Communicated on 22 February 2016

FIFTH SECTION

Applications nos 27276/15 and 33692/15 Vyacheslav Andriyovych OVCHARENKO against Ukraine and Mykhaylo Ivanovych KOLOS against Ukraine lodged on 20 May 2015 and 2 July 2015 respectively

STATEMENT OF FACTS

1. The applicant in the first case, Mr Vyacheslav Andriyovych Ovcharenko , is a Ukrainian national who was born in 1957 (“the first applicant”). The applicant in the second case, Mr Mykhaylo Ivanovych Kolos , is a Ukrainian national who was born in 1953 (“the second applicant”). Both applicants are rep resented before the Court by Mr A. Bushchenko , a lawyer practising in Kyiv.

A. The circumstances of the case

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

1. Background facts

3. On 28 June 1996 the Verkhovna Rada of Ukraine (Parliament) adopted the Constitution of Ukraine.

4. In December 2004 it introduced amendments to the Constitution which, among other things, increased the parliamentary features of the political system and weakened the powers of the President.

5. In August 2006 Parliament appointed the applicants to the posts of judges of the Constitutional Court of Ukraine (“the CCU”).

6. In February 2010 Mr V. Yanukovych was elected President of Ukraine.

7. On 30 September 2010 the CCU adopted a judgment declaring unconstitutional the 2004 amendments to the Constitution after finding that they had been adopted in breach of proper procedure. The CCU declared that these amendments were invalid with effect from the date of its judgment, and the effect of the previous version of the Constitution was consequently restored.

2. Events of November 2013-February 2014 and change of power in Ukraine [1]

8. In late November 2013 anti-government demonstrations commenced in Kyiv and then spread to other cities in Ukraine. By late February 2014 the demonstrations had escalated to serious clashes between protesters and law-enforcement authorities.

9. On 21 February 2014, Parliament voted to return to the 2004 Constitution. It also suspended the Minister of the Interior.

10. 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.

11. 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 dismissed, for “breach of oath”, the judges of the CCU who had been appointed under the Parliament ’ s quota (as provided for in Article 148 of the Constitution (see paragraph 26 below)); it 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 CCU (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 CCU had adopted its judgment of 30 September 2010.

12. In its reasons for adopting the above resolution, Parliament stated that on 30 September 2010 the CCU had amended the Constitution in an unconstitutional manner by appropriating parliamentary powers and that the CCU 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 Venice Commission ’ s opinion of 20 December 2010 “On the constitutional situation in Ukraine”, which stated that the CCU judgment of 30 September 2010 questioned 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, enjoyed far more powers than could have been foreseen by the voters when he was elected and, since that judgment, the working 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.

13. By way of providing further reasons for the dismissal resolution, Parliament stated that on 29 May 2013 the CCU had adopted a judgment which in fact 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 CCU had violated the citizens ’ rights to elections.

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

15. Parliament concluded that the judges of the CCU who 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 were not compatible with the judicial oath and the honest and rigorous performance of duties by a judge of the CCU.

3. Proceedings instituted by the first applicant

16. On 27 February 2014 the first applicant, relying on the Code of Administrative Justice, lodged a claim with the Higher Administrative Court (the “HAC”) challenging his dismissal.

17. On 18 June 2014 the HAC declared unlawful the parliamentary resolution of 24 February 2014 with respect to the dismissal of the first applicant. It found that Parliament had failed to follow the procedure for the dismissal of a judge of the CCU. In particular, the Rules of the CCU provided for a procedure requiring preliminary consideration of the case by the CCU itself, but that procedure had not been applied. Neither had the procedure under the Rules of Parliament been applied correctly. In its decision, the HAC referred to international legal principles concerning the independence of the judiciary and concluded that those principles had not been respected by Parliament.

18. Parliament lodged an application for review of the case with the Supreme Court.

19. On 2 December 2014 the Supreme Court quashed the judgment of the HAC and dismissed the first applicant ’ s claims as unfounded. The Supreme Court found that, in the judgment of 30 September 2010, the CCU 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 CCU 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 CCU and not by Parliament. The Supreme Court concluded that the participation of the first applicant in the adoption of that judgment and the consequences of such participation had been manifestly inconsistent with the judicial oath and had amounted to a breach thereof.

20. As regards the CCU ’ 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 CCU within the scope of its discretion and the participation of the first applicant in their adoption did not constitute a “breach of oath”.

21. With respect to the procedure adopted for the dismissal of the first applicant, the Supreme Court found that the HAC ’ s reference to the Rules of the CCU was unfounded since those Rules were an internal document of the CCU and the latter had not been empowered by the Constitution or the Law “On the Constitutional Court of Ukraine” to regulate the procedure for dismissing its own members. By contrast, the Constitution and the Rules of Parliament provided for the relevant procedure, which had been complied with.

