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Preliminary observations by the United Nations Special Rapporteur on the right to freedom of opinion and expression, Mr. Frank La Rue at the end to his visit to The former Yugoslav Republic of Macedonia

Skopje, 21 June 2013

Members of the Press, Ladies and Gentlemen,

From 18 to 21 June 2013, I carried out a visit to The former Yugoslav Republic of Macedonia with the view of making a full assessment of the situation of freedom of opinion and expression in the country. I am here to share some of my preliminary observations based on the information I received during my visit.

I would like to start by thanking the Government for their invitation to visit, and for the assistance provided during my stay.

I must also thank the United Nations Country team, in particular the Human Rights Adviser, for their support to all my activities over the last days.

During my visit, I met with a number of government officials, including the Minister of Foreign Affairs, Mr. Nikola Poposki, the Minister of Justice, Mr. Blerim Bexheti, the Minister of Interior, Ms. Gordana Jankulovska, Minister of Information Society and Public Administration, Mr Ivo Ivanovski.

I also met with the President of the Parliament, Mr Trajko Veljanovski, the President of the Supreme Court, Ms Lidija Nedelkovska, the President of the Constitutional Court, Mr Branko Naumoski and the Public Prosecutor, Mr Marko Zvrlevski, the President of the Broadcasting Council, Mr Zoran Trajcevski, and the Ombudsman, Mr Ixhet Memeti.

Finally, I would also like to particularly express my gratitude to the various representatives of civil society, including the academic community and journalists who took the time meet with me and to share their experiences and knowledge.

Ladies and Gentlemen,

The protection of the right to freedom of opinion and expression constitutes the foundation stone for every free and democratic society. Ensuring the free exchange of information and ideas is a basic condition for the promotion of transparency and accountability. In this regard, I am pleased to note that the Constitution of The former Yugoslav Republic of Macedonia clearly recognizes the centrality of this fundamental human right (article 16). The country further reaffirmed this commitment through the ratification of international human rights treaties such as the International Covenant on Civil and Political Rights and European Convention for the Protection of Human Rights and Fundamental Freedoms.

Moreover, I commend some legal improvements recently made aligning Macedonian laws to international standards regarding freedom of expression. The most important reform in this regard is the decriminalization of defamation, completed in 2012. The Law on Free Access to Public Information, which is another indispensable requirement for the promotion of freedom of opinion and expression, was adopted in 2006.

However, the implementation of this legal framework requires ongoing attention. The failure to fully and consistently translate laws into practice by both executive and judicial authorities can have a widespread chilling impact for freedom of expression. In this regard, I will underline here some of the serious concerns brought to my attention over the last days.

Harassment of journalists and the independent press by the judiciary
Investigative journalists and a critical press are essential players for the preservation of the free democratic space. Without freedom to investigate and denounce public authorities, without the freedom to promote open public debates, the role of journalists and the media is seriously undermined.

During my visit, I was alarmed to hear several allegations on the use of various legal instruments to intimidate journalists and the independent media. The arbitrary enforcement of legal instruments to harass critical media risks silencing important voices in the country. In this regard, I would like to mention here some particularly worrying events that happened over the last years and were reported to me:

In 2011, the closure of A1 and four other daily newspapers due to accusations of tax evasion and money laundering appears as a clearly disproportional response by the authorities to the offenses committed. I must reiterate that I don’t question the need to ensure that private media companies respect tax and finance law. However, the staging of massive police operations inside a press office and the dismissal of any alternative solutions to bring the group into compliance with the law resulted in the closure of important media actors. As the OSCE Representative on Freedom of the Media said: this acts lead to the de facto elimination of media pluralism in the country.

As I said, the decriminalization of defamation was regarded as a positive step. The use of criminal law to intimidate critical voices has an obvious chilling effect in the freedom of the press. Nevertheless, I was informed that accusations of defamation continue to proliferate, putting an important burden for the functioning of some critical media groups who are often targeted by these actions which can take long time to be concluded. The fines prescribed by the new law on Civil Liability for Defamation appear to be too high considering the average salaries of journalists in the country. Journalists or media outlets cannot survive an onslaught of civil claims or demands.

In this regard, for example, I was informed about the recent accusations made against the Fokus magazine, their editor, and a journalist for reporting on a statement made by the former Ambassador of The former Yugoslav Republic of Macedonia to the Czech Republic concerning corruption among public officials. It is completely inappropriate for courts to consider claims of defamation regarding the reporting of declarations by state officials or other third parties. The same media group appears to be targeted by many other defamation claims related to its investigative work.

Still with regard to Focus Magazine, I regret that this magazine decided to cease publication following the death of its Editor-in-Chief in a car accident. I asked the competent authorities why they have not initiated a criminal inquiry on the causes of the accident and death of Mr. Mladenov, despite the suspicions of murder raised by multiple interlocutors I met. Authorities responded they had no evidence to justify treating this case differently from any other common road accident in the country. In my experience around the world, I always underline that special attention must be paid to the investigation of violence against journalists given the particular risks they incur by investigating and denouncing criminal activities. Therefore, I call the competent Macedonian authorities to initiate a thorough investigation on this notorious case in order to rapidly dissipate the cloud of doubt and fear that was created by the tragic death of Mr. Mladenov.

I was also informed about the recent detention of the journalist Tomislav Kezarovski for an article he published in 2008 for Reporter 92 magazine in which he revealed the identity of a protected witness of a murder case. His detention provides another negative signal about the state of media freedom in this country. The use of detention to address the disclosure of a witness under witness protection in a news article seems to be clearly disproportionate. I particularly regret that authorities refused my request to meet with Mr. Kezarovski during my stay in the country.

