European Court of Human Rights
FIFTH SECTION
CASE OF GUMENYUK AND OTHERS v. UKRAINE
(Application no. 11423/19)
JUDGMENT
Art 6 § 1 (civil) • Disproportionate restriction on
access to a court of former Supreme Court of Ukraine judges unable to contest
the prevention from exercising their judicial functions after legislative
reform • Art 6 applicable under its civil head • Second condition of the Eskelinen test
not met • Impossibility for judges to uphold the rule of law and give effect to
the Convention if domestic law deprived them of its guarantees on matters
directly touching their individual independence and impartiality • Unjustified
exclusion of judiciary members from the protection of Art 6 in matters
concerning employment conditions on the basis of special bond of loyalty and
trust to the State • Possibility of institutional action not a replacement for
a judge’s right to bring action in personal capacity
Art 8 • Private life • Unlawful interference with
the applicants’ exercise of judicial functions as Supreme Court judges
after liquidation of the Supreme Court of Ukraine • Constitutional Court’s
findings as to unconstitutionality of legislative measures and their
inconsistency with principle of irremovability of judges of significant weight
• Clear lack of coordination in addressing applicants’ situation for a
considerable period seriously undermined legal certainty and predictability of
constitutional principles on judicial independence
STRASBOURG
22 July 2021
This judgment will become final in the circumstances
set out in Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the case of Gumenyuk and others v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Síofra
O’Leary, President,
Mārtiņš Mits,
Ganna Yudkivska,
Lətif Hüseynov,
Jovan Ilievski,
Lado Chanturia,
Mattias Guyomar, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 11423/19) against Ukraine lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by eight Ukrainian nationals (“the applicants”),
whose particulars are set out in the appended table;
the decision to give notice of the application to
the Ukrainian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 25 May
and 29 June 2021,
Delivers the following judgment, which was adopted
on that date:
INTRODUCTION
1. The present
case concerns judges of the Supreme Court of Ukraine who complain that they
were unlawfully prevented from exercising their judicial functions as a result
of the judicial reform and legislative amendments in 2016. In
this connection the applicants complain that their right of access to a court
under Article 6 § 1 and their right to respect for private life
under Article 8 were violated.
THE FACTS
2. The applicants were represented by
Ms O. Lyoshenko, a lawyer practising in
Kyiv.
3. The Government were represented by
their Agent, Mr I. Lishchyna.
4. The facts of the case, as submitted by
the parties, may be summarised as follows.
5. On dates between 1994 and 2008, the
applicants were elected to the posts of judges of the Supreme Court of Ukraine
(hereafter “the SCU”) for an indefinite period.
- LEGISLATIVE
AMENDMENTS IN 2016 RESTRUCTURING THE SYSTEM OF HIGH COURTS IN UKRAINE
6. The background to this case are the
Maidan protests in 2013-2014 which resulted in the departure of the former
President and change of power in Ukraine. In late November 2013
large anti-government demonstrations commenced in Kyiv and then spread to
other cities in Ukraine. By late February 2014 the demonstrations had escalated
to serious clashes between protesters and law-enforcement authorities, causing
numerous injuries and deaths (for further details, see Shmorgunov and
Others v. Ukraine, nos. 15367/14 and 13 others, §§ 9-17, 21 January
2021). During these events certain judges of lower level jurisdictions
were considered to have taken arbitrary decisions to detain demonstrators
(ibid, §§ 468-470 and 477), decisions which were part of a larger strategy
in relation to protesters which had started peacefully and which involved many
peaceful protesters (ibid., § 476). According to the Government, by the
end of those events, the judiciary turned into the least trusted public
institution and the judicial reform was therefore one of the most expected in
the society.
7. The Government further submitted that
in 2015 the President of Ukraine initiated the work on a strategy for reform of
the judiciary which included both modernisation of legislation and adoption of
amendments to the Constitution of Ukraine. The draft amendments to the
Constitution were discussed with the Venice Commission. In their Opinion CDL-AD(2015)027 of 26 October 2015 the Venice Commission upheld
the proposed amendments to the Constitution regarding the judiciary
(see paragraph 34 below).
8. On 2 June 2016 Parliament adopted
amendments to the Constitution of Ukraine with regard to the rules governing
the organisation and functioning of the domestic judiciary (Act no. 1401 which
came into effect on 30 September 2016). According to the new wording of
Article 125 § 3 of the Constitution, “the Supreme Court” (hereafter
“the SC”) is the highest court in the Ukrainian judicial system.
9. Simultaneously
with the amendments to the Constitution, Parliament adopted a new law “On
Judiciary and Status of Judges” on 2 June 2016 (Act no. 1402, “the
Judiciary Act 2016”) which came into effect on 30 September 2016.
According to the explanatory note to the draft law, the bill was intended,
among other things, to optimise the judicial system and to introduce
appropriate mechanisms for renewing judicial staff in order to meet the social
demand for the fair judiciary in Ukraine. The explanatory note
specified that the draft law sought to increase the professional standards of
the judiciary, limiting the immunity of judges to the functional one, ensuring
continuous and efficient operation of the judiciary for the transition
period. According to the explanatory note, the Supreme Court would be
established as a new body where judges would be appointed on a competitive
basis. The function of ensuring the stability and coherence of judicial
practice would be concentrated in a single supreme
judicial authority. Reducing the number of court levels in the judicial system
would simplify and speed up court proceedings.
10. In contrast to the previous
legislation, according to which the SCU did not have the powers of cassation
review (those had been transferred to the higher specialised courts as a result
of earlier judicial reform), the Judiciary Act 2016 provides that the SC
shall, among other powers, again exercise the function of cassation review
(section 36 § 2) and that it shall be composed of the Grand Chamber,
the Administrative Cassation Court, the Commercial Cassation Court, the
Criminal Cassation Court and the Civil Cassation Court (section 37 § 2).
The Judiciary Act 2016 also introduced a new method for determining judicial
salaries which resulted in higher salaries for judges.
11. Chapter XII of the Judiciary Act
2016, entitled “Final and transitional provisions”, provides inter alia that
the SC shall be established and that the judges of the SC shall be appointed
based on the results of a competition (§ 4); the existing SCU and
three courts of cassation shall operate within their powers defined by
procedural law until the SC starts functioning and the relevant procedural
legislation governing the proceedings at the SC takes effect (§ 6);
the existing SCU and three courts of cassation shall cease operating and shall
be subject to liquidation in accordance with the procedure established by law
(§ 7); and the judges of the courts that are subject to liquidation
(including the SCU) shall have the status, the rights and the guarantees as
determined by the previous law on the status of judges (§ 7) and the right
to participate in the competition for the SC (§ 14).
12. On 3 October 2016 the plenary SCU
challenged the provisions of the Judiciary Act 2016 before the
Constitutional Court, in so far as the termination of SCU’s activity and
the establishment of the new SC were concerned. The SCU argued, among other
things, that prevention of judges from exercising their judicial functions by
way of liquidation of the SCU would be contrary to the Constitution.
13. On 7 November 2016 the Higher
Qualification Commission of Judges (“the HQCJ”) announced a competition for 120
judges’ posts for the SC. 846 candidates participated in the
competition. Among the candidates, there were 17 judges of the SCU (at the
relevant time there were 21 judges at the SCU). All the applicants, except for
the second applicant, participated in the competition but none of them
succeeded.
14. Following the competition, new judges
were selected and appointed to the SC. On 15 December 2017 the SC started
functioning.
15. On 21 June 2018
the State registrar entered information in the State register on legal entities
that the SCU was in the process of being liquidated. The first applicant,
acting on behalf of the SCU, challenged that measure but on 8 November
2018 the Kyiv Circuit Administrative Court refused to entertain the claim for
lack of the first applicant’s standing and suggested that he was free to
initiate proceedings in his personal capacity. On 11 March 2019 and 30
March 2020 respectively, the Sixth Administrative Court of Appeal and the SC
upheld that ruling.
