FIRST SECTION
CASE OF
POPOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no.
12316/07)
JUDGMENT
STRASBOURG
31 October 2013
This judgment will become final in the circumstances
set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Popovski v. the former Yugoslav
Republic of Macedonia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 8 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
12316/07) against the former Yugoslav Republic of Macedonia lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Risto
Popovski (“the applicant”), on 19 February 2007.
The applicant was represented by Mr V. Georgiev,
a lawyer practising in Bitola. The Macedonian Government (“the Government”)
were represented by their Agent, Mr K. Bogdanov.
The applicant alleged, in particular, that the
length of the impugned proceedings had been excessive and that the respondent
State, owing to the ineffectiveness of the criminal proceedings for defamation,
had failed to protect the right to respect for his private and family life.
On 12 December 2011 these complaints were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1945 and lives in Bitola.
On 2 December 2002 an article was published in
the daily newspaper Utrinski Vesnik entitled “The uncle was stealing,
Jovan was standing guard” (Вујкото
крадел, Јован
чувал стража). A reference to the article appeared on the front page of the
newspaper. The text of the article read, in so far as relevant, as follows:
“Risto Popovski, uncle of dismissed bishop J. and owner of the
company Voskresenie from Bitola, together with seven boys, entered the
courtyard of St. Spas church in Gevgelija and continued towards the church
garage. The uncle started the engine of the tractor [inside] and drove it out
of the courtyard, while his helpers warned the church housekeeper, who was
upset, to step aside. During the violent disturbance, the dismissed bishop Jovan
drove around waiting for the outcome...
... On the basis of an anonymous tip-off concerning the break-in,
police stopped the tractor from leaving Gevgelija. The owner of Voskresenie,
[the applicant], produced documents [showing] that Voskresenie owned the
tractor! Only dismissed bishop Jovan knew how the tractor, which was a donation
by Japan to Gevgelija’s church co-operative, happened to belong to a private
company from Bitola ... (R.P.)”
The applicant submitted a letter to the newspaper
the next day, in which he requested that it publish a retraction given the false
allegations that he had stolen the tractor. In this connection he submitted a
copy of a certificate issued by the Ministry of the Interior confirming that
the tractor had been returned to him. He alleged that in the absence of a
retraction, he would be perceived as a criminal in Bitola, a small town where
people knew each other. The newspaper did not publish anything in this regard.
On 31 December 2002 and after several verbal requests,
the applicant submitted a letter to the newspaper seeking information about the
identity of the journalist (R.P.), whose initials appeared at the end of the
article.
On 31 January (as alleged by the applicant) or 4
February 2003 (according to the Government) the applicant brought private
criminal charges for defamation under sections 16(1) and (2) and 417(1) of the
Criminal Proceedings Act, which was an offence punishable under section 172(2)
of the Criminal Code (see paragraphs 27, 31 and 38 below). The complaint was made
against B.T., editor-in-chief of the newspaper and R.P., the journalist
responsible. The applicant claimed that the article had disgraced him and his
family and said that he was seeking compensation for non-pecuniary loss, the
amount of which was to be specified, as stated in the complaint, at the
hearing.
On 31 March and 16 April 2003 respectively the
Skopje Court of First Instance (“the trial court”) requested that the applicant
complete the complaint by providing information about the identity of R.P.,
describing the actions imputable to the accused and submitting an original of
the article. In reply, the applicant specified his complaint and informed the
trial court that all his attempts to get the newspaper to reveal the identity
of the journalist responsible had been to no avail.
During the proceedings the applicant was
represented by a lawyer practicing in Bitola. The applicant alleged (without
providing any evidence in support) that the first hearing had been scheduled for
23 September 2003; however, the parties agreed that between 10 October 2003 and
16 January 2007, the trial court had fixed twenty-three hearings, of
which twenty were adjourned owing to the absence of either B.T., his
representative or the journalist responsible. The trial court made several unsuccessful
attempts to secure B.T.’s attendance with the assistance of the police. The
applicant or his representative attended all the hearings scheduled.
At a hearing on 6 September 2005, the trial
court requested that the newspaper reveal the identity of R.P., the presumed author
of the article. In the absence of any reply from the newspaper, the trial court
made the same request on 18 October and 24 November 2005, as well as on 24
January 2006, but they were never answered.
At a hearing on 7 March 2006, B.T. admitted that
he had allowed the article to be published and requested additional time to identify
the journalist who had written it. In a statement given on 25 April 2006, the
applicant avowed that the article in question had contained defamatory
allegations portraying him as a thief, which had had a significant negative
impact on his personal and family life. In this connection he argued that his
wife had closed her private medical practice since her office had been covered
with writings describing them as “thieves” (арамии).
He also alleged that his children had encountered difficulties in school due to
the defamatory article.
At a hearing on 29 June 2006, B.T. stated that
according to the newspaper’s records, the author of the text had been a certain
K.J, who had confirmed as much in a telephone conversation with him. The court
ordered that K.J. be summoned to the next hearing. His home address was to be
obtained with the assistance of the police.
