SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 50841/99
by Rufi Osmani and Others
against the Former Yugoslav Republic of Macedonia
The European Court of Human Rights (Second Section), sitting on 11 October 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrP. Lorenzen,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler,
MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 15 July 1998 and registered on 9 September 1999,
Having regard to the partial decision of 6 April 2000,
Having regard to the observations submitted by the respondent Government and noting that the applicant did not wish to submit observations in reply, while stating that he wanted to pursue the proceedings,
Having deliberated, decides as follows:
THE FACTS
The applicant, Osmani Rufi, was born in 1960. He lives in Gostivar, the Former Yugoslav Republic of Macedonia. He is represented before the Court by Mr Yves Leonard, a lawyer practising in Brussels, Belgium.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Background
At the 1996 local elections the applicant was elected mayor of Gostivar. On 14 February 1997 the Gostivar Local Council took a decision implementing section 140 of the Statute of the municipality of Gostivar on the use of flags. It provided that the Albanian and Turkish flags should be placed along with the Macedonian flag in front of the Town Hall. Other public institutions were also informed to display the Albanian and Turkish flags during public holidays.
On 14 March 1997 the Government and a political party requested the Constitutional Court to examine the constitutionality and legality of the Gostivar Local Council’s decision on the ground that neither the Constitution nor the respective law granted power to the municipalities to regulate the display of flags. On 21 May 1997 the Constitutional Court declared the request for examination of the constitutionality and legality of section 140 of the Statute of the municipality of Gostivar admissible and, by way of an interim order, suspended the validity of all ensuing decisions. The Gostivar Local Council was served with the decision on 22 May 1997.
On 24 May 1997 the applicant organised a meeting at which the Macedonian flag was not flown but the flag of the Republic of Albania was displayed and the Albanian national anthem was played. At the meeting he, inter alia, stated:
“Dear citizens of Gostivar and all Albanians from where ever you come. Your gathering demonstrates once again that we started slowly but surely to fulfil what we have promised in the electoral campaign in the field of politics, culture and economy.
...
Each Albanian, wherever he or she lives has one thought, one idea, one stance concerning the national issue, the issue of the Albanian language, the flag or the University...
This should be a clear message for all, for [the President] Gligorov, [the Prime Minister] Crvenkovski, the Constitutional Court that nobody should touch the Albanian flag. You are right [the citizens shout: “we will sacrifice our lives but not the flag”] we will sacrifice our lives but not the flag. We shall not accept any decision by the Constitutional Court which is entirely a political one, this institution which should protect the constitutionality and the legality but in fact violates the Constitution, the Constitution that they have adopted and laws which they have adopted without asking us, it is for us to decide on our own rights. It is not for them to decide.
Many troops flew the Albanian flag, i.e., Partisans’, Balists’ [Albanian movement which occupied the western part of the Former Yugoslav Republic of Macedonia during the Second World War] and other Albanian troops which were always fighting for the liberation of our territories. Our territories in [the Former Yugoslav Republic of] Macedonia are our territories, this should be acknowledged once for all and on these territories our flag shall always be flown.
...
We were not given our mandates to execute the policy of the Government [of the Former Yugoslav Republic] of Macedonia, but to do what you have wished to be done and that is certainly what we are going to do, because we were not elected by the Government [of the Former Yugoslav Republic] of Macedonia, the Parliament or the President...
The [Government’s] black hand covered with blood the University of Tetovo yesterday, their black hand wishes to cover with blood our national flag today, but they have first to think thoroughly as we are going to reply to a slap with a slap.
I gave them a clear message that as long as I am in the Gostivar Town Hall nobody shall ever touch the Albanian flag - they may go ahead, they may suspend me and the councillors of the Town Hall, but they shall never touch the flag, since we were not elected to remain quiet in our offices, today we are ready to give up our duties and offices, shall we do so?
During the election campaign I promised you that Gostivar will become an Albanian town and so it will be.
It shall [become an Albanian town] by an official display of the flag, the official use of the Albanian language and by putting up the signs of the stores in Albanian language, and [by establishing] many other institutions with other Albanian municipalities. We shall do it within the framework of the project of the regionalisation.
It should be clear that the Albanian flag is the eternal symbol of the Albanians.
Finally, I wish to thank you all and I promise you once more that we shall hold to the issue of the flag, the language, the University and to many other Albanian projects until the end, that we will soon turn them into reality notwithstanding the will of whomever, we shall abide by your political will and the only court that we shall obey eventually is the Albanian nation and nobody else.
Long live the Albanian flag”.
