Communicated on 10 July 2019

FIFTH SECTION

Application no. 11423/19 Vasyl Ivanovych GUMENYUK and others against Ukraine lodged on 28 February 2019

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix.

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. All the applicants were judges of the Supreme Court of Ukraine and had been elected for an indefinite period.

4. 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 (the amendments came into effect on 30 September 2016). According to the new wording of Article 125 § 3 of the Constitution, “the Supreme Court” is the highest court in the Ukrainian judiciary system.

5. Simultaneously with the amendments to the Constitution, Parliament adopted a new law “On Judiciary and Status of Judges” on 2 June 2016 (which came into effect on 30 September 2016). Chapter XII of that law “Final and transitional provisions” provides that a new “Supreme Court” shall be established and that the judges of that court shall be appointed based on the results of the competition (§ 4); judges of the old “Supreme Court of Ukraine” shall have the right to participate in the competition to the new “Supreme Court” (§ 14); the old “Supreme Court of Ukraine” shall cease operating and shall be subject to liquidation in accordance with the procedure established by law (§ 7).

6. On 3 October 2016 “the Supreme Court of Ukraine” challenged in the Constitutional Court the provisions of the law “On Judiciary and Status of Judges” concerning the termination of activity by “the Supreme Court of Ukraine” and the establishment of the new “Supreme Court”. The proceedings are pending.

7. Following the competition, new judges to the Supreme Court were selected and appointed. On 15 December 2017 the new “Supreme Court” started to function.

8. On 21 June 2018 the State registrar introduced information in the State register on legal entities that the old “Supreme Court of Ukraine” was in the process of being liquidated. One of the applicants, acting as President of the old “Supreme Court of Ukraine” challenged that measure however, on 8 November 2018 the Kyiv Administrative Court refused to entertain the claim for lack of the applicant ’ s standing. On 11 March 2019 the Sixth Administrative Court of Appeal upheld that ruling. The proceedings are pending before the Supreme Court.

9. Since July 2018 the payment of salaries to the applicants was stopped.

10. On 20 June 2018 the High Qualification Commission of Ukraine issued recommendations for transferring the applicants to various appellate courts.

11. One of the applicants (Ms G. Kanygina ) lodged a claim against the High Qualification Commission of Ukraine, challenging the recommendation. On 27 August 2018 the Supreme Court, acting as the first ‑ instance court, rejected the claim considering that it was not open to appeal against the recommendation. On 6 February 2019 the Grand Chamber of the Supreme Court upheld that decision.

12 . On 20 and 29 November 2018 the High Council of Justice (the HCJ) dismissed those recommendations finding that the proposed courts had ceased to operate due to the restructuring of the system of appellate courts. According to the applicant, five members of the HCJ at the relevant time were taking part in the competition at the new Supreme Court; another member of the HCJ was the President of the new Supreme Court.

13 . The Constitution provides that a court shall be established, reorganised or liquidated by parliamentary act based on the proposal submitted by the President of Ukraine following consultations with the High Council of Justice (Article 125 § 2).

14 . Transitional provisions of the Constitution provide that, until the implementation of a new administrative territorial structure in Ukraine but no longer than 31 December 2017, the establishment, reorganisation and liquidation of courts shall be carried out by the President of Ukraine in accordance with the law (§ 16-1 (6)).

15. Section 19 § 4 of the Judiciary and Status of Judges Act provides that the grounds for the establishment or liquidation of a court shall be the change of the judicial system, the need to ensure accessibility to a court, optimisation of the budgetary expenses or the change of administrative territorial structure.

16 . According to the Constitution, judges hold their posts for an indefinite term (Article 126 § 5); the grounds for their dismissal include 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)).

COMPLAINTS

1. The applicants complain under Article 6 of the Convention that they did not have access to a court in respect of their allegations of their unlawful removal from exercising judicial function. They further complain that the issue of their attempted transfer to other judicial posts was not considered by an independent and impartial tribunal.

2. The applicants complain under Article 8 of the Convention that their removal from exercising judicial function amounted to an unlawful interference with their right to respect for private life.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ right of access to a court under Article 6 § 1 of the Convention in respect of their allegations of unlawful removal from exercising the judicial function?

2. With regard to the proceedings concerning the applicants ’ attempted transfer to other courts, has there been a violation of right to a fair trial under Article 6 § 1 of the Convention? In particular, did the High Council of Justice (HCJ) comply with the principles of independence and impartiality?

The Government are invited to provide information as regards the participation of the members of the HCJ in the competition to the Supreme Court at the relevant time.

3. Does Article 8 apply to the present case? If so, has there been a violation of the applicants ’ right to respect for their private life, contrary to Article 8 of the Convention? In particular:

(a) Were the measures for the applicants ’ removal from exercising judicial function “in accordance with the law”? Was the domestic procedure for the liquidation of the “Supreme Court of Ukraine” complied with?

(b) What legitimate aim under Article 8 did these measures pursue? Were these measures “necessary in the democratic society”?

APPENDIX

No.

Applicant ’ s Name

Place of residence

1Vasyl Ivanovych GUMENYUK

Kyiv

2Galyna Volodymyrivna KANYGINA

Kyiv

3Lyudmyla Ivanivna OKHRIMCHUK

Kyiv

4Bogdan Mykolayovych POSHVA

Kyiv

5Viktor Fedorovych SHKOLYAROV

Kyiv

6Oleksandr Fedorovych VOLKOV

Kyiv

7Anatoliy Anatoliyovych YEMETS

Kyiv

8Tetyana Yevgenivna ZHAYVORONOK

Kyiv