THE CASE OF POPOSKI AND DUMA V. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
The case originated in two applications (nos. 69916/10 and 36531/11) 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 Ivo Poposki and Mrs Violeta Duma on 20 November 2010 and 8 June 2011 respectively.
The applicants complained, inter alia, that the State Judicial Council (“the SJC”) that had dismissed them from the office of judge was not an “independent and impartial tribunal”.
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 Government did not raise any objection as to the admissibility of this complaint.
Notwithstanding the absence of any objection by the Government regarding the admissibility of the complaints under this head, the Court would like to address the issue of applicability of Article 6 of the Convention. It notes that the applicants’ cases were considered by the SJC, which determined all the questions of fact and law after holding hearings and assessing the evidence. Plenary meetings of the SJC adopted decisions on the applicants’ dismissal, which were 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 (VilhoEskelinen 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 part of the application 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 reiterates that as a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to: (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Fey v. Austria, 24 February 1993, §§ 28 and 30, Series A no. 255, and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).
However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also raise the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996‑III).
In this respect, even appearances may be of certain importance; in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see Morice v. France [GC], no. 29369/10, § 78, 23 April 2015 and De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).
Application to the present case
The Court notes that the impugned proceedings before the SJC were regulated by the 2006 Act, as amended in 2010, which regulated in detail the procedural rules initially specified in the Rules. It considers it important to note that a finding by the SJC of professional misconduct by a judge could lead only to the removal of that judge from office, because dismissal was the only measure available in cases of professional misconduct, in contrast to disciplinary proceedings, for which other measures were available.
Under the applicable legislation, any SJC member could ask the SJC to establish whether there had been professional misconduct on the part of a judge. Indeed, such proceedings were requested by N.H.A., a member of the SJC, in respect of the first applicant, and by the Minister of Justice in respect of the second applicant. The Minister was subsequently succeeded by the President of the SJC.
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 a system in which 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 (see Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 45, 30 April 2015 and Oleksandr Volkov).
The Court therefore concludes that the confusion of the complainants’ roles in the impugned proceedings resulting in the applicants’ dismissal 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.
Remaining complaints under Article 6 of the Convention
In her comments submitted in response to the Government’s observations, the second applicant complained under Article 6 of the Convention that the exclusion of the public from the proceedings before the Commission had not been justified; that sufficient reasons had not been given for her dismissal; that the SJC had refused her requests for evidence; and that public statements made by the Minister of Justice and the President of the SJC had violated her rights under Article 6 § 2 of the Convention.
The Court notes that these complaints were not included in the application form submitted to the Court on 8 June 2011, but were submitted on 12 September 2013, which is more than six months after the Appeal Panel’s decision of 10 December 2010 (see Krstev and others v. the former Yugoslav Republic of Macedonia (dec.), no. 30278/06; 38130/06; 41358/06, 3747/07; 11762/07; 40639/07 and 58926/08, 16 November 2010).
It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.