GEROVSKA POPCEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 48783/07 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 17 (07 January 2016)

In the case of Gerovska Popčevska v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Päivi Hirvelä, President,

Ledi Bianku,

Kristina Pardalos,

Paul Mahoney,

Ksenija Turković,

Robert Spano,

Armen Harutyunyan, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 1 December 2015, delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 48783/07) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian national, Ms Snežana Gerovska Popčevska (“the applicant”), on 1 November 2007.

2. The applicant was represented by Ms A. Pop-Trajkova Vangeli, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3. Mirjana Lazarova Trajkovska, the judge elected in respect of the former Yugoslav Republic of Macedonia, was unable to sit in the case (Rule 28). On 26 August 2014 the President of the Chamber decided to appoint Ksenija Turković to sit as an ad hoc judge (Rule 29).

4. The applicant complained, inter alia, that she had been dismissed from the office of judge in proceedings that did not meet the standards of Article 6 of the Convention. In particular, she alleged that her case had not been considered by an “independent and impartial tribunal”.

5. On 18 February 2013 the application was communicated to the Government. It was also decided to apply Rule 41 of the Rules of Court and grant priority treatment to the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1954 and lives in Skopje.

A. Proceedings in which the applicant was dismissed for professional misconduct

7. On 3 April 2006 the State Anti-Corruption Commission, chaired at the time by M.M., who subsequently (July 2006) became the Minister of Justice, asked the State Judicial Council (“the SJC”) to review (предлог за проверка) a civil case (no. IV P.br. 2904/01) which the applicant had adjudicated at first instance as president of a three-judge panel. The case concerned compensation proceedings against the State.

8. On 19 April 2006 the Civil Division of the Supreme Court convened to draw up an opinion stating that there were grounds for instituting professional misconduct proceedings in respect of the applicant regarding civil case no. IV P.br. 2904/01. According to the record of that meeting, the opinion had been requested by Judge D.I., who was the President of the Supreme Court at that time. The record did not list the members of the Civil Division of the Supreme Court that adopted the opinion. According to the applicant, Judge D.I. was a member of the Civil Division that adopted the opinion.

9. On 26 April 2006 the SJC asked the plenary of the Supreme Court, under section 21 of the State Judicial Council Act of 1992 (“the 1992 Act”, see paragraph 24 below), to draw up a report on the issue of whether the applicant’s dismissal from the office of judge would be justified.

10. On the same date the SJC, composed in accordance with Article 104 of the Constitution (see paragraph 22 below), instituted (поведува постапка) professional misconduct proceedings in respect of the applicant due to misapplication of procedural and substantive law in civil case no. IV P.br. 2904/01. It referred to the request submitted by the State Anti-Corruption Commission and further relied, inter alia, on the opinion of the Civil Division of the Supreme Court. The applicant responded in writing.

11. In December 2006 eight members of the SJC (all judges) were appointed in accordance with Amendment XXVIII of the Constitution (see paragraph 23 below). V.G., a member of the SJC, was nominated as the complainant (овластен предлагач), as set out in section 55 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 25 below), in the applicant’s case.

12. On 25 December 2006 the plenary of the Supreme Court, chaired by Judge D.I., drew up an opinion regarding the applicant’s case. The relevant part of the opinion, signed by Judge D.I., reads as follows:

“The plenary of the Supreme Court ... unanimously endorses the complete [text of] the opinion of the Civil Division and finds that there are grounds for dismissing (the applicant) for professional misconduct.”

13. On 26 February 2007 a hearing was held before the SJC Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”), set up under section 58 of the 2006 Act (see paragraph 25 below). V.G. was not a member of the Commission. Both the applicant, who was represented by legal counsel, and V.G. submitted their arguments verbally. The Commission also took into account the opinions of the Civil Division and the plenary of the Supreme Court. On 28 February 2007 it drew up a report, which it communicated to the SJC.

