Selmani and others v. the Former Yugoslav Republic of Macedonia: Freedom to receive and impart information
Analysis of Biljana Puleska Janusheska on the ECtHRs judgement "Selmani and others v. Republic of Macedonia", (application no. 67259/14).
On 9 February 2017, the European Court of Human Rights handed down
an important judgment in Selmani and Others v. The Former Yugoslav Republic
of Macedonia (Application
No. 67259/14). Тhe case that considers violation
due to the lack of oral hearing before the Constitutional Court under article 6
and violation of freedom of expression under article 10, related to the
forcible removal of accredited journalists who were authorised to report from
the Parliament gallery from where they had been reporting on the parliamentary
session of 24 December 2012.
The case highlights the fundamental nature of freedom protected
under Article 10 of the Convention as one of the essential foundations of a
democratic society and one of the essential conditions for social progress. The
merits reaffirm the content of freedom of expression conceived as freedom to
hold opinions and to receive and impart information and ideas particularly as
an expression of professional activity, without interference by public
authority. The Court reaffirms that the media have the task of imparting
information on the event, especially those in interest of the public and refers
to its case-law regarding the crucial role of the media in providing
information on the authorities’ handling of public demonstrations and the
containment of disorder. It reiterates that the “watch-dog” role of the media
assumes particular importance in such contexts, since their presence is a
guarantee that the authorities can be held accountable for their
conduct vis-à-vis the demonstrators and the general public and for the
methods used to control or disperse protesters or to preserve public order in policing of large gatherings.
However,
its special importance emerges for the strengthened role of the media
representatives in control of the parliamentary procedures and affirmation
explicit guarantees of the right of the journalist to obtain first-hand and direct
knowledge based on their personal experience of the events as important
elements in the exercise of the applicants’ journalistic functions, which the
public should not have been deprived.
Even more important, the judgment contains clear instructions for the Constitutional courts assessment of the circumstances
sufficient to justify the restrictions to the freedom of expression with the
legitimate interest of ensuring public safety and the prevention of disorder. According to the court findings,
the removal of journalists from the parliamentary gallery constitutes a
violation of the right to freedom of expression under Article 10 of the ECHR.
Facts
The case originated from the events of 24 December 2012
parliamentary proceedings for enactment of the 2013 Budget Law. The applicants were accredited
journalists who were authorised to report from the national Parliament and
reporting from the Parliament gallery, which was situated above the plenary
hall where members of parliament (MPs) were seated. The debate on the approval of the law on the state budget attracted
considerable attention in the public and the media, due to the conflict between
the opposition parties and the ruling party's MPs regarding the legality of the
law adoption procedure. The opposition MPs' protests resulted in an
intervention of parliamentary security officers and forcibly removing
opposition MPs from the plenary hall and forcibly removing the applicants and
other journalists from the parliamentary gallery.
Subsequently, the Constitutional Court of Macedonia dismissed the constitutional complaint from journalists that their
removal violated the right to freedom of expression. In its decision, the Constitutional Court found that
the President of the Assembly has the authority under Article 43 of the Law on
the Assembly and the Assembly Rules of Procedure to instruct the police
officers in charge of security to establish order in the plenary hall
and to create conditions for the commencement of the session. The
Constitutional Court concluded that there were justified reasons that the
parliamentary security office estimated that for the safety of those present
in the gallery and those who were in the hall the parliamentary gallery needed
to be emptied. All, including the applicants, were asked to leave the gallery
for security reasons and were allowed
to follow the events in the parliamentary chamber via a live broadcast in the
Parliament’s press room and the adjacent hall.
The
Constitutional Court considered that the removal of journalists from the
gallery amounted to an interference with their freedom to carry out their
professional duties uninterrupted and to inform the public about events that
were of considerable interest for the citizens of the Republic of Macedonia on
the events in Parliament regarding the approval of the State budget for 2013,
in which the public had significant interest in following and being нinformed about. However, the Constitutional Court assessed that the disputed measure-
forcible removal for the gallery- was necessary and in order to protect the
journalists in the gallery, by being moved to a safer place where they would not be in danger, and
at the same time it constitute standard practice for these and similar situations
in case of endangerment, i.e. protection of media representatives while reporting
from places of crises, demonstrations and other potentially dangerous events.
