JAKSOVSKI AND TRIFUNOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 56381/09 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 6 (07 January 2016)

In the case of Jakšovski and Trifunovski 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 two applications (nos. 56381/09 and 58738/09) 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 two Macedonian nationals, Mr Goce Jakšovski (“the first applicant”) and Mr Miroslav Trifunovski (“the second applicant”), on 10 and 30 October 2009 respectively.

2. The first applicant was represented by Ms Z. Ivanoska, and the second applicant by Mr N. Trifunovski, lawyers practising in Skopje and Tetovo, respectively. 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 applicants complained, inter alia, that they had been dismissed from the office of judge in proceedings that did not meet the standards of Article 6 of the Convention. In particular, they alleged that their cases had not been considered by “independent and impartial tribunals”.

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

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1959 and 1946, and live in Ohrid and Tetovo, respectively.

A. Dismissal of the first applicant from the office of judge (application no. 56381/09)

7. Following allegations raised by a lawyer (which were subsequently withdrawn), V.V., a member of the State Judicial Council (“the SJC”), a body vested with jurisdiction to decide, inter alia, on the dismissal of judges (see Amendment XXIX to the Constitution, paragraph 20 below), made enquiries through the President of the court in which the first applicant worked as a judge. A preliminary inquiry was carried out, and on 19 April 2008 V.V. requested, under sections 55 and 58 of the State Judicial Act of 2006 (“the 2006 Act”, see paragraph 21 below) and section 5 of the Rules governing professional misconduct proceedings in respect of a judge (“the Rules”, see paragraph 25 below), that the SJC initiate professional misconduct proceedings in respect of the first applicant. In the request V.V. claimed that the first applicant had not been diligent in conducting proceedings in a civil case. The first applicant responded in writing.

8. On 4 June 2008 the SJC set up, under section 58 of the 2006 Act (see paragraph 21 below), a Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”).

9. On the basis of V.V.’s request and the Commission’s report as to whether the request was justified, on 3 October 2008 the plenary of the SJC initiated proceedings for professional misconduct in respect of the first applicant.

10. On 12 November 2008 the Commission held a hearing at which it heard evidence from V.V. and the first applicant. It also took other evidence into account. On 1 December 2008 the Commission drew up, under section 55(6) of the 2006 Act, a report on the question whether the request for the first applicant’s dismissal had been justified. It submitted the report to the plenary of the SJC for consideration.

11. On 17 December 2008 the plenary of the SJC, the composition of which included V.V., dismissed the first applicant for professional misconduct.

12. The first 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 under section 60 of the 2006 Act, they were composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges of the court of the applicant. On 24 September 2009 the Appeal Panel dismissed the first applicant’s appeal and upheld the SJC’s decision.

B. Relevant facts regarding the dismissal of the second applicant from the office of judge (application no. 58738/09)

1. Proceedings in which the second applicant was dismissed for professional misconduct

13. On 21 July 2008 R.P., a member of the SJC, applied to the SJC for professional misconduct proceedings to be instituted in respect of the second applicant. It had been alleged that, as an on-duty investigating judge, the second applicant had not been diligent in the investigation of an incident that had occurred in the Tetovo detention centre. Under section 8 of the Rules (see paragraph 25 below), the request was submitted to the second applicant for comments. He responded in writing.

14. On an unspecified date, the SJC set up, under section 58 of the 2006 Act, a five-member Commission in the second applicant’s case. On 12 December 2008 the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against the second applicant.

15. With two separate decisions delivered on 29 December 2008, the plenary of the SJC, including R.P., initiated professional misconduct proceedings in respect of the second applicant and ordered his temporary suspension. The decisions were not amenable to appeal.

16. On 20 January 2009 the Commission held a hearing at which R.P. and the second applicant presented their arguments and concluding remarks (завршни зборови). Evidence against the second applicant was also considered. On the same date, the Commission submitted a report to the SJC regarding the circumstances of the case.

17. On 12 February 2009 the plenary of the SJC, the composition of which included R.P., dismissed the second applicant for professional misconduct. The second applicant appealed against his dismissal to the Appeal Panel that had been formed in his case within the Supreme Court, arguing, inter alia, that he had not been given the opportunity to comment on the evidence against him when the request for his dismissal had been served on him. He also asked the Appeal Panel to inform him of the date of its session. At a hearing held in private on 5 May 2009, the Appeal Panel dismissed the second applicant’s appeal.

