CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 mars 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s4B8D41EE { font-family:Arial; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .s8C6C4B { width:7.65pt; text-indent:0pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 22 March 2016   FIRST SECTION Application no. 30458/13 Roza DELEVA against the former Yugoslav Republic of Macedonia lodged on 25 April 2013 STATEMENT OF FACTS The applicant, Ms Roza Deleva, is a Macedonian national who was born in 1950 and lives in Strumica. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1. Criminal proceedings against the applicant The applicant was a judge who was responsible, at the relevant time, for the enforcement of valid, legally enforceable orders. On 4 December 2007 a public prosecutor responsible for combatting organised crime lodged an indictment against fifteen people, including the applicant, on account of a reasonable suspicion of abuse of office. The accusation against the applicant was that as a judge in enforcement proceedings she had accepted an out-of-court settlement reached between two parties, namely the State as the creditor and a private company as the debtor, even though she had known that the settlement could not be enforced in practice. According to the out-of-court settlement, the parties had agreed that the debtor transfer tobacco of a certain quantity and quality into the possession of the creditor in settlement of an overdue loan obtained from the creditor. According to the indictment, the tobacco which was the subject of the settlement had been unavailable. In those circumstances, the applicant was suspected of having caused considerable damage to the State. The applicant challenged the indictment on all counts (lack of evidence; no grounds for criminal liability; deficiencies requiring that the investigation be completed) and sought to have the trial court stay the criminal proceedings against her. On 25 December 2007 a three-judge panel of the Skopje Court of First Instance (“the trial court”), presided over by Judge Lj.I.S., dismissed the applicant’s objection and found that she had not presented strong enough evidence for the proceedings to be stayed. The panel held that since:   “ at this stage of the proceedings, [the applicant’s] criminal liability and the reasonableness of the suspicion with which she is charged in the indictment cannot be excluded, there is a need for an adversarial hearing in which [the applicant’s] defence will be examined, all relevant evidence adduced and assessed, and a judgment rendered on the merits .” On 4 November 2011 the trial court convicted the applicant of abuse of office and sentenced her to two years’ imprisonment, suspended for five years. In the judgment, which runs to 128 pages, the trial court found that instead of carrying out an inventory, assessment and a public sale of the goods of the debtor (which had been decided by a final ruling), the applicant had accepted the settlement that the parties had reached and had terminated the enforcement proceedings, even though she had known that the debtor had not been in possession of a sufficient quantity of tobacco. The court did not address the applicant’s arguments, raised in concluding remarks, that her conviction had been contrary to Amendment XXVII of the Constitution, which states that “a judge cannot be held liable on criminal charges for an opinion or decision adopted in the performance of his or her judicial function”. The applicant challenged the judgment, complaining, inter alia , about the trial court’s failure to address her arguments regarding Amendment XXVII of the Constitution. She further argued that the trial court had convicted her without establishing any intention on her part. She submitted a copy of two final judgments by the Štip Court of Appeal, which had acquitted two judges, accused of abuse of office for decisions which they had adopted in enforcement and civil cases respectively ( Кж.бр.208/12 of 30 May 2001 and Кж.бр.534/10 of 22 November 2010). Judgment Кж.бр.208/12 concerned charges of abuse of office against an enforcement judge who had accepted a settlement concluded by parties in enforcement proceedings. Relying on Amendment XXVII of the Constitution, the Štip Court of Appeal stated: “There can be no criminal liability for an incorrect judgment ( погрешна пресуда ) (by a judge), even if it was a result of gross negligence or lack of capacity ( грубо невнимание или неспособност). A judge can only be held criminally liable for crimes committed intentionally in the performance of his or her duties ...” On 24 September 2012 the Skopje Court of Appeal, sitting as a five-judge panel presided over by Judge Lj.I.S., held a public hearing in the presence of the applicant and her lawyers. By a judgment of that date, the Court of Appeal dismissed the appeal and upheld the trial court’s judgment. The court did not address the applicant’s arguments regarding Amendment XXVII of the Constitution. 2. Other relevant information By a decision of 28 December 2010, the State Judicial Council stayed proceedings on dismissing the applicant for professional misconduct related to various enforcement proceedings, including the one for which she had been convicted. B.     Relevant domestic law Criminal Proceedings Act of 2005 (consolidated version) The relevant provisions of the Act provide as follows: “Exclusion Section 36 (1) A judge or a lay judge cannot perform his or her judicial function if: ... 4) in a case he or she undertook an investigative actions or participated in the examination of an indictment before the trial ... (2) Besides cases listed under subsection (1) of this section, a judge or a lay judge can be excluded if there is evidence to put his or her impartiality in doubt. Section 37 When a judge or a lay judge finds that there is a ground for his or her exclusion under section 36 subsection (1) of the Act, he or she is obliged to discontinue any work on the case and inform the president of the court, who will appoint a replacement ... Section 38   (1) Parties can also seek the exclusion of a judge.   (2) Parties can seek the exclusion of a judge before the trial starts. If they learn of a reason for the exclusion of a judge later, exclusion must be sought immediately after they learn of such facts ... Section 39 (1) The president of the court decides on a request for the exclusion of a judge. ... (3) If a request for the exclusion of a judge is submitted under section 36(1) of this Act, the proceedings are stayed and the president of the court decides on that request immediately, or within three days at the latest ...” COMPLAINTS The applicant complains under Article 6 of the Convention that the Skopje Court of Appeal lacked the necessary impartiality because it included Judge Lj.I.S., even though she had participated in the panel that had dismissed her objection to the indictment in the same proceedings. She also complains under this head that her conviction was contrary to established practice in similar cases and to the principle of legal certainty. In that connection she alleges that the courts’ judgments lacked sufficient reasons.   QUESTIONS TO THE PARTIES 1.     With respect to the applicant’s complaint of the alleged lack of impartiality of Judge Lj.I.S., has she exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, did the applicant seek the exclusion of Judge Lj.I.S. from the panel of the Skopje Court of Appeal which decided her appeal? In view of section 36(1)(4) of the Criminal Proceedings Act, was Judge Lj.I.S. required ipso jure to withdraw?   2.     Did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention? In particular, was the Skopje Court of Appeal, which included Judge Lj.I.S., impartial, as required by Article 6 § 1 of the Convention?   3.     Did the domestic courts’ judgments contain sufficient reasons concerning the applicant’s arguments that she could not be held criminally responsible, as provided for under Amendment XXVII of the Constitution?