For the Constitutional Court, The fact that
the journalists had been present within and outside the Parliament building
since the morning of 24 December 2012, and were reporting on the events as they
occurred, confirms that, indicates that there was no preconceived idea to prevent
the journalists from reporting on the session.
The
Constitutional Court also noted that the fact that the journalists – most of
them on the same day – submitted and published their reports in the evening
editions of their newspapers, which implies that there was no violation of their
freedom of expression After they left the gallery, the applicants and other
media representatives were allowed to remain in the parliamentary press centre
from where they could have followed the live broadcast on the Parliament website
and on the dedicated TV channel and therefore considered that not prevented from carrying out their professional duties. The Constitutional court assessed that interference was necessary because of
“potentially dangerous events” that threatened the safety of those in the
gallery and in the chamber and therefore, the disputed
measure should not be viewed as conflicting with the journalists’ right to
attend parliamentary proceedings and report on events that they witnessed. Therefore,
in my opinion the constitutional court missed a historical chance to verify one
apparent obstruction of the freedom of expression and refuses to take a stand
as to how to balance competing interests and legitimate public concerns. Following this decision, six
journalists submitted an application to the European Court on the grounds of
violation of their rights under Article 10 of the Convention.
Judgment and comments
The
Court assessed that the applicants’ removal from the Parliament gallery from
where they were reporting on the parliamentary proceedings and the subsequent
incidents in the chamber amounted to interference with their right to freedom
of expression under the first paragraph of Article 10 of the Convention.
The
judgment therefore may be counted in the majority of cases of violation of the
rights under Article 10. The right to freedom of expression is also most
commonly understood as applying to the right to impart information and ideas,
i.e. to express oneself. But the guarantee under Article 10 also includes the
right to receive information and ideas without interference
by public authority and regardless of frontiers. It is important to note that the
Court’s assessed that one of the main feature of the right the receive information and
ideas without interference by public authority is to be “effectively able to view” the conduct of
the security service regarding “issue of
legitimate public concern”. Furthermore, the reallocation and prevention of
the media representative from obtaining first-hand and direct knowledge based
on their personal experience of the events may be considered as interference by
public authority in practicing their freedom of expression.
For
the Court and for the parties there is a common view that the removal of
journalists from the parliamentary gallery is a violation of the негативе obligation of the state- not to interfere the enjoyment of the
right. Consequently, the Court examined whether the interference was legal and
in conformity with the Convention. As stated in paragraph 2 of Article 10, the
exercise of the freedom may be subject to certain formalities, conditions,
restrictions and sanctions only if cumulatively fulfils the following conditions:
- to
be prescribed by law,
- aims
towards the achievement of a legitimate aim (national security, territorial
integrity and public safety, order protection and the prevention of disorder
and crime, the protection of health or morals, the reputation or rights of
others, to prevent the dissemination of confidential information or to preserve
the authority and impartiality of the judiciary),
-
the character of "necessary in a democratic society".
It
was disputed between the parties whether such interference was "prescribed
by law" for one or more legitimate purposes within the meaning of
paragraph 2 of Article 10, and whether it was "necessary in a democratic
society", in particular, what the state was allowed to and to scope in
which could impose restrictions on the enjoyment of the rights guaranteed by
Article 10 of the Convention.
In
assessing whether the interference was "prescribed by law", the Court
departs from its established practice and requires that the disputed measure
not only to complies with domestic law, that is, have a legal basis in the
domestic legislation, but also indicates the nature of that legal basis – which
is necessarily "available" and "predictable". According to
the established case-law of the Court, the rule is "predictable" if
it is formulated with sufficient precision to enable each individual to align
his/hers behaviour. In the present case, the Court noted that in its decision
of 16 April 2014 the Constitutional Court established the legal basis for the
removal of journalists from the parliamentary gallery (Article 43 of the Law on
the Assembly and Articles 91-94 of the Rules of Procedure of the Assembly).