On 26 May 1997 the Gostivar Local Council informed the Constitutional Court of its decision not to implement the Constitutional Court’s interim order of 21 May 1997 emphasising that the removal of the flags would lead to an inter-ethnic conflict.
On 26 May 1997 a group of citizens tried to remove the Albanian flag from the front of the Gostivar Town Hall which led to a fight between the citizens. Following this, the applicant outside his competence as a mayor, organised armed shifts for the protection of the Albanian flag.
Furthermore, he also acting outside of his competence as a mayor and out of law, set up central crisis headquarters with several regional branches. A list of civilians of Albanian ethnic origin with special responsibilities was drawn up and money was allocated for different activities, such as propaganda and communication, shelters for injured people, etc.
On 6 June 1997 the applicant warned the Constitutional Court that the interim order of 21 May 1997 would lead to an inter-ethnic conflict.
On 11 June 1997 the Constitutional Court abrogated section 140 of the Gostivar Statute on the ground that the Local Council had exceeded its power when it had regulated the display of the flags by its statute as it had not been empowered to do so by the Constitution or by law.
On 9 July 1997, at around 2 a.m., the police removed the flags from the front of the Gostivar Town Hall. The Ministry of Foreign Affairs on 15 July 1997 gave, inter alia, the following account:
“...
During the searches carried out in Gostivar ... Town Hall firearms were found, for which their holders did not have a licence...”
In footnote no. 2 it was stated:
“Three armed persons, ... two in Gostivar [who were watching over the Albanian flags] were detained and the following firearms were confiscated - semi-automatic guns “Walter” without a number, calibre 7.65; Unik, model no. 51, without a number, calibre 7.65; and “TT” -33, calibre 7.62 which were found in the kitchen, the toilet and the corridor of the private office of the chairman of the Town Hall” - end of the footnote.
The report goes on:
“At around 7.30 a.m. ..., without any reason a group of 200 citizens, by use of physical violence, projectiles [rocks and stones], metal sticks and “chemical substances” [Molotovs’ cocktails and teargas] attacked the police [apparently positioned nearby the Gostivar Town Hall] and ... breached the public order and peace in the town.
The police used “chemical substances” AF-1 and AG-1 [teargas], truncheons and physical force. The public order was quickly restored, but other people from the nearby villages [who arrived] in an organised manner joined the crowed which became larger. According to our estimations, at around 3 p.m. a crowed of 7-8,000 people gathered in front of the Town Hall.
...
...at around 2.30 p.m. five persons were detained, three of whom were citizens of the Republic of Albania and all 39 bottles with Molotovs’ cocktails were found. Since [the leaders] could no longer use Molotovs’ cocktails to heat-up the crowed they started shouting: “Bosnia, Bosnia”.
At around 3.18 p.m. the first smoke bomb was thrown nearby the positions of the police, and after a while the second smoke bomb was thrown [at the police]. The visibility reduced by the smoke bombs provoked the extremists to open fire with automatic guns.
...one of the policeman was seriously injured and urgently taken to hospital.
After one hour of intensive firing from both sides, the Ministry had not received any information that anybody from the extremists or from the crowed had been killed or injured in the interim. No deaths or injuries were reported until then and later [as a result of] the request of the parents of two victims an autopsy was not ordered by the investigating judge, therefore, the possibility to clarify the circumstances (time, place, manner, etc.) surrounding their deaths was excluded.
Around 5 p.m. the firing had stopped and the police restored the peace in the town.
...the police searched the private offices of the chairmen of the Town Hall ... in Gostivar and the houses of the two “guards” of the flag in front of the Town Hall of Gostivar (two automatic guns and a big quantity of ammunition were found).
In the private office of the chairman of the Gostivar Town Hall the police, inter alia, found documents concerning the “crises headquarters and its regional branches” which were set up in case of an attempt to remove the Albanian flag. The way the headquarters were structured justifies the fear that [the people involved were ready] to put up armed resistance.
In footnote no. 9 of the report it was said:
“In one of the buildings from where it was fired on the police, large quantities of medicines and other medical equipment for an intravenous drip, analgesic drugs, antibiotics, [medicines] against dehydration, ampoules against excessive bleeding, etc, were found...” - end of the footnote.
The report further continues:
“In the Gostivar hospital 196 patients seriously or slightly injured were registered between 9 and 11 July 1997...
On 9 July 1997 seven injured persons requested medical assistance at the Surgery of the Skopje Medical Centre... On the same day nine other persons requested medical assistance at the Skopje Military Hospital ...
...”
On 9 July 1997 the police searched the applicant’s home and seized three guns and some documents, including minutes of 31 May 1997 on the set up of the central crises headquarters and its regional branches; a list of persons from different municipalities who were responsible for different tasks, i.e., communication and propaganda, shelters for injured, finances, transport and security of the flag; and a copy of the applicant’s speech delivered on 24 May 1997.
