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Cite as: [2011] ECHR 1871
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FIFTH SECTION
DECISION
Application no. 21722/11
Oleksandr Fedorovych VOLKOV
against
Ukraine
The European Court of Human Rights (Fifth Section), sitting on 18 October 2011 as a Chamber composed of:
Dean
Spielmann,
President,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ganna
Yudkivska,
Angelika
Nußberger,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 30 March 2011,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleksandr Fedorovych Volkov, is a Ukrainian national who was born in 1957 and lives in Kyiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
In 1983 the applicant was appointed to the post of judge of a district court. At the material time, domestic law did not envisage taking an oath upon taking up judicial office.
On 5 June 2003 the applicant was elected to the post of judge of the Supreme Court.
On 2 December 2005 he was also elected deputy president of the Council of Judges of Ukraine (a body of judicial self-governance).
On 30 March 2007 the applicant was elected president of the Military Chamber of the Supreme Court.
On 26 June 2007 the Assembly of Judges of Ukraine found that another judge, V.P., could no longer act as a member of the High Council of Justice (“the HCJ”) and that her office should be terminated. V.P. challenged that decision before the courts. She further complained to the parliamentary committee on the judiciary (“the parliamentary committee”) in relation to the matter.
On 7 December 2007 the Assembly of Judges of Ukraine elected the applicant to the post of member of the HCJ and asked Parliament to arrange that an oath be taken from the applicant to allow him to take up office as a member of the HCJ, as required by section 17 of the HCJ Act 1998. A similar proposal was also submitted by the president of the Council of Judges of Ukraine.
In reply, the chairman of the parliamentary committee, S.K., who was also a member of the HCJ, informed the Council of Judges of Ukraine that that issue had to be carefully examined together with V.P.’s submissions concerning the unlawfulness of the decision of the Assembly of Judges of Ukraine terminating her office of member of the HCJ.
The applicant did not assume the office of member of the HCJ.
2. Proceedings against the applicant
Meanwhile, S.K. and two members of the parliamentary committee lodged requests with the HCJ, asking that it carry out preliminary inquiries into possible professional misconduct by the applicant, referring, among other things, to V.P.’s complaints.
On 16 December 2008 R.K., a member of the HCJ, having conducted a preliminary inquiry, lodged a request with the HCJ asking it to determine whether the applicant could be dismissed from the post of judge for “breach of oath”, claiming that on several occasions the applicant, as a judge of the Supreme Court, had reviewed decisions delivered by judge B., who was his relative, namely his wife’s brother. In addition, when participating as a third party in proceedings instituted by V.P. (concerning the decision of the Assembly of Judges of Ukraine to terminate her office, mentioned above), the applicant had failed to request withdrawal of the same judge, B., who was sitting in the chamber of the court of appeal hearing that case. On 24 December 2008 R.K. supplemented his request by giving additional examples of cases which had been determined by judge B. and then reviewed by the applicant. Some of the applicant’s actions which served as a basis for the request, dated back to January 2004.
On 20 March 2009 V.K., a member of the HCJ, having conducted a preliminary inquiry, lodged another request with the HCJ seeking the applicant’s dismissal from the post of judge for “breach of oath”, claiming that the applicant had made a number of gross procedural violations when dealing with cases concerning corporate disputes involving a limited liability company. Some of the applicant’s actions which served as a basis for the request, dated back to July 2006.
On 19 December 2008 and 3 April 2009 these requests were communicated to the applicant.
On 22 March 2010 V.K. was elected president of the HCJ.
On 20 May 2010 the HCJ invited the applicant to a hearing on 25 May 2010 concerning his dismissal. In reply, the applicant informed the HCJ on the same date that he could not attend that hearing as the president of the Supreme Court had commissioned him to Sevastopol from 24 to 28 May 2010 for providing methodological advice to a local court. The applicant asked the HCJ to postpone the hearing.
On 21 May 2010 the HCJ sent a notice to the applicant informing him that the hearing concerning his dismissal had been postponed until 26 May 2010. According to the applicant, he received the notice on 28 May 2010.
On 26 May 2010 the HCJ considered the requests brought by R.K. and V.K. and adopted two decisions on applying to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The decisions set out the facts and the reasons for dismissing the applicant. V.K. presided at the hearing. R.K. and S.K. also participated as members of the HCJ. The applicant was absent. Journalists wishing to observe the proceedings were not admitted to the hearing room.
According to the applicant, V.K. and S.K. have special relationship due to one of them being a godfather of the other’s child. No further information has been specified in this regard.
On 31 May 2010 V.K., as president of the HCJ, submitted two applications to Parliament for dismissing the applicant from the post of judge. The texts of the applications, which contained the relevant facts and reasons (based on the HCJ’s decisions of 26 May 2010), were not approved by the HCJ.
