Content Regulation / Censorship, Defamation / Reputation, Political Expression
Nélio Raul Brandão v. Juiz de Direito da 2ª Vara Cível da Comarca de Campo Grande
Closed Expands Expression
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The European Court of Human Rights ruled that two convictions for defamation against a politician in the Former Yugoslav Republic of Macedonia were an unjustifiable limitation of the right to freedom of expression. A Macedonian opposition politician had been charged with defamation after he made statements critical of the Head of the Security and Counter Intelligence Agency while at official political party press conferences. He approached the Court after the domestic courts upheld his convictions, holding that the convictions were an appropriate balancing of the rights to freedom of expression and to the protection of reputation. The Court emphasized that political speech enjoys particularly strong protection under the European Convention on Human Rights, and that although politicians do have a right to their reputations being protected, a “politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance” (para. 71).
Jani Makraduli, a Macedonian politician and vice-president of the SDSM opposition party, was charged with criminal defamation on two separate occasions after making allegations in appearances on television about Mr. M, the head of the Security and Counter Intelligence Agency (and a member of a different political party).
In the first case, on December 14, 2007, Makraduli held a press conference that was broadcast by the main news programme of the Macedonia television channels. He stated that Mr. M had abused his powers in order to influence the Macedonian Stock Exchange. On February 1, 2008, Mr. M. brought criminal libel proceedings against Makraduli under article 172 of the Criminal Code which criminalized the dissemination of untrue information that could affect the reputation and dignity of a third party. On November 3, 2009, the Court of first instance found the applicant guilty of defamation and fined him €1500 (and seventy-five days’ imprisonment on default). On May 11, 2010 the Skopje Court of Appeal upheld the decision. Makraduli then lodged a constitutional appeal with the Constitutional Court, arguing that the conviction infringed his right to freedom of expression. He submitted that the statements had been made at a press conference on behalf of his political party and that the question had been addressed to the public and was based on information submitted to his political party about suspected irregularities in the work of a State official. He maintained that the aim of making the statements was to stimulate public debate on this topic of general interest. On February 23, 2011, the Constitutional Court dismissed Makraduli’s appeal, holding that freedom of expression was not absolute and could be restricted in accordance with the law. The Court stated that Makraduli had not sought to prove the truth of his statements during the legal proceedings and that the statements affect “the reputation and dignity of the citizen who holds that public office at the time (Mr. M)” and that they were therefore an abuse of the right to freedom of expression (para. 18).
The second case related to a press conference held by Makraduli at SDSM’s offices on September 9, 2007 regarding the public sale of State-owned building land in the central area of Skopje. The conference was broadcast on local television news. Makraduli discussed the findings of research undertaken by his political party which showed how a deal had been reached so that the land would be given to people who had close family or party ties with the Prime Minister. On September 19, 2007, Mr. M. brought private criminal charges for alleged defamatory statements made by Makraduli at that press conference. On February 23, 2011, the Court of first instance convicted Makraduli of defamation, fining him €1,000 and one hundred days’ imprisonment in default. On May 18, 2011, the Skopje Court of Appeal upheld the decision of the lower court. Makraduli again lodged a constitutional appeal with the Constitutional Court. He argued that as a representative of a political party, his work consists also in highlighting information of general interest. The Constitutional Court dismissed Makraduli’s appeal on September 12, 2012. The Court found that the conviction of defamation was a “necessary measure for the protection of the reputation, dignity and authority of another person” (para. 30). The Court noted that although Makraduli would have been enjoyed immunity as a Member of Parliament had the statements been made in Parliament, his status as a politician was not sufficient to avoid defamation charges (para. 30). The Court emphasized that the lower courts had found that Makraduli’s allegations were not true.
Makraduli then approached the European Court of Human Rights arguing that his convictions infringed his right to freedom of expression under article 10 of the European Convention on Human Rights. He lodged two separate applications in respect of the two convictions which the Court combined and heard together.
