Freedom of expression

School of Public Policy Mother Theresa Katerina Todorovska

Free speech in the legal profession reality or declaration? Case study of the Decision of Constitutional Court of Republic of Macedonia in the Tanevski case

The very aim and end of our institutions is just this: that we may think what we like and say what we think. Oliver Wendell Holmes, justice at the American Supreme Court

In open societies the public space is an open forum where different opinions clash on the quest for searching the truth. Protection of free speech is serving the public interest by promoting open and public debate, and is making a contribution towards strengthening the democratic values of the society. Protecting the freedom of speech is of fundamental importance, especially in public institutions which exist for the purpose of establishing the truth and settling disputes among individuals, such as the courts and other judicial institutions. This is recognized in international, as well as national law, in regard to protection of human rights and freedoms. In a 1978 survey of 142 constitutions of countries around the world, was established that the freedom of expression is the most universally recognized and legally protected of the body of individual human rights and freedoms, with 124 constitutions (or 87,3%) asserting the protection of freedom of expression [in contrast, only 66 constitutions, or 46,5% stipulated the prohibition of torture and inhuman treatment] 1. However, the practical aspects of creating effective legal mechanisms for exercising the freedom of expression remain a subject of controversy. In most countries, the most important mechanism for protection of this freedom is the judicial system. Courts are able to evaluate the individual facts and context of each case and in light of the theoretical aspects. As such, courts develop significant body of case law and define important legal principles, which serve for better understanding of the law. In the

p. 170, European Human Rights Law, M.W.Janis; R.S.Kay and A.W.Bradly, Oxford University Press, 2000

Freedom of expression
School of Public Policy Mother Theresa Katerina Todorovska

Macedonian legal system, the case law is not an official legal source and a courts decision is binding only inter partes. Despite that fact, through the years, important principles would evolve in the legal practice which without a doubt would have an effect in the level of protection of individual rights and freedoms. In this essay I will discuss the protection of freedom of expression in Republic of Macedonia in regard to public expression of opinions in the course of legal representation by lawyers, as well as the proportionality test implemented by courts in deliberating on the interference with this freedom [especially in cases of defamation]. The aforementioned issues will be illustrated in the case study of the recent Decision of the Constitutional Court of RM 2, in the case of Levko Tanevski, lawyer from Skopje, who petitioned the court for violation of freedom of expression. Summary of the facts of the case Levko Tanevski is a lawyer from Skopje who was hired by a company to give legal aid and representation in Court of a company in a case against its former lawyers. In 1999, the lawyers had filed a suit against its former client for settling the debt for the legal services that they allegedly performed for the company. Mr.Tanevski was hired to represent the company in this case and annul the contract for legal services with the formal lawyers, as it stipulated for unjustified reward for legal representation by the lawyers of 650.000,00 denars [when in reality, during the time period of the contract, the lawyers did not performed any services of legal representation]. As the court of first and of second instance decided the case in favor of the company represented by Mr. Tanevski, the former lawyers were forced to turn to the Public Prosecution Office and the Supreme Court for remedy. In the end, the Supreme Court made a favorable decision for the former lawyers. During this procedure, Mr.Tanevski addressed matters of the case in a document send to the Supreme Court, which later became basis for filing private criminal suit on charges of defamation against him, by the former lawyers of

Decision of the Constitutional Court of Republic of Macedonia, U.n.107/2010, published in the Official Gazette of RM, n.38, 25.03.2011

Freedom of expression
School of Public Policy Mother Theresa Katerina Todorovska

the company. In this document, Mr. Tanevski expressed value judgment for the actions of the former lawyers, where he classified their actions as unfair and dishonest ambition for earning close to 40.000 euros for services they did not perform. Moreover, he stated that other similar cases exist in relation to these particular lawyers in the archives of the Courts of first and second instance in Stip. These statements were the basis for Mr.Tanevski to be sentenced by the Criminal court for defamation of the lawyers 3. The Criminal Court reasoned that Mr.Tanevskis goal was to destroy the reputation of the lawyers and present them as dishonest and greedy. Further on, the Court considers the legal profession of the defendant and the plaintiffs, and the fact that the statement is presented in legal proceedings, as aggravating circumstances to the case. As his final resort, Mr.Tanevski files a petition to the Constitutional Court for protection of his right of freedom of expression and his immunity as a lawyer [which is guaranteed by the Constitution of RM and the Law of Advocacy], which the court declined in its final decision, with one dissenting opinion. The proportionality test in the decisions of the Constitutional Court of RM and the European Court of Human Rights in regard to cases of freedom of expression of lawyers In Republic of Macedonia, freedom of expression is provisioned as one of the fundamental values of the Constitution and the society [art.8, Constitution of RM], as well as one of the basic individual human rights and freedoms [art.16, Constitution of RM]. As such, these rights are subjected strict limitations, provisioned by law and necessary in a democratic society 4. The Constitution of Republic of Macedonia takes a firm stand in proclaiming that limitations on several individual human rights and freedoms, among which is the freedom of expression, will not be subjected to limitations [art.54, Constitution of RM]. However, for practical concerns, we must take into account the more specific and
3

According to art. 172 of the Criminal Code of Republic of Macedonia Art.10, European Convention of Human Rights