According to the legal basis, the President of the Assembly was responsible for
maintaining the order during the parliamentary sessions and ordered the special
security service of the Assembly to take measures to restore the order. These
provisions applied to all participants at the session, which, according to the
interpretation of the Constitutional Court, included journalists in the
gallery.However, considering that the interpretation and application of domestic law is a
primary duty of the authorities, especially the courts, it is not clear why the Court accepted the extensive interpretation of the
national (Constitutional) court the provision in the Rules of Procedure, therefore, classifying the representatives of the media as "session participant", for the purpose of applying the the provisions for
maintaining the order of the session of the Assembly. As
noted, the
applicants were passive bystanders who were simply doing their work and
observing the events. Even more, the court even though
concludes that “although
the said legal basis did not contain explicit provisions entitling security
officers to remove accredited journalists from the Parliament gallery”,
accepting the national court interpretation and unjustly concludes that “it is not unreasonable that such a power was inherent in the
orderly functioning of Parliament” resulting in
assessment that the
interference was “prescribed by law”. Taking into
consideration all circumstances, it is odd that the Court “sees no
indication that the findings of the Constitutional Court were arbitrary or
manifestly unreasonable”. In my opinion the Court failed to see the
Constitutional Court manifestly violated the right of fair trial according to the Article 6 of the European
Convention on Human Rights.
The court also found that the interference had a legitimate
purpose - the maintenance of public safety and the prevention of disturbance of
order.
In assessing whether the interference was "necessary in a
democratic society", the Court, confirming already established legal
principles, considers that the Government failed to establish convincingly that
the applicants’removal from the gallery was necessary in a democratic society
and met the requirement of “pressing social need”. While the reasons provided
by the Constitutional Court were relevant, they cannot be regarded, in the
circumstances, as sufficient to justify the applicants’ removal from the
gallery. As provided for in Article
10, freedom is subject to exceptions, which must be strictly formulated, and
the need for any restriction must be determined convincingly. Namely, the
adjective "necessary" within the meaning of Article 10, paragraph 2,
in accordance with the established practice of the court, implies the existence
of an "pressing social need." The Contracting States have a certain
margin of appreciation in assessing whether such a need exists, subject to
European supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether
a restriction is reconcilable with freedom of expression as protected by Article 10.
In
the present case, the Court considers that any attempt to remove journalists
from the place of unrest must be subject to strict scrutiny, and the reasons
for the removal of journalists from the gallery under the circumstances are not
sufficient to justify the impugned measure.
Namely,
the Court accepted that under tense atmosphere and disturbed order, the
President of the Assembly ordered the security to take measures in order to
establish the order and ensure normal work of the Assembly. In this context,
the Court concludes that the authority has the right to react when MPs engage
in disturbance of order, hindering the normal functioning of the parliament,
that is to say, the disturbance of order in the plenary hall and the and the
way in which the authorities handled it were matters of legitimate public
interest. In assessing whether removal of the journalists from the gallery by
the Parliament security service was necessary, the Court took into account that
the interests to be measured in the present case were both public in nature - the
interest of the security service to maintain order in the Assembly and ensuring
public safety, as well as public interest in receiving information on a matter
of general interest. However, the Court was not assured that the domestic
authorities have applied the standards in line with the principles contained in
Article 10 and are not based on an acceptable, reasonable assessment of the
relevant facts.
Finally, the Court set out benchmarks
guiding the assessment whether the interference in a individual right, viewed
as a whole, was supported by relevant and sufficient reasons and whether it was
proportionate to the legitimate aims pursued. In that sense, the
Court finds relevant:
- whether the factual situation is accurately and completely determined;
- whether there was nevertheless a possibility for realization of the right despite the interference, and
- whether the victims with their behavior contributed to the interference.
Regarding
the determination of the facts and whether the applicants' removal was based on
a reasonable assessment of the facts, the Court did not establish evidence that
the disturbance of the order in the plenary hall was violent and that anyone in
a hall or elsewhere, had sustained an injury as a result of that disturbance.
The latter was presented as the main reason for the impugned measure. The Court
did not establish the existence of a factual basis upon which the
Constitutional Court reaches a conclusion that the forcible removal was justified. Namely, the Court found no fact as to whether and to
what extent the protests that had taken place outside the Parliament building
would compromise the security of those inside the building, including the
applicants. Moreover, journalists were removed from the Parliament's gallery,
not from the building, regardless of the alleged threat to "security in
the Assembly".