The central issue before the European Court of Human Rights was whether the interference with Makraduli’s right to freedom of expression was justifiable, and specifically whether it was “necessary in a democratic society” (para. 59).
Makraduli argued that the domestic courts had “failed to strike a fair balance between the right to freedom of expression and the protection of the reputation of others” (para. 51). He submitted that the courts had incorrectly characterized his statements as factual ones, capable of veracity, whereas he believed they were “based on allegations that had been brought to his attention and had fallen within the limits of acceptable criticism in the context of the political debate” (para. 51). He argued that “[i]f the opposition could only hold press conferences if there was irrefutable evidence about irregularities by State officials, it would be deprived of its crucial role of informing and alerting the public about allegations of irregular conduct by officials” (para. 51).
The government accepted that Makraduli’s convictions had constituted an interference with his right to freedom of expression but argued that the interference was justifiable (para. 54). The government submitted that the convictions were authorised by law (article 172) and pursued the legitimate aims of “the protection of Mr S.M.’s reputation, the principle of the presumption of innocence and the public’s right to obtain truthful information” (para. 54). The government maintained that the domestic courts had struck a fair balance between the rights to freedom of expression and to protection of reputation (para. 57).
The Court acknowledged that the interference with the right to freedom of expression was authorised by law (article 172) and that it pursued the legitimate aim of protecting Mr. M’s reputation (para. 58). Accordingly, it noted that the central issue in this case was whether the interference was “necessary in a democratic society” and whether the domestic courts did strike a fair balance between Makraduli’s right to freedom of expression and Mr. M’s interest in the protection of his reputation (para. 59). With reference to its decisions in Medžlis Islamske Zajednice Brčko v. Bosnia and Herzegovina, App. No 17224/11 (2017) and Cumpǎnǎ v. Romania, App No. 33348/96, (2004), the Court explained that “necessary” implies the existence of a “pressing social need” (para. 60).
The Court discussed the nature of Makraduli’s statements as political, and emphasized that “there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest” and that “a high level of protection of freedom of expression …will normally be accorded where the remarks concern a matter of public interest” (para. 61). It added that it had always made a distinction between factual statements and those which expressed value judgments and that the category into which a statement falls is determined based on the circumstances of the case. However, the Court stressed, with reference to its decision in Lombardo v. Malta, App. No. 7333/06 (2007), that the “distinction is of less significance in cases where the impugned statement has been made in the course of a lively political debate and where elected officials should enjoy a wide freedom to criticize Government actions, even if the statements made may lack a clear basis in fact” (para. 62).
The Court discussed the effect of criminal defamation and stated that the effect of the sanctions must be considered when determining the proportionality of the interference with the right and that “the relatively moderate nature of the fines does not suffice to negate the risk of a chilling effect on the exercise of freedom of expression” (para. 63). It referred to its decision in Morice v. France, App. No. 29369/10 (2015) and cautioned that “the dominant position occupied by [state institutions] requires the authorities to display restraint in resorting to criminal proceedings” (para. 63).
To determine whether there was a “pressing social need” and whether Makraduli’s convictions were “necessary in a democratic society” the Court examined four factors: the positions of Makraduli and Mr. M in the defamation proceedings; the subject matter of Makraduli’s statements; their qualification by the domestic courts; and the domestic courts’ approach to justifying the interference in the right (para. 64).
