ECHR Ruling of March 25, 2021 in the case "Stoimenovikj and Miloshevikj v. Northern Macedonia" (aplication No. 59842/14).
In 2014, the applicants were assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Northern Macedonia.
In the case, an aplication was successfully considered against the partiality of a judge of the Supreme Court, who was part of a panel of five judges who sat on criminal and closely related subsequent civil cases. The case involved a violation of the requirements of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The first applicant, together with his mother B.S. and others, was convicted of money laundering under fictitious loan agreements, which the first applicant certified as a notary. On the basis of these agreements, third parties made transfers to the B.S. account as repayment of fictitious loans. They unsuccessfully appealed the verdict to the Skopje Court of Appeal, which was sitting by a panel of five judges, which included Judge M.S. The Supreme Court of Northern Macedonia upheld the verdict.
B.S. also filed a civil lawsuit seeking an order that some third parties pay off the loan that it provided to them under the loan agreement certified by the first applicant. These parties filed a civil lawsuit against B.S., seeking the cancellation of the relevant loan agreements as fictitious. The claim of B.S. was rejected, and the loan agreements were canceled. B.S., and after her death, B.S.'s lawyer on her behalf unsuccessfully appealed the verdict on legal issues to the Supreme Court of Northern Macedonia. The Supreme Court sat as a panel of five judges, including Judge M.S.
A month before the delivery of the decision of the Supreme Court of Northern Macedonia, the first applicant initiated proceedings for inheritance after the death of B.S., which included, inter alia, her civil claim.
The applicants complained about the lack of impartiality of the board of the Supreme Court of Northern Macedonia, which considered the civil claim of B.S., since the judge M.S. sat both in the said board and in the Court of Appeal, which handed down the verdict in the criminal case against B.S.
Regarding compliance with paragraph 1 of article 6 of the Convention. The European Court limited its consideration of the case to an objective criterion regarding the lack of impartiality of the judge.
Although the loan agreements in the contested civil proceedings were not exactly the same as the loan agreements that were the subject of criminal proceedings, given the information about the parties, the participation of the first applicant as a notary and the context in which they were concluded, they were very similar, if not identical. Their almost identical nature was also one of the arguments invoked by the plaintiffs, seeking their cancellation in civil proceedings. The civil courts, having established that these contracts were fictitious, directly referred, inter alia, to the conclusions of the criminal courts regarding the criminal liability of B.S. and other persons, as well as the applicant. They cited this reference despite the fact that the criminal proceedings concerned other loan agreements and, therefore, could not be considered as res judicata on the issues raised in the contested civil proceedings. It should also be noted that the examination conducted by the judicial panels in both proceedings concerned the substance of B.S.' complaints.
Taking into account the comprehensive assessment and extensive limits of consideration of the case by the Court of Appeal, as well as the wide resonance of the criminal case at the relevant time, it could not be assumed that the judge M.S. did not know about B.S.'s involvement in this case, considering her complaint in the framework of the contested civil proceedings. However, there was no indication that she admitted the possibility of refusing to consider the case or that she had notified the President of the Supreme Court of Northern Macedonia that she had previously sat as part of the judicial board in criminal proceedings. In this regard, domestic legislation directly obliged the judges considering the case to immediately notify the chairman of the court of the circumstances that serve as the basis for their removal. B.S. had no opportunity to petition for the dismissal of Judge M.S. from the consideration of her civil case. Indeed, the lawyer of B.S. had no real opportunity to find out that Judge M.S. would be a member of the board of the Supreme Court of Northern Macedonia, especially considering that there was no oral hearing in court. Therefore, it is the judge M.S. I had to bring this issue to the attention of the Chairman of the Supreme Court.
Although Judge M.S. was only one of the five judges on the board of the Supreme Court of Northern Macedonia, due to the secrecy of the discussions, it was impossible to establish her actual influence on the outcome of the case. Nevertheless, it was not disputed that Judge M.S. was the Acting President of the Supreme Court of Northern Macedonia at the time of filing a complaint on legal issues on behalf of B.S. and transferring this complaint to the collegium of the said court. It was also not explained why it was necessary to appoint her as a member of the board of the Supreme Court for Civil Cases, which considered the complaint of B.S., which was presumably the only case with her participation in this board for the entire time of her work in the Supreme Court of Northern Macedonia.
Thus, in the specific circumstances of the present case, the first applicant's concerns related to the fact that Judge M.S. had already formed an opinion on the merits of the civil case before it was referred to the Supreme Court of Northern Macedonia can be considered objectively justified. Accordingly, the composition of the collegium of the Supreme Court of Northern Macedonia did not meet the required standard of the Convention when applying an objective criterion.
The case involved a violation of paragraph 1 of article 6 of the Convention (adopted unanimously).
The European Court also unanimously ruled that the complaint against the second applicant was inadmissible for consideration on the merits (as incompatible with the provisions of the Convention according to the criterion ratione personae), since the grandson of B.S. was not her direct heir and could not obtain victim status on the basis of inheritance or other form of succession.
In the application of article 41 of the Convention. The European Court awarded the first applicant 2,500 euros in compensation for non-pecuniary damage, rejecting the claim for compensation for material damage.