In the Name of the People, the Court Stands in Defence of Journalists’ Rights

Author: Dejan Ristovski

“In the name of the people of the Republic of North Macedonia, the Basic criminal court Skopje, adjudicating on the criminal case against the defendant Marjan Stamenkovski, for the crimes of Blackmail, as provided in Art. 259 paragraph 1 in conjunction with Art. 19, Piracy of an audiovisual work, as provided in Art. 157 – b paragraph 1, Dissemination of racist and xenophobic material through a computer system, as provided in Art. 394 – d para. 1 and Misuse of personal data, as provided in Art. 149 paragraph 1 of the Criminal Code, finds the defendant GUILTY and sentences him to 3 years and 1 month of imprisonment.”

With these words, the Basic Criminal Court of Skopje announced the first-instance verdict convicting the owner of the portal Dokaz.mk, on April 4, 2023. In addition to the prison sentence, he was also banned from registering a domain and appearing as a registrant or owner of a web portal registered in the Macedonian Academic Research Network of RNM – MARnet, for a period of 10 years.

Link to the verdict – Court – Basic Criminal Court Skopje, Case number K. No. 429/23

After receiving an appeal, the Skopje Court of Appeal partially changed the verdict in terms of the punishment, by sentencing the defendant to a prison term of 2 years and 6 months, and reducing the ban on registering a domain / web portal through MARnet from 10 to 6 years. The verdict establishing guilt was confirmed, while only the crime of Blackmail was remanded. This was the first verdict in which an owner of a web portal was sentenced to prison in a criminal proceeding in which journalists are the injured party.

Valentina Vurmo and Irena Mulachka, from the weekly magazine Fokus, were present in the courtroom from the first hearing and confronted the defendant, despite the fact that the proceedings were conducted behind closed doors due to the sensitivity of the matter. The reason for that is that exactly these two journalists were injured parties from the crime of spreading racist and xenophobic material, that is, the defendant published texts and photos on his portal and claimed that the injured parties are using journalism as a way to acquire monetary and non-monetary personal gains. In the headlines, he involved the OSCE Mission and the Association of Journalists of Macedonia, he incited hatred on the basis of ethnicity, and with certain texts he insulted their personal life and family, which was also included in the verdict itself.

Every conviction, in addition to the repressive aspect of penalizing the perpetrator, should also act preventively, to deter such potential future occurrences. But can the domestic legislation, as well as all the “accompanying” institutions and agencies that should implement the “prevention” of the court verdict, protect journalists?

Valentina Vurmo does not dispute the repression brought about by the court verdict, but whether there is a mechanism that will guarantee her safety in the future is a different matter.

– Unfortunately, the feeling of safety lasted for a short period, because even though Stamenkovski was sentenced to an effective prison sentence, the verbal assaults continued even after he was imprisoned. He received a suspended sentence for treatment, but instead of getting treatment, he made a public appearance in which he continued the assaults, and on top of that, presented details of the trial, which was closed to the public. Also, his “legacy” Dokaz.mk continued to function through another platform, which is why I was once again targeted by him. He actually repeated the crime for which he was convicted, and committed a new one, by presenting confidential data from a court hearing. The conclusion is that I do not feel safe at all, despite the sentence that was imposed on him – Vurmo said.

This thesis raises the question – did the judiciary fall short in this particular case and is additional training, knowledge, and judicial practice necessary, or is the system still not ready to protect journalists in the exercise of their journalistic function?

– In this case, both the prosecutor and the judges acted expertly and professionally, showing a good grasp of the topic at hand. They made a clear distinction between the injured parties, who are professional journalists, and the defendant, who is not a journalist, but someone who abuses our profession. Hence it turned out that they do not need additional training, nor are specialized prosecutors and judges needed. The problem appeared after they finished their work, that is, the system allowed Stamenkovski to repeat the crime without being sanctioned.

Another preliminary investigation is also being conducted against him, so by making a public appearance, the investigation was compromised because none of the witnesses will feel safe to testify against him, knowing that they will be exposed to public attacks and lynching. The real question is whether that case will be professionally pursued to the end, which will reveal who issued the orders for the monstrous articles on Dokaz.mk, or if an attempt is being made to sabotage the case for someone’s protection, Vurmo added.

An additional problem in the criminal sanction itself is that domestic regulatory bodies have no authority over web portals registered in other countries, which are accessible to readers in RNM and can serve to spread xenophobia, fake news or unfounded degradation of individuals, intruding even into their family life.