Regarding the position of Makraduli, the Court observed that he made the statements in question as vice-president of an opposition political party and as a Member of Parliament, and the statements were made at press conferences held in the headquarters of his political party. Accordingly, the Court concluded that the statements were made “in a political context” (para. 65). The Court emphasized that its “constant approach” has been to “require very strong reasons for justifying restrictions on political speech” (para. 66), and that, in line with its judgment in Karácsony v. Hungary App. Nos. 42461/13 and 44357/13 (2016), this is particularly so in respect of members of parliament as they represent the electorate (para. 66). In addition, the Court acknowledged that Mr. M was both a public official (as head of the intelligence agency) and a politician, and so the consideration in this case was whether Makraduli’s statements exceeded the “limits of acceptable criticism of someone who combines these two positions” (para. 68). The Court referred to its judgments in Dmitriyevskiy v. Russia, App. No. 42168/06 (2017) and Sürek v. Turkey (no. 1), App. No. 26682/95 (1999) in noting that the Court’s established case law confirms that “the limits of acceptable criticism are wider for State officials than for private individuals” (para. 69). It added that, given Mr. M’s position as a “high-ranking State official”, “[t]he limits of acceptable criticism must in such cases accordingly be wider than in the case of an ordinary civil servant” (para. 70).
The Court accepted that Mr. M did have a right to his reputation being protected but noted that a “politician inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must display a greater degree of tolerance” (para. 71). Accordingly, the Court emphasized that the protection of his reputation must be weighed against “the interests of political issues” (para. 71).
The Court examined the subject matter of the statements in question and agreed with the domestic courts that the statements concerned issues of public interest.
In respect of the qualification of Makraduli’s statements, the Court assessed the domestic courts’ characterization of the statements as untrue factual ones. The Court noted that it is not inconsistent with article 10 to require a defendant in defamation proceedings to demonstrate (to a reasonable standard) the truth of a statement, but made reference to its decisions in Kurski v. Poland, App. No. 26115/10 (2016) and Braun v. Poland, App. No. 30162/10 (2014) and noted that when an individual is involved in an important public debate “the obligation to prove the factual statements may deprive the applicant of the protection afforded by Article 10” (para. 75). The Court noted that as Makraduli’s statements in the first case amounted to the repetition of accusations that were already in the public domain he “merely put the matters that were of general interest for public debate which … is the role of politicians and members of parliament, as representatives of the electorate” (para. 78). The Court held that requiring Makraduli to prove the truth of the statement was an “unreasonable, if not impossible, task” (para. 78). In respect of the second case, the Court held that Makraduli’s statements “remained within the limits of admissible exaggeration or provocation” (para. 79) and that they were also “fair comment on issues of legitimate public interest” (para. 81). The Court also noted that Makraduli’s statements were made orally, and that, consequentially, he “had no possibility of reformulating, refining or retracting them before they were made public” (para. 82).
The Court held that Makraduli’s criminal conviction (notwithstanding that he had not paid the fine and that it was now unenforceable) “could be seen to have a chilling effect on the political debate on matters of importance, which is essential for the proper functioning of democracy” (para. 83), and noted that the Former Yugoslav Republic of Macedonia has now decriminalized defamation.
Accordingly, the Court held that Makraduli’s convictions were “disproportionate to the aim pursued and not “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention” (para. 85).
Judge Wojtyczek issued a concurring judgment which disagreed with the majority’s reasoning on the distinction between statements of fact and value judgments and on the privileging of politicians’ speech over that of regular citizens. He explained that it is difficult to make a clear distinction between the two types of statements because “very often utterances simultaneously describe facts and express value judgments” and called for the “traditional dichotomy of statements of fact and value judgments” to be revisited (para. 2). He also disagreed with the majority judgment’s privileging of the protection given to elected officials’ speech. He remarked that “[n]ot only elected officials but everyone should enjoy a wide freedom to criticise government actions and not only in the course of a lively political debate but in the course of any public debate” (para. 5). Wojtyczek’s concern was that the majority judgment created the impression “that the political elites have a special role to play in society and therefore may enjoy broader rights”, whereas he argued that the right to raise issues of general interest for public debate is the “essence of citizenship” (para. 9) and so protection for political speech should be accorded to everyone – irrespective of their position.
Wojtyczek also disagreed with the majority’s finding that Makraduli had merely repeated assertions against Mr. M that were already in the public domain, and said that “reference to rumours is a frequent technique used in order to minimalise legal risks when disseminating false information” (para. 7).
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