Analysis of the judgment Kostova and Apostolov v. North Republic of Macedonia

Introduction

The case of Kostova and Apostolov v. North Macedonia[1], refers to the domestic civil defamation case against the applicants, for which the European Court of Human Rights found a violation of the freedom of expression (Article 10 of the Convention). The case dates back to 2013 and is significant for the Republic of North Macedonia because it reflects the social conditions that prevailed in that period and socio-political circumstances and which were reflected in the legal proceedings of this, but also on other cases of a similar legal nature according to this Article of the Convention. Also, the established principles and doctrine of the ECHR were directly applied in the case in relation to the resolution of cases relating to journalists and the question of weighing defamation and the potential violation of freedom of expression in given specific circumstances.
Basic information and circumstances of the case
The subject refers to two texts published on January 3 and 4, 2013 in the weekly "Focus", which referred to Mr. S - a person who at that time was a powerful political figure in the then ruling party and also the director of the Security and Counterintelligence Administration. The texts, titled "I ran away due to pressure from (Mr. S)" and "Embassy in the Czech Republic under threat of bombs - (MIA) does not lift a finger", quote Mr. I, former ambassador to the Czech Republic of the Republic of North Macedonia, who among other things stated that Mr. S abused his power through actions that adversely affected the personal interests of Mr. I, which were of a family nature. In his statement, Mr. I stated that Mr. S exerted verbal pressure on the then President of the State (G.I.) and the Minister of Foreign Affairs (N.P.) to refrain from interfering in the resolution of Mr. I's personal issue, - which, according to Mr. I, was immanent, considering that during that period he was performing the duty of ambassador of RNM in the Czech Republic. Mr. I sent the published information to the media via e-mail, for which a written statement was signed. In the second text, it was further stated that Mr. S "unofficially" owned a "business empire in the Czech Republic". Regarding the legal issue related to Article 10, it is important to point out that the published texts used indirect speech and quotation when citing the statements of Mr.I.

A civil defamation case initiated by Mr. S followed, where the Basic Court in Skopje and the Court of Appeal determined that the applicants caused damage to Mr. S because they stated untrue facts, i.e. "rumors", without previously confirming their reliability. The courts judged that the published information did not serve the public interest and that Mr. I's personal life was unreasonably connected with the public function of Mr. S. The applicants-journalists had to pay 5.000 euros the first and 1.000 euros the second applicant for non-material damage to Mr. S, which amount and other expenses were paid by the solidarity fund of the Association of Journalists. In the same defamation case, Mr. I had to pay 10.570 euros for damaging the reputation of Mr. S. Later, the Constitutional Court confirmed the court decisions.
The essence of the application submitted to the ECHR is that the decisions of the domestic courts represented unjustified interference in the exercise of the rights of the applicants in relation to Article 10 of the Convention (freedom of expression).