18. On 25 June 2009 the second applicant challenged his dismissal before the Administrative Court by means of an administrative-dispute action (тужба за управен спор). He complained, inter alia, about the alleged refusal of his request for exclusion of Judges N.I. and J.V. who had been parties to the decision of the Appeal Panel in his case. He had requested their withdrawal because Judge N.I. had applied at the relevant time to the SJC for the post of president of a first-instance court, and Judge J.V. allegedly had a close relationship with the public prosecutor involved in the case in respect of which he had been dismissed. On 6 October 2010 the Administrative Court rejected the second applicant’s action as inadmissible. That decision was upheld by the Higher Administrative Court.

2. Media reports regarding the second applicant’s case

19. The second applicant produced copies of articles published in local newspapers on 26 January and 13 February 2009 reporting on his case. The article published on 26 January 2009 cited the then President of the SJC as saying that the Commission was still dealing with the case and that no report had yet been submitted to the SJC for consideration. On 13 February 2009 the newspaper announced that the second applicant had been removed from office.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The 1991 Constitution, as amended by the 2005 Constitutional Amendments

20. In December 2005 Parliament adopted several Amendments to the 1991 Constitution. 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;

- establishes the termination of a judge’s office;

- elects and dismisses presidents of courts;

- monitors and evaluate the work of judges;

- decides on judges’ disciplinary responsibility;

- decides whether to strip judges of their immunity;

- proposes two judges of the Constitutional Court ...

...

The Council submits an annual report for its work to the Parliament. The form, contents and way of adoption (of the report) is regulated by law.”

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

21. Relevant provisions of the 2006 Act read as follows:

Aims
Section 2

“The Judicial Council is an autonomous and independent judicial body. The Council is responsible to ensure and safeguards the autonomy and independence of the judiciary ...”

Competence
Section 31

“The SJC is competent (inter alia) to:

- elect and dismiss judges;

- elect and dismiss presidents of courts;

- establish the termination of a judge’s office;

- elect and dismiss lay judges;

- monitor and evaluate the work of judges;

- decide on judges’ disciplinary responsibility;

- decide on the termination of a judge’s office for permanent lack of capacity to exercise the office of judge;

- decide whether to strip judges of their immunity;

- decide on a request for detention of a judge;

- decide on a judge’s temporary suspension from work;

- determine the number of judicial posts;

- assess reports concerning the work of courts;

- maintain the reputation of judges and public confidence in the judiciary;

- decide on complaints by citizens and legal entities regarding the work of courts ...”

Election of a first-instance court judge
Section 40

“The SJC elects a first-instance court judge from the list of candidates submitted by the Academy for training of judges and prosecutors (from among candidates) that applied to a vacancy announcement ...”

Election of a judge in a higher court
Section 41

“The SJC elects a judge in Appeal, Administrative and Supreme Courts from among candidates who applied to a vacancy announcement and fulfil the criteria specified by the Courts Act and this Act ...”

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 determine 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.”

Decisions of the SJC
Section 56

“On the basis of the report specified in section 55(6) of this Act and the deliberations, the SJC may:

- stay the disciplinary proceedings;

- issue an adequate disciplinary penalty; or

- dismiss the judge for gross violation of disciplinary rules (потешка дисциплинска повреда).”

Disciplinary penalties
Section 57

“The SJC may impose the following disciplinary penalties:

- a written reprimand

- a public reprimand, and

- a salary reduction in the range of 15% to 30% of the monthly salary of a judge, for one to six months.”

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 the determination 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; or

- 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.”

C. Civil Proceedings Act of 2005

22. 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.

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

23. 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 by this 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).

E. Rules governing professional misconduct proceedings in respect of a judge (Official Gazette nos. 15/2007 and 142/2009, Правилник за постапката и начинот за утврдување нестручно и несовесно вршење на судиската функција)

24. Until the decision of the Constitutional Court of 15 September 2010 took effect (see paragraph 26 below), professional misconduct proceedings in respect of a judge were regulated in detail by the Rules.

25. 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 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 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 can 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.”

F. Relevant domestic practice

26. By a decision of 15 September 2010 (U.br.56/2010), the Constitutional Court rejected as unconstitutional several provisions of the Rules regarding professional misconduct proceedings in respect of a judge. The court found that while the SJC was entitled to set out its rules of procedure in internal documents, it had no competence to define genuine procedural rules for which there was no statutory basis.

III. INTERNATIONAL MATERIALS

A. 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

27. 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.”

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

28. 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.”

