POPOSKI AND DUMA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 69916/10 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 8 (07 January 2016)

In the case of Poposki and Duma 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. 69916/10 and 36531/11) 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 Ivo Poposki (“the first applicant”) and Mrs Violeta Duma (“the second applicant”), on 20 November 2010 and 8 June 2011 respectively.

2. The first applicant was represented by Ms Z. Ivanoska and the second applicant by Mr S. Ilik, lawyers 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 applicants complained, inter alia, that the State Judicial Council (“the SJC”) that had dismissed them from the office of judge was not an “independent and impartial tribunal”.

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 1963 and 1951, and live in Ohrid and Skopje respectively.

A. Dismissal of the first applicant from the office of judge (application no. 69916/10)

7. On 24 June 2009 N.H.A., a member of the SJC, a body vested with jurisdiction to decide, inter alia, on the dismissal of judges (see Amendment XXIX to the Constitution, paragraph 23 below) requested that the SJC initiate professional misconduct proceedings in respect of the first applicant. The request was submitted under sections 55 and 58 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 24 below) and the Rules governing professional misconduct proceedings in respect of a judge (“the Rules”, see paragraph 30 below), which provided that a member of the SJC could seek the institution of professional misconduct proceedings in respect of a judge. In the request N.H.A. claimed that the first applicant had violated the rules on legal representation of the parties in a case he had adjudicated. The first applicant replied in writing.

8. A commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”) was set up under section 58 of the 2006 Act, composed of five SJC members. N.H.A. did not participate in the composition of the Commission. On the basis of the N.H.A.’s request, the first applicant’s reply and obtained evidence, the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against the first applicant, which the SJC did with a separate decision.

9. On 10 November 2009 the Commission held a hearing at which it heard evidence from N.H.A. and the first applicant. The first applicant stated that on that occasion he had submitted a written request for the withdrawal of N.H.A., citing lack of impartiality. He provided the Court with a copy of that submission. The record of the hearing held on 23 November 2009 indicates that the first applicant referred to that request in his concluding remarks. No decision was taken in respect of the request. The Government submitted that there was no copy of it in the case file. The records of the hearings of 10 and 23 November 2009 were signed by the first applicant, N.H.A. as the complainant, and the members of the Commission.

10. On 9 December 2009 the plenary of the SJC, which included N.H.A., dismissed the first applicant from the office of judge for professional misconduct, finding that he had violated the rules on legal representation of the parties.

11. 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 (see paragraph 24 below), they were composed of nine judges, of whom three were to be Supreme Court judges, four Appeal Court judges and two judges from the court of the defendant. The applicant also sought the withdrawal of Judge T.S. from the Appeal Panel because of a bad personal relationship with him. On 22 March 2010 the President of the Supreme Court, relying on sections 64 and 67 of the Civil Proceedings Act (see paragraphs 26 and 27 below), dismissed the first applicant’s request, finding no grounds for doubt in respect of Judge T.S.’s impartiality.

12. On 27 April 2010 the Appeal Panel, which included Judge T.S., dismissed the appeal and upheld the SJC’s dismissal decision of 9 December 2009.

B. Dismissal of the second applicant for professional misconduct (application no. 36531/11)

13. By two separate submissions of 8 June and 26 August 2009 (received by the SJC on 23 June and 9 September 2009 respectively), the Minister of Justice, who was an ex officio member of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), requested that the SJC institute professional misconduct proceedings in respect of the second applicant. The requests concerned two separate criminal cases (nos. Кок.бр.7/08 and К.бр.1297/02-I), in which the second applicant had sat as president of the adjudicating panels. It was alleged that she had failed to establish the identity of a convicted person (in case no. Кок.бр.7/08) and that there had been a possible conflict of interests (in case no. К.бр.1297/02-I). The second applicant replied in writing.

14. The SJC set up a Commission in the second applicant’s case, which did not include the Minister of Justice. On the basis of the requests, the second applicant’s reply and obtained evidence, the Commission submitted a report to the SJC in which it sought that it initiate professional misconduct proceedings against her. On 12 March 2010 the plenary of the SJC initiated professional misconduct proceedings in respect of the second applicant and temporarily suspended her from the office of judge. The relevant parts of that decision read as follows:

“The SJC, on the basis of [the Minister’s] requests ... set up (a commission to determine whether there had been professional misconduct on the part of the second applicant) ... (The Commission) ... submitted to the SJC a report (as to whether the request was justified).

The SJC ... discussed the requests and (the Commission’s) report and decided (to initiate professional misconduct proceedings) ...”

