Communicated on 5 July 2019

FIFTH SECTION

Application no. 47052/18 Anatoliy Sergiyovych GOLOVIN against Ukraine lodged on 23 September 2018

STATEMENT OF FACTS

1. The applicant, Mr Anatoliy Sergiyovych Golovin , is a Ukrainian national, who was born in 1952 and lives in Kyiv. He is represented before the Court by Ms O.Y. Lyoshenko , a lawyer practising in Kyiv.

2. On 28 June 1996 Parliament ( Verkhovna Rada ) of Ukraine enacted the Constitution of Ukraine. In December 2004 it introduced amendments to the Constitution which, among other things, increased the parliamentary features of the political system and diminished the powers of the President.

3. In August 2006 Parliament appointed the applicant to the post of judge of the Constitutional Court of Ukraine (“the Constitutional Court”).

4. On 30 September 2010 the Constitutional Court, following the application by members of parliament lodged in July 2010, adopted a judgment declaring unconstitutional the 2004 amendments to the Constitution after finding that they had been enacted in breach of proper procedure. The Constitutional Court declared that these amendments were invalid with effect from the date of its judgment, and the force of the previous version of the Constitution was consequently restored.

5. On 21 February 2014 Parliament voted to return to the 2004 Constitution with certain amendments. It also removed the Minister of the Interior from his post.

6. On 22 February 2014 Parliament declared that Mr V. Yanukovych had unconstitutionally abandoned his duties as President. On the same day and on 23 February 2014 Parliament dismissed the Prosecutor General and took a number of further decisions concerning the change of high-ranking officials in the State and the functioning of executive power.

7. On 24 February 2014 Parliament adopted a resolution “On reaction in respect of the “breach of oath” by judges of the Constitutional Court of Ukraine”. By that resolution Parliament, relying on Article 126 of the Constitution, dismissed, for “breach of oath”, the judges of the Constitutional Court who had been appointed under the Parliament ’ s quota (as provided for in Article 148 of the Constitution). It then invited the Acting President of Ukraine and the Council of Judges to take measures to dismiss, for “breach of oath”, the other judges of the Constitutional Court (who had been appointed under the quotas of the President and the Assembly of Judges, respectively). Lastly, it asked the Office of the Prosecutor General to initiate a criminal investigation into the circumstances in which the Constitutional Court had adopted its judgment of 30 September 2010.

8. In its reasons for adopting the above resolution, Parliament stated that on 30 September 2010 the Constitutional Court had amended the Constitution in an unconstitutional manner by appropriating parliamentary powers and that the Constitutional Court had infringed the fundamental constitutional principles of democracy and separation of powers and had changed the constitutional system. In that regard, Parliament referred to the reasoning part of the Constitutional Court ’ s ruling of 5 February 2008 suggesting that the parliamentary Act amending the Constitution “accomplished its function”, having become a part of the Constitution. Parliament further referred to the Venice Commission ’ s opinion of 20 December 2010 “On the constitutional situation in Ukraine”, stating that the Constitutional Court judgment of 30 September 2010 had called into question the legitimacy of the existing State institutions, since the President and the Parliament had been elected under constitutional rules that were no longer recognised as valid, the President, with effect from that judgment, had enjoyed far more powers than could have been foreseen by the voters when he had been elected and, since that judgment, the workings of the main State organs had been based on rules changed by a court and not on rules changed by Parliament as a democratically legitimate body (see paragraph 21 below).

9. By way of providing further reasons for the dismissal resolution, Parliament stated that on 29 May 2013 the Constitutional Court had adopted a judgment which in fact had made it impossible to hold elections in the city of Kyiv and the Ternopil Regional Council until October 2015. Parliament considered that, with that judgment, the judges of the Constitutional Court had violated the citizens ’ rights to elections.

10. Lastly, Parliament stated that on 25 January 2012 the Constitutional Court had adopted a judgment allowing the Cabinet of Ministers to “manually” regulate the level of s ocial payments, despite the fact that the Constitutional Court had earlier adopted contrary decisions on the same subject matter. In that regard Parliament found that the judges of the Constitutional Court had violated the citizens ’ constitutional rights to social security and to an adequate standard of living.