Summary of the judgment of the ECHR

The ECHR considered the applicants' complaints admissible. It was then ascertained that the contested court decisions represented an interference with the applicants' right to freedom of expression, which was provided for by the Law on Civil Liability for Insult and Defamation, and that they aimed as a single "legitimate goal" to protect the rights and reputation of Mr. S. However, the ECHR, further, taking into account the basic principles established in relation to Article 10 of the Convention, determined in some leading cases[2] and which are regularly applied in the approach to this type of cases, found a violation of the freedom of expression of the applicants.
Although the dominant focus on the problem of Mr. I's personal nature is evident in the texts, issues of public interest are also touched upon, such as the alleged verbal pressure by Mr. S, who was a powerful person at the time (Director of SCA), on also high officials, the President and the Minister of Foreign Affairs of the respondent state. The Court considers such an alleged situation to be relevant in the function of public debate, given that it represents an abuse of power by a high-ranking state official.
There is agreement on the part of the Court that the disputed texts contained descriptions of facts that are subject to proof, since they were based on "rumors". However, in relation to the applicants, it was established that the domestic courts did not take into account that the information did not come from the applicants who actually only reported on what was stated by Mr. I through his written statement based on his own experience[3]. It was submitted that the applicants used indirect speech or quotations in the texts and clearly indicated the personal statements of Mr. I.
The ECHR's assessment is that the legitimate interest of Mr. S could have been protected through defamation proceedings directly against Mr. I, which was done. The accuracy of the very content of the text in the domestic procedure was not finally determined, while the allegation of the existence of a "business empire" is based on information received from an anonymous source. In addition, the Court took into account that there was an attempt by one of the applicants to confirm this information through the official spokesperson of the Administration. In the Verdict, it was established that the Government did not point to any aspect of Mr. S's personal life that would indicate that his reputation and honor were seriously damaged by these texts.
Regarding the awarded amount that the applicants had to pay (fifteen or three minimum monthly salaries), regardless of the fact that they were not paid later, the ECHR found that they had a "deterrence effect" which "discourages the open discussion of topics of public importance".
Significance of the judgment for domestic jurisprudence
The specificity of the Kostova and Apostolov case against the Republic of North Macedonia is that it represents one of a series of similar legal nature in our country, which appeared more frequently in a specific period of time[4]. Considering that in a certain number of domestic cases of this type that ended up before the ECHR, it was ruled that a violation of Article 10 of the Convention had been committed, the impression is that the plaintiffs-initiators of the proceedings in the state aimed to achieve a "chilling effect" i.e. "deterrent effect' in relation to the enjoyment of freedom of expression. In principle, the Court itself in numerous of its decisions has emphasized the harmfulness of this phenomenon for democratic processes, as well as the negative impact that this effect could cause in any society in limiting public debate, disseminating information and encouraging discussions from the perspective of issues of general public interest for which there is a need to share thoughts and attitudes in the public discourse. For this case, the Court sat and decided in a three-member Council, which also indicates that the decision was made routinely, based on a long-established judicial practice.
The concrete effect that this and other similar judgments would be expected to achieve is the continued application of the doctrine and principles of the ECHR in relation to Article 10 of the Convention in the domestic court judgments in relation to defamation and/or insult cases. It is the positive obligation of the state to arrange and protect this right, primarily within the framework of the legal provisions and measures it carries and subsequently ensure this through court decisions. In the balanced weighing of legal issues in the courts, the following relevant factors should be taken into account when deciding: what is the nature and scope of the limitation of the right to expression in the specific case; what is the essential aspect of this right which is considered in the specific case, which should be protected; whether it is a question/information of public interest and whether it has the capacity to contribute to the public debate; what is the weight of the compensation rights (the nature and severity of the sanction) according to the perpetrators of the action, etc. The balanced judicial assessment should also take into account: how publicly known is the person who was the subject of information, that is, whether his role or function is recognizable and what is the nature of the activities that were the subject of the notification; what was the previous behavior of the person concerned; what are the circumstances to which the information relates; what is the content and form of the information; and what are the consequences of the publication. It is also very important to differentiate the facts, which could be proven or at least there should be an attempt to prove them, as opposed to the expressed value judgments, opinions or assessments that are due to the personal opinion or perception of the person or journalist who expresses them. The way in which the information is conveyed to the public is also important.
Freedom of expression is a right that according to the Convention is qualified by its nature and its possible limitations are listed in paragraph 2 of Article 10. However, due to the value that this right brings in ensuring healthy democratic processes in the community, in the practice of the Court, the margin of respect is very small, that is, the protection of this right is almost absolute. In this sense, critical reviews of the work of politicians and politics in general are encouraged, in order to develop critical thought and a culture of reasoned debate and to have tolerance for a greater dose of criticism, as the Court states - "The authorities should be exposed to criticism not only by the legislative and judicial authorities but also by the general public and the media".
The case Kostova and Apostolov v. Republic of North Macedonia also touches on the social role that the media should have as a "watch dog" or " public supervisor" - a critic of the social interest, as well as public transmission of information and opening of topics related to that interest. Journalists must not be discouraged in the performance of their work and should freely report and present matters of public interest to the public, which has the right to receive them. But that privileged status also mandates the application of professional standards and ethical behavior in their work, which if applied, journalists would be protected in their work in light of Article 10 of the Convention.
The foreseen possible violation of the "reputation or rights of others", imposes obligations and responsibilities on journalists, so in such cases an assessment of the balance is made between the protection of journalistic freedom, versus professional and ethical reporting. Journalists should ensure that the information they disseminate to the public is verified, accurate and reliable, that is, to assess the possibility that the media could reasonably and with a high degree of probability consider that its source of information was reliable in relation to the defamation[5]. The way the information is transmitted by the media is also a significant factor in the outcome of cases of this type[6]. In the specific case, it is of crucial importance that the journalists correctly and impartially conveyed the received information in the form of quotations, based on their prior confirmation by Mr. I.
Finally, in the case of Kostova and Apostolov, the Court's concluding statement is important that the journalists "acted with the care expected of responsible journalists who report on a matter of public interest and cannot be criticized for failing to establish the truth of the disputed allegations". In relation to additional established doctrine and standards for Article 10 of the Convention, a review of other key cases from the ECHR's practice is recommended[7].



[1] (Application No. 38549/16) dated April 5, 2022
[2]https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22axel%20springer%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-109034%22]}
https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22bjork%20eidsdottir%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-112091%22]} 
[3] And for this position of the ECHR there are mutatis mutandis examples from the established judicial practice.
[4] Cases that had their conclusion before the ECHR and arose during that period: Gelevski v. RM is from 2009-2012, Makraduli v. RM is from 2011-2013, Selmani v. RM is from 2012-2014, as well as Kostova/Apostolov vs. RNM is from 2013.
[5] https://hudoc.echr.coe.int/#{%22fulltext%22:[%22pedersen%22],%22article%22:[%2210%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-67818%22]}

[6] https://hudoc.echr.coe.int/#{%22fulltext%22:[%22tromso%22],%22languageisocode%22:[%22ENG%22],%22article%22:[%2210%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58369%22]}

[7] Pentikainen v. Finland, Habet v. Luxembourg, Guja v. Moldova, Morice v. France, Baka v. Hungary, Kyprianou v. Cyprus, Karacsony and Others v. Hungary, etc.