedural aspect relevant for the protection of the freedom of thought and its expression. Namely, it must be noted that, unfortunately, in the procedure in which what was of key relevance for the courts was the establishment of the truthfulness, that is, untruthfulness of the statement of the applicant, and in which the burden of proof of the truthfulness lies with the party sued, the courts refused evidence proposed by the party sued (inter alia, a statement by a witness) to be presented, without any explanation. I shall not speculate what would be the outcome of the criminal procedure if that evidence had been presented, but it is unacceptable not to allow the presentation of evidence proposed by the one from whom it is requested to prove his claims! The protection of the freedom of thought and its expression in such case remains declarative.
6. Seen in such context, taking into consideration all the factors stated, even if it was not possible to prove unconditionally the statements, all point to a conclusion that the restriction of the freedom of thought and expression of the applicant was not proportionate to the legitimate aim and that it was not necessary in a democratic society.
The affirmation of the opposite view is a much simpler matter – there is always a public interest, another person’s right or something similar, which may be pointed out as a limit for the freedom of thought and expression. The subject of protection before the Constitutional Court is this freedom itself, even in case, and in particular then, when its enjoyment affects public interest or rights of others. As noted by the Court in Strasbourg in many of its judgments, freedom of expression is not ensured only for pleasant and inoffensive statements and views with which we concur or to which we are indifferent, but also for statements that are disturbing or shocking. This freedom “…is the subject of many exceptions which, nevertheless, must be closely interpreted and the necessity for any restriction must be convincingly established” (sublimated in: Albert-Engelman-Gesellschaft MBH v. Austria, 2006). The development of jurisprudence in which no account would be taken that the subject-matter of protection in such cases is the freedom of thought and expression, and not public interest or rights of others, would lead to a completely up-side-down perception – instead of the principle that the freedom of thought and expression may be restricted as an exception, a principle would be established that freedom of thought and expression is restricted, but as an exception it may be allowed. The balance of interests, in such a perception, has a completely different result.
7. On the basis of what has been noted, I am deeply convinced that in this case there is a violation of the essence of the freedom of expression of thought of the lawyer Levko Tanevski, guaranteed in Article 16, taken in conjunction with Article 53 of the Constitution.
Skopje, 16 March 2011
at the Constitutional Court
of the Republic of Macedonia