Freedom of political expression in democratic societies in light of the judgment Makraduli v. the Republic of Macedonia

Analysis by Velimir Delovski, LL.M. of the ECtHR judgment „Makraduli v. the Republic of Macedonia“ (app.nos. 64659/11 and 24133/13) of 19 July 2018.

The factual background of the case

The judgment delivered by the European Court of Human Rights in this case originated in two separate applications, lodged with the Court by the same applicant, Mr Jani Makraduli, who at the time of the impugned domestic proceedings was a president of the opposition party SDSM and an MP to the Macedonian Assembly. With this judgment the Court enters into examining the merits of his complaints that the criminal judgments convicting him of defamation led to an infringement of his freedom of expression guaranteed under Article 10 of the European Convention on Human Rights.

The first application concerned the set of criminal proceedings brought against the applicant in relation to his allegations that Mr S.M., then Prime Minister’s cousin, who was at the time a senior member of the ruling political party VMRO-DPMNE and head of the Security and Counter Intelligence Agency, had misused his powers and the police wiretapping equipment in order to influence the trading on the stock exchange and to achieve a personal financial gain. The second application covered another set of criminal proceedings against him regarding his statements related to alleged irregularities in the public sale of State-owned building land to a company close to Mr S.M. Although the latter’s name was not expressly mentioned by the applicant, it could have been inferred that those allegations actually concerned him. In both cases, the impugned statements were made public at press conferences held at the SDSM party’s headquarters. Also, both criminal proceedings were launched upon private criminal charges filed by Mr S.M.

The applicant was convicted of defamation under Article 172 of the Macedonian Criminal Code (CC), valid at the material time, and fined. Based on the legislative amendments which followed with the adoption and entering into force of the Law on civil liability for defamation and insult (LCLDI) in November 2012, the trial judge stayed the execution of the sanction in both sets of proceedings. Consequently, the applicant paid only the trial costs, but not the fine which was imposed on him. Following the outcome of the first set of criminal proceedings, Mr S.M. brought a civil dispute in which his compensation claim was upheld and he was awarded 550,000 Macedonian denars.

The applicant also made an attempt to address the violation of his freedom of expression by lodging constitutional appeals for protection of his rights and freedoms before the Constitutional Court. His appeals were dismissed with a similar reasoning that amounted to the lack of veracity of the statements made which allegedly caused harm to the reputation of Mr S.M.

The findings and the conclusions of the European Court of Human Rights

The judgment provides an interesting overview of the general standards and principles established in the ECtHR jurisprudence in respect of the limits of the freedom of political expression and political speech in accordance with Article 10 of the Convention.

Since it was undisputed between the applicant and the Government, at the outset the ECtHR established that there was an interference with the applicant's right to freedom of expression, which was prescribed by Article 172 of the CC, and it pursued the legitimate aim of the protection of Mr S.M.’s reputation, as it was also advanced by the domestic courts. The ECtHR deferred to the assessment which had already been made by the competent Macedonian courts within their margin of appreciation with respect to the lawfulness and the existence of a legitimate aim justifying the interference. Subsequently, it entered a profound analysis of the necessity of such an intervention in a democratic society, as a third element of the proportionality test which is normally applied by the Court in this type of cases, in order to determine whether the reasons adduced by the national courts to justify such an interference as necessary given the existence of a certain pressing social need were ‘relevant and sufficient’, and whether the courts applied standards which were in conformity with the principles embodied in Article 10 of the Convention.

Starting from the general principles developed in its case-law, the Court reaffirmed that there is a very little scope under Article 10 § 2 for restrictions on political speech or on debate on matters of public interest. Therefore, as a rule, it grants a high level of protection of freedom of expression and a particularly narrow manoeuvre room for appreciation by the states in such cases. While applying its principles to the facts of the instant case, the Court particularly evaluated the following relevant aspects: 1) the position of the plaintiff and the applicant, who acted as a defendant in the domestic proceedings, 2) the subject matter of the applicant’s statements, as well as 3) their qualification by the domestic courts and the domestic court’s approach to justifying the interference in question.

As to the position of the parties, the Court noted that the statements were made by the applicant as a vice-president of the then opposition party, at press conferences held in the headquarters of his party, on behalf of his party and in a political context. Moreover, it was highlighted that the applicant was an MP, and therefore, him as an elected representative of the citizens is accorded higher level of protection of political speech. It was also underlined that contrary to the ordinary courts, the Constitutional Court noted that the applicant was an MP and he, therefore, enjoyed greater protection. The ECtHR emphasised that taking into consideration the position of the plaintiff, Mr S.M., when balancing the right to protection of his reputation with the freedom of political expression, the limits of acceptable criticism are wider for State officials than for private individuals. Therefore, the latter must display a greater degree of tolerance to criticism so that their actions and omissions could be subjected to close public scrutiny. In the same vein, the ECtHR stressed that it is necessary to restrain in resorting to criminal proceedings, particularly if other means are available for replying to unjustified attacks. Accordingly, it was reasonable to conclude that the domestic courts did not take into consideration the Mr S.M.’s position when they were carrying out their proportionality analysis. As a result, they merely stated in their judgments that Mr S.M. was a „legitimate target of constructive criticism“ failing to provide more detailed reasoning in that respect.

