I N F O R M A T I O N

ABOUT THE PUBLIC PROSECUTION AND MEDIA, INFORMING, FREEDOM OF EXPRESSION AND OTHER FUNDAMENTAL HUMAN RIGHTS

The democratic society is based on few human values and principals: freedom, truth, honesty and rightfulness. These ethic and legal values are continuously reviewed through functioning of the legal system, in which institutions: judiciary, prosecution and practice of law have a special place, all with one objective - protection of the citizens' freedom, as well as protection of the constitutional order of the country.

All state bodies and other institutions that perform public authorizations are bounded to report criminal acts. That is also an expression of notification that the essence of the engagement in official combat against the crime represents a wider activity realized in coordination with the professionally bounded institutions, such as: the Ministry of Internal Affairs, separate kinds of inspectorate organs and judicial organs. The function of discovering is realized most usefully and efficiently by synchronized acting and coordination of these subjects.

The truth can be reached by publicity and constant search for the same, in which conscious journalists, who endlessly search for discovering the event and the actors in that event, have an inevitable and first-rate social role. But often false information is disseminated in the public aimed at attracting the attention of the public. The information distorts the truth sometimes causing damages to the honor and reputation of particular persons and institutions.

The question whether the judicial organs function in accordance with the Constitution, the existing laws and international acts has been raised since the independence of the Republic of Macedonia. Furthermore, the question about their openness and publicity towards the citizens, when there are indications for criminal-legal case and conducting court procedure, has also been raised. What does this mean for the public prosecutor as a state organ and where is the line between the confidential matter and information that should be revealed to the public - citizens disseminated by the newspapers and printed media.

The public prosecution is in one specific and extremely unfavorable situation of functioning simply because it uses information from the media, and at the same time, in compliance with the legal obligation, it should protect the secrecy of people and events, as all this is activated through a court procedure. Namely, the Article 140, act 1 from the Law on Criminal Procedure stipulates:

"State organs and institutions that perform public authorizations are bounded to report criminal acts, which are prosecuted in line of duty, for which they are informed or will find out in some other way"
The Article 141 act 1, 2 and 3 from the Law on Criminal Procedure encloses:

"(1) Anyone can report a criminal act that is prosecuted in line of duty.
(2) The denunciation is submitted to the competent public prosecutor in written or orally.
(3) If the denunciation is submitted orally, the submitter shall be warned about the consequences of untruthful denunciation. A record shall be made out for the oral denunciation, and if the denunciation is stated by phone, an official note shall be made out.

The Article 144, act 2 from the same Law stipulates: "If the Public Prosecutor has only heard about committing of a criminal act…"(depending on whether the statements are probable, he can decide whether to ask for conducting an investigation, to undertake actions by himself (in accordance with act 3) or to ask other organs to collect the necessary information and to undertake other measures for discovering the criminal act and the perpetrator.

"Fining out in some other way" or "if the public prosecutor has only heard about committing of a criminal act" mean that the information could be firstly find out by printed or electronic media. For the public prosecutor it means another possible "legal source" of quicker way to hear or find out about some criminal-legal event, which should be investigated in a legally conducted procedure. This way, the public prosecutor becomes aware of the first-rate assistance from journalists in order some events or participants in that event not to be "hidden from the public" or to be put in the "delete file".

Compulsory following of the daily and weekly press and electronic media by all public prosecutions in the Republic of Macedonia was introduced with a Decree of the Public Prosecutor of the Republic of Macedonia A. no. 1 93/99 from 23.06.1999. Within the frameworks of their legal authorizations and competencies they are obliged to open a special case for any received information about any kind of crime.

The specific role of the public prosecutor can be seen from the following criminal-processing regulations that are enclosed in the Article 144, act 5 from the Law on Criminal Procedure, which stipulates: "Public Prosecutor and other state organs, institutions that perform public authorizations and other legal persons are bounded to approach the process of collecting information, i.e. giving information cautiously, taking care not to cause damage to the honor and reputation of the persons to whom these data refer."

