CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 octobre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 12 November 2024   THIRD SECTION Application no. 18166/23 Markelian KUQO against Albania lodged on 27 April 2023 communicated on 23 October 2024 SUBJECT MATTER OF THE CASE The application concerns the dismissal of the applicant, a district court judge, on the grounds that he had approved a request for release on parole in flagrant disregard of the circumstances of the case and the applicable law. On 14 February 2019, the applicant, seating as a single judge of the District Court of Korça, approved the request for conditional release of a prisoner serving a life term (“the 2019 decision”). That decision was later overruled by the higher courts. On 10 December 2020 the High Judicial Council (HJC) dismissed him from office. On 7 December 2022 the Special Appeal Chamber of the Constitutional Court (“SAC”) dismissed the applicant’s appeal, in application of Article 140 (2)(a) of the Constitution, which provides for dismissal of judges for “serious professional or ethical misconduct that discredits the position or image of a judge”. The HJC and the SAC held the following elements against the applicant. Firstly, the released prisoner was a repeat offender who was therefore not eligible under domestic law to be released on parole. Secondly, under domestic law as in force at the time of the adjudication of the release request, persons such as the prisoner in question who had been sentenced to life imprisonment, became eligible to be released on parole only after serving thirty-five years of a life sentence. Instead of this requirement, the applicant had applied the law as in force at the time of the prisoner’s conviction when the minimum time for parole for life prisoners had been twenty-five years. Thirdly, release on parole of life prisoners required “exceptional circumstances” justifying the release, not mere good behaviour as it had been held by the applicant. In addition, the HJC/SCA found that there was no sufficient evidence of the prisoner’s good behaviour. The HJC and SAC found that the applicant, a judge with decades of experience, had thus violated a number of legal requirements and established case law that had been easy to discern and apply. Accordingly, he had “willingly” ( me dashje direkte ) misapplied the law and released a dangerous criminal. Two judges of the SAC dissented arguing that the applicant’s decision, while ungrounded, did not disclose a grave misconduct justifying his dismissal. They concluded that a less severe sanction should have been imposed on him. QUESTIONS TO THE PARTIES Has there been a violation of Article 8 of the Convention on account of the applicant’s dismissal from office? Specifically:   (a)     Was the applicant’s dismissal in   accordance   with the law? In particular, was it sufficiently foreseeable that his actions could lead to dismissal from office under Article 140 (2)(a) of the Constitution?   (b) Was the applicant’s dismissal necessary in a democratic society and proportionate to the breaches he was found to have committed? Did the 2019 decision disclose only a disputable application of the criminal law by the applicant or did it, conversely, disclose serious professional or ethical breach capable of justifying the dismissal of a tenured judge (see   Ovcharenko and   Kolos v. Ukraine , nos. 27276/15 and 33692/15, §   104, 12 January 2023; see also Juszczyszyn v. Poland , no.   35599/20, §   276, 6 October 2022)?