The police had requested the applicant several times to address the citizens, but the applicant had allegedly agreed to do so only after the Macedonian flag was removed from the front of the Gostivar Town Hall, the police forces withdrawn and detained persons released. At that occasion the applicant also allegedly stated that one day the Albanian flag would be flown as the official one and not only as the flag of a minority. Around 4.30 p.m. he addressed the people via a local TV station following which the riots stopped.
Criminal proceedings against the applicant
a. Proceedings before the Gostivar Municipal Court
On 10 July 1997 the applicant was detained pending trial and on 8 August 1997 he was charged with stirring up national, racial and religious hatred, disagreement and intolerance by a public official and with a serious case of organised resistance and the non-execution of a decision or an order of a State institution. He was released on 7 October 1997.
The Gostivar Municipal Court held hearings on 11, 12 and 15 September 1997.
In addition to hearing several witnesses, the court examined, inter alia, typed and hand-written originals as well as a translation of the applicant’s speech, a video-tape of the aforementioned meeting, the minutes and other documents on the setting up of central crisis headquarters with regional branches, shelters for the injured and a list of persons who took part in those activities.
On 16 September 1997 the Municipal Court found the applicant guilty of: (a) stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance for which he was sentenced to eight years’ term of imprisonment; (b) organising resistance against a lawful decision or activity of a State institution for which he was sentenced to four years’ term of imprisonment; and (c) non-execution, as a public official, of a Constitutional Court’s decision for which he was sentenced to three years’ term of imprisonment. The overall sentence was thirteen years and eight months’ term of imprisonment.
The offence of stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance had been made out by the failure of the applicant, who had been an elected mayor, to inform the Local Council and the central Government that the decision to display the flags of Albania and Turkey in front of the Town Hall had been unconstitutional. He had implemented such an unlawful decision and had instructed all other public institutions to display the respective flags during the public holidays. He had refused to implement the Constitutional Court’s interim order and decision and had organised a public meeting under the motto “to defend the official use of the national flag” at which the anthem of the Republic of Albania had been played and the flag of the Republic of Albania displayed.
Moreover, at the meeting he, inter alia, had stated:
“ we shall give our lives but not our flag”, “we do not recognise the decisions of the Constitutional Court”;” “The Albanian flag was flown in front of many troops, i.e., partisans’, balists’ [Albanian movement which occupied western part of the Former Yugoslav Republic of Macedonia during the Second World War] and in front of other Albanian troops which were always fighting for the liberation of our territories. Our territories in [the Former Yugoslav Republic of] Macedonia are our territories, this should be acknowledged once and for all and on these territories our flag will always be flown”.
The court held that the applicant had called and organised the citizens of Albanian origin to protect the respective flag with their lives, thereby, he had encouraged the violent events of 9 July 1997 in which three lives had been lost, many citizens injured and considerable damage caused. He had caused a feeling of insecurity and fear among the citizens of Macedonian origin. He had been aware in advance of the serious consequences which his speech might have and had actually provoked.
There had been a connection between the meeting of 24 May 1997 and the events of 9 July 1997 as it was clear from the evidence that the set up of the central crisis headquarters, shelters for the injured, night shifts and different strategies how to defend the flag had been planned and undertaken by the applicant.
Furthermore, the two villagers who had been “on duty” to protect the flag on the night of 9 July 1997 gave evidence that a person who had identified himself as being a messenger of the applicant had asked one of them, Mr F., to be on the night shift of 8/9 July 1997 for the protection of the flag of the Republic of Albania. For this purpose he had received a proxy with the stamp and signature of the applicant. The name of the second witness Mr B. had also been put on the proxy. In the Town Hall Mr F. and Mr B. had been instructed by Mr K. from the village of Lakavica to watch over the flag until 6 a.m. and to inform the applicant in case they noticed something suspicious. Mr F. had been in a possession of a gun - “Walter”, calibre 7.65 with no licence.
The court concluded that the applicant was determined to protect the flag of the Republic of Albania despite the Constitutional Court’s decision. As an elected mayor of a town with mixed population instead of promoting an inter-ethnic co-operation and tolerance he had called the citizens of Albanian ethnic origin to resist a lawful police action and had organised armed resistance against the implementation of the Constitutional Court’s decision.
b. Proceedings before the Skopje Appellate Court
The applicant appealed to the Skopje Appellate Court. He argued that his rights to freedom of expression and freedom of assembly guaranteed by Articles 16 and 21 of the Constitution had been violated. The main reason to organise the meeting of 24 May 1997 had been to express his discontent with the Constitutional Court’s interim order of 21 May 1997. The violent events of 9 July 1997 had not been provoked by his speech and actions but by the police action. The “civil night shifts” had been organised to watch over and report if somebody or the police attempted to remove the flags.
