European Court of Human Rights

FIRST SECTION

Application no. 12316/07
by Risto POPOVSKI
against the former Yugoslav Republic of Macedonia
lodged on 19 February 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Risto Popovski, is a Macedonian national who was born in 1945 and lives in Bitola.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 2 December 2002 an article was published in the daily newspaper “Utrinski vesnik” (“the newspaper”) under the following title: “The uncle was stealing, Jovan was standing guard” (??????? ??????, ????? ????? ??????). There was a reference to this article on the cover page of the newspaper. The article contained inter alia the following statements:

“... Risto Popovski, the uncle of the dismissed bishop Jovan and owner of the company “Voskresenie” in Bitola, together with seven boys entered into the courtyard of the church “St.Spas” in Gevgelija and continued towards the church garage. The uncle drove a tractor out of the courtyard, while his accompaniers threatened the church housekeeper, who was upset, to step aside. During the violent intrusion, the dismissed bishop Jovan drove around waiting for the outcome ...

... On the basis of a report concerning the break in by unidentified persons, police prevented the tractor to depart Gevgelija. The owner of the “Voskresenie”, Risto Popovski, produced documents that it had the title to the tractor! Only the dismissed bishop Jovan would know how the tractor, which was a Japanese donation for the church co-operative in Gevgelija, happened to belong to a private company in Bitola ...”

The author of the text was indicated by initials R.P.

The next day, the applicant submitted a letter to the newspaper requesting publication of a retraction given the untrue allegations that he stole the tractor. In this connection he submitted a copy of a certificate, issued by the Ministry of the Interior, attesting that the tractor was returned to him. He alleged that in the absence of a retraction, he would have been perceived as a criminal in Bitola, a small town where people knew each other. The newspaper did not publish anything in this respect.

After several oral requests, on 31 December 2002 the applicant submitted a letter to the newspaper seeking information about the identity of the journalist whose initials were indicated under the article.

On an unspecified date, the applicant brought defamation proceedings against the B.T., the chief editor of the newspaper and R.P., the responsible journalist, in which he claimed that the article had discredited him and his family. He also claimed compensation for non-pecuniary damage. On 31 March and 16 April 2003 respectively the Skopje Court of First Instance (“the trial court”) requested that the applicant specify the complaint, in particular to provide the personal details of R.P.

Between 23 September 2003 and 16 January 2007, the trial court fixed twenty-four hearings of which twenty hearings were adjourned because it could not secure the attendance of B.T., his representative or the responsible journalist. On a hearing of 29 June 2006, B.T. stated that according to the newspaper’s records, the author of the text had been certain K.J. B.T. had contacted K.J. by phone who had confirmed that he had been the author of the text. However, B.T. could not have provided information about K.J.’s home address. K.J. did not appear in court despite his attendance was requested. By a decision of 16 January 2007, which the Skopje Court of Appeal upheld on 1 March 2007, the proceedings were terminated because the prosecution became time-barred.

B. Relevant domestic law

1. Obligations Act of 2001

Section 141 of the Obligations Act provides for the right to claim civil compensation.

Under section 365, a compensation claim becomes time-barred three years after the victim becomes aware of the damage and the person responsible. The absolute time-bar for compensation is five years after the occurrence of the damage. If the damage occurred as a result of a criminal offence, a claim for compensation becomes time-barred after expiration of the time-bar for criminal prosecution, if the latter lasted longer (section 366).

The running of the time-bar is interrupted if a plaintiff brings an action before a court or competent authority with a view to determining or securing his or her claim (section 377).

2. Criminal Code

Under section 172 of the Criminal Code, any person who disseminates untrue injurious allegations about another shall be punished for defamation by a fine or six months’ imprisonment. If defamation is committed in public of through the media, it is punishable by a fine, as well as by a prison sentence of maximum one year.

3. Criminal Proceedings Act of 1997

Under section 101 (3) of the Criminal Proceedings Act, applicable at the time, in case of an acquittal or dismissal of the prosecution, if the proceedings are terminated or the indictment is rejected, the court is to advise the victim to pursue his or her compensation claim in civil proceedings.

COMPLAINTS

The applicant complains under Articles 2, 3 and 5 of the Convention that he was continuously followed and ill-treated by State agents. Relying on Article 6, he complains that the proceedings were too long. He further complains under Article 8 in that the respondent State, owing to the domestic courts’ inability to secure the attendance of the defendants in the impugned proceedings, failed to protect his right to reputation which was damaged with the article published in the newspaper. In this connection he alleges that due to the article there was a negative public perception about himself and his family members. Graffiti describing them as “thieves” were drawn on his house and business premises. Lastly, he complains that his rights under Articles 9, 13 and 14 of the Convention were violated due to his religious beliefs.

QUESTIONS TO THE PARTIES

1.  Was the length of the proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2.  Has the applicant exhausted all effective domestic remedies within the meaning of Article 35 § 1 of the Convention, in respect of his complaints under Article 8 of the Convention? In particular, was a separate civil action for damages more appropriate form of redress given the circumstances of the case? In view of the rules on time-bar (see “Relevant domestic law”), was such an action available to the applicant after the Skopje Court of Appeal’s decision of 1 March 2007? In this connection the Government are invited to provide copy of relevant domestic courts’ decisions, if any.

3. Given the outcome of the defamation proceedings, does the final decision of the Skopje Court of Appeal of 1 March 2007 disclose a failure to protect the applicant’s right to protect his reputation, as an element of the “private” life, and therefore a breach of the respondent State’s positive obligations under Article 8 of the Convention?