Furthermore, the Court referred to the distinction made between statements of facts and value judgments, which affects the determination of the duty to proof the veracity of a given statement. In the context of the political speech, the ECtHR stressed that even though the truth of value judgments is in principle not susceptible of proof, if there existed a sufficient „factual basis“ on which they were founded, this would not be valid in cases where the value judgments were made in the course of a lively political debate by elected officials. The latter should enjoy a wide freedom to criticise Government actions, even if their value judgments about matters of public interest were lacking a clear factual basis. With respect to the content and the subject matter of the impugned statements, the Court found to be problematic their treatment and qualification as statements of facts, rather than value judgments, as they concerned allegations of illegal conduct regarding the performance of official duties by Mr S.M., as matters of public interest. The ECtHR regarded the form and the context in which the applicant’s statements were conveyed to the public and it considered that the belated declaration of Mr S.M.’s assets, including his ownership of shares, along with the public rumours in that respect constituted elements which indicated the existence of a sufficient factual basis for the applicant’s assertion. The Court also noted that the applicant’s public statements related to the controversial sale of land aimed at presentation of the findings of the research which was carried out by his party and although sarcastic, they did not contain manifestly insulting language which would go beyond the limits of admissible exaggeration or provocation.

Having said that, the Court concluded that the given statements were fair comment on issues of legitimate public interest, as they touched upon the need for transparency and prevention of abuse of power and they aimed at strengthening public integrity and maintaining public confidence in public institutions. Although the interpretation and application of domestic law is in principle left to the national courts, and the ECtHR does not interfere in that regard, this judgment implicitly adopted a critical tone on the application of Article 172 of the CC, which envisaged, inter alia, exemption from punishment for a person who made defamatory allegations in the performance of a political or other social activity. It is likely that the decision to apply another statutory provision would have led to a completely different course and outcome of the domestic proceedings which would have, thus, been more compatible with the Convention standards.

In addition, the judgment sends a clear message as regards the so-called „presumption of falsity“applied by the courts when they required the applicant acting as a defendant to prove the veracity of his statements. Thus, when it was impossible for him to do so, they would have arrived at the conclusion that they were either untrue or defamatory and he would have been deprived of the protection afforded to him under Article 10. On the contrary, the Court took a stance that the two statements contained certain factual allegations, and they were made within a public debate on an important issue in which he was involved and the approach taken by the domestic courts was, by all means, unjustified and went beyond the already established ECtHR standard of “due diligence".  (It should also be noted that such a public debate became even more pertinent after the mass surveillance scandal had been disclosed in the spring of 2015!) A similar approach was taken by the Constitutional Court, nothwitstanding that it correctly held that they concerned “opinions”, rather than factual assertions, as well as that the fact that the applicant conveyed his statements at the premises of his political party, and not at the Assembly, was merely noted in the Constitutional Court’s decision, without highlighting that he decided not to benefit from the elevated level of protection he would have had if he would have invoked the parliamentary immunity.

When establishing a violation of Article 10, the Court also addressed the question about the nature and severity of the sanctions imposed, highlighting that even the relatively moderate nature of the fines does not suffice itself to negate the risk of a chilling effect on the further exercise of the freedom of expression.It held that even though the imposed fine could have no longer been executed given the statutory changes of November 2012  which have decriminalised defamation, the applicant’s conviction had a chilling effect on the political debate which he raised by addressing issues of public interest. All in all, the Court established that the standards applied to the impugned proceedings were incompatible with the principles embodied in Article 10 of the Convention as the domestic courts failed to strike a fair balance between the competing interests which were at stake. Consequently, the interference was disproportionate to the aim and it was not „necessary in a democratic society“ within the meaning of Article 10 § 2.

The relevance and the significance of the judgment

The analysed judgment raises quite important issues about the exercise of the freedom of political expression in the specific Macedonian political and legal context in which a practice was established where politicians belonging to different political options initiated criminal proceedings and litigated among themselves, regarding issues which have been addressed within a public, political debate.