On 5 February 1998 the Appellate Court upheld the lower court’s judgment. The sentence for having stirred up, as a public official, national, racial and religious hatred, disagreement and intolerance was reduced to four years’ imprisonment; the sentence for having organised resistance against a lawful decision or activity of a State institution was reduced to three years’ imprisonment; and the sentence for not having executed, as a public official, the Constitutional Court’s decision was reduced to two years’ imprisonment on the ground that the applicant had no previous criminal record. The applicant’s overall sentence was reduced to seven years’ imprisonment.
The court held that the applicant was not punished because he had expressed his opinion or organised an assembly, but because he, as a public official, had stirred up national, racial and religious hatred, disagreement and intolerance by his speech of 24 May 1997 addressed to the citizens of Albanian origin by which he encouraged a group of citizens to criminal activities. As a result there were public riots and disorder on 26 May and 9 July 1997. Furthermore, he, as a public official, had refused to execute the Constitutional Court’s decision and had organised resistance against a lawful decision and activity of a State institution. In particular, he had planned and set up central and regional branches of the crisis headquarters and armed shifts for the protection of the flag of the Republic of Albania.
c. Proceedings before the Supreme Court
On 12 May 1998 the Supreme Court dismissed the applicant’s appeal on points of law, holding that the lower courts’ judgments were precise, consistent and reasoned.
d. Proceedings before the Constitutional Court
On 2 March 1998 the applicant availed himself of his right to submit constitutional complaint concerning the alleged violation of his right to freedom of expression.
On 8 April 1998 the Constitutional Court dismissed his complaint. The court found, inter alia, that: a) the applicant had not informed the Local Council and the Government about the unconstitutionality of the decision to display the flags of the Republics of Albania and Turkey and had implemented it; b) had not implemented the interim order of the Constitutional Court of 21 May 1997; c) at the public meeting which had been organised by him and where he delivered his speech, the Albanian anthem had been played, the flag of the Republic of Albania flown, but the Macedonian flag had not been flown; d) from the content of his speech it was clear that he had conveyed a message that the Albanian population was endangered, that it should fight to defend the flag and promised that Gostivar would become an Albanian town; e) organised armed shifts and central and regional headquarters for the protection of the flag of the Republic of Albania and planned resistance in case of an attempt for its removal; and f) prompted by the applicant’s speech and actions the citizens of Albanian origin offered armed resistance on 9 July 1997 which resulted in three lives being lost, many people injured and substantial material damage being caused.
The court, inter alia, stated:
“...
[The limits of the right to respect for freedom of expression as provided by the Constitution read as a whole, as well as, the Convention are based on] the enforcement of the principle of legality set out in Article 14 § 1 of the Constitution of the Republic of Macedonia (“No person may be punished for an action which was not considered as an offence by law, or other legislation prior to being committed, and for which no sanction has been foreseen”) together with the proscription of actions that impinge upon the rights and freedoms of others and other values guaranteed by the Constitution [that should be] proportionate to the need in a democratic society. ...this is foreseen in Article 2 of the Penal Code of the Republic of Macedonia, which sets out the basis and limits of the criminal punishment, [and] under which “The protection of freedoms and rights of peoples and of other fundamental values, and the enforcement of sanctions [that should be] proportionate to the need to prevent crime provide for the basis and definition of the legal characterisation of criminal offences and sanctions.
...
In particular, the way the applicant made a presentation in public and expressed his opinion, the words he used, the place of his appearance, his position, the aim he wished to achieve and the consequences ..., as well as, the actions he undertook before and after the protest [examined] as a whole represent an action which is directed against legal order as basis for the enjoyment of all freedoms and rights, and it matches the legal characterisation of the criminal offences of which he had been found guilty and sentenced. The circumstance that the criminal offences had been made out by way of action which at its surface appeared to be an enjoyment of the right of freedom of expression does not represent a ground to justify the applicant’s guilt concerning the criminal offences committed, as it transpires from the facts of the case that his action had resulted in loss of the very content of the public expression as guaranteed and protected by the Constitution. The reason for that, as transpires from the facts of the case, is that the applicant with his publicly expressed opinion had not given his intellectual or political stance, nor had [his action] represented a way of intellectual or political persuasion of the persons attending the assembly, but had directly called the citizens of Albanian ethnic origin to disobey or, evenmore, fight against public order, thus causing intolerance, friction and hatred among the citizens of Gostivar in the situation of already existing sensitive inter-ethnic tension, and the feeling of insecurity among the citizens of Albanian ethnic origin, as well as, among the citizens of Macedonian ethnic origin, which all together had the event of 9 July 1997 as its tragic epilogue...”
e. Amnesty
On 4 February 1999 the Parliament adopted the Amnesty Act following which the applicant was granted amnesty and dispensed from having to serve his prison sentence. He was released on 5 February 1999 after having served one year and three months.
