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24.07.2018

Rumours that state wiretapping led to insider trading were justified, top court says

By Emil Weber

On 19 July 2018 the European Court of Human Rights (ECtHR) backed an opposition politician from the Former Yugoslav Republic of Macedonia (now known as Northern Macedonia) for publicly raising questions over property deals and potential involvement in the sales of state property by the head of the Security and Counter Intelligence Agency.

Jani Makraduli Jani Makraduli (picture: Arno Mikkor (EU2017EE), Informal meeting of environment ministers. Arrivals Jani Makraduli (35103595893), CC BY 2.0)

The head of the agency was also a senior politician in the ruling party at the same time.

The judgement is highly important from the perspective of media as it provides substantial ECtHR opinions on what may (and especially many not) constitute defamation in material used from press conferences.

In December 2007 Jani Makraduli, who at that time was vice-president of the Social Democratic Union of Macedonia (SDSM), in a press conference about the head of intelligence agency’s financial affairs, asked whether the intelligence chief had abused his powers to gain “timely information” that enabled him to make profits by trading in the Macedonian Stock Exchange.

Is there any truth in the rumours, which have become stronger, that police wiretapping equipment is being misused for trading on the Stock Exchange? ...”, he had asked.

The questions were reported by the media, and including statements by the head of the agency dismissing the claim. Makraduli was later convicted and fined by the domestic court in a criminal procedure for defamation; it was argued by the courts that, despite the public interest in the topic and the interrogatory form of the statement, the allegations made were false.

'Should the Academy Award for the most corrupt politician be given to the Prime Minister or his cousins?'

Makraduli was convicted and fined again for another press conference statement in which he had presented the findings of a research exercise conducted by SDMS. The research asserted that the sale of a state-owned building was illegal and benefited people with ties to the Prime Minister. “After the revelation of this megascandal, the biggest dilemma is whether the Academy Award for the most corrupt politician should be given to the Prime Minister or his cousins? To those who created or to those who carried out the deal?”, Makraduli had said.

The criminal charges were brought by the same official (the head of the intelligence agency) and politician of the ruling party. The domestic court held that the allegations had implicated the head of the agency as Makraduli had previously referred to him as “the Prime Minister’s cousin”. However, it said that it was not substantiated with evidence that the head of agency was involved in the sale - either in an official or a private capacity.

The ECtHR has unanimously ruled that the interference by the domestic courts was disproportionate to the aim protecting the plaintiff’s reputation and not necessary in a democratic society. Therefore, they violated article 10 of the European Convention on freedom of expression. It ordered FYROM, now known as Northern Macedonia to pay to Makraduli 1,500 EUR in non-pecuniary damages, and 1,020 EUR to his lawyer.

High level of protection of political speech

The top European court underlined the status of the politician for both persons involved. It said Makraduli made the statements on behalf of the party and in a political context, and that he was also a member of the Parliament. This was noted only by the domestic constitutional court. “It has been the Court’s constant approach to require very strong reasons for justifying restrictions on political speech”, the ruling reads. “The high level of protection of political speech […] applies in particular to elected representatives”.

The court also said that the plaintiff was treated during the domestic proceedings solely as a state official, namely as the head of intelligence agency, but he was also a senior official of the ruling party. “The unusual situation of the plaintiff simultaneously combining the political and the public official elements in one person required, in the Court’s opinion, a high degree of tolerance to public criticism and restraint in resorting to criminal proceedings, particularly if other means were available for replying to unjustified attacks and criticisms of his adversaries”, the court said.

The ECtHR further challenged the requirement of the domestic courts that Makraduli had to demonstrate the truth of his statements. It said that as Makraduli was “clearly involved in a public debate on an important issue” he “should not be required to fulfil a more demanding standard than that of due diligence”. “In such circumstances, the obligation to prove the factual statements may deprive the applicant of the protection afforded by Article 10”, the ruling read.

The court was not of the opinion that Makraduli’s statements had no factual basis anyway, starting from this question (remark) on stock exchange gains. “That question, as described in the media coverage, was related to [plaintiff’s’] belated declaration of his assets, in which he had reported his possession of shares worth 300,000 EUR”, it said.

A general interest for public debate

In relation to Makraduli’s question on the possibility of police’s involvement in stock exchange wiretapping, the Court said it places significance importance on the wording used. “He merely put the matters that were of general interest for public debate...”, the ruling read. “To the extent the applicant was required to establish the truth of his statement, he was, in the Court’s opinion, faced with an unreasonable, if not impossible, task”.

According to ECtHR it cannot also be said either that the statement on the sale of public property “was given frivolously without any prior efforts by the applicant being made in order to shed light on the circumstances surrounding the public sale in question”.

The court said that the statement followed from SDSM’s research - which was not reviewed by the domestic courts - and the Government had confirmed that the plaintiff was close to a company that had a business relationship with the winning company on the sale.

“[Makraduli] further asked who was to be held responsible for that ‘megascandal’”, the court noted. “While some of the expressions used by [him] may have lacked a certain degree of moderation and may have been sarcastic, they did not contain manifestly insulting language. In the Court’s opinion, the impugned remarks remained within the limits of admissible exaggeration or provocation”.

According to the court, the public debate on the sale was ongoing at time and that the trial judge was aware of it.

“The remarks were made orally during a press conference, meaning the applicant had no possibility of reformulating, refining or retracting them before they were made public”, the court said. “The applicant made the statements in the offices of his political party and not in Parliament. The Court attaches weight to the fact that [Makraduli] chose not to take advantage of the elevated level of protection that parliamentary immunity would have conferred on him”.

The ECtHR ruled that “both of the [Makraduli’s] statements were…fair comment on issues of legitimate public interest”.

Case of Makraduli v. the Former Yugoslav Republic of Macedonia, application nos. 64659/11 and 24133/13. 19 July 2018





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