Although the Strasbourg Court has not expressly established it, it may be concluded that during the adjudication the Macedonian courts were primarily guided by the need for protection of personal rights, rather than by the sense for democracy and rule of law, as concepts which absorb the right of the public to be informed and alerted of the manner in which the state functions are being performed. This was exactly the reason why at the stage of balancing of different values, interests, freedoms and rights which have to be secured, they decided to give priority to the protection of the reputation and dignity of the concerned holder of public office, which were considered to be considerably affected by the abused freedom of thought and public expression of thought, which was placed second, as was also the case with the freedom of political debate, which was deemed not to have absolute nature.

The ECtHR only briefly noted the decriminalization of defamation as a legislative undertaking which preceded the present judgment. Accordingly, the latter could be observed in the light of this huge reform which constituted a step forward towards proper functioning of democracy, rule of law and the consistent respect and protection of fundamental rights and freedoms. However, the solutions in the LCLDI could not automatically, themselves be so sufficient as to guarantee the effective enjoyment of the freedom of political expression, unless they are not accompanied by an adequate transformation in the judges’ attitude. This should be finally demonstrated through change in the manner in which they deal with particular cases touching upon this issue. This concerns first and foremost the adjudication at all instances of the ordinary courts, as well as the decision-making of the Constitutional Court within the framework of the limited model of constitutional appeal for protection of the freedom of conviction, conscience, thought and public expression of the thought under Article 110 § 3 of the Macedonian Constitution.

In light of the foregoing, it would be necessary that when handling cases of alleged defamation in the public societal and political discourse, the judges have regard to and consistently and correctly incorporate in the argumentation of their judgments the principles, standards and viewpoints of the European Court of Human Rights, which derive from its practice, as a platform through which the Convention provisions are actually put into effect. Sguidance is also provided by Article 2 § 2, as well as by Article 3 of the LCLDI. This law has met the requirements of the ECtHR case-law, and thus the Macedonian legislator demonstrated that the message of the Strasbourg judgments in similar cases which concerned other states was received, in terms of bringing to an end its previous practice not to take sufficiently into account the importance of the political speech as a conditio sine qua non to democracy.

The implementation of this law still remains a challenge for the Macedonian judges, as it would also be a challenge for them to refer to the Court’s jurisprudence as well as to apply it properly to the factual narrative of the cases they are deciding upon. Among others, with the LCLDI the standards regarding the burden of proof of the truth of statements which were made in public interest have been framed at national level (Article 9). Simultaneously, the judges are required a better understanding of terms such as „statements of facts“ and „value judgments (views,opinions)“ so that they could be accorded adequate treatment and qualification. This would also determine the degree of protection which would be granted to the political speech in their respect. Furthermore, the amended domestic practice in line with Strasbourg in similar cases would certainly constitute a significant general measure of execution which would have a positive impact on the successful implementation of the instant judgment and it might also lead to closure of the present case before the Committee of Ministers of the Council of Europe.  

The judgment of Makraduli holds a special place among all Macedonian judgments handed down by the Court because of the strong message it conveys not only to judges and legal professionals, but also to the politicians as regards their responsibility in the process of democratization, in terms of increasing the transparency in the performance of public office, the timely prevention of any abuses of the official positions and powers whatsoever, the efficient fight against corruption and organized crime, as well as the strengthening of the rule of law.

It provides guidance not only for the Macedonian, but also for several other legal systems (as the judge Wojtyczek rightly pointed out in his Concurring dissenting opinion -  in those States where „opposition politicians and parliamentarians may be particularly targeted by the authorities“). Within the framework of the erga omnes effect of the ECtHR judgments, this judgment should encourage enhancing the capacities of each judicial system to deal adequately with the challenges posed by the constitutional democracy. The latter requires that an effective defence of the freedom of (political) expression from any arbitrary interventions by the current holders of political power whatsoever shall be guaranteed. Thus becomes even more relevant in fragile, post-transition societies which are establishing a system in which it should be seen that the justice is actually done.

Lastly, in the above-mentioned Dissenting opinion, it is argued that the traditional dichotomy of statements of fact and value judgments has been revisited. This is proven by dismissal of the request for proving the truth of the statements, and adoption of the test of existence of a “sufficient factual basis” as regards all assertions revealed within a live democratic debate. Furthermore, it harshly criticised the Court’s understanding elaborated in the judgment which presupposes that given the particular societal role played by the political elites, they should be granted broader freedom of expression than the one enjoyed by the ordinary “citizens”.  That way additional message is conveyed that such concept of a judicial reasoning should in future be abandoned. This is so for the reason that not only the politicians, but each citizen should be entitled to raise issues of public interest that would be subjected to a public debate in a democratic society. Thus, the level of protection of the political speech would be elevated, exceeding the scope of the current Court’s jurisprudence. It remains to be observed whether such, dissented view of the subject matter would be embraced and whether it could contribute to different developments in the ECtHR case-law towards certain new, yet unknown dimensions when the freedom of political expression is concerned.