16. On 2 August 2018 the HQCJ announced a
second competition for another seventy-eight judges’ posts for the SC. The
competition was concluded in 2019. Five members of the High Council of Justice
(hereafter “the HCJ”) applied and four of them eventually succeeded.
17. On 18 February 2020 the
Constitutional Court examined the case initiated on 3 October 2016 by the
plenary SCU. The Constitutional Court found that under the Constitution only
one supreme judicial body existed and that it had been renamed from the
“Supreme Court of Ukraine” to “Supreme Court”. It further found that, in view
of the principle of the irremovability of judges, the judges of the “old”
SCU should continue performing their functions as judges of the “new” SC. The
relevant extracts from the judgment read as follows:
“7. The systemic analysis of the Constitutional
provisions "the highest judicial body in the system of courts of general
jurisdiction" and "the highest court in the system of Ukrainian
judiciary" in conjunction with the provisions of the laws of Ukraine on
judiciary and judicial procedure gives the Constitutional Court grounds to
assert that the removal of the word “Ukraine” - the name of the State - from
the phrase “Supreme Court of Ukraine” did not affect the constitutional status
of this body of state power. ...
The systemic analysis of the amendments to the
Constitution, introduced by the Act no. 1401, indicates that they were not
aimed at terminating the activity and liquidation of the Supreme Court of
Ukraine as a body of state power by removing the word “Ukraine” - the name of
the State - from the phrase “Supreme Court of Ukraine”.
The Constitutional Court considers that the Act no.
1401 did not violate the principle of the institutional continuity of the
highest body in the judiciary, which, after the entry into force of the Act no.
1401, continues to operate under the name “Supreme Court”.
...
13. Comparative analysis of the provisions of the
Constitution before and after the amendments of the Act no. 1401, the
provisions of the Law “On the Judiciary and Status of Judges” dated July 7,
2010, and the Act no. 1402 gives the Constitutional Court grounds to conclude
that there is no difference between the legal status of a judge of the
Supreme Court of Ukraine and a judge of the Supreme Court.
The Constitutional Court notes that renaming of a
body envisaged in the Constitution of Ukraine – the Supreme Court of
Ukraine – cannot take place without the transfer of judges of the Supreme Court
of Ukraine to the offices of judges of the Supreme Court, since there is no
difference between the legal status of a judge of the Supreme Court of Ukraine
and a judge of the Supreme Court, the removal of the word “Ukraine” – the name
of the State – from the phrase “the Supreme Court of Ukraine” cannot be the
grounds for dismissal of all judges of the Supreme Court of Ukraine or their
transfer to another court, all the more so to a lower court.
Judges of the Supreme Court of Ukraine must continue
to exercise their powers as judges of the Supreme Court. Therefore, making a
difference between judges of the Supreme Court of Ukraine and those of the
Supreme Court is not consistent with the principle of irremovability of judges,
which is a part of the constitutional guarantee of the independence of judges.
...
Thus, ... the Constitutional Court of Ukraine rules
that:
...
2. The provisions of paragraph 7 “and shall be
liquidated” as regards the Supreme Court of Ukraine, paragraph 14 “judges of
the Supreme Court of Ukraine” ... of Section XII “Final and transitional
provisions” of the Law of Ukraine “On the Judiciary and Status of Judges”
of 2 June 2016, are not in conformity with the Constitution of Ukraine (unconstitutional).
...”
18. In June 2020,
draft law no. 3711 was introduced in Parliament proposing that the judges of
the SCU be enrolled in the staff of the SC. As of June 2021, this law has not
yet been adopted and the applicants have not been able to resume their duties
as Supreme Court judges. The Venice Commission and the Directorate General of
Human Rights and Rule of Law (DGI) of the Council of Europe provided their
comments on the draft law (see paragraph 35 below).
19. According to the Government, the
Liquidation Commission of the SCU regularly offered to pay all the
salaries to the applicants according to the amounts determined on the basis of
the previous law on the status of judges, as prescribed by transitional
provisions of the Judiciary Act 2016. The Liquidation Commission made the
amounts of their salaries available to the applicants and informed them about
that. According to the information available to the Court, the applicants
however did not appear to collect those amounts.
- ATTEMPTED TRANSFER
OF THE APPLICANTS TO THE OTHER COURTS
20. On 20 June 2018 the HQCJ issued
recommendations for transferring the applicants to various appellate courts.
21. One of the applicants (Ms G.
Kanygina) lodged a claim against the HQCJ, challenging the recommendation
concerning her transfer. On 27 August 2018 the SC, acting as the first‑instance
court, rejected the claim as inadmissible considering that it had not been open
to Ms Kanygina to appeal against the recommendation in view of the fact that
the High Council of Justice (“the HCJ”) had not yet taken its decision on the
basis of that recommendation. On 6 February 2019 the Grand Chamber of the SC
upheld that ruling.
22. On 20 and 29 November 2018 the HCJ
rejected the above-mentioned recommendations without considering them on the
merits, noting that the appellate courts in question had ceased to operate
due to restructuring. At the time when that decision was taken, five
members of the HCJ were taking part in the second competition to the new SC
(see paragraph 16 above) and another member of the HCJ was the
President of the new SC.
RELEVANT LEGAL FRAMEWORK
- RELEVANT DOMESTIC
LAW
- Constitution
of Ukraine, 1996
23. According to
the Constitution, new laws or acts amending existing laws may not narrow the
content and scope of existing Constitutional rights and freedoms (Article
22 § 3). Everyone has the right to work, which includes earning a
living by performing work of one’s free choice or free will (Article
43 § 1). Everyone is guaranteed the right to appeal in court against
decisions, actions or omissions of public authorities, local governments and
officials (Article 55 § 1).
24. Article 126 of the Constitution
(in the wording before the amendments of 2016) provided that judges held
their posts for an indefinite term except for the judges of the Constitutional
Court and those judges who were appointed for the first time for the period of
five years. The same provision provided for the following exhaustive list of
grounds for the dismissal of judges: (1) expiration of the term for which the
judge was elected or appointed; (2) reaching the age of sixty-five; (3)
inability to perform judicial duties resulting from health problems; (4)
violation by a judge of the incompatibility requirements; (5) breach of the
judicial oath; (6) criminal conviction; (7) termination of citizenship; (8)
death or a decision declaring a judge missing or dead; and (9)
resignation.
25. After the amendments of 2016, Article
126 similarly proclaims the principle that judges hold their posts for an
indefinite term (Article 126 § 5) and provides for an exhaustive
list of grounds for the dismissal of judges and the termination of their
office which includes a refusal by a judge to be transferred to a
different court in the event of the liquidation or reorganisation of the
court where the judge was employed (Article 126 § 6 (5)).
26. According to Article 131 of the
Constitution (as amended in 2016), the HCJ shall consist of twenty-one members,
elected or appointed as follows: ten by the Congress of Judges from among
judges or retired judges, two by the President of Ukraine, two by the
Parliament, two by the Congress of Advocates of Ukraine, two by the
All-Ukrainian Conference of Prosecutors, and the remaining two by the Congress
of representatives of legal higher education institutions and scientific
institutions. The Head of the SC shall be an ex officio member
of the HCJ.
- Code of
Administrative Justice, 2005
27. Article 5 of the Code of Administrative
Justice provides that everyone claiming that a decision, action or inaction of
a public authority violates his or her rights, freedoms or legitimate interests
has the right to apply to the administrative courts in accordance with the
procedure established by that Code.
- Judiciary and
Status of Judges Act, 2016 (“the Judiciary Act 2016”)
28. Section 53 of the Judiciary Act 2016
provides that a judge may not be transferred to another court without his or
her consent, except for (1) transfers in case of reorganisation, liquidation or
cessation of the functioning of a court; (2)
transfer as a disciplinary sanction.
