CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 février 2013

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border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s32563E28 { margin-top:0pt; margin-bottom:0pt } FIRST SECTION Application no. 48783/07 Snežana GEROVSKA POPČEVSKA against the former Yugoslav Republic of Macedonia and 5 other applications (see list appended) STATEMENT OF FACTS   The applicants are Macedonian nationals. For their details see the attached Appendix. All applicants are former judges. The applications below concern proceedings for their dismissal. A.     The circumstances of the cases The facts of the cases, as submitted by the applicants, may be summarised as follows. 1.     Dismissal proceedings regarding Ms Snežana Gerovska Popčevska (“the first applicant”) (application no. 48783/07 lodged on 1   November 2007) On 26 April 2006 the State Judicial Council (SJC) composed under Article 104 of the Constitution (see “Relevant Domestic Law” below) instituted proceedings ( поведува постапка ) for dismissal of the first applicant on account of professional misconduct ( несовесно и нестручно вршење на судиската функција ) in case IV P.br. 2904/01 . That decision was based on inter alia an opinion of the civil-law department of the Supreme Court dated 20 April 2006, which had confirmed the first applicant’s misconduct. According to the applicant, the President of the Supreme Court participated in the adoption of that opinion. The first applicant replied in writing to the decision of the SJC to institute dismissal proceedings against her. In December 2005 Amendment XXVIII of the Constitution replacing Article 104 of the Constitution was adopted (see “Relevant domestic law” below). In December 2006 eight members of the SJC were appointed under Amendment XXVIII of the Constitution. V.G., a member of the SJC, was appointed claimant ( овластен предлагач ), as set out in section 55 of the 2006 Judicial Council Act (“the 2006 Act”, see “Relevant domestic law” below), in the first applicant’s case. On 26 February 2007 the first applicant and her legal representative attended a hearing before a Commission of the SJC ( К омисија за утврдување нестручно и несовесно вршење на судиската функција , hereinafter “the Dismissal Commission”) set up under section 58 of the 2006 Act. The Dismissal Commission admitted in evidence inter alia an opinion given by the plenary of the Supreme Court on 26 December 2006, which had been in support of the first applicant’s dismissal. On 14 March 2007 the SJC, which included the then Minister of Justice and the President of the Supreme Court, dismissed the first applicant from her office. The dismissal decision was based on evidence adduced at the hearing before the Commission, including the Supreme Court’s opinions. The first applicant appealed arguing inter alia that the dismissal proceedings had been launched after the expiration of the statutory time-limit and that there had been no claimant, as required under section 55 of 2006 Act. She further challenged the errors that the SJC established in relation to her decision in the case IV P.br. 2904/01 . On 8 May 2007 the second-instance panel constituted within the Supreme Court (“the Appeal Panel”) under section 60 of 2006 Act (see “Relevant domestic law” below) dismissed the first applicant’s appeal and upheld the SJC’s decision. The Appeal Panel included judge L.Š. who had decided in another case allegedly related to the case IV P.br. 2904/01 . According to the first applicant, her request for exclusion of judge L.Š. was to no avail. On 19 December 2007 the Constitutional Court rejected ( отфрла ) a constitutional appeal in which the first applicant claimed that her dismissal had violated her freedom of conscience, thought and public expression of thought. As regards the dismissal, the Constitutional Court found that it had no jurisdiction to review the SJC’s decision. As to whether her dismissal affected her freedom of expression, the court held that a distinction had to be made between the exercise of the office of a judge and that freedom. In this connection the court ruled that the office of a judge entailed a right and duty to adjudicate in accordance with the law which did not fall, as such, within the rights and freedoms for which it had competence to decide under the Constitution ( У.бр.145/2007 ). The first applicant submitted copies of several articles published in daily newspapers between April 2006 and January 2007, which reported that the then President of the Supreme Court had requested that the SJC dismiss her. Those articles had further quoted him as saying that the first applicant had wrongly applied the substantive law in the case IV P.br. 2904/01 . According to an article published on 11 January 2007, five members of the SJC appointed by the Parliament had not been elected at the time. 2.     