Case Summary and Outcome

The Constitutional Court of the Republic of Macedonia held that the temporary detention of two political activists was a violation of their right to freedom of expression and constituted discrimination on the basis of their political affiliation. The activists had attempted to unfurl a banner at a protest when they were prevented from doing so and handcuffed by police officers. The Court applied domestic and international human rights law in finding that the interference with the activists’ rights was not necessary in a democratic society and was therefore impermissible.

Facts

On July 29, 2017 the Macedonian police and army in cooperation with representatives from NATO held a public exhibition of military weapons in the “Macedonia” square. The purpose of the exhibition was to encourage citizens to consider that the Republic of Macedonia should become a member of NATO. Two members of the leftist oriented political party Levica, Mr. Goce Markovski and Mr. Gorast Muratovski, attended the exhibition. Levica is opposed to the militarization of Macedonia and Markovski and Muratovski organized a peaceful protest in which they displayed a banner with the text “Against war for profit”. They believed that the banner would illustrate their position that money should be spent on education and health systems rather than the military.

During the protest Markovski and Muratovski were approached by police officers from the Ministry of Internal Affairs who ordered them to leave the square with their banner. Markovski and Muratovski instead went to the nearby City Shopping Centre (where some other protesters from both sides had moved) with the intention of displaying the banner there. Police officers then handcuffed the two men at the shopping centre and took them to the basement and kept them restrained for 15 minutes to prevent them from displaying the banner and conveying the banner’s message to the public.

Markovski and Muratovski reported the incident to the Ministry of Internal Affairs and the Ombudsman and were informed by the Ministry that disciplinary measures had been taken against the specific police officers and the Prosecution Office had been informed as the police officers had acted unlawfully.

Notwithstanding the disciplinary measures taken, Markovski and Muratovski approached the Constitutional Court seeking a declaration that their rights to opinion and freedom of expression were violated by the incident in the shopping centre and that they had been discriminated against on the basis of their political affiliation.

The Constitution and the Rules of the Constitutional Court empower any citizen to approach the Constitutional Court if they believe that an individual act has infringed their right to freedom of expression or that the act amounted to discrimination. Article 110 line 3 of the Constitution states: “The Constitutional Court of the Republic of Macedonia protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity as well as to the prohibition of discrimination among citizens on the ground of sex, race, religion or national, social or political affiliation”. Article 51 of the Rules states: “Any citizen considering that an individual act or action has infringed his/her right or freedom, as provided in article 110 paragraph 3 of the Constitution of the Republic of Macedonia, may request protection by the Constitutional Court”.

Decision Overview

The case came before a panel of eight judges at the Constitutional Court. The central issue before the Court was whether the actions of the police in handcuffing Markovski and Muratovski, and so preventing them from displaying their banner, was an infringement of their right to freedom of expression and of the prohibition against discrimination.

As Markovski and Muratovski were seeking a declaration that their rights had been violated, the case was not brought against any individual or public institution and the State did not oppose the application. In fact, the State accepted that the police officers had overstepped their rights under the Law on Police and as a consequence a competent organ within the Ministry had initiated a disciplinary procedure against them.

Markovski and Muratovski referred to the European Court of Human Rights (ECtHR) cases of Açık v. Turkey App. No. 31451/03 (2009) and Karácsony v. Hungary App. Nos. 42461/13 and 44357/13 (2016) which had found violations of article 10 of the European Convention on Human Rights.