K.J. did not attend any of the four hearings
scheduled between 19 September 2006 and 16 January 2007, despite the fact
that the court had summoned him to do so. At the January hearing, the trial
court stayed (запира)
the proceedings because the prosecution had become time-barred. It also ordered
each party to bear its own costs and expenses incurred in the proceedings. On 1
March 2007 the Skopje Court of Appeal upheld the judgment, which was served on
the applicant on 24 March 2007.
During the proceedings, the applicant addressed
the trial judge and the president of the trial court on two occasions, complaining
about the way in which the trial had been conducted and alerting them to the
possibility that the prosecution might become time-barred.
II. RELEVANT INTERNATIONAL MATERIALS AND DOMESTIC
LAW AND PRACTICE
A. Relevant international materials
1. Resolution 1577 (2007) of the Parliamentary
Assembly of the Council of Europe,
“Towards decriminalisation of defamation”
The relevant parts of the above Resolution read
as follows:
“6. Anti-defamation laws
pursue the legitimate aim of protecting the reputation and rights of others.
The Assembly nonetheless urges member states to apply these laws with the
utmost restraint since they can seriously infringe freedom of expression ...
8. The Assembly deplores the fact that in a number of
member states prosecution for defamation is misused in what could be seen as
attempts by the authorities to silence media criticism ...
13. The Assembly consequently takes the view that prison
sentences for defamation should be abolished without further delay. In
particular it exhorts states whose laws still provide for prison sentences -
although prison sentences are not actually imposed - to abolish them without
delay so as not to give any excuse, however unjustified, to those countries
which continue to impose them, thus provoking a corrosion of fundamental
freedoms ...
17. The Assembly accordingly calls on the member states
to:
17.1. abolish prison sentences for defamation without
delay;
17.2. guarantee that there is no misuse of criminal
prosecutions for defamation and safeguard the independence of prosecutors in
these cases;
17.3. define the concept of defamation more precisely in
their legislation so as to avoid an arbitrary application of the law and to
ensure that civil law provides effective protection of the dignity of persons
affected by defamation ...”
B. Relevant domestic law
1. Obligations Act 2001
Section 141 of the Obligations Act provides for the right to claim civil compensation.
. Section
157 provides that an employer is responsible for damage caused by an employee
in the performance of his or her duties or in relation to them. A victim can
claim compensation directly from the employee if the damage was caused
intentionally. The employer can seek reimbursement of the compensation awarded
to the victim from the employee if he or she caused the damage intentionally or
negligently.
. Section
187 provides for the right to claim compensation in cases regarding damage to
reputation or the dissemination of false allegations.
. Under
sections 188 and 189, the court can order the publication of a judgment in
which a human rights violation has been found, a retraction or any other form
of redress. The court can also award just satisfaction irrespective of whether an
award for pecuniary damage has been made.
Under section 365, a compensation claim becomes
time-barred three years after the victim becomes aware of the damage and the
person responsible. The absolute limitation period for compensation is five
years after the occurrence of the damage.
The running of the limitation period is suspended
if a claimant brings an action before a court or competent authority with a
view to determining or securing his or her claim (section 377).
. Under
section 379, if a court rejects an action for lack of competence or on another
ground unrelated to the merits of the claim, and if the claimant resubmits that
claim within three months of the decision becoming final, the limitation period
is considered to have been suspended by the first action. This applies if a
court or competent authority advised the person concerned to pursue his or her
claim by means of a separate civil action.
. After
the limitation period has been suspended, it starts running again and the time
elapsed before the suspension is deemed to fall within the statutory limitation
period. If the limitation period was suspended by a claim brought in the course
of other proceedings, it starts running after settlement of the dispute
(section 381(1) and (3)).
2. Criminal Code 1996
Under section 26(1)(1) of the Criminal Code, an editor-in-chief
of a newspaper or other periodical publication could be held criminally liable for
offences committed through that or other types of media if the identity of the
author remained unknown until the end of the trial.
Under section 172(1) and (2) of the Criminal
Code, any person who disseminated false defamatory allegations about another person
could be subjected to a fine or six months’ imprisonment. Acts of defamation
committed in public or through the use of media were punishable by a fine and
by up to one year’s imprisonment.
Under section 184(1), defamation as stipulated in
section 172 was subject to private prosecution.
Since November 2012, sections 172 and 184 of the
Criminal Code (see paragraphs 27 and 28 above) have no longer been in force
(Official Gazette no. 142/2012).
3. Criminal Proceedings Act 1997
Under section 13 of the Criminal Proceedings Act
1997, in force at the material time, proceedings were supervised by a judge,
who was responsible for conducting them without delay.
Under section 16(1) and (2) of the Act, criminal proceedings were instituted at the request of an authorised
prosecutor. In respect of criminal offences subject to public prosecution, the authorised
prosecutor was the public prosecutor whereas in respect of criminal offences to
be prosecuted privately, the qualified prosecutor was a private prosecutor.
. Section
96 provided that a civil-party claim (имотноправно
барање) relating
to a criminal offence was to be decided in criminal proceedings, unless it
significantly delayed them. The civil-party claim could concern monetary compensation,
the restitution of property or the annulment of a legal act.
. Under
section 98(2) and (3), a civil-party claim could be brought in the course of
the criminal proceedings before they were concluded at first instance. Such a
claim had to be specified and supported with evidence.