14. On 14 March 2007 the plenary of the SJC, which included only ten of its members, namely eight judges elected by their peers, as well as the then Minister of Justice and Judge D.I., who were ex officio members of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), dismissed the applicant from the office of judge for professional misconduct. The SJC found that she had wrongly applied procedural and material law in civil case no. IV P.br. 2904/01, which she had decided out of the established order in which cases should have been dealt with. The dismissal decision referred to the request submitted by the State Anti-Corruption Commission and further was based on evidence adduced at the hearing before the Commission, including the opinions of the Civil Division and the plenary of the Supreme Court.

15. The applicant challenged that decision at second instance, namely before an appeal panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified in section 60 of the 2006 Act (see paragraph 25 below), the Appeal Panel was composed of nine judges, of whom three were Supreme Court judges, four Appeal Court judges and two judges from the court of the applicant. On 8 May 2007 the Appeal Panel dismissed the applicant’s appeal and upheld the SJC’s decision. The Appeal Panel included Judge L.Š., who had adjudicated in another case allegedly related to case no. IV P.br. 2904/01. According to the applicant, her request for the withdrawal of Judge L.Š., a copy of which was not produced, was to no avail.

B. Proceedings before the Constitutional Court

16. On 19 December 2007 the Constitutional Court rejected (отфрла) a constitutional appeal in which the applicant claimed that her dismissal had violated her freedom of conscience, freedom of thought and freedom of public expression. As regards the dismissal, the Constitutional Court found that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between exercising the office of judge and that particular freedom. It ruled that the office of judge entailed the right and duty to adjudicate in accordance with the law, and that that right and duty did not form part of the rights and freedoms on which it had competence to decide under the Constitution (У.бр.145/2007).

C. Media reports regarding the applicant’s case

17. The applicant submitted copies of several articles published between April and December 2006 in the daily newspapers Vreme and Dnevnik.

18. An article published on 20 April 2006 quoted a report by the Supreme Court stating that the law had been wrongly applied in civil case no. IV P.br. 2904/01.

19. An article of 27 December 2006 stated that the Supreme Court had confirmed that the applicant should be dismissed from office. It reported Judge D.I. as saying that the SJC in its new composition should follow their recommendations. In this connection, the article quoted Judge D.I. as saying:

“We only gave a reminder that responsibility should be established (треба да се сноси одговорност).”

20. An article of 28 December 2008 stated:

“D.I., the President of the [Supreme] Court, asked (the SJC) to dismiss (the applicant) for professional misconduct.”

21. An article dated 11 January 2007 published in the daily newspaper Dnevnik quoted Judge D.I. as saying, inter alia:

“We will submit an opinion as to whether (the applicant) should be dismissed once the responsibility of other institutions has been established. For the Supreme Court, that there has been professional misconduct [on the part of the applicant] is beyond any doubt (не е спорна нестручноста и несовесноста на судијката во случајов). The Civil Division has already established that.”

II. RELEVANT DOMESTIC LAW

A. The 1991 Constitution, as amended in 2005

22. The relevant provisions of the 1991 Constitution read as follows:

Article 104

“The State Judicial Council is composed of seven members. The Parliament elects the members of the Council. The members of the Council are elected from among outstanding members of the legal profession for a term of six years with the possibility of being re-elected once ...”

Article 105

“The State Judicial Council:

- proposes to the Parliamentary Assembly the names of judges for election and decides on proposals for the removal of a judge from office in cases set out in the Constitution ...”

23. In December 2005 Parliament adopted several Amendments to the Constitution. Amendment XXVIII and Amendment XIX replaced Articles 104 and 105, respectively. The relevant provisions read as follows:

Amendment XXVI

“1. ... a judge can be dismissed from office:

- for a serious violation of disciplinary rules which renders him or her unsuitable to exercise the office of judge; and

- for exercising the office of judge in an unprofessional and unconscientious manner, under conditions stipulated by law.”

Amendment XXVIII

“... The State Judicial Council is composed of fifteen members. The President of the Supreme Court of the Republic of Macedonia and the Minister of Justice are ex officio members of the Council. Eight members of the Council are elected by judges from among their peers ... Three members of the Council are elected by Parliament ... Two members are proposed by the President of the Republic and elected by the Parliament ...”

Amendment XXIX

“The State Judicial Council of the Republic of Macedonia:

- elects and dismisses judges and lay judges ...”

B. State Judicial Council Act 1992 (Official Gazette nos. 80/1992; 50/1999 and 43/2003)

24. The relevant provisions of the 1992 Act read as follows:

“b) Determination of professional misconduct in the exercise of a judge’s office

Section 21(2)

Before it rules on a request for determination of professional misconduct by a judge, the State Judicial Council shall obtain an opinion by the court of the judge concerned and by the plenary of the Supreme Court as to whether the request for his or her dismissal is justified ...”

C. State Judicial Council Act 2006 (Official Gazette no. 60/2006)

25. The relevant provisions of the 2006 Act read as follows:

Grounds for dismissal of a judge
Section 53(1)(2)

“A judge can be dismissed for unprofessional and unconscientious exercise of the office of judge under conditions specified by law.”

Disciplinary proceedings
Section 55

“Disciplinary proceedings may be instituted by a member of the SJC, the president of the court of a judge whose dismissal is being sought, or the president of the higher court or plenary of the Supreme Court ...

Disciplinary proceedings are urgent and confidential. The public are excluded in the interests of the reputation and dignity of the judge concerned.

The SJC sets up a Disciplinary Commission composed of five of its members.

A judge against whom proceedings have been instituted may respond to the request for disciplinary proceedings in writing or orally within eight days of the date of service of that request.

A judge against whom proceedings have been instituted has the right to a legal representative.

When it receives a request, the Disciplinary Commission collects information and draws up a report, which it submits to the SJC to establish whether the request is justified. On the basis of that report the SJC may initiate or stay disciplinary proceedings.

...

The SJC adopts Rules regarding the proceedings (see paragraph 74 below).”

Proceedings for determination of professional misconduct by a judge (постапка за утврдување на нестручно и несовесно извршување на судиската функција)

Section 58

“Proceedings for determination of professional misconduct by a judge shall be carried out under section 55 by a Commission for of professional misconduct (“the Commission”).

The SJC sets up (the Commission) composed of five of its members.

...

On the basis of a report drawn up under section 55(6) of the Act and the hearing held before the SJC, the latter may:

- stay the proceedings; and

- dismiss a judge for professional misconduct.”

Right to appeal
Section 60

“The judge concerned may challenge the SJC’s dismissal or disciplinary decision before a second-instance panel set up within the Supreme Court (‘the Appeal Panel’)...

The Appeal Panel is composed of nine members, of whom three are Supreme Court judges, four Appeal Court judges and two judges of the court of the judge against whom proceedings have been conducted.

The President of the Supreme Court may not be a member of the Appeal Panel.”

D. State Judicial Council Act 2011 (Official Gazette no. 110/2011)

26. According to section 1 of the 2011 State Judicial Council Act the Minister of Justice participates in the work of the SJC without voting right.

27. Pursuant to section 6 of this Act, the Minister of Justice enjoys all rights, duties and responsibilities as the members of the SJC who have voting right, except to take part in the decisions of the SJC and to inspect the work of a judge.

E. Civil Proceedings Act of 2005

28. Section 400 of the 2005 Civil Proceedings Act provides for the possibility of reopening proceedings in respect of which the Court has found a violation of the Convention. In such reopened proceedings the domestic courts are required to comply with the provisions of the final judgment of the Court.

F. Act on the Council for establishing facts and instituting proceedings to determine the responsibility of a judge (Official Gazette no. 20/2015)

29. In February 2015 Parliament enacted new legislation providing for the creation of a Council for establishing facts and instituting proceedings to determine the responsibility of a judge (“the Council”). The new body’s role is to establish relevant facts in proceedings regulated under the Act and decide whether to apply for professional misconduct proceedings in respect of a judge (sections 2 and 49). It is composed of nine members (retired judges, prosecutors and lawyers, section 6) elected by all judges by direct and secret ballot (section 16). It can, inter alia, request the SJC to institute proceedings in order to determine the responsibility of a judge or president of a court (section 32). The Act became operational three months after its entry into force (section 53).

G. Rules governing professional misconduct proceedings in respect of a judge (Official Gazette no. 15/2007, Правилник за постапката и начинот за утврдување нестручно и несовесно вршење на судиската функција)

30. The relevant provisions of the Rules governing professional misconduct proceedings in respect of a judge read as follows:

Section 5

“Professional misconduct proceedings in respect of a judge may be instituted by a member of the SJC, the president of the court [of a judge whose dismissal is being sought], the president of the higher court or plenary of the Supreme Court of the Republic of Macedonia [‘the complainant’].

A request for professional misconduct proceedings shall contain a description of the grounds for instituting professional misconduct proceedings.

The request shall be accompanied by supporting evidence.”

Section 7

“The SJC decides whether a request for professional misconduct proceedings is timely, complete and admissible.

...

The SJC sets up a Commission for determination of professional misconduct (Комисија за утврдување нестручно и несовесно вршење на судиската функција) composed of five of its members.”

Preliminary proceedings
Section 8

“The Commission communicates the request to the judge concerned.

The judge may respond in writing or give a verbal statement within eight days of the request being served on him or her.

The judge against whom the request is submitted has the right to a legal representative whom he or she invites to the hearing.

Together with the observations in reply to the request, the judge concerned submits all evidence in support of his or her response ...”

Section 9

“The Commission seeks information and gathers evidence relevant for [the case].”

Section 10

“On the basis of information and evidence gathered, the Commission submits a report to the SJC stating whether the request is justified.”

Initiation of proceedings
Section 11

“The SJC examines the request and the Commission’s proposal and decides whether to institute or stay professional misconduct proceedings.

The SJC takes (this) decision by a majority vote of all its members ...”

Section 12(1)

“The decision specified in section 11 of the Rules is served on the complainant (подносител на барањето), the judge [whose dismissal is sought], and the president of that judge’s court and the case file is forwarded to the Commission.”

Section 13

“When the SJC institutes professional misconduct proceedings, it may temporarily suspend the judge concerned.”

Section 14

“The Commission schedules a hearing within thirty days of the institution of professional misconduct proceedings.

All members of the Commission attend the hearing.

The chairman of the Commission presides over the hearing.”

Section 15

“The complainant and the judge concerned are summoned to a hearing.

If they have been duly summoned and fail to attend without providing any justification, the hearing is held in their absence.”

Section 16

“All evidence presented by the complainant and the judge concerned and evidence obtained by the Commission is heard at the hearing.

The judge concerned may argue in relation to all evidence adduced at the hearing.”

Section 17(4)

“The record of the hearing is signed by the complainant, the judge concerned or his or her representative, the members of the Commission and the minute writer.”

Section 18

“The Commission draws up a report for the SJC within fifteen days of the hearing with a proposal for (one of the) following decisions:

- that the proceedings be stayed or

- that the judge be dismissed for professional misconduct.”

Section 20

“On the basis of the (Commission’s) report and after the hearing, the SJC may:

- stay the proceedings; or

- dismiss the judge for professional misconduct.”

Section 22(1) and (3)

“The SJC takes the (dismissal) decision by a two-thirds majority vote of all its members.

...

A transcript of the decision is served on the judge, his or her representative, the complainant and the president of the court of the judge concerned or the president of the immediate higher court.”

Section 23

The judge concerned may challenge the SJC’s dismissal decision before a second-instance panel set up within the Supreme Court (‘the Appeal Panel’) ...”

H. Rules of the Supreme Court (Official Gazette nos. 13/1998 and 21/2009)

31. The relevant provisions of the Rules of the Supreme Court read as follows:

Section 23

“The following judicial divisions are set up within the Supreme Court:

1. Criminal division

2. Civil division

3. Case-law division.”

Chapter III

Work of the court
Section 31

“The court carries out its work as specified by the Constitution and the Courts Act through:

- chambers;

- session of divisions;

- joint session of divisions;

- plenary session.”

2. Court divisions

Organisation and competencies of divisions
Section 37(2)

“Proceedings and decisions in cases concerning personal, family, labour, property and other civil relationships between legal and physical persons fall within the competence of judges of the civil division.”

Section 39(1)

“The division is composed of all judges who deal with cases that fall within the competence of that division, as well as (law clerks) ...”

III. INTERNATIONAL MATERIALS

A. The former Yugoslav Republic of Macedonia 2010 Progress Report, European Commission, Brussels, 9 November 2010

32. The relevant part of the Progress Report reads as follows:

“4.23. Chapter 23: Judiciary and fundamental rights

... the role of the Minister of Justice within the State Judicial Council and the Council of Public Prosecutors raises serious concerns about the interference of the executive power and political control in the work of the judiciary. Controversial dismissals and undue interference by the Minister of Justice indicate that the current system is not in compliance with European standards ...”

B. Opinion on the draft constitutional amendments concerning the reform of the judicial system in “the former Yugoslav Republic of Macedonia” adopted by the Commission at its 64th plenary session, European Commission for democracy through law (Venice Commission), CDL-AD(2005)038, Venice, 21-22 October 2005

33. The relevant part of the Opinion read as follow:

“41. In order to minimise the influence of the executive, the mandatory membership of the Minister of Justice in the State Judicial Council could be changed to a right to be present at the sessions of the Judicial Council or membership without voting rights.”

C. Opinion no. 10(2007) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society, Strasbourg, 23-27 November 2007

34. The relevant provisions of the Opinion read as follows:

II. GENERAL MISSION: TO SAFEGUARD THE INDEPENDENCE OF THE JUDICIARY AND THE RULE OF LAW

“8. The Council for the Judiciary is intended to safeguard both the independence of the judicial system and the independence of individual judges. The existence of independent and impartial courts is a structural requirement of a state governed by the rule of law.

V. C. 2. Discipline

62. The question of a judge’s responsibility was examined by the CCJE in Opinion No.3 (2002). The recent experiences of some States show the need to protect judges from the temptation to broaden the scope of their responsibility in purely jurisdictional matters. The role of the Council for the Judiciary is to show that a judge cannot bear the same responsibilities as a member of another profession: he/she performs a public function and cannot refuse to adjudicate on disputes. Furthermore, if the judge is exposed to legal and disciplinary sanctions against his/her decisions, neither judicial independence nor the democratic balance of powers can be maintained. The Council for the Judiciary should, therefore, unequivocally condemn political projects designed to limit the judges’ freedom of decision-making. This does not diminish judges’ duty to respect the law.

63. A judge who neglects his/her cases through indolence or who is blatantly incompetent when dealing with them should face disciplinary sanctions. Even in such cases, as indicated by CCJE Opinion No.3(2002), it is important that judges enjoy the protection of a disciplinary proceeding guaranteeing the respect of the principle of independence of the judiciary and carried out before a body free from any political influence, on the basis of clearly defined disciplinary faults: a Head of State, Minister of Justice or any other representative of political authorities cannot take part in the disciplinary body.

64. The Council for the Judiciary is entrusted with ethical issues; it may furthermore address court users’ complaints. In order to avoid conflicts of interest, disciplinary procedures in first instance, when not addressed within the jurisdiction of a disciplinary court, should preferably be dealt with by a disciplinary commission composed of a substantial representation of judges elected by their peers, different from the members of the Council for the Judiciary, with provision of an appeal before a superior court.”

D. Magna Carta of Judges (Fundamental Principles), Consultative Council of European Judges, Strasbourg, 17 November 2010 CCJE (2010)3 Final

35. The relevant provisions of the Magna Carta of Judges read as follows:

Guarantees of independence

“6. Disciplinary proceedings shall take place before an independent body with the possibility of recourse before a court.”

Body in charge of guaranteeing independence

“13. To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

36. The applicant complained under Article 6 § 1 of the Convention that the SJC was not “an independent and impartial tribunal” in view of the participation of the then President of the Supreme Court and the Minister of Justice in the decision of the SJC on her dismissal. She alleged that both had had a preconceived idea about the merits of the issue, namely her dismissal. Furthermore, the personal bias of the President of the Supreme Court had been further strengthened by statements in the media, in which he had expressed unfavourable views about her. Lastly, the Minister’s vote had been decisive for her dismissal, which implied that there had been interference by the executive with the judiciary. The relevant part of Article 6 § 1 of the Convention reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

37. The Government did not raise any objection as to the admissibility of the complaints.

38. Notwithstanding the absence of any objection by the Government regarding the admissibility of the complaints under this head, the Court would like to address the issue of applicability of Article 6 of the Convention. It notes that the applicant’s case was considered by the SJC, which determined all the questions of fact and law after holding a hearing and assessing the evidence. A plenary meeting of the SJC adopted a decision on the applicant’s dismissal, which was reviewed by the Appeal Panel, a body composed of judges performing a judicial function. In such circumstances, the Court considers that Article 6 applies to the impugned proceedings under its civil head (for an analysis of the Eskelinen test (Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007 II), see Olujić v. Croatia, no. 22330/05, §§ 31-45, 5 February 2009, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 91, ECHR 2013).

39. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The issue of independence and impartiality of the State Judicial Council

(a) The parties’ submissions

40. The applicant submitted that the SJC had not been impartial because it had included the President of the Supreme Court and the Minister of Justice despite the fact that the former had had a preconceived idea (given his participation in the Civil Division and plenary of the Supreme Court) about her dismissal, and the latter, as President of the Anti-Corruption Commission, had set in motion the impugned proceedings against her. She further reiterated that, given the incomplete composition of the SJC at the time, the participation of the Minister of Justice in the SJC’s decision to dismiss her had affected the independence of the SJC.

41. The Government submitted that whereas the President of the Supreme Court had chaired the plenary of that court, another member of the judiciary presided over that court division (Judge S.K. in respect of the Civil Division in the applicant’s case). In any event, the President of the Supreme Court could not influence the decisions or opinions of the plenary or divisions of the Supreme Court because those bodies took decisions by a majority vote of all their members. Furthermore, the President of the Supreme Court had withdrawn and abstained from voting in the plenary or in any division of the Supreme Court in cases in which he had sat as a member of the SJC. The opinion adopted unanimously by the plenary of the Supreme Court had been requested by the SJC (see paragraphs 9 and 24 above). The public statements of the President of the Supreme Court regarding the applicant did not raise any doubts as to his personal impartiality, because they did not reflect his personal opinion. They had been made in the context of his competence to represent the Supreme Court and inform the public about important cases.

42. As to the role of the Minister of Justice, the Government submitted that the SJC was a first-instance tribunal vested with jurisdiction to examine and decide each case separately. The fact that the majority of the members of the SJC were judges elected by their peers in direct and secret ballots was a strong indicator of its impartiality. They confirmed that the SJC that had dismissed the applicant had been composed of ten members: eight judges elected by their peers, as well as the President of the Supreme Court and the Minister of Justice as ex officio members. The dismissal decision had been adopted unanimously, in compliance with the two-thirds majority requirement. They denied that the decision of the Minister of Justice, as an individual member, could compromise the entire SJC. In this connection they stressed that the Minister had no powers regarding the election or dismissal of members of the SJC (they referred, by contrast, to Oleksandr Volkov, cited above, § 114).

(b) The Court’s assessment

(i) General principles

43. The Court reiterates that as a rule, impartiality denotes the absence of prejudice or bias. According to its settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to: (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge - that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Fey v. Austria, 24 February 1993, §§ 28 and 30, Series A no. 255, and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).

44. However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test), but may also raise the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996-III).

45. In this respect, even appearances may be of certain importance; in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, 23 April 2015 and De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).

46. Finally, the concepts of independence and objective impartiality are closely linked, and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France, no. 65411/01, § 62, ECHR 2006-XIII). Having regard to the facts of the present case, the Court finds it appropriate to examine the issues of independence and impartiality together.

(ii) Application to the present case

47. In the present case, the Court notes that the Supreme Court adopted two opinions as to whether there was any professional misconduct on the applicant’s part in civil case no. IV. P.br.2904/01.

48. First, on 19 April 2006 the Civil Division of the Supreme Court, which was competent to discuss procedural and substantive issues related to civil cases (see section 37(2) of the Rules of the Supreme Court, paragraph 31 above), found that there were grounds for establishing professional misconduct by the applicant. That opinion had been requested by Judge D.I. (see paragraph 8 above). Although the Government have submitted that at the time, the Civil Division was chaired by Judge S.K., they did not contest the applicant’s allegation that Judge D.I. had been a member of the Civil Division that adopted that opinion (see paragraphs 8, 40 and 41 above).

49. Secondly, on 25 December 2006 the plenary of the Supreme Court voted in favour of an opinion in which it found that there were “grounds for dismissing (the applicant) for professional misconduct”. Judge D.I. chaired the plenary of that court and signed the opinion. The Court places strong emphasis on the fact that that opinion was adopted unanimously (see paragraphs 12 and 41 above). The Government have not presented the Court with any evidence that Judge D.I. withdrew or abstained from voting for the opinion of the plenary of the Supreme Court. Furthermore, no provision of the legislation or specific example of domestic practice requiring the President of the Supreme Court to withdraw or abstain from voting in such a case has been brought to the Court’s attention. In such circumstances, the Court cannot but conclude that Judge D.I. voted in favour of the opinion of the plenary of the Supreme Court. Since that opinion was requested by the SJC under section 21(2) of the 1992 State Judicial Council Act, valid at the time, Judge D.I. must have been aware that it would be used in the impugned proceedings against the applicant that were pending before the SJC.

50. In such circumstances, the Court considers that the applicant had legitimate grounds for fearing that Judge D.I., the then President of the Supreme Court, was already personally convinced that she should be dismissed for professional misconduct before that issue came before the SJC (see, mutatis mutandis, Werner v. Austria, 24 November 1997, § 41, Reports 1997-VII).

51. In the decision dismissing the applicant, the SJC relied on the opinions of both the Civil Division and the plenary of the Supreme Court (see paragraph 14 above). The applicant was dismissed by a unanimous vote of the plenary of the SJC, which included Judge D.I. as an ex officio member (see paragraphs 14 and 23 above).

52. It emerges from the foregoing that Judge D.I., as President of the Supreme Court, by having participated in approving the judicial opinion by, at least, the plenary of that court, expressed a view which was unfavourable to the applicant. Therefore, his further participation in the impugned professional misconduct proceedings before the SJC was incompatible with the requirement of impartiality under Article 6 § 1 of the Convention. In view of this finding, the Court does not consider it necessary to examine whether the public statements made by Judge D.I., as President of the Supreme Court, while the impugned proceedings were still pending were a further element contributing to a perception of bias on his part.

53. Similar considerations apply to the participation of the then Minister of Justice in the decision of the SJC to dismiss the applicant notwithstanding that he had requested, as the then President of the State Anti-Corruption Commission, that the SJC review the civil case IV P.br.2904/01 adjudicated by her (see Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 45, 30 April 2015).

54. Furthermore, the Court observes that, as confirmed by the Government, ten members of the new SJC delivered the decision of March 2007 by which the applicant was dismissed for professional misconduct. It had been adopted unanimously by those ten members. According to the Government, such a decision was in compliance with the “two-thirds majority” requirement (ten out of fifteen) set out at the time in the Rules of the SJC (see paragraph 42 above).

55. Be that as it may, the Court considers that the presence on that body of the Minister of Justice, as a member of the executive, impaired its independence in this particular case.

56. The Court therefore concludes that the SJC that adjudicated the applicant’s case was not “an independent and impartial” tribunal as required by Article 6 § 1 of the Convention. Accordingly, there was a violation of this Article.

2. Remaining complaints under Article 6 § 1 of the Convention

57. The applicant also complained that the impugned proceedings had not fulfilled some of the guarantees specified in Article 6 § 1 of the Convention: she had been unable to comment on evidence submitted against her; she had been denied the right to attend the hearing before the Appeal Panel set up within the Supreme Court; the Appeal Panel had not been impartial since it had included Judge L.Š.; sufficient reasons had not been given for her dismissal; and there had been errors in the application of the law.

58. Having regard to the above considerations and the conclusion that the applicant’s right to a hearing by an “independent and impartial tribunal” under Article 6 § 1 of the Convention was infringed, the Court declares these complaints admissible but considers that it is not necessary to examine them separately (see Oleksandr Volkov, cited above, § 159; Harabin v. Slovakia, no. 58688/11, § 143, 20 November 2012; and Nikolov v. the former Yugoslav Republic of Macedonia, no. 41195/02, § 29, 20 December 2007).

3. Complaint under Article 6 § 2 of the Convention

59. Lastly, the applicant alleged that the statements made to the media by members of the SJC and high-level politicians while the impugned proceedings were still in progress had violated her rights under Article 6 § 2 of the Convention.

60. The Court found that the civil limb of Article 6 of the Convention applies to the impugned proceedings (see paragraph 38 above). In any event, the applicant failed to claim compensation before the courts of general competence. Accordingly, she failed to exhaust effective domestic remedies (see Harabin, cited above, § 145, and Gorgievski v. the former Yugoslav Republic of Macedonia (dec.), no. 18002/02, 10 April 2006).

61. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

62. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

63. The applicant claimed that as a result of the unfair proceedings brought against her, she had lost the salary to which she would have been entitled as a judge. She provided a detailed calculation of her claim, which concerned her unpaid salary, social contributions and personal income tax. She claimed the equivalent of 96,000 euros (EUR) under this head. In this connection she submitted an expert opinion commissioned for the purpose of the proceedings before the Court. She also claimed reimbursement of the subscription fee for her admission, after her dismissal, to the Macedonian Bar. The applicant also claimed that as a consequence of the premature termination of her mandate and the media coverage, her professional reputation had been damaged and she had suffered mental distress and frustration. In this connection she claimed EUR 12,000 in respect of non-pecuniary damage.

64. The Government contested those claims and submitted that they were speculative, exorbitant and unsubstantiated. They argued that there was no causal link between the pecuniary damage claimed and the alleged violations.

65. The Court observes that an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of all the guarantees of Article 6 § 1 of the Convention. However, the Court cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 of the Convention would have been had the violations not been found. In the present case the Court sees no causal link between the breaches of Article 6 § 1 of the Convention and the alleged pecuniary damage. There is, therefore, no ground for an award under this head (see HIT d.d. Nova Gorica v. Slovenia, no. 50996/08, § 49, 5 June 2014; Bajaldžiev v. the former Yugoslav Republic of Macedonia, no. 4650/06, § 52, 25 October 2011; and Mežnarić v. Croatia, no. 71615/01, § 43, 15 July 2005).

66. On the other hand, the Court considers that the applicant must have suffered distress and anxiety on account of the violations found. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 4,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

67. A judgment in which the Court finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach occurred (see Harabin, cited above, § 177).

68. The Court has already established that in the event of a violation of Article 6 of the Convention, the applicant should, as far as possible, be put in the position he or she would have been in had the requirements of this provision not been disregarded. Therefore, the most appropriate form of redress in cases such as the present one would be the reopening of the proceedings, if requested. The Court notes, in this respect, that the Civil Proceedings Act provides for the possibility of proceedings being reopened where the Court concludes in a judgment that a court’s decision or proceedings prior to it were in breach of the fundamental human rights or freedoms of the party (see paragraph 28 above).

B. Costs and expenses

69. Regarding the costs and expenses incurred before the Court, the applicant claimed the equivalent of EUR 250 for the expert’s fees (see paragraph 63 above) and translation costs in the amount of EUR 60 (supported with an invoice). She further invited the Court to reimburse her legal representative’s fees in accordance with its own finding.

70. The Government contested those claims as unsubstantiated or not actually and necessarily incurred.

71. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France, no. 58148/00, § 64, ECHR 2004-IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 900 for the proceedings before the Court, plus any tax that may be chargeable to her.

C. Default interest

72. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints that the SJC was not “an independent and impartial tribunal”, as well the remaining complaints under Article 6 § 1 of the Convention (see paragraph 57 above) admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention in that the SJC lacked the requisite impartiality and independence given the participation of the then President of the Supreme Court and the Minister of Justice in the decision of the SJC dismissing the applicant;

3. Holds that there is no need to examine the remaining complaints under Article 6 § 1 of the Convention raised in the application;

4. Holds,

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 900 (nine hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Päivi Hirvelä
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> GEROVSKA POPCEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" - 48783/07 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 17 (07 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/17.html Cite as: (2018) 66 EHRR 12, 66 EHRR 12, [2016] ECHR 17