07. 04. 2005

EX OFFICIO PROCEEDINGS, PRISON SENTENCE AND LACK OF TRANSPARENCY

Legislation – Criminal Law
THE MISSED OPPORTUNITY OF THE MACEDONIAN AUTHORITIES

In 2003 the Macedonian government missed the opportunity to enter the ranks of European countries to first implement the decisions of the European Council of October 2002, by which defamation and libel are no longer considered criminal acts. In the later part of 2003 the Ministry of Justice launched an initiative for amendments to the old provisions of the criminal law created in 1996.

The journalists' guild used the opportunity to introduce the government to the recommendations of the EC for eliminating prison sentence as a penalty for defamation and libel. At first, there were indications from the government of some understanding for the journalistic profession. The journalistic community feared abuse of the criminal law provisions. This fear became justified in 2003/2004 when several journalists were prosecuted by political structures. In October 2003 in Ohrid , Macedonia , a conference was held under the support of the CE, reiterating the conclusions of the Strasbourg conference held a year before.

The interesting part is that the authors of the criminal law, representatives of the Justice Ministry, the Attorney General and other governmental representatives, were actively participating in the conference. Although at the time these conclusions were arrived at these experts had no objections, later when changes were supposed to be applied to the criminal law provisions, none of the conclusions were accepted.

The legal framework
THE SITUATION ON PAPER

The criminal regulations applied in the Republic of Macedonia treat defamation and libel as “Criminal acts against honor and reputation” in Article 18. Other criminal acts important for journalists cited in this law along with “defamation and libel” are: “Exposing personal and family circumstances” and “Slander with accusations of a criminal act”. In Articles 176 and 177, situations are considered in which the defendants are not sentenced, while Article 184 outlines the means of “Prosecution for criminal acts against honor and reputation”.

Defamation

Article 172 of the criminal law outlines “defamation”, and prison sentence is a clear and precise option. To illustrate, we present fragments of the first three paragraphs:

1) One who proclaims untruth about another… will be fined with 500 euros or sentenced to 50 days in prison.
2) If the act referred to in Paragraph 1 is done via the press, radio or television… the offender will be fined 1000 euros or sentenced to 100 days in prison.
3) If the alleged fabrications… result in severe consequences for the damaged party, the offender will be fined 2000 euros or sentenced to 200 days in prison.

Though unclear, not less interesting to analyze is the next Paragraph 4 which states that even in case you can prove yourself innocent of defamation, you can still be prosecuted for libel under Article 173, or under Article 175 for “slander with accusations of a criminal act”.

4) If the defendant proves his claim to be factual.... will not be sentenced for defamation, but can be prosecuted for libel or for slander with accusations of a criminal act (Article 175).

Article 173 - Libel
Article 174 - Exposure of personal and family conditions
Article 175 - Slander with accusations of a criminal act

In these three articles of the criminal law, the sentence to 200 days in prison is repeated as a measure. The level of penalty is the same as for "defamation" as a criminal act. Still, if a journalist is found guilty of "libel" by the court, he/she can be sentenced up to a year in prison. Now Paragraph 3) of Article 174, "exposure of others' personal and family conditions" presents a rather radical concept:

Article 174
3) If the nature of the information exposed is such that it has or may lead to severe consequences for the damaged party, the offender will be sentenced to 3 months to 3 years in prison.

Fines were totally left out as punishment and the injunction moves directly to prison sentence. After the new changes, now there is a fine of 2,000 euros, but the 200 day prison sentence remains.

The body of the text in this article still remains vague - what exactly is meant by "severe consequences"? Is it possible that some journalist, having discovered corruption in the family of a certain politician, can be convicted for causing severe consequences for the family? This paragraph has another huge question mark, the phrase "...has lead or may lead to..." - Who can possibly estimate whether a certain reporter's article may or may not lead to so-called severe consequences?

Journalism and ex officio proceedings

In the current legislation, the journalistic profession is for the first time mentioned in Article 176, in listing those who would not be subject to punishment. Again the vague explanation is:

Article 176
1) Not liable to punishment are those who express opinions about others in works of science, literature or art, in serious reviews, in the line of duty, in the journalistic profession, in political or other similar activities, in defending certain rights or protection of justified interests, if the manner of expression clearly shows that it is not done with the malicious intent of defamation.

The next two paragraphs continue in vague and not fully formulated language. We extract the following: serious reviews, defending rights, protection of justified interest, showing the accuracy of statements...etc., etc., etc. In the recent changes, these parts are left as they were.

While changes and amendments to the criminal law were being prepared, Macedonian journalists were especially interested in removing the articles that indicate possible legal ex officio proceedings. Efforts of the journalist community were partially rewarded, so Paragraph 2 in Article 184 was completely erased:

2) If the acts mentioned in articles 172, 173 and 174 were done to the President of the Republic of Macedonia in regards to his function, prosecution is automatically implied , i.e. there are legal ex officio proceedings.

