Oleksandr Volkov v. Ukraine - 21722/11 - Legal Summary [2013] ECHR 289 (09 January 2013)

Information Note on the Court’s case-law No. 159

January 2013

Oleksandr Volkov v. Ukraine - 21722/11

Judgment 9.1.2013 [Section V]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Structural defects of the system of judicial discipline: violation

Fair hearing

Absence of limitation period for imposing disciplinary penalty on judges and abuse of electronic vote system in Parliament when adopting decision on judge’s dismissal: violations

Tribunal established by law

Composition of chamber examining applicant’s case defined by a judge whose term of office as court’s president had expired: violation

Article 8

Article 8-1

Respect for private life

Dismissal of a judge for “breach of oath” in absence of consistent interpretation of that offence and of requisite procedural safeguards: violation

Article 46

Article 46-2

Execution of judgment

Measures of a general character

Respondent State required to reform the system of judicial discipline

Execution of judgment

Individual measures

Respondent State required to secure applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date

Facts - From 2003 the applicant was a judge of the Supreme Court of Ukraine and from 2007 President of the Military Chamber of that court. In 2007 he was elected to the post of member of the High Council of Justice (“the HCJ”), but did not assume the office following the refusal of the Chairman of the Parliamentary Committee of the Judiciary (“the Parliamentary Committee”) to allow him to take the oath. In 2008 and 2009 two members of the HCJ - one of whom was elected president of the HCJ later - conducted preliminary inquiries into possible misconduct by the applicant. They concluded that he had reviewed decisions delivered by his wife’s brother - some of them dating back to 2003 - and that he had been culpable of gross procedural violations, some of his actions dating back to 2006. Following these inquiries, the President of the HCJ submitted two applications to the Parliament for the applicant’s dismissal from the post of judge. In 2010 the Parliament, having considered these applications by the HCJ, a recommendation by the Parliamentary Committee, voted for the applicant’s dismissal for “breach of oath”. According to the applicant, during the electronic vote the majority of the Members of Parliament were absent and those present used voting cards which belonged to their absent colleagues. The applicant challenged his dismissal before the Higher Administrative Court, which found that the HCJ’s application to dismiss him following the inquiry of the president of the HCJ had been lawful and substantiated. The Higher Administrative Court further found that the HCJ’s decision based on the results of the other inquiry had been unlawful, because the applicant and his wife’s brother had not been considered relatives under the legislation in force at the time. However, it refused to quash the HCJ’s acts in that case, noting that under the applicable provisions it had no power to do so. The Higher Administrative Court further noted that there had been no procedural violations either before the parliamentary committee or at the Parliament.

Law - Article 6 § 1

(a) Applicability - In determining the applicant’s case and taking a binding decision, the HCJ, the parliamentary committee, and the plenary meeting of Parliament had been performing a judicial function in combination. The binding decision on the applicant’s dismissal had further been reviewed by the Higher Administrative Court, which was a classic court within the domestic judiciary. It could not therefore be concluded that national law “expressly excluded access to court” for the applicant’s claim. Article 6 therefore applied under its civil head.

The sanction imposed on the applicant was a classic disciplinary measure for professional misconduct and, in terms of domestic law, contrasted with criminal-law sanctions for the adoption of a knowingly wrongful decision by a judge. It was also relevant that the applicant’s dismissal from the post of judge had not formally prevented him from practising law in another capacity within the legal profession. Article 6 was not, therefore, applicable under its criminal head.

(b) Independence and impartiality of the bodies determining the applicant’s case

(i) The HCJ: With respect to disciplinary proceedings against judges, the necessity of the substantial participation of judges in the relevant disciplinary body had been recognised in the European Charter on the Statute for Judges. However, the HCJ consisted of twenty members who were appointed by different bodies. Three members were directly appointed by the President of Ukraine, three by the Parliament of Ukraine and two by the All-Ukrainian Conference of Prosecutors. The Minister of Justice and the Prosecutor General were ex officio members of the HCJ. Non-judicial staff appointed directly by the executive and the legislative authorities comprised the vast majority of the HCJ’s members. As a result, the applicant’s case had been determined by sixteen members of the HCJ who had attended the hearing, only three of whom were judges. Moreover, only four members of the HCJ worked there on a full-time basis. The other members continued to work and receive a salary outside the HCJ, which inevitably involved their material, hierarchical and administrative dependence on their primary employers and endangered both their independence and impartiality. The Court referred also to the opinion of the Venice Commission that the presence of the Prosecutor General on a body concerned with the appointment, disciplining and removal of judges created a risk that judges would not act impartially in such cases or that the Prosecutor General would not act impartially towards judges of whose decisions he disapproved. Furthermore, the members of the HCJ who had carried out the preliminary enquiries in the applicant’s case and submitted requests for his dismissal had subsequently taken part in the decisions to remove the applicant from office. One of those members had been appointed President of the HCJ and had presided over the hearing of the applicant’s case. The role of those members in bringing disciplinary charges against the applicant, based on the results of their own preliminary enquiries, threw objective doubt on their impartiality when deciding on the merits of the applicant’s case. Accordingly, the facts of the present application disclosed a number of serious issues pointing both to structural deficiencies in the proceedings before the HCJ and to the appearance of personal bias on the part of certain members of the HCJ determining the applicant’s case. The proceedings before the HCJ had thus not been compatible with the principles of independence and impartiality required by Article 6 § 1.

(ii) The Parliamentary Committee: The chairman of the committee and one of its members were also members of the HCJ and had taken part in deciding the applicant’s case at both levels. Accordingly, they may not have acted impartially when examining the submissions by the HCJ. In addition, the Court’s considerations concerning the lack of personal impartiality were equally pertinent to this stage of the procedure. Moreover, proper account should be taken of the fact that the chairman, together with two members of the Parliamentary Committee, had applied to the HCJ seeking the initiation of preliminary enquiries into possible misconduct by the applicant. At the same time, the HCJ’s members had not been able to withdraw as no withdrawal procedure was envisaged by the relevant legislation. This pointed to the lack of appropriate guarantees for the proceedings’ compliance with the test of objective impartiality.

(iii) The plenary meeting of Parliament:- At that stage, the determination of the case had been limited to the adoption of a binding decision based on the findings previously reached by the HCJ and the Parliamentary Committee. On the whole, the procedure at the plenary meeting was not an appropriate forum for examining issues of fact and law, assessing evidence and making a legal qualification of facts. The role of the politicians sitting in Parliament, who were not required to have any legal and judicial experience, had not been sufficiently clarified by the Government and had not been justified as being compatible with the requirements of independence and impartiality of a tribunal.

(iv) The Higher Administrative Court: The Higher Administrative Court had been vested with powers to declare the decisions of the HCJ and the Parliament unlawful without being able to quash them and take any further steps. There was no automatic reinstatement in the post of judge exclusively on the basis of the Higher Administrative Court’s declaratory decision. Moreover, important arguments advanced by the applicant had not been properly addressed by the Higher Administrative Court. The judicial review of the applicant’s case had thus not been sufficient. Furthermore, the judges of the Higher Administrative Court were also under the disciplinary jurisdiction of the HCJ and could also be subjected to disciplinary proceedings before the HCJ. They were therefore unable to demonstrate “the independence and impartiality” required by Article 6.

The domestic authorities had thus failed to ensure independent and impartial determination of the applicant’s case and the subsequent judicial review had not remedied those defects.