– Amendments to the Criminal Code – a new warrant for journalistic safety

The amendments to the Criminal Code made in March 2023 (No. 36) with which, among other things, if a crime is committed against journalists, they will be treated as officials in the performance of their duties, were long-awaited changes made at the request of the journalistic profession, in order to protect media workers while performing their duties and to prevent future pressures and attacks. According to Darko Duridanski from the Trade Union of Journalists and Media Workers, the changes are exactly in that direction:

– The legal amendments that refer to journalists being treated as officials, that is, assaults on them being prosecuted ex officio, are a preventive measure for protection. This means that if all cases of assaults on media workers are processed to the end, and taking into account that the sanctions have been made more stringent, it should have a demoralizing effect on the perpetrators, i.e., the number of assaults should decrease in the future. So, the main point of these changes is the systematic prosecution of attackers of journalists and the higher penalties and official prosecution aim to prevent future potential assaults, which would mean that journalists can work under less pressure, according to Duridanski.

But apart from criminal proceedings, protection is also needed in civil proceedings, according to journalist Vasko Magleshov, president and long-term member of the Judicial Media Council – a body that encourages discussion and cooperation between judges and journalists on issues of common interest:

– There is always room to improve the protection of journalists. What is important is that steps forward have been taken in that process. For example, the amendments to the Criminal Code expanded the scope of criminal-legal protection of journalists in a way that expanded the scope of procedures in which journalists are the injured party. These changes prescribe that the Prosecutor’s Office shall initiate the criminal prosecution ex officio, instead of journalists having to file a private criminal lawsuit. But there is still work to be done. In civil proceedings, especially in recent years, there is talk of the so-called SLAPPs (strategic lawsuits against public participation), which are used as a method of silencing via the courts. For example, there was a case in RNM in which the defendant requested the court to issue a temporary measure to the media outlet to further publish content. The court did not accept such a measure. It is crucial for the courts to understand the role that the media play in a democratic society and to weigh the public interest and the violation of human rights – Magleshov said.

– Identification of journalists in court proceedings.

If we revisit the first case with the Dokaz.mk portal, it is necessary to note that the defendant in the court proceedings identified himself as the owner of a web portal, without determining whether it is a journalistic – news portal. Hence, the question arises whether in possible future criminal proceedings that will be conducted in accordance with the amendments to the CC, the system will have a problem identifying possible abuses of the journalistic function. Magleshov believes that self-regulation can limit journalistic freedom, therefore it is necessary to determine this through the judicial and prosecutorial procedures themselves.

– When legitimizing the journalistic profession, the courts should be guided by the specific dossier of the injured journalists and thus determine their status. These are, for example, the circumstances determining whether a specific person is a member of a professional journalist association, whether they are working or have worked in a media outlet that can be proven… Licensing of journalists that would be done by a state authority is essentially dangerous and can be subject to abuses and restriction of the journalistic profession. In addition, the provisions of the Criminal Code that protect journalists refer only and exclusively to injury when they are performing a professional obligation, and the court can determine this, so that the journalist’s position would not be abused, Magleshov said.

Conclusions and recommendations

The judicial-prosecution system will have to find a way to recognize journalists in the performance of their journalistic activity in accordance with the standards of the Council of Europe and the case law of the ECtHR, and journalists will have to “legitimize” themselves in court proceedings through their professionalism and adherence to ethical codes. Adequate training for judges and prosecutors, as well as deepening of the cooperation, is necessary.

The open communication of the Basic Criminal Court Skopje with the journalists, which was recognized and commended by the international representatives in the country, but also by the journalist associations themselves, contributed to the introduction of regular briefings of the court with the journalists, a live stream of the announcements of the verdicts and the opening of the first court Media Centre. Examples that, unfortunately, were not sufficiently replicated in other judicial institutions, but may serve to strengthen cooperation.

The portal sud.mk, which uses data from the Automated Court Case Management Information System (ACCMIS), has provided special fields for searching through the jurisprudence for domestic violence, hate crimes, etc., so why not supplement it with a special search for cases in which the defendants or the injured parties are persons who identified themselves as journalists before the court, which will be of particular benefit both for the jurisprudence and for the public in recognizing professional media workers.

If the state is limited in terms of regulating the news, i.e. foreign web portals that are “served” to us on the domestic airwaves, then it is necessary to help professional journalism to rise above fake news, and journalism to help raise public awareness of the work of the courts.

(The text is a research analysis that is based on an issued verdict, the views and opinions of relevant stakeholders and the conclusions of the author of the text. The verdict is publicly available on the sud.mk portal, all statements are transmitted verbatim, and the conclusions are based on previous experience and cooperation of the author with journalists)

This article was prepared within the project "Strategic Lawsuits Against Public Participation (SLAPPs) are a slap in the face to citizens and the public interest", supported by UNESCO. The designations employed and the presentation of material throughout this article do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or its authorities, or concerning the delimitation of its frontiers or boundaries. The authors are responsible for the choice and the presentation of the facts contained in this article and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization.