CASE OF POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

CASE OF POPOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

(Application no. 12316/07)

JUDGMENT

STRASBOURG

31 October 2013

FINAL

24/03/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Popovski v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 8 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 12316/07) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Mr Risto Popovski (“the applicant”), on 19 February 2007.

2. The applicant was represented by Mr V. Georgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3. The applicant alleged, in particular, that the length of the impugned proceedings had been excessive and that the respondent State, owing to the ineffectiveness of the criminal proceedings for defamation, had failed to protect the right to respect for his private and family life.

4. On 12 December 2011 these complaints were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1945 and lives in Bitola.

6. On 2 December 2002 an article was published in the daily newspaper Utrinski Vesnik entitled “The uncle was stealing, Jovan was standing guard” (Вујкото крадел, Јован чувал стража). A reference to the article appeared on the front page of the newspaper. The text of the article read, in so far as relevant, as follows:

“Risto Popovski, uncle of dismissed bishop J. and owner of the company Voskresenie from Bitola, together with seven boys, entered the courtyard of St. Spas church in Gevgelija and continued towards the church garage. The uncle started the engine of the tractor [inside] and drove it out of the courtyard, while his helpers warned the church housekeeper, who was upset, to step aside. During the violent disturbance, the dismissed bishop Jovan drove around waiting for the outcome...

... On the basis of an anonymous tip-off concerning the break-in, police stopped the tractor from leaving Gevgelija. The owner of Voskresenie, [the applicant], produced documents [showing] that Voskresenie owned the tractor! Only dismissed bishop Jovan knew how the tractor, which was a donation by Japan to Gevgelija’s church co-operative, happened to belong to a private company from Bitola ... (R.P.)”

7. The applicant submitted a letter to the newspaper the next day, in which he requested that it publish a retraction given the false allegations that he had stolen the tractor. In this connection he submitted a copy of a certificate issued by the Ministry of the Interior confirming that the tractor had been returned to him. He alleged that in the absence of a retraction, he would be perceived as a criminal in Bitola, a small town where people knew each other. The newspaper did not publish anything in this regard.

8. On 31 December 2002 and after several verbal requests, the applicant submitted a letter to the newspaper seeking information about the identity of the journalist (R.P.), whose initials appeared at the end of the article.

9. On 31 January (as alleged by the applicant) or 4 February 2003 (according to the Government) the applicant brought private criminal charges for defamation under sections 16(1) and (2) and 417(1) of the Criminal Proceedings Act, which was an offence punishable under section 172(2) of the Criminal Code (see paragraphs 27, 31 and 38 below). The complaint was made against B.T., editor-in-chief of the newspaper and R.P., the journalist responsible. The applicant claimed that the article had disgraced him and his family and said that he was seeking compensation for non-pecuniary loss, the amount of which was to be specified, as stated in the complaint, at the hearing.

10. On 31 March and 16 April 2003 respectively the Skopje Court of First Instance (“the trial court”) requested that the applicant complete the complaint by providing information about the identity of R.P., describing the actions imputable to the accused and submitting an original of the article. In reply, the applicant specified his complaint and informed the trial court that all his attempts to get the newspaper to reveal the identity of the journalist responsible had been to no avail.

11. During the proceedings the applicant was represented by a lawyer practicing in Bitola. The applicant alleged (without providing any evidence in support) that the first hearing had been scheduled for 23 September 2003; however, the parties agreed that between 10 October 2003 and 16 January 2007, the trial court had fixed twenty-three hearings, of which twenty were adjourned owing to the absence of either B.T., his representative or the journalist responsible. The trial court made several unsuccessful attempts to secure B.T.’s attendance with the assistance of the police. The applicant or his representative attended all the hearings scheduled.

12. At a hearing on 6 September 2005, the trial court requested that the newspaper reveal the identity of R.P., the presumed author of the article. In the absence of any reply from the newspaper, the trial court made the same request on 18 October and 24 November 2005, as well as on 24 January 2006, but they were never answered.

13. At a hearing on 7 March 2006, B.T. admitted that he had allowed the article to be published and requested additional time to identify the journalist who had written it. In a statement given on 25 April 2006, the applicant avowed that the article in question had contained defamatory allegations portraying him as a thief, which had had a significant negative impact on his personal and family life. In this connection he argued that his wife had closed her private medical practice since her office had been covered with writings describing them as “thieves” (арамии). He also alleged that his children had encountered difficulties in school due to the defamatory article.

14. At a hearing on 29 June 2006, B.T. stated that according to the newspaper’s records, the author of the text had been a certain K.J, who had confirmed as much in a telephone conversation with him. The court ordered that K.J. be summoned to the next hearing. His home address was to be obtained with the assistance of the police.

15. K.J. did not attend any of the four hearings scheduled between 19 September 2006 and 16 January 2007, despite the fact that the court had summoned him to do so. At the January hearing, the trial court stayed (запира) the proceedings because the prosecution had become time-barred. It also ordered each party to bear its own costs and expenses incurred in the proceedings. On 1 March 2007 the Skopje Court of Appeal upheld the judgment, which was served on the applicant on 24 March 2007.

16. During the proceedings, the applicant addressed the trial judge and the president of the trial court on two occasions, complaining about the way in which the trial had been conducted and alerting them to the possibility that the prosecution might become time-barred.

II. RELEVANT INTERNATIONAL MATERIALS AND DOMESTIC LAW AND PRACTICE

A. Relevant international materials

1. Resolution 1577 (2007) of the Parliamentary Assembly of the Council of Europe, “Towards decriminalisation of defamation”

17. The relevant parts of the above Resolution read as follows:

“6. Anti-defamation laws pursue the legitimate aim of protecting the reputation and rights of others. The Assembly nonetheless urges member states to apply these laws with the utmost restraint since they can seriously infringe freedom of expression ...

8. The Assembly deplores the fact that in a number of member states prosecution for defamation is misused in what could be seen as attempts by the authorities to silence media criticism ...

13. The Assembly consequently takes the view that prison sentences for defamation should be abolished without further delay. In particular it exhorts states whose laws still provide for prison sentences – although prison sentences are not actually imposed – to abolish them without delay so as not to give any excuse, however unjustified, to those countries which continue to impose them, thus provoking a corrosion of fundamental freedoms ...

17. The Assembly accordingly calls on the member states to:

17.1. abolish prison sentences for defamation without delay;

17.2. guarantee that there is no misuse of criminal prosecutions for defamation and safeguard the independence of prosecutors in these cases;

17.3. define the concept of defamation more precisely in their legislation so as to avoid an arbitrary application of the law and to ensure that civil law provides effective protection of the dignity of persons affected by defamation ...”

B. Relevant domestic law

1. Obligations Act 2001

18. Section 141 of the Obligations Act provides for the right to claim civil compensation.

19. Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently.

20. Section 187 provides for the right to claim compensation in cases regarding damage to reputation or the dissemination of false allegations.

21. Under sections 188 and 189, the court can order the publication of a judgment in which a human rights violation has been found, a retraction or any other form of redress. The court can also award just satisfaction irrespective of whether an award for pecuniary damage has been made.

22. Under section 365, a compensation claim becomes time-barred three years after the victim becomes aware of the damage and the person responsible. The absolute limitation period for compensation is five years after the occurrence of the damage.

23. The running of the limitation period is suspended if a claimant brings an action before a court or competent authority with a view to determining or securing his or her claim (section 377).

24. Under section 379, if a court rejects an action for lack of competence or on another ground unrelated to the merits of the claim, and if the claimant resubmits that claim within three months of the decision becoming final, the limitation period is considered to have been suspended by the first action. This applies if a court or competent authority advised the person concerned to pursue his or her claim by means of a separate civil action.

25. After the limitation period has been suspended, it starts running again and the time elapsed before the suspension is deemed to fall within the statutory limitation period. If the limitation period was suspended by a claim brought in the course of other proceedings, it starts running after settlement of the dispute (section 381(1) and (3)).

2. Criminal Code 1996

26. Under section 26(1)(1) of the Criminal Code, an editor-in-chief of a newspaper or other periodical publication could be held criminally liable for offences committed through that or other types of media if the identity of the author remained unknown until the end of the trial.

27. Under section 172(1) and (2) of the Criminal Code, any person who disseminated false defamatory allegations about another person could be subjected to a fine or six months’ imprisonment. Acts of defamation committed in public or through the use of media were punishable by a fine and by up to one year’s imprisonment.

28. Under section 184(1), defamation as stipulated in section 172 was subject to private prosecution.

29. Since November 2012, sections 172 and 184 of the Criminal Code (see paragraphs 27 and 28 above) have no longer been in force (Official Gazette no. 142/2012).

3. Criminal Proceedings Act 1997

30. Under section 13 of the Criminal Proceedings Act 1997, in force at the material time, proceedings were supervised by a judge, who was responsible for conducting them without delay.

31. Under section 16(1) and (2) of the Act, criminal proceedings were instituted at the request of an authorised prosecutor. In respect of criminal offences subject to public prosecution, the authorised prosecutor was the public prosecutor whereas in respect of criminal offences to be prosecuted privately, the qualified prosecutor was a private prosecutor.