. Section
99(1) provided that the victim could withdraw (откажe) the civil-party claim until
the end of the trial and pursue it by means of a separate civil action. Such a
claim could not be repeated in the course of the criminal proceedings, unless otherwise
provided by law.
. Under
section 100, the court could question the accused and examine the circumstances
relevant for the civil-party claim, and had to collect evidence and consider
everything that was relevant to decide it. If a decision on the civil-party
claim would significantly delay the proceedings, the court would restrict
itself to gathering evidence which would be impossible or significantly
difficult to gather at a later stage.
. Section
101 provided that the court was responsible for deciding a civil-party claim.
If the court found the accused guilty as charged, the victim could be awarded
full or partial compensation. In the latter case, the court could advise him or
her to seek the remainder by way of civil proceedings. The same applied if
evidence taken in the criminal proceedings was insufficient for the court to award
any damages (section 101(2)).
. In
case of an acquittal or dismissal of the prosecution, if the proceedings were
discontinued or the indictment was rejected, the court was to advise the victim
to pursue his or her civil-party claim by way of civil proceedings (section
101(3)).
. Under
section 417(1), criminal proceedings had to be instituted on the basis of either
a charge brought by the public prosecutor or a private criminal complaint.
4. Criminal Proceedings Act 2010
(Official Gazette no.150/2010 of 17 November 2010)
. Sections
110 to 114 of the Criminal Proceedings Act 2010, which enter into force on 1
December 2013, provide for the same rules on civil-party claims as those
specified in the 1997 Criminal Proceedings Act (see paragraphs 32-37 above).
5. Civil Proceedings Act 2005
. Under
section 11(3) of the Act, civil courts are bound by judgments given by
criminal courts finding an accused guilty, in respect of the commission of the
offence and the convict’s criminal liability.
Section 200 lists grounds under which civil
proceedings are stayed by operation of the law. Under section 201(2), the civil
court may stay proceedings if the decision depended on whether n offence
subject to State prosecution had been committed, who the perpetrator was, and
if he or she was found guilty.
6. Law on civil responsibility
for insult and defamation (Official Gazette no. 143/2012)
. The
Law concerns civil liability for violation of the honour and reputation of
physical and legal persons through insult or defamation. The law provides for
freedom of expression and states that any restrictions thereon shall be in
conformity with the European Convention on Human Rights and the Court’s
case-law. Under the Law, the potential victim can seek publication of a
retraction, a public apology or rectification. It further regulates the
procedure regarding claims for compensation for pecuniary and non-pecuniary
loss sustained as a result of the insult or defamation, as well injunctions the
court can order if parties so request.
C. Relevant domestic practice
The Government submitted a copy of a final
judgment of 21 December 2010, in which the courts accepted a compensation
claim concerning defamatory statements the defendant (a journalist) had made in
a weekly newspaper. The compensation claim was brought after criminal proceedings
instituted by the claimant against the defendant had been stayed because of the
absolute limitation period. In the judgment, the
courts found that the termination of the criminal proceedings had not been binding
on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10).
They further provided a copy of a judgment in
which the Supreme Court dismissed a legality review request (барање
за заштита на
законитоста)
lodged against final judgments rendered in civil proceedings. It concerned a
dismissal by the lower courts of an action for damages brought eight years
after an alleged crime had been committed and after the criminal courts had
acquitted the alleged offender. The Supreme Court found that the statutory limitation
period for compensation claims relating to an alleged crime started to run from
the moment the victim had lodged a civil-party claim in the criminal
proceedings. Since the victim had not made such a claim, the fact that he had
instituted the criminal proceedings had not suspended the running of the
statutory limitation period concerning the compensation claim (Гзз.бр.35/2007 of 9 and
18 October 2007).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION TO
STRIKE THE CASE OUT OF THE COURT’S LIST OF CASES
. Notice
of the application was given to the Government on 12 December 2011. The
applicant was required to provide a letter of authority for his representation in
the proceedings before the Court by 16 January 2012, as provided for under
Rule 36 §§ 2 and 4 (a) of the Rules of Court, which,
in so far as relevant, read as follows:
“... Following notification of the
application to the respondent Contracting Party under Rule 54 § 2 (b), the
applicant should be represented in accordance with paragraph 4 of this Rule,
unless the President of the Chamber decides otherwise.
... 4. (a) The representative acting on
behalf of the applicant pursuant to paragraphs 2 and 3 of this Rule shall be an
advocate authorised to practise in any of the Contracting Parties and resident
in the territory of one of them, or any other person approved by the President
of the Chamber.”
. On
20 April 2012 the President of the Section
forwarded the Government’s observations on the admissibility and merits of the
case to the applicant, and invited him to appoint a lawyer and submit a letter
of authority for his representation before the Court by 18 May 2012.
. With
a letter of 30 May 2012 the applicant submitted his observations in reply to
those of the Government, together with his claims for just satisfaction. He
also informed the Court that he had not received its letter until 28 May 2012
and asked for a copy of the letter of authority he needed in order to appoint
Mr V. Georgiev (see paragraph 2 above) to represent him in the proceedings
before the Court. In reply, the Court invited him to provide the duly signed
authority form by 9 July 2012.
. On
28 June 2012 the applicant provided the requisite letter of authority, which
was forwarded to the Government for information.