- High Council of
Justice Act, 2016
29. According to the High Council of
Justice Act, the question of transfer of a judge from one court to another
shall be decided by the HCJ: (1) on the basis and within the limits of a
recommendation by the HQCJ and the materials attached to it; or (2) on the
basis of a report of the Disciplinary Chamber of the HCJ on the transfer of a
judge to a lower court by way of disciplinary sanction (section 70). The issue
of transferring a judge from one court to another shall be considered at a
hearing of the HCJ (section 71 § 1) to which the judge concerned
shall be invited. However, the absence of the judge concerned from the
hearing, regardless of the reasons, does not preclude consideration of the
issue in their absence (section 71 § 2). The recommendation of
the HQCJ or the report of the Disciplinary Chamber of the HCJ must be read out
at the beginning of the hearing (section 71 § 3). The HCJ shall adopt
a reasoned decision (section 71 § 4) that can be appealed against.
The court examining the appeal shall annul HCJ’s decision if, among other
grounds, it does not state the grounds for the transfer, as determined by
law, or the reasons for the HCJ’s conclusions (section 72).
- INTERNATIONAL
MATERIAL
30. In its General Comment No. 32 on
Article 14 of the International Covenant on Civil and Political Rights (Right
to equality before courts and tribunals and to a fair trial) published on 23
August 2007, the UN Human Rights Committee stated as follows (footnotes
omitted):
“20. Judges may be dismissed only on serious grounds
of misconduct or incompetence, in accordance with fair procedures ensuring
objectivity and impartiality set out in the constitution or the law. The
dismissal of judges by the executive, e.g. before the expiry of the term
for which they have been appointed, without any specific reasons given to them
and without effective judicial protection being available to contest the dismissal
is incompatible with the independence of the judiciary. The same is true,
for instance, for the dismissal by the executive of judges alleged to be
corrupt, without following any of the procedures provided for by the law.”
31. The relevant
extracts from the European Charter on the Statute for Judges (Department of
Legal Affairs of the Council of Europe, 8-10 July 1998 DAJ/DOC (98)23) read as
follows:
“1.1. The statute for judges aims at ensuring the
competence, independence and impartiality which every individual legitimately
expects from the courts of law and from every judge to whom is entrusted the
protection of his or her rights. It excludes every provision and every
procedure liable to impair confidence in such competence, such independence and
such impartiality. The present Charter is composed hereafter of the provisions
which are best able to guarantee the achievement of those objectives. Its
provisions aim at raising the level of guarantees in the various European
States. They cannot justify modifications in national statutes tending to
decrease the level of guarantees already achieved in the countries concerned.
1.2. In each European State, the fundamental
principles of the statute for judges are set out in internal norms at the
highest level, and its rules in norms at least at the legislative level.
1.3. In respect of every decision affecting the
selection, recruitment, appointment, career progress or termination of office
of a judge, the statute envisages the intervention of an authority
independent of the executive and legislative powers within which at least one
half of those who sit are judges elected by their peers following methods
guaranteeing the widest representation of the judiciary.
1.4. The statute gives to every judge who considers
that his or her rights under the statute, or more generally his or her
independence, or that of the legal process, are threatened or ignored in any
way whatsoever, the possibility of making a reference to such an independent
authority, with effective means available to it of remedying or proposing a
remedy.
...
3.4. A judge holding office at a court may not in
principle be appointed to another judicial office or assigned elsewhere, even
by way of promotion, without having freely consented thereto. An exception to
this principle is permitted only in the case where transfer is provided for and
has been pronounced by way of a disciplinary sanction, in the case of a lawful
alteration of the court system, and in the case of a temporary assignment
to reinforce a neighbouring court, the maximum duration of such assignment
being strictly limited by the statute, without prejudice to
the application of the provisions at paragraph 1.4 hereof.”
32. The relevant extract from the
Explanatory Memorandum to the European Charter on the Statute for Judges
(mentioned above) provides as follows:
“3.4 The Charter
enshrines the irremovability of judges, which means that a judge cannot be
assigned to another court or have his or her duties changed without his or her
free consent. However, exceptions must be allowed where transfer is provided
for within a disciplinary framework, when a lawful re-organization of the court
system takes place involving for example the closing down of a court or a
temporary transfer is required to assist a neighbouring court. In the latter
case, the duration of the temporary transfer must be limited by the
relevant statute. Nevertheless, since the problem of transferring a judge
without his or her consent is highly sensitive, it is recalled that under the
terms of paragraph 1.4 he or she has a general right of appeal before an
independent authority, which can investigate the legitimacy of the transfer. In
fact, this right of appeal can also remedy situations which have not been
specifically catered for in the provisions of the Charter where a judge has
such an excessive workload as to be unable in practice to carry out his or her
responsibilities normally.”
33. The relevant extracts from the appendix to
Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of
Europe to member States on judges’ independence, efficiency and
responsibilities, adopted on 17 November 2010, read:
“Tenure and irremovability
...
49. Security of tenure and irremovability
are key elements of the independence of judges. Accordingly, judges should have
guaranteed tenure until a mandatory retirement age, where such exists.
...
52. A judge should not receive a new
appointment or be moved to another judicial office without consenting to it,
except in cases of disciplinary sanctions or reform of the organisation of the
judicial system.
...”
34. The following are extracts from the
European Commission for Democracy through Law (Venice Commission) Opinion on
the proposed amendments to the Constitution of Ukraine regarding the judiciary
as approved by the Constitutional Commission on 4 September 2015, adopted by
the Venice Commission at its 104th Plenary Session (Venice,
23-24 October 2015):
“36. In their joint opinion “on the Law on the
Judiciary and the Status of Judges and amendments to the Law on the High
Council of Justice of Ukraine”, the Venice Commission and the Directorate of
Human Rights of the Directorate General of Human Rights and the Rule of Law had
indeed taken note of the Ukrainian authorities’ explanation that a choice
needed to be made between dismissing all the judges and inviting them to
reapply for their position or assessing them in the manner proposed in the
law. The Venice Commission and the Directorate expressed the view that “it may
be both necessary and justified to take extraordinary measures” to remedy
“corruption and incompetence among the judiciary which are a result of
political influence on judges’ appointments in the previous period” but
that “dismissal of every member of the judiciary appointed during a particular
period would not be an appropriate solution to the problems indicated by the
authorities”. They stressed in addition that even “the qualification assessment
as provided for in transitional Article 6 should be regarded as wholly exceptional
and be made subject to extremely stringent safeguards to protect those judges
who are fit to occupy their positions” and that “the matter needs to be dealt
with in a substantive legal provision in much more detail and requires
constitutional underpinning”. Finally, the Venice Commission and the
Directorate called for “harmonisation with the lustration process”.
...
39. In the view of the Venice Commission, the latest
version of the constitutional amendments prepared by the Working Group on the
Judiciary of the Constitutional Commission of Ukraine is very positive and
well-drafted, and deserves to be fully supported.”
35. The Venice Commission and the
Directorate General of Human Rights and Rule of Law (DGI) of the Council of
Europe, in their Joint Opinion on the draft amendments to the law ‘On the
Judiciary and the Status of Judges’ and certain laws on the activities of
the Supreme Court and judicial authorities (draft law
no. 3711), adopted by the Venice Commission at its 124th online Plenary
Session (8-9 October 2020) observed as follows:
“5. Integration of the Judges of the Supreme
Court of Ukraine into the Supreme Court
58. Clause 7 of Section XII “Final and transitional
provisions” of draft Law no. 3711 transfers the remaining eight judges of
the ‘old’ Supreme Court of Ukraine to the Supreme Court.
59. In order to implement the decision 2-p/2020 of
Constitutional Court of 18 February 2020, there is indeed an urgent need
to resolve the issue of the alignment of the Supreme Court. The Constitutional
Court held that in the 2016 reform, the old “Supreme Court of Ukraine” was only
renamed “Supreme Court” and no new court was created.