15. This decision was served on the Minister of Justice, as the complainant, the second applicant and the President of the Skopje Court of Appeal in which the second applicant worked as a judge.

16. On 24 March 2010 the President of the SJC rejected as inadmissible an appeal by the second applicant against that decision.

17. On the same date, the President of the SJC asked the SJC to initiate professional misconduct proceedings in respect of the remaining judges who had sat, together with the second applicant, on the adjudicating panel of the Skopje Court of Appeal in criminal case no. Кок.бр.7/08. The grounds for the request were the same as those indicated in the request dated 8 June 2009 (see paragraph 13 above). On 25 March 2010 the President of the SJC agreed to act as complainant in respect of the requests dated 26 August 2009 (with regard to the second applicant) and 24 March 2010. It was agreed that the proceedings should be joined.

18. On 5 May 2010 the president of the Commission set up in the second applicant’s case refused her request for a public hearing. As stated in the decision, professional misconduct proceedings before the SJC were confidential and the public was excluded in order to preserve the reputation of the judge concerned.

19. On 15 June 2010 the plenary of the SJC, including the Minister of Justice and the President of the SJC, dismissed the second applicant and Judge V.Dž. from the office of judge for professional misconduct. The grounds for the second applicant’s dismissal were as set out in the requests for her dismissal submitted by the Minister of Justice. The SJC stayed the professional misconduct proceedings (запира постапка) in respect of the remaining judges named in the request of 24 March 2010. The decision was served on the second applicant, the complainant and the President of the Skopje Court of Appeal.

20. The second applicant appealed to the Supreme Court Appeal Panel against her dismissal (see paragraph 11 above). She complained, inter alia, that the Minister of Justice, as an ex officio member of the SJC and the person who had set in motion the dismissal proceedings against her, had been party to the decision to dismiss her. She requested permission to attend the session before the Appeal Panel in order to argue her case.

21. At a hearing held on 10 December 2010 in the presence of the second applicant, the Appeal Panel formed within the Supreme Court in her case upheld the dismissal decision for the reasons given by the SJC.

22. The second applicant lodged a constitutional appeal with the Constitutional Court, arguing that her dismissal had violated her rights under Articles 9 (equality of citizens) and 16 (freedom of conscience, thought and public expression of thought) of the Constitution. On 22 June 2011 the Constitutional Court rejected the appeal finding that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the second applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between the exercise of the office of judge and freedom of expression. The court ruled that the office of judge entailed a 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 for which it had competence to decide under the Constitution (У.бр.18/2011).

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The 1991 Constitution, as amended in 2005

23. In December 2005 Parliament adopted several Amendments to the 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 ... Five members ... are elected by Parliament.”

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

24. 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 exercising the office of judge in an unprofessional and unconscientious manner, 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 [of the Commission] and the deliberations, the SJC may ...

- stay the disciplinary proceedings;

- issue an adequate disciplinary penalty; or

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

Disciplinary measures
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% ...”

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

Section 58

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

The Council sets up a 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 the 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. Amendment of November 2010 to the State Judicial Council Act 2006 (Official Gazette no. 150/2010)

25. The 2010 Act replaces sections 54-60 of the 2006 Act. It sets out more detailed rules regarding professional misconduct proceedings in respect of judges (sections 77-95). The relevant provisions of the 2010 Act read as follows:

Professional misconduct proceedings
Section 77

“A judge can be dismissed for exercising the office of judge in an unprofessional and unconscientious manner, under conditions specified by law.”

Request for proceedings to determine professional misconduct on the part of a judge
Section 78(1)(2) and (3)

“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 the plenary of the Supreme Court of the Republic of Macedonia (“the complainant”) ...

The proceedings are urgent and confidential. The public are excluded and the reputation and dignity of the judge concerned are respected ...

At the request of a judge, the SJC may decide that the proceedings are to be public ...”

Contents of the request
Section 79

“A request for professional misconduct proceedings specified in section 78(1) of this Act is submitted to the SJC. It contains, inter alia, [personal information] about the judge, address and place of residence ... a description of the alleged violation ... and an outline of the evidence to be admitted at the hearing.

The request shall be accompanied by supporting evidence.”

Commission for determination of professional misconduct (“the Commission”)
Section 80(1) and (3)

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

...

If the SJC finds the request admissible, it sets up from among its members a commission for determination of professional misconduct (Комисија за утврдување нестручно и несовесно вршење на судиската функција) composed of a chairman and four members ...”

Section 81(1)-(4)

“The Commission communicates the request and supporting evidence 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 ...”