A. The parties’ submissions
The Government submitted that the applicant had neither
complied with the requirement of proper legal representation nor sought leave
to represent himself in the proceedings before the Court. Accordingly, they
invited the Court to strike the case out of its list of cases. In this
connection, they referred to the following cases: Grimaylo v. Ukraine
(dec.), no. 69364/01, 7 February 2006; Ivanchenko v. Ukraine (dec.),
no. 60726/00, 7 February 2006; Akulov v. Russia (dec.), no.
74688/01, 8 March 2007.
The applicant did not comment in this regard.
B. The Court’s assessment
. The
Court observes that the present case should be distinguished from the cases the
Government referred to in their submissions. Unlike those cases in which the
applicants had not appointed a lawyer, despite a separate decision of the
President for mandatory legal representation, the applicant in the present case
appointed Mr V. Georgiev, a lawyer practicing in Bitola, as required under Rule
36 § 4 (a) of the Rules of Court. Consequently, the Court finds no grounds to
discontinue examination of the application under
Article 37 § 1 (c) of the Convention. The Government’s objection must
accordingly be rejected.
II. ALLEGED VIOLATION OF THE “REASONABLE-TIME”
REQUIREMENT UNDER ARTICLE 6 OF THE CONVENTION
The applicant complained that the length of the defamation
proceedings had been excessive, contrary to Article 6 of the Convention, which,
in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
A. Admissibility
1. The parties’ submissions
The Government submitted that this complaint was
incompatible ratione materiae with the provisions of the Convention, since
the criminal proceedings had not been determinative for the applicant’s “civil
rights and obligations”. In this connection, they relied on the case of Perez v. France ([GC], no. 47287/99, §§ 67 and 68,
ECHR 2004-I) and stated that the proceedings in question had been
instituted by the applicant as a private prosecutor; he had not specified his compensation
claim as required under section 98(3) of the Criminal Proceedings Act (see
paragraph 33 above); and he could have instituted separate civil proceedings
for damages, the outcome of which would not have been dependent on the outcome
of the criminal proceedings (see paragraph 40 above).
The Government further submitted (in the context
of exhaustion of domestic remedies regarding the applicant’s complaint under
Article 8, see paragraphs 72-75 below) that the criminal
courts were required to decide a civil-party claim only if it had been
specified. However, according to domestic practice, the courts had advised the
victims to pursue their compensation claim by means of a separate civil action
for damages even if the defendant was found guilty. If the compensation claim
was not specified (as in the applicant’s case), the courts were not required to
advise the victims to pursue their compensation claim by means of a separate
civil action for damages, but that option had remained at their discretion. Domestic
practice suggested however that the courts made such instructions in any case. They
further provided statistical information, according to which the courts issued
criminal sanctions in 193 of the 745 defamation criminal cases brought between 2009
and 2011, and awarded compensation in only three. Lastly, they averred that
it remained open to the applicant to claim compensation in separate civil
proceedings after the criminal proceedings had been stayed, since the
introduction of the compensation claim in the criminal proceedings had suspended
the running of the statutory limitation period (see paragraphs 23-25 above).
The applicant contested the Government’s
arguments stating that he had not specified the compensation claim since “the
judge had not permitted” him to do so.
2. The Court’s assessment
The Court notes that in the case of Boris
Stojanovski v. the former Yugoslav Republic of Macedonia (no. 41916/04, § § 36-40, 6
May 2010) it rejected an identical objection
raised by the Government concerning a compensation claim that the applicant, as the injured party, had brought in criminal proceedings instituted ex officio against a third party. In
the present case, the applicant pressed
criminal charges against B.T. and R.P., accusing
them of defamation. In the Court’s view, the fact that the applicant acted as a private
prosecutor is of no relevance for the applicability of Article 6 to the
proceedings in question. This is because the
capacity in which the victim participates in criminal proceedings (as a direct or
subsidiary complainant or merely as an injured party) plays no part in the
applicability of Article 6 to the civil-party claim.
The Court further notes that, as averred by the
Government, the applicant did not specify his compensation claim. That, in
itself, was insufficient for the Court to find Article 6 inapplicable in the Boris Stojanovski
case (ibid., § 56). It also observes that under section 98(2) of the
Criminal Proceedings Act, as in force at the material time, a civil-party claim
could be brought before the proceedings were concluded at first instance. No argument
has been submitted that that rule did not concern the requirement to have the
civil-party claim specified by the end of the trial. It is to be noted that the
trial in the present case did not result in a decision on the merits, but was
concluded because of the absolute limitation period. Furthermore, it appears that
the trial court did not take any action with respect to the applicant’s
indemnity claim, as specified under the applicable legislation (see paragraph 35
above).
The Government appears to have suggested (see
paragraph 54 above) that the criminal proceedings were not the adequate avenue
regarding civil-party claims since the criminal courts, in practice, had abstained
from deciding such claims on the merits, instead advising the victims to pursue
them in the civil courts. The Court considers that the statistical information
provided in this regard is insufficient to support that argument. It is unclear
in how many defamation cases brought before the courts within the reference
period the claimants had sought compensation. The applicant’s compensation
claim was based on the applicable law, which, in the Court’s view, clearly
established that the criminal courts could award civil damages. Accordingly, it
was not unreasonable for the applicant to expect that the criminal courts would
consider his compensation claim. The recently enacted Criminal Proceedings Act
2010 also provides for the possibility of victims of crime to seek civil redress
in the criminal courts (see paragraph 39 above).