C. Report on the independence of the judicial system Part I: The independence of judges, European Commission for Democracy through law (Venice Commission), Venice, 12-13 March 2010

“IV. Conclusions

82. The following standards should be respected by states in order to ensure internal and external judicial independence:

...

6. Judicial councils, or disciplinary courts, should have a decisive influence in disciplinary proceedings. The possibility of an appeal to a court against decisions of disciplinary bodies should be provided for ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

29. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar legal background.

II. ALLEGED LACK OF IMPARTIALITY AND INDEPENDENCE UNDER ARTICLE 6 § 1 OF THE CONVENTION

30. The applicants complained under Article 6 § 1 of the Convention that the SJC was not “an independent and impartial tribunal” because members of the SJC who had instituted the impugned proceedings had subsequently taken part in the SJC’s decision dismissing them. Article 6 § 1 of the Convention, in so far as relevant, 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

31. The Government did not raise any objection as to the admissibility of this complaint.

32. Notwithstanding the absence of any objection by the Government regarding the admissibility of the complaint under this head, the Court would like to address the issue of applicability of Article 6 of the Convention. It notes that the applicants’ cases were 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 applicants’ 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).

33. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

34. The applicants submitted that the member of the SJC who had initiated the impugned proceedings and put before the Commission arguments in support of his or her request, had ultimately taken part in the decision of the plenary of the SJC to dismiss them. This had led to a situation where the same member of the SJC had both “pressed charges and dismissed a judge”.

35. The Government explained the proceedings before the SJC, in particular the role of the Commission, which was to consider the facts and merits of the cases. The complainant (a member of the SJC in the present cases) who had sought the institution of the impugned proceedings had not been a member of the Commission. The latter had held separate hearings in each case, at which it had heard evidence and the parties’ arguments. It had then drawn up a report on each case with a recommendation for a decision (предлог за донесување одлука), which had been forwarded to the plenary of the SJC. The Commission had not held a “preliminary inquiry”, but was to be considered a panel within the SJC.

2. The Court’s assessment

a) General principles

36. The Court reiterates that as a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s 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).

37. 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).

38. 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).

39. Lastly, 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).

b) Application to the present case

40. The Court notes that in accordance with Amendment XXVIII to the Constitution (see paragraph 20 above), the SJC was composed of fifteen members, of which the President of the Supreme Court and the Minister of Justice were ex officio members; eight members were elected by judges from among their peers and five members were elected by Parliament. Professional misconduct proceedings before the SJC were regulated in detail by the 2006 Act and the Rules according to which a finding by the SJC of professional misconduct by a judge could lead only to removal of that judge from office. Dismissal was the only measure available in cases of professional misconduct, in contrast to disciplinary proceedings, for which other measures were available (see sections 55 and 58 of the 2006 Act, paragraph 21 above).

41. Section 58 of the 2006 Act provided that any SJC member could ask the SJC to establish whether there had been professional misconduct on the part of a judge. Indeed, V.V. requested such proceedings in respect of the first applicant, and R.P. requested them in respect of the second applicant. Both “complainants” were members of the SJC. Regarding the first applicant, V.V. pursued his request despite the fact that the lawyer who had prompted his intervention in the first place had subsequently withdrawn his allegation. The facts demonstrate that the request in the first applicant’s case was preceded by a preliminary inquiry conducted by V.V. to gather relevant information and evidence. In support of that practice was the requirement that complainants submit relevant evidence in support of the request (see paragraph 25 above). A copy of the requests was submitted to the applicants for comment.

42. The impugned proceedings were conducted by the Commission, as an internal body of the SJC. The Commission was composed of five members of the SJC, none of whom were the complainants. As the Government argued (see paragraph 35 above), the Commission cannot be considered to have carried out a “preliminary inquiry”, but it held hearings at which it considered relevant evidence and heard arguments by the applicants and the complainants. Both the applicants and the complainants made concluding remarks and signed the records of the hearings (see paragraphs 15 and 25 above).

43. Having regard to the procedural rules described above, the Court considers that the complainants had rights as parties to the impugned proceedings. Their requests set in motion the impugned proceedings, to which they submitted evidence and arguments in support of the allegations of professional misconduct on the part of the applicants. Accordingly, they acted as “prosecutor” in respect of the applicants, the “defendants” in the impugned proceedings, whose dismissal was sought as the only possible measure in cases of professional misconduct. After the proceedings had ended, the complainants were also parties to the decisions of the plenary of the SJC in respect of the applicants’ dismissals. A transcript of those decisions was to be served on the applicants (see paragraph 25 above).

44. In such circumstances, the Court considers that the system in which the complainants, as members of the SJC who had carried out the preliminary inquiries and sought the impugned proceedings, subsequently took part in the decisions to remove the applicants from office, casts objective doubt on the impartiality of those members when deciding on the merits of the applicants’ cases (see Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 45, 30 April 2015 and Oleksandr Volkov, cited above, § 115).

45. The Court therefore concludes that the confusion of roles of the complainants (V.V. in the first applicant’s case and R.P. in the second applicant’s) in the impugned proceedings resulting in the dismissal of the applicants prompted objectively justified doubts as to the impartiality of the SJC. The fact that in each case the complainant was only one of fifteen members of the SJC cannot, in the circumstances, lead to any other conclusion (see Fazlı Aslaner v. Turkey, no. 36073/04, 4 March 2014). Accordingly, there has been a violation of Article 6 § 1 of the Convention on this account.

III. OTHER COMPLAINTS UNDER ARTICLE 6 § 1 OF THE CONVENTION

46. The applicants complained that the Appeal Panel set up within the Supreme Court had lacked the requisite impartiality and independence, because it had been composed of judges whose careers were completely dependent on the SJC. In this connection the second applicant also complained that the Appeal Panel in his case had included Judges N.I. and J.V. whom he perceived as biased. He also alleged that the impugned proceedings in his case had not complied with certain guarantees specified in Article 6 § 1 of the Convention: he had been unable to comment on evidence submitted against him; the SJC had refused his requests to hear witnesses and admit evidence on his behalf; he had been denied the right to attend the hearing at which the SJC had initiated professional misconduct proceedings against him; and the impugned decisions did not contain sufficient reasons.

47. The Court took note of the applicants’ complaints, in particular the alleged lack of impartiality and independence of the Appeal Panel vis-à-vis the SJC. However, in view of the above considerations and the conclusion that there was an infringement of the applicants’ right to a hearing by an “independent and impartial tribunal” under Article 6 § 1 of the Convention, 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).

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

48. Lastly, the applicants invoked Articles 6 § 2, 7, 8, 13 and 17 of the Convention.

49. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

50. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. 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

52. The first applicant claimed 84,000 euros (EUR) in respect of pecuniary damage. This sum represented the difference in income to which he would have been entitled as a judge if he had not been dismissed. He also claimed that his reputation had been damaged and that he had suffered mental distress and frustration. In this connection, he sought an award of just satisfaction for non-pecuniary damage in the amount of EUR 10,000 for himself, as well as EUR 21,000 in respect of members of his family.

53. The second applicant claimed EUR 11,400 in respect of pecuniary damage for the income to which he would have been entitled as a judge. He also claimed EUR 50,000 in respect of non-pecuniary damage for the violation of his honour and reputation and for mental distress and frustration.

54. The Government contested those claims and submitted that they were unsubstantiated. They further alleged that there was no causal link between the pecuniary damage claimed and the alleged violations. Furthermore, some claims concerned family members who could not claim to have victim status in relation to the alleged violations.

55. 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).

56. For the same reasons, the Court also rejects the applicants’ claims in respect of non-pecuniary damage allegedly sustained by members of their family (see, similarly, Popovski v. the former Yugoslav Republic of Macedonia, no. 12316/07, § 99, 31 October 2013). Nevertheless, it considers that the applicants 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 applicants EUR 4,000 each in respect of non-pecuniary damage, plus any tax that may be chargeable.

57. The Court further reiterates that a judgment in which it 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).

58. 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 22 above).

B. Costs and expenses

59. The second applicant also claimed EUR 300 for the costs and expenses incurred before the Court. This figure concerned postal expenses (payment slip provided in support) and lawyer’s fees for his legal representation.

60. The Government contested the claims as unsubstantiated.

61. 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 awards the full sum claimed by the second applicant for the proceedings before it, plus any tax that may be chargeable to him.

C. Default interest

62. 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. Decides to join the applications;

2. Declares the complaints under Article 6 § 1 of the Convention admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in that the SJC was not “independent and impartial”;

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

5. Holds unanimously,

(a) that the respondent State is to pay the applicants, 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 currency of the respondent State at the rate applicable at the date of settlement:

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

(ii) EUR 300 (three hundred euros) to the second applicant, plus any tax that may be chargeable to him, 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;

6. Dismisses the remainder of the applicants’ 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 >> JAKSOVSKI AND TRIFUNOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 56381/09 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 6 (07 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/6.html Cite as: [2016] ECHR 6