B. Relevant domestic law
1. Constitution of the Republic of Macedonia (Устав на Република Македонија)
Article 16 of the Constitution of the Republic of Macedonia guarantees the freedom of belief, conscience, opinion and public expression. Article 21 guarantees the right to peaceful assembly. Article 110 §§ 1 and 2 provide that the Constitutional Court is competent to decide on the conformity of the Government regulations and decisions with the Constitution and the laws, whereas § 3 of the same Article sets out the Constitutional Court’s competence to deal with complaints from individuals concerning violation of their rights and freedoms to communication, conscience, opinion and public expression, political association and activities, as well as prohibition of discrimination on the grounds of gender, race, religion or national, political or social affiliation.
Article 115 provides, inter alia, that the citizens directly and through representatives participate in the decision-making in respect of the issues of local relevance. This concerns in particular: the urban planning, communal activities, culture, sport, social security and child care, nursery, primary education, basic health care and other fields determined by the respective law in the units of local self-government.
2. The 1996 Penal Code (Кривичен законик)
Article 319 on stirring up national, racial and religious hatred, disagreement and intolerance, as far as relevant, provides as follows:
“1. Any person who stirs up national, racial and religious hatred, disagreement and intolerance by coercion, ill-treatment, duress, who insults national, ethnic and religious symbols, or damages monuments and cemeteries, or in any other way stirs up national, racial and religious hatred, disagreement and intolerance shall be punished with one to five years’ imprisonment.
2. A person who commits the offence set out in § 1 of this section by abusing his official position or power and thereby causes riots and violence against people or huge material damage shall be punished with one to ten years’ imprisonment.”
Article 377 on the non-execution of a judicial decision, as far as relevant, provides as follows:
“...
3. Any official or person who is under a duty to execute a decision of the Constitutional Court of the Republic of Macedonia and who refuses to do so shall either be fined or punished with up to three years’ imprisonment.
4. A person who commits the offence set out in Article 377 § 3 shall be punished with one to five years’ imprisonment when the committed offence seriously impinges upon the rights of others or causes a considerable damage.”
Article 387 on organising resistance, as far as relevant, provides as follows:
“1. A person who organises other people to offer resistance or encourages them to disobey a lawful decision or an order of a State body shall be fined or punished with up to three years’ imprisonment.
2. A person shall be sentenced to from one to five years’ imprisonment if he does not execute a lawful decision or an order of a State body or ... when the offence has been committed by a leader of a group.”
3. Code of Criminal Procedure (Закон за Кривичната постапка)
Article 526 provides, inter alia, that a person sentenced to a term of imprisonment or found guilty but dispensed from having to serve a prison sentence shall have the right to be compensated for being unlawfully convicted provided that on the re-opening of the criminal proceedings against him the court decides to terminate them or the person is being acquitted.
Article 530 provides, inter alia, that a person shall have the right to be compensated for being unlawfully detained if: a) he has been detained pending trial, but the criminal proceedings against him are terminated or he is being acquitted; and b) he has already served his prison sentence but on the re-opening of the criminal proceedings against him he was sentenced to a shorter term of imprisonment, or not sentenced to a term of imprisonment.
4. The Law on the Display of Flags (Закон за употреба на знамињата)
The law provides, inter alia, that the State flag may only be displayed during the bank holidays, public celebrations, sport and cultural events and private celebrations of the citizens.
5. The 1995 Law on Local Self-Government (Закон за локална самоуправа)
Section 44 of the Law on Local Self-Government provides that when a local council adopts a decision or regulation which contravenes the Constitution or the laws the mayor is under a duty to report this to the Government within fifteen days from the day the impugned decision or regulation is adopted.
6. The Amnesty Act of 4 February 1999 (Закон за амнестија)
Section 1 of the Amnesty Act of 4 February 1999 grants amnesty to all persons convicted under Articles 319, 377 and 387 of the Penal Code for having stirred up national, racial and religious hatred, disagreement and intolerance, and/or for not having executed a judicial decision, and/or for having organised other people to resistance and disobedience of lawful decisions, or orders of a State body. Section 2 provides that the prison authorities where the convict, referred to in section 1 of this Act, is serving a prison sentence shall, ex officio, start the proceedings for his liberation.