This is a coherent argument avoiding the existence of two parallel courts.
There must indeed be continuity between the ‘old’ and
the ‘new’ Court, not least to ensure that the Supreme Court can refer
to the case-law of the former Supreme Court of Ukraine. The lack of a
de-registration of the old Supreme Court of Ukraine was clearly not a useful
step. The decision of the Constitutional Court corrects that error. In general,
what matters is the situation as set out in the law, not the formal
registration of a legal entity, which nevertheless should be corrected. It is
up to the Ukrainian authorities to find a solution within the framework of
the decision of the Constitutional Court, according to which there is a
single supreme court.”
36. Other relevant international
material, including the UN Basic Principles on the Independence of the
Judiciary, the decisions of the UN Human Rights Committee, the Opinions of the
Consultative Council of European Judges, the Opinions of the Venice Commission,
the case-law of the Inter-American Court of Human Rights, the Universal Charter
of the Judge approved by the International Association of Judges, and
the International Bar Association’s Minimum Standards of Judicial
Independence can be found in the judgment in the case of Baka v.
Hungary [GC] (no. 20261/12, §§ 72, 74-76, 79-87, 23 June 2016).
THE LAW
- ALLEGED VIOLATION
OF ARTICLE 6 § 1 OF THE CONVENTION
37. The applicants raised two complaints
under that provision. First, they complained that they did not have access to a
court to challenge their alleged unlawful prevention from exercising their
judicial functions as a result of legislative amendments in 2016.
Secondly, they complained that in 2018, when dealing with the issue of their
attempted transfer to other judicial posts, the HCJ failed to act as an
“independent and impartial tribunal”.
38. The applicants relied on Article
6 § 1 of the Convention which reads, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- Alleged
violation of right of access to a court as a result of the 2016
legislative amendments
- Admissibility
(a) The
parties’ submissions
39. The Government submitted that Article 6
was not applicable to the applicants’ complaint of lack of access to
court because there was no civil right at stake in view of the public nature of
their employment; moreover, the lack of a judicial remedy to challenge the
applicants’ removal from their judicial duties had been justified under
the Eskelinen test. In that regard the Government noted that
the legislative amendments providing for the liquidation of the SCU had been
adopted in order to carry out an overall judicial reform and that all the
judges of the new SC had had to go through the filter of a rigorous
competition.
40. The Government further argued that all
the applicants had failed to exhaust domestic remedies in respect of their
complaint of lack of access to court since they had not challenged the
liquidation procedure of the SCU. The proceedings initiated by the first
applicant on behalf of the SCU, and not in his personal capacity (see
paragraph 15 above), had been devoid of any prospect of success and
were irrelevant. The Government submitted however that in so far as the
applicants’ complaint concerned legislative measures, the applicants had
not had a remedy against a parliamentary law.
41. The Government then submitted that
the second applicant had not complied with the six-month rule under Article
35 § 1 of the Convention. They noted that the second applicant had
not participated in the competition for the new SC which had started to
function on 15 December 2017 (see paragraph 14 above). If
she had considered that the establishment of the new SC had been in
violation of her rights, she should have applied to the Court within six months
of the date when the alleged violation had taken place.
42. The applicants maintained their
complaints and submitted that the situation complained of was of a
long-term nature and that they had no effective remedy. Accordingly, their
complaints could not be dismissed on the grounds of failure to comply with the
six-month rule or the rule of exhaustion of domestic remedies.
(b) The
Court’s assessment
43. The Court wishes to make it clear at
the outset that Convention does not prevent States from taking legitimate and
necessary decisions to reform the judiciary. The Court is aware of the
complicated background and context of the impugned judicial reform in Ukraine
and considers that it is not its role to pronounce on its goals and
appropriateness or determine whether it was justified under Ukrainian
constitutional law. As highlighted by the Venice Commission (see paragraph 34 above),
it may be necessary and justified to take extraordinary measures in order to
remedy corruption and incompetence among the judiciary. However, the Court must
examine whether the applicants’ rights under the Convention were affected
by the manner in which the reform was actually implemented. In this
regard, the first question arises whether Article 6 applies to the present
case.
(i) Applicability
of Article 6
(1) Existence of
a right
44. The Court reiterates that for Article
6 § 1 in its civil limb to be applicable, there must be a “dispute” regarding a
“right” which can be said, at least on arguable grounds, to be recognised under
domestic law, irrespective of whether it is protected under the Convention. The
dispute must be “genuine” and “serious”; it may relate not only to the actual
existence of a right but also to its scope and the manner of its exercise and
finally, the result of the proceedings must be “directly decisive” for the
right in question, mere tenuous connections or remote consequences are not
sufficient to bring Article 6 § 1 into play (see Baka, cited above,
§ 100 and Denisov v. Ukraine [GC], no. 76639/11, § 44, 25 September 2018).
45. Article 6 § 1 does not guarantee any
particular content for (civil) “rights and obligations” in the substantive law
of the Contracting States: the Court may not create by way of
interpretation of Article 6 § 1 a substantive right which has no legal
basis in the State concerned (see, for example, Roche v. the United
Kingdom [GC], no. 32555/96, § 117, ECHR 2005‑X). The
starting-point must be the provisions of the relevant domestic law and their
interpretation by the domestic courts (ibid.,
§ 120; see also Károly Nagy v. Hungary [GC],
no. 56665/09, § 62, ECHR 2017, and Regner
v. the Czech Republic [GC], no. 35289/11, § 100, 19 September 2017). The Court would
need strong reasons to differ from the conclusions reached by the superior
national courts by finding, contrary to their view, that there was arguably a
right recognised by domestic law (see Károly Nagy, cited above, §
62).
46. The Court’s traditional approach to
determining whether there is a “right” attracting the application of
Article 6 is based on the distinction between the substantive content of the
right invoked and possible procedural obstacles to obtaining judicial
protection thereof (see Roche, cited above, § 119). Whether a
person has an actionable domestic claim may depend not only on the content,
properly speaking, of the relevant civil right as defined under national law,
but also on the existence of procedural bars preventing or limiting the
possibilities of bringing potential claims to court (see Lupeni Greek
Catholic Parish and Others v. Romania [GC], no. 76943/11, § 87, 29 November 2016). In the latter kind
of case Article 6 § 1 may be applicable (see Petko Petkov v.
Bulgaria, no. 2834/06, § 26, 19 February 2013,
with further reference to Al-Adsani v. the United Kingdom [GC],
no. 35763/97, § 47, ECHR 2001-XII).
47. By implication, Article 6 remains
inapplicable where it is clear beyond argument that no right exists in domestic
law (see Sultana v. Malta (dec.), no. 970/04, 11 December 2007). Such is the case where
a person’s rights under the domestic legislation are limited to
a mere hope of being granted a right, with the actual grant of that right
depending on an entirely discretionary and unreasoned decision of the
authorities (see Regner v. the Czech Republic [GC],
no. 35289/11, § 103, 19 September 2017).
48. In determining whether there was a
“right” within the meaning of Article 6 § 1, the Court needs to
ascertain only if the applicants’ arguments were sufficiently tenable, not
whether they would necessarily have won had they had access to a court
(see, inter alia, Neves e Silva v. Portugal,
27 April 1989, § 37, Series A no. 153-A). In so doing, the Court
must have regard to the wording of the relevant legal provisions and to their
interpretation, if any, by the domestic courts (see Yanakiev v.
Bulgaria, no. 40476/98, § 58, 10 August 2006). Nevertheless, the
concept of “civil rights and obligations” is an autonomous concept deriving from
the Convention which cannot be interpreted solely by reference to
the respondent State’s domestic law (see Naït-Liman
v. Switzerland [GC], no. 51357/07, § 106, 15 March 2018). In that connection, in its
assessment of whether there existed a “right” that an applicant can rely on
arguable grounds, the Court takes domestic provisions as a starting point only
(see, among many other authorities, Denisov, cited above, §
45) and may rely on international norms to assess or enhance the interpretation
of the existence of a right (see, for example, Enea v. Italy [GC],
no. 74912/01, § 101, ECHR 2009; Boulois v.