Dismissal proceedings regarding Mr Goce Jakšovski (“the second applicant”) (application no. 56381/09 lodged on 10 October 2009) By a decision of 17 December 2008, confirmed on appeal by the Appeal Panel on 24 September 2009, the SJC dismissed the second applicant due to professional misconduct. The dismissal proceedings were set in motion on a request of V.V., a member of the SJC. V.V. participated in the SJC when the latter dismissed the second applicant. 3.     Dismissal proceedings regarding Mr Miroslav Trifunovski (“the third applicant”) (application no. 58738/09 lodged on 30 October 2009) On 21 July 2008 R.P., a member of the SJC, requested that the SJC dismiss the third applicant due to his failure to carry out, as an on-duty investigating judge, an on-site examination related to a drowning of a detainee in a water-container. The request, without the supporting material, was submitted to the third applicant for comments. He replied in writing. On 12 December 2008 the Dismissal Commission submitted a report to the SJC proposing dismissal proceedings against the third applicant. On 29   December 2008 the SJC temporarily suspended the third applicant. As stated in that decision, there was no possibility of appeal. On 20 January 2009 the Dismissal Commission held a hearing at which the third applicant presented arguments in his favour. Evidence against him was also discussed. On 12 February 2009 the SJC, which included R.P., dismissed the third applicant. He appealed before the Appeal Panel of 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 further requested that the Appeal Panel notify him about the date of its session. At a hearing held in private, on 5 May 2009, the Appeal Panel dismissed the third applicant’s appeal. On 25 June 2009 the third applicant challenged his dismissal before the Administrative Court by means of an administrative-dispute lawsuit ( тужба за управен спор ). He complained inter alia that the dismissal proceedings had been set in motion by R.P. who had been a member of the SJC and that no law regulated the proceedings before the Appeal Panel. In this connection he complained that the president of the Appeal Panel in his case had dismissed his request for exclusion of judges N.I. and J.V. who had participated in the decision of the Appeal Panel in his case. He had requested their exclusion since 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 been in close relations with the public prosecutor involved in the criminal case in respect of which he had been dismissed. As stated by the applicant, his requests had been rejected since the exclusion rules had not been applicable to the Appeal Panel. No information was submitted as to whether the Administrative Court decided the lawsuit. The applicant produced a copy of articles published in local newspapers on 26 January and 13 February 2009, which reported about his case. In the article published on 26 January 2009, the then President of the SJC stated that the Dismissal Commission had still been 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 he had been removed from office.   4.     Dismissal proceedings regarding Mr Ivo Poposki (“the fourth applicant”) (application no. 69916/10 lodged on 20 November 2010) On 24 June 2009 N.H.A., a member of the SJC, requested that the SJC dismiss the fourth applicant due to professional misconduct. In a written reply to that request, the fourth applicant requested exclusion of N.H.A., alleging lack of impartiality. It appears that no decision was taken in respect of that request. Two hearings were held before the Dismissal Commission in the presence of the fourth applicant and his legal representative. N.H.A., who also attended the hearings as claimant, reiterated that the fourth applicant should be dismissed. On 9 December 2009 the SJC dismissed the fourth applicant. The fourth applicant appealed against that decision. He further sought exclusion of judge T.S. from sitting in the Appeal Panel due to bad personal relationships with him. By a decision of 22 March 2010, the President of the Supreme Court, relying on sections 64 and 67 of the Civil Proceedings Act (see “Relevant domestic law”), dismissed the fourth applicant’s request finding no grounds that casted doubt on T.S.’s impartiality. On 27 April 2010 the Appeal Panel, which included judge T.S., dismissed the appeal and upheld the SJC’s decision. 5.     