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.
Conclusion: violation (unanimously).
(c)  Absence of a limitation period for imposing a disciplinary penalty – The applicant had been placed in a difficult position, as he had had to mount his defence before the HCJ in 2010 with respect to events some of which had occurred in the distant past (in 2003 and 2006). Domestic law did not provide any time bars on proceedings for dismissal of a judge for “breach of oath”. While the Court did not find it appropriate to indicate how long the limitation period should be, such an open-ended approach to disciplinary cases involving the judiciary posed a serious threat to the principle of legal certainty.
Conclusion: violation (unanimously).
(d)  Voting procedure at the plenary meeting of Parliament – The decision on the applicant’s dismissal had been voted on in the absence of the majority of the Members of Parliament. The MPs present had deliberately and unlawfully cast multiple votes belonging to their absent peers. The decision had therefore been taken in breach of the Constitution, the Status of Members of Parliament Act and the Rules of Parliament. The vote had therefore undermined the principle of legal certainty. The Higher Administrative Court had failed to address that issue properly.
Conclusion: violation (unanimously).
(e)  Composition of the chamber of the Higher Administrative Court – Under domestic law, the personal composition of the special chamber that was to examine the applicant’s case was to be defined by the President of the Higher Administrative Court, but his five-year term as President had already expired when this was done. The relevant provisions of national law regulating the procedure for appointing presidents of the courts had been declared unconstitutional and new provisions had not yet been introduced. In the meantime, the appointment of presidents of the courts had been a matter of serious controversy among the Ukrainian authorities. The Court could not find that the chamber deciding the case had been composed in a manner satisfying the requirement of a “tribunal established by law”.
Conclusion: violation (unanimously).
Article 8: The applicant’s dismissal had constituted interference with his right to respect for private and family life. The Court’s finding that the parliamentary vote on the decision to remove him from office had not been lawful under national law was sufficient to find that the interference in question had not been justified and was therefore in breach of Article 8. At the time the applicant’s case had been decided there were no guidelines or practice establishing a consistent interpretation of the notion of “breach of oath” and no adequate procedural safeguards had been put in place to prevent arbitrary application of the relevant provisions. In particular, national law had not set any time-limits for proceedings against a judge for “breach of oath”, which had made the discretion of the disciplinary authorities open-ended and had undermined the principle of legal certainty. Moreover, national law had not set out an appropriate scale of sanctions for disciplinary offences and had not developed rules ensuring their application in accordance with the principle of proportionality. Finally, there had been no appropriate framework for independent and impartial review of a dismissal for “breach of oath”.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 in respect of non-pecuniary damage. Question of just satisfaction in respect of pecuniary damage reserved.
Article 46
(a)  General measures – The case disclosed serious systemic problems as regards the functioning of the Ukrainian judiciary. In particular, the system of judicial discipline did not ensure the sufficient separation of the judiciary from the other branches of State power. Moreover, it did not provide appropriate guarantees against abuse and misuse of disciplinary measures to the detriment of judicial independence. The respondent State would therefore be required to take a number of general measures aimed at reforming the system of judicial discipline. Those measures should include legislative reform involving the restructuring of the institutional basis of the system. The measures should also entail the development of appropriate forms and principles of coherent application of domestic law in that field.
(b)  Individual measures – Having regard to the necessity of reforming the system of judicial discipline, reopening the domestic proceedings would not constitute an appropriate form of redress for the violations found. There were no grounds to assume that the applicant’s case would be retried in accordance with the principles of the Convention in the near future. The Court saw no point in indicating such a measure. Having regard to the very exceptional circumstances of the case and the urgent need to put an end to the violations of Articles 6 and 8, the Court held that the respondent State must secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date.

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