Furthermore, the introduction of the
compensation claim in the criminal proceedings, although not specified, had suspended
the running of the limitation period for instituting separate civil proceedings
(see paragraph 54 above). Accordingly, it constituted a valid action brought
by the applicant with a view to determining or securing his “civil” claim (see
paragraph 23 above).
. Lastly,
the applicant did not withdraw his compensation claim during the
proceedings despite being permitted to do so under section 99(1) of the
Criminal Proceedings Act (see paragraph 34 above). In such circumstances, his
failure to specify the compensation claim cannot be regarded as an unequivocal waiver
of the right to have the claim decided on the merits (see, mutatis mutandis,
Sadak and Others v. Turkey (no. 1), nos. 29900/96,
29901/96, 29902/96 and 29903/96, § 67, ECHR 2001-VIII).
In view of these considerations, the Court
considers that Article 6 became applicable to the impugned proceedings when the applicant was joined as a civil party, namely
since the moment he made his claim for monetary compensation (see Atanasova v. Bulgaria, no. 72001/01, § 52,
2 October 2008). It is
not disputed that this was the date he brought the criminal complaint (see
paragraph 9 above). Accordingly, the Government’s objection that this
complaint is incompatible ratione materiae
with the provisions of the Convention must be rejected.
The Court notes that it is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicant reiterated his arguments that the
length of the proceedings had been excessive.
The Government submitted that
the unknown identity of the author of the article had contributed to the
complexity of the proceedings. Furthermore, the national courts had undertaken
all measures necessary to secure the accused’s attendance. Lastly, they could
not be said to have been inactive, given the number of hearing dates fixed.
2. The Court’s assessment
. The
Court notes that the proceedings in question started no later than 4 February
2003 and ended on 24 March 2007, when the Court of Appeal’s judgment of 1 March 2007 was served on the applicant. They therefore lasted
for more than four years and a month at two levels of jurisdiction.
. The
Court reiterates that the reasonableness of the length of proceedings must be
assessed in the light of the circumstances of the case and with reference to
the following criteria: the complexity of the case, the conduct of the
applicant and the relevant authorities (see,
among many other authorities, Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000-VII; Comingersoll S.A. v. Portugal
[GC], no. 35382/97, ECHR 2000-IV; and Philis v. Greece
(no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions
1997-IV, § 35).
. The
Court does not consider that the case required an examination of any complex
issues.
. As
regards the applicant’s conduct, the Court finds no delays attributable to him.
He attended all the hearings scheduled (see paragraph 11 above).
. As
to the national courts, the Court observes that the proceedings were pending
for over four years before the trial court concluded them on account of the
absolute limitation period. During that time, the trial court fixed
twenty-three hearings, which were rescheduled owing to the absence of the
accused or B.T.’s representative. In the Court’s view, it was the trial court’s
inability to secure the accused’s attendance that delayed the proceedings. In
this connection it notes that it was not until 7 March 2006, more than three
years after the applicant had brought the criminal complaint, that the trial
court heard oral evidence from B.T. That the identity of R.P. remained unknown
can only be attributed to the trial court. In this connection the Court
observes that it was not until 6 May 2005, more than two years and two months after
the trial had started, that the court requested that the newspaper reveal the
identity of the author of the article. The subsequent attempts in this regard, and
the court’s orders to summon the author once his identity had been discovered (see
paragraph 15 above), were again to no avail. The Court emphasises that according
to the domestic legislation (see paragraph 30 above) and its case-law, judicial
proceedings are supervised by a judge, who is responsible for the preparation
and the speedy conduct of the trial (see, mutatis mutandis, Scopelliti v. Italy, judgment
of 23 November 1993, Series A no. 278, § 23). That the Skopje Court of Appeal
decided the applicant’s appeal within a reasonable time cannot offset the
delays noted above.
. Accordingly,
there has been a violation of Article 6 § 1 of the Convention in respect of the
“reasonable time” requirement (see, conversely, Boris Stojanovski,
cited above, § 52).
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that the respondent
State, owing to the failure of the domestic courts to secure the accused’s
attendance, had failed to protect the right to respect for his private and
family life, including his reputation, which had been damaged by the article
published in the newspaper. He alleged that as a result of the published article
there had been negative public perception about him and his family. His house
and business premises had been covered with graffiti describing them as
“thieves”. The applicant relied on Article 8 of the Convention, which reads as
follows:
“1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for the prevention of
disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
A. Admissibility
1. The parties’ submissions
(a) The Government
The Government objected that the applicant had
not exhausted all effective remedies. In particular, he had not claimed
compensation in separate civil proceedings, despite the fact that he had been
entitled to do so. Such a possibility had been open to him pending the criminal
proceedings and after they had been stayed. In the latter case, he could have
claimed damages in the civil courts until 2 December 2007 (see paragraph 22 above).
