Information Note on the Court’s case-law 249
March 2021
Stoimenovikj and Miloshevikj v. North Macedonia - 59842/14
Judgment 25.3.2021 [Section V]
Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Lack of impartiality of Supreme Court judge who sat in a five-judge panel in criminal and closely related subsequent civil proceedings: violation
Facts – The first applicant was convicted, along with his mother (B.S.) and others, for laundering money through fictitious loan agreements, which the first applicant had certified in his capacity as a notary public. On the basis of those agreements, third parties had made transfers to B.S.’s account by way of repayment of the fictitious loans. They appealed unsuccessfully against the judgment to Skopje Court of Appeal, which sat as a panel of five judges and included Judge M.S. The Supreme Court upheld the judgment.
B.S. also brought a civil claim, seeking an order for some of the same third parties to pay back a loan she had given them, pursuant to a loan agreement certified by the first applicant. Those parties brought a civil claim against B.S., seeking to have those loan agreements annulled for being fictitious. B.S.’s claim was dismissed and the loan agreements were annulled. B.S., and after her death, B.S.’s lawyer on her behalf, appealed unsuccessfully up to the Supreme Court on points of law. The Supreme Court sat as a panel of five judges and included Judge M.S.
A month before the Supreme Court’s decision was served, the first applicant began inheritance proceedings in respect of B.S., which included, inter alia, her civil claim.
The applicants complained of the lack of impartiality of the Supreme Court’s panel which had decided B.S.’s civil claim, given the participation of Judge M.S. both in that panel and in the Court of Appeal that had decided the criminal case against her.
Law – Article 6 § 1 : The Court limited its examination to the objective test with regard to the lack of judicial impartiality.
While the loan agreements in the impugned civil proceedings had not been exactly the same as the loan agreements which had been the object of the criminal proceedings, given the identity of the parties, the first applicant’s involvement as notary public and the context in which they had been concluded, they had been of a very similar, if not an identical nature. Their near identical nature had also been one of the arguments relied on by the plaintiffs in seeking their annulment in the civil proceedings. The civil courts, in finding that the agreements in question had been fictitious, had expressly relied, inter alia, on the findings of the criminal courts regarding the criminal liability of B.S. and other relevant individuals, as well as the applicant. They had done so notwithstanding that the criminal proceedings had concerned different loan agreements and could not therefore be regarded res judicata for the issues raised in the impugned civil proceedings. It was also noteworthy that the examination carried out by the adjudicating panels in both proceedings had concerned the merits of B.S.’s appeals.
Given the comprehensive assessment and the extensive scope of the review by the Court of Appeal, coupled with the high profile of the criminal case at the time, it could not be assumed that Judge M.S. would have been unaware of her participation in that case when deciding B.S’s appeal in the impugned civil proceedings. However, there was nothing to suggest that she had considered the possibility of withdrawing from the case or that she had informed the President of the Supreme Court of the fact that she had sat in the earlier criminal proceedings. In that connection, national law expressly obliged judges sitting in a case to immediately inform the president of the court of the circumstances justifying his or her removal. It had been impossible for B.S. to request recusal of Judge M.S. from sitting in her civil case. Indeed, there had been no real opportunity for B.S.’s lawyer to learn that Judge M.S. would be a member of the Supreme Court’s panel, all the more so given that an oral hearing had not been held before that court. Consequently, it had been the responsibility of Judge M.S. to bring the matter to the attention to the President of the Supreme Court.
While true that judge M.S. had been but one member of a five-judge panel of the Supreme Court, in view of the secrecy of the deliberations, it was impossible to ascertain her actual influence on that occasion. However, it had not been disputed that judge M.S. had been the acting president of the Supreme Court at the time when the appeal on points of law had been lodged on behalf of B.S. and had been assigned to a panel of that court. It had also not been explained why it had been necessary to assign her to sit on the panel of the Civil Law Department of the Supreme Court that had decided B.S.’s appeal, which had allegedly been the only case in that Department during her career in the Supreme Court.
In light of the above, in the specific circumstances of the case, the first applicant’s fears that Judge M.S. had already formed a view as to the merits of the civil case before it had been brought to the Supreme Court could be considered to have been objectively justified. The composition of the panel of the Supreme Court accordingly had failed to meet the required Convention standard under the objective test.
Conclusion: violation (unanimously).
The Court also held, unanimously, that the application in respect of the second applicant was inadmissible (incompatibility ratione personae) since, as B.S.’s grandson, he was not a direct heir and could not derive victim status from inheritance or any other form of succession.
Article 41: EUR 2,500 to the first applicant, in respect of non-pecuniary damage. Claim for pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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