CASE OF GEROVSKA POPČEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković
6. The applicant was born in 1954 and lives in Skopje. 7. On 3 April 2006 the State Anti-Corruption Commission, chaired at the time by M.M., who subsequently (July 2006) became the Minister of Justice, asked the State Judicial Council (“the SJC”) to review (предлог за проверка) a civil case (no. IV P.br. 2904/01) which the applicant had adjudicated at first instance as president of a three-judge panel. The case concerned compensation proceedings against the State. 8. On 19 April 2006 the Civil Division of the Supreme Court convened to draw up an opinion stating that there were grounds for instituting professional misconduct proceedings in respect of the applicant regarding civil case no. IV P.br. 2904/01. According to the record of that meeting, the opinion had been requested by Judge D.I., who was the President of the Supreme Court at that time. The record did not list the members of the Civil Division of the Supreme Court that adopted the opinion. According to the applicant, Judge D.I. was a member of the Civil Division that adopted the opinion. 9. On 26 April 2006 the SJC asked the plenary of the Supreme Court, under section 21 of the State Judicial Council Act of 1992 (“the 1992 Act”, see paragraph 24 below), to draw up a report on the issue of whether the applicant’s dismissal from the office of judge would be justified. 10. On the same date the SJC, composed in accordance with Article 104 of the Constitution (see paragraph 22 below), instituted (поведува постапка) professional misconduct proceedings in respect of the applicant due to misapplication of procedural and substantive law in civil case no. IV P.br. 2904/01. It referred to the request submitted by the State AntiCorruption Commission and further relied, inter alia, on the opinion of the Civil Division of the Supreme Court. The applicant responded in writing. 11. In December 2006 eight members of the SJC (all judges) were appointed in accordance with Amendment XXVIII of the Constitution (see paragraph 23 below). V.G., a member of the SJC, was nominated as the complainant (овластен предлагач), as set out in section 55 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 25 below), in the applicant’s case. 12. On 25 December 2006 the plenary of the Supreme Court, chaired by Judge D.I., drew up an opinion regarding the applicant’s case. The relevant part of the opinion, signed by Judge D.I., reads as follows: “The plenary of the Supreme Court ... unanimously endorses the complete [text of] the opinion of the Civil Division and finds that there are grounds for dismissing (the applicant) for professional misconduct.” 13. On 26 February 2007 a hearing was held before the SJC Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”), set up under section 58 of the 2006 Act (see paragraph 25 below). V.G. was not a member of the Commission. Both the applicant, who was represented by legal counsel, and V.G. submitted their arguments verbally. The Commission also took into account the opinions of the Civil Division and the plenary of the Supreme Court. On 28 February 2007 it drew up a report, which it communicated to the SJC. 14. On 14 March 2007 the plenary of the SJC, which included only ten of its members, namely eight judges elected by their peers, as well as the then Minister of Justice and Judge D.I., who were ex officio members of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), dismissed the applicant from the office of judge for professional misconduct. The SJC found that she had wrongly applied procedural and material law in civil case no. IV P.br. 2904/01, which she had decided out of the established order in which cases should have been dealt with. The dismissal decision referred to the request submitted by the State AntiCorruption Commission and further was based on evidence adduced at the hearing before the Commission, including the opinions of the Civil Division and the plenary of the Supreme Court. 15. The applicant challenged that decision at second instance, namely before an appeal panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified in section 60 of the 2006 Act (see paragraph 25 below), the Appeal Panel was composed of nine judges, of whom three were Supreme Court judges, four Appeal Court judges and two judges from the court of the applicant. On 8 May 2007 the Appeal Panel dismissed the applicant’s appeal and upheld the SJC’s decision. The Appeal Panel included Judge L.Š., who had adjudicated in another case allegedly related to case no. IV P.br. 2904/01. According to the applicant, her request for the withdrawal of Judge L.Š., a copy of which was not produced, was to no avail. 16. On 19 December 2007 the Constitutional Court rejected (отфрла) a constitutional appeal in which the applicant claimed that her dismissal had violated her freedom of conscience, freedom of thought and freedom of public expression. As regards the dismissal, the Constitutional Court found that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between exercising the office of judge and that particular freedom. It ruled that the office of judge entailed the right and duty to adjudicate in accordance with the law, and that that right and duty did not form part of the rights and freedoms on which it had competence to decide under the Constitution (У.бр.145/2007). 17. The applicant submitted copies of several articles published between April and December 2006 in the daily newspapers Vreme and Dnevnik. 18. An article published on 20 April 2006 quoted a report by the Supreme Court stating that the law had been wrongly applied in civil case no. IV P.br. 2904/01. 19. An article of 27 December 2006 stated that the Supreme Court had confirmed that the applicant should be dismissed from office. It reported Judge D.I. as saying that the SJC in its new composition should follow their recommendations. In this connection, the article quoted Judge D.I. as saying: “We only gave a reminder that responsibility should be established (треба да се сноси одговорност).” 20. An article of 28 December 2008 stated: “D.I., the President of the [Supreme] Court, asked (the SJC) to dismiss (the applicant) for professional misconduct.” 21. An article dated 11 January 2007 published in the daily newspaper Dnevnik quoted Judge D.I. as saying, inter alia: “We will submit an opinion as to whether (the applicant) should be dismissed once the responsibility of other institutions has been established. For the Supreme Court, that there has been professional misconduct [on the part of the applicant] is beyond any doubt (не е спорна нестручноста и несовесноста на судијката во случајов). The Civil Division has already established that.”