Published on 12 February 2024

SECOND SECTION

Application no. 30989/20 Snezhana GEROVSKA-POPCHEVSKA against North Macedonia lodged on 13 July 2020 communicated on 23 January 2024

SUBJECT MATTER OF THE CASE

The application concerns proceedings for professional misconduct conducted against the applicant (a retired judge) by the State Judicial Council (“the SJC”) in reopened proceedings following the Court’s finding of a violation of Article 6 of the Convention in Gerovska Popčevska v. the former Yugoslav Republic of Macedonia (no. 48783/07, 7 January 2016) in respect of the proceedings for the applicant’s dismissal from the office of judge.

The ad hoc Appeal Panel within the Supreme Court quashed the initial decision of the SJC, finding that the latter could only have stayed the proceedings against the applicant and that it had not indicated which versions of the Courts Act and the Act on the SJC were applicable to her case.

In the remitted proceedings, in December 2019 a five-member Commission of the SJC, including a certain V.B., heard the applicant and prepared a report to the SJC. As V.B.’s mandate expired, in January 2020 another member of the SJC was appointed as member of the Commission. In February 2020, the SJC again found that there had been professional misconduct on the part of the applicant, with a majority of nine out of the twelve present members. It considered, on the basis of the general provisions regulating its competence, that it could establish professional misconduct of a retired judge, and that the Act on the SJC, as amended in 2018, was applicable to the applicant’s case. The latter Act provided that the Commission was to be composed of three SJC members who were not to vote at the session of the SJC.

The applicant’s appeal against the decision of February 2020 was rejected, as under the Act on the SJC, its decision following the remittal was not amenable to appeal.

The applicant complains under Article 6 of the Convention that the SJC was not competent to give a ruling on professional misconduct in respect of retired judges, that in the remitted proceedings V.B. had been replaced with another member who had not participated in the previous stage of the proceedings and that the five members of the Commission voted at the session of the SJC contrary to the applicable procedural rules, as well as that the SJC rejected her second appeal.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

In particular, did the proceedings for establishing professional misconduct before the State Judicial Council (SJC) and the Appeal Panel comply with the institutional requirements of Article 6 § 1 of the Convention in that any of these bodies met the requirement of a “tribunal” (see, mutatis mutandis , Cotora v. Romania , no. 30745/18, §§ 34-44, 17 January 2023; Eminağaoğlu v. Turkey , no. 76521/12, §§ 95-99, 9 March 2021; and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 131 et seq., 6 November 2018)?

In addition, did the SJC have the requisite jurisdiction to establish professional misconduct in respect of a retired judge and was thus a tribunal “established by law” (see, mutatis mutandis , Aviakompaniya A.T.I., ZAT v. Ukraine , no. 1006/07, § 44, 5 October 2017)? Furthermore, was the SJC a tribunal “established by law”, in view, in particular, of the replacement of V.B. and the composition of the SJC which adopted the decision of February 2020 (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 223, 1 December 2020)?

Did the applicant have access to a court for the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention, given the rejection of her appeal against the decision of February 2020 (see Zubac v. Croatia [GC], no. 40160/12, §§ 77, 78 and 80, 5 April 2018, and Mnatsakanyan v. Armenia , no. 2463/12, § 63, 6 December 2022)?

For the same reasons, did she have the possibility of an effective review of her dismissal by the Appeal Panel (see, mutatis mutandis , Oleksandr Volkov v. Ukraine , no. 21722/11, § 125, ECHR 2013, and Mnatsakanyan , cited above, §§ 64-65)? Did the Appeal Panel have “full jurisdiction” to review the decision of the SJC (see Oleksandr Volkov , cited above, §§ 123-129)?