On 16 June 2010, during a hearing presided over by S.K., the parliamentary committee examined the HCJ’s applications concerning the applicant and adopted a recommendation for the applicant’s dismissal. The members of the committee who had requested that the HCJ conduct preliminary inquiries in respect of the applicant also voted on the recommendation. In addition to S.K., another member of the committee had earlier dealt with the applicant’s case as a member of the HCJ and had subsequently voted on the recommendation as part of the committee. The applicant was absent from the committee hearing.
On 17 June 2010 the HCJ’s applications and the recommendation of the parliamentary committee were considered at a plenary meeting of Parliament. The applicant was present at the meeting. After deliberation, Parliament voted for the dismissal of the applicant from the post of judge for “breach of oath” and adopted a resolution to that effect. During the electronic vote, the majority of Members of Parliament were absent. The Members of Parliament present used voting cards which belonged to their absent peers. Statements of Members of Parliament about the misuse of voting cards and a video recording of the relevant part of the plenary meeting have been submitted to the Court.
The applicant challenged his dismissal before the Higher Administrative Court (“the HAC”). The applicant claimed that: the HCJ had not acted independently and impartially; it had not properly informed him of the hearings in his case; it had failed to apply the procedure for dismissal of a judge of the Supreme Court provided for in chapter four of the HCJ Act 1998, which offered a set of procedural guarantees such as notification of the judge concerned about the disciplinary proceedings and his active participation therein, a time frame for the proceedings, secret ballot voting, and a limitation period for disciplinary penalties; the HCJ’s findings had been unsubstantiated and unlawful; the parliamentary committee had not heard him and had acted unlawfully and with bias; Parliament had adopted a resolution on the applicant’s dismissal in the absence of a majority of the Members of Parliament, which was in breach of Article 84 of the Constitution, section 24 of the Status of Members of Parliament Act 1992 and rule 47 of the Rules of Parliament.
The applicant therefore requested that the impugned decisions and applications made by the HCJ and the parliamentary resolution be declared unlawful and quashed.
In accordance with Article 171-1 of the Code of Administrative Justice (“the Code”), the case was allocated to the special chamber of the HAC.
The applicant sought the withdrawal of the chamber, claiming that it was unlawfully set up and that it was biased. The applicant’s motion was rejected as unsubstantiated. According to the applicant, a number of his requests to have various pieces of evidence collected and accepted and for summoning of witnesses were rejected.
On 6 September 2010 the applicant supplemented his claim with the Statements of Members of Parliament about the misuse of voting cards during the voting on his dismissal and a video recording of the relevant part of the plenary meeting.
After several hearings, on 19 October 2010 the HAC considered the applicant’s claim. It found that the applicant had taken up the office of judge in 1983 when domestic law did not envisage the taking of an oath by a judge. The applicant had, however, been dismissed for a breach of fundamental standards of the judicial profession, which were fixed in sections 6 and 10 of the Status of Judges Act 1992 and legally binding at the time of the actions committed by the applicant.
The court further found that the HCJ’s decision and application made in respect of R.K.’s request had been unlawful because the applicant and judge B. had not been considered relatives under the legislation in force at the material time. In addition, as to the proceedings in relation to which the applicant had been a third party, he had had no obligation to seek the withdrawal of judge B. However, the HAC refused to quash these HCJ’s acts, noting that in accordance with Article 171-1 of the Code it was not empowered to take such a measure.
As regards the decision taken and application made by the HCJ in respect of V.K.’s request, they were found to be lawful and substantiated.
As to the applicant’s submissions that the HCJ should have applied the procedure provided for in chapter four of the HCJ Act 1998, the court noted that according to section 37 § 2 of that Act that procedure applied only to cases involving such sanctions as reprimands or downgrading of the qualification class. Liability for “breach of oath” in the form of dismissal was envisaged by Article 126 § 5 (5) of the Constitution and the procedure to be followed was different, namely the one described in section 32 of the HCJ Act 1998, contained in chapter two of that legal Act. The court concluded that the procedure cited by the applicant did not apply to the dismissal of a judge for “breach of oath”. There had therefore been no grounds to apply the limitation periods referred to in section 36 of the Status of Judges Act 1992 and section 43 of the HCJ Act 1998.
The court then found that the applicant had been absent from the hearing at the HCJ without a valid reason. It further noted that there had been no procedural violations in the proceedings before the parliamentary committee. As to the alleged procedural violations at the plenary meeting, the parliamentary resolution on the applicant’s dismissal was voted for by the majority of Parliament. The court further noted that it was not empowered to review the constitutionality of the parliamentary resolutions, as this fell within the jurisdiction of the Constitutional Court.
