Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Expands Expression
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The Constitutional Court of North Macedonia found that fining two lawyers for protesting unprofessional working conditions during a trial violated their freedom of expression. During a large terrorism related trial in 2018, the court moved the proceedings to a room where there was inadequate seating and desks for the numerous lawyers to work. After the Judicial Committee rejected a formal request for appropriate seating, all the defense attorneys stood in silent protest and were subsequently issued a 1000 Euro fine each for disturbing the court proceedings. The Constitutional Court, highlighted the important role defense attorneys play in the rule of law and applied the three-part test of the European Court of Human Rights to demonstrate that the imposition of the fines by the Basic Criminal Court Skopje and the Appeal Court Skopje, were not necessary in a democratic society. The lower courts ignored the fact that the court had itself created a detrimental situation and that the lawyers acted only to protect their legal right and responsibility to provide defense as required under the Law on Criminal Procedure and Law of Advocacy. The Constitutional Court concluded there had been a violation of the lawyers’ constitutional right to freedom of opinion and public expression of opinion and that the State had violated Article 10 of the European Convention of Human Rights.
The Plaintiffs, Ms. Zefic and Mr. Toshkovski, are lawyers who brought an action against the State of Macedonia in relation to fines they received for protesting working conditions during court proceedings.
In November 2018, as part of criminal procedure KOK-40/18, 33 persons were on trial before the Basic criminal court in Skopje on charges under Article 313 of the Criminal Code “Terrorist endangering of the constitutional order and security of Republic of Macedonia.” The case was code named “27th April.” Due to the large number of accused and their lawyers, the hearings were held in Court Room No. 1, a large room in the new court building.
On 16 November 2018 a protected witness using the pseudonym C1 was scheduled for questioning by the prosecution and defense. The hearing began in Court Room No. 1, but after a short break, the judicial police informed the lawyers that the hearing would be moved to a court room in the old court building, even though that court room could not accommodate all the accused and their lawyers.
From among the lawyers present, only two could sit at the bench for lawyers in order to take notes, while all the other lawyers, including Ms. Zefic and Mr. Toshkovski, were seated in the area for the public, where there were no tables, and it was conducive for work.
Several lawyers presented arguments in front of the judicial committee complaining that they did not have appropriate working conditions, stressing the complexity and seriousness of the case. All the lawyers joined a formal request for desks so that they could properly follow the testimony of the protected witness C1 and prepare cross-questioning.
The judicial committee rejected the request. In response, all the lawyers, including the two who were seated at the available desks, stood up silently, without interrupting the order in the courtroom, in order to express dissatisfaction and send a message to the judicial committee about the improper working conditions.
While the defense lawyers were standing in protest, without any intention to prolong the process or insult the court, the judicial committee issued a fine for each of the lawyers in the amount of 1000 Euros as part of decision КОК-40/18. On the basis of appeals, the Appeal Court decreased the amount to 500 Euros.
Lawyers Pavlina Zefic and Panche Toshkovski brought a claim under Article 110 paragraph 3 of the Constitution for the protection of their freedom of opinion and public expression of their opinion, guaranteed under Article 16 of the Constitution and Article 10 of the European Convention on Human Rights (“ECHR”) alleging that their rights were violated by the decisions of the Basic criminal court Skopje 09 KOK-40/18 of 16 November 2018, and KOKZ-47/18 of 17 December 2018 of the Appeal Court Skopje. They supported their argumentation with the reasoning of the European Court on Human Rights in the cases Morice v France and Bono v. France, where the court stressed the importance of lawyers in the judicial system.
The main issue before the Constitutional Court was whether the imposition of fines for protesting inappropriate working conditions during a trial was a violation of the lawyers’ freedom of expression protected under the Constitution of North Macedonia and under Article 10 of the ECHR.
The Constitutional Court first accepted the factual situation as presented by the claimants because it was in line with the material evidence that the Court had analyzed in detail.
The Constitutional Court then observed that the President of the committee had followed the proper procedure by asking the lawyers to sit and warning them that if they continued to stand, they would be punished with a fine for disturbing the order in the court room. The Judicial Committee therefore had acted lawfully when it fined the lawyers for their behaviour under Article 361 paragraph 1 of the Law on Criminal Procedure (on punishment for violations of the order and discipline).
Before applying the tripartite test of Article 10 paragraph 2 of the ECHR, the Court invoked the relevant norms from the national law concerning the protection of the freedom of expression of lawyers (Article 16 and 53 of the Constitution and Article 21, 30-32 of the Law on Advocacy) and international law (Article 19 of the International Covenant on Civil and Political Rights and Article 10 of ECHR, recommendation 2000 (21) of the Committee of Ministers).
Moving on to the three-part test, the Constitutional Court found that the restriction was prescribed by law under Article 361 paragraph 1 of the Law on Criminal Procedure, and had the legitimate aim of maintaining order in the court. However, the restriction failed the third prong as it was not necessary in a democratic society on the ground that the fine was a disproportionate measure to restrict freedom of expression, contrary to the Constitution and ECHR. The Court stressed that the claimants had legitimate expectations not only to have seats but also desks for writing and taking notes at the main hearing where a protected witness was about to give a testimony. The Court stressed that the Basic court Skopje created a “functional problem” by not providing enough workspace or resources. Consequently, the lawyers were unable to properly perform their critical role of providing defense for their clients.
Further, the imposition of fines constituted a restriction on the lawyers’ freedom of expression. The previous rulings ignored the fact that the court had created an unprofessional working situation and that the lawyers standing protest aimed simply to protect their legal right and responsibility to provide defense as required under the Law on Criminal Procedure and law of Advocacy. Therefore, the Constitutional Court quashed the first and second instance court decisions.
The Constitutional Court concluded there had been a violation of the lawyers’ freedom of opinion and public expression of opinion and that the State had violated Article 10 of ECHR.
In a Dissenting opinion two judges explained that the claimants’ requests should be rejected in the present case on the ground that their right of thought and freedom of expression had not been violated by the acts of the state. According to the judges it was indisputable that these rights can be also enjoyed during the public hearing, but the hearing was interrupted solely due to the acts of the claimants as they unlawfully interrupted the order in the courtroom. Therefore, in this case a well-known rule should be applied. Namely, nobody has a right to invoke protection of a certain right, guaranteed under the Constitution or law, if he/she basis his/her claims on his/her negligence or unlawful acts.
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