32. Section 96 provided that a civil-party claim (имотноправно барање) relating to a criminal offence was to be decided in criminal proceedings, unless it significantly delayed them. The civil-party claim could concern monetary compensation, the restitution of property or the annulment of a legal act.

33. Under section 98(2) and (3), a civil-party claim could be brought in the course of the criminal proceedings before they were concluded at first instance. Such a claim had to be specified and supported with evidence.

34. Section 99(1) provided that the victim could withdraw (откажe) the civil-party claim until the end of the trial and pursue it by means of a separate civil action. Such a claim could not be repeated in the course of the criminal proceedings, unless otherwise provided by law.

35. Under section 100, the court could question the accused and examine the circumstances relevant for the civil-party claim, and had to collect evidence and consider everything that was relevant to decide it. If a decision on the civil-party claim would significantly delay the proceedings, the court would restrict itself to gathering evidence which would be impossible or significantly difficult to gather at a later stage.

36. Section 101 provided that the court was responsible for deciding a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation. In the latter case, the court could advise him or her to seek the remainder by way of civil proceedings. The same applied if evidence taken in the criminal proceedings was insufficient for the court to award any damages (section 101(2)).

37. In case of an acquittal or dismissal of the prosecution, if the proceedings were discontinued or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)).

38. Under section 417(1), criminal proceedings had to be instituted on the basis of either a charge brought by the public prosecutor or a private criminal complaint.

4. Criminal Proceedings Act 2010 (Official Gazette no.150/2010 of 17 November 2010)

39. Sections 110 to 114 of the Criminal Proceedings Act 2010, which enter into force on 1 December 2013, provide for the same rules on civil-party claims as those specified in the 1997 Criminal Proceedings Act (see paragraphs 32-37 above).

5. Civil Proceedings Act 2005

40. Under section 11(3) of the Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal liability.

41. Section 200 lists grounds under which civil proceedings are stayed by operation of the law. Under section 201(2), the civil court may stay proceedings if the decision depended on whether n offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty.

6. Law on civil responsibility for insult and defamation (Official Gazette no. 143/2012)

42. The Law concerns civil liability for violation of the honour and reputation of physical and legal persons through insult or defamation. The law provides for freedom of expression and states that any restrictions thereon shall be in conformity with the European Convention on Human Rights and the Court’s case-law. Under the Law, the potential victim can seek publication of a retraction, a public apology or rectification. It further regulates the procedure regarding claims for compensation for pecuniary and non-pecuniary loss sustained as a result of the insult or defamation, as well injunctions the court can order if parties so request.

C. Relevant domestic practice

43. The Government submitted a copy of a final judgment of 21 December 2010, in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10).

44. They further provided a copy of a judgment in which the Supreme Court dismissed a legality review request (барање за заштита на законитоста) lodged against final judgments rendered in civil proceedings. It concerned a dismissal by the lower courts of an action for damages brought eight years after an alleged crime had been committed and after the criminal courts had acquitted the alleged offender. The Supreme Court found that the statutory limitation period for compensation claims relating to an alleged crime started to run from the moment the victim had lodged a civil-party claim in the criminal proceedings. Since the victim had not made such a claim, the fact that he had instituted the criminal proceedings had not suspended the running of the statutory limitation period concerning the compensation claim (Гзз.бр.35/2007 of 9 and 18 October 2007).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION TO STRIKE THE CASE OUT OF THE COURT’S LIST OF CASES

45. Notice of the application was given to the Government on 12 December 2011. The applicant was required to provide a letter of authority for his representation in the proceedings before the Court by 16 January 2012, as provided for under Rule 36 §§ 2 and 4 (a) of the Rules of Court, which, in so far as relevant, read as follows:

“... Following notification of the application to the respondent Contracting Party under Rule 54 § 2 (b), the applicant should be represented in accordance with paragraph 4 of this Rule, unless the President of the Chamber decides otherwise.

... 4. (a) The representative acting on behalf of the applicant pursuant to paragraphs 2 and 3 of this Rule shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber.”

46. On 20 April 2012 the President of the Section forwarded the Government’s observations on the admissibility and merits of the case to the applicant, and invited him to appoint a lawyer and submit a letter of authority for his representation before the Court by 18 May 2012.

47. With a letter of 30 May 2012 the applicant submitted his observations in reply to those of the Government, together with his claims for just satisfaction. He also informed the Court that he had not received its letter until 28 May 2012 and asked for a copy of the letter of authority he needed in order to appoint Mr V. Georgiev (see paragraph 2 above) to represent him in the proceedings before the Court. In reply, the Court invited him to provide the duly signed authority form by 9 July 2012.

