MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1355/H46-27

25 September 2019

1355th meeting, 23-25 September 2019 (DH) Human rights   H46-27 Oleksandr Volkov group v. Ukraine (Application No. 21722/11) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2019)714, DH-DD(2019)875, H/Exec(2017)1, CM/Del/Dec(2018)1318/H46-28

 

 

Application	Case	Judgment of	Final on	Indicator for the classification
21722/11	OLEKSANDR VOLKOV	09/01/2013 06/02/2018	27/05/2013 06/05/2018	Complex problem
5114/09+	KULYKOV AND OTHERS	19/01/2017	19/04/2017
48553/99	SOVTRANSAVTO HOLDING	25/07/2002 02/10/2003	06/11/2002 24/03/2004
76639/11	DENISOV	25/09/2018	Grand Chamber

Case description

This group of cases concerns a number of issues related to the independence and impartiality of the judiciary.  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 regarding both individual and general measures.

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’ judicial discipline 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 Denisov case concerns the dismissal of a judge from the position of a president of the court of appeal in violation of the principles of independence and impartiality under Article 6 § 1, and the lack of appropriate and sufficient review in that respect.

The Sovtransavto Holding case concerns the impartiality of the court, which was tainted by the interventions of the executive branch of the State in the court proceedings. This case also concerns the issue of arbitrary deprivation of a bona fide owner of his possessions (violation of Article 1 of Protocol No. 1).

Status of execution

In response to the Committee’s decision adopted at its 1318^th meeting (June 2018) (DH), the authorities submitted an action plan on 21 June 2019 (DH-DD(2019)714) and additional information on 25 June (DH-DD(2019)720), 14 August (DH-DD(2019)875) and 19 August 2019 (DH-DD(2019)880), a summary of which is set out below.

Individual measures:

a) Just satisfaction: The just satisfaction awarded by the Court in respect of pecuniary and non-pecuniary damage was paid in all cases of the group.

b) Restitutio in integrum: It is recalled that, in February 2015, the Supreme Court, based on the decision of the Verkhovna Rada, reinstated the applicant Oleksandr Volkov to his post.

In the Kulykov and Others case, all the applicants requested the reopening of the impugned dismissal proceedings. The Supreme Court, in reasoned decisions, reviewed the dismissal proceedings of 17 judges and sent their cases to the Higher Council of Justice (“the HCJ”) in order for the grounds for disciplinary proceedings to be examined in accordance with the newly-introduced mechanisms. One case is still pending examination before the Supreme Court. Following the examination by the HCJ, six judges were reinstated at their posts. 11 cases are still pending.

In the Denisov case, the applicant requested the review of the dismissal proceedings. On 24 January 2019, the Grand Chamber of the Supreme Court quashed the decision of 2011 and remitted the case for a fresh examination to the Administrative Court of Cassation. The proceedings are still pending.

In the Sovtransavto Holding case, in the course of reopened proceedings, on 20 May 2005 the Commercial Court of Lugansk region awarded additional damages to the applicant company. This decision was upheld by the court of appeal and the court of cassation.

Generalmeasures:

The Ukrainian authorities have previously undertaken substantial legislative and institutional reforms in the systems of judicial discipline and careersto respond to the violations found by the Court which have been noted with satisfaction by the Committee. These include changes to the Constitution and the adoption of two major laws dealing with the functioning of the judiciary (see H/Exec(2017)1, DH-DD(2018)275,
DH-DD(2018)437 for full details).

At its last examination of this group of cases at its 1318^th meeting (June 2018) DH, the Committee noted with satisfaction the progress achieved on issues concerning judicial discipline and careers. It also welcomed the fact that the High Council of Justice, its Disciplinary Chambers and the new Supreme Court had become fully operational, and their consistent and Convention-compliant practice in the application of disciplinary sanctions to judges.

It invited the authorities to provide information on implementation of the measures related to the appeal procedure against decisions on the careers or promotions of judges; as well as on appeals by judges against their dismissal by Parliament in the transitional period pending the introduction of the constitutional amendments. It also encouraged the authorities to complete rapidly those proceedings.

1. Appeal procedure against decisions on the careers or promotion of judges

As a result of the recent broad judicial reform, the Higher Qualification Commission of Judges (“the Commission”) adopts decisions to confirm a judge’s capacity to administer justice following a qualification assessment with a view to promotion or transfer to another court. The Commission’s decision is a ground for the submission of a recommendation to the HCJ to dismiss the judge. The HCJ may reject the recommendation of the Commission on a number of procedural grounds.

Both the decision of the Commission and of the HCJ may be challenged before the Supreme Court:

-       under a simplified procedure before the Administrative Court of Cassation within the Supreme Court (as a court of first instance) and then

-       before the Grand Chamber of the Supreme Court (as a court of appeal).[1]

The decisions of the Disciplinary Chamber of the HCJ in disciplinary proceedings against a judge may also be challenged before the whole composition of the HCJ at first instance, and then on appeal before the Grand Chamber of the Supreme Court.

The authorities provided examples of judicial practice concerning appeal procedures for decisions on careers or promotions of judges. According to the authorities, these examples demonstrate that the HCJ has a unified approach to the assessment of the grounds and gravity of the disciplinary offences. The Supreme Court also examines these appeals in accordance with the Convention.

2.     Appointment and dismissal of judges from administrative positions

The president and deputy president(s) of a court are elected to their administrative positions by the judges of that court at their meetings. The decisions are not subject to judicial review. Instead they can be reviewed by the bodies of judicial self-governance, i.e. by another meeting of the judges of the same court.

Judges may be relieved early from their administrative positions (of president or deputy president) in cases prescribed by law on the initiative of the judges of the same court by a secret vote.[2]

3.     Dismissal of the judges by the Parliament in the transitional period

The Committee previously requested information about the cases of 29 judges who were dismissed by the Verkhovna Rada on 29 September 2016 before the Constitutional amendments took effect.[3] Two of those judges did not request the reopening of the impugned proceedings. In 12 cases, the decisions of the Parliament on the judges’ dismissals were quashed following judicial review.

In 11 cases the dismissals were upheld. The remaining cases are pending examination before the Supreme Court. According to the authorities, this treatment of the sample of 29 cases shows that the practice of the HCJ and the Supreme Court is coherent and Convention-compliant.

4.     Awareness raising measures

The authorities provided information on the publication and dissemination of the judgments, as well as on training activities for newly appointed judges to the Supreme Court conducted in cooperation with Council of Europe.

5.     General measures in response to Sovtransavto Holding case

The general measures in the case of Sovtransavto should ensure full respect of the independence of the judiciary, by ensuring prevention and elimination of any influence of the executive or legislative authorities or by private persons over judges. The supervisory review or"protest" procedure, allowing the quashing of final judicial decisions without any time-limitations and based on unlimited discretion of the authorities, was repealed in 2001.

In the final resolution of 2018 in the cases of Salov, Belukha and Feldman[4], part of the present group of cases, the Committee indicated that the general measures taken by the authorities, notably measures regarding prevention and elimination of any influence by the executive or legislative authorities or by private persons over judges, appear to be capable of preventing similar. The authorities consider that those same measures will similarly prevent similar violations as found in the Sovtransavto case.

Furthermore, in the Interim Resolution in the Sovtransavto Holding case (ResDH(2004)14), the Committee welcomed the above-mentioned abolition of the procedure for supervisory review (protest), which was one of the main structural problems and the root cause of the violations found.

NGO submission:

On 2 August 2019, the Kharkiv Human Rights Protection Group (the “KHGP”) made a submission under Rule 9.2 concerning general measures (DH-DD(2019)873). They acknowledged the progress made in the execution of judgments in the Oleksandr Volkov group. Nevertheless, they consider that the HCJ does not comply with the time-limits in examining cases concerning disciplinary liability of judges. In order to avoid delays (which may then lead to the time-barring of disciplinary complaints), they propose to introduce time-limits for the preliminary stage of such proceedings, when a member of the HCJ is screening a disciplinary complaint. They also propose introducing responsibility for the members of the HCJ for non-compliance with the time-limits. They raise concerns, without providing further details, that the grounds for dismissal on disciplinary grounds were not set out in law with sufficient clarity and that the appeal mechanism in the disciplinary proceedings was restrictive towards interested parties other than judges.

In response, the Ukrainian authorities indicate that these NGO recommendations were translated and will be disseminated among the authorities concerned, and that similar points are already being considered by the HCJ. The authorities also indicate that the level of public confidence in the judiciary has increased, and provided relevant statistical data.

Analysis by the Secretariat

Individual measures:

The only outstanding issue is related to the reopened dismissal proceedings in the cases of Kulykov and Others and Denisov.

As regards Kulykov and Others, significant progress in the examination of these cases has been achieved. In only one case are proceedings still pending at the stage of appeal before the Supreme Court. In the other cases, the judges were either reinstated or the proceedings were sent to the HCJ for re-examination. Given that the original decisions on the dismissal of judges were adopted between 2007 and 2012 and that the proceedings in most of these cases have been pending since 2010 before various judicial instances, it is essential that the authorities complete these proceedings as soon as possible and inform the Committee of their outcome, providing relevant details of the decisions and the decisions themselves. Updated information is also expected on the outcome of the reopened dismissal proceedings in the Denisov case.

As to the Sovtransavto case, supervision of this case can be closed given that the just satisfaction (for both pecuniary and non-pecuniary damages) has been paid to the applicant company in full. Additionally, as a result of the renewed proceedings, which followed the judgment of the Court, the national courts awarded the applicant company compensation for loss of ownership over the company’s shares.

General measures:

It is clear that issues of disciplinary liability and the careers of judges, and more broadly the independence of the judiciary and increasing trust in the work of the judiciary, are indeed a matter of high concern of the authorities. The developments in this group of cases are also being followed closely by civil society – information on this issue was included in the Annual report “On the state of independence of judges for 2018” by the HCJ.[5]

The progress achieved so far has been positively acknowledged not only by the Committee but also by the Council of Europe in its Assessment of the 2014-2018 judicial reform in Ukraine and its compliance with the standards and recommendations of the Council of Europe.[6]

More information is needed to make sure that the introduced mechanisms and safeguards are applied correctly and coherently and that the different institutions are working in synergy.

1.     Appeal procedure against decisions on the careers or promotion of judges

The current legislative framework allows appeals against decisions on appointment, on transfers of judges as well as against decisions adopted in the course of disciplinary proceedings.[7] The scope of appeal to the Supreme Court in disciplinary proceedings, as provided for by law, is limited to formal grounds only and does not allow a review of the merits of a decision of the HCJ. The Grand Chamber of the Supreme Court, when quashing the decision of the HCJ, does not automatically restore the status of a judge, but orders a qualification reassessment or disciplinary proceedings to be reconsidered in a rectified procedure. Additionally, appeals against HCJ chambers are examined by the full composition of the HCJ, having “full jurisdiction” over the matter,[8] with a possibility of appeal to the Supreme Court. The practice of the Supreme Court appears to be consistent and Convention-compliant which should be welcomed. Nevertheless, further information is necessary as regards the practice of the HCJ in the subsequent proceedings following the quashing of the impugned decisions by the Supreme Court. The authorities should be invited to provide information on the application of the scale of sanctions for individual disciplinary offences and on the practice of the HCJ regarding limitation periods for disciplinary responsibility.

More information should also be requested from the authorities as to how the HCJ ensures that the preliminary examination in the course of disciplinary proceedings progresses rapidly and their views as to whether the introduction of time-limits, as raised by civil society, would speed up such proceedings.

2.     Alignment of disciplinary sanctions of a judge with other possible areas of judicial liability

The issue of harmonisation of legislation, prosecutorial and judicial practice regarding disciplinary sanctions and other possible areas of judicial liability was already raised as an outstanding issue in the examination of the cases by the Committee in March 2017.[9]

As indicated by the Group of States Against Corruption (the GRECO) in its Evaluation Report on Ukraine, there is “one specific threat on judges’ independence namely the use by prosecutors of certain criminal offences - in particular “Delivering of a knowingly unfair sentence, judgment, ruling or order by a judge (Article 375 C C)” [10].

This provision could be used as a means of pressure against judges.[11] Other Council of Europe bodies[12] and international organisations[13] have also expressed their concerns.

The HCJ itself reported that this constitutes a threat to judicial independence, referring to the number of cases which are being investigated by the authorities and which were finalised with an indictment or conviction.[14] It should be noted in this respect that while prosecution of judges for intentional acts connected with the performance of their functions is not necessarily inconsistent with the requirement of independence under Article 6 of the Convention, it is vital that the definitions of the offences and their application exclude any possible encroachment on the independence of judiciary.[15]

Such prosecutorial practice is also contrary to the Constitution, which indicates that a judge cannot be held liable for adopting a judicial decision, with the exception of a situation where it led to commission of a crime or a disciplinary offence.[16]

The authorities should therefore be called upon by the Committee to adopt measures to guarantee respect and protection of the independence and impartiality of judges, either by repealing Article 375 of the Criminal Code or by introducing amendments to it, ensuring that it only criminalises abuse of judicial office, notably, the deliberate miscarriage of justice. Such a modification should prevent any possible undue influence and pressure on judges in connection with their decision-making by law enforcement agencies.

3.     Dismissal of judges in the transitional period

Progress has been made in the re-examination of grounds for the dismissal of the judges in the transitional period. Only five cases are still pending examination before the Supreme Court. Given that the proceedings in most of these cases have been pending since September 2016 before various judicial instances, the authorities should be invited once again to take any measures to ensure that these proceedings are completed rapidly and inform the Committee as to the outcome of the proceedings in these cases.

4.     Measures taken by the authorities with regard to case of Sovtransavto Holding

The concerns identified in the Sovtransavto Holding case have been addressed and the general measures taken by the authorities appear to be capable of preventing similar violations. The remaining issues under Article 1 to Protocol No. 1 will continue to be examined in the context of Ukraine-Tyumen group of cases (no. 22603/02). 

Financing assured: YES