Are the European standards on freedom of political speech properly applied at national level?
07.09.2022
Although Article
10 of the European Convention on Human Rights (the Convention or the ECHR) is
applicable not only to certain types of information or ideas or forms of
expression and it equally covers various forms of artistic expression[1],
as well as commercial expression[2], a
large number of civil defamation cases which are dealt with by the Macedonian
courts concern expression that is of a purely political nature.
The leading judgment on political speech handed down by the European Court of Human Rights (the Court or the ECtHR) in Macedonian context was Makraduli[3]. The case analysed below illustrates how the domestic courts apply the standards enshrined in that judgment as well as in the ECHR case law in general.
Background of the case
The plaintiff, Aleksandar Kiracovski, who was at the relevant time an MP at the Macedonian Assembly from the political party SDSM and the party’s Secretary General brought defamation lawsuit against the defendant, Dimče Arsovski, the spokesperson of the political party VMRO-DPMNE. He claimed that at a party press conference held on 6 September 2019 the defendant conveyed untrue facts directed against him before the media representatives. In particular, at that press conference the defendant alleged that the investigation conducted by the public prosecution for organised crime and corruption in the previous four months in the case known as ”Racketeering” („Рекет“) had been in contravention to the principles of law. As a result, it was not capable of preventing those who ordered the commission of the impugned offences to tamper with the evidence and to exert influence over the witnesses and over whoever they wanted. In this context, he mentioned that the plaintiff was also one of those who were involved in the criminal activities, as a mediator between the key suspect, Bojan Jovanovski (also known as Bojan 13), and the mayors and businessmen who had been racketeered. The plaintiff further claimed that the defendant’s statements aimed at diminishing his moral credibility and professional integrity by depicting him to the wider public as a criminal offender, while the defendant failed to submit any evidence to the competent court that the plaintiff had been criminally convicted. In his submission, the defendant argued that he could not be sued since he acted on behalf of his political party by transmitting the standpoints of that party, which concerned the conduct of the impugned investigation by the competent public prosecution, rather than the plaintiff.
Reasoning of the domestic courts
In its judgment, the Skopje Basic Civil Court observed, in particular, that the plaintiff’s name was indicated by the defendant only in relation to his interrogation at the premises of the competent public prosecution on 5 September 2019 and his response given to a question posed by a journalist concerning his contacts as an MP with persons connected with the impugned criminal offence. Namely, immediately after his interrogation the plaintiff made a statement to all media in the country which became available to the entire Macedonian public, in which he admitted that he had been present at several meetings with the key suspect. The Skopje Basic Civil Court, therefore, held that that statement raised doubts and opened a public debate about the conduct of the functionaries
It also referred to the ECtHR well-established case law of distinguishing between statements of fact and value judgments. It noted that while the existence of facts can be demonstrated, the veracity of value judgments is not susceptible of proof. Moreover, the requirement to prove the truth of a value judgment is impossible to fulfil and it leads to an infringement of the freedom of opinion as guaranteed under Article 10. The classification of a certain statement as a fact or as a value judgment is a matter which falls within the margin of appreciation of the national authorities.
Additionally, the Skopje Basic Civil Court considered the criteria established by the ECtHR that concern the balancing between the right to a private life, which also includes the right to protection of honour and reputation, as secured by Article 8 of the Convention, and the freedom of expression, guaranteed under Article 10 of the Convention. It further listed the key elements that are relevant to be considered when applying the balancing test, such as: whether the impugned information contributes to a debate of general/ public interest; whether the person concerned is well known to the public; what is the object of information; the prior conduct of the person concerned; the circumstances to which the statement relates; the manner and circumstances of obtaining the information; as well as the content, form and the consequences of the impugned publication.
Furthermore, it had into consideration the stances taken by the ECtHR in the judgment of Lingens v. Austria, where it was indicated that the limits of acceptable criticism are wider for a politician as such than for a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.[4]
Finally, the Skopje Basic Civil Court referred to the relevant parts of the ECtHR judgment in Makraduli, which read as follows: “As regards the level of protection, the Court recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest. A degree of hostility and the potential seriousness of certain remarks do not obviate the right to a high level of protection, given the existence of a matter of public interest.”.[5]
In this context, the Skopje Basic Civil Court observed that the defendant must have had a wider scope of freedom of expression, as a representative of the opposition political party, especially since issues of public interest were concerned. On the other hand, since the politicians are under public scrutiny for the statements they made, they must display a greater degree of tolerance, even if, as in this particular case, there was a certain degree of exaggeration in the impugned statement or in the photograph shown during the press conference. Accordingly, the plaintiff as an MP, a holder of a public office, should had a higher degree of tolerance of the criticism by the citizens when it comes to issues of public interest that are related to his conduct as a politician, as he had been elected by the citizens to represent them in a democratic society.