Freedom of expression
School of Public Policy Mother Theresa Katerina Todorovska

detailed provisions of limitations of freedom of expression, prescribed in art. 10 of the European Convention of Human Rights [ECHR] 5, which Macedonia has signed and ratified. ECHR and the proportionality tests used in the decisions of the rich body of case law by the European Court of Human Rights are often cited in the decisions of the constitutional judges in Macedonia. As cited in the case Nikula v.Finland, an interference in the freedom of expression as affirmed in art.10 of the ECHR, is justified if fulfills the following conditions: to be prescribed by law, to pursue one or more of the legitimate aims referred to in paragraph 2 of art.10, and is to be necessary in a democratic society for achieving such an aim or aims. In his dissenting opinion, in regards to the Tanevski case, judge Igor Spirovski, reasons that while the interference in the freedom of expression in this case satisfies the first two conditions of the proportionality test [it is in fact prescribed by law and serves the legitimate aim of protection of reputation or rights of others], he is doubtful of the necessity of this interference in a democratic society. His opinion is that a key matter was disregarded in the Tanevski case, the fact that his statements which are object of the defamation charges, were in fact presented in the course of legal representation by the lawyer of this clients and as such he is protected from criminal charges by his immunity [guaranteed in art.21 of the Law of Advocacy]. Furthermore, this statement was presented in written document submitted to the Supreme Court and which had limited reach to the public. Having in mind that the object of protection in defamation cases is the reputation of the

Art. 10, European Convention of Human Rights : 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to ... impart information and ideas without interference by public authority ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Freedom of expression
School of Public Policy Mother Theresa Katerina Todorovska

plaintiff, the availability of the statement to the public is an important factor that needs to be considered by the courts in the defamation cases 6. Another important factor, considered by the Strasbourg Court in defamation cases in relation to art.10 of ECHR is the function fulfilled by the author and the subject. The position of the Court is that the margin of appreciation of states is even more limited in professions of public interest, such as journalists, which have a duty towards society to impart information on matters of public concern. However, in cases of advertisements and other forms of commercials, the Strasbourg Court is reluctant to examine and influence the margin of appreciation of national courts in cases of interference of the freedom of expression. In the case of Mr. Tanevski, while examining the relevant facts and factors of influence and the basic principles which address the specific role of the lawyer, the Constitutional Court cites several international documents such as the UN Basic principles of the role of the lawyer and the Recommendation 2000 (21) of the Committee of Ministers of Council of Europe. Comparative analysis of this issue is provided in the judgment of the case Nikula v. Finland, where the Strasbourg court cites a survey of a number of member States of the Council of Europe (i.e. Belgium, Denmark, France, Italy, the Netherlands, Spain, Sweden and the United Kingdom) as well as of certain other States (Australia, Canada and South Africa) that a great majority of them accord a privilege to lawyers for statements they make while representing clients in court. Although the extent and application of such privilege may differ from jurisdiction to jurisdiction, every surveyed State recognizes that a lawyer's ability to express himself or herself is closely linked to counsel's obligation to defend the client. The privilege for allegedly defamatory statements allows counsel to argue as effectively as possible, relying even on facts which they cannot be sure are true.

European Court of Human Rights cases Steur v.the Netherlands (2003), Skalka v.Poland (2003), as cited in the Dissenting opinion of judge Spirovski in the Tanevski case (2011) before Constitutional Court of RM

Freedom of expression
School of Public Policy Mother Theresa Katerina Todorovska

Conclusion Freedom of expression is essential for protection of democracy in the society, for establishing the truth and for individual development of each citizen. For the state it is vital to ensure that protection of this freedom is not only declarative. There are some cases where even light penalty or injunction will violate this freedom and have severe costs for the public interest and an unacceptable chilling effect on the legal practice and the status of lawyers as defenders of human rights and justice. In my opinion the Constitutional court had clear basis for finding a disproportionate interference of the freedom of expression of Mr. Tanevski. The negative decision by the Constitutional court will have serious consequences for the legal profession as a whole, and for each individual lawyer in Macedonia. In the words of the European Court of Human Rights, decisions like these would have a chilling effect on the applicants willingness and ability to perform his professional duty to defend the interests of his clients with zeal 7. The disappointing truth is that this decision directly contributes towards creation of domestic legal practice which instead of promoting debate in the courtroom and clash of arguments in search of truth and justice, would develop in legal representation which is based on feeble declarations, deprived of arguments, in fear of criminal charges. As, judge Spirovski points out, protection of the freedom of expression is not reserved only for statements which are pleasant and towards which we are indifferent. Freedom of expression equally protects statements which are disturbing and shocking, especially when they are serving the public interest.

European Court of Human Rights, Steur v.the Netherlands (2003)

Freedom of expression
School of Public Policy Mother Theresa Katerina Todorovska

Bibliography

1. European Human Rights Law, M.W.Janis; R.S.Kay and A.W.Bradly, Oxford University Press, 2000 2. Decision of the Constitutional Court of Republic of Macedonia, U.n.107/2010, published in the Official Gazette of RM, n.38, 25.03.2011 3. Dissenting opinion of judge Igor Spirovski, in respect to Decision of Constitutional Court of Republic of Macedonia, U.n.107/2010, published in the Official Gazette of

RM, n.38, 25.03.2011

4. Constitution of Republic of Macedonia 5. European Convention of Human Rights 6. European Court of Human Rights judgement, Nikula v.Finland (2002), Application n. 31611/96