Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
Closed Expands Expression
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The European Court of Human Rights (ECtHR) found that the conviction of a columnist for a critical opinion article violated his freedom of expression. The case concerned an opinion article Mr Gelevski wrote where he criticized another journalist, Mr D.P.L. Mr Gelevski was criminally convicted for defamation. The Skopje Court of Appeal upheld his conviction and the Constitutional Court dismissed his constitutional appeal. The ECtHR held that the criminal conviction was disproportionate and not “necessary in a democratic society” considering Mr Gelevski’s role as a columnist and Mr D.P.L.’s public profile. Overall, it was important to avoid the “chilling effect” [para. 30] that criminal convictions would have on the political debate within the media, particularly on important matters. Accordingly, the Court found Mr Gelevski’s freedom of expression under Article 10 of the European Convention of Human Rights had been violated.
The applicant in this case was Mr Nikola Gelevski, a columnist. In March 2009, Mr Gelevski wrote an article titled “Megaphones from the Fuhrer’s alley” that was published in a daily newspaper titled Utrinski Vesnik. It commented on recent events namely that students had gathered to peacefully protest the Government’s announcement of a church being constructed on Skopje’s main square.
Within Mr Gelevski’s article, a journalist named Mr D.P.L. was characterised negatively. Mr D.P.L. was the editor-in-chief of the newspaper Večer and the news segment of the television channel Sitel. He published weekly opinion columns on current political events in his newspaper, including on the construction of the church.
In Mr Gelevski’s piece, he noted that Mr D.P.L. and other journalists “are not problematic in view of their clear political agenda: to transform the country into a totalitarian underdeveloped village”. He went on: “When the battering buses of VMRO [the political party in power at that time] arrive next time … the bear of violence will dance in front of the doors of the inciters, such as D.P.L. [and two other journalists]”. Moreover, he noted “the fascist nature of the government of Nikola Gruevski and his threatening phalanxes …” [para. 6].
Mr D.P.L. lodged a criminal complaint against the applicant accusing him of defamation and insult in his article. Both crimes were punishable under the North Macedonian Criminal Code applicable at the time.
In June 2010, the Skopje Court of First Instance found the applicant guilty on both accounts. It imposed a fine of 600 euros on him with thirty days’ imprisonment in the event of default and ordered him to pay the court fee and a further 150 euros to cover Mr D.P.L.’s trial costs. The court found that the applicant had intentionally put forward “untruths and unsubstantiated assertions” in his article that affected D.P.L.’s “reputation and dignity”, painting a “dishonest and incompetent picture” of D.P.L. [para. 8].
Mr Gelevski argued that he had merely discussed the political views and behaviour of journalists. He also claimed his aim had been to safeguard constitutional values, including the freedom of assembly of students.
Mr. Gevelski appealed arguing, inter alia, that his columns had contained his own opinions, which had been value judgments and not statements of fact. According to him, Mr D.P.L. feeling insulted by his column was not sufficient for a guilty finding.
In September 2011 the Skopje Court of Appeal ruled partly in favor of the applicant and upheld his conviction only in respect of defamation, not insult. It reduced the fine to 320 euros, with sixteen days’ imprisonment to be imposed for any default on payment. The court dismissed the applicant’s argument that the article had contained a value judgment, saying that a value judgment would be made “in abstracto” and not relate to any “specific event or happening” [para. 10]. However, Mr Gelevski’s article concerned a specific event and “contained a factual assertion that is subject to substantiation, proof and determination”.
In May 2012, the Constitutional Court dismissed a constitutional appeal by Mr Gelevski, in which he complained of a violation of his freedom of conscience, thought and public expression of thought.
On November 21, 2012, the applicant filed his application to the ECtHR complaining that his conviction, which included the imposition of a fine and a prison sentence in the event he defaulted on the payment, violated his freedom of expression protected under Article 10 of the Convention.
The main issue before the Court was whether the applicant’s conviction amounted to interference of his freedom of expression that was “necessary in a democratic society”.
