CASE OF GEROVSKA POPČEVSKA v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

Key Facts

 The case originated in an application (no. 48783/07) 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 a Macedonian national, Ms Snežana Gerovska Popčevska on 1 November 2007.

The applicant submitted that the SJC had not been impartial because it had included the President of the Supreme Court and the Minister of Justice despite the fact that the former had had a preconceived idea (given his participation in the Civil Division and plenary of the Supreme Court) about her dismissal, and the latter, as President of the Anti-Corruption Commission, had set in motion the impugned proceedings against her. She further reiterated that, given the incomplete composition of the SJC at the time, the participation of the Minister of Justice in the SJC’s decision to dismiss her had affected the independence of the SJC.

The Government submitted that whereas the President of the Supreme Court had chaired the plenary of that court, another member of the judiciary presided over that court division (Judge S.K. in respect of the Civil Division in the applicant’s case). In any event, the President of the Supreme Court could not influence the decisions or opinions of the plenary or divisions of the Supreme Court because those bodies took decisions by a majority vote of all their members. Furthermore, the President of the Supreme Court had withdrawn and abstained from voting in the plenary or in any division of the Supreme Court in cases in which he had sat as a member of the SJC. The opinion adopted unanimously by the plenary of the Supreme Court had been requested by the SJC The public statements of the President of the Supreme Court regarding the applicant did not raise any doubts as to his personal impartiality, because they did not reflect his personal opinion. They had been made in the context of his competence to represent the Supreme Court and inform the public about important cases.

In such circumstances, the Court considers that the applicant had legitimate grounds for fearing that Judge D.I., the then President of the Supreme Court, was already personally convinced that she should be dismissed for professional misconduct before that issue came before the SJC (see, mutatis mutandis, Werner v. Austria, 24 November 1997, § 41, Reports 1997‑VII).

In the decision dismissing the applicant, the SJC relied on the opinions of both the Civil Division and the plenary of the Supreme Court. The applicant was dismissed by a unanimous vote of the plenary of the SJC, which included Judge D.I. as an ex officio member.

It emerges from the foregoing that Judge D.I., as President of the Supreme Court, by having participated in approving the judicial opinion by, at least, the plenary of that court, expressed a view which was unfavourable to the applicant. Therefore, his further participation in the impugned professional misconduct proceedings before the SJC was incompatible with the requirement of impartiality under Article 6 § 1 of the Convention. In view of this finding, the Court does not consider it necessary to examine whether the public statements made by Judge D.I., as President of the Supreme Court, while the impugned proceedings were still pending were a further element contributing to a perception of bias on his part.

Similar considerations apply to the participation of the then Minister of Justice in the decision of the SJC to dismiss the applicant notwithstanding that he had requested, as the then President of the State Anti-Corruption Commission, that the SJC review the civil case IV P.br.2904/01 adjudicated by her (see Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 45, 30 April 2015).

Furthermore, the Court observes that, as confirmed by the Government, ten members of the new SJC delivered the decision of March 2007 by which the applicant was dismissed for professional misconduct. It had been adopted unanimously by those ten members. According to the Government, such a decision was in compliance with the “two-thirds majority” requirement (ten out of fifteen) set out at the time in the Rules of the.

Be that as it may, the Court considers that the presence on that body of the Minister of Justice, as a member of the executive, impaired its independence in this particular case. The Court therefore concludes that the SJC that adjudicated the applicant’s case was not “an independent and impartial” tribunal as required by Article 6 § 1 of the Convention. Accordingly, there was a violation of this Article.

Complaints under Article 6 § 1 of the Convention

The applicant also complained that the impugned proceedings had not fulfilled some of the guarantees specified in Article 6 § 1 of the Convention: she had been unable to comment on evidence submitted against her; she had been denied the right to attend the hearing before the Appeal Panel set up within the Supreme Court; the Appeal Panel had not been impartial since it had included Judge L.Š.; sufficient reasons had not been given for her dismissal; and there had been errors in the application of the law.

Having regard to the above considerations and the conclusion that the applicant’s right to a hearing by an “independent and impartial tribunal” under Article 6 § 1 of the Convention was infringed, 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).

 Complaint under Article 6 § 2 of the Convention

Lastly, the applicant alleged that the statements made to the media by members of the SJC and high-level politicians while the impugned proceedings were still in progress had violated her rights under Article 6 § 2 of the Convention.

The Court found that the civil limb of Article 6 of the Convention applies to the impugned proceedings (see paragraph 38 above). In any event, the applicant failed to claim compensation before the courts of general competence. Accordingly, she failed to exhaust effective domestic remedies (see Harabin, cited above, § 145, and Gorgievski v. the former Yugoslav Republic of Macedonia (dec.), no. 18002/02, 10 April 2006).

It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

source: ECtHR

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