Domestic practice supported that opportunity (see paragraphs 43 and 44 above). The
applicant had been required to exhaust the civil remedy given the fact that the
criminal avenue of redress had been ineffective in his case. In this connection
they noted the fact that the applicant had not known the identity of the
author. They further stated that the two available avenues of redress, both criminal and civil, had been open,
at the relevant time, to a victim of an alleged violation of Article 8 of the
Convention, since in both cases the domestic courts could order a measure
rectifying the eventual damage to the victim’s reputation. Those remedies could
have been used simultaneously or independently.
. In
the case of simultaneous use of both the criminal and civil avenues of redress,
the civil courts would not have been required under the law (see
paragraph 41 above, which concerns the relationship between a civil claim and
criminal proceedings instituted by the State), to stay the proceedings and wait
for the outcome of the criminal proceedings. They stated however that “it was
likely that the civil proceedings would have been stayed pending the outcome of
the criminal proceedings”. It was confirmation that the civil
action for damages, which was the effective remedy regarding Article 8 rights, had
to be decided in civil proceedings.
. The
criminal remedy aimed, above all, at establishing guilt, attributing criminal liability
and punishing the perpetrator. Its principal aim was not to provide the victim
with compensation for damaged reputation. The civil action for damages specified
under sections 187 to 189 of the Obligations Act (see paragraphs 20 and 21 above)
provided that the burden of proof lay with the alleged offender to show that no
liability could be attributed to him or her for the damage sustained. Civil courts
were entitled to order monetary compensation, as well as publication of the
judgment, retraction or rectification of the defamatory statement at the liable
party’s expense. Furthermore, the civil remedy could also be used against the
newspaper, unlike the criminal remedy which could only be used against the
author of the text, if his or her identity was known.
. For
these reasons, the Government argued that the civil avenue of redress was the
more appropriate remedy for an alleged violation of someone’s reputation (see
Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII).
In support of this were the steps taken with a view to
decriminalising defamation, which were compliant with the recommendation by the
Parliamentary Assembly of the Council of Europe (see paragraph 17 above). As a
result, defamation was no longer subject to criminal prosecution (see paragraph
42 above).
(b) The applicant
The applicant denied that fresh criminal proceedings
in respect of the same offence could be brought against an accused. Similarly,
no fresh compensation claim could have been brought before the civil courts,
had such a claim been made and decided in the course of the criminal
proceedings. Even if he had brought a fresh compensation claim after the
criminal proceedings had been stayed, it would not have been decided until 2 December
2007, the date when the claim would have become, according to him, time-barred.
The applicant further argued that the trial court had not advised him to pursue
the compensation claim by means of a separate civil action for damages, nor had
it reacted to his objections regarding the conduct of the trial (see paragraph 16
above).
2. The Court’s assessment
(a) General principles
The Court reiterates that
under Article 35 § 1 of the Convention, it may only deal with an application
after all domestic remedies have been exhausted. The purpose of Article 35 is
to afford the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are submitted to
the Court. The obligation to exhaust domestic remedies requires an applicant to
make normal use of remedies which are effective, sufficient and accessible in
respect of his Convention grievances. To be effective, a remedy must be capable
of resolving the impugned state of affairs directly
(see Bajić v. Croatia, no. 41108/10, § 72, 13 November 2012).
. Consequently,
States are dispensed from answering for their acts before an international body
before they have had an opportunity to put matters right through their own
legal system. That rule is based on the assumption, reflected in Article 13 of
the Convention - with which it has close
affinity - that there is an effective remedy
available in respect of the alleged breach in the domestic system. Thus, a
complaint intended to be made subsequently to the Court must first have been
made - at least in substance - to the appropriate domestic body, and in
compliance with the formal requirements and time-limits laid down in domestic
law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
. The
Court emphasises that Contracting States are afforded some discretion as to the
manner in which they conform to their obligation to provide a domestic remedy
that would allow the competent national authority both to deal with the
substance of the relevant Convention complaint and to grant appropriate relief (see
the discussion regarding Article 13 in Nada v. Switzerland [GC],
no. 10593/08, § 207, ECHR 2012). This
discretion reflects the freedom of choice attaching to the primary obligation
of the Contracting States under Article 1 of the Convention to secure the
rights and freedoms guaranteed under the Convention (see, mutatis mutandis,
Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B).
When there are a number of domestic remedies
which an individual can pursue, that person is entitled to choose a remedy
which addresses his or her essential grievance. In other words, when a remedy
has been pursued, use of another remedy, which has essentially the same objective,
is not required (see T.W. v. Malta [GC], no. 25644/94, § 34,
29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01,
ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.),
no. 41183/02, 15 November 2005; and Jasinskis v. Latvia, no.
45744/08, § 50, 21 December 2010).
When the Government claims non-exhaustion of
domestic remedies, it bears the burden of proving that the applicant has not
used a remedy that was both effective and available.
However, once this burden of proof has been satisfied, it falls to the
applicant to establish that the remedy advanced by the Government was in fact exhausted
or was for some reason inadequate and ineffective in the particular
circumstances of the case or that there existed special circumstances absolving
him or her from the requirement (see Akdivar
and Others v. Turkey, 16 September 1996, § 68,
Reports 1996-IV).