The hearings at the HAC were held in the presence of the applicant and other parties to the dispute. The applicant was given thirty minutes in which to make oral submissions.
3. Events connected with the appointment of presidents and deputy presidents of the domestic courts and, in particular, the president of the HAC
On 22 December 2004 the President of Ukraine, in accordance with section 20 of the Judicial System Act 2002, appointed judge P. to the post of president of the HAC.
On 16 May 2007 the Constitutional Court found that section 20 § 5 of the Judicial System Act 2002, concerning the procedure for appointing and dismissing presidents and deputy presidents of the courts by the President of Ukraine, was unconstitutional. It recommended that Parliament adopt relevant legislative amendments to regulate the issue properly.
On 30 May 2007 Parliament adopted a resolution introducing a temporary procedure for the appointment of presidents and deputy presidents of the courts. The resolution provided the HAC with the power to appoint the presidents and deputy presidents of the courts.
On the same date, the applicant challenged the resolution before the courts claiming, inter alia, that it was inconsistent with the HCJ Act 1998 and other laws of Ukraine. The court immediately delivered an interlocutory decision suspending the effect of the resolution.
On 31 May 2007 the Council of Judges of Ukraine, having regard to the legislative gap resulting from the decision of the Constitutional Court of 16 May 2007, adopted a decision by which it declared its temporary power to appoint the presidents and deputy presidents of the courts.
On 14 June 2007 the parliamentary gazette published an opinion by the chairman of the parliamentary committee, S.K., stating that the local courts had no power to review the above-mentioned resolution of Parliament and that the judges reviewing that resolution would be dismissed for “breach of oath”.
On 26 June 2007 the Assembly of Judges of Ukraine endorsed the decision of the Council of Judges of Ukraine of 31 May 2007.
On 21 February 2008 the court reviewing the parliamentary resolution quashed it as unlawful.
On 21 December 2009 the Presidium of the HAC decided that judge P. should continue performing the duties of president of the HAC after the expiry of the five-year term provided for in section 20 of the Judicial System Act 2002.
On 22 December 2009 the Constitutional Court adopted a decision interpreting the provisions of section 116 § 5 (4) and section 20 § 5 of the Judiciary System Act 2002. It found that those provisions were to be understood as empowering the Council of Judges of Ukraine to give only recommendations for the appointment of judges to administrative posts by another body (or an official) defined by the law. The court further obliged Parliament to immediately comply with the decision of 16 May 2007 and to introduce relevant legislative amendments.
On 24 December 2009 the Conference of judges of administrative courts decided that judge P. should continue to act as president of the HAC.
On 25 December 2009 the Council of Judges of Ukraine quashed the decision of 24 December 2009 as unlawful and noted that, by virtue of section 41 § 5 of the Judicial System Act 2002, the first deputy president of the HAC, judge S., was required to perform the duties of president of that court.
On 16 January 2010 the General Prosecutor’s Office issued a press release noting that the body or public official empowered to appoint and dismiss presidents of the courts had not yet been specified in the laws of Ukraine, while the Council of Judges of Ukraine was only entitled to give recommendations on those issues. Judge P. had not been dismissed from the post of president of the HAC and therefore continued to occupy it lawfully.
Judge P. continued to act as president of the HAC.
On 25 March 2010 the Constitutional Court found that the parliamentary resolution of 30 May 2007 was unconstitutional.
The Chamber of the HAC dealing with the cases referred to in Article 171-1 of the Code was set up in May – June 2010 with the use of the procedures provided for in section 41 of the Judicial System Act 2002.
B. Relevant domestic law
1. Constitution of 28 June 1996
Article 84 of the Constitution provides that Members of Parliament shall vote in person at sittings of Parliament.
Article 126 § 5 of the Constitution reads as follows:
“A judge shall be dismissed from office by the body which elected or appointed him or her in the event of:
(1) the expiration of the term for which he or she was elected or appointed;
(2) the judge’s attainment of the age of sixty-five;
(3) the impossibility of continuing his or her duties for health reasons;
(4) violation by the judge of the requirements concerning judicial incompatibility;
(5) breach of oath by the judge;
(6) the entry into legal force of a conviction against him or her;
(7) the termination of his or her citizenship;
(8) a declaration that he or she is missing, or a pronouncement that he or she is dead;
(9) submission by the judge of a statement of resignation or of voluntary dismissal from office.”
Articles 128 and 131 of the Constitution provide as follows:
Article 128.
“The initial appointment of a professional judge to office for a five-year term shall be made by the President of Ukraine. All other judges, except for the judges of the Constitutional Court, shall be elected by Parliament for an indefinite term in accordance with the procedure established by law. ...”
Article 131.
“The High Council of Justice shall operate in Ukraine. Its tasks shall comprise:
(1) making applications on the appointment or dismissal of judges;
(2) adopting decisions with regard to the violation by judges and prosecutors of the requirements concerning judicial incompatibility;
(3) conducting disciplinary proceedings in respect of judges of the Supreme Court and judges of higher specialised courts, and the consideration of complaints regarding decisions imposing disciplinary liability on judges of courts of appeal and local courts and prosecutors.
The High Council of Justice shall consist of twenty members. The Parliament of Ukraine, the President of Ukraine, the Assembly of Judges of Ukraine, the Assembly of Advocates of Ukraine, and the Assembly of Representatives of Higher Legal Educational Establishments and Scientific Institutions, shall each appoint three members to the High Council of Justice, and the All-Ukrainian Conference of Employees of the Prosecutor’s Offices shall appoint two members to the High Council of Justice.
The President of the Supreme Court, the Minister of Justice and the Prosecutor General shall be ex officio members of the High Council of Justice.”
2. Criminal Code of 5 April 2001
Article 375 of the Code provides:
“1. Adoption by a judge (or judges) of a premeditatedly wrongful conviction, judgment, decision or resolution –
shall be punishable by restriction of liberty for up to five years or by imprisonment from two to five years.
2. The same acts, if they resulted in serious consequences or were committed for financial gain or for other personal interest –
shall be punishable by imprisonment from five to eight years.”
3. Code of Administrative Justice of 6 July 2005
The relevant provisions of the Code read as follows:
Article 161. Questions to be determined by a court when deciding on a case
“1. When deciding on a case, a court shall determine:
(1) whether the circumstances referred to in the claim and objections took place and what evidence substantiates these circumstances;
(2) whether there is any other factual information relevant to the case and the evidence in its support;
(3) which provision of law is to be applied to the legal relations in dispute; ...”
Article 171-1. Proceedings in cases concerning acts,
actions or omissions of the Parliament of Ukraine, the President of
Ukraine, the High Council of Justice, and the High Qualification
Commission of Judges
[the provision in force as from 15 May 2010]
“1. The rules set down in this Article shall apply to proceedings in administrative cases concerning:
(1) the lawfulness (but not constitutionality) of resolutions of Parliament, and decrees and orders of the President of Ukraine;
(2) acts of the High Council of Justice; ...
2. Acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice, and the High Qualification Commission of Judges shall be challenged before the Higher Administrative Court. For this purpose a separate chamber shall be set up in the Higher Administrative Court.
...
4. Administrative cases concerning acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice, and the High Qualification Commission of Judges shall be considered by a bench composed of at least five judges ...
5. Following the consideration of the case, the Higher Administrative Court may:
(1) declare the act of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice, or the High Qualification Commission of Judges unlawful in full or in part;
(2) declare the actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice, or the High Qualification Commission of Judges unlawful and oblige [it or them] to take certain measures. ...”
4. The Law “on the judicial system” of 7 February 2002 with further amendments (“the Judicial system Act 2002”) (in force until 30 July 2010)
The relevant provisions of the Act provide as follows:
Section 20. The procedure for the setting up of courts
“...5. The president and deputy president of a court shall be a judge appointed to the relevant post for a five-year term and dismissed from that post by the President of Ukraine on application by the President of the Supreme Court (and, in respect of the specialised courts, on application by the president of the relevant higher specialised court) made on the basis of a recommendation by the Council of Judges of Ukraine (and, in respect of the specialised courts, a recommendation by the relevant council of judges). ...”
By a decision of the Constitutional Court of 16 May 2007, the provision of section 20 § 5 of the Act concerning the appointment of presidents and deputy presidents of the courts by the President of Ukraine was declared unconstitutional.
Section 41. The president of a higher specialised court
“1. The president of a higher specialised court shall:
...
(3) ... set up the chambers of the court; make proposals for the individual composition of the chambers, to be approved by the presidium of the court; ...
5. In the absence of the president of the higher specialised court, his duties shall be performed by the first deputy president, or, in the absence of the latter, by one of the deputy presidents of the court according to the distribution of administrative powers.”
Section 116. The Council of Judges of Ukraine
“1. The Council of Judges of Ukraine shall operate as a higher body of judicial self-governance in the period between the sessions of the Assembly of Judges of Ukraine.
...
5. The Council of Judges of Ukraine shall:
...(4) decide on the appointment of judges to administrative posts and their dismissal from those posts in the cases and in accordance with the procedure provided for by this Act;...
6. The decisions of the Council of Judges of Ukraine shall be binding on all bodies of judicial self-governance. A decision of the Council of Judges of Ukraine may be repealed by the Assembly of Judges of Ukraine.”