Collection of data and evidence
Section 82(1)

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

Report and recommendation
Section 83

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

Examination of the request
Section 84(1) and (2)

“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 ...”

Service of the decision
Section 85

“The decision specified in section 84 of this Act 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.”

Temporary suspension
Section 86

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

Hearing before the Commission
Section 87

“The Commission must schedule a hearing within fifteen 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.”

Summons for the hearing
Section 88

“The complainant and the judge concerned are summoned to a hearing. They are provided with evidence gathered by the Commission.

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

Section 89

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

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

Record [of the hearing]
Section 90(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 ...”

Report of the Commission
Section 92(1)

“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 if there are no grounds for professional misconduct by a judge; or

- that the judge must be dismissed for professional misconduct.”

Decisions of the SJC
Section 93

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

- stay the proceedings if there is no finding of professional misconduct; or

- dismiss the judge for professional misconduct.”

Section 95(1) and (3)

“The SJC takes the decision specified in section 94 of this Act 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.”

Right to appeal
Section 96(1)-(4)

“The judge concerned may challenge the SJC’s dismissal 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.

The Appeal Panel may uphold or quash the SJC’s dismissal decision ...”

D. Civil Proceedings Act of 2005

26. Section 64 of the 2005 Civil Proceedings Act provides for the withdrawal of a judge. Under section 66(2), a request for withdrawal of all the judges of a court is inadmissible. Under section 67(1), the president of a court decides on a request for the withdrawal of a judge. Under section 67(3) the President of the Supreme Court decides on a request for the withdrawal of a Supreme Court judge. The plenary of the Supreme Court decides on a request for the withdrawal of the President of the Supreme Court.

27. 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.

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

28. In February 2015 Parliament enacted new legislation providing for the creation of 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 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).

F. Amendments to the State Judicial Council Act (Official Gazette no. 20/2015)

29. In February 2015 Parliament also amended the State Judicial Council Act. Section 16 of the new Act, which replaces section 78(1) of the 2010 Act (see paragraph 25 above), provides that the Council - instead of 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 the plenary of the Supreme Court - may initiate professional misconduct proceedings before the SJC. This Act became operational three months after its entry into force (section 31).

G. 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)

30. Until the decision of the Constitutional Court of 15 September 2010 took effect (see paragraph 31 below), professional misconduct proceedings in respect of a judge were regulated in detail by the Rules. The latter contained procedural rules identical to those set out in the 2010 Act (see sections 78-96 of the 2010 Act above).

H. Relevant domestic practice

31. 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

32. 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

33. 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. JOINDER OF THE APPLICATIONS

34. 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 VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

A. Alleged lack of impartiality of the SJC

35. Both applicants complained, under Article 6 of the Convention, that the SJC which had dismissed them for professional misconduct had lacked the requisite impartiality since the members who had instituted the impugned proceedings had ultimately taken part in the SJC’s decision dismissing them. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

“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.”

1. Admissibility

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

37. 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 applicants’ cases were considered by the SJC, which determined all the questions of fact and law after holding hearings and assessing the evidence. Plenary meetings of the SJC adopted decisions on the applicants’ dismissal, which were 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 (VilhoEskelinen 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).

38. The Court notes that this part of the application 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.

2. Merits

(a) The parties’ submissions

39. The applicants submitted that the member of the SJC who had initiated the impugned proceedings and put before the Commission arguments in support of the request, had ultimately taken part in the SJC’s decision to dismiss them. According to the second applicant, this had led to a situation where the same member of the SJC had both “pressed charges and dismissed a judge”. Such a dual role had led to an accumulation and collision of powers incompatible with the principle of a fair trial. Despite the fact that the above considerations concerned only one member of the SJC, his participation in the SJC’s final decision to dismiss her had “contaminated” the whole proceedings. The second applicant considered it irrelevant that the President of the SJC had continued the impugned proceedings in lieu of the Minister of Justice, who had initiated them in the first place.

40. 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 who had sought the initiation of the impugned proceedings had not been a member of the Commission. The Commission had not held a “preliminary inquiry”, but was to be considered a panel within the SJC.

(b) The Court’s assessment

i. General principles

41. 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).

42. 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).

43. 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).

ii. Application to the present case

44. The Court notes that the impugned proceedings before the SJC were regulated by the 2006 Act, as amended in 2010, which regulated in detail the procedural rules initially specified in the Rules. It considers it important to note that a finding by the SJC of professional misconduct by a judge could lead only to the removal of that judge from office, because dismissal was the only measure available in cases of professional misconduct, in contrast to disciplinary proceedings, for which other measures were available (see paragraphs 24 and 25 above).