48. On 28 June 2012 the applicant provided the requisite letter of authority, which was forwarded to the Government for information.

A. The parties’ submissions

49. The Government submitted that the applicant had neither complied with the requirement of proper legal representation nor sought leave to represent himself in the proceedings before the Court. Accordingly, they invited the Court to strike the case out of its list of cases. In this connection, they referred to the following cases: Grimaylo v. Ukraine (dec.), no. 69364/01, 7 February 2006; Ivanchenko v. Ukraine (dec.), no. 60726/00, 7 February 2006; Akulov v. Russia (dec.), no. 74688/01, 8 March 2007.

50. The applicant did not comment in this regard.

B. The Court’s assessment

51. The Court observes that the present case should be distinguished from the cases the Government referred to in their submissions. Unlike those cases in which the applicants had not appointed a lawyer, despite a separate decision of the President for mandatory legal representation, the applicant in the present case appointed Mr V. Georgiev, a lawyer practicing in Bitola, as required under Rule 36 § 4 (a) of the Rules of Court. Consequently, the Court finds no grounds to discontinue examination of the application under Article 37 § 1 (c) of the Convention. The Government’s objection must accordingly be rejected.

II. ALLEGED VIOLATION OF THE “REASONABLE-TIME” REQUIREMENT UNDER ARTICLE 6 OF THE CONVENTION

52. The applicant complained that the length of the defamation proceedings had been excessive, contrary to Article 6 of the Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

1. The parties’ submissions

53. The Government submitted that this complaint was incompatible ratione materiae with the provisions of the Convention, since the criminal proceedings had not been determinative for the applicant’s “civil rights and obligations”. In this connection, they relied on the case of Perez v. France ([GC], no. 47287/99, §§ 67 and 68, ECHR 2004‑I) and stated that the proceedings in question had been instituted by the applicant as a private prosecutor; he had not specified his compensation claim as required under section 98(3) of the Criminal Proceedings Act (see paragraph 33 above); and he could have instituted separate civil proceedings for damages, the outcome of which would not have been dependent on the outcome of the criminal proceedings (see paragraph 40 above).

54. The Government further submitted (in the context of exhaustion of domestic remedies regarding the applicant’s complaint under Article 8, see paragraphs 72-75 below) that the criminal courts were required to decide a civil-party claim only if it had been specified. However, according to domestic practice, the courts had advised the victims to pursue their compensation claim by means of a separate civil action for damages even if the defendant was found guilty. If the compensation claim was not specified (as in the applicant’s case), the courts were not required to advise the victims to pursue their compensation claim by means of a separate civil action for damages, but that option had remained at their discretion. Domestic practice suggested however that the courts made such instructions in any case. They further provided statistical information, according to which the courts issued criminal sanctions in 193 of the 745 defamation criminal cases brought between 2009 and 2011, and awarded compensation in only three. Lastly, they averred that it remained open to the applicant to claim compensation in separate civil proceedings after the criminal proceedings had been stayed, since the introduction of the compensation claim in the criminal proceedings had suspended the running of the statutory limitation period (see paragraphs 23-25 above).

55. The applicant contested the Government’s arguments stating that he had not specified the compensation claim since “the judge had not permitted” him to do so.

2. The Court’s assessment

56. The Court notes that in the case of Boris Stojanovski v. the former Yugoslav Republic of Macedonia (no. 41916/04, § § 36-40, 6 May 2010) it rejected an identical objection raised by the Government concerning a compensation claim that the applicant, as the injured party, had brought in criminal proceedings instituted ex officio against a third party. In the present case, the applicant pressed criminal charges against B.T. and R.P., accusing them of defamation. In the Court’s view, the fact that the applicant acted as a private prosecutor is of no relevance for the applicability of Article 6 to the proceedings in question. This is because the capacity in which the victim participates in criminal proceedings (as a direct or subsidiary complainant or merely as an injured party) plays no part in the applicability of Article 6 to the civil-party claim.

57. The Court further notes that, as averred by the Government, the applicant did not specify his compensation claim. That, in itself, was insufficient for the Court to find Article 6 inapplicable in the Boris Stojanovski case (ibid., § 56). It also observes that under section 98(2) of the Criminal Proceedings Act, as in force at the material time, a civil-party claim could be brought before the proceedings were concluded at first instance. No argument has been submitted that that rule did not concern the requirement to have the civil-party claim specified by the end of the trial. It is to be noted that the trial in the present case did not result in a decision on the merits, but was concluded because of the absolute limitation period. Furthermore, it appears that the trial court did not take any action with respect to the applicant’s indemnity claim, as specified under the applicable legislation (see paragraph 35 above).

