CASE OF JAKŠOVSKI AND TRIFUNOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

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 by two Macedonian nationals, Mr Goce Jakšovski and Mr Miroslav Trifunovski on 10 and 30 October 2009 respectively. 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). 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”. 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 applicants complained under Article 6 § 1 of the Convention that the State Judicial Council  (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. The Court 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).

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.

The Court’s assessment

The Court notes that in accordance with Amendment XXVIII to the Constitution, 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. 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.

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, 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.

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.

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).

The Court therefore concludes that the confusion of roles of the complainants 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.

Other complaints under article 6 § 1 of the Convention

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.

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).

Other alleged violations of the Convention

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

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.

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.

 source: ECtHR

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