Luxembourg [GC], no. 37575/04, § 102, ECHR 2012; and Naït-Liman,
cited above, § 108).
49. The Court reiterates that although there
is in principle no right under the Convention to hold a public post entailing
the administration of justice (see Dzhidzheva Trendafilova v.
Bulgaria (dec.), no. 12628/09, § 38, 9 October 2012; and concerning
tenured judicial positions, Baka, cited above, § 107; Denisov,
cited above, § 47, and Kövesi v. Romania, no. 3594/19, § 113, 5 May 2020), such a right may exist at
the domestic level.
50. In the present case it is not
disputed that all the applicants were entitled under the domestic law to remain
judges until their retirement if none of the exceptional grounds for early
termination of office, as set out in Article 126 of the Constitution,
materialised. However, as a result of the “final and transitional
provisions” of the Judiciary Act 2016 ordering the liquidation of the SCU
and the establishment of the new SC and also as a result of further measures
taken in order to implement the judicial reform, the applicants, while not
being formally dismissed, were in fact prevented from exercising their judicial
functions, at least for a certain period of time, despite what the
Constitutional Court also confirmed to be the validity of their tenure.
51. The wording of the domestic
provisions relating to the applicants’ status (see
paragraphs 23 and 24 above), could give rise to various
interpretations, including that the applicants were entitled solely to remain
active judges, and not necessarily to keep their posts in a
particular court of law. At the time of the impugned events in 2016, there was
no case law making clear the precise scope and meaning of the constitutional guarantees
at issue. However, it was not disputed that the relevant constitutional
principles provided the applicants at least with an arguable basis on which the
right to be protected against arbitrary removal from judicial duties could be
claimed (see, matatis matandis, Bilgen, cited above, §
57 in fine).
52. The Court does
not find any reason to doubt that such a right existed at the domestic level.
In this regard, the Court recalls that it has on many occasions emphasised the
special role in society of the judiciary which, as the guarantor of justice, a
fundamental value in a State governed by the rule of law, must enjoy public
confidence if it is to be successful in carrying out its duties (see Baka,
cited above, § 165, with further references). Given the prominent place
that the judiciary occupies among State organs in
a democratic society and the growing importance attached to the separation
of powers and to the necessity of safeguarding the independence of
the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC],
nos. 55391/13 and 2 others, § 196, 6 November 2018),
the Court must be particularly attentive to the protection of members of the
judiciary against measures affecting their status or career that can threaten
their judicial independence and autonomy.
53. In this connection, the principles of
international law or common values of the Council of Europe can be relied on to
enhance the interpretation of domestic law as to the existence of such a
right (see Bilgen, cited above, § 62). The Court reiterates
that the consensus emerging from specialised international instruments and the
practice of Contracting States may constitute a relevant consideration when it
interprets the provisions of the Convention in specific cases (see Demir
and Baykara v. Turkey [GC], no. 34503/97, § 85, ECHR 2008). The Court further points out
that in a number of judgments, it has used, for the purpose of interpreting the
Convention, intrinsically non-binding instruments of Council of Europe organs,
in particular recommendations and resolutions of the Committee of Ministers and
the Parliamentary Assembly, as well as norms emanating from other organs of the
Council of Europe, whether supervisory mechanisms or expert bodies which do not
have the function of representing States Parties to the Convention (ibid., §§
74-75, and the cases cited therein).
54. Having regard to the Council of
Europe material cited in paragraphs 31 and 33 above in a non-exhaustive manner, there is no doubt that that
judges may claim, on the basis of the professional guarantees afforded to them,
that the principles of independence of the judiciary and the security of tenure
of judges should be fully complied with in measures affecting their status or
career. Furthermore, the European Charter on the Statute for Judges, despite
being non-binding on the member States, provides for a right of appeal for any
judge who considers that his or her rights under the statute, or more
generally independence, or that of the legal process are threatened or
infringed.
55. The Court further notes that after
the ruling of the Constitutional Court of 18 February 2020 the exact scope of
the applicants’ “right” in this context was sufficiently established and
articulated under the domestic law. According to the Constitutional Court, the
impugned legislative measures “[could not] be the grounds for dismissal of all
judges of the Supreme Court of Ukraine or their transfer to another court, all
the more so to a lower court”; it ruled that “Judges of the Supreme Court of
Ukraine [had to] continue to exercise their powers as judges of the Supreme
Court” (see paragraph 17 above). In providing this specific
interpretation of the Constitutional guarantees, the Constitutional Court
made it clear that the applicants had a right to remain judges of the
highest judicial body.
56. In such circumstances, the Court
finds that the applicants’ dispute concerned a “right” within the meaning
of Article 6. Moreover, the applicant’s dispute was “genuine” and it was
“serious”, having regard to the role of the judicial functions which the
applicants were prevented from exercising. Likewise, the dispute was
“directly decisive” for the applicants’ rights because it was precisely
about the impossibility for the applicants to exercise their judicial
profession.
(2) Civil nature
of the right
‒ Recapitulation
of the case-law
57. The scope of the “civil” concept in
Article 6 is not limited by the immediate subject matter of the dispute.
Instead, the Court has developed a wider approach, according to which the
“civil” limb has covered cases which might not initially appear to concern a
civil right but which may have direct and significant repercussions on a
private pecuniary or non-pecuniary right belonging to an individual. Through
this approach, the civil limb of Article 6 has been applied to a variety of disputes
which may have been classified in domestic law as public-law disputes
(see Denisov, cited above, § 51).
58. In cases of employment disputes
concerning civil servants, the Court applies a two-tier test, which it
established in its Grand Chamber judgment in Vilho Eskelinen (cited
above – hereinafter referred to as the “Eskelinen test”). In
order for the respondent State to be able to rely
before the Court on the applicant’s status as a civil servant in excluding
the protection embodied in Article 6, two conditions must be fulfilled.
Firstly, the State in its national law must have expressly excluded access to a
court for the post or category of staff in question. Secondly, the exclusion
must be justified on objective grounds in the State’s interest. The mere fact
that the applicant is in a sector or department which
participates in the exercise of power conferred by public law is not in
itself decisive. In order for the exclusion to be justified, it is not enough
for the State to establish that the civil servant in question participates in
the exercise of public power or that there exists a “special bond of trust and
loyalty” between the civil servant and the State, as employer. It is also for
the State to show that the subject matter of the dispute in issue is related to
the exercise of State power or that it has called into question the
special bond. Thus, there can in principle be no justification for the
exclusion from the guarantees of Article 6 of ordinary labour disputes, such as
those relating to salaries, allowances or similar entitlements, on the basis of
the special nature of relationship between the particular civil servant
and the State in question. There will, in effect, be a presumption that
Article 6 applies. It will be for the respondent Government to demonstrate,
firstly, that a civil-servant applicant does not have a right of access to a
court under national law and, secondly, that the exclusion of the rights under
Article 6 for the civil servant is justified (ibid., § 62).
59. The Court reiterates that an
applicant may not be excluded from the protection of Article 6 of the
Convention solely on account of his or her status as a judge. It recalls that
in Baka (cited above), it confirmed the approach taken in a number of Chamber judgments that the Eskelinen test
applied to disputes concerning judges (ibid., § 104). This covered all types of
disputes, including those relating to recruitment/appointment,
career/promotion, transfer and termination of service/dismissal (ibid.,
§ 105).
‒ Application
of those principles to the present case
60. In the present
case the Government challenged the qualification of the
applicants’ dispute as “civil” within the meaning of Article 6 of
the Convention. They submitted that the Liquidation Commission of the SCU
had offered the applicants their usual salaries after their removal from their
judicial duties, however the applicants had failed to collect them. For
the Court, these facts are not decisive. The applicants’ dispute was
not about the renumeration but about their inability to exercise their mandate
as judges which had direct bearing on the applicants’ professional and
personal development and the possibility to establish relationships with
others, the concepts which largely fall in the area of private life under
the Convention (see, for the origins, Pretty v. the United
Kingdom, no. 2346/02, § 61, ECHR 2002‑III, and Niemietz
v. Germany, 16 December 1992, § 29, Series A no. 251‑B).
These private-law aspects of the matter are substantial and they cannot be
overweighed by the public nature of the applicants’ employment
(see Denisov, cited above, § 53 and Bilgen
v. Turkey, no. 1571/07, § 69, 9 March 2021). Moreover, taking into account
that the impugned measure had considerable effects on the
applicants’ professional life and the exercise of their functions as
judges and that it was a unilateral measure which was neither insignificant nor
a mere formality, the Court considers that it would be not only artificial but
would also undermine the protection of the special role of the judiciary in
society to exclude the dispute at issue from the protection of Article 6.
61. The Court will next examine whether
the applicants’ dispute could be excluded from the protection of Article 6
of the Convention on the basis of two conditions set out in the Eskelinen test.
As to the first condition, notably the exclusion of access to a court for the
post or category of staff in question, it has not been disputed that the
applicants would generally have access to a court in respect of their claims
related to their tenure, including claims about unlawful removal from office or
hindrance in the exercise of their duties (see
paragraph 27 above). However, the facts
of the present case may not exactly fit the general pattern since the
applicants were effectively prevented from exercising their judicial functions
by way of a parliamentary law reforming the judiciary. The Court has
previously found in a number of cases against Ukraine
that the courts of general jurisdiction in Ukraine did not have power to set
aside laws as being unconstitutional and at the relevant time an
individual had no right of individual petition to the Constitutional
Court, which is the sole court empowered to repeal a statutory provision.
Therefore, where an applicant’s complaint directly concerned a statutory provision,
the Court concluded that he or she had no remedy which could be considered
effective (see, for example, Zaichenko v. Ukraine (no. 2),
no. 45797/09, § 112, 26 February 2015 with further references;
see also Oleksandr Volkov v. Ukraine, no. 21722/11, § 128, ECHR 2013). These considerations are
equally pertinent in the present case.
62. In this context the Court notes that
the substance of the applicants’ dispute was raised by the plenary SCU in
the proceedings before the Constitutional Court which took cognisance of
the matter and subsequently delivered a judgment on the merits favourable to
the applicants (see paragraph 17 above). However, the judgment
of the Constitutional Court was not self-executing and the applicants were
not parties to the proceedings before that court. The proceedings in
the Constitutional Court were opened at the request of the plenary SCU,
acting as a public authority, when it was still operational. The fact that
the constitutional proceedings, directly touching the substance of
the applicants’ claims, were initiated by the plenary SCU in a public-law action is not therefore decisive since the
applicants were unable to bring the matter to the Constitutional Court in
their individual capacity as judges.
63. In their objection regarding the
non-exhaustion of domestic remedies, the Government contended that the
applicants should have challenged the liquidation procedure of the SCU (see
paragraph 40 above). The Court considers that the Government’s
argument is not convincing because it has not been shown that challenging the
liquidation process of a legal entity in court could restore the
applicants’ judicial functions which had been effectively terminated by a
legislative act, not by the decisions or measures taken in the course of the
liquidation proceedings.
64. The above
considerations suggest that the applicants did not have a right of access
to a court under national law in relation to their claim which is at issue in
the present case. While this finding could prompt the Court to rule that the
first condition of Eskelinen test referring to “express
exclusion” of access to court might be satisfied, the Court does not consider
it necessary to give a conclusive opinion under the first condition, since, in
any event, there are grounds to rule that the second condition of Eskelinen test
was not satisfied.
65. In assessing whether the exclusion of
access to a court was based on objective grounds in the State’s interest, it is
not enough to establish that the civil servant in question participates in
the exercise of public power or that there exists a “special bond of trust and
loyalty” between the civil servant and the State, as employer. It is for the
State to show that the subject of the dispute in issue is related to the
exercise of State power or that it has called into question the “special bond
of trust and loyalty” between the civil servant and the State, as employer
(see Vilho Eskelinen, cited above, § 62).
66. Given that the
present case concerns members of the judiciary, the second criterion
of Eskelinen test referring to the special bond of trust and
loyalty must be read in the light of the guarantees for the independence of the
judiciary. Those two notions, namely the special bond of trust and loyalty
required from civil servants and the independence of the judiciary, cannot be
easily reconciled. While the employment relationship between a civil
servant and the State can traditionally be defined as one based on trust and
loyalty to the executive branch in so far as employees of the State are
required to implement government policies, the same does not hold true for the
members of the judiciary, who play a different and more independent role
because of their duty to provide checks on government wrong-doing and abuse of
power. Their functional role for the State must therefore be understood in the
light of the specific guarantees essential for judicial
independence. Thus, when referring to the special trust and loyalty
that they must observe, it is loyalty to the rule of law and democracy and not
to holders of State power. This complex aspect of the employment relationship
between a judge and the State makes it necessary for members of
the judiciary to be sufficiently distanced from other branches of the
State in the performance of their duties, so that they can render
decisions a fortiori based on the requirements of law and
justice, without fear or favour. It would be a fallacy to assume that judges
can uphold the rule of law and give effect to the Convention if domestic
law deprives them of the guarantees of the Articles of the Convention on
matters directly touching their individual independence and impartiality. For
these reasons, the Court does not consider it justified to exclude members of
the judiciary from the protection of Article 6 of the Convention in
matters concerning the conditions of their employment on the basis of the
special bond of loyalty and trust to the State (see Bilgen, cited
above, § 79 and, mutatis mutandis, Kövesi, cited
above, § 124).
67. It follows that the second condition
of the Eskelinen test has not been met. Article
6 § 1 of the Convention is therefore applicable and
the Government’s objection to this effect must be dismissed.
(ii) Other
grounds for inadmissibility
68. The Court has dealt above with
aspects of the Government’s objection regarding the exhaustion of domestic
remedies (see paragraph 63 above). On the basis of the considerations set out
there, the Court considers that the remedy proposed by the Government –
challenging the liquidation procedure in the applicants’ individual
capacities – was not effective for the purpose of the Convention
because it could not address the substance of the applicants’ complaint
which resulted from a legislative reform and provide appropriate
relief (see De Tommaso v. Italy [GC], no. 43395/09, § 179, 23 February 2017). It follows
that the applicants were not obliged to exhaust that remedy. Further
noting that the Government did not suggest any other remedy which the
applicants should have used, the Court dismisses the Government’s objection
based on the rule of exhaustion of domestic remedies. The Court further
considers that the Government’s objection on the grounds of six-month rule is
closely linked to the substance of the applicants’ complaint about access
to court in respect of their claims concerning their prevention from exercising
judicial functions as Supreme Court judges. The Court therefore joins the
Government’s objection to the merits.
69. The Court notes that the applicants’ complaint
concerning lack of access to court is neither manifestly ill-founded nor
inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.
- Merits
70. The Court reiterates that the right
of access to the courts is not absolute and may be subject to limitations that
do not restrict or reduce the access left to the individual in such a way
or to such an extent that the very essence of the right is impaired.
Furthermore, a limitation will not be compatible with Article 6 § 1 if it does
not pursue a legitimate aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be achieved
(see Markovic and Others v. Italy [GC], no. 1398/03, § 99, ECHR 2006‑XIV, and Stanev
v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012 and Baka, cited
above, § 120).
71. As stated above (see
paragraph 52 above), given the prominent place that the judiciary
occupies among State organs in a democratic society
and the growing importance attached to the separation of powers and to
the necessity of safeguarding the independence of the judiciary, the Court
must be particularly attentive to the protection of members of the judiciary
against measures affecting their status or career that can threaten their
judicial independence and autonomy.
72. Moreover, the necessity to have in
place procedural safeguards and the possibility of appeal against decisions
affecting the career, including the status, of a judge is widely
acknowledged because what is at stake is public trust in the functioning of the
judiciary (see Bilgen, cited above, § 96 with further
references). Restriction of the right of a member of the judiciary to
contest their premature dismissal or a measure which amounts to constructive
dismissal may be incompatible with the independence of the judiciary,
where such measure is without any specific reason (see
paragraph 30 above).
73. The Court considers that the right of
access to a court is one of the fundamental procedural rights for the
protection of members of the judiciary and the applicants should have in
principle enjoyed the direct access to court in respect of their allegations of
unlawful prevention from exercising their judicial functions. For these
reasons, the possibility of institutional action, like the one which was
initiated by the plenary SCU in the present case, could be a supplementary
guarantee but it could not replace the right of a member of the judiciary to
bring a court action in his or her personal capacity.
74. The explanatory note to the draft law
on judicial reform provided that the reorganisation of high courts in Ukraine
pursued the general aims of securing fair domestic judiciary and speeding up
the domestic proceedings (see paragraph 9 above). It is hard to see
how these aims could be achieved by restricting the applicants’ access to
court in relation to their claims regarding their prevention from exercising
their judicial functions. In these circumstances, the Court finds that the
absence of access to court was not reasonably proportionate to the legitimate
aim sought.
75. The Court further notes that the
legislative amendments and the institutional changes giving rise to the
present dispute remained in force on the date on which the applicants lodged
their application with the Court. It follows that the
applicants’ complaint concerned a continuing situation which persisted at
the time of application (see Nataliya Mikhaylenko v. Ukraine,
no. 49069/11, § 25, 30 May 2013) with the result that the
six-month time-limit does not apply. The Government’s objection based on
the rule of six months should be dismissed.
76. In conclusion, the Court holds that
there has been a violation of Article 6 § 1 of the Convention as
regards the applicants’ right of access to a court.
- Alleged
violation of the right to an independent and impartial tribunal in
relation to the decisions of the HCJ of 2018
77. The Government submitted that it was
unclear why the applicants considered that the refusal by the HCJ to examine
the recommendations of the HQCJ to transfer them to lower courts was
unfavourable. In any event, the HCJ had acted in accordance with the principles
of independence and impartiality. The Government argued on these grounds that
the complaint was manifestly ill-founded.
78. The applicants maintained their
complaint that the HCJ could not be impartial in view of the involvement of its
members in the competition for the new SC, which was ongoing at the relevant
time.
79. The Court must determine whether
Article 6 is applicable to the administrative proceedings before the HCJ.
It recalls that Article 6 does not apply to a non‑contentious and
unilateral procedure which does not involve opposing parties disputing over
civil rights (see Alaverdyan v. Armenia (dec.), no. 4523/04, §§ 34-37, 24 August 2010, with further
references).
80. In the present case the HCJ was not
acting by way of disciplinary proceedings (contrast Oleksandr
Volkov, cited above, §§ 89 and 90; and Denisov,
cited above, §§ 66 and 67) but in the exercise of its administrative power
to decide on the transfer of judges in the context of a reorganisation of the
judiciary. The procedure at issue was essentially non‑contentious and
unilateral and it did not involve the determination of any “dispute” for
the purpose of Article 6. It is relevant to observe that any decision
taken by the HCJ in this procedure could be challenged before a court (see
paragraph 29 above). In the Court’s view, only in case of such
a challenge, a “dispute” possibly attracting the applicability of Article 6
could have arisen (compare Dzhidzheva-Trendafilova, cited
above, §§ 39 and 49). However, in the present case the
domestic procedure at issue never evolved to the stage of “dispute”: the HCJ
refused to examine the recommendations of the HQCJ on the
applicants’ transfers for the reason that the courts of destination had no
longer existed (see paragraph 22 above) and the applicants did not
challenge those rulings.
81. The Court therefore concludes that
the proceedings before the HCJ did not involve a “dispute” and consequently
Article 6 was not applicable. The complaint is therefore incompatible ratione
materiae with the Convention and must be rejected in accordance
with Article 35 §§ 3 (a) and 4.
- ALLEGED VIOLATION
OF ARTICLE 8 OF THE CONVENTION
82. The applicants complained under
Article 8 of the Convention that their prevention from exercising their
judicial functions amounted to an unlawful and groundless interference with
their right to respect for private life.
83. Article 8 of the Convention reads as
follows:
“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.”
- Admissibility
84. The Government submitted that the
measures complained of were taken in the context of a general reform of the
judiciary without any personal reasons given against the applicants. It was
therefore the consequence-based approach that could bring the matter
within the ambit of Article 8 (see Denisov, cited above,
§ 102). However, the impugned measures did not result in the loss of
the applicants’ salaries as the Liquidation Commission of the SCU had
offered to pay their salaries to the applicants and they had failed to collect
them. Neither were the applicants seriously cut off from their circle of
communication with the outer world, nor had their personal reputation been
affected. In these circumstances the requisite level of severity had not been
reached and Article 8 had not been applicable.
85. The applicants maintained that their
complaint was admissible.
86. The Court reiterates that
employment-related disputes are not per se excluded
from the scope of “private life” within the meaning of Article 8 of the
Convention. There are some typical aspects of private life which may be
affected in such disputes by dismissal, demotion, non-admission to
a profession or other similarly unfavourable measures. These aspects
include (i) the applicant’s “inner circle”, (ii) the applicant’s opportunity to
establish and develop relationships with others, and (iii) the applicant’s
social and professional reputation. There are two ways in which a private-life
issue would usually arise in such a dispute: either because of the underlying
reasons for the impugned measure (in that event the Court employs
the reason-based approach) or – in certain cases – because of
the consequences for private life (in that event the Court employs
the consequence-based approach) (see Denisov v. Ukraine [GC],
no. 76639/11, § 115, 25 September 2018). If the
consequence-based approach is at stake, the Court will only accept that Article
8 is applicable where these consequences are very serious and affect an
individual’s private life to a very significant degree (ibid.,
§ 116).
87. In the present case the legislative
amendments in 2016 and their subsequent implementation resulted in effective
prevention of the applicants from exercising their judicial functions as
Supreme Court judges without their formal dismissal. The reasons underpinning
those measures were not expressly related to the applicants, let alone their
private lives. It is therefore the consequence-based approach which may bring
the issue under Article 8.
88. The Court takes note of the
Government’s argument that the payment of salaries was not interrupted
after the impugned measures and that the applicants’ reputation had not
been affected given the general reasons for the undergoing judicial reform.
However, the principal negative consequence alleged by the applicants was that
after the impugned measures they could no longer exercise their functions as
Supreme Court judges. In this regard the Court observes that even assuming that
the applicants were not substantially affected financially, the impugned
measures deprived them of the opportunity to continue their judicial work and
to live in the professional environment where they could pursue their
goals of professional and personal development. At the time of the
consideration of the case by the Court, these substantial effects for the
applicants’ private lives have not been put right after the decision of
the Constitutional Court confirming the applicability of the principle of irremovability
in their regard (see paragraph 17 above).
89. Having regard to the nature and the
duration of the negative effects, the Court considers that the impugned
measures affected the applicants’ private lives to a very significant
degree, falling therefore within the scope of Article 8. The Government
objection is therefore dismissed.
90. The Court notes that this complaint
is neither manifestly ill-founded nor inadmissible on any other grounds listed
in Article 35 of the Convention. It must therefore be declared
admissible.