58. The Government appears to have suggested (see paragraph 54 above) that the criminal proceedings were not the adequate avenue regarding civil-party claims since the criminal courts, in practice, had abstained from deciding such claims on the merits, instead advising the victims to pursue them in the civil courts. The Court considers that the statistical information provided in this regard is insufficient to support that argument. It is unclear in how many defamation cases brought before the courts within the reference period the claimants had sought compensation. The applicant’s compensation claim was based on the applicable law, which, in the Court’s view, clearly established that the criminal courts could award civil damages. Accordingly, it was not unreasonable for the applicant to expect that the criminal courts would consider his compensation claim. The recently enacted Criminal Proceedings Act 2010 also provides for the possibility of victims of crime to seek civil redress in the criminal courts (see paragraph 39 above).

59. Furthermore, the introduction of the compensation claim in the criminal proceedings, although not specified, had suspended the running of the limitation period for instituting separate civil proceedings (see paragraph 54 above). Accordingly, it constituted a valid action brought by the applicant with a view to determining or securing his “civil” claim (see paragraph 23 above).

60. Lastly, the applicant did not withdraw his compensation claim during the proceedings despite being permitted to do so under section 99(1) of the Criminal Proceedings Act (see paragraph 34 above). In such circumstances, his failure to specify the compensation claim cannot be regarded as an unequivocal waiver of the right to have the claim decided on the merits (see, mutatis mutandis, Sadak and Others v. Turkey (no. 1), nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 67, ECHR 2001‑VIII).

61. In view of these considerations, the Court considers that Article 6 became applicable to the impugned proceedings when the applicant was joined as a civil party, namely since the moment he made his claim for monetary compensation (see Atanasova v. Bulgaria, no. 72001/01, § 52, 2 October 2008). It is not disputed that this was the date he brought the criminal complaint (see paragraph 9 above). Accordingly, the Government’s objection that this complaint is incompatible ratione materiae with the provisions of the Convention must be rejected.

62. The Court notes that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

63. The applicant reiterated his arguments that the length of the proceedings had been excessive.

64. The Government submitted that the unknown identity of the author of the article had contributed to the complexity of the proceedings. Furthermore, the national courts had undertaken all measures necessary to secure the accused’s attendance. Lastly, they could not be said to have been inactive, given the number of hearing dates fixed.

2. The Court’s assessment

65. The Court notes that the proceedings in question started no later than 4 February 2003 and ended on 24 March 2007, when the Court of Appeal’s judgment of 1 March 2007 was served on the applicant. They therefore lasted for more than four years and a month at two levels of jurisdiction.

66. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV; and Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, § 35).

67. The Court does not consider that the case required an examination of any complex issues.

68. As regards the applicant’s conduct, the Court finds no delays attributable to him. He attended all the hearings scheduled (see paragraph 11 above).

69. As to the national courts, the Court observes that the proceedings were pending for over four years before the trial court concluded them on account of the absolute limitation period. During that time, the trial court fixed twenty-three hearings, which were rescheduled owing to the absence of the accused or B.T.’s representative. In the Court’s view, it was the trial court’s inability to secure the accused’s attendance that delayed the proceedings. In this connection it notes that it was not until 7 March 2006, more than three years after the applicant had brought the criminal complaint, that the trial court heard oral evidence from B.T. That the identity of R.P. remained unknown can only be attributed to the trial court. In this connection the Court observes that it was not until 6 May 2005, more than two years and two months after the trial had started, that the court requested that the newspaper reveal the identity of the author of the article. The subsequent attempts in this regard, and the court’s orders to summon the author once his identity had been discovered (see paragraph 15 above), were again to no avail. The Court emphasises that according to the domestic legislation (see paragraph 30 above) and its case-law, judicial proceedings are supervised by a judge, who is responsible for the preparation and the speedy conduct of the trial (see, mutatis mutandis, Scopelliti v. Italy, judgment of 23 November 1993, Series A no. 278, § 23). That the Skopje Court of Appeal decided the applicant’s appeal within a reasonable time cannot offset the delays noted above.

70. Accordingly, there has been a violation of Article 6 § 1 of the Convention in respect of the “reasonable time” requirement (see, conversely, Boris Stojanovski, cited above, § 52).