5. The Law “on the status of judges” of 15 December 1992 with further amendments (“the Status of Judges Act 1992”) (in force until 30 July 2010)
The relevant provisions of the Act provide as follows:
Section 5. Requirements of compatibility
“A judge may not be a member of a political party or trade union, participate in any political activity, have been given any mandate of representation, have any other gainful occupation, or hold any other paying job with the exception of scientific, educational or artistic occupations.”
Section 6. Duties of judges
“Judges shall be obliged:
- to adhere to the Constitution and the laws of Ukraine when administering justice, and to ensure the full, comprehensive and objective consideration of cases within the time-limits fixed;
- to comply with the requirements of section 5 of this Act and internal regulations;
- not to divulge information which is classified as state, military, commercial, or bank secrets ...
- to refrain from any acts or actions which dishonour the judicial office and which may cause doubt as to his objectivity, impartiality and independence.”
Section 10. Judicial oath
“Upon initial appointment, a judge shall solemnly take the following oath:
“I solemnly declare that I will honestly and rigorously perform the duties of judge, abide only by the law when administering justice, and be objective and fair”.
The oath shall be taken before the President of Ukraine.”
Section 31. Grounds for disciplinary liability of judges
“1. A judge shall be disciplinarily liable for a disciplinary offence, that is, for breach of:
- legislation when considering a case;
- the requirements of section 5 of this Act;
- the duties set out in section 6 of this Act.
2. The revocation or amendment of a judicial decision shall not entail disciplinary liability for a judge who participated in the adoption of that decision, provided that there was no intent to violate the law or the requirements of rigorousness and that no serious consequences were brought about by that decision.”
Section 32. Types of disciplinary penalties
“1. The following disciplinary penalties may be imposed on judges:
- reprimand;
- downgrading of qualification class.
2. For each of the violations described in section 31 of this Act, only one disciplinary penalty shall be imposed. ...”
Section 36. Time-limits for imposing a disciplinary penalty and removing a disciplinary record
“1. A judge shall receive a disciplinary penalty within six months of the date the offence became known, excluding any period of temporary disability or leave.
2. If, within a year of the date the disciplinary measure was applied, the judge does not receive a new disciplinary penalty, that judge shall be considered as having no disciplinary record. ...”
6. The Law “on the High Council of Justice” of 15 January 1998 (“The HCJ Act 1998”) as worded at the relevant time
Section 17 of the Act provides that, before entry into office, a member of the HCJ shall take an oath at a sitting of Parliament.
Section 19 of the Act provides that the HCJ shall comprise two sections. The work of the HCJ shall be coordinated by its president or, in his absence, by the deputy president. The president of the HCJ, the deputy president of the HCJ and the heads of sections of the HCJ shall work on a full time basis.
The other relevant provisions of the Act provide as follows:
Section 24. Hearings before the High Council of Justice
“...A hearing before the High Council of Justice shall be public. A private hearing shall be held upon a decision of the majority of the constitutional composition of the High Council of Justice ...”
Section 27. Acts of the High Council of Justice
“... The acts of the High Council of Justice may be challenged exclusively before the Higher Administrative Court in accordance with the procedure provided for in the Code of Administrative Justice.”
Chapter two of the Act, “Consideration of matters concerning the dismissal of judges”, provides, in so far as relevant, as follows:
Section 32. An application for the dismissal of a
judge in special circumstances
[wording of the section before 15
May 2010]
“The High Council of Justice shall consider the question of dismissing a judge on the grounds provided for by Article 126 § 5 (4) – (6) of the Constitution upon receipt of the relevant opinion from the qualification commission or of its own motion. The judge concerned shall be sent a written invitation to attend the hearing before the High Council of Justice.
The decision of the High Council of Justice to apply for dismissal of a judge under Article 126 § 5 (4) and (5) of the Constitution shall be taken by a two-thirds majority of the members of the High Council of Justice participating in the hearing, and, in the cases provided for by Article 126 § 5 (6) of the Constitution, by a majority of the constitutional composition of the High Council of Justice.”
Section 32. An application for the dismissal of a
judge in special circumstances
[wording of the section as from 15
May 2010]
“The High Council of Justice shall consider the question of dismissing a judge on the grounds provided for by Article 126 § 5 (4) – (6) of the Constitution (violation of judicial incompatibility requirements, breach of oath, entry into legal force of a conviction against a judge) upon receipt of the relevant opinion from the qualification commission or of its own motion.
Breach of oath by a judge shall comprise:
(i) the commission of actions which dishonour the judicial office and which may call into question his objectivity, impartiality and independence, as well as the fairness and incorruptibility of the judiciary;
(ii) unlawful acquisition of wealth or expenditure by the judge which exceeds his income and the income of his family;
(iii) deliberate delaying of the consideration of a case exceeding the time-limits fixed; [or]
(iv) violation of the moral and ethical principles of the judicial code of conduct.
The judge concerned shall be sent a written invitation to attend the hearing before the High Council of Justice. If the judge cannot participate in the hearing for a valid reason, he shall be entitled to make written submissions, which shall be included in the case file. The written submissions by the judge shall be read out at the hearing before the High Council of Justice. A second failure on the part of the judge to attend a hearing shall be grounds for considering the case in his absence.
A decision of the High Council of Justice to apply for dismissal of a judge under Article 126 § 5 (4) – (6) of the Constitution shall be taken by a majority of the constitutional composition of the High Council of Justice.”
Chapter four of the Act, “Disciplinary proceedings against the judges of the Supreme Court and the higher specialised courts”, provides, in so far as relevant, as follows:
Section 37. Types of penalties imposed by the High
Council of Justice
[wording of the section until 30 July 2010]
“The High Council of Justice shall impose disciplinary liability ... on judges of the Supreme Court ... on the grounds as provided for in Article 126 § 5 (5) of the Constitution and the Status of Judges Act.
The High Council of Justice may impose the following disciplinary penalties:
(1) reprimand;
(2) downgrading of qualification class.
The High Council of Justice may decide that a judge is not compatible with the post he occupies and lodge an application for his dismissal with the body which appointed him.”
Section 39. Stages of disciplinary proceedings
“Disciplinary proceedings shall comprise the following stages:
(1) verification of information about a disciplinary offence;
(2) institution of the disciplinary proceedings;
(3) consideration of the disciplinary case;
(4) adoption of a decision. ...”
Section 40. Verification of information about a disciplinary offence
“Verification of information about a disciplinary offence shall be carried out by ... one of the members of the High Council of Justice by way of receiving written explanations from the judge and other persons, requesting and examining the materials of case files, receiving other information from State bodies, organisations, institutions, associations and citizens.
Following the verification of information, a statement of facts with conclusions and proposals shall be prepared. The statement and other materials shall be communicated to the judge concerned. ...”
Section 41. Institution of disciplinary proceedings
“If there are grounds to conduct disciplinary proceedings against ... a judge of the Supreme Court... they shall be instituted by a decision of the High Council of Justice within ten days of the date of receipt of the information about the disciplinary offence or, if it is necessary to verify this information, within ten days of the date of the completion of the verification.”
Section 42. Consideration of a disciplinary case
[wording of the section until 30 July 2010]
“The High Council of Justice shall consider a disciplinary case at its next hearing after the receipt of a conclusion and verification materials.
The decision in a disciplinary case shall be taken by a secret ballot vote in the absence of the judge concerned ...
The High Council of Justice shall hear a judge when determining his disciplinary liability. If the judge cannot participate in the hearing for a valid reason, he shall be entitled to make written submissions, which shall be included in the case file. The written submissions by the judge shall be read out at the hearing before the High Council of Justice. A second failure on the part of a judge to attend a hearing shall be grounds for considering the case in his absence.”
Section 43. Time-limits for imposing a disciplinary penalty
“A judge shall receive a disciplinary penalty within six months of the date the offence became known, excluding any period of temporary disability or leave, but in any event not later than one year from the date of the offence.”
Section 44. Removal of disciplinary record
“If, within a year of the date the disciplinary penalty was applied, the judge does not receive a new disciplinary penalty, that judge shall be considered as having no disciplinary record. ...”
7. The Law “on the procedure for electing and dismissing judges by Parliament” of 18 March 2004 (“The Judges (Election and Dismissal) Act 2004”) (in force until 30 July 2010)
The relevant provisions of the Act provide as follows:
Section 19. The procedure before the parliamentary committee concerning the consideration of the application for the dismissal of a judge who has been elected for an indefinite term
“An application [of the High Council of Justice] for the dismissal of a judge who has been elected for an indefinite term shall be considered by the parliamentary committee within a month of the date of receipt of the application. ...
The parliamentary committee shall carry out an inquiry in respect of the applications made by citizens and other notifications concerning activities of the judge.
The parliamentary committee may request additional inquiries be conducted by the Supreme Court, the High Council of Justice, the respective higher specialised court, the State judicial administration, the Council of Judges of Ukraine or respective qualification commission of judges.
The results of the additional inquiries shall be provided to the parliamentary committee by the relevant authorities in writing within the time-limits fixed by the parliamentary committee but in any event not later than in fifteen days from the request for an inquiry.
The judge concerned shall be notified of the time and place of the hearing before the parliamentary committee.”
Section 20. The procedure before the parliamentary committee concerning the determination of the issue of the dismissal of a judge elected for an indefinite term
“The hearing before the parliamentary committee on the dismissal of a judge elected for an indefinite term may be attended by Members of Parliament and by representatives of the Supreme Court, the higher specialised courts, the High Council of Justice, the State judicial administration, other State authorities, local self-government bodies and public institutions.
The judge concerned shall be present at the hearing, except in cases of dismissal under Article 126 § 5 (2), (3), (6), (7), (8) and (9) of the Constitution.
A second failure on the part of the judge concerned to attend a hearing without a valid reason shall be grounds for considering the case in his absence after the parliamentary committee has ascertained that the judge has received notice of the time and place of the hearing. The parliamentary committee shall assess the validity of any reasons for failure to appear. ...
The hearing before the parliamentary committee on the dismissal of judge shall start with a report by the chairman.
The members of the parliamentary committee and other Members of Parliament may put questions to the judge as regards the materials of inquiry and the facts noted in the applications made by citizens.
The judge shall be entitled to study the materials, statements of facts and conclusion of the parliamentary committee concerning his dismissal.”
Section 21. The introduction of the proposal for the dismissal of a judge ... before a plenary meeting of Parliament
The parliamentary committee shall introduce before a plenary meeting of Parliament a proposal recommending or not recommending the dismissal of a judge elected for an indefinite term. The representative of the parliamentary committee shall be given the floor.
Section 22. Invitation to attend the plenary meeting concerning the dismissal of a judge elected for an indefinite term
“...The judge concerned shall be present at the plenary meeting of Parliament in the event of his dismissal under Article 126 § 5 (1), (4) and (5) of the Constitution. His failure to appear shall not hinder consideration of the matter on the merits.”
Section 23. The procedure at the plenary meeting of Parliament concerning the determination of the issue of the dismissal of a judge elected for an indefinite term
“During the plenary meeting of Parliament, the representative of the parliamentary committee shall report on each candidate for dismissal.
If a judge does not agree with his dismissal, his explanations shall be heard.
Members of Parliament shall be entitled to put questions to the judge.
If during the deliberations at the plenary meeting of Parliament it becomes necessary to carry out additional inquiry in respect of the applications made by citizens or to request additional information, Parliament shall give relevant instructions to the parliamentary committee.”
Section 24. Parliament’s decision concerning the dismissal of a judge elected for an indefinite term
“Parliament shall take a decision on the dismissal of a judge on the grounds defined in Article 126 § 5 of the Constitution.
The decision shall be taken by open vote by a majority of the constitutional composition of Parliament.
A decision on the dismissal of a judge shall be adopted in the form of resolution.”
8. The Law “on the parliamentary committees” of 4 April 1995 (“The Parliamentary Committees Act 1995”)
Section 1 of the Act provides that a parliamentary committee is a body of Parliament composed of Members of Parliament with the task of drafting laws in particular fields, conducting preliminary reviews of matters which fall within the competence of Parliament, and carrying out oversight functions.
9. The Law “on status of Members of Parliament” of 17 November 1992 (“The Status of Members of Parliament Act of 17 November 1992”)
According to section 24 of the Act, a Member of Parliament shall be obliged to be present and personally participate in sittings of Parliament. He or she shall be obliged to vote in person on the matters that are considered by Parliament and its bodies.
10. The Law “on the rules of Parliament” of 10 February 2010 (“the Rules of the Parliament”)
Rule 47 of the Rules of Parliament provides that when Parliament takes decisions, its members shall vote in person in the debating chamber by using an electronic vote system or, in the event of a secret vote, in a voting lobby near the debating chamber.
C. Council of Europe material
1. European Charter on the statute for judges of 8-10 July 1998 (Department of Legal Affairs of the Council of Europe Document (98)23)
The relevant extracts from Chapter 5 of the Charter, “Liability”, read as follows:
“5.1. The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.”
2. Opinions of the Venice Commission
The relevant extracts from the Joint Opinion on the Law Amending Certain Legislative Acts of Ukraine in Relation to the Prevention of Abuse of the Right to Appeal by the Venice Commission and the Directorate of Co-operation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe, adopted by the Venice Commission at its 84th Plenary Session (Venice, 15-16 October 2010), read as follows (emphasis added in the original text):
“30. The actual composition of the HCJ may well allow concessions to the interplay of parliamentary majorities and pressure from the executive, but this cannot overcome the structural deficiency of its composition. This body may not be free from any subordination to political party consideration. There are not enough guarantees ensuring that the HCJ safeguards the values and fundamental principles of justice. The composition is set up in the Constitution and a constitutional amendment would be required. The inclusion of the Prosecutor General as [an] ex officio member raises particular concerns, as it may have a deterrence effect in judges and be perceived as a potential threat. The Prosecutor General is a party to many cases which the judges have to decide, and his presence on a body concerned with the appointment, disciplining and removal of judges creates a risk that judges will not act impartially in such cases or that the Prosecutor General will not act impartially towards judges whose decisions he disapproves of. Consequently, the composition of the HCJ of Ukraine does not correspond to European standards. As a changed composition would require an amendment of the Constitution and this may be difficult, the Law should include, in order to counterbalance the flawed composition of the HCJ, a stronger regulation of incompatibilities. Taking into account the powers granted to the HCJ, it should work as a full time body and the elected members, unlike the ex officio members, should not be able to exercise any other public or private activity while sitting in the HCJ. ...