11. Parliament concluded that the judges of the Constitutional Court who had adopted the above judgments had failed in their obligation to ensure the supremacy of the Constitution and to protect the constitutional system and the constitutional rights of citizens and that those failings had not been compatible with the judicial oath and the honest and rigorous performance of duties by a judge of the Constitutional Court.

12. On 27 February 2014 the applicant, relying on the Code of Administrative Justice, lodged a claim with the Higher Administrative Court, challenging his dismissal.

13. On 17 December 2017 the Higher Administrative Court declared unlawful the parliamentary resolution of 24 February 2014 with respect to the dismissal of the applicant. In its decision the Higher Administrative Court referred to international and domestic legal principles concerning the independence of the judiciary and concluded that those principles had not been respected by Parliament. It referred in particular to Section 28 of the Constitutional Court Act specifying that the judges could not be held liable for the results of his votes. It further found that Parliament had failed to follow the procedure for the dismissal of a judge of the Constitutional Court and there had been no indication that the individual liability of the applicant had been established.

14. Parliament lodged an appeal with the Supreme Court.

15. On 14 March 2018 the Supreme Court quashed the judgment of the Higher Administrative Court and dismissed the applicant ’ s claim as unfounded. The Supreme Court found that, in the judgment of 30 September 2010, the Constitutional Court had overstepped its powers as it had in fact invalidated the binding provisions of the Constitution. The Supreme Court considered that in adopting that judgment the Constitutional Court had failed to ensure the supremacy of the Constitution, had changed the Constitution and the constitutional system by violating the fundamental principles of democracy and separation of powers, and had undermined the legitimacy of the State authorities, whose activities had since then been based on rules established by the Constitutional Court and not by Parliament. The Supreme Court concluded that the participation of the applicant in the adoption of that judgment and the consequences of such participation had been manifestly inconsistent with the judicial oath.

16. As regards the Constitutional Court ’ s judgments of 25 January 2012 and 29 May 2013, which were also examined in the impugned parliamentary resolution, the Supreme Court found that those two judgments had been made by the Constitutional Court within the scope of its discretion and the participation of the applicant in their adoption did not constitute a “breach of oath”.

17. With respect to the procedure adopted for the dismissal of the applicant, the Supreme Court found that the Higher Administrative Court ’ s reference to the Rules of the Constitutional Court had been unfounded since those Rules had been an internal document of the Constitutional Court and the latter had not been empowered by the Constitution or the Constitutional Court of Ukraine Act to regulate the procedure for dismissing its own members. By contrast, the applicant had been dismissed in the course of a procedure which had been compatible with the Constitution and the Rules of Parliament.

18. The Supreme Court then reasoned that the Constitutional Court was rather a political than a judicial authority. In that regard the Supreme Court stated that the procedure for appointing judges to the Constitutional Court was of a political nature and the Constitutional Court did not examine concrete legal disputes; its function was to examine constitutionality of legal acts and to provide official interpretation of the Constitution and laws. In these circumstances, the Constitutional Court could not be regarded as a court for the purpose of Article 6 of the Convention. The Supreme Court concluded that Parliament had been entitled to apply measures of political liability to the Constitutional Court judge who had been appointed by Parliament.

19. As provided for by the Constitution, the CCU is the sole body of constitutional jurisdiction in Ukraine. It decides on issues concerning the conformity of laws and other legal acts with the Constitution of Ukraine and provides official interpretation of the Constitution and the laws of Ukraine (Article 147). The Constitutional Court is composed of eighteen judges, of whom six are appointed by the President of Ukraine, six by the Verkhovna Rada of Ukraine (Parliament) and six by the Assembly of Judges of Ukraine. A judge of the CCU is appointed for nine years with no right of re-appointment for a second term (Article 148). Judges of the CCU are bound by the guarantees of independence and immunity and the grounds for dismissal from office listed in Article 126 of the Constitution (Article 149). Under Article 126 of the Constitution, in the event of a “breach of oath” by a judge, he or she will be dismissed from office by the body which elected or appointed him or her.

