no. PSV 191/2005

IN THE NAME OF THE CITIZENS OF THE REPUBLIC OF MACEDONIA

THE SUPREME COURT OF THE REPUBLIC OF MACEDONIA, in a Panel composed by the President of this Court Dane Iliev in capacity of the Chairman of the Council, judges Agim Miftari and Nevena Krckovska Malinkovska in capacity of members of the Panel, court clerk Roza Georgieva, State Counsellor, dealing with the demand of the convict Jovan Vraniskovski from Bitola for extraordinary examination of the enforceable Verdict No. P. 22/2004 of the Court of First Instance in Bitola dated on 1st of July, 2004 and the Verdict No. Pa. 631/2004 of the Court of Appeals in Bitola dated on 22nd of June, 2005 filed through the defence counsellor Vasil Gjorgljiev, attorney at law from Bitola, with regard to the previously delivered written Motion No. PSV. 189/2005 dated on 16th of August, 2005 of the Public Prosecutor of the Republic of Macedonia, in accordance with Articles 415, 412 and 407 of the Law on Penal Proceedings has passed the following

The demand for extraordinary examination of the enforceable verdict of the convict Jovan Vraniskovski from Bitola, filed with by his defence counsellor Vasil Gjorgjiev, attorney at law from Bitola, IS HEREBY BEING PARTIALLY ACCEPTED.

Aiming correct implementation of the Penal Code, the verdicts of the Court of First Instance in Bitola No. P. 22/2004 dated on 1st of July, 2004 and of the Court of Appeals in Bitola No. Pa. 631/2004 dated on 22nd of June, 2005 are hereby BEING AMENDED as follows :

The acts referred to in lines 2 and 3 of the description of the criminal offence ’instigation of ethnic, racial and religious hatred, discord and intolerance’, referred to in Article 319 paragraph 1 of the Penal Code, related to the participation in the ordination of Joachim and Mark for Bishops of the Diocese of Polog and Kumanovo and Diocese of Veles and Vardar Valley respectively, in the Cathedral Church in Belgrade , performed by the Patriarch of the Serbian Orthodox Church, with an aim to establish a parallel Holy Archpriests’ Synod of the inexistent Ohrid Archbishopric to the one of the Macedonian Orthodox Church;

as well as performing of a church rite on 11th of January, 2004 in Bitola, in the apartment on 2/2-23 Kocanska St., being property of his parents, as a first co-officiating and communion with several monks, abbots and other believers;

are hereby being removed as they may not be a constitutional part of the legal essence of the criminal offence referred to in Article 319 paragraph 1 of the Penal Code.

As for the rest of the verdicts challenged, the aforesaid shall remain without any amendments.

R a t i o n a l e

By virtue of the Verdict No. P. 22/2004 dated on 1st of July, 2004 of the Court of First Instance in Bitola, the defendant Jovan Vraniskovski from Bitola has been pronounced to be guilty for the criminal offence ‘instigation of ethnic, racial and religious hatred, discord and intolerance’, referred to in Article 319 paragraph 1 of the Penal Code and sentenced to the punishment of imprisonment for a period from 1 (one) year and 6 (six) months, with the time he had spent in detention since 11th of January, 2004 until 30th of January, 2004 being calculated therein. By virtue of the aforesaid Verdict, he has been charged to pay for all the expenses of the penal proceedings amounting to MKD 2,000.00 in due period of 15 days as of entering into effect thereof.

By virtue of Verdict No. Pa. 631/2004 dated on 22nd of June, 2005 the Court of Appeals in Bitola has refuted the appeals declared by the defendant Jovan Vraniskovski from Bitola personally and also through his defence counsellor Vasil Gjorgjiev, attorney at law from Bitola, as groundless, confirming the Verdict No. P. 22/2004 dated on 1st of July, 2004 of the Court of First Instance in Bitola. The aforesaid Court has accepted the facts and the evidence established completely by virtue of the Verdict of the Court of First Instance in Bitola confirming that the first instance court has implemented the Penal Code correctly.