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

71. The applicant complained that the respondent State, owing to the failure of the domestic courts to secure the accused’s attendance, had failed to protect the right to respect for his private and family life, including his reputation, which had been damaged by the article published in the newspaper. He alleged that as a result of the published article there had been negative public perception about him and his family. His house and business premises had been covered with graffiti describing them as “thieves”. The applicant relied on Article 8 of the Convention, which reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

A. Admissibility

1. The parties’ submissions

(a) The Government

72. The Government objected that the applicant had not exhausted all effective remedies. In particular, he had not claimed compensation in separate civil proceedings, despite the fact that he had been entitled to do so. Such a possibility had been open to him pending the criminal proceedings and after they had been stayed. In the latter case, he could have claimed damages in the civil courts until 2 December 2007 (see paragraph 22 above). Domestic practice supported that opportunity (see paragraphs 43 and 44 above). The applicant had been required to exhaust the civil remedy given the fact that the criminal avenue of redress had been ineffective in his case. In this connection they noted the fact that the applicant had not known the identity of the author. They further stated that the two available avenues of redress, both criminal and civil, had been open, at the relevant time, to a victim of an alleged violation of Article 8 of the Convention, since in both cases the domestic courts could order a measure rectifying the eventual damage to the victim’s reputation. Those remedies could have been used simultaneously or independently.

73. In the case of simultaneous use of both the criminal and civil avenues of redress, the civil courts would not have been required under the law (see paragraph 41 above, which concerns the relationship between a civil claim and criminal proceedings instituted by the State), to stay the proceedings and wait for the outcome of the criminal proceedings. They stated however that “it was likely that the civil proceedings would have been stayed pending the outcome of the criminal proceedings”. It was confirmation that the civil action for damages, which was the effective remedy regarding Article 8 rights, had to be decided in civil proceedings.

74. The criminal remedy aimed, above all, at establishing guilt, attributing criminal liability and punishing the perpetrator. Its principal aim was not to provide the victim with compensation for damaged reputation. The civil action for damages specified under sections 187 to 189 of the Obligations Act (see paragraphs 20 and 21 above) provided that the burden of proof lay with the alleged offender to show that no liability could be attributed to him or her for the damage sustained. Civil courts were entitled to order monetary compensation, as well as publication of the judgment, retraction or rectification of the defamatory statement at the liable party’s expense. Furthermore, the civil remedy could also be used against the newspaper, unlike the criminal remedy which could only be used against the author of the text, if his or her identity was known.

75. For these reasons, the Government argued that the civil avenue of redress was the more appropriate remedy for an alleged violation of someone’s reputation (see Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998‑VII). In support of this were the steps taken with a view to decriminalising defamation, which were compliant with the recommendation by the Parliamentary Assembly of the Council of Europe (see paragraph 17 above). As a result, defamation was no longer subject to criminal prosecution (see paragraph 42 above).

(b) The applicant

76. The applicant denied that fresh criminal proceedings in respect of the same offence could be brought against an accused. Similarly, no fresh compensation claim could have been brought before the civil courts, had such a claim been made and decided in the course of the criminal proceedings. Even if he had brought a fresh compensation claim after the criminal proceedings had been stayed, it would not have been decided until 2 December 2007, the date when the claim would have become, according to him, time-barred. The applicant further argued that the trial court had not advised him to pursue the compensation claim by means of a separate civil action for damages, nor had it reacted to his objections regarding the conduct of the trial (see paragraph 16 above).

2. The Court’s assessment

(a) General principles

77. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of resolving the impugned state of affairs directly (see Bajić v. Croatia, no. 41108/10, § 72, 13 November 2012).

78. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. Thus, a complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V).

79. The Court emphasises that Contracting States are afforded some discretion as to the manner in which they conform to their obligation to provide a domestic remedy that would allow the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see the discussion regarding Article 13 in Nada v. Switzerland [GC], no. 10593/08, § 207, ECHR 2012). This discretion reflects the freedom of choice attaching to the primary obligation of the Contracting States under Article 1 of the Convention to secure the rights and freedoms guaranteed under the Convention (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B).

80. When there are a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy, which has essentially the same objective, is not required (see T.W. v. Malta [GC], no. 25644/94, § 34, 29 April 1999; Moreira Barbosa v. Portugal (dec.), no. 65681/01, ECHR 2004-V; Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, 15 November 2005; and Jasinskis v. Latvia, no. 45744/08, § 50, 21 December 2010).

81. When the Government claims non-exhaustion of domestic remedies, it bears the burden of proving that the applicant has not used a remedy that was both effective and available. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996-IV).

(b) Application to the present case

82. The Court notes that, as admitted by the Government (see paragraph 72 above), the domestic legislation, as applicable at the relevant time, gave the victim of defamation the option of choosing between two avenues of redress, civil and criminal. They could be used either alone or in conjunction with each other. The law also provided for the simultaneous use of both remedies. The civil avenue of redress concerned a civil action for damages, which could be pursued, under the Obligations Act, in the civil courts. The criminal avenue of redress concerned private prosecution by the victim. It also provided for a civil-party claim, which the victim could submit together with the criminal complaint.