20. Section 28 of that law provided:

“... Judges of the Constitutional Court of Ukraine shall not be held legally liable for the results of votes conducted or statements expressed in the Constitutional Court of Ukraine and its chambers, except in the case of the liability for insult or defamation expressed in the course of the examination of cases, the adoption of judgments and the pronouncement of conclusions by the Constitutional Court of Ukraine.”

21 . The relevant extract from Opinion no. 599/2010 of 20 December 2010 “On the constitutional situation in Ukraine” adopted by the Venice Commission at its 85th Plenary Session (CDL-AD(2010)044), reads as follows:

“69. The recent constitutional history of Ukraine has involved constant challenges and attempts to find the right balance of powers between the President, the Cabinet and Parliament. It soon became apparent that the text of the 1996 Constitution did not, taking into account realities in Ukraine, provide for sufficient checks and balances and that there was a risk of authoritarian presidential system. The Venice Commission therefore supported, already in 2003, the efforts for constitutional reform. These efforts led to the adoption of the 2004 constitutional amendments. The change brought about by these amendments was welcome, in principle, but neither coherent nor well thought through. The amendments therefore led to increased tension, especially between the President and the Cabinet of Ministers.

70. The reinstatement of the 1996 version of the Constitution by a judgment of the Constitutional Court of Ukraine raises questions of the legitimacy of past actions, as the institutions of Ukraine worked for several years on the basis of constitutional rules later declared unconstitutional. It also raises questions of legitimacy with respect to the present state institutions, since the President and the Parliament were elected under constitutional rules that are no longer recognised as valid. The President of Ukraine, as from this judgment, enjoys far more powers than could be foreseen by the voters when he was elected. The working of the main state organs is now based on rules changed by a court and not on rules changed by the Verkhovna Rada, as a democratically legitimate body.”

22. The relevant extracts from Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities (Adopted by the Committee of Ministers on 17 November 2010 at the 1098th meeting of the Ministers ’ Deputies) provide as follows:

“66. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence. ...

68. The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to criminal liability, except in cases of malice.

69. Disciplinary proceedings may follow where judges fail to carry out their duties in an efficient and proper manner. Such proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the principles of independence and impartiality were not respected; that the right to a reasoned decision was not ensured; that his case was not examined by “a tribunal established by law” given that the authorities dealing with his case overstepped their competence, and that the principle of legal certainty was not respected given that no time-limits existed for imposing liability for “breach of oath”.

2. The applicant complains under Article 8 of the Convention that he was dismissed unlawfully and his right to respect for his private life was violated.

3. The applicant complains under Articles 13 and 18 of the Convention, arguing that he did not have effective remedy against his unlawful dismissal which, in his opinion, had ulterior political motives.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s right to fair trial under Article 6 of the Convention infringed? In particular:

(a) Were the principles of independence and impartiality ensured in the proceedings at issue?

(b) Has there been a violation of the applicant ’ s right to a reasoned decision as protected by Article 6 of the Convention?

(c) What were the scope and the effectiveness of the review of the cases by the Higher Administrative Court and the Supreme Court?

The Government are requested to provide examples of the domestic courts ’ jurisprudence as regards individual measures taken by the courts in this type of case.

(d) Was the applicant ’ s case considered by a “tribunal established by law” as required by Article 6 of the Convention?

(e) Was the principle of legal certainty respected, given the absence of time-limits for imposing liability for a “breach of oath”?

2. Has there been an interference with the applicant ’ s right to respect for his private life within the meaning of Article 8 of the Convention? If so, was the interference in accordance with the law? Did it pursue a legitimate aim? Was it necessary in a democratic society? With respect to the examination of the applicant ’ s complaints, what is the relevance of the situation in the country at the time of the applicant ’ s dismissal?