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 Resolution U.br.48/2013, adopted on 19.02.2015, for non-initiation of a procedure for appraising the constitutionality of the whole and in particular Article 7 paragraph 1 items 1 and 2 in the part “from investigations on committed criminal offences or minor offences” and Article 23 of the Law on Civil Liability for Defamation and Insult (“Official Gazette of the Republic of Macedonia”, no.143/2012), 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 Resolution, with a majority vote the Constitutional Court inter alia decided not to initiate proceedings for the whole and in particular Article 7 paragraph 1 items 1 and 2 in the part “from investigations on committed criminal offences or minor offences” and for Article 23 of the Law on Civil Liability for Defamation and Insult (“Official Gazette of the Republic of Macedonia”, no.143/2012).
Regarding the other challenged provisions for which no procedure was initiated, I believe, viewed in principle, that any good national legislation must offer a reasonable balance between on the one hand the need to protect and promote freedom of expression of citizens together with the ability of the media to freely report on matters of public interest, and on the other hand to justifiably protect one’s honour and reputation from insult and/or defamation. Thereby, the application of the law should in no way lead to the undesired effect of self-censorship of journalists and media in order to avoid possible rigorous legal consequences, because it suffocates critical journalism and loses the essence of the development of democratic debate in every society. The public in each state has the right to know and obtain reliable information, especially when it comes to issues of broader, but crucial public interest. Domestic Law on Civil Liability for Defamation and Insult lays down the foundations for a new concept of civil liability for defamation and insult, but its real embodiment must take place through the application of best practice in judicial decisions relating to this matter, in particular those of the European Court of Human Rights.
According to the arguments laid out in the application, I consider that there were two possible approaches by which the Court could have built an opinion: the first is the formal aspect which concerns the way of passing the law, and the latter is materially-essential in terms of what specifically regulates each of the separately contested articles. Regarding the formal approach, the disputed legal issue is whether, given the fact that the law contains procedural provisions, it should have been passed by a two-third majority vote in accordance with Amendment XXV to the Constitution, given that the proceedings before the courts are regulated by law that is adopted by a two-third majority vote of the total number of Representatives. I believe that the so far constitutional case-law expressed in the decisions on the cases U.br.228/2007 and U.br.149/2008 provides the basis for the intervention of the Court in this case in relation to the whole of the Law and the majority by which it was adopted.
Namely, from the content of the provisions of Chapter 4 of the Law titled Procedure for determining the liability and compensation of damages (Articles 19-24), as well as from other provisions in the Law that point to the court how to proceed in resolving cases (Article 3, Article 4, Article 9, Article 12, Article 15, Article 16, Article 17, Article 18, Article 25 paragraph 3), it is indisputable that those provisions are de facto of procedural nature and regulate the proceedings before the court when deciding on defamation and insult. From the transcript of the 45th session of the Assembly of the Republic of Macedonia held on 12 November 2012 it is seen that the Law was passed by a simple and not a two-third majority vote, as required by Amendment XXV to the Constitution, as a result of which I consider that there are grounds to question the constitutionality of its whole in terms of its adoption.
In relation to Article 7 paragraph 1 item 1, I believe here are defined the grounds for exclusion of liability for insult , that is, immunity for an opinion by determining the so-called “privileged statements”. The substantive immunity provided by the freedom of opinion and speech of elected representatives of the people is essential for a democratic society. Primarily, I think the provision formulated like this in spite of the distancing “unless the plaintiff proves that it is given maliciously” is contrary to Article 64 paragraph 2 of the Constitution. This paragraph protects the Representative from criminal liability and/or custody for an opinion, but I think that in this case the protection from civil liability is subsummarised in the essence of this constitutional protection, because the value which in this case should be protected is the absolute immunity in freedom of speech in the legislature on issues of public interest. I believe a similar approach should apply to councilors in the municipalities and the City of Skopje, in administrative or judicial proceedings or before the Ombudsman, expressing their opinion in the function of the working duty for which they were elected or perform. Also, from the above provisions of the Constitution and specific laws, it appears that immunity for an opinion applies to specific persons who are exempt from liability for stated views and opinions related to the performance of their duties. However, the disputed provision does not define the circle of persons to whom it applies, and for this reason as formulated it leaves room for this privilege of unliability for an opinion to include other people, to which normally it should not apply. Because of the said vagueness and imprecision and the possibility for the provision to be interpreted and applied in different ways and include different subjects (some of whom have a constitutionally guaranteed immunity, and others do not), I consider that there are grounds to question the accordance of the provision of Article 7 paragraph 1 item 1 of the Law on Civil Liability for Defamation and Insult with the constitutional principle of the rule of law which requires that legal provisions be precise and clear.
Article 7 paragraph 1 item 2 stipulates that there is no liability for insult if, among other things, it concerns a statement … “or any other official document from investigation on criminal offenses or minor offenses”. I believe that in this case there are merits for the claims in the application that it violates Article 13 paragraph 1 of the Constitution of the Republic of Macedonia which specifies the principle of presumption of innocence as well as Article 18 paragraph 1 which guarantees the security and confidentiality of personal data. This for a reason that the contested provision provides for exclusion of liability for insult for transmitted opinion contained in official documents from the investigation of a crime or misdemeanor, which practically gives an opportunity in the proceedings for civil liability for libel and insult to use documents from ongoing investigations and for which there is a special regime of secrecy and confidentiality in accordance with the Criminal Procedure Code, and for which under the Law on Free Access to Public Information (Article 6) the request for access to information may be refused. Given that the disputed provision does not contain any exceptions regarding the use of documents from investigation, it appears that they can also be used in situations when court proceedings did not commence at all against the person who was under investigation or when the person was acquitted, with the possibility of manipulation with unsubstantiated allegations. For these reasons, I consider that this part of the provision is inconsistent with the Constitution.
From the content of Article 23 it appears that it regulates the so-called provisional measures that may be imposed by the court at the request of the plaintiff, that is, injured party and which consist of a prohibition of further publication of the insulting or defamatory statements. The legislation and case-law of many European countries are familiar with these measures, but there are differences in terms of the procedural guarantees in their pronouncing. In the Republic of Macedonia two conditions are required to be fulfilled in order to impose an interim measure, which are the insulting or defamatory statement to be already published and the court to be reasonably confident that the further publication will cause irreparable non-pecuniary or pecuniary damage to the injured party. The provision defines the term within which the court must decide. However, from what has been stated it follows that in the proceedings for interim court measures the law does not provide any participation of the party sued, that is, the person who gave a defamatory or insulting statement, who has neither possibility to state his view on the request for determination of provisional measures, nor to challenge the decision with which the measure is rendered. I believe that this solution, that is, the absence of any procedural guarantees for the party sued in the procedure for determining the provisional judicial measures, may raise the question of equality of the parties in the procedure, as one of the elements of the right to a fair trial. This in particular given the effect from the acceptance of the request, that is the effect from the pronounced measure which essentially means interference in the freedom of expression of the injured party, before the commencement of the very procedure for determining liability for insult or defamation, and the court with the application of this provision may violate Articles 6 and 10 of the European Convention on Human Rights and Article 8 paragraph 1 line 3, Amendment XXI and Article 16 of the Constitution of the Republic of Macedonia.
Dr Natasha Gaber-Damjanovska
at the Constitutional Court