ECtHR rules article 6 right of dismissed Republic of Macedonia judge violated by biased court
The European Court of Human Rights (ECtHR) has unanimously ruled that a court in the Republic of Macedonia violated the European Convention on Human Rights (ECHR) article 6 right to a fair trial of a judge whom it dismissed from office on the grounds of professional misconduct after another judge acted contrary to the doctrine nemo iudex in sua causa.
The case concerned the dismissal of Jordan Mitrinovski from the Skopje Court of Appeal.
As a member of a three-judge panel of the court, Mr Mitrinovski voted for a decision, on 6 December 2010, to replace the order for detention on remand of an accused with an order for house arrest.
The Supreme Court, on 10 December 2010, found that the Court of Appeal had no jurisdiction to examine the detainee’s request on the merits.
On the same day, the criminal division of the Supreme Court, which included the court’s president, found that two judges of the Skopje Court of Appeal who had participated in the decision of 6 December had disclosed professional misconduct.
The president of the Supreme Court, who was – by virtue of his office – a member of the State Judicial Council (SJC), then requested the SJC to establish that Mr Mitrinovski and another judge had committed professional misconduct.
In May 2011 the plenary of the SJC, which included the president of the Supreme Court, took a decision dismissing Mr Mitrinovski from the office of judge, referring in particular to the decision of 6 December 2010 and stating that his conduct had been unprofessional.
Mr Mitrinovski’s appeal before an appeal panel set up within the Supreme Court was dismissed in September 2011.
Relying on article 6 § 1 (right to a fair trial), Mr Mitrinovski complained, among other things, that the SJC was not an independent and impartial tribunal, since one of its members who had taken part in the decision dismissing him was also the president of the Supreme Court, whose request had set in motion the proceedings which led to his dismissal.
The application was lodged with the ECtHR on 27 January 2012.
The ECtHR noted that the members of the SJC included, by virtue of his office, the president of the Supreme Court.
Under the State Judicial Act in force at the time, a finding by the SJC that a judge had committed professional misconduct could only lead to that judge’s removal from office.
Any member of the SJC could ask that body to establish that a judge had committed professional misconduct.
In Mr Mitrinovski’s case, it had been the president of the Supreme Court who had requested the proceedings in question, after the criminal division of the Supreme Court had established that there had been professional misconduct by two judges, including Mr Mitrinovski.
In these circumstances, the ECtHR considered that Mr Mitrinovski had legitimate grounds for fearing that the president of the Supreme Court was already personally convinced that he should be dismissed for professional misconduct before the issue came before the SJC.
The request of the president of the Supreme Court had set in motion the proceedings before the SJC, to which he submitted evidence and arguments in support of the allegations of professional misconduct; he had thus acted as a form of prosecutor.
Subsequently he had taken part in the decision as a member of the SJC.
The system which allowed the president of the Supreme Court, who had initiated the proceedings in question, to take part in the decision to remove Mr Mitrinovski from office cast doubt on his impartiality.
The ECtHR found it established that the role of the president of the Supreme Court in the proceedings was neither subjectively nor objectively impartial.
There had accordingly been a violation of article 6 § 1 on account of a lack of impartiality of the SJC in Mr Mitrinovski’s case.
The ECtHR held that the Republic of Macedonia was to pay Mr Mitrinovski 4,000 euros in respect of non-pecuniary damage and 1,230 euros in respect of costs and expenses.