83. In the present case, the applicant availed himself of the criminal avenue of redress. In the criminal complaint, he accused B.T., editor-in-chief of the newspaper and a certain R.P., the presumed author, of having published the article allegedly containing false allegations that he had stolen a tractor. It was based on sections 172 and 184 of the Criminal Code, as valid at the material time (see paragraphs 27 and 28 above). It is true that the applicant did not identify the author of the article. However, the trial court was aware of the identity of the editor-in-chief of the newspaper and it could have examined accordingly the case under section 26 of the Criminal Code (see paragraph 26 above). The applicant also made a claim for financial reparation of the loss sustained as a result of the alleged defamation. Thus, he put to the domestic courts, in accordance with domestic law, the substance of his subsequent complaint to the Court. The remedy pursued by the applicant could have given rise to a declaration that the article was defamatory. It could have also eventually led to an award of compensation. The relevant domestic practice confirmed the availability and, to some extent, the effectiveness of the criminal avenue of redress (see paragraph 54 above). In such circumstances, there is nothing to suggest that the applicant could not have legitimately expected that the criminal-law remedy would not be an effective one. The Court considers therefore that the applicant was not required to make before the civil courts a separate, additional request for compensation, which could also have given rise to a finding that the article was damaging to his rights under Article 8 (see Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009). The option to seek monetary or other compensation in the civil courts after the criminal proceedings had been stayed was at the applicant’s discretion (see paragraph 54 above), and it cannot be interpreted as an exhaustion requirement.

84. Lastly, the Court reiterates that the Contracting States, who are in the best position to assess the practicalities, priorities and conflicting interests on a domestic level, are free to choose the remedies and form of appropriate relief. In cases such as the present, such choice should reflect on the views expressed by the Parliamentary Assembly of the Council of Europe (see paragraph17 above). The Court takes note of the fact that the respondent State decriminalised the defamation (see paragraphs 29, 42 and 75 above). However, the fact that the legislation now in force does not allow for criminal prosecution in cases of defamation is of no relevance for the present case, which pre-dated the entry into force of the new legislation.

85. Against this background, the Court considers that this complaint cannot be declared inadmissible for non-exhaustion of domestic remedies. Accordingly, the Government’s objection must be rejected and this complaint be declared admissible.

B. Merits

1. The parties’ submissions

86. The applicant reiterated that the criminal proceedings had not been conducted correctly.

87. The Government denied that the judgments given in the applicant’s case had been arbitrary or otherwise unlawful. Limitation periods aimed at ensuring the principle of legal certainty, under which prosecutions were no longer possible upon the passage of time. Having regard to the arguments that an effective remedy − a civil action for damages − had been available to the applicant, the Government concluded that the State had not violated the applicant’s rights under Article 8 of the Convention.

2. The Court’s assessment

88. The Court points out that, although the objective of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private and family life even in the sphere of the relations of individuals between themselves (see White v. Sweden, no. 42435/02, § 20, 19 September 2006). The Court considers that the present case engages the State’s positive obligations arising under Article 8 to ensure effective respect for the applicant’s private life, in particular his right to respect for his reputation (see Petrina v. Romania, no. 78060/01, §§ 34 and 35, 14 October 2008; Petrenco v. Moldova, no. 20928/05, § 52, 30 March 2010; and Aleksey Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010). In this connection it adds that in order for Article 8 to come into play, the attack on the applicant’s personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to the personal enjoyment of the right to respect for his private life (see, for example, A. v. Norway, no. 28070/06, § 64, 9 April 2009, Mikolajová v. Slovakia, no. 4479/03, § 55, 18 January 2011 and Roberts and Roberts v. the United Kingdom, (dec.), no. 38681/08, §§ 40-41, 5 July 2011).

89. In this connection the Court points out that the choice of the means calculated to secure compliance with Article 8 in the sphere of the relationships of individuals between themselves is, in principle, a matter that falls within the Contracting States’ margin of appreciation. However, this discretion goes hand in hand with European supervision (see Mosley v. the United Kingdom, no. 48009/08, § 107, 10 May 2011). It considers, as a minimum requirement, that an effective legal system must be in place and operating for the protection of the rights falling within the notion of “private life” (see Karakó, cited above, § 19), and it is satisfied that such a system was indeed available to the applicant in the present case.