- Merits
- The
parties’ submissions
91. The applicants maintained that there
was a violation of Article 8 of the Convention and that, despite the favourable
decision by the Constitutional Court, they had not been permitted to
resume their judicial functions.
92. The Government contended that the
measures complained of were lawful and they pursued a legitimate aim of
reforming the domestic judiciary. Moreover, the measures at issue were not
disproportionate in respect of the applicants who had options of participating
in the competition for the new SC or being transferred to other domestic
courts.
- The Court’s
assessment
93. As noted above, the
applicants’ prevention from exercising judicial functions affected their
private lives to a very significant degree. The impugned measures
therefore constituted an interference with the applicants’ right to
respect for private life (see also Oleksandr Volkov, cited
above, §§ 165-67, with further references).
94. The interference will be in breach of
Article 8 of the Convention unless it can be justified under paragraph 2 of
Article 8 as being “in accordance with the law”, pursuing one or more of the
legitimate aims listed therein, and being “necessary in a democratic society”
in order to achieve the aim or aims concerned.
95. The expression “in accordance with
the law” in Article 8 § 2 of the Convention,
in essence, refers back to national law and states the obligation to
conform to the substantive and procedural rules thereof (see Akopyan
v. Ukraine, no. 12317/06, § 109, 5 June 2014). Where it has been shown that
the interference was not in accordance with the law, a violation of
Article 8 of the Convention will normally be found without investigating
whether the interference pursued a ‘legitimate aim’ or
was ‘necessary in a democratic
society’ (see, for some examples, Ciorap v. Moldova,
no. 12066/02, § 104, 19 June 2007, Khalikova
v. Azerbaijan, no. 42883/11, § 128, 22 October 2015, Chukayev v.
Russia, no. 36814/06, § 137, 5 November 2015, Porowski v.
Poland, no. 34458/03, § 171, 21 March 2017).
96. The expression “in accordance with
the law” also refers to the quality of the law in question, requiring that
it should be accessible to the person concerned, who must moreover be able to
foresee its consequences for him or her, and compatible with the rule of law.
The phrase thus implies, inter alia, that domestic law must be
sufficiently foreseeable in its terms to give individuals an adequate
indication as to the circumstances in which and the conditions on which
the authorities are entitled to resort to measures affecting their rights under
the Convention (see Fernández Martínez v. Spain [GC],
no. 56030/07, § 117, ECHR 2014 (extracts), with further
references).
97. In the present case, even though the
interference complained of originates from a parliamentary law, the question
arises whether it was lawful for the purpose of the Convention, notably whether
the relevant legal framework was foreseeable in its application and compatible
with the rule of law.
98. In this regard the Court takes note
of the Constitutional Court’s ruling of 18 February 2020 by which the relevant
legislative measures were declared unconstitutional. The Constitutional Court
considered that the amendments to the Constitution in 2016 did not violate
the principle of the institutional continuity of the highest judicial body
which continued to operate under the name “Supreme Court”. According to the
Constitutional Court, the renaming of the judicial body envisaged in the
Constitution could not take place without the transfer of judges of the SCU to
the offices of judges of the SC, since there was no difference between the
legal status of a judge of the SCU and a judge of the SC. The removal of
the word “Ukraine” from the phrase “the Supreme Court of Ukraine” could not be
the grounds for dismissal of all judges of the SCU or their transfer to another
court, all the more so to a lower court. The Constitutional Court found
therefore that the judges of the SCU had to continue to exercise their powers
as judges of the SC and that making a difference between judges of the SCU and
those of the SC was not consistent with the principle of irremovability of
judges, which was part of the constitutional guarantee of the independence
of judges (see paragraph 17 above).
99. The Court does not find any reason to
disagree with the above considerations. The Government have not demonstrated
that the manner in which the applicants had been compelled to compete in order
to maintain their right to carry out their judicial duties and, in particular,
the manner in which the competition was organised, including the choice of
assessors and the lack of institutional and procedural safeguards, could be
reconciled with the Constitutional principles on the general protection of
individual rights and with the specific guarantees relating to tenure of
judicial office (see paragraphs 23 and 24 above),
including the principle of the irremovability of judges which, according
to the Court’s case-law and international and Council of Europe instruments, is
a key element for the maintenance of judicial independence and public
trust in the judiciary (see Baka, cited above, § 172).
100. Nevertheless, despite the ruling of
the Constitutional Court, the issue of the applicants’ resumption of
their judicial functions was still under examination by Parliament as of June
2021 (see paragraph 18 above). In assessing the
applicants’ case, the Court observes that since December 2017, when the SC
started to operate (see paragraph 14 above), the applicants have
not been able to exercise their judicial functions as Supreme Court judges.
There has, therefore, been a clear lack of coordination in addressing the
applicants’ situation for a considerable period which seriously undermined
the legal certainty and predictability of the constitutional principles on
judicial independence.
101. In view of the above considerations,
the Court finds that the interference at issue fell short of the
requirements of lawfulness for the purpose of the Convention. Accordingly,
there has been a violation of Article 8 of the Convention.
- APPLICATION OF
ARTICLE 41 OF THE CONVENTION
102. Article 41 of the Convention
provides:
“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
- Damage
103. The applicants provided calculations
of alleged pecuniary damage which consisted of lost salaries for the period
during which they could not exercise their judicial duties as Supreme Court
judges. The applicants further claimed 10,000 euros (EUR) each in respect of
non-pecuniary damage.
104. The Government submitted that the
claims for pecuniary damage had been unfounded because the applicants had been
offered payment of their salaries by the Liquidation Commission of the SCU but
had failed to appear and collect the money. The Government also submitted that
there had been no causal link between the alleged violations and the pecuniary
damage claimed. They further maintained that the claim for non-pecuniary
damages had been fully unsubstantiated.
105. The Court takes note of the
Government’s submissions and considers that the applicants failed to prove that
they had sustained any pecuniary damage resulting from the violations found. It
therefore dismisses the claim for pecuniary damage.
106. The Court further considers that the
applicants have suffered non-pecuniary damage which is not sufficiently
compensated by the finding of violations of the Convention. Considering the
circumstances of the case and making its assessment on an equitable basis, the
Court awards each applicant EUR 5,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable to him.
- Costs and expenses
107. The applicants made no claim for
costs and expenses. The Courts therefore makes no award under this head.
- Default
interest
108. The Court considers it appropriate
that the default interest rate should be based on the marginal lending rate of
the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
- Joins to the
merits the Government’s
objection on grounds of the six‑month rule, which
concerned the admissibility of the applicants’ complaint of alleged
lack of access to court (Article 6 § 1), and rejects that
objection after an examination of the merits;
- Declares the complaints concerning access to court
(Article 6 § 1) and the right to respect for private life
(Article 8) admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention as regards the
applicants’ right of access to a court;
- Holds that there has been a violation of
Article 8 of the Convention;
- Holds
(a) that the respondent
State is to pay each applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at the rate applicable
at the date of settlement;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 22
July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor
Soloveytchik Síofra
O’Leary
Registrar President
APPENDIX
List of applicants:
|
No. |
Applicant’s
Name |
Year of
birth |
Place of
residence |
|
Vasyl Ivanovych GUMENYUK |
1958 |
Kyiv |
|
|
2. |
Galyna Volodymyrivna KANYGINA |
1957 |
Kyiv |
|
3. |
Lyudmyla Ivanivna OKHRIMCHUK |
1954 |
Kyiv |
|
4. |
Bogdan Mykolayovych POSHVA |
1959 |
Kyiv |
|
5. |
Viktor Fedorovych SHKOLYAROV |
1960 |
Kyiv |
|
6. |
Oleksandr Fedorovych VOLKOV |
1957 |
Kyiv |
|
7. |
Anatoliy Anatoliyovych YEMETS |
1963 |
Kyiv |
|
8. |
Tetyana Yevgenivna ZHAYVORONOK |
1960 |
Kyiv |