Apart from that, the Skopje Basic Civil Court highlighted that the impugned statement was caused by a debate which had been already opened in public interest through the media regarding an ongoing criminal case of corruption and racketeering. The defendant in the capacity of a representative of the opposition political party had grounds to believe in the truthfulness of such allegations as they related to the information previously revealed by the plaintiff, but also taking into consideration the plaintiff’s meetings with the convicted person, as well as their joint photographs and the fact that they jointly attended several events, of which the public had been already reported by the media. Indeed, the defendant did not state that the plaintiff had committed an offence, but he only made criticism about the way in which the investigation in that case had been carried out by the competent public prosecution.
Consequently, the Skopje Basic Civil Court ruled that it was not necessary in a democratic society to interfere with the defendant’s freedom of expression and it dismissed the plaintiff’s claim as unfounded. This conclusion was based on Article 9 paragraph 2 of the Law on Civil Liability for Insult and Defamation (LCLID) which stipulates that “[t]he defendant who proves the truthfulness of his/her statement or proves the existence of a reasonable ground to believe in its truthfulness shall not be held liable for defamation”.[6] Moreover, the Skopje Basic Civil Court relied on Article 10 of the LCLID which excludes liability for defamation when issues of public interest are concerned.
On appeal, the Skopje Court of Appeal confirmed the reasoning provided by the first-instance court, finding that it correctly established that according to the domestic statutory provisions the conditions for exclusion of the defendant’s liability had been fulfilled, given that his statements had been made in public interest as a critical view and value opinion in relation to the work of a holder of public office.
Concluding observations
With the adoption of the LCLID in November 2012 the Macedonian authorities decriminalised the offences previously encompassed in Chapter 18 of the Criminal Code titled as “Crimes against Honour and Reputation”.
Given the priority over national law which was granted with Articles 2 and 3 of the LCLID to the Convention law as directly applicable in defamation cases, it is extremely important for the Macedonian courts to focus on proper incorporation of the principles set out in the case law of the European Court of Human Rights whenever they examine defamation claims.
In the present case, the domestic courts, and in particular, the first-instance court, provided a detailed and plausible reasoning and quite successfully applied in their own judgments both the national legislation and the well-established ECHR standards on political speech. In substance, their judgments were fully compatible with the view of the ECtHR that the requirement of tolerance is even more pertinent for politicians when they themselves make public statements that are susceptible of criticism.[7] They have also shown that they rightly accepted the Strasbourg Court’s messages send with its judgment in Makraduli. Moreover, the domestic courts demonstrated a solid understanding of the concept of debate in public interest. When balancing between the plaintiff’s freedom of expression vis-à-vis the defendant’s freedom of expression, the Skopje Basic Civil Court also stressed the status of the plaintiff as an MP. Its reasoning was, thus, in conformity with the Court’s position regarding the freedom of expression for members of parliament as political speech par excellence. In that respect, the Court has consistently emphasised that the freedom of expression is especially important for elected representatives, who represent their electorate, draw attention to their preoccupations and defend their interests.[8] Even though the Skopje Basic Civil Court did not qualify the defendant’s statements as statements of facts or value judgments (opinions), its omission was redressed on appeal.
All in all, the case at hand exemplifies a positive development in the national case law when it comes to the implementation of the relevant European standards in the area of freedom of political expression. Such approach should inevitably be followed in future, given the importance of the political debate on matters of importance, which is essential for the proper functioning of democracy.
[1] Müller and Others v. Switzerland, 24 May 1988, § 27, Series A no. 133
[2] markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 26, Series A no. 165; Casado Coca v. Spain, 24 February 1994, §§ 35-36, Series A no. 285-A; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 61, ECHR 2012 (extracts).
[3] Makraduli v. Macedonia, nos. 64659/11 and 24133/13, 19 July 2018
[4] Lingens v. Austria, 8 July 1986 § 42, Series A no. 103.
[5] § 61.
[6] Law on Civil Liability for Insult and Defamation (“Official Gazette of the Republic of Macedonia”, no. 143/2012).
[7] Mladina d.d. Ljubljana v. Slovenia, no. 20981/10, § 40, 17 April 2014; Pakdemirli v. Turkey, no. 35839/97, § 45, 22 February 2005.
[8] Karácsony and Others v. Hungary, no. 42461/13, § 137, 16 September 2014 [GC]; Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 242-245, 22 December 2020; Castells v. Spain, 23 April 1992, § 42, Series A no. 2; Piermont v. France, 27 April 1995, § 76, Series A no. 314; Jerusalem v. Austria, no. 26958/95, § 36, ECHR 2001-II; Otegi Mondragon v. Spain, no. 2034/07, § 50, ECHR 2011; Lacroix v. France, no. 41519/12, § 40, 7 September 2017; Szanyi v. Hungary, no. 35493/13, § 30, 8 November 2016.
