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Corte europea dei diritti dell'uomo: sentenza del 30/4/15 su imparzialità di giudice

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La Corte europea dei diritti dell'uomo, ha deciso con sentenza, il 30/4/2015 il ricorso n. 6899/12 Mitrinovski c. ex Repubblica jugoslava di Macedonia.

Riporto di seguito le interessanti le motivazioni della violazione dell'art. 6 CEDU e la decisione ....

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"(b)  The Court’s consideration

34.  The Court recalls that the concepts of independence and objective impartiality are closely linked, and, depending on the circumstances, may require joint examination (see Sacilor-Lormines v. France, no. 65411/01, § 62, ECHR 2006XIII). However, having regard to the facts of the present case, the Court finds it appropriate to examine the complaints under this head through the prism of the alleged lack of impartiality of the SJC in view of the role of Judge J.V. in the impugned proceedings.

(i)  General principles

35.  The Court recalls that as a rule, impartiality denotes the absence of prejudice or bias. According to the Court’s settled case-law, the existence of impartiality for the purposes of Article 6 § 1 must be determined according to: (i) a subjective test, where regard must be had to the personal conviction and behaviour of a particular judge – that is, whether the judge held any personal prejudice or bias in a given case; and (ii) an objective test, that is to say by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see, among other authorities, Fey v. Austria, 24 February 1993, §§ 28 and 30, Series A no. 255, and Wettstein v. Switzerland, no. 33958/96, § 42, ECHR 2000-XII).

36.  However, there is no watertight division between subjective and objective impartiality, as the conduct of a judge may not only prompt objectively held misgivings as to his or her impartiality from the point of view of the external observer (the objective test) but may also raise the issue of his or her personal conviction (the subjective test) (see Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005XIII). Thus, in some cases where it may be difficult to procure evidence with which to rebut the presumption of the judge’s subjective impartiality, the requirement of objective impartiality provides a further important guarantee (see Pullar v. the United Kingdom, 10 June 1996, § 32, Reports 1996III).

37.  In this respect, even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done”. What is at stake is the confidence which the courts in a democratic society must inspire in the public (see De Cubber v. Belgium, 26 October 1984, § 26, Series A no. 86).

(ii)  Application to the present case

38.  The Court notes that under Amendment XXVIII of the Constitution (see paragraph 19 above), the SJC was composed of fifteen members, of which the President of the Supreme Court and the Minister of Justice were ex officio members; eight members were elected by judges from among their peers and five members were elected by Parliament. Professional misconduct proceedings before the SJC were regulated in detail by the Act, according to which a finding by the SJC of professional misconduct by a judge could lead only to removal of that judge from office. This is the case because dismissal was the only available measure in cases of professional misconduct, in contrast to disciplinary proceedings, for which other measures were available (see sections 73, 77 and 93 of the Act, paragraph 20 above).

39.  Section 78(1) of the Act (see paragraph 20 above) provided that any member of the SJC could ask the SJC to establish that there had been professional misconduct on the part of a judge. Such a request could be made also by the president of the higher court. In the present case, judge J.V., who was the President of the Supreme Court at the time and ex officio member of the SJC, requested the impugned proceedings regarding the applicant, the President of Skopje Court of Appeal at the time.

40.  This request was submitted after the criminal division of the Supreme Court, which was competent to discuss procedural and substantive issues related to criminal cases (see section 37(1) of the Rules of the Supreme Court, see paragraph 22 above), had established unanimously that “there was professional misconduct by two judges” in the criminal case Ксж.бр.537/2010 adjudicated by the three-judge panel of Skopje Court of Appeal, which included the applicant (see paragraph 9 above). Although the criminal division did not set out the names of the judges whom it believed that had violated the law, it is obvious that that opinion included the applicant. The SJC confirmed that the conclusion of the criminal division of the Supreme Court had concerned the applicant (see paragraph 16 above). Judge J.V. participated in the criminal division and voted in favour of its findings.

41.  In such circumstances, the Court considers that the applicant had legitimate grounds for fearing that judge J.V. was already personally convinced that he should be dismissed for professional misconduct before that issue came before the SJC (see Werner v. Poland, no. 26760/95, § 41, 15 November 2001).

42.  The Court further notes that the plenary of the SJC, which included judge J.V., declared the latter’s request admissible. It further set up an ad hoc Commission, as an internal body of the SJC that conducted the impugned proceedings. The Commission was composed, as specified under section 80(3) of the Act (see paragraph 20 above), of five members of the SJC. Judge J.V. was not a member of the Commission. In accordance with section 87 of the Act, on 19 April 2011 the Commission held a hearing at which it considered relevant evidence and heard arguments and concluding remarks by both the applicant and judge J.V. The latter was also given the opportunity to question the applicant (see paragraphs 14 and 15 above). Both the applicant and judge J.V. signed the record of the hearing. On the basis of all available material, the Commission drew up a report which it forwarded to the plenary of the SJC for consideration.

43.  Having regard to the procedural rules described above, the Court considers that in the present case against the applicant, judge J.V. had rights as a party to the impugned proceedings. His request set in motion the proceedings, to which he submitted evidence and arguments in support of the allegations of professional misconduct on the applicant’s part. Accordingly, he had acted as “prosecutor” in respect of the applicant, the “defendant” in the impugned proceedings.

44.  Relying on the Commission’s report, the Supreme Court’s decision delivered in the criminal case Ксж.бр.537/2010 and the conclusion of the criminal division of the Supreme Court (see paragraph 16 above), the plenary of the SJC dismissed the applicant for professional misconduct. Judge J.V., as an ex officio member of the SJC, took part in that decision. Both the applicant and judge J.V. were to be served with a transcript of the decision (see section 95(3) of the Act, paragraph 20 above).

45.  In such circumstances, the Court considers that the system in which judge J.V., as member of the SJC who had sought the impugned proceedings subsequently took part in the decision to remove the applicant from office, casts objective doubt on his impartiality when deciding on the merits of the applicant’s case (see Oleksandr Volkov, cited above, § 115).

46.  In view of the above the Court finds it established that Judge J.V.’s role in the proceedings failed both the subjective and objective impartiality test. Furthermore, the fact that Judge J.V. was only one of fifteen members of the SJC cannot, in the circumstances, lead to any other result (see Fazlı Aslaner v. Turkey, no. 36073/04, 4 March 2014). Accordingly, there has been a violation of Article 6 § 1 of the Convention on account of lack of requisite impartiality of the SJC that examined the applicant’s case.

B.  Remaining complaints under Article 6 § 1 of the Convention

47.  The applicant further complained that he did not have a fair hearing in that the impugned proceedings did not fulfil some of the guarantees specified in Article 6 § 1 of the Convention, namely that the SJC had refused to examine witnesses in his defence; that he was denied the right to attend the hearing before the Appeal Panel; and that sufficient reasons were not given for his dismissal.

48.  Having regard to the above considerations and the conclusion that there was an infringement of the applicant’s right to a hearing by an “independent and impartial tribunal” under Article 6 § 1 of the Convention, the Court declares these complaints admissible but considers that it is not necessary to examine them separately (see Oleksandr Volkov, cited above, § 159; Harabin v. Slovakia, no. 58688/11, § 143, 20 November 2012; and Nikolov v. the former Yugoslav Republic of Macedonia, no. 41195/02, § 29, 20 December 2007).


Questa la decisione della Corte:

"1.  Declares the complaints that the SJC was not “an independent and impartial tribunal” and that the applicant did not have a fair trial admissible and the remainder of the application inadmissible; 

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in that the applicant’s case was not examined by an impartial tribunal;


3.  Holds that there is no need to examine the remaining complaints under Article 6 § 1 of the Convention; 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; and

(ii)  EUR 1,230 (one thousand two hundred and thirty euros), plus any tax that may be chargeable to him, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;


5.  Dismisses the remainder of the applicant’s claim for just satisfaction."




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