Dismissal proceedings regarding Ms Violeta Duma (“the fifth applicant”) (application no. 36531/11 lodged on 8 June 2011) By two separate submissions of 23 June and 9 September 2009 the Minister of Justice requested that the SJC dismiss the fifth applicant on two different grounds, namely that 1) she had failed to establish the identity of an accused in a criminal case in which she had chaired a five-judge panel of the Skopje Court of Appeal and 2) she had not withdrawn from another case in which her husband, the Director of the Forensic Institute, had drawn up an expert report used in court. Relying on those requests, on 12 March 2010 the SJC initiated proceedings ( поведува постапка ) for the fifth applicant’s dismissal. On 24 March 2010 the President of the SJC rejected as inadmissible an appeal of the fifth applicant against that decision. On 5 May 2010 the president of the Dismissal Commission refused the fifth applicant’s request for a public hearing. As stated in the decision, dismissal proceedings before the SJC were confidential and the public was excluded in order to preserve the reputation of the judge concerned. On 24 March 2010 the President of the SJC requested dismissal of the other judges that had participated, together with the fifth applicant, in the adjudicating panel of the Skopje Court of Appeal in the criminal case (referred to in connection with the first ground mentioned above). The request was based on the same grounds as indicated in the request dated 23   June 2009 (see above). On 25   March 2010 the SJC appointed the President of the SJC as claimant regarding requests dated 9 September 2009 (with respect to the fifth applicant) and 24 March 2010 and ordered that the proceedings were joined. On 15 June 2010 the SJC dismissed the applicant and judge V.Dž. from their office of a judge. The fifth applicant’s dismissal was based on both grounds specified in the requests for her dismissal submitted by the Minister of Justice. The SJC stayed the dismissal proceedings ( запира постапка ) regarding the remaining judges specified in the request of 24 March 2010. The fifth applicant appealed against her dismissal. She complained inter alia that the Minister of Justice, as the claimant regarding the request of 23   June 2009, had not attended the hearing before the Dismissal Commission, as well as that the Minister of Justice, who had been ex officio member of the SJC and had set in motion the dismissal proceedings against her, had participated in the decision for her dismissal. She further requested to attend the session before the Appeal Panel in order to explain the arguments in her favour. On 10 December 2010 the Appeal Panel, in the presence of the fifth applicant, confirmed the dismissal decision for the reasons given by the SJC. The fifth 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 ( У.бр.18/2011 ) providing the same reasoning as that given in the first applicant’s case (see sub-section 1 above concerning the decision of 19 December 2007). 6.     Dismissal proceedings regarding Mr Jordan Mitrinovski (“the sixth applicant”) (application no. 6899/12 lodged on 27 January 2012) On 6 December 2010 a three-judge panel of judges of Skopje Court of Appeal, presided by the sixth applicant, accepted an appeal by a defendant in those proceedings and replaced a detention order in custody with a house arrest accepting the bail proposed by the defendant. On 10 December 2010 a five-judge panel of the Supreme Court, presided by the President of that court, overturned (on the basis of an extraordinary legality review request) the decision of the Court of Appeal due to errors in the law. On the same date, six members of the criminal-law department of the Supreme Court, presided by the President of that court, found unanimously that there were grounds for dismissal of two Appeal Court judges who had voted for the decision of 6 December 2010 (see above). In submissions of the same date, the President of the Supreme Court requested that the SJC dismiss the sixth applicant and judge I.L. In support, he submitted copies of the decisions of 6 and 10 December 2010 described above. The applicant replied in writing. Judge I.L. resigned in the meantime. The SJC set up a Dismissal Commission. At the latter’s proposal, on 23 February 2010 the SJC initiated proceedings for the sixth applicant’s dismissal. He was also temporarily suspended from the office of a judge. On 19 April 2011 the Dismissal Commission held a public hearing. As noted in the record of the hearing, it was attended by the applicant and his legal representative, as well as the President of the Supreme Court, as claimant. The latter requested that the sixth applicant was dismissed since he had wrongly applied the substantive law in the decision of 6 December 2010. The applicant stated that that decision had been in compliance with the Court’s practice on Article 5 of the Convention and the domestic law. The Commission admitted documentary evidence proposed by the applicant. After it had heard the applicant’s and the claimant’s concluding remarks, the Commission noted that it would submit a proposal to the SJC for decision. The minutes of the hearing held before the Commission were signed by the applicant, the claimant and the members of the