The only benefit for the journalist community is that now all cases for the criminal acts of defamation and libel must be carried out privately, i.e. there will be no more prosecution in ex officio proceedings.

Domestic legislation and European standards

In the European Convention of Human Rights, Article 10, Paragraph 2, it is said that even in cases when the defendants have been found responsible, solutions will be sought to avoid penalties, which means no prison sentence, but other legal forms of dealing with such cases.

The complex and expensive procedure of changes and amendments to the criminal law will have to be repeated in the near future, because Macedonia will have to synchronize its legislation with Europe . And it is generally known that the criminal law regulations are the basis of all legislation in every country.

For this analysis, an official opinion was requested from the Ministry of Justice. Questions were supplied at their demand, but instead of multiple answers we only got a single one:

“As far as the Ministry is concerned, changes in the Law have been done and it is pointless to discuss this.”

The five questions addressed to the Ministry of Justice were:

1. Why last year, when the changes and amendments to the Criminal Law were being made, did you not use the opportunity to apply the conclusions of the Council of Europe to erase prison sentence for these kinds of cases?

2. In the upcoming period it is exactly these changes that will have to be applied. Don't you think the procedure is too complex and costly to repeat each year?

3. The conclusions were reiterated at a local conference in Ohrid on 27-28 November 2003. Working on it were experts from the Ministry of Justice, the Faculty of Law (Vlado Kambovski, Dragi Celevski, Aleksandar Prcevski…) and most of them agreed that defamation and libel should no longer be listed as criminal acts. Why has this been ignored?

4. What was the motive and reasons to retain prison sentence in Articles 172 to 175?

5. Do you think there are better legal solutions than the present ones to simultaneously shield journalists from any possible outside pressure and adequately punish criminal acts?

Macedonian cases
I AM THE AUTHOR OF THE NEWS – NO, YOU ARE NOT

There are several typical cases in which journalists were prosecuted, brought to trial and convicted of defamation and libel, even when very tangible evidence was supplied to the court of their innocence. The inconsistencies of such cases stem from inadequate legal solutions mentioned earlier in this article.

Antonovski vs. General Jovan Andreevski

This story happened during the military conflict in Macedonia in 2001. Dragan Antonovski, who was at the time editor and news anchor for A1 Television, announces the following information during prime time news:

“A1 Television has information from sources in the Security Council of President Boris Trajkovski that there is a mole in the ranks of Macedonian security forces, i.e. that information on Macedonian military and police movements is leaking through a certain General Griffiths of MPRI (US organization of retired officers), who is working on reform of the Macedonian Army according to NATO standards, and who has previously conducted training for UCK fighters. At a Security Council meeting, the name of Macedonian Chief of General Staff Jovan Andreevski came up as the one who had been maintaining contact with General Griffiths.”

In the following news, the disclaimer of the Ministry of Defense was announced. Several days later, the Public Prosecutor's office conducted a procedure against Dragan Antonovski.

The information announced stirred major interest in the general public, as well as political and security circles. The timing was more than sensitive, since the military conflict was gaining in intensity. General Andreevski soon resigned from his position and became advisor for security issues in the Cabinet of the Supreme Commander of the Macedonian armed forces, then President Boris Trajkovski.

Three years after the incident, Dragan Antonovski says, “It is a fact that the General was made to resign, then made advisor to the President, and then on demand by other generals in the armed forces he was sent into retirement. ”

The trial was conducted at the General Court in Skopje .

“The Court did not ask for the source of information. We demanded as witnesses members of the Security Council and the President, but the Court rejected the move, with the explanation that the Presidential Cabinet had already given a public statement”, said Antonovski.

Called to the stand as a witness also was Aco Kabranov, Editor-in-Chief of A1 TV, who confirmed himself as the author of the announced information about the “alleged spying of General Andreevski”. Kabranov even took full responsibility, stating as a witness that even if Antonovski had not wanted to read the news, he was obliged to do it, since he was ordered to by himself, who at the time was above Antonovski in the management.

Antonovski considers himself clean, both as a journalist and legally – “I announced something that had been spoken about by the Security Council. I thought it was enough that one was clean, that justice would prevail. I didn't realize the difference between justice and law, which is about a play of articles, not about whether someone is guilty or not. Although I am not positive if the General is directly involved, I know I am not.”

Despite the testimony by Kabranov, Antonovski was nevertheless found guilty by the court, and fined with a sum of 100,000 denars (1,600 euros), which, if he fails to pay, he will have to go to prison for 100 days. The legal procedure against Antonovski was conducted ex officio.

As for the sentence, Antonovski says: “I definitely am not paying the fine, and if I have to, I will go to jail for three months in protest.”

