Grand Chamber finds President of Ukrainian Court was unfairly dismissed

Published: 25 Sep 2018

Anatoliy Denisov was President of the Kyiv Administrative Court of Appeal when he was unfairly dismissed from his post before the expiry of his term of office. The Kyiv Administrative Court of Appeal reviews cases related to the presidential elections, decisions of government and the Central Election Committee. Mr Denisov is one of many members of the judiciary in Ukraine unlawfully dismissed from their posts between 2008 and 2013. Today, the European Court of Human Rights ruled that Mr. Denisov’s dismissal was in breach of the European Convention on Human Rights. Mr Denisov was represented before the Court by EHRAC Legal Director Jessica Gavron and UK barrister Alexander Halban.

In the light of current concerns of political interference in the judiciary within Europe, this Grand Chamber judgment underlines the importance of the procedural guarantees that must be accorded to judges, and in this case the key role of Court President, as guarantor of a court’s independence.

Jessica Gavron, EHRAC Legal Director

What happened?

Mr Denisov served as a judge in Ukraine from 1976. In 2005, he was elected to the Kyiv Administrative Court of Appeal, and in 2009 was appointed to the role of President of the Court. During his tenure as President, and in that capacity, Mr Denisov experienced and resisted numerous instances of direct political interference and intimidation by members of the governing party, including those serving on the High Council of Justice, the body that oversees the appointment and dismissal of judges. It is widely acknowledged that, at that time, such overt interference was a serious issue in the Ukrainian judiciary.

Anatoliy Denisov. Photo: Unian.ua

In 2011, the High Council of Justice ordered an investigation by the Council of Administrative Court Judges into the Kyiv Administrative Appeal Court. The report was presented to the High Council of Justice which took the decision to dismiss Mr Denisov, in absentia while he was on leave seeking medical treatment, for “gross violations of the principles…[of] court management and legal proceedings enforcement”. Mr Denisov appealed this decision to the Higher Administrative Court which upheld the decision of the High Council of Justice. He continued to serve as an ordinary judge in the court, at a reduced salary and pension until he retired in 2013.

How does this violate Mr Denisov’s human rights?

The Court held that Mr Denisov’s right to a fair trial (Article 6 of the European Convention on Human Rights (ECHR)) had been breached. The Court noted that:

“The question of compliance with the fundamental guarantees of independence and impartiality may arise…if the structure and functioning of the disciplinary body raises serious issues in this regard. The present case does indeed disclose serious issues of this kind on the part of the High Council of Justice, in particular structural deficiencies and the appearance of personal bias.”

The Higher Administrative Court failed to provide a sufficient review of the dismissal proceedings at the High Council of Justice. In particular, the Court found in the proceedings before the Higher Administrative Court that:

“Firstly, there are serious mismatches between the advanced and actual grounds of review”

and that:

Secondlythe Higher Administrative Court failed to assess whether the proceedings before the High Council of Justice had complied with the principles of independence and impartiality. It provided no reasons in that regard.”

The Court also held that given the role of the High Council of Justice in this case and its extensive powers of discipline, appointment and removal over all judges, the Higher Administrative Court could not demonstrate independence and impartiality.

The Court found no violation of the right to respect for private life (Article 8 ECHR) and the limitation on use of restriction on rights (Article 18 ECHR).

What next?

Multiple reforms have already been made to Ukrainian legislation and the constitution with the aim of improving the independence and impartiality of judicial system and judicial accountability, as a direct result of judgments in EHRAC’s case, Volkov v Ukraine (2013), and our follow-up cases, Kulykov and others v Ukraine (2017). All of these cases concern judges from various levels of the judiciary who were dismissed for alleged ‘breaches of oath’.

If effectively implemented, the constitutional amendments and legislation should ensure the independence of the judiciary and the High Council of Justice (the body with the power over the appointment, dismissal and regulation of judges). The legal reforms have also been designed to reduce parliamentary and presidential influence on the judiciary. In the long term, this should improve judicial independence, promote access to justice and protect the rule of law in Ukraine.