42. ... Taking into account that the Minister of Justice and the Procurator General of Ukraine are members ex officio of the HCJ (Article 131 of the Constitution), and that the Ukrainian Constitution does not guarantee that the HCJ will be composed of a majority or substantial number of judges elected by their peers, the submitting of proposals for dismissal by members of the executive might impair the independence of the judges ... . In any event, the member of the HCJ who submitted the proposal should not be allowed to take part in the decision to remove from office the relevant judge: this would affect the guarantee of impartiality ...
45. ... Precision and forseeability of the grounds for disciplinary liability is desirable for legal certainty and particularly to safeguard the independence of the judges; therefore an effort should be made to avoid vague grounds or broad definitions. However, the new definition includes very general concepts, such as “the [commission] of actions that dishonour a judicial office or may cause doubts [as to] his/her impartiality, objectivity and independence, [or the] integrity, incorruptibility of the judiciary” and “violation of moral and ethical principles of human conduct” among others. This seems particularly dangerous because of the vague terms used and the possibility of using it as a political weapon against judges. ... Thus, the grounds for disciplinary liability are still too broadly conceived and a more precise regulation is required to guarantee judicial independence.
46. Finally, Article 32, in its last paragraph, requires decisions about the submission of the HCJ’s petition regarding dismissal of a judge to be taken by a simple rather than a two-thirds majority. In the light of the flawed composition of the HCJ, this is a regrettable step which would go against the independence of the judges ...
51. Finally, the composition of the and new highly influential so-called “fifth chamber” of the High Administrative Court should be precisely determined by the law in order to comply with the requirements of the fundamental right of access to a court pre-established by the law. ...”
COMPLAINTS
(a) his case was not considered by “an independent and impartial tribunal”; in particular, this requirement was not met by the HCJ due to the manner of its composition, the subordination of its members to other State bodies and the personal bias of some of its members in his case; neither was this requirement satisfied at the subsequent stages of the proceedings;
(b) the hearing before the HCJ was not public, as journalists were not admitted to observe the deliberations;
(c) the principle of equality of arms was not respected, as he could not effectively participate in the proceedings and was absent from the relevant hearings before the HCJ and the parliamentary committee;
(d) the proceedings before the HCJ were unfair, in that they were not carried out pursuant to the procedure envisaged by chapter four of the HCJ Act 1998 offering a set of important procedural guarantees, such as notification of a judge concerned about the disciplinary proceedings and his active participation therein, a time frame for the proceedings, secret ballot voting and limitation periods for disciplinary penalties; at the same time, the reasons given by the HAC for applying a different procedure were not sufficient;
(e) the proceedings concerning his dismissal lasted too long;
(f) Parliament adopted the decision on his dismissal at a plenary meeting without proper examination of the case and by abusing the electronic voting system;
(g) his case was heard by a special chamber of the HAC which was not a “tribunal established by law”, as it was set up and composed in contravention of domestic law;
(h) the decisions in his case were taken without a proper assessment of the evidence and important arguments raised by the defence were not properly addressed;
(i) during the hearing before the HAC he was limited to thirty minutes for oral submissions, which was contrary to the principle of fair trial;
the absence of competence on the part of the HAC to quash acts adopted by the HCJ ran counter to his “right to a court”.
THE LAW
The relevant part of Article 6 of the Convention provides:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
Article 8 of the Convention provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the following complaints of the applicant:
(1) the complaints under Article 6 of the Convention that (i) his case was not considered by “an independent and impartial tribunal”; (ii) the principle of equality of arms was not respected; (iii) the proceedings before the HCJ were unfair, in that they were not carried out pursuant to the procedure envisaged by chapter four of the HCJ Act 1998 offering a set of important procedural guarantees; (iv) Parliament adopted the decision on his dismissal at a plenary meeting without proper examination of the case and by abusing the electronic voting system; (v) his case was heard by a special chamber of the HAC which, allegedly, was not a “tribunal established by law”; (vi) the decisions in his case were taken without a proper assessment of the evidence and important arguments raised by the defence were not properly addressed; (vii) the absence of competence on the part of the HAC to quash acts adopted by the HCJ ran counter to his “right to a court”;
(2) the complaints under Articles 8 and 13 of the Convention.
Declares the remainder of the application inadmissible.
Claudia Westerdiek Dean Spielmann
Registrar President