Kramarska vs. Chairman of Parliament

This also happened during the 2001 conflict. After the signing of the Interim Agreement that ended military actions, there was the process of its implementing in the Macedonian Parliament. Stojan Andov, then Chairman, was purposely delaying the process with the intent of getting constitutional changes outside the Ohrid Agreement. Andov used his position as Chairman of Parliament and did not schedule parliamentary sessions, demanding from NATO that they finalize the disarmament plan of ONA within schedule.

After a while the tactics of Stojan Andov actually started to show results. With the support of government representatives, he succeeded in convincing the international community to add some changes to the Macedonian Constitution.

Of his decisions, then Secretary General of NATO George Robertson says in an interview with the daily Dnevnik that he did not expect a man of such reputation not to be true to his word:

“He (Andov) promised me there would be a session of Parliament three days after the disarmament was completed, but here we are, 20 days, and he hasn't kept the promise.”

“The Macedonian people do not deserve to put their reputation in the hands of such individuals.”

This declaration by Robertson, differently formulated, was published a few days later in the commentaries of the reporter Sonja Kramarska of the daily Utrinski Vesnik in a column published on October 20, 2001 , reporting information after a briefing with the Chairman of Parliament. Andov had talked at the briefing to the reporters about the fall-out between him and Robertson at their meeting, but according to Andov, it was Robertson who accepted responsibility for not implementing full disarmament within schedule. Consequently, Kramarska comments:

“So Andov is really a hero, not as we heard in the interview with Robertson, an unprincipled liar.”

The defense for Kramarska did not manage to prove her innocence in the trial. She was found guilty and fined 20,000 denars (350 euros), or if she fails to pay, there will be a prison sentence at the rate of 1,000 denars per day, or 20 days. Kramarska has not backed away from the process and is announcing a complaint against the state of Macedonia in Strasbourg .

“I'm waiting for the Supreme Court decision, and if it confirms the verdict, I will be able to lodge a complaint at the Human Rights Court in Strasbourg , for violation of the Human Rights and Freedoms Convention, that Macedonia also signed, which implies the right to free distribution of information” , said Kramarska.

Attorney-at-law Stevan Pavlovski says that the legal process against Sonja Kramarska had started by ex officio proceeding, i.e. the Prosecutor's office had initiated the process, but that later on Stojan Andov proceeded with the lawsuit on a private basis.

Reporters behind bars

Zoran Bozinovski, a reporter from Kumanovo, is so far the only journalist that has endured prison for his writing. As for legal actions, Bozinovski is a kind of record holder in Macedonian journalism. Right now he has 73 lawsuits against him on charges of defamation and libel.

In one of these proceedings, the General Court of Kumanovo last year sentenced Bozinovski to prison for failing to reply to a subpoena to appear in court, and the court issued the sentence in his absence. The reporter Zoran Bozinovski was arrested by the Macedonian police and did seven days in Skopje prison.

“I slept in the prison for seven days along with hardened criminals, in the same conditions as they. But I remained true to my vocation and I turned this experience into a great story”, said Bozinovski.

The legal action that took him to prison has not been terminated yet.

Other legislative matters
JOURNALISTIC SELF-CRITICISM: BEING PROFESSIONAL

The aforementioned examples illustrate more than clearly how current criminal law can be (mis)used against journalists.

Journalists want to be exempt from such liability for criminal offenses in order to be protected from possible misuse and pressure in their work. Their argument is that mechanisms of self-regulation will be reinforced if this happens. The government, however, rejects the argument, being of the opinion that defamation and libel are not solely matters of journalistic practice.

For proper following of the journalistic code, the Association of Macedonian Journalists has established a body called “The Council of Honor”. The actions of its members are no more but public censure when journalistic ethics is violated. Still, the question remains as to the results of such practice, since journalists that break the code simply ignore the opinions of the Council of Honor. It is supposed that this kind of attitude is due to the partly damaged credibility of the journalistic organization.

There is no increase in fear or caution in the work of Macedonian journalists regarding legal treatment of defamation and libel. On the contrary, there are clear indicators in the print media that professional conduct has improved, and thereby protection from possible legal action as well. Though electronic media show some stunted development, there is no indication of self-restriction caused by rigid laws.

Apart from that, in recent years there has been an evident emerging of the media as mediators between popular opinion and information sources (politicians, government, institutions etc.). The media are also more successful in controlling the people in power. With some of the publicized affairs, it remains unclear whether the media are authentic researchers of the stories or if we are again talking ready-made information and common misuse of the insatiable appetite of journalists for exclusive information.

The ensuing conclusion is that the Macedonian media have full freedom of speech and expression, though some legal injunctions can limit these to an extent. But unless journalists themselves reinforce their self-regulation by improving professional conduct and constantly upgrading their education, they can relatively easily enter legal pitfalls.

Mile Bosnjakovski
is training coordinator at the Macedonian Institute for Media