Commission. On 18 May 2011 the SJC dismissed the applicant from the office of the judge finding that his decision in the detention proceedings had no statutory basis. The applicant appealed against that decision and sought exclusion of the President and all judges of the Supreme Court. In support he stated that there was a conflict of interests since the President of the Supreme Court had requested and later voted, as ex officio member of the SJC, for his dismissal. In view of his function, he could influence other judges of that court. On 13 September 2011 the Appeal Panel of the Supreme Court, which did not include any of the Supreme Court’s judges who had adopted the opinion of the criminal-law department of 10 December 2010 (see above), rejected the applicant’s request for exclusion of judges. It found that the plenary of the Supreme Court, instead of the Appeal Panel, had the required competence to decide the applicant’s request for exclusion of the President of the Supreme Court. Relying on section 66 (2) of the Civil Proceedings Act, it further rejected as inadmissible the applicant’s request for exclusion of all judges of a court. On the same date, the Appeal Panel dismissed the applicant’s appeal and confirmed the SJC’s decision. B.     Relevant international and domestic law and practice 1.     International materials (a)     The former Yugoslav Republic of Macedonia 2010 Progress Report, European Commission, Brussels, 9 November 2010 “4.23. Chapter 23: Judiciary and fundamental rights   ... the role of the Minister of Justice within the 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 ...” 2.     Relevant domestic law (a)     Constitution of 1991 (including the Constitutional Amendments of 2005) Under Articles 104 and 105 of the 1991 Constitution, members (seven) of the State Judicial Council were elected by the Parliament. The SJC could propose to the Parliament to dismiss a judge. Constitutional Amendments XXVIII and XXIX adopted in December 2005 replaced Articles 104 and 105. According to Amendment XXVIII, the SJC is composed of fifteen members. The President of the Supreme Court and the Minister of Justice are ex officio members of the SJC. Eight members are elected by judges from their peers and five members, of which two members upon proposal by the President of the State, are elected by the Parliament. Amendment XXIX provides that inter alia the SJC elects and dismisses judges and presidents of courts, as well as that it monitors and assesses the work of judges and decides on their immunity. (b)   Judicial Council Act of 2006 (Official Gazette no. 60/2006) Under section 53 § 1 (2) of the 2006 Act, a judge can be dismissed due to professional misconduct. Under section 55, disciplinary proceedings were instituted by a member of the SJC, president of the court of a judge whose dismissal was sought, president of the higher court or the plenary of the Supreme Court (“the claimant”). The disciplinary proceedings were urgent and confidential. The SJC formed a Disciplinary Commission composed of five of its members. The judge against whom the proceedings were instituted replied to the request for disciplinary proceedings in writing or orally within eight days after the date of service of that request. He or she had the right to a legal representative. After receiving the request, the Commission collected information and drew up a report as to whether the request was justified. On the basis of that report, the SJC initiated or stayed the proceedings. Proceedings were further regulated by Rules of the SJC (see below). Section   56 provided that the SJC could stay the proceedings; issue a disciplinary penalty; and dismiss the judge due to professional misconduct. The following disciplinary penalties could be imposed against a judge: written or public reprimand, as well as a salary reduction in the range between 15% and 30% (section 57). Under section 58 of the 2006 Act, proceedings for dismissal of a judge due to professional misconduct were carried out under section 55 (see above) by a Dismissal Commission composed of five members. On the basis of the report drawn up under section 55 (6) of the 2006 Act, the SJC could stay the proceedings or dismiss a judge due to a professional misconduct. Section 60 of the 2006 Act provided for the right to appeal before a second-instance panel constituted within the Supreme Court (“the Appeal Panel”). The Appeal Panel included three judges of the Supreme Court, four judges of Appeal Courts and two judges of the court of the judge against whom disciplinary or dismissal proceedings were initiated. The President of the Supreme Court could not participate in the Appeal Panel. (c)     Amendment to the 2006 State Judicial Act of November 2010 (Official Gazette no. 150/2010) and July 2011 (Official Gazette no. 100/2011) The 2010 Act replaces sections 