90. The Court notes that the present application is distinguishable from the cases to which it has referred above concerning the right to the protection of one’s reputation under Article 8 of the Convention. While in those cases the Court has balanced the protection of private life against the right to freedom of expression enshrined in Article 10, in the present case it is confronted with a situation in which the domestic courts did not decide the merits of the applicant’s allegations that the article published in the newspaper had violated his rights under Article 8. Accordingly, it must consider whether the criminal-law mechanism available in the Macedonian legal system provided for an effective protection of the applicant’s rights under Article 8 of the Convention.

91. In this connection it notes that section 172 of the Criminal Code, as in force at the relevant time, protected a person’s reputation against defamatory allegations. This was not contested by the parties. In the criminal complaint, the applicant criticised the fact that the article had contained false allegations describing him as a thief, which had created a negative public perception about him and his family. However, the criminal proceedings were stayed because of the absolute limitation period. The domestic courts, owing to faults attributable only to the authorities (see paragraph 69 above), failed to verify the veracity of the statements contained in the article. The Government also admitted that the criminal proceedings had been ineffective in the applicant’s case (see paragraph 72 above). The applicant was therefore prevented from having his right to respect for his private life, which apparently was considerably affected (see paragraphs 13 and 71 above) effectively protected. Without making any conclusions as to what the outcome of the proceedings should have been (had the courts decided the merits of the applicant’s claim), the Court considers that the manner in which the criminal-law mechanism was implemented in the instant case was defective to the point of constituting a breach of the respondent State’s positive obligations under Article 8 of the Convention (see, mutatis mutandis, Sandra Janković v. Croatia, no. 38478/05, §§ 57 and 58, 5 March 2009).

92. Accordingly, the Court considers that in the present case there has been a violation of Article 8 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

93. The applicant further alleged a violation of his rights under Articles 2, 3, 5, 9, 13 and 14 of the Convention.

94. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

95. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

96. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

97. The applicant claimed 1,073,970 euros (EUR) in respect of pecuniary damage. That figure represented business losses and the loss of income for him and his family, and travel, educational, rental and living expenses for his family who had been living in Australia. In this connection he referred to court proceedings he had instituted against the State concerning property-related issues and submitted documents showing some of the expenses mentioned above. He also claimed EUR 650,000 in respect of non-pecuniary damage for the mental suffering he and his family were experiencing in the respondent State.

98. The Government contested the applicant’s claims as unsubstantiated and excessive. They further alleged that there had been no causal link between the damage claimed and the alleged violations. Furthermore, the claims partly related to third parties who could not claim to have victim status in relation to the alleged violations.

99. The Court does not discern any causal link between the violations found and the pecuniary damage claimed; it therefore rejects this claim. For the same reasons, it also rejects the applicant’s claims in respect of non-pecuniary damage allegedly sustained by members of his family. Nevertheless, it considers that the applicant himself must have sustained non-pecuniary damage for the violations found. Ruling on equitable basis, it awards him EUR 4,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

100. The applicant also claimed as pecuniary damage EUR 7,830 for costs and expenses incurred before the domestic courts. That figure included EUR 6,865 for fees for his legal representation, calculated under the tariff list of the Macedonian Bar, as well as for transportation costs between Bitola and Skopje. It also included EUR 965 for the applicant’s subsistence allowance for each hearing. He could not provide any supporting documents since police had confiscated all his receipts. He also claimed EUR 37,000 for costs and expenses concerning the proceedings before the Court. He did not submit any supporting document in this regard.

101. The Government contested the applicant’s claims as unsubstantiated and excessive. In this respect they stated that there was no evidence that they had been actually and necessarily incurred and reasonable as to the quantum. They also claimed that they had not been properly claimed.

102. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum(see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). That is to say, the applicant must have paid them, or be bound to pay them, pursuant to a legal or contractual obligation, and they must have been unavoidable in order to prevent the violation found or to obtain redress (see Belchev v. Bulgaria, no. 39270/98, § 113, 8 April 2004, and Hajnal v. Serbia, no. 36937/06, § 154, 19 June 2012). In the present case, regard being had to the available material and the above criteria, the Court considers it reasonable to award the applicant EUR 2,650 for legal fees and expenses relating to the defamation proceedings, plus any tax that may be chargeable to the applicant. As to the proceedings before it, the Court notes that the applicant’s representative entered the proceedings after the applicant had submitted his comments in reply to the Government’s observations (see paragraphs 47 and 48 above). In such circumstances and in the absence of any supporting documents, it rejects the applicant’s claim under this head.

C. Default interest

103. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the length of the defamation proceedings and the alleged failure of the respondent State to discharge its positive obligation to protect his right to respect for his private life admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 of the Convention;

3. Holds that there has been a violation of Article 8 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,500 (four thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,650 (two thousand six hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy