Published on 26 February 2024
SECOND SECTION
Application no. 55602/21
Lidija NEDELKOVA
against North Macedonia
lodged on 5 November 2021
communicated on 7 February 2024
SUBJECT MATTER OF THE CASE
The application concerns the dismissal of the applicant, a former President of the Supreme Court, by the State Judicial Council (“the SJC”) from her post of judge at the Supreme Court. On the basis of, inter alia, a written statement by a certain A.S. and a notification by judge S.D. of that court, both sent to the then-President of the Supreme Court (who had become President after the applicant had stopped performing that function and who had initiated the disputed dismissal proceedings), the SJC found that the applicant had been unjustifiably absent from work for a day, that she had taken leave without her leave request having been previously approved, and that she had refused to receive certain case-files assigned to her and had not attended certain hearings, which amounted to professional misconduct under the Courts Act, as amended in 2018.
In proceedings in which the plenary of the Supreme Court determined the composition of the panel which was to decide on the applicant’s appeal against her dismissal (“the Appeal Panel”), the Supreme Court dismissed the applicant’s request for the exclusion оf judge S.D. as well as judge D.S. (whо allegedly had failed, in his capacity as president of the Judges’ Association, to appoint a representative of that Association to attend the proceedings before the SJC concerning the applicant’s dismissal).
The Appeal Panel, composed of nine judges, including judges S.D. and D.S., dismissed the applicant’s appeal and confirmed the findings of the SJC. It dismissed the applicant’s arguments that the Courts Act as amended in 2019 should have been applied in her case as it was more lenient and did not proscribe the actions which had been found to constitute professional misconduct in her case.
The applicant complains under Article 6 of the Convention that the SJC was not independent as her dismissal was politically motivated, that A.S.’s statement was not communicated to her, and about a lack of impartiality of the Appeal Panel. Lastly, she complains under Article 8 of the Convention that her dismissal was unlawful and disproportionate.
QUESTIONS TO THE PARTIES
1. 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?
(a) 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)?
(b) Were the principles of independence and impartiality (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§‑144‑150, 6 November 2018) respected in the applicant’s dismissal proceedings? In this connection,
(i) Can the SJC be considered an independent tribunal, as required by Article 6 § 1 of the Convention, in view of the applicant’s allegations that her dismissal was politically motivated?
(ii) Can the Appeal Panel be considered impartial in view of the participation of judges S.D. and D.S.?
(c) Were the principles of equality of arms and adversarial proceedings respected in view of the applicant’s allegations that A.S.’s statement was not communicated to her (see, for example, Naumoski v. the former Yugoslav Republic of Macedonia, no. 25248/05, §§ 25 and 28, 27 November 2012)?
2. Has there been a violation of the applicant’s right to respect for her private life, within the meaning of Article 8 of the Convention, on account of her dismissal (see Oleksandr Volkov v. Ukraine, no. 21722/11, § 169 et seq., ECHR 2013)? In particular, was the interference with the right to respect of her private life in accordance with law, in view of the non-application of the 2019 amendments to the Courts Act in the applicant’s case? Was it necessary in a democratic society?