In this regard, it is interesting to be mentioned that "the Criminal Law of the Republic of Macedonia in the Chapter XVII defines the acts against honor and reputation as penal acts, such as: Libel - Article 172, Insult-173, Revealing personal and family matters-174, Humiliation with accusations for criminal act-175, Injuring the reputation of the Republic of Macedonia-178, Humiliation of the Macedonian people and nationalities-179, Defamation of the reputation of the court-180, Defamation of the reputation of a foreign country-181, Defamation of the reputation of an international organization-182 from this Law, included as a mechanism for protection of the constitutional guarantee for respect of dignity and reputation that are important in the relations between people in every civilized society, because of which our legislation gives criminal-political evaluation of the honor and the reputation and defines them as -criminally-legally protected values, which is important for protection of the personality. Protection of the honor and the reputation is collection of several features, values and characteristics of a man.

That is also the direction of the Article 171 from the quoted Law, which stipulates:

"If it is in accordance with the criminal procedure, interests for keeping secret, interests of the public order or the reasons of morality, the official person who takes the investigation activities shell order the persons subjected to hearing or those who are present at the inquiry activities or review the documents from the investigation to keep as a secret the facts or data they have found out during the case and shell be informed that the revealing of a secret is considered to be a criminal act. This order shell be included in the record of the investigation activity, i.e. shell be registered in the documents that are reviewed, with a signature from the person warned."

Violation of the secrecy of the procedure represents a criminal act in accordance with Article 369 from the Criminal Law, which reads:

Such official secret also refers to the participants in the procedure and also refers to the public prosecutor, i.e. deputy public prosecutor who participates in that specific procedure. The secrecy of the procedure, as already mentioned, bounds the public prosecutor not to give information to the public via media.

The court, in accordance with the Law, during the criminal procedure itself assesses at what degree and in which way it will inform the public. The Chapter XXI - Main Trial, heading 1 Publicity of Main Trail, in the Article 280 from the aforementioned Law stipulates:

"Since opening of the session until closing of the main trail, the council may anytime, in line of duty or upon suggestion of the parties, but always after their hearing, to exclude the public from the whole main trail or from some part of it, if it is necessary for keeping the secret, keeping the public order, protection of morality, protection of personal and intimate life of the prosecuted person, the witness or the victim and protection of the interest of the minor."

The council excludes the public with a resolution, which has to be explained or publicly announced. The basic principle defined in Article 2, Act 1 from the Law on Criminal Procedure especially refers to that point reading:

"The person accused of having committed the criminal act is considered to be innocent until his guilt is set with a court sentence in effect." The quoted decree in positive sense sets the status of innocence to a degree that refers to the whole criminal procedure, i.e. until the sentence goes into effect. Participants in the procedure should completely adhere to this maxim, which means that the activities they undertake should be in processing-legal shape stipulated by the law.

In such legal situation where is the publicity of the public prosecution towards the media and giving a public report for his work towards the citizens.

The structure of the Constitution, Chapter 2 - Basic Freedoms and Rights of Man and Citizen, subtitle at t.1 defines the civil and political freedoms and rights. A constitutional regulation is defined that guarantees freedom of public expression of the thought, thus guaranteeing free public informing, accepting and disseminating information. All cited guarantees are defined in the Article 16 from the Constitution.

The European Convention for Protection of Human Rights and Basic Freedoms, signed by member-countries of the Council of Europe and adopted on January 5, 1953 in Rome, defines guarantees for human rights to freedom and his security. The abovementioned convention in the Article 6, act 1 defines:

"Everyone has a right, his civil rights and obligations or justification of any kind of criminal accusations against him to be reviewed and defined rightfully and publicly, within reasonable term, before independent and impartial court, established in accordance with the Law. The verdict is pronounced publicly, while journalists and audience may be excluded during the whole process or from one part of the procedure in the interest of morality, public order or national security in one democratic society, protecting the interest of minor or protection of the private life of parties in the dispute, or when the court considers it to be necessary, as in special circumstances the publicity may cause damage to the interests of the justice."

The regulation from Article 10 has the same direction as the Convention reading:

"Every person has a right to freedom of expression. This right encloses the freedom of thinking and the freedom of accepting and disseminating information or ideas, without interference from the public authorities and regardless of the borders. This article does not prevent countries to subject enterprises for radio, film and television to the regime for issuing working licenses.

