MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1318/H46-28

7 June 2018

1318th meeting, 5-7 June 2018 (DH) Human rights   H46-28 Salov group (Application No. 65518/01), Oleksandr Volkov group (Application No. 21722/11) v. Ukraine Supervision of the execution of the European Court’s judgments Reference documents  DH-DD(2018)275, ResDH(2004)14, CM/ResDH(2014)275, H/Exec(2017)1, CM/Del/Dec(2017)1280/H46-37

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
SALOV GROUP
65518/01	SALOV	06/09/2005	06/12/2005	Complex problem
33949/02	BELUKHA	09/11/06	09/03/07
76556/01+	FELDMAN	08/04/2010	04/10/2010
48553/99	SOVTRANSAVTO HOLDING	25/07/02 02/10/03	06/11/02 24/03/04
OLEKSANDR VOLKOV GROUP
21722/11	OLEKSANDR VOLKOV	09/01/2013 06/02/2018	27/05/2013 06/05/2018[1]	Complex problem
5114/09+	KULYKOV AND OTHERS	19/01/2017	19/04/2017

Case description

The Oleksandr Volkov case concerns four violations of the applicant’s right to a fair hearing on account of his unlawful dismissal from his post as a judge at the Supreme Court of Ukraine in June 2010 (Article 6 § 1):

-       Dismissal proceedings before a body that was not independent or impartial, and lack of effective judicial review;

-       Absence of a limitation period for the proceedings against the applicant;

-       Different irregularities in the voting process before Parliament concerning the applicant’s dismissal (absence of the majority of MPs, and those present deliberately and unlawfully casting multiple votes belonging to their absent colleagues);

-       Irregularities in the setting-up and composition of the special chamber of the High Administrative Court dealing with the applicant’s case.

The dismissal was also found to amount to a violation of the applicant’s right to respect for private life (Article 8) as the interference was not compatible with domestic law and as the domestic law did not meet the requirements of foreseeability and did not provide appropriate protection against arbitrariness.

Considering the special circumstances identified in the judgment, the Court made specific indications under Article 46 for its execution.

As regards individual measures, the Court held “that the respondent State shall secure the applicant’s reinstatement in the post of judge of the Supreme Court at the earliest possible date” (§§ 207-208).

As regards general measures, the Court noted that “the present case discloses serious systemic problems as regards the functioning of the Ukrainian judiciary” (§ 199). It indicated that Ukraine should urgently put in place general reforms to its legal system, notably by taking “a number of general measures aimed at reforming the system of judicial discipline.

These measures should include legislative reform involving the restructuring of the institutional basis of the system. Furthermore, these measures should entail the development of appropriate forms and principles of coherent application of domestic law in this field” (§§ 200 and 202).

In the case of Kulykov and Others the Court found violations of Article 6 § 1 and Article 8 of the Convention similar to its findings in the case of Oleksandr Volkov. In particular, the Court found that the domestic bodies dealing with applicants’ cases lacked independence and impartiality, and that the subsequent judicial review had not remedied these shortcomings. Additionally, the Court found that the applicants’ dismissal from their judicial posts was unlawful, being based on legal provisions lacking the requisite “quality of law”, i.e. legal certainty.

The cases of the Salov group concern violations of the applicants’ right to a fair trial (Article 6 § 1), in particular due to the lack of impartiality and/or independence of the courts hearing their cases. In the Salov judgment, the Court pinned its relevant findings primarily on the excessively wide powers of the presidiums of the regional courts, referring in particular to the “lack of clear criteria and procedures in domestic law concerning the promotion, disciplinary liability, appraisal and career development of judges or limits to the discretionary powers vested in the presidents of the higher courts” (§ 83), as well as “the binding nature of the instructions given by the presidium of regional courts…” (§ 86).

In the Belukha case, the impartiality of the court was tainted by the judge demanding and accepting assets from the defendant company (§ 54). The distinguishing feature of the Sovtransavto Holding case was the interventions of the executive branch of the state in the court proceedings. In the Feldman case, the violation of the principle of independence and impartiality was found due to the statements made by the state authorities, including the country’s President, in respect of the charges against the applicant; the unjustified change of territorial jurisdiction over the case; and actions taken by the authorities against the applicant’s lawyer.

The cases of the Salov group also concern other linked violations of the Convention and the Protocols thereto (Salov: Article 5 § 3, Article 10; Sovtransavto Holding: Article 6 and Article 1 of Protocol No. 1; Feldman: Article 5 §§ 1, 3 and 4).

Status of execution

Individual measures:

As regards the case of Oleksandr Volkov, it is recalled that, in February 2015, the Supreme Court, based on the decision of the Verkhovna Rada, reinstated the applicant in his post.[2] The only outstanding issue was the amount of pecuniary damages to be awarded to the applicant. In a judgment adopted on 6 February 2018, the Court struck the matter out of its list of cases, noting the agreement reached between the applicant and the government.[3]

As regards the new case of Kulykov and Others, the authorities have indicated that the just satisfaction, costs and expenses, were paid to the applicants and their representatives in full within the time limit.[4] Furthermore, following the judgment of the European Court, all the applicants have sought the reopening of the impugned proceedings before the Supreme Court. Upon consideration of the requests, one of the applicants was reinstated in their judicial post. In the remaining cases the Supreme Court either reopened the proceedings, or quashed the decisions of the Verkhovna Rada. One of the cases is pending before the Grand Chamber of the Supreme Court (see DH-DD(2018)437 for full details).

The authorities have also submitted information on the individual measures taken in respect of the remaining cases in this group that raise issues of lack of judicial independence or impartiality. In particular, in the case of Salov, the domestic judicial decisions in relation to the applicant were quashed by the Supreme Court and the proceedings were terminated due to the absence of corpus delicti. As regards the case of Belukha, the Supreme Court quashed the domestic judicial decisions criticised by the European Court and sent the case for fresh consideration by a different district court. In the case of Feldman, the applicant did not request reopening of the impugned proceedings.

General measures:

The Ukrainian authorities have previously undertaken substantial legislative and institutional reforms to respond to the violations found by the Court. These include changes to the Constitution of Ukraine and the adoption of two major laws dealing with the functioning of the judiciary (see H/Exec(2017)1 for full details).

During its last examination of the cases at its 1280^th meeting (March 2017) (DH), the Committee welcomed the progress achieved and urged the authorities to address the outstanding issues identified in the Secretariat’s detailed assessment (H/Exec(2017)1) without undue delay. In response, the authorities submitted an updated action plan on 7 March 2018 with an Addendum on 24 April 2018 (see
DH-DD(2018)275 and DH-DD(2018)437), the relevant aspects of which are summarised below.

1.             Measures to ensure that the necessary regulations are in place for the election of the members of the High Council of Justice (HCJ)

The constitutional amendments of 2016 provided that the HCJ should consist of 21 members, ten of whom should be elected by the Congress of Judges; two to be appointed by the President; two by the Parliament; two members are to be elected by the Congress of Lawyers of Ukraine; two by the Ukrainian Congress of Prosecutors; and two by academic institutions. The Chairman of the Supreme Court is an ex officio member of the HCJ. The authorities indicated that at the beginning of 2018, 18 members of the HCJ had been appointed. Eleven members are judges, seven having been elected by their peers. They noted that the provisions of the Law “On the High Council of Justice” provide for the independence of the members of the HCJ and exclude the possibility of a conflict of interest. They provided information about the different procedures for the election of the members of the HCJ, which are regulated by the Law of Ukraine “On the High Council of Justice” and other legislative acts (for full details see DH-DD(2018)275 and
DH-DD(2018)437). According to the authorities, these measures responded to the indications in the Oleksandr Volkov judgment as to the composition of the HCJ.

2.             Completion of the procedure for filling judicial posts at the Supreme Court

The authorities indicated that the procedure for filling judicial posts in the Supreme Court is almost complete.[5] The Supreme Court started functioning in a new composition on 15 December 2017. They also provided information on the measures taken to ensure the openness and transparency of the procedure to fill judicial vacancies at the Supreme Court.

3.             Restrictions on the role and powers of prosecutors as regards the disciplining and career development of judges

The authorities submitted that the prosecutors’ influence in the area of discipline and careers of judges is now limited by legislation through: 1) the prohibition on being both a prosecutor and a member of the HCJ simultaneously; 2) the fact that it is no longer the exclusive right of the members of the HCJ to initiate disciplinary proceedings against a judge;[6] 3) the exclusion of the Prosecutor General from the HCJ; and 4) the need for a majority of the HCJ to adopt a decision.

4.             The scope of judicial review of disciplinary decisions of the HCJ

The review by the Supreme Court of HCJ decisions is envisaged by the Laws of Ukraine “On the High Council of Justice”, “On the Judiciary and Status of Judges” and the Code of Administrative Justice. The decisions of the full composition of the HCJ relating to the dismissal of a judge may be appealed to the Supreme Court. The President of the Supreme Court shall not participate in the review proceedings.

Furthermore, decisions of the HCJ Disciplinary Chamber relating to the imposition of a disciplinary sanction on a judge may also be appealed, first to the HCJ and then to the Grand Chamber of the Supreme Court. The authorities indicated that although the Law “On the High Council of Justice” limits the scope of review by the Supreme Court of HCJ decisions to formal grounds, several cases of the Grand Chamber of the newly-composed Supreme Court indicate that it can also review issues of proportionality, with specific reference to the findings of the European Court in the case of Oleksandr Volkov (for full details see
DH-DD(2018)437).

5.             Application of the three-year limitation period

The authorities submitted that the application of the three-year limitation period by the HCJ is consistent. They provided examples of decisions in which the HCJ, when considering disciplinary cases against judges, established whether the period of disciplinary liability had expired. They also provided information on the consistent application of the three-year limitation period by the Supreme Court.

6.             Establishment of a scale of sanctions in disciplinary cases and other types of judges’ liability

The procedure for choosing a disciplinary sanction to be applied to a judge is stipulated by Article 109 of the Law of Ukraine “On the Judiciary and the Status of Judges”, which provides for the list of acts that can be deemed to constitute significant disciplinary misconduct or grave negligence of judicial duties, resulting in sanctions of differing severity, from reprimand to dismissal. The authorities consider that the application of disciplinary sanctions by the HCJ and judicial practice on that subject is consistent and coherent. The scale of sanctions for individual disciplinary offences is now clear and foreseeable, not only in law, but also in practice. They provided statistical data and examples of decisions of the HCJ and the Supreme Court in this respect. However, disciplinary liability and sanctions imposed, do not preclude the establishment of other types of liability for judges, for instance liability for corruption-related offences.

7.             The use of objective criteria to evaluate the work of a judge[7]

The authorities indicated that information from the “judicial dossier” has an impact during the assessment of a judge’s professional qualities, which is a mandatory condition for career development. A judge’s professional competence is assessed according to the following indicators: 1) legal knowledge; 2) practical skills and ability to apply the law; 3) efficiency in administration of justice; and 4) activities aimed at professional development (for full details see DH-DD(2018)275 and DH-DD(2018)437). The information in the judicial dossier is also used in other procedures concerning judges: disciplinary proceedings by the HCJ and its Chambers, attestation procedures for judges of the first instance and appeal courts, and selection of judges for the new composition of the Supreme Court. Information on the number of quashed or amended decisions could be relevant for the “efficiency in administration of justice” criterion but is not a sole or conclusive element.

8.             Appeals procedures

When, with a view to promotion or transfer to another court, a judge undergoes a qualification assessment (see above), leading to a decision by the High Qualification Commission of Judges as to his or her ability to administer justice, the decision can be challenged before the Supreme Court in the manner prescribed by Article 266 of the Code of Administrative Justice. The HCJ may reject the recommendation of the High Qualification Commission of Judges only if the statutory procedure has been violated or if there are reasonable doubts as to the compliance of the candidate with the criterion of integrity or professional ethics, or if there exist other circumstances which might have a negative impact on public trust in the judiciary. Any decision of the HCJ rejecting the appointment or transfer of a judge may be challenged before the Supreme Court on certain procedural grounds only. The authorities provided statistical data in this respect on cases pending before the Supreme Court concerning the competition for judicial positions at the Supreme Court (for full details see DH-DD(2018)437).

9.             Transitional provisions

The authorities submitted that in the period between the delivery of the Oleksandr Volkov judgment and the enactment of Constitutional amendments, transitional provisions applied in respect of the disciplinary liability and careers of judges (see for instance DH-DD(2017)82).

10.          Information as to general measures with regard to cases of Sovtransavto Holding, Belukha and Feldman

The general measures in the cases of Sovtransavto Holding, Belukha and Feldman related to ensuring full respect for the independence of the judiciary, in particular by imposing effective sanctions on officials or private persons who interfere, or attempt to interfere, with pending court proceedings.[8] Criminal liability in this respect has been strengthened through amendments to the Criminal Code in 2014 (Articles 376 – 379 of the Code). Other general measures aim to exclude any form of undue interference by the executive or private persons with the judiciary and to strengthen the powers of the bodies of judicial governance (HCJ) and self-governance (Congress of Judges and the Council of Judges) to counteract threats to judicial independence. In that vein, the judiciary adopted the Commentary to the 2013 Code of Judicial Ethics (approved by the Council of Judges in 2016) and the Methodological Recommendations for Judges on Conflict of Interest Prevention (adopted on 2 March 2018). Training was provided on the Convention and the case law of the European Court concerning judicial independence during the initial and in-service training of judges by the National School of Judges. Furthermore, knowledge of the same was an important element of assessment of the candidate judges of the new composition of the Supreme Court in 2017 and remains a part of the system of assessment of professional knowledge of judges for first instance and appeal court positions.

Analysis of the Secretariat

Individual measures:

The authorities should in due course provide information on the payment of compensation for pecuniary damage in the case of Oleksandr Volkov, where the deadline for payment had not passed by the date the authorities submitted the information examined in this analysis.

Information is expected on the outcome of the reopened dismissal proceedings in the cases of Kulykov and Others, which should result in restitutio in integrum or restoration of the judicial status of those dismissed in breach of the Convention. The authorities should be encouraged to maintain the positive approach towards the protection of the rights of judges, referred to in the proceedings before the Court.[9]

 

As regards the cases of Salov, Feldman and Belukha, supervision of these cases can be closed given that the just satisfaction has been paid and the Supreme Court has quashed the domestic judicial decisions criticised by the European Court. In particular, in the Salov case the applicant’s conviction was quashed, his status of advocate was restored and he was awarded damages. As to the case of Belukha, where the European Court held that the finding of a breach of Article 6 § 1 constituted sufficient just satisfaction, the Supreme Court quashed the applicant’s conviction on 22 May 2008, on the basis of a breach of the requirement of impartiality of a judge hearing the case, and remitted it for examination to a different court. It appears therefore that the issue of subjective impartiality has been rectified. As to the case of Feldman, the applicant never availed himself of the possibility provided by domestic legislation to apply for review of the impugned proceedings.

General measures:

During its 1280th meeting the Committee noted with satisfaction the progress achieved in the reform of the systems of judicial discipline and careers, and in particular the adoption of the constitutional amendments and enacting legislation which provided a new comprehensive legal framework for the judiciary. 

The Committee further welcomed the fact that the Higher Council of Justice was now fully operational under the new regulations. It identified a number of issues already resolved in the course of the judicial reform and urged the authorities to address the outstanding issues identified in the Secretariat’s detailed assessment (H/Exec(2017)1)[10] and to provide a comprehensive updated action plan or action report. The elements contained in this report can be assessed as follows.

I.              Issues resolved by the domestic authorities

It is to be welcomed that the authorities have made major progress with the fine-tuning of the implementation of the new system for judicial discipline and careers of judges and that the following elements respond to the requirements of general measures in the Salov and Oleksandr Volkov groups of cases, being capable of preventing similar violations of the Convention in the future:

·         The structural independence of the HCJ and its impartiality have been ensured in law and in practice, and the influence of the political organs of government reduced, notably through the election of the majority of its members from among judges by the Congress of Judges[11];

·         An operational judicial review mechanism has been introduced for review of complaints against disciplinary measures by the full composition of the HCJ and the newly composed Supreme Court, which comply with the criteria of “tribunal established by law”;[12]

·         The potential conflict of interest and undue influence of prosecutors on judges, were eliminated as prosecutors no longer have a role in discipline and careers of judges;[13]

·         The full composition of the HCJ and the Supreme Court can now ensure “sufficient review” of possible serious defects in the disciplinary proceedings before the Disciplinary Chambers and they can be fully counterbalanced, i.e. the full composition and the Grand Chamber of the Supreme Court can quash the decisions of the Disciplinary Chambers and indicate further restitution measures as deemed necessary;[14]

·         The principle of legal certainty has been ensured by the introduction of the three-year limitation period for disciplinary sanctions in law and its consistent application in practice, thus protecting potential defendants from out-dated claims, based on unreliable or incomplete evidence, due to inter alia passage of time;[15]

·         The principle of legal certainty in the application of disciplinary sanctions has been strengthened through the elaboration of coherent distinctions between various disciplinary grounds and sanctions, and clearly established case-law on the application of disciplinary measures by the HCJ, thus ensuring legal certainty in the application of such sanctions, and putting in place the necessary procedural safeguards against their potentially arbitrary or open-ended application;[16]

·         Coherence, legal certainty and proportionality of sanctions are also ensured through the alignment of disciplinary sanctions with other types of judicial liability, including the criminal liability of a judge[17];

·         Information on judgments quashed or amended, no longer has a key role in the evaluation of the judicial dossier and thus in the career development of a judge.[18]

II.            Issues that remain outstanding and where more information is required from the domestic authorities

Further information is necessary as to procedures for appeal and how they function in practice, with the involvement of the newly-established bodies.[19]

III.           Additional information requested by the Committee

The Committee previously invited the authorities to provide clarifications on the dismissal of judges by Parliament under the procedures in place before 1 October 2016. It appears that the dismissal of judges in the period from 27 May 2013 to 1 October 2016 was done under the “old” legislation, with changes and amendments introduced in 2014 – 2015.

It is to be noted that during this transitional period, several legislative acts were adopted to restore trust in the judiciary, aimed at the vetting of judges involved in the illegal limitation of constitutional rights and freedoms of persons involved in mass protests in the period from 30 November 2013 to 23 February 2014. The adoption of these legislative acts resulted in a number of institutional changes within the judiciary, the lustration of some judges, and the review of 2,192 complaints by the Temporary Special Commission (the TSC), with a special focus on the review of complaints against judges related to the events above. As a result the TSC terminated its functioning on 18 June 2016, having submitted a number of motions to the Higher Qualification Commission of Judges and the HCJ for the application of disciplinary sanctions against judges. Some of these included proposals for dismissal.

As regards cases of dismissals, in cases taken as a sample, 29 judges were dismissed by the Verkhovna Rada on 29 September 2016. Most of these judges were dismissed for the reasons established by the TSC. One judge has been reinstated and three judges obtained favourable decisions quashing their dismissals by the Verkhovna Rada. In 14 cases proceedings are still pending, and in the remaining cases, the Supreme Court rejected the claims of those concerned.

The proceedings in most of these cases have been pending since September 2016 before various judicial instances, including the Supreme Court, especially taking into account the newly-introduced mechanisms for review of allegedly unjustified disciplinary sanctions. Therefore, the authorities should be encouraged to complete these proceedings and inform the Committee of their outcome.

IV.           Measures taken by the authorities with regard to cases of Salov, Belukha and Feldman

The concerns identified in the Salov, Belukha and Feldman judgments have been addressed and the general measures taken appear to be capable of preventing similar violations: strengthening the independence and impartiality of the judiciary through the relevant judicial reforms; changes to the system of judicial discipline and careers of judges by excluding the influence of superior court judges; prevention and elimination of any influence by the executive or legislative authorities or by private persons over judges; and training and dissemination measures.

Financing assured: YES