I incorrectly predicted that there's no violation of human rights in SELMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA".

Information

• Judgment date: 2017-02-09
• Communication date: 2015-09-09
• Application number(s): 67259/14
• Country:   MKD
• Relevant ECHR article(s): 6, 6-1, 10, 10-1
• Conclusion:
  Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage)
  Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings
  Article 6-1 - Public hearing)
  Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression
  Freedom to impart information)
  Non-pecuniary damage - award (Article 41 - Just satisfaction)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.591568
• Prediction: No violation

• Inconsistent

Communication text used for prediction

A list of the applicants is set out in the appendix.
All the applicants are Macedonian nationals.
They are represented by Mr F. Medarski, a lawyer practicing in Skopje, the former Yugoslav Republic of Macedonia.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
1.
Events in the national parliament on 24 December 2012 The applicants were accredited journalists who were authorised to report from the national parliament.
On 24 December 2012, members of parliament (“the MPs”) were discussing the Budget Act for 2013.
The applicants, together with other journalists, were reporting from the Parliament gallery, which was physically separated from the main chamber where the MPs were seated.
The approval of the State budget for 2013 had attracted huge public and media attention, owing to the conflict between opposition and ruling party MPs as to whether or not statutory procedure had been complied with.
During the session, opposition MPs approached the seat of the President of the Parliament (“the President”) and started creating noise by, inter alia, slapping his table.
Soon after they started to do this, Parliament security officers entered the chamber, along with other unidentified persons.
They pulled the President out of the chamber and started forcibly removing the opposition MPs.
At the same time, other security officers entered the gallery and started removing the applicants and other journalists from it, without giving any reasons for their actions.
The applicants refused to leave, as the situation in the chamber was escalating and they felt that the public had the right to be kept informed as to what was going on.
However, they were forcibly thrown out.
2.
Subsequent events On 26 December 2012 the Association of Journalists (represented by its president, the first applicant) sent a letter to the Department for Control and Professional Standards (“the DCPS”) within the Ministry of the Interior, claiming that the forcible removal of the journalists from the gallery on 24 December 2012 had violated their rights under Article 10 of the Convention.
In the letter, the journalists pushed for proceedings to be brought against those responsible for authorising and carrying out their removal from the gallery.
They also sent letters to that effect to the President and the Ombudsman.
In a letter dated 6 January 2013, the DCPS replied that a group of MPs had surrounded the President during the incident of 24 December 2012, and had attempted to physically confront him.
They had also insulted and threatened him, whilst at the same time demolishing technical equipment.
Owing to the security risk, the President had been removed to a place of safety.
However, the disturbance in the chamber had continued.
In the circumstances, the President had requested, under section 43 of the Parliament Act (“the Act” – see “Relevant domestic law” below), that the Parliament’s security forces restore order so that the discussions could continue.
Journalists had been asked to leave the gallery until order was restored.
At that time, “an MP who had been involved in the disturbance and other people who could have disturbed the journalists’ work had been present” in the gallery.
In the meantime, there had also been signs that the situation was going to escalate, given the ongoing protests in front of the Parliament building.
For this reason, the journalists had been asked to leave the gallery and to continue following the events from the press centre.
Some journalists had complied with that request and others, including the applicants, had opposed it and actively resisted.
As a result, a police officer had sustained an injury to his leg.
The DCPS concluded that the police powers employed had not gone beyond the limit of what was acceptable, and that no excessive force had been used.
In a letter also dated 6 January 2013, the President confirmed that, under section 43 of the Act, he had requested Parliament security to intervene and restore order.
In assessing the risk, the security personnel had considered that the gallery (which was part of the chamber) should be vacated, in order to avoid an incident on a larger scale.
The Ombudsman reiterated his concerns about the incident in which journalists had been removed from the gallery.
He stated that journalists should not be prevented from carrying out their professional duties, and should be given free access to information so that they could objectively inform the public.
With regard to the incident, the Ombudsman had contacted the Ministry of the Interior, asking it to take all necessary measures in order to establish where the blame lay.
Given the Ministry’s reply (which, apparently, was the same as the DCPS’s letter) and the fact that the intervention had been requested by the President under section 43 of the Act, the Ombudsman stated that he had no further jurisdiction.
3.
Proceedings before the Constitutional Court The applicants lodged a constitutional complaint with the Constitutional Court in which they alleged a violation of their rights under Article 10 of the Convention.
They submitted that the intervention of Parliament security and their removal from the gallery had not been “lawful” and “necessary in a democratic society”.
With regard to the lawfulness of the measures taken, they argued that section 43 of the Act could not be interpreted as allowing the forcible removal of journalists from the gallery by Parliament security.
In any event, that provision had not been sufficiently foreseeable.
As to the necessity of the measures, they argued that, at the critical time, they had been in the gallery and had had no contact with the President or the MPs.
Accordingly, they had not and could not have contributed to the disturbance in the chamber.
Furthermore, they had contested the arguments raised in the DCPS’s letter of 6 January 2013.
