Decision of the Constitutional Court of the
U.br.50/98 off 08.04.1998
HEADNOTES
The freedom of thought and public
expression of thought is subjective right which is unrescindablly
connected with the human personality. The guaranty of this freedom means that
everyone can freely, without external force or state intervention, creates his
opinion for each domain of life, and publicly expresses it. Since the
Constitution of Republic of Macedonia does not consist, nor special neither
general legal reserve providing restrictions of the enforcement of the freedom
of thought and public expression of thought, its limitation should be look for
in the wholeness of the Constitution and its determinations, taking in consider
the international documents ratified in conformity with the Constitution.
Despite the high level of guaranty,
freedom of thought and public expression of thought determined in the
Constitution of Republic of Macedonia are not absolute and can not exist
unrestrictedly. The legal framework has to bound the individual freedom for
protection of others', due to secure mutual life.
SUMMARY
Rufi Osmani, Major of the
"Causing a national, rational and
religious hatred, discord and intolerance", "Organizing
resistance" and "Non-enforcement of court's decision", and
sentenced him to a unique imprisonment penalty in duration of 13 years and 8
months, punishment which the Court of Appeal of the Republic of Macedonia
reduced on 7 years.
Namely, among the rest, by the
aforementioned decree absolute, the applicant was condemned, because on the
24.05.1997 at 01.00 PM he organized and agreed on protest meeting on the Gostivar's square referred as a " To protect the
official use of the national flag", where the flag of Republic of
Macedonia was not hoisted, and the national anthem of the Republic of Albania
was interpreted, where he publicly expressed his thought using the following
formulations: "we give our life, but not the flag", "we do not
recognize decisions of the Constitutional Court of Republic of Macedonia",
"the Albanian flag has led us in many partisan's, ballistics' and many
other Albanian movements which have always fought for releasing of the Albanian
territories"; "our territories in Macedonia are ours, that should be
known once for good", "our flag will always winnow on each our
territory", "their black hand has bloody the university in Tetovo yesterday, this black hand also wishes to bloody the
national flag today, but they should think wise, because against their slaps we
shall return with ours, I sent them clear message, as long as I'm in the
Municipality of Gostivar, no one can touch the
Albanian flag"; "in the election campaign I have promised that we
shall make Gostivar an Albanian city, and we
will"; "we will use the Albanian flag, the official use of the
language and many other institutions, which will be commonly with the other
Albanian municipalities set up very soon within the framework of the project
for regionalism".
It is of foremost importance that this
protest meeting was organized after passing and as a consequence of the
Decision of the Constitutional Court of Republic of Macedonia U.br.52/97 from
21.05.1997 by which a procedure for reviewing of the constitutionality and
legality of Article 140 of the Municipality's of Gostivar
Statute was undertaken, as well as the request for preliminary measure was
accepted by which specific acts and gestures undertaken upon the disputed
article of the Statute were ceased of further enforcement till the enactment of
final decision by the Court.
The Constitutional Court determined that
the Municipal Court of Gostivar by its judgment found
the applicant guilty because: "Abusing his office of Major of Municipality
of Gostivar, by a continuous activity, he caused and
burnt up national hatred, discord and intolerance among the citizens of
Municipality of Gostivar and wider, among citizens of
other acquaintance municipalities; organized resistance and disobedience toward
legal decisions and government measures by the following acts:
- first, during the enactment of the
statutory decision of the Council of Municipality of Gostivar
for the usage of flags of the Municipality of Gostivar,
he did not point out the unconstitutionality and illegality of passing such
decision, and after its announcement and publishment,
he did not notified the Government of the Republic of Macedonia for its
unconstitutionality and illegality, which are major's commitments prescribed in
the
- then, although
he knew that the decision is unconstitutional and illegal, immediately after
the enactment he undertook some activities for its enforcement, as follow:
- by his permission, the flags of
Republic of Macedonia, Republic of Albania and Republic of Turkey were hoisted
on the masts in front of the building of the Council of Municipality of Gostivar;
- Before Labor Day holidays, he gave
written notification to all public institutions, informing them that they are
obliged, during the Labor Day holidays, to hoist the flags in conformity with
the statutory decision.
- in front of
the building of the Council of Municipality of Gostivar,
he organized armed guards for protection from disassembling the flags down of
the masts,
- he founded a central crisis
headquarter, whereby he made written operative plan for constitution of central
and regional organizing structures, managing bodies within the central crisis
headquarter and regional crisis headquarters;
- created managing body for assembling an
operative and strategic plan for dealing in the occasion of oppressed
intervention of the police, which precisely determines the structure and names
of people who would be in charged for the question of informing and propaganda,
security, transport and connections, finances, medical aid etc.;
- suspended the
municipality's management and the Council of Municipality, specified the
primary tasks as temporary one; and
therefore as a result of such activity on
26.05.1997, caused by an oppressive disassembling of the flag of Republic of
Albania by a group of citizens of Macedonian nationality, disturbance of the
public order and peace began in front of the building of the Council of the
Municipality of Gostivar by a fight among larger
group of citizens from Macedonian and Albanian nationality; and on 09.07.1997
when in the morning hours the police forces undertook an action for the
enforcement of the Constitutional Court's Decision U.No.52/97 dated 21.05.1997
and U.No.52/97 dated 11.06.1997 by which the flags of Republic of Albania and
Republic of Turkey should have been taken down from the masts, as a result of
organized resistance and disobedience towards lawful decision, its enforcement
was hardly to achieve, and the disorder and violence caused direct armed
conflict between the forces of the Ministry of Internal Affairs and gathered
people where three men lost their lives and a larger group of citizens and
police forces were bodily injured.
Considering the words expressed on the
protest meeting, the applicant stated that the aforementioned incriminations
were drawn out from the context of public performance and public expression of
thought and were taken in connection with the characteristics of the criminal
offenses for which he was condemned and punished. According to his opinion, the
freedom of thought and public expression of thought are absolute rights
guaranteed by the Constitution of the
However, the Constitutional Court of
Republic of Macedonia adjusted that the way the applicant has publicly
performed and expressed his thought, used formulations, ground where the public
performance took place, the status of the applicant, the goal which he aimed to
achieve and the circumstances which arose from his public act, as well as the
activities which he undertook before and after the protest meeting, analyzed in
their integrity, generate an action which is directly focused against the legal
system as a ground for accomplishment of all rights and freedoms, which
overlaps with the sense of the criminal offenses for which he is condemned and
punished. The circumstance that he committed the criminal offense by a gesture
which only as an external dimension has the public expression of thought, does
not generate the basis for releasing from the guilt for commitment of the
criminal offenses, because according the conditions of the event, the applicant's
gesture has completely lost the content of public expression of thought in the
sense that the Constitution guarantees and protects this freedom. In light of
the circumstances of the event, applicant's publicly expressed thought does not
expose his intellectual or political attitude, neither represents manner of
intellectual and political conviction of the participants of the meeting, but
represents direct call and initiative for the present people of Albanian
nationality not to obey i.e. to destroy the legal system by force causing a
national intolerance, discord and hatred among the population in Gostivar, in situation of already sensible among-national
tension.