Realization of these freedoms, considering the inclusion of obligations and responsibilities, may be under certain formalities, conditions, restrictions and sanctions anticipated by a law, which in the democratic society represent indispensable measures in the interest to the state security, territorial integrity and public security; protection of order and thwarting criminal acts, protection of health and morality, reputation or rights of others, preventing dissemination of confidential information or in the interest to protection of authority and impartiality of the judiciary."

Constitutional and legal obligation stipulated by the Law on Public Prosecution in the Article 7, act 1 and 2 referring to the communication with media:

"Public prosecution, though the press and other means of informing, informs the public about the developments with the crime and other matters of common interest noted in its work."

I find interesting to mention the information that in the period from 1.1.2001 until 31.12.2001, on the ground of the articles in the daily and other press and electronic media, a total of 39 cases were created in the Public Prosecution?, upon which requests for collecting necessary reports have been submitted to a competent state organ for reviewing the statements presented in the articles.

In the same period in year 2000 a total of 23 cases? were created, which means the number increased for 16 cases in year 2001.

Regarding the created cases and submitted initiatives, according to the regions of the Higher Public Prosecutions of Skopje, Bitola and Stip, we hereby present you the following review with comparative data about year 2000 and year 2001.

Regarding the processed - Criminal acts against the honor and reputation enclosed in the Chapter XVII, during the year 2001 for these criminal acts, criminal charges were brought against 55 persons and along with the previous criminal charges against 18 persons, in the period from the report were proceeded criminal charges against 73 persons. The public prosecutions in year 2001 brought indictments against 73 persons. The courts in year 2001 reached first-rate verdicts for 6 persons. Compared with year 2000 when for these criminal acts, criminal charges were brought against 69 persons and criminal charges against 24 remained unresolved, i.e. a total number of 93, we can mark decreasing for 20 persons. There are also indictments brought against 30 persons thus, marking decreasing for 3 persons, while the courts reached verdicts for 13 persons or 7 persons less.

Regarding the criminal acts against the freedoms and rights of man and citizens enclosed in the Chapter XV from the Criminal Law - during the year 2001 for these criminal acts, criminal charges were brought against 200 persons and along with the previous criminal charges against 43 persons, in the period included in the report criminal charges were proceeded against 243 persons. The public prosecutions in year 2001 brought indictments against 67 persons. The courts in year 2001 reached first-rate verdicts for 34 persons. Compared to year 2000 when for these criminal acts, criminal charges were brought against 136 persons and criminal charges against 43 persons remained unresolved, we can mark increasing for 85 persons. Indictments were brought against 58 persons, thus marking increasing for 9 persons, while the courts reached verdicts against 34 persons, i.e. there is no increasing.

The public prosecution as a state organ performs the function of prosecuting exclusively and having this in mind it has a role of attorney of the public order and at the same time a role of protector of the objective legal order. The function of the public prosecution is manifested through different kinds of cooperation with other organs and organizations, called for and in-charge of averting the crime. The prosecution shows interest in real and complete defining of circumstances and facts that are of significant importance to the legislative decision-making.

The public prosecution may inform the public about certain cases it acts upon.

The public prosecution considers that it can stage press-conferences or issue press releases at several levels starting from the Public Prosecution of the Republic of Macedonia, higher prosecution and district prosecutions, but first it should reconsider the case or the criminal event referred, as well as its importance and consequences it may have first to the victims and to the entire social community. It would be most correct if the informing is carried out in any of the abovementioned ways after bringing an indictment, i.e. after launching a main trail, unless the court makes a decision on excluding the public, put with a constant obligation to inform the public on the outcome of the procedure, informing on how the procedure is concluded, on the verdict going into effect and especially to inform the public if it is an acquittal, thus avoiding the speculations and sensational approach in the media towards the cases and persons under suspicion or accused, proceeded in the prosecution and then into a court procedure. There is no doubt that the prosecution needs the media and journalists and vise versa, in order the rule of law and realization of the ideal of democracy, constitutionalism, the law and functioning of the legal order to be revealed and confirmed in the public.

PUBLIC PROSECUTION OFFICE OF THE REPUBLIC OF MACEDONIA
Stavre Djikov