The leading judgment on political speech handed down by the European Court of Human Rights (the Court or the ECtHR) in Macedonian context was Makraduli[3]. The case analysed below illustrates how the domestic courts apply the standards enshrined in that judgment as well as in the ECHR case law in general.
Background of the case
The plaintiff, Aleksandar Kiracovski, who was at the relevant time an MP at the Macedonian Assembly from the political party SDSM and the party’s Secretary General brought defamation lawsuit against the defendant, Dimče Arsovski, the spokesperson of the political party VMRO-DPMNE. He claimed that at a party press conference held on 6 September 2019 the defendant conveyed untrue facts directed against him before the media representatives. In particular, at that press conference the defendant alleged that the investigation conducted by the public prosecution for organised crime and corruption in the previous four months in the case known as ”Racketeering” („Рекет“) had been in contravention to the principles of law. As a result, it was not capable of preventing those who ordered the commission of the impugned offences to tamper with the evidence and to exert influence over the witnesses and over whoever they wanted. In this context, he mentioned that the plaintiff was also one of those who were involved in the criminal activities, as a mediator between the key suspect, Bojan Jovanovski (also known as Bojan 13), and the mayors and businessmen who had been racketeered. The plaintiff further claimed that the defendant’s statements aimed at diminishing his moral credibility and professional integrity by depicting him to the wider public as a criminal offender, while the defendant failed to submit any evidence to the competent court that the plaintiff had been criminally convicted. In his submission, the defendant argued that he could not be sued since he acted on behalf of his political party by transmitting the standpoints of that party, which concerned the conduct of the impugned investigation by the competent public prosecution, rather than the plaintiff.
Reasoning of the domestic courts
In its judgment, the Skopje Basic Civil Court observed, in particular, that the plaintiff’s name was indicated by the defendant only in relation to his interrogation at the premises of the competent public prosecution on 5 September 2019 and his response given to a question posed by a journalist concerning his contacts as an MP with persons connected with the impugned criminal offence. Namely, immediately after his interrogation the plaintiff made a statement to all media in the country which became available to the entire Macedonian public, in which he admitted that he had been present at several meetings with the key suspect. The Skopje Basic Civil Court, therefore, held that that statement raised doubts and opened a public debate about the conduct of the functionaries
It also referred to the ECtHR well-established case law of distinguishing between statements of fact and value judgments. It noted that while the existence of facts can be demonstrated, the veracity of value judgments is not susceptible of proof. Moreover, the requirement to prove the truth of a value judgment is impossible to fulfil and it leads to an infringement of the freedom of opinion as guaranteed under Article 10. The classification of a certain statement as a fact or as a value judgment is a matter which falls within the margin of appreciation of the national authorities.
Additionally, the Skopje Basic Civil Court considered the criteria established by the ECtHR that concern the balancing between the right to a private life, which also includes the right to protection of honour and reputation, as secured by Article 8 of the Convention, and the freedom of expression, guaranteed under Article 10 of the Convention. It further listed the key elements that are relevant to be considered when applying the balancing test, such as: whether the impugned information contributes to a debate of general/ public interest; whether the person concerned is well known to the public; what is the object of information; the prior conduct of the person concerned; the circumstances to which the statement relates; the manner and circumstances of obtaining the information; as well as the content, form and the consequences of the impugned publication.
Furthermore, it had into consideration the stances taken by the ECtHR in the judgment of Lingens v. Austria, where it was indicated that the limits of acceptable criticism are wider for a politician as such than for a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.[4]
Finally, the Skopje Basic Civil Court referred to the relevant parts of the ECtHR judgment in Makraduli, which read as follows: “As regards the level of protection, the Court recalls that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest. A degree of hostility and the potential seriousness of certain remarks do not obviate the right to a high level of protection, given the existence of a matter of public interest.”.[5]
In this context, the Skopje Basic Civil Court observed that the defendant must have had a wider scope of freedom of expression, as a representative of the opposition political party, especially since issues of public interest were concerned. On the other hand, since the politicians are under public scrutiny for the statements they made, they must display a greater degree of tolerance, even if, as in this particular case, there was a certain degree of exaggeration in the impugned statement or in the photograph shown during the press conference. Accordingly, the plaintiff as an MP, a holder of a public office, should had a higher degree of tolerance of the criticism by the citizens when it comes to issues of public interest that are related to his conduct as a politician, as he had been elected by the citizens to represent them in a democratic society.