45. Under the applicable legislation, any SJC member could ask the SJC to establish whether there had been professional misconduct on the part of a judge. Indeed, such proceedings were requested by N.H.A., a member of the SJC, in respect of the first applicant, and by the Minister of Justice in respect of the second applicant. The Minister was subsequently succeeded by the President of the SJC.

46. 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 (N.H.A. in the first applicant’s case, and the Minister of Justice or the President of the SJC in the second applicant’s case). As the Government argued (see paragraph 40 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 9 and 25 above).

47. Having regard to the procedural rules described above, the Court considers that the complainants (N.H.A. in respect of the first applicant and the Minister of Justice succeeded by the President of the SJC in respect of the second applicant) 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 paragraphs 19 and 25 above).

48. In such circumstances, the Court considers that a system in which 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 (see Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 45, 30 April 2015 and Oleksandr Volkov, cited above, § 115).

49. The Court therefore concludes that the confusion of the complainants’ roles in the impugned proceedings resulting in the applicants’ dismissal prompted objectively justified doubts as to the impartiality of the SJC. The fact that in each case the complainant (N.H.A., in respect of the first applicant, and the Minister of Justice succeeded by the President of the SJC, in respect of the second applicant) 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.

B. Remaining complaints under Article 6 of the Convention

50. In her comments submitted in response to the Government’s observations, the second applicant complained under Article 6 of the Convention that the exclusion of the public from the proceedings before the Commission had not been justified; that sufficient reasons had not been given for her dismissal; that the SJC had refused her requests for evidence; and that public statements made by the Minister of Justice and the President of the SJC had violated her rights under Article 6 § 2 of the Convention.

51. The Court notes that these complaints were not included in the application form submitted to the Court on 8 June 2011, but were submitted on 12 September 2013, which is more than six months after the Appeal Panel’s decision of 10 December 2010 (see Krstev and others v. the former Yugoslav Republic of Macedonia (dec.), no. 30278/06; 38130/06; 41358/06, 3747/07; 11762/07; 40639/07 and 58926/08, 16 November 2010).

52. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

53. The second applicant also alleged that her rights under Articles 9 and 10 of the Convention had been violated. Lastly, the applicants invoked Articles 13, 14 and 17 of the Convention.

54. 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.

55. 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. 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

57. The first applicant claimed 216,000 euros (EUR) in respect of pecuniary damage, representing the salary that he would have received until retirement had he not been dismissed in the impugned proceedings. He also claimed EUR 200,000 in respect of non-pecuniary damage for the violation of his honour and reputation and for mental distress and frustration. On the same grounds, he claimed EUR 240,000 for non-pecuniary damage suffered by members of his family.

58. The second applicant claimed EUR 15,100 in respect of pecuniary damage, representing the income she would have received had she not been dismissed from the office of judge. She also claimed EUR 300,000 in respect of non-pecuniary damage for the violation of her honour and reputation and for mental distress and frustration.

59. 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.

60. The Court observes that an award of just satisfaction can only be based on the fact that the applicants 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).

61. For the same reasons, the Court also rejects the first applicant’s claim in respect of non-pecuniary damage allegedly sustained by members of his 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.

62. 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 v. Slovakia, no. 58688/11, § 177, 20 November 2012).

63. The Court has already established that in the event of a violation of Article 6 of the Convention, an 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 that the authorities applied the Civil Proceedings Act as appropriate (see paragraph 11 above). It further observes 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 27 above).

B. Costs and expenses

64. As regards the costs and expenses incurred before the domestic authorities, the first applicant claimed EUR 1,000 for reimbursement of travel expenses for attending the hearings before the SJC. He did not submit any supporting documents. Regarding the costs and expenses incurred before the Court, the second applicant claimed EUR 150 for her legal representative’s fees for representing her before the Court. A copy of the payment slip was provided in support.

65. The Government contested the claims as unsubstantiated.

66. 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 rejects the first applicant’s claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum claimed by the second applicant for the proceedings before the Court, plus any tax that may be chargeable to her.

C. Default interest

67. 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 complaint that the applicants’ cases were not examined by an impartial tribunal 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 applicants’ cases were not examined by an impartial tribunal;

4. Holds,

(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 150 (one hundred and fifty euros) to the second applicant, plus any tax that may be chargeable to her, 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 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

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> POPOSKI AND DUMA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA - 69916/10 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 8 (07 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/8.html Cite as: [2016] ECHR 8