54-60 of the 2006 Act. It provides for more detailed rules regarding the dismissal proceedings (sections 77-95). Under section 78 of the 2010 Act, dismissal proceedings due to professional misconduct can be instituted by the same claimants as indicated in section 55 of the 2006 Act (see above). The request contains inter alia information about the personal details of the judge whose dismissal is sought, description of the alleged violation and evidence to be admitted at a hearing. Supporting evidence should accompany the request. The SJC decides whether the request for dismissal is timely, complete and admissible. It the SJC finds the request admissible, it sets up a Dismissal Commission composed of five members (section 80). The Dismissal Commission communicates the request and supporting evidence to the judge concerned. The latter replies in writing or orally. He or she has the right to a legal representative. The judge concerned submits all evidence in support of his or her reply (section 81). Under section 82 of the 2010 Act, the Dismissal Commission seeks information and collects evidence for establishing the relevant facts. On the basis of collected evidence, it submits a report to the SJC as to whether the dismissal request is justified or not (section 83). On the basis of the dismissal request and the Commission’s report, the SJC decides, by majority of all its members, to institute or stay the dismissal proceedings (section 84). Its decision is served on the claimant, the judge whose dismissal is sought and the president of the court of that judge. Section 87 provides that the Dismissal Commission schedules a hearing within fifteen days from the institution of the dismissal proceedings. Under section 88, the claimant and the judge concerned are summoned for the hearing before the Commission. If they are duly summoned and do not provide any justification, the hearing will be held in their absence. According to section 89, all evidence proposed by the claimant, the judge concerned and evidence obtained by the Commission are admitted at the hearing. Minutes of the hearing is signed by the claimant, the judge concerned or his or her representative and the Chairman of the Commission (section 90). Under section 92, within fifteen days after the hearing has ended, the Dismissal Commission draws up a report and proposes that the SJC stays the proceedings or dismisses the judge. On the basis of the Commission’s report and after deliberations, the SJC can stay the proceedings or dismiss the judge (section 93). Section 95 provides that the SJC decides about dismissal of a judge by two-thirds majority of all its members. A transcript of the dismissal decision is served on the judge, the claimant and the president of the court of the judge concerned. Section 96 provides for the same rules as those set forth in section 60 of the 2006 Act. According to the 2011 Act, the Minister of Justice participates in the work of the SJC without having a voting right (section 6 (2)). (d)     Civil Proceedings Act of 2005 Section 64 of the 2005 Civil Proceedings Act provides for exclusion of a judge. Under section 66 (2), a request for exclusion of all judges of a court is inadmissible. Under section 67 (1), the president of a court decides upon a request for exclusion of a judge. Section 67 (3) provides that the President of the Supreme Court decides upon a request for exclusion of a judge of the Supreme Court. The plenary of the Supreme Court decides upon a request for exclusion of the President of the Supreme Court. (e)     Rules regarding dismissal proceedings for professional misconduct 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 ) During the validity of the 2006 Act, dismissal proceedings on account of professional misconduct of a judge were regulated in detail by the Rules. The latter contained almost identical procedural rules as those provided for in 2010 Act (see sections 78-96 of the 2010 Act above). 3.     Relevant domestic practice By a decision of 15 September 2010 (U.br.56/2010), the Constitutional Court rejected as unconstitutional several provisions of the Rules regarding dismissal proceedings for professional misconduct of a judge. The court found that while the SJC had been entitled to specify further its rules of procedure by internal acts, it had no authority to define genuine procedural rules for which there had been no statutory basis. COMPLAINTS All applicants, with the exception of the first applicant, complain under Article 6 of the Convention that the dismissal proceedings were set in motion by a member of the State Judicial Council who later participated in the decisions for their dismissal. The third and sixth applicants complain that members of the Commission set up within the SJC, whose report served as a basis for the SJC’s decision, took part in the decision for their