After entering into effect of the aforesaid Verdict, the defendant Jovan Vraniskovski from Bitola has lodged a Demand for Extraordinary Re-Examination of an Enforceable Verdict through his defence counsellor Vasil Gjorgjiev, attorney at law from Bitola, on grounds of violation of the law with regard to Article 356 paragraph 1 item 1 of the Law on Penal Proceedings. The aforesaid Demand states that the lower courts have violated the Penal Code by passing of the aforesaid Verdicts accepting that the acts being charged to the convict constitute the criminal offence ’instigation of ethnic, racial and religious hatred, discord and intolerance’, referred to in Article 319 paragraph 1 of the Penal Code. The Demand states that the Verdicts have violated the right of the convict to freedom of confession and the right to freedom of belief, thought, conscious and religion. Jovan Vraniskovski has been dethroned by virtue of the decision of the Synod of the Macedonian Orthodox Church, however it does not mean that by virtue of the aforesaid decision he has lost the right to express his confession and to practise it in another religious community and in facilities of his own. The lower courts have been convicted him for becoming a member of another religious community and performing a church rite in his home. The act referred to in the description of the first instance verdict accepting that the criminal offence was committed by publishing and distribution of the Religious Calendar for the year of 2004 is unacceptable with regard to constituting of the essence of the criminal offence he has been convicted for, but it may be the matter of a criminal offence ‘slander’ referred to in Article 172 or ‘disdain’ referred to in Article 173 of the Penal Code, for which criminal charges shall be brought by introduction of a private lawsuit, and not by a Bill of Indictment of the State, i.e., of the Public Prosecutor.

The demand furthermore states that the Article 18 of the Universal Human Rights Declaration guarantees the right to freedom of thought and religion, including the right of a man to change his religion and belief freely, as well as the right to express his religion or belief by means of teaching, practising, performing religious services or right. Moreover, Article 9 of the European Convention on Human Rights prescribes the right to a freedom of belief, conscious and religion, therefore the aforesaid rights have been violated by passing of the verdicts challenged, so the lower courts have implemented the Penal Code erroneously violating the aforesaid rights and finding that the defendant has committed the criminal offence referred to in Article 319 paragraph 1 of the Penal Code.

The Demand propones that the Supreme Court of the Republic of Macedonia passes a sentence amending the verdicts of the lower courts and acquitting the convict from the indictment in accordance with Article 413 paragraph 1 item 1 and Article 411 of the Law on Penal Proceedings.

The Supreme Court of the Republic of Macedonia has delivered he Demand together with all the acts of the case to the Public Prosecutor of the Republic of Macedonia in accordance with Article 414 paragraph 4 of the Law on Penal Proceedings, and she has proponed that it shall be refuted as groundless by virtue of written Answer No. PSV. 180/2005 dated on 16th of August, 2005 delivered in due time.

The aforesaid Answer states that all the three acts referred to in the description of the criminal offence in question, being established by the lower courts as such, constitute the criminal offence ’instigation of ethnic, racial and religious hatred, discord and intolerance’, referred to in Article 319 paragraph 1 of the Penal Code. Thus the Public Prosecutor states the acts committed by means of the Religious Calendar for the year of 2004 which do not constitute an expression of freedom of belief and religion, but presenting of axiological judgements with regards to the Macedonian Orthodox Church, the Macedonian Bishops, to the capacity of the Macedonian people whom the convict Jovan evaluates as extremely passive, manipulated, ignorant of the essence of the faith, placing disdains of the king ‘inexistent Macedonian Orthodox Church’ in the Calendar, which is suitable for instigation of intolerance on religious grounds, not only among the faithful ones, but among the ones neutral with regard to religion as well.

The Public Prosecutor of the Republic of Macedonia also states that the right to a freedom of religion may not be expressed by means of the right to jeopardise the same right of the others; and as the lower verdicts have described it and as the convict had practised it within the framework of his group, he had risen his right to freedom of belief and religion to the absolute proportions, thus directly depriving and jeopardizing the right of the other believers who do not belong to his group, and who are not capable to make axiological judgements of their own according to the convict, and thus they had chosen to be the believers of the inexistent Macedonian Orthodox Church.

The Supreme Court of the Republic of Macedonia has found the following :

The Demand of the convict Jovan Vraniskovski is being partially accepted.

The description of the act referred to in Article 1 of the challenged Verdict of the Court of First Instance in Bitola, confirmed by virtue of the Verdict of the Court of Appeals in Bitola, all the essential elements of the criminal act ‘instigation of ethnic, racial and religious hatred, discord and intolerance’ referred to in Article 319 paragraph 1 of the Penal Code.

According to Article 319 paragraph 1 of the Penal Code, the criminal offence ’instigation of ethnic, racial or religious hatred, discord and intolerance’ is committed by the one who has instigate or incited ethnic, racial or religious hatred, discord and intolerance using force, molesting, jeopardizing of safety, mocking national, ethnic or religious symbols, damaging somebody else's possessions, desecrating monuments, graves or in other way; and s/he shall be punished with an imprisonment from one to five years.