On 16 April 2014 the Constitutional Court dismissed the applicants’ complaint by a majority vote.
That decision was delivered at a hearing held in private, notwithstanding that the court acknowledged the applicants’ request that a public hearing (јавна расправа) be held in accordance with Rule 55 of the Rules of the Constitutional Court (see “Relevant domestic law”).
The court established that, given the intense and fraught discussions between the opposition and ruling party MPs prior to the critical date, there had been increased public interest in Parliament’s debate regarding the approval of the State budget for 2013.
On 24 December 2012, before a plenary session of Parliament had started, a group of MPs had caused a disturbance and had destroyed technical equipment in the chamber.
They had prevented access to the speaker’s podium, had surrounded the President and had prevented him from carrying out his duties, whilst at the same time insulting and threatening him.
Parliament security personnel had taken the President out of the chamber.
Under section 43 of the Act, the President had had the right to order police officers responsible for Parliament security to restore order in the chamber.
The security personnel had considered it necessary to vacate the gallery, in order to ensure the safety of those in the gallery and in the chamber.
Most of the journalists who had been in the gallery at that time had complied with that instruction.
Some of them, including the applicants, had disregarded the instruction and had resisted being removed.
As a result, a police officer had sustained an injury to his leg.
The applicants, after having been removed from the gallery, had remained in the parliament building and had been able to follow the events from another location (the press centre, a room adjacent to the gallery), in which there had been live broadcasting from the chamber.
At the same time, in front of the parliament building, two opposing groups of people had been protesting, and two people had been injured in the protests.
The court established that the plenary session of the parliament of 24 December 2012 had been public and that it had been broadcast live on national television and streamed on the Parliament website.
Later, a video recording of the session had been made available to the public on that website.
The court concluded that the removal of the applicants from the gallery had represented an interference with their freedom of expression, namely with the freedom to carry out their professional duties and to inform the public about events of public interest (such as the approval of the State budget for 2013).
It held that such interference had been based on section 43 of the Act.
As to the necessity of the measure, the court stated that this had to be examined in the light of the events taking place inside and outside the parliament building at the time.
The tense atmosphere had reached a climax when a larger group of MPs had assaulted the President, who had been removed from the chamber by security personnel soon afterwards.
A series of incidents had occurred in which furniture had been demolished and objects had been thrown in the chamber – some in the direction of the gallery.
In such circumstances, Parliament security had considered that, in order to protect the integrity and lives of the journalists in the gallery, the journalists should be moved to a safer place where their lives would not be in danger.
Such an intervention should not be viewed as conflicting with the journalists’ right to attend sessions of Parliament and report on events that they witnessed.
The court held that the journalists – most of them on the same day – had submitted and published their reports in evening editions of their newspapers, which implied that there had been no violation of their freedom of expression.
The actions of the security personnel had constituted standard practice for high-risk situations, such as demonstrations and other potentially dangerous events.
The fact that the journalists had been present in Parliament since that morning, and had been reporting on the events as they occurred, confirmed that they had not been prevented from carrying out their professional duty to inform the public.
There had been no preconceived idea to prevent them from reporting on events occurring in the chamber.
After their removal from the gallery, they could have followed the live broadcast in the press room, on the Parliament website and on the dedicated TV channel.
Accordingly, the court found that the removal of the applicants from the gallery had been effected with the aim of protecting them and ensuring order in the chamber, and not in order to prevent them from carrying out their professional duties or to restrict their freedom of expression.
B.
Relevant domestic law 1.
Constitution of 1991 Article 110(3) of the Constitution provides that the Constitutional Court protects the freedoms and rights of individuals and citizens concerning inter alia the freedom of conviction, conscience, thought and public expression of thought.
2.
Parliament Act Section 43 of the Parliament Act provides that special service officers are responsible for maintaining order in the parliament building and its premises.
The insignia of the Parliament chamber must be clearly displayed on the clothes of the officers.
Authorised public officials cannot enter Parliament’s premises and take measures against MPs or other people without approval by the President of the Parliament.
No one, except a person authorised to keep order in Parliament, is allowed to carry arms.
This provision further entrusts the President of the Parliament and its Secretary General to make decisions and to take appropriate measures in the event of a disturbance in Parliament being caused by MPs or other people.
3.
Rules of the Constitutional Court Rule 55 of the Rules of the Constitutional Court provides that proceedings regarding the protection of human rights and freedoms should, as a rule, be decided by the court at a public hearing.
Parties to the proceedings and the Ombudsman, in addition to other people and representatives of institutions are, if necessary, summoned to attend the hearing.
If they were properly summoned, the public hearing can be held in the absence of the parties to the proceedings or the Ombudsman.
COMPLAINTS The applicants complain under Article 6 of the Convention about the lack of an oral hearing in the proceedings before the Constitutional Court.
They also complain of a violation of their rights under Article 10 of the Convention, asserting that their removal from the Parliament gallery was not “lawful” and “necessary in a democratic society”.