The applicant submitted that the aim of the article had been to stir up debate on public assembly and freedom of expression. The applicant accepted that he had used provocative language, but this was not a sufficient reason for his conviction. He added that he never called for violence in the article, he was simply stating that violence could lead to more violence.
The Government submitted that the interference had been lawful and had served a legitimate aim, namely the protection of reputation of others, and had been necessary in a democratic society. The applicant’s article had been written in bad faith and had not been factually supported. Lastly, the article had contained statements that could be construed as inciting violence.
Regarding the first two prongs of the three-part test, the Court noted that there was no dispute over whether there had been an interference with the applicant’s freedom of expression and whether it was prescribed by law. Secondly, the Court was satisfied that the interference in question was aimed at protecting the reputation of others. It, therefore, sought to establish whether the interference was “necessary in a democratic society”.
Referencing the ECtHR case Falzon v. Malta ECtHR  45791/13, Mr Gelevski’s role as columnist meant that the context of the Court’s assessment centered on the “essential role of a free press in ensuring the proper functioning of a democratic society” [para. 22]. The Court also referenced Von Hannover v. Germany (no. 2) ECtHR  40660/08 and 60641/08, Alpha Doryforiki Tileorasi Anonymi Etairia v. Greece ECtHR  72562/10 and reiterated that the extent to which an individual is well-known influences the protection that is afforded to his or her private life. In the present case, Mr D.P.L. was publicly well-known and knowingly exposed himself to journalistic scrutiny. Therefore, he should have shown a greater degree of tolerance. This was relevant regarding whether Mr D.P.L. complied with the “duties and responsibilities” of a journalist [para. 24]. The Court noted that these considerations play a particularly important role nowadays, given the media’s influence. Thus, monitoring adherence to journalistic ethics is important.
Moreover, as a journalist, Mr Gelevski was permitted to use “a degree of exaggeration or provocation” [para. 29] in his article and his statements did not exceed the acceptable limits of criticism, especially considering the debate over the Skopje main square.
Regarding the publication’s subject matter, the Court observed that it expressed the applicant’s disagreement with the Government’s policies and that it contributed to an ongoing political debate, which was a matter of public interest. The Court reemphasized “that the limits of critical and investigative journalism are also a matter of legitimate public interest” [para. 25].
The Court also noted that no statements of fact directly related to Mr D.P.L. and the prior courts only centered their attention on the article’s general impact on Mr D.P.L. Based on this, there was a distinction between the applicant’s disagreement with the Government’s policies that he labelled “fascist” and his opinion of Mr D.P.L. as a supporter of those policies. The “fascist” label was a value judgment that has no relevance because Mr D.P.L. was not a member of the Government. The defamatory character of this statement was therefore ascribed to the allegation that Mr D.P.L. had been a supporter of those policies.
As to the question of hate speech, the Court observed that the domestic courts did not find any elements of hate speech or incitement to violence. The Court concluded that the interference was disproportionate to the aim pursued and was not “necessary in a democratic society” within the meaning of Article 10(2), breaching the European Convention of Human Rights. The Court awarded the applicant 320 euros in pecuniary damage and 3,180 euros for non-pecuniary damage.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands freedom of expression because it outlines that the State interfered with the applicant’s freedom of speech. Specifically, the Court stated that those engaged in public debate “are allowed to have recourse to a degree of exaggeration or provocation” and convictions could have a chilling effect on political debate. The analysis and outcome run counter to the defamation laws in place in North Macedonia, and contributes to efforts being undertaken to reform the State’s judiciary.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
General principles regarding freedom of expression
Criminal conviction could have a chilling effect on the political debate between members of the media on matters of importance.
Interference must be examined in the context of the essential role of a free press in ensuring the proper functioning of a democratic society.
The extent to which an individual has a public profile or is well-known influences the protection that may be afforded to his or her private life.
The limits of critical and investigative journalism are also a matter of legitimate public interest.
Value judgment which is not fully susceptible to proof.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.