According to paragraph 2 of the aforesaid Article, the one who has committed the criminal offence referred to in paragraph 1 abusing his position or authorisations or if riots and violence or damages of big proportions have risen due to those acts shall be punished to a punishment of imprisonment from one to ten years.

The Supreme Court has found and hereby states that the lower courts had established all the facts and presented all the evidence which confirm the acts of the convict in the totality of the description thereof correctly and undoubtfully. For the Supreme Court is not disputable that after his dethronement and defrocking from the position of Metropolitan and Diocese Archpriest by virtue of the decision of the Holy Archpriests’ Synod of the Macedonian Orthodox Church was appointed to be an Eparch of the Ohrid Archbishopric in Macedonia by the decision of the Serbian Orthodox Church, and it is supported by the statement of the defence as well. He had started to work in the Republic of Macedonia in the aforesaid capacity and from the aforesaid position denying the existence of the Macedonian Orthodox Church and organising religious services and church rites in Macedonia. Therefore he had consciously drawn the text of the Religious Calendar for the year of 2004 which was published by the inexistent Monastery of St. John the Chrisostom’ in the villa of his parents in Nizepole near Bitola.

The Supreme Court of the Republic of Macedonia finds that the way in which the convict Jovan Vraniskovski had made public presentations by means of the Religious Calendar for the year of 2004 as a public writings, which was distributed to the houses of the believers from Bitola and out of it, the formulations he used, his capacity, the goal he wanted to achieve, the consequences of his work, analysed in the totality of exercising of the right to a freedom of belief, conscious and religion, as well as the right to free exercise of religious freedom of others and practising his religion in general; constitutes an act being directly towards the violation of the legal order guaranteeing the aforesaid rights as the inviolable rights of a man. A criminal offence is committed when performing of any act is manifested in any way expressing sensible consciousness that certain statements have a character of propaganda instigating ethnic, racial and religious hatred, discord and intolerance.

The Supreme Court has established that the Article 16 of the Constitution of the Republic of Macedonia guarantees the freedom of belief, conscious and public expressions of thought.

The Article 19 of the Constitution of the Republic of Macedonia guarantees the freedom of religion.

The Article 54 of the Constitution of the Republic of Macedonia provides for that the freedoms and the rights of a man and a citizen may be restricted only in cases determined by the Constitution.

According to paragraph 4 of the aforesaid Article of the Constitution, restriction of freedoms and rights may not refer to the freedom of belief, conscious, thought and public expressing of thought and religion.

The aforesaid right is also guaranteed and provided for by the Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, determining that everyone has a right to freedom of thought, conscious and religion, including the right to change religion or belief : individually or in community with other people, privately or in public to manifest the religion thereof, or to a belief through teaching, practicing and maintaining of services or rites and vice versa. According to paragraph 2 of Article 9, the freedom manifesting religion or belief may be restricted only by virtue of a law and in case it is necessary for a democratic society in the interest of public security, public health or moral or for the protection of the rights of the others.

The work of the convict Jovan Vraniskovski n the Republic of Macedonia as an Exarch of the so called Ohrid Archbishopric upon appointment by the Patriarch of the Serbian Orthodox Church, aiming establishment of a parallel Synod in the Republic of Macedonia has lost completely the contents of the right to a freedom of belief, thought and religion. According to the circumstances of the case, the undisputable facts and evidence which great part has not been challenged even by Jovan Vraniskovski himself, confirm that the public manifesting of belief, or as the convict has stated, his right to a freedom of religion through the Religious Calendar for the year of 2004, addressing and aimed for the orthodox believers of the Macedonian Orthodox Church, in the opinion of the Supreme Court does not consist in manifesting of some personal intellectual position of his, or a method of intellectual, theological or scientific-historical belief addressing the believers of the Macedonian Orthodox Church. What is presented in the Religious Calendar for the year of 2004 means direct violation of the freedom of others to have right to a thought, belief, religion, i.e., existence according to the Cannons of the Orthodoxy, church rites thereof etc., with regard to the aim and contents thereof. The contents of the Religious Calendar means direct calling and inciting of religious intolerance, creation of discord among the orthodox believers of the Macedonian Orthodox Church.

‘The rights of others’, i.e., the religious freedom, understands respect of the believers as the Article 9 of the European Convention on Human Rights guarantees. According to the evaluation of the Supreme Court, it has been violated by the provocative picture of the events in the Calendar, malicious and insulting statements such as ‘those who claim that the Macedonian Orthodox Church exists, spread heresy, because the Macedonian Orthodox Church is a heresy’; and to put it most mildly, it is not a usual characteristic of communication between the believers and the Churches.

