Decision of the Constitutional Court of the
U.br.50/98 off 08.04.1998
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.
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
- 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.