Information Note on the Court’s case-law 192

January 2016

Gerovska Popčevska v. “the former Yugoslav Republic of Macedonia” - 48783/07

Judgment 7.1.2016 [Section I]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Impartiality and independence of members of State Judicial Council in professional misconduct proceedings against a judge: violation

Facts – In 2007 the applicant was removed from office as a judge for professional misconduct. The State Judicial Council (“the SJC”), whose intervention had been prompted by a request of the State Anti-Corruption Commission, found that she had wrongly applied the law in a case which sh e had decided without following the established order of priority. In her application to the European Court she complained that the SJC had not been “an independent and impartial” tribunal in line with Article 6 § 1 of the Convention because two of its mem bers, Judge D.I. and the then Minister of Justice, had participated in the preliminary stages of the proceedings against her and had therefore had a preconceived idea about her dismissal. Moreover, the Minister’s participation in the SJC’s decision constit uted interference by the executive in judicial affairs.

Law – Article 6 § 1: In its decision to remove the applicant from office, the SJC relied on two opinions of the Supreme Court finding that there were grounds for establishing professional misconduct. It was not contested that Judge D.I., a member of the plenary of the SJC that decided the applicant’s case, had also been a member of the division and plenary of the Supreme Court that had adopted the two opinions. It further appeared that Judge D.I. had v oted in favour of the plenary’s opinion although he must have been aware that it would be used in the pending SJC proceedings against the applicant. In such circumstances, the applicant had legitimate grounds for fearing that Judge D.I. was already persona lly convinced that she should be dismissed for professional misconduct before that issue came before the SJC. His participation in the professional misconduct proceedings before the SJC was thus incompatible with the requirement of impartiality under Artic le 6 § 1 of the Convention.

The same applied to the participation of the then Minister of Justice in the SJC’s decision to remove the applicant from office, since he had previously requested, in his former capacity as President of the State Anti-Corruption Commission, that the SJC review the case adjudicated by her. Moreover, his presence on that body as a member of the executive had impaired its independence in this particular case.

Accordingly, the applicant’s case had not been decided by “an independent and impartial” tribunal as required by Article 6 § 1 of the Convention.

Conclusion : violation (unanimously).

Article 41: EUR 4,000 in respect of non-pecuniary damage; claim in respec t of pecuniary damage dismissed. The most appropriate form of redress would be the reopening of the proceedings, if requested.

(See also Mitrinovski v. the former Yugoslav Republic of Macedonia , 6899/12, 30 April 2015, Information Note 184 ; and Jakšovski and Trifunovski v. the former Yugoslav Republic of Macedonia , 56381/09 and 58738/09, 7 January 2016, Information Note 192 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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