(b) Application to the present case
The Court notes that, as admitted by the
Government (see paragraph 72 above), the domestic
legislation, as applicable at the relevant time, gave the victim of defamation
the option of choosing between two avenues of redress, civil and criminal. They
could be used either alone or in conjunction with each other. The law also
provided for the simultaneous use of both remedies. The civil avenue of redress
concerned a civil action for damages, which could be pursued, under the
Obligations Act, in the civil courts. The criminal avenue of redress concerned
private prosecution by the victim. It also provided for a civil-party claim, which
the victim could submit together with the criminal complaint.
In the present case, the applicant availed
himself of the criminal avenue of redress. In the criminal complaint, he
accused B.T., editor-in-chief of the newspaper and a certain R.P., the presumed
author, of having published the article allegedly containing false allegations that
he had stolen a tractor. It was based on sections 172 and 184 of the Criminal Code,
as valid at the material time (see paragraphs 27 and 28 above). It is true that the applicant did not identify the author of
the article. However, the trial court was aware of the identity of the
editor-in-chief of the newspaper and it could have examined accordingly the
case under section 26 of the Criminal Code (see paragraph 26 above). The
applicant also made a claim for financial reparation of the loss sustained as a
result of the alleged defamation. Thus, he put to the
domestic courts, in accordance with domestic law, the substance of his
subsequent complaint to the Court. The remedy
pursued by the applicant could have given rise to a declaration that the
article was defamatory. It could have also eventually led to an award of
compensation. The relevant domestic practice confirmed the availability and, to
some extent, the effectiveness of the criminal avenue of redress (see paragraph 54 above). In such circumstances, there is nothing to suggest that the applicant could not have
legitimately expected that the criminal-law remedy would not be an effective
one. The Court considers therefore
that the applicant was not required to make before the civil courts a separate,
additional request for compensation, which could also have given rise to a
finding that the article was damaging to his rights under Article 8 (see Karakó
v. Hungary, no. 39311/05, § 14, 28
April 2009). The option to seek monetary or other
compensation in the civil courts after the criminal proceedings had been stayed
was at the applicant’s discretion (see paragraph 54 above), and it cannot be
interpreted as an exhaustion requirement.
Lastly, the Court reiterates
that the Contracting States, who are in the best position to assess the
practicalities, priorities and conflicting interests on a domestic level, are
free to choose the remedies and form of appropriate relief. In cases such as the present, such choice should reflect
on the views expressed by the Parliamentary Assembly of the Council of
Europe (see paragraph17 above). The Court takes note of the fact that the
respondent State decriminalised the defamation (see paragraphs 29, 42 and 75
above). However, the fact that the legislation now in force does not allow for
criminal prosecution in cases of defamation is of no relevance for the present
case, which pre-dated the entry into force of the new legislation.
. Against
this background, the Court considers that this complaint cannot be declared
inadmissible for non-exhaustion of domestic remedies. Accordingly, the
Government’s objection must be rejected and this complaint be declared admissible.
B. Merits
1. The parties’ submissions
The applicant reiterated that the criminal
proceedings had not been conducted correctly.
The Government denied that the judgments given
in the applicant’s case had been arbitrary or otherwise unlawful. Limitation
periods aimed at ensuring the principle of legal certainty, under which
prosecutions were no longer possible upon the passage of time. Having regard to
the arguments that an effective remedy − a civil action for damages
− had been available to the applicant, the Government concluded that the
State had not violated the applicant’s rights under Article 8 of the
Convention.
2. The Court’s assessment
The Court points out that, although the objective
of Article 8 is to protect the individual against arbitrary interference by the
public authorities, it does not merely compel the State to abstain from such
interference. In addition to this primarily negative undertaking, there may be
positive obligations inherent in an effective respect for private and family
life. These obligations may involve the adoption of measures designed to secure
respect for private and family life even in the sphere of the relations of
individuals between themselves (see White v. Sweden, no. 42435/02, § 20,
19 September 2006). The Court considers that the present case engages the
State’s positive obligations arising under Article 8 to ensure effective
respect for the applicant’s private life, in particular his right to respect
for his reputation (see Petrina v. Romania, no. 78060/01, §§ 34 and 35,
14 October 2008; Petrenco v. Moldova, no. 20928/05, § 52, 30 March 2010; and Aleksey Petrov
v. Bulgaria (dec.), no. 27103/04, 2 November 2010). In this connection it adds
that in order for Article 8 to come into play, the
attack on the applicant’s personal honour and reputation must attain a certain
level of gravity and in a manner causing prejudice to the personal enjoyment of
the right to respect for his private life (see, for example, A. v. Norway,
no. 28070/06, § 64, 9 April 2009, Mikolajová v. Slovakia, no.
4479/03, § 55, 18 January 2011 and Roberts and Roberts v. the United
Kingdom, (dec.), no. 38681/08, §§ 40-41, 5 July 2011).
. In
this connection the Court points out that the choice of the means calculated
to secure compliance with Article 8 in the sphere of the relationships of
individuals between themselves is, in principle, a matter that falls within the
Contracting States’ margin of appreciation. However, this
discretion goes hand in hand with European supervision (see Mosley v. the
United Kingdom, no. 48009/08, § 107, 10
May 2011). It considers, as a minimum requirement,
that an effective legal system must be in place and operating for the
protection of the rights falling within the notion of “private life” (see Karakó,
cited above, § 19), and it is satisfied that such a
system was indeed available to the applicant in the present case.