This type of expressions of the convict Jovan Vraniskovski and similar behaviour during performing of religious service, always in capacity of the Exarch appointed by the Serbian Orthodox Church, reaches high level of abuse and is a manifestation of denying, i.e., jeopardizing of the freedom of others, freedom of religion and belief, and it may not be tolerated in any free and democratic society. The target of his work are the believers of the Macedonian Orthodox Church and the aim is instigation of religious hatred and intolerance.

Therefore, the Supreme Court of the Republic of Macedonia, has found that the totality of work described in line 1 of the description of the criminal offence of the challenged verdict constitutes the essence of the criminal offence ‘instigation of ethnic, racial and religious hatred and intolerance’ referred to in Article 319 paragraph 1 of the Penal Code.

The Supreme Court of the Republic of Macedonia has determined that the demand of the convict Jovan Vraniskovski is grounded with regard to the acts referred to in line 2 and 3 of the challenged verdicts.

Those two acts may not be a part of the legal essence of the criminal offence ‘instigation of ethnic, racial and religious hatred, discord and intolerance’ referred to in Article 319 paragraph 1 of the Penal Code. The reasons for this position of the Supreme Court are the following :

As the Court has Stated, the Articles 16 and 19 of the Constitution of the Republic of Macedonia guarantees the right to a freedom of belief, conscious, thought and public manifest of thought and the right to a freedom of religion.

According to those rights referred to in the Constitution of the Republic of Macedonia, the presence at the ordination performed out of the Republic of Macedonia, in a foreign country and by other persons, may not be deemed for an act referred to in the Penal Code with regard to prohibition or realization of a criminal offence. The aforesaid act belongs to the sphere of the constitutionally guaranteed rights to a freedom of belief, and freedom of religion, understanding also a right to free manifesting, to change of religion, and by such attendance the right of others are not jeopardised.

The Supreme Court finds that the act referred to in line 3 of the challenged verdict may not be qualified legally as the criminal offence referred to in Article 319 paragraph 1 of the Penal Code. Performance of the church rite as the first co-officiating and communion with other believers from the same religious group, belongs to the sphere of exercise of the right to a freedom of religion, understanding freedom of performance of church rites in private or public facilities, referred to in the Article 9 of the European Convention on Human Rights.

Upon the Demand for extraordinary examination of the enforceable verdict, the Supreme Court has also examined the challenged verdict with regard to the correct implementation of the Penal Code concerning the punishment pronounced to the convict Jovan Vraniskovski, although it does not states it.

According to Article 413 of the Law on Penal Proceedings, the Demand for examination of an enforceable verdict may be filed as well for the following : 1) as for a violation of the Penal code at the detriment of the convict, referred to in Article 356 items 1 to 4 of the aforesaid Law, or the violation of the item 5 of the aforesaid Article in case that the exceeding of authorisations refers to the decision with regard to the punishment, the alternative measure or the confiscation of the property or acquiring property and confiscation of possessions or of the property acquired.

In this case, it means that the challenged verdict may be examined with regard to the decision for the punishment pronounced by virtue of the extraordinary legal remedy Demand for extraordinary examination of an enforceable verdict, if the due authorisations of the Court has been exceeded.

The punishment of imprisonment form one to five years is provided for in accordance with Article 319 of the Penal Code, as the lower Courts have pronounced, i.e., confirmed the punishment of 1 (one) year and 6 (six) months, and according to the finding of the Supreme Court, the aforesaid punishment does not exceed the due authorisation of the Court. Therefore, in this case, as the punishment pronounced is within the framework of the punishment provided for in the Article 319 paragraph 1 of the Penal Code, with regard to this extraordinary legal remedy, the Supreme Court has no other legal authorisation for examination thereof. The punishment pronounced to the convict may be examined in a legal proceedings after the enforceability is reached, only if the convict files extraordinary legal remedy for mitigation of the punishment referred to in the Article 399 of the Law on Penal Proceedings.

Pursuant to all the aforesaid, and with regard to the Article 415 in conjunction with the Articles 412 and 407 of the Law on Penal Proceedings, the Supreme Court of the Republic of Macedonia has decided as stated in the wording of this Verdict hereinabove.

Decided by the Supreme Court of the Republic of Macedonia on 13th of September, 2005 under No. Psv. 191/2005.

Court Clerk
Roza Georgieva, Oh.

President of the Court/Chairman of the Panel
Dane Iliev, Oh.

This is a true copy of the original. Secretary : (signature)

LD.