4. Proceedings instituted by the second applicant

22. On 5 March 2014 the second applicant, relying on the Code of Administrative Justice, lodged a claim with the HAC challenging his dismissal.

23. On 26 January 2015 the HAC dismissed the claim, referring to the legal position of the Supreme Court as laid down in its decision of 2 December 2014 in the case of the first applicant.

24. The second applicant lodged an application for review of the case with the Supreme Court, arguing among other things that the judgment of 30 September 2010 adopted by the CCU could not constitute grounds for his dismissal, that Parliament had in fact reviewed the findings of the CCU without having had powers to do so, and that he could not be held liable for the judgment for which he had voted as a member of the CCU.

25. On 28 April 2015 the Supreme Court upheld the decision of 26 January 2015, repeating the reasoning that it had given in the case of the first applicant.

B. Relevant domestic law

1. Constitution of 28 June 1996

26. 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.

2. Code of Administrative Justice of 6 July 2005

27. Under Article 161 of the Code, when the administrative court, decides a case, it must determine, among other things, (1) whether the circumstances referred to in the claim and in the objections actually occurred and what evidence substantiates the occurrence of these circumstances, (2) whether there is any other factual information relevant to the case and evidence to support that information, and (3) which legal provision is to be applied to the legal relations in dispute.

28. Article 162 of the Code provides that , should it find a claim substantiated, the administrative court may, among other things, declare the impugned decision, action or omission unlawful, overturn or invalidate the decision in question, oblige the defendant to undertake or to abstain from taking certain actions, or order the defendant to make payments. The administrative court may also take other decisions to ensure the protection of human and citizens ’ rights, and the rights and interests of other subjects of public-law relationships.

29. Article 171-1 of the Code provides, among other things, that acts, actions or omissions of Parliament may be challenged before the HAC. After considering the case, the HAC may: (1) declare the act of the Parliament unlawful in full or in part; (2) declare the actions or omission of Parliament unlawful and oblige it to take certain actions. On 8 April 2014 that Article of the Code was amended to provide that in this type of case the HAC may also take further measures which are set out in Article 162 of the Code.

30. On 14 March 2014 the above Article of the Code was amended to provide that in such cases the judgment of the HAC only enters into force after being reviewed by the Supreme Court or after the expiry of the time-limit for applying for such a review.

3. Criminal Code of 5 April 2001

31. Article 375 of the Code provides (as worded at the relevant time):

“1. The adoption by a judge (or judges) of a knowingly wrongful conviction, judgment, decision or resolution – shall be punishable by restriction of liberty for up to five years or by imprisonment from two to five years.

2. The same acts, if they resulted in serious consequences or were committed for financial gain or for other personal interest – shall be punishable by imprisonment from five to eight years.”

4. The Law “On the Constitutional Court of Ukraine” of 16 October 1996

32. Section 28 of that law provides:

“... 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.”

C. Council of Europe material

33. 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.”

34. 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

35. The applicants complain under Article 6 § 1 of the Convention that the principles of independence and impartiality were not respected; that the proper procedure was not followed and they were not permitted to effectively participate in the examination of their dismissal; that the right to a reasoned decision was not ensured; that their cases were not examined by “a tribunal established by law” and that the principle of legal certainty was not respected given that no time-limits existed for imposing liability for “breach of oath”.

36. The applicants complain under Article 8 of the Convention that they were dismissed unlawfully and their right to respect for their private life was violated. The applicants complain under Articles 8 and 18 of the Convention that their dismissal had a purpose other than that stated by the authorities, and that the action was in fact aimed at justifying the amendment of the Constitution by way of a simplified procedure, punishing judges for their views, and showing them that their professional views may be used as a basis for their disciplinary liability.

QUESTIONS TO THE PARTIES

1. Were the applicants ’ rights 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 ) Were the applicants provided with a proper procedure for their dismissal that ensured their effective participation in the examination of their cases?

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

(d) 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.

(e) Were the applicants ’ cases considered by a “tribunal established by law” as required by Article 6 of the Convention?

(f) 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 applicants ’ rights to respect for their private life within the meaning of Article 8 of the Convention? If so, was the interference established in accordance with the law? Did it pursue a legitimate aim? Was it necessary in a democratic society? Do the facts of the case give rise to a violation of Article 8 of the Convention in conjunction with Article 18? With respect to the examination of the applicants ’ complaints, w hat is the relevance of the situation in the country at the time