7. The 1996 Penal Code (Кривичен законик)
Article 113 provides that a person who has been granted amnesty shall no longer be criminally prosecuted for that offence, or shall have his or her sentence reduced accordingly, or shall be dispensed from having to serve a sentence. In addition, the judgement against him or her might be deleted from the police record.
COMPLAINTS
The applicant complains under Articles 10 and 11 of the Convention of a violation of his rights to freedom of expression and assembly.
THE LAW
The applicant complains under Articles 10 and 11 of the Convention of a violation of his rights to freedom of expression and assembly.
Article 10 provides as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11 provides as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
1. The exhaustion of domestic remedies
The Government contended that the applicant had not exhausted all domestic remedies. Admittedly, he had been unable to claim compensation for the time spent in prison as he had been granted amnesty, but this circumstance did not prevent him from requesting a re-opening of the criminal proceedings against him. On this basis he could have submitted a civil claim for compensation.
The Court recalls that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V).
In the instant case, the applicant was dispensed, by virtue of the Amnesty Act, from having to serve his sentence. However, his being granted amnesty does not imply that the applicant’s conviction had been unlawful or had no other adverse effects on him. He served one year and three months of his prison sentence. In particular, there is no indication that the authorities have acknowledged any violation of the Convention. Consequently, the amnesty granted to the applicant does not remove his status as a victim of the alleged violation, within the meaning of Article 35 § 1 of the Convention.
The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see, among many other authorities, the Yasa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2431, § 71).
In the instant case, the applicant complains not about a lack of compensation for his conviction but about his conviction itself. After being granted amnesty, the applicant might have requested a re-opening of the criminal proceedings but only on the basis of new fact or evidence. Given that he was no longer able to challenge effectively his conviction before the domestic courts, the Court finds that there was no effective domestic remedy available to the applicant. Consequently, the Government’s objection should be dismissed.
2. The scope of the applicant’s complaints
The Court considers that in the circumstances Article 10 is to be regarded as a lex generalis in relation to Article 11, a lex specialis, so that it is unnecessary to take it into consideration separately (see the Ezelin v. France judgment of 26 April 1991, Series A no. 202, p. 20, § 35).
On the other hand, Article 11 should also be considered in the light of Article 10, as notwithstanding the autonomous role and particular sphere of application of Article 11, the protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see the previously cited Ezelin judgment p. 20, § 37).
3. Whether there was an interference with the exercise of the freedom of peaceful assembly
The Government contended that Article 11 of the Convention did not apply to the facts of the case. The Convention protected only the right to “the peaceful taking place of lawful manifestations” and the events at issue in the present case did not match this definition. In particular, the applicant’s speech delivered on 24 May 1997, the preparation of an armed resistance against the execution of the Constitutional Court’s decision, and the public riots of 9 July 1997 had clearly demonstrated that his intention had not been to organise and hold a peaceful political debate, but rather to organise resistance, using violent means, against the lawful action of the police. Moreover, the violent events of 9 July 1997 had been triggered off by the applicant’s speech of 24 May 1997 and his continuous preparations with a view to organising resistance in case the police tried to execute the Constitutional Court’s decision.
The Government further submitted that the applicant’s rights to convene the meeting of 24 May 1997 and to express his opinion as a citizen or the mayor of Gostivar from that day until 9 July 1997 had been in no way restricted. He had not been criminally prosecuted because he had convened a meeting and made a speech but because of his actions which had been clearly prohibited by the Penal Code. Therefore, the applicant’s conviction and sentencing had not represented an interference with his rights to freedom of peaceful assembly and expression of his opinion.
The applicant maintained that his conviction and prison sentence for convening an assembly and delivering a speech amounted to an interference with his rights under Articles 10 and 11 of the Convention to freedom of expression and assembly.
The Court recalls that the term “restrictions” in § 2 of Articles 11 and 10 is not limited to measures taken before or during a meeting, but also include measures taken after a meeting such as punitive measures (see the Ezelin judgement mentioned above, p. 20, § 39).
In this case, the applicant was found guilty of stirring up, as a public official, national, racial and religious hatred, disagreement and intolerance, on account of the fact that he had organised a public meeting on 24 May 1997 under the motto “defending the official use of the national flag”, at which the anthem of the Republic of Albania was played and he delivered a speech in which he called the citizens of Albanian ethnic origin to protect the flag of the Republic of Albania. The applicant was detained pending trial on 10 July 1997 and charged on 8 August 1997 following the riots of 9 July 1997. He was originally sentenced to eight years’ imprisonment for having stirred up, as a public official, national, racial and religious hatred, disagreement and intolerance. His prison sentence was reduced by four years by the Appellate Court. The applicant was granted amnesty after having served one year and three months of his prison sentence.
