Denisov v Ukraine
Forum: ECtHR (GC)
Case No. 76639/11
Judgment date: 25 September 2018
The applicant, Anatoliy Denisov, was dismissed from his post as President of the Kyiv Administrative Court of Appeal in absentia (while on leave seeking medical treatment) for failure to perform his official duties in 2011. He continued to serve as an ordinary judge in the court, at a reduced salary and pension until he retired in 2013. The Kyiv Administrative Court of Appeal reviews cases related to the presidential elections, decisions of government and the Central Election Committee. As President the applicant 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 (HCJ), the body that oversees the appointment and dismissal of judges.
The applicant challenged under Art. 6(1) ECHR the impartiality and independence of the domestic proceedings concerning his removal from his position. He complained under Art. 8 ECHR that his right to respect for his private life had been violated by his dismissal. He also raised a violation of Art. 18 ECHR, arguing that his dismissal had been politically motivated. The applicant was represented by EHRAC and Alexander Halban (a UK Barrister).
The Grand Chamber held a violation of Art. 6(1) concerning the impartiality and independence of the domestic proceedings regarding the dismissal of the applicant from his post. It found that the structural shortcomings in the composition of the HCJ, established in Oleksandr Volkov v Ukraine (No. 21722/11), 09.01.2013 remained pertinent to the present case. In particular, the majority of the HCJ consisted of non-judicial staff appointed directly by the executive and the legislative authorities. The Court found that the applicant’s allegations regarding personal bias by certain HCJ members were founded, since a member of the HCJ played a role in the preliminary inquiry into the applicant’s case and in making the proposal to the HCJ.
The Court ruled that the Higher Administrative Court (HAC) failed to carry out a sufficient review of the proceedings at the HCJ, since it did not attempt to consider the applicant’s allegation of the lack of impartiality and independence in those proceedings. Moreover, there were serious mismatches between the advanced and actual grounds of review. While the HAC stated that the applicant had not contested the facts forming the grounds for his dismissal, the applicant had argued that the HCJ had not substantiated its findings since it had not referred to the specific circumstances of his case.
The Court did not find a violation of Art. 8 ECHR, since the applicant’s professional reputation was not at stake: his dismissal concerned his managerial skills and he remained a judge after his dismissal from the post of President of the Court. The Court declared inadmissible the applicant’s complaints under Art. 18 as being lodged outside of the 6 month time limit, and under Art. 1 Protocol 1 as being incompatible ratione materiae with the Convention and its Protocols.
The applicant was awarded €3000 in non-pecuniary damage.
This case was originally part of Kulykov and others v Ukraine (Nos. 5114/09 et al.) 19.01.2017, a group of cases concerning the dismissal of judges at various levels, but was relinquished to the Grand Chamber of the Court in April 2017. Given the current climate and threat to the independence of the judiciary in a number of states across Europe (including within the EU), this case could have been an opportunity for the Grand Chamber to engage with the significance of the role of President of a court as a guarantor of its independence. The Grand Chamber did, however, set out a ‘threshold of seriousness’ for which applicants must provide evidence in order for there to be a finding of Art. 8. The Court distinguished between claims arising because of measures taken by the state related to the private life of an individual (a reason-based approach); and the impact that a measure taken by the state will have on an individual’s inner circle (including material consequences), opportunities to establish and develop relationships with others, and/or their reputation (a consequence-based approach).
The Court referred to its previous case-law in the Volkov and Kulykov cases, underlining that the same shortcomings existed in the present case, and demonstrating the systemic nature of the issue during this period (2008-2013). Multiple reforms have already been made to Ukrainian legislation and the constitution (in 2016) – aimed at ensuring the independence and impartiality of the judicial system and judicial accountability, and to reduce parliamentary and presidential influence on the judiciary. If effectively implemented, the constitutional amendments and legislation should ensure the independence of the judiciary and the HCJ. In the long term, this should improve judicial independence, promote access to justice and protect the rule of law in Ukraine.