Risk of deteriorating the legal framework
Additional legal reforms and regulations may further undermine the space for independent media in the country. In this regard, I would like to highlight some examples of legal changes that are worrying:

In July 2011, the Law on Broadcasting Activity was amended by the Parliament – the approved change increased the number of members of the Broadcasting Council from nine to fifteen, the new members being appointed by State institutions. I agree with the OSCE that such an inclusion undermines the political independence of this regulatory body against the ultimate aims of the Law itself. Regulatory agencies need to be fully independent from government and from political interference in order to fully perform their work.

Last month, the preparation of the draft Law on Media and Audiovisual Services raised further concerns among the national and international human rights community. I am encouraged to learn that the government is now revising the draft in light of recommendations made by the public, including civil society and international organizations.

Despite the positive inclusion of provisions that aim at harmonizing Macedonian legislation to some rules of the European Union, such as the Audiovisual Media Services Directive, a number of concerns were raised by different interlocutors. Besides sharing all concerns already expressed by analysis prepared by the OSCE and the Council of Europe experts, I would like to emphasize the need to secure an open debate on the final drafting of this proposal. Such an important law must never be designed and adopted without proper consultation with civil society, in particular, the journalists associations and human rights organizations.

Other forms of pressure against independent journalists and media
Allegations were also made with regard to indirect pressure against journalists and media units that are not aligned with the government views.

I was informed about the dismissal of Tamara Causidis from Alsat M TV, president of the Independent Trade Union of Journalists, from her functions in August 2011. Her dismissal appears to violate the law prohibiting companies from firing union leaders. Reportedly, she was asked to reduce her union-related activities.

The government is considered to be one of the most important purchasers of advertising in the country. Journalist associations, independent media and civil society organizations claim that public advertisement budget allocations tend to privilege media that is non-critical of the government. The use of public resources in advertisement must be open to close scrutiny to avoid the misuse of these resources in the promotion of favorable media in detriment of critical voices.

As explained, without an independent and efficient judicial system, basic freedoms are at risk of multiple violations. The interference in the independence of judges and lawyers risks undermining the most fundamental instrument for the protection of all human rights, including the right to freedom of expression.

In this regard I am particularly concerned by the recent changes in the functioning of the Constitutional Court. The recent change of five members of the court appear to have seriously harmed the independence of this body, and delayed and compromised decisions, including cases related to the right to freedom of expression. Furthermore, the Court does not have the administrative and financial autonomy to perform its work with the required independence. Urgent steps need to be taken to reestablish the independence of this body. In this regard, I recommend the State invite my colleague the Special Rapporteur on the independence of judges and lawyers to visit the country in the near future.

Access to Information
As said, the adoption of a Law on Free Access to Public Information was a commendable step. However, after over six years of its adoption, important limitations to the implementation of this law continue to be noted. Long and silent delays in the response of requests for public information and the inconsistent application of exemptions were noted. The pro-active display of information by public authorities, particularly in the internet, appears to remain limited. Thus, once again, greater government and judiciary efforts are needed to fully respond to the requirements established through this very important law.

Respect for diversity and responses to hate speech and incitement of hatred
The cultural diversity that marks The former Yugoslav Republic of Macedonia is one of its main assets. In this regard, I must commend the authorities for the measures taken to ensure the functioning of media services controlled by or serving various minority groups in the country. Enabling different communities to have channels to express themselves and exchange information in their own languages is crucial to secure the universal realization of the right to freedom of expression.

On the other hand, I would like to call the attention to two additional concerns relating to the legislation on incitement of hatred and the treatment of minorities.
Despite the improvements made in the legislation with regard to defamation, Article 319 of the Criminal Code remained unchanged. The UN Special Rapporteur on Freedom of religion in her 2009 visit called for reform of this article given its imprecise wording and the consequent chilling effect it represented for the freedom of expression and religion. I understand that the Ministry of Justice is currently debating the reform of this article in order to make it clearer, which I await as a positive step.

Laws on hate speech and incitement of hatred were already addressed in my report last year to the UN General Assembly. International human rights law recognizes that the right to freedom of expression can be restricted where it presents a serious danger for others and for their enjoyment of human rights. However, it is crucial that these restrictions respect the following principles: a) they must be provided for by law, which must be clear, unambiguous, precisely worded and accessible to everyone; b) it must be proven by the State as necessary and legitimate to protect the rights or reputation of others, national security or public order, and public health or morals; and c) it must be proven by the State to be the least restrictive and proportionate means to achieve the purported aim.

I was informed about episodes of attacks against the LGBT community during a march for the International Day of Tolerance in November 2012 and attacks against the ‘LGBT United’ and the Coalition ‘Sexual and Health Rights of Marginalized Communities’ in Bitola, this April. I understand these episodes were reported to authorities. It is crucial to ensure that any episode of hostility motivated by discrimination on the grounds of sexual orientation is investigated. I was also disturbed by allegations regarding statements made by high-level public authorities who openly reinforced discriminatory stereotypes against the LGBT community.

Conclusions

Ladies and Gentlemen,

Over the last decades, The former Yugoslav Republic of Macedonia has stated its commitment to protect the right to freedom of opinion and expression. During my visit, various authorities recognized the importance of this right in a democratic society and underlined important advances made such as the decriminalization of defamation. These are all positive steps. On the other hand, I am deeply concerned by the various reports I received concerning mostly to the emerging restrictions to the freedom of the media and journalists and the limitations to the independence of the justice system which must protect these rights.

A full report on my findings during this visit will be presented to the Human Rights Council in June 2014. My visit was only a first opportunity of dialogue with the Macedonian Government – I look forward continuing the discussions and receiving further information on the next steps taken to ensure a better protection to the right of freedom of opinion and expression in the country.

Thank you.