Apart from that, the Skopje Basic Civil Court highlighted that the impugned statement was caused by a debate which had been already opened in public interest through the media regarding an ongoing criminal case of corruption and racketeering. The defendant in the capacity of a representative of the opposition political party had grounds to believe in the truthfulness of such allegations as they related to the information previously revealed by the plaintiff, but also taking into consideration the plaintiff’s meetings with the convicted person, as well as their joint photographs and the fact that they jointly attended several events, of which the public had been already reported by the media. Indeed, the defendant did not state that the plaintiff had committed an offence, but he only made criticism about the way in which the investigation in that case had been carried out by the competent public prosecution.
Consequently, the Skopje Basic Civil Court ruled that it was not necessary in a democratic society to interfere with the defendant’s freedom of expression and it dismissed the plaintiff’s claim as unfounded. This conclusion was based on Article 9 paragraph 2 of the Law on Civil Liability for Insult and Defamation (LCLID) which stipulates that “[t]he defendant who proves the truthfulness of his/her statement or proves the existence of a reasonable ground to believe in its truthfulness shall not be held liable for defamation”.[6] Moreover, the Skopje Basic Civil Court relied on Article 10 of the LCLID which excludes liability for defamation when issues of public interest are concerned.
On appeal, the Skopje Court of Appeal confirmed the reasoning provided by the first-instance court, finding that it correctly established that according to the domestic statutory provisions the conditions for exclusion of the defendant’s liability had been fulfilled, given that his statements had been made in public interest as a critical view and value opinion in relation to the work of a holder of public office.
Concluding observations
With the adoption of the LCLID in November 2012 the Macedonian authorities decriminalised the offences previously encompassed in Chapter 18 of the Criminal Code titled as “Crimes against Honour and Reputation”.
Given the priority over national law which was granted with Articles 2 and 3 of the LCLID to the Convention law as directly applicable in defamation cases, it is extremely important for the Macedonian courts to focus on proper incorporation of the principles set out in the case law of the European Court of Human Rights whenever they examine defamation claims.
In the present case, the domestic courts, and in particular, the first-instance court, provided a detailed and plausible reasoning and quite successfully applied in their own judgments both the national legislation and the well-established ECHR standards on political speech. In substance, their judgments were fully compatible with the view of the ECtHR that the requirement of tolerance is even more pertinent for politicians when they themselves make public statements that are susceptible of criticism.[7] They have also shown that they rightly accepted the Strasbourg Court’s messages send with its judgment in Makraduli. Moreover, the domestic courts demonstrated a solid understanding of the concept of debate in public interest. When balancing between the plaintiff’s freedom of expression vis-à-vis the defendant’s freedom of expression, the Skopje Basic Civil Court also stressed the status of the plaintiff as an MP. Its reasoning was, thus, in conformity with the Court’s position regarding the freedom of expression for members of parliament as political speech par excellence. In that respect, the Court has consistently emphasised that the freedom of expression is especially important for elected representatives, who represent their electorate, draw attention to their preoccupations and defend their interests.[8] Even though the Skopje Basic Civil Court did not qualify the defendant’s statements as statements of facts or value judgments (opinions), its omission was redressed on appeal.
All in all, the case at hand exemplifies a positive development in the national case law when it comes to the implementation of the relevant European standards in the area of freedom of political expression. Such approach should inevitably be followed in future, given the importance of the political debate on matters of importance, which is essential for the proper functioning of democracy.
[1] Müller and Others v. Switzerland, 24 May 1988, § 27, Series A no. 133
[2] markt intern Verlag GmbH and Klaus Beermann v. Germany, 20 November 1989, § 26, Series A no. 165; Casado Coca v. Spain, 24 February 1994, §§ 35-36, Series A no. 285-A; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 61, ECHR 2012 (extracts).
[3] Makraduli v. Macedonia, nos. 64659/11 and 24133/13, 19 July 2018
[4] Lingens v. Austria, 8 July 1986 § 42, Series A no. 103.
[5] § 61.
[6] Law on Civil Liability for Insult and Defamation (“Official Gazette of the Republic of Macedonia”, no. 143/2012).
[7] Mladina d.d. Ljubljana v. Slovenia, no. 20981/10, § 40, 17 April 2014; Pakdemirli v. Turkey, no. 35839/97, § 45, 22 February 2005.
[8] Karácsony and Others v. Hungary, no. 42461/13, § 137, 16 September 2014 [GC]; Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 242-245, 22 December 2020; Castells v. Spain, 23 April 1992, § 42, Series A no. 2; Piermont v. France, 27 April 1995, § 76, Series A no. 314; Jerusalem v. Austria, no. 26958/95, § 36, ECHR 2001-II; Otegi Mondragon v. Spain, no. 2034/07, § 50, ECHR 2011; Lacroix v. France, no. 41519/12, § 40, 7 September 2017; Szanyi v. Hungary, no. 35493/13, § 30, 8 November 2016.