. The
Court notes that the present application is distinguishable from the cases to
which it has referred above concerning the right to the protection of one’s
reputation under Article 8 of the Convention. While in those cases the Court
has balanced the protection of private life against the right to freedom of
expression enshrined in Article 10, in the present case it is confronted with a
situation in which the domestic courts did not decide the merits of the applicant’s
allegations that the article published in the newspaper had violated his rights
under Article 8. Accordingly, it must consider whether the criminal-law
mechanism available in the Macedonian legal system provided for an effective
protection of the applicant’s rights under Article 8 of the Convention.
. In
this connection it notes that section 172 of the Criminal Code, as in force at
the relevant time, protected a person’s reputation against defamatory allegations.
This was not contested by the parties. In the criminal complaint, the applicant
criticised the fact that the article had contained false allegations describing
him as a thief, which had created a negative public perception about him and
his family. However, the criminal proceedings were stayed because of the
absolute limitation period. The domestic courts, owing to faults attributable
only to the authorities (see paragraph 69 above), failed to verify the veracity
of the statements contained in the article. The Government also admitted that
the criminal proceedings had been ineffective in the applicant’s case (see
paragraph 72 above). The applicant was therefore prevented from having his
right to respect for his private life, which apparently was considerably
affected (see paragraphs 13 and 71 above) effectively protected. Without making
any conclusions as to what the outcome of the proceedings should have been (had
the courts decided the merits of the applicant’s claim), the Court considers that
the manner in which the criminal-law mechanism was
implemented in the instant case was defective to the point of constituting a breach
of the respondent State’s positive obligations under Article 8 of the
Convention (see, mutatis mutandis, Sandra Janković v.
Croatia, no. 38478/05, §§ 57 and
58, 5 March 2009).
Accordingly, the Court considers that in the
present case there has been a violation of Article 8 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant further alleged a violation of his
rights under Articles 2, 3, 5, 9, 13 and 14 of the Convention.
The Court has examined these complaints. However,
in the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms set out
in the Convention or its Protocols.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 1,073,970 euros (EUR) in
respect of pecuniary damage. That figure represented business losses and the loss
of income for him and his family, and travel, educational, rental and living expenses
for his family who had been living in Australia. In this connection he referred
to court proceedings he had instituted against the State concerning property-related
issues and submitted documents showing some of the expenses mentioned above. He
also claimed EUR 650,000 in respect of non-pecuniary damage for the mental
suffering he and his family were experiencing in the respondent State.
The Government contested the applicant’s claims
as unsubstantiated and excessive. They further alleged that there had been no
causal link between the damage claimed and the alleged violations. Furthermore,
the claims partly related to third parties who could not claim to have victim
status in relation to the alleged violations.
The Court does not discern any causal link
between the violations found and the pecuniary damage claimed; it therefore
rejects this claim. For the same reasons, it also rejects the applicant’s
claims in respect of non-pecuniary damage allegedly sustained by members of his
family. Nevertheless, it considers that the applicant himself must have
sustained non-pecuniary damage for the violations found. Ruling on equitable
basis, it awards him EUR 4,500 in respect of non-pecuniary damage, plus any tax
that may be chargeable.
B. Costs and expenses
The applicant also claimed as pecuniary damage
EUR 7,830 for costs and expenses incurred before the domestic courts. That figure
included EUR 6,865 for fees for his legal representation, calculated under the
tariff list of the Macedonian Bar, as well as for transportation costs between
Bitola and Skopje. It also included EUR 965 for the applicant’s subsistence
allowance for each hearing. He could not provide any supporting documents since
police had confiscated all his receipts. He also claimed EUR 37,000 for costs
and expenses concerning the proceedings before the Court. He did not submit any
supporting document in this regard.
The Government contested the applicant’s claims
as unsubstantiated and excessive. In this respect they stated that there was no
evidence that they had been actually and necessarily incurred and reasonable as
to the quantum. They also claimed that they had not been properly claimed.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum(see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). That is to say, the applicant must have paid them, or be bound
to pay them, pursuant to a legal or contractual obligation, and they must have
been unavoidable in order to prevent the violation found or to obtain redress
(see Belchev v. Bulgaria, no. 39270/98, § 113, 8 April 2004, and Hajnal
v. Serbia, no. 36937/06,
§ 154, 19 June 2012). In the present case, regard
being had to the available material and the above criteria, the Court considers
it reasonable to award the applicant EUR 2,650 for legal fees and expenses relating
to the defamation proceedings, plus any tax that may be chargeable to the
applicant. As to the proceedings before it, the Court notes that the applicant’s
representative entered the proceedings after the applicant had submitted his
comments in reply to the Government’s observations (see paragraphs 47 and 48
above). In such circumstances and in the absence of any supporting documents,
it rejects the applicant’s claim under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the
complaint concerning the length of the defamation proceedings and the alleged
failure of the respondent State to discharge its positive obligation to protect
his right to respect for his private life admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention;
3. Holds that there has been a violation of
Article 8 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency
of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 4,500 (four thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,650 (two
thousand six hundred and fifty euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle Berro-Lefèvre
Registrar President
