European Court rules dismissal of 18 Ukrainian judges unlawful

19 January 2017

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Today the European Court of Human Rights found that the dismissal of 18 Ukrainian judges, ranging from Supreme Court to District level, for an alleged “breach of oath” was in violation of the rights to a fair trial and respect to private life. The European Human Rights Advocacy Centre (EHRAC), based at Middlesex University, represented eleven of the judges. The group of cases builds on the Court’s 2013 landmark judgment in EHRAC’s case Oleksandr Volkov v Ukraine, which has since led to systemic reform of the Ukrainian judiciary (see below).

All eighteen of the applicants were domestic court judges, who were dismissed between 2008 and 2013 following proceedings brought against them for “breach of oath”, as established by the High Council of Justice (HCJ). The HCJ’s decisions were submitted either to the Verkhovna Rada (parliament) or the President of Ukraine for a final decision. The applicants unsuccessfully challenged their dismissals before domestic courts.

Referring extensively to its 2013 judgment in Volkov, the Court concluded that:

“the procedure before the HCJ and Parliament had disclosed a number of structural and general shortcomings which had compromised the principles of independence and impartiality, and that the subsequent judicial review had not remedied those shortcomings”.

It therefore found a violation of the right to a fair trial (Article 6(1) of the European Convention on Human Rights –ECHR) with regards to the State’s non-compliance with the principles of independence and impartiality. In finding a breach of the right to respect for private life (Article 8 ECHR), the Court again found no reason to depart from its findings in the Volkov judgment. As a result it held that the applicants’ dismissal constituted an interference with their private life and that such interference does not comply with the requirements of “quality of law” and was not therefore lawful.

One of the applicants represented by EHRAC, Petro Kozvel, was reinstated to his position of judge in Kyiv in March 2014. The eleven applicants represented by EHRAC were awarded a total of €50,000 in compensation.

Recent judicial reform in Ukraine

Over the last year, multiple reforms have been made to Ukrainian legislation and the constitution with the aim of improving the independence and impartiality of judicial system and judicial accountability. These amendments were passed by the Verkhovna Rada (Ukrainian Parliament) on 2 June 2016 by a majority of 335 members of parliament.

The reforms aim to address general measures indicated by the European Court of Human Rights in the Volkov judgment, in line with a Council of Europe project aimed at “Strengthening the system of judicial accountability in Ukraine”. The project addresses the systemic failures relating to the political control of the Ukrainian judiciary identified in Volkov. The measures outlined in the Volkov judgment also provide a roadmap for national representatives working in the field of justice reform in Armenia, Georgia and Moldova, under the Council of Europe’s guidance. Some of the key reforms arising specifically from the Volkov case are detailed below.

A ‘breach of oath’

Judge Volkov was dismissed for an alleged “breach of oath” in 2010. EHRAC lawyers successfully argued, before the European Court, that his dismissal for a ”breach of oath” interfered with this right to  private and family life (Article 8 ECHR) as, among other things, the ground for liability for “breach of oath” had been drafted too vaguely. To address this shortcoming, the new constitutional provisions explicitly outline instances when a judge may be lawfully dismissed, while the new Law on the Judicial System and Status of Judges sets out the penalties to be applied for instances of disciplinary liability.

Independence, impartiality and corruption

In his case before the European Court, Judge Volkov argued that the HCJ could not be considered “an independent and impartial tribunal…on account of the manner of its composition, the subordination of its members to other State bodies and the personal bias of some of its members.” The new Law addresses these specific concerns by prescribing that the HCJ must be composed of two members appointed by the Ukrainian President and the remaining 19 members elected by various other bodies.[1] Furthermore, the Law prohibits any HCJ member from being politically active. As a result, the Verkhovna Rada (which can elect two members) and the President will have diminished influence over the HCJ.

Moreover, the Law introduced measures aimed at tackling corruption in the judiciary, including the establishment of a Civil Chamber of Integrity, made up of 20 members from civil society organisations, lawyers, academics and/or journalists. The Chamber is charged with gathering information about judges for the High Qualification Commission of Judges of Ukraine, to determine judges’ compatibility with criteria for professional ethics and integrity.

If effectively implemented, the new 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.

A further case concerning the dismissal of the President and judge of the Kyiv Administrative Court of Appeal, Denisov v Ukraine, was relinquished to the Grand Chamber of the European Court on 25 April 2017. The applicant, Anatoliy Denisov, is represented by EHRAC. The Grand Chamber will hear the case on 18 October 2017.[2]

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[1] Ten will be elected by the Congress of Judges; two by the Verkhovna Rada; two by the Congress of Advocates; two by the All-Ukrainian Conference of Public Prosecutors; and two by the Congress of Representatives of Law Schools and Law Academic institutions. The final member is the Chairman of the Supreme Court.

[2] The Chamber (i.e. the group of Judges) to which a case is assigned can relinquish it to the Grand Chamber if the case raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgment of the Court.