Regarding
the issue whether the applicants were able to report on the incident in the
Parliament, despite the reallocation, the Court's opinion is that the applicants
were not been effectively able to view the ongoing foreseeable removal of
opposition MPs by the Parliamentary security service which was an issue of
legitimate public concern. Furthermore, the applicants' removal covered
immediate adverse effects and prevented the journalists from obtaining
first-hand and direct knowledge based on their personal experience of the
events unfolding in the chamber, and thus the unlimited context in which the
authorities were handling them. These were important elements in the
performance of the journalistic function of the applicants, from which the
public should not be deprived, and,
Finally
on the applicants' conduct, the Court found that during the disturbance of
order in the hall, the applicants were passive observers who simply did their
job and followed the events. They neither contributed nor participated in the disturbance.
Accordingly, they did not pose any threat to public safety, order in the hall
or anything else. Furthermore, the Court stated that the removal of journalists
was in order to protect the "integrity and life" of journalists and
was not the response to their resistance to the command.
Impact of the judgement in the national legal system
This
judgment broadens the content of freedom of expression. In addition to task of
imparting information on the event and disseminating information in the public
interest, media have crucial role in providing information on the authorities’
handling of public demonstrations and the containment of disorder and in
controlling the procedures in the parliament. Its special importance emerges
for the affirmation of additional contents of the rights of expression
strengthened with explicit guarantees of the media representatives to obtain
free without interference first-hand and direct knowledge based on their
personal experience of the events as important elements in the exercise of
freedom of expression of the journalistic functions.
This
judgment will lead to the application of general measures in the national legal
system aimed to effectively overcome the legal gaps identified and in case of
existence of a legal framework- its proper application. It will also lead to
harmonization of the domestic regulation with the standards and obligations in
accordance with the rationale and the directions of the ECRH in its ruling.
This in particular affects the Law on the Assembly and the Rules of Procedure
of the Assembly requiring their amendment to include the obligation of the
state to prevent future similar violations of the freedom of expression through
arbitrary interference by the authorities, as well as obligations and
guarantees for restraining of the authorities to interfere as well as guarantees
for the media representatives to freely, personally, and directly without
interference to receive information on the parliamentary proceedings.
The
judgment will also affect the practice of the courts. In handling similar
situations in the future, national courts will need to change their practice
and find a solid basis when arguing another alternative in obtaining
information by broadcasting service as an appropriate alternative and make sure
that it will not constitute significant interference with the performance of
journalistic function. Even more important, the judgment contains clear
instructions for the Constitutional courts assessment of the circumstances
sufficient to justify the restrictions to the freedom of expression with the
legitimate interest of ensuring public safety and the prevention of disorder. The
courts will need to establish that the interference is based on the legal
principle of “necessary in a democratic society” which must also be based upon
an acceptable assessment of the relevant facts. The courts must also determine
not only that the state acted reasonably, carefully and in good faith, but that
the restriction was proportionate and justified by relevant and sufficient
reasons. This means that the courts must concentrate upon the necessity of a
given restriction in the context of the interference complained of but gradually
to construct a deeper and more comprehensive democratic needs theory. Equally
important aspect of the judgment calling for adjustment of the courts is the
indication that the procedures related to the protection of freedom of
expression before the Constitutional Court should be public with the
possibility of an oral hearing. The public supervision of judicial protection
should provide public oversight in the application of law and justice.
Recognizing
that the removal of media representatives from parliament may constitute a
violation of the right to freedom of expression, especially when journalists
are passive observers in the conditions of applying physical force by
authorized bodies or other individuals in parliament, the judgment should lead
to correction of the actions of the competent state bodies. As the ruling
suggests, there is no doubt that there is a legal framework for the
intervention of parliamentary security in cases when there is a need to
establish order in the Assembly or to protect the life of lawmakers,
journalists or other persons present in the Assembly Hall. However, in the
actual situation, it was not necessary for the journalists to apply the force
for their removal. Hence, it is important that applicable legislation is
properly applied by those who exercise power.