The Court held that the act of the police officers handcuffing Markovski and Muratovski was a violation of their right to freedom of expression because, as members of a peaceful protest, they had been prevented from displaying the banner on which their thoughts were expressed. The Court stressed the importance of the right to freedom of expression in a democratic society, and, with reference to the ECtHR case of Von Hanover v. Germany (No 2) App. Nos. 40660/08 and 60641/08 (2012), noted that the right can only be limited when there is an urgent societal need, a legitimate aim and when it is necessary in a democratic society. By applying that tripartite test the Court noted that it is only when there are indications that protestors have violated the fundamentals of democratic society, such as by using violence, that police officers would have a “legitimate aim” in limiting protestors’ rights to freedom of assembly and to freedom of expression. Accordingly, the Court held that articles 10 of the European Convention of Human Rights (ECHR), which protects the right to freedom of expression, and article 16 of the Constitution of the Republic of Macedonia, which protects freedom of personal conviction, conscience, thought and public expression of thought, had been infringed. The Court also referred to the domestic Law on Police in defining a “police officer” and examining the rights and obligations of the police officers.

In this assessment the Court demonstrated the interplay between the ECHR and the domestic Constitution in Macedonian law, and how the international instruments and the Constitution play important roles in freedom of expression cases. In the Republic of Macedonia, international agreements ratified in accordance with the Constitution are part of the domestic legal order and cannot be changed by law. Therefore, courts are bound to apply international agreements to the interpretation of domestic legislation. The Court stated that freedom of expression is a subjective right interlinked with human personality and is a precondition for the enjoyment of other rights and freedoms. The Constitution guarantees this freedom by stipulating that it can be directly applied, without any concrete domestic legislation on the matter, and it can be directly protected by the Constitutional Court in accordance with Article 110 line 3 of the Constitution.

The Court also discussed the right to freedom of assembly under article 11 of the ECHR and noted that this article protects assemblies which can shock or insult individuals who oppose the ideas and attitudes that the assembly aims to promote. The Court stated that the only restriction to this right is if there is incitement to violence or a rejection of democratic principles, and so any measure which infringes the exercise of freedom of assembly when there is no incitement or threat to democratic principles serves to endanger democracy itself. In addition, the Court held that a lack of prior authorization cannot serve as a legitimate basis for dispersing a spontaneous gathering and so such dispersal would constitute a disproportionate limitation of the right.

The Court stressed that the tolerance of expressed individual opinions is an important element of the progress of democracy and this is why this right has a central place in the ECHR. The Court referred to article 1 of protocol 12 to the ECHR which states that “[t]he enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other states” and prohibits discrimination on those grounds. It also discussed article 14 of the ECHR which prohibits discrimination.

The Court referred to the ECtHR cases of Handyside v. UK App. No 5493/72 (1976), Castells v. Spain App. No. 1798/85 (1992) and Feldek v. Slovakia App. No. 29032/95 (2001) in holding that the police officers had discriminated against Markovski and Muratovski as members of the Levica political party. The Court stated that the police had known that the two men were members of that party because they wore party symbols and that the police actions were carried out on the basis of that political affiliation. Accordingly, the Court held that Markovski and Muratovski had experienced different and unequal treatment in comparison to other people present at the public event and that articles 14 and article 10 had therefore been infringed.

The Court then examined the domestic Law on Prevention of and Protection against Discrimination. It cited article 1, line 1 which states that “[t]his Law shall ensure prevention of, and protection against discrimination in the exercise of the rights guaranteed by the Constitution of the Republic of Macedonia, law and ratified international agreements” and article 3 which defines the grounds of prohibited discrimination as “sex, race, color, gender, belonging to a marginalized group, ethnic origin, language, nationality, social background, religion or religious beliefs, other types of beliefs, education, political affiliation, personal or social status, mental and physical impediment, age, family or marital status, property status, health condition or any other basis anticipated by a law or ratified international agreement”. Article 5 of this law defines discriminatory behavior and treatment as “any active or passive behavior of any person of the public authorities, as well as of legal entities and natural persons of the private and public sector in the public life, creating grounds for favoring or disfavoring a person in an unjustified manner, or exposing a person to an unjustified and degrading behavior compared to other persons in similar situation, based on any of the discriminatory grounds”.

By applying these international instruments and domestic legislation to the present case, the Court unanimously found a violation of the right to freedom of expression and freedom of thought. A majority of the bench further held that there had been an infringement of the right to freedom of expression and discrimination on the basis of political affiliation.