dismissal. The first and sixth applicants further allege personal bias on the part of the President of the Supreme Court, who was ex officio member of the SJC, due to his previous involvement in approving judicial opinions that were relied on by the SJC in the dismissal proceedings against them. As regards the first applicant, the personal bias of the then President of the Supreme Court was further strengthened by the statements in the media in which he expressed unfavourable views about her. The first applicant further complains that the SJC was not independent in her case because it included the Minister of Justice whose vote, given the incomplete composition of the SJC at the time, was decisive for her dismissal. The second and third applicants allege lack of impartiality and independence of judges-members of the Appeal Panel of the Supreme Court whose career was completely dependent of the SJC. In this connection the third applicant alleges that the Appeal Panel has never quashed a decision of the SJC. The first and third applicants further complain that the Appeal Panel that decided their cases lacked the requisite impartiality because it included judge L.Š. and judge N.I. respectively. Some applicants also complain that the dismissal proceedings in their cases did not comply with some procedural requirements of Article 6 of the Convention, namely that they could not comment on evidence submitted against them, that the SJC refused their requests to hear witnesses and that they were denied the right to participate in the proceedings. They also complain that the dismissal decisions were unreasoned. The first and third applicants complain that statements given in the media by members of the SJC violated their rights under Article 6 § 2 of the Convention. Lastly, some applicants invoke Articles 5, 7, 8, 9, 10, 13 and 14 of the Convention. QUESTIONS TO THE PARTIES   1.     Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the applicants’ cases considered by an “independent and impartial tribunal” as required by Article 6 of the Convention? In this connection, (a)     Can the State Judicial Council (SJC) that dismissed the second, third, fourth, fifth and sixth applicants be regarded as impartial in view of the fact that it included members (claimants) who had made preliminary inquiries and requested dismissal of these applicants? (b)     Regarding the first applicant’s case, can the SJC, which included the then President of the Supreme Court, as ex officio member, be regarded as impartial in view of (i)     the participation of the President of the Supreme Court in the civil-law department and plenary of the Supreme Court (prior to the first applicant’s dismissal), which rendered opinions unfavourable to the first applicant that were relied on by the SJC in its decision for her removal and (ii)     the public statements that the President of the Supreme Court had made while the dismissal proceedings had not yet been concluded? (c)     Regarding the first applicant’s case, can the SJC, which was incomplete (only ten members) at the time, be regarded as impartial and independent having regard to the participation of the Minister of Justice in the decision for removal (which apparently required a qualified majority of ten out of fifteen members) of the first applicant from her office? (d)     Regarding the sixth applicant’s case, can the SJC, which included the then President of the Supreme Court, be regarded as impartial in view of its President’s participation in the criminal-law department of the Supreme Court that had adopted the opinion of 10 December 2010 (see the “Fact”) that had been unfavourable to the sixth applicant? (e)     Was the Appeal Panel set up within the Supreme Court in the dismissal proceedings impartial and independent in relation to the SJC (an issue raised by the second and the third applicants), given the latter’s extensive powers regarding the careers of judges? In this connection the Government are invited to provide statistical information on the number of cases decided by the Appeal Panel in dismissal proceedings against judges and their outcome. (f)     Was the Appeal Panel that decided in the third applicant’s case impartial having regard to the fact that it included judge N.I. who had applied, at the relevant time, to the SJC for the post of president of a trial court?     APPENDIX     No Application No Lodged on Applicant Date of birth Place of residence Represented by   48783/07 01/11/2007 Snezana GEROVSKA POPČEVSKA 08/01/1954 Skopje   Anita BEGOVA   56381/09 10/10/2009 Goce JAKŠOVSKI 24/07/1959 Ohrid       58738/09 30/10/2009 Miroslav TRIFUNOVSKI 20/04/1946 Tetovo   Nenad TRIFUNOVSKI   69916/10 20/11/2010 Ivo POPOSKI 15/06/1963 Ohrid       36531/11 08/06/2011 Violeta DUMA 24/09/1951 Skopje       6899/12 27/01/2012 Jordan MITRINOVSKI 20/01/1950 Skopje