The Court considers that there was in this instance an interference with the exercise of the applicant’s freedom of peaceful assembly.
4. Whether the interference was justified
It must therefore be determined whether the applicant’s conviction and sanction was “prescribed by law”, pursued one or more legitimate aims under § 2 and was “necessary in a democratic society”.
a. Prescribed by law
According to the Government the interference was prescribed by law. In particular, all the offences of which the applicant had been found guilty were set out in the Penal Code, which had been published in the 1996 Official Gazette and had been accessible to all the citizens. The relevant provisions of the Code were precise and clear, placing the applicant in a position to reasonably foresee the consequences of his acts. This was undisputed by the applicant.
The Court considers that Article 319 of the Penal Code represents sufficient legal basis for the applicant’s conviction. The provision in question is sufficiently precise and the applicant could foresee to a degree reasonable in the circumstances, the consequences which his action might entail.
It follows that the interference was “prescribed by law”.
b. Legitimate aims
According to the Government the legitimate aims pursued were the preservation of the national security and public safety, legal order, the prevention of disorder and the protection of the freedoms and rights of others.
In the circumstances, the Court is satisfied that the interference pursued several legitimate aims such as the prevention of disorder and crime, the national security and public safety and the protection of the freedoms and rights of others.
c. The necessity of the interference
The Government affirmed that the interference had been necessary and justified, as it had answered a “pressing social need”. In particular, the applicant, as an elected mayor, had duties and responsibilities towards the citizens. He had been one of the most respected politicians of Albanian ethnic origin. He had been aware of the serious consequences in advance, as the Gostivar Local Council had warned the Constitutional Court about the possible aggravation of the inter-ethnic relations if the latter’s decision was to be executed. Nevertheless, he had abused his position as an elected mayor and created a climate of inter-ethnic intolerance and insecurity between the citizens and had encouraged violence. In particular, after the refusal to execute the Constitutional Court’s order the interethnic relations in Gostivar, a town which had been largely populated by ethnic Albanians, had drastically deteriorated.
In such circumstances, the applicant’s message at the meeting of 24 May 1997 and his active involvement in the organisation of the regional crisis headquarters, shelters for the injured, etc, had encouraged the use of violence against the police to a decisive extent. As a result casualties and material damage had occurred.
The Government stated that a fair balance had been struck between the rights of the applicant and the pressing social need to protect the national security, public safety, the rights of others and to prevent disorder, regard being had to the fact that the public riots provoked by the applicant had caused a serious danger to the general public.
Moreover, the applicant had overstepped the normal limits of a public and political debate. He had succeeded by his words and actions to encourage the citizens to armed resistance against the police action, thereby putting at peril the lives and physical integrity of many citizens.
The States have a certain margin of appreciation in the choice of the reasonable and appropriate measures to be used by the authorities to protect the legal and public order of the country. In this particular case, the State had had the right to protect national security, public safety, the rights of others and to prevent disorder by undertaking criminal law measures against the applicant. The domestic courts had adduced sufficient and relevant reasons for the applicant’s conviction and sentencing.
In addition, taking into account the fact that the applicant had served only one year and three months of his term of imprisonment, his conviction and sentence had not been disproportionate to the legitimate aims pursued.
The applicant argued that the reasons given by the courts in respect of his conviction and sentence had not been sufficient and relevant.
The Court recalls that freedom of peaceful assembly, of which the protection of personal opinion is one of its objectives, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered "necessary in a democratic society" the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and this is to be done by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a "pressing social need" and whether it was "proportionate to the legitimate aim pursued" (see, mutatis mutandis, among many other authorities, the Wingrove v. United Kingdom judgment of 25 November 1996, Reports 1996-V, p. 1956, § 53). The proportionality principle demands that a balance be struck between the requirements of the purposes listed in § 2 on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places on the other hand (see, mutatis mutandis, the Ezelin judgment cited above, p. 23, § 52).
In addition, it is to be noted that while freedom of peaceful assembly, and freedom of expression, is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interference with the freedom of peaceful assembly and freedom of expression of an elected representative calls for the closest scrutiny on the part of the Court (see, mutatis mutandis, the Castells v. Spain judgment of 23 April 1992, Series A-236, p. 22, § 42).
In the instant case, however, special attention is to be given to the content of the applicant’s speech and its context as well as to the assembly which the applicant convened, with a view to determining whether they can be considered as inciting to violence (see, among other authorities, Sürek and Özdemir v. Turkey [GC], nos. 23927; 24277, § 61, to be published in the ECHR; and, mutatis mutandis, the Zana v Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2549, §§ 59-60).
The assembly was convened by the applicant following the display of the flags of the Republics of Albania and Turkey and after the Constitutional Court’s interim order had been served on the Local Council and the applicant.
Some parts of the applicant’s speech delivered at the assembly and addressed to the citizens of Albanian ethnic origin encouraged the use of violence. This is especially true for passages like: “we will sacrifice our lives but not the flag”, “many troops flew the Albanian flag, including Partisans’, Balists’ and other Albanian troops which were always fighting for the liberation of our territories. Our territories in Macedonia are ours, this should be acknowledged once and for all and on these territories our flag will be always flown”; “The [Government’s] black hand covered with blood the University of Tetovo yesterday, their black hand wishes to cover with blood our national flag today, but they have first to think thoroughly as we are going to reply to a slap with a slap”.
The applicant, who was a well-respected personality in the Albanian community, convened the assembly and delivered his speech well aware of the Constitutional Court’s decision and the risk of bringing about public riots, disorder and clashes with the police. This is supported by the letters sent to the Constitutional Court on 26 May 1997 by the Gostivar Local Council and on 6 June 1997 by the applicant, warning this court that its interim order of 21 May 1997 would lead to an inter-ethnic conflict.
Aware of these risks, the applicant organised armed night shifts to watch over the flag, set up crises headquarters with regional branches with well-equipped shelters for the injured, drew up a list of people with different responsibilities, etc.
Furthermore, from the documents in the case-file it transpires that the applicant’s individual responsibility in respect of the violent events does not rest only with the facts that he organised a meeting with the citizens of Albanian ethnic origin and delivered a speech by which he called on them to protect the flag of the Republic of Albania at the cost of their lives, but also, inter alia, with the facts that he implemented the unconstitutional and unlawful decision of the Gostivar Local Council to put the flag of the Republic of Albania in front of the Town Hall, that he breached his duty as a mayor to execute the respective Constitutional Court’s order, and that he, outside his competence as a mayor and unlawfully, was actively involved in planning and setting up crises headquarters and armed shifts for the protection of the flag of the Republic of Albania.
The Court considers that the applicant’s speech, his actions and the meeting organised by him on 24 May 1997 undoubtedly played a substantial part in the occurrence of the violent events that followed on 26 May 1997 and 9 July 1997.
In this context, it is also to be referred to the Constitutional Court’s decision stating that the applicant had not given his personal political or intellectual opinion, but had directly called the citizens of Albanian ethnic origin to resist the implementation of a final judicial decision, thereby causing hatred, intolerance and tensions in a very sensitive inter-ethnic situation, as well as, a feeling of insecurity among the rest of the population and had revived the painful memories of the Second World War.
Regard being had to the decisions of the domestic courts, in particular, of the Constitutional Court and of the Gostivar Municipal Court and to the armed riots, the casualties and the material damage to which the applicant substantially contributed by his actions and his speech, the Court finds that the criminal law measures imposed by the domestic courts answered a “pressing social need” and that sufficient reasons were given by the domestic authorities to justify the conviction of the applicant.
Turning to the question whether the impugned measures were proportionate, the Court recalls that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of an interference in relation to the aim pursued (see among other authorities, Öztürk v. Turkey [G.C.], no. 22479/93, § 70, ECHR 1999-VI).
In this context, it is first to be noted that the applicant was not charged immediately after the speech and the assembly but only after their consequences were felt. In particular, after the events of 9 July 1997 when the citizens of Albanian ethnic origin gathered around the Town Hall in large number carrying, inter alia, stones, metal sticks, Molotovs’ cocktails and teargas to prevent the flag of the Republic of Albania from being removed and after the police was being attacked. In the clashes three persons lost their lives, many citizens and policemen were injured and considerable material damage was caused.
Subsequently, the applicant was convicted for having, as a public official, stirred up national, racial and religious hatred, disagreement and intolerance. His conviction was based not only on the fact that the applicant had convened the assembly and delivered the speech, but also on other facts, including the execution of the Local Council’s decision to display the respective flags in breach of the Constitution and the failure to inform the Government about the Local Council’s decision. The initial sentence for this offence of eight years was reduced to four years of imprisonment. His initial overall sentence was reduced from thirteen years and eight months to seven years’ term of imprisonment. Eventually, the applicant was granted amnesty.
The applicant spent one year and three months in prison. Therefore, even if the original sentence can be considered severe, one year and three months spent in prison cannot be considered disproportionate, regard being had to the facts of the case.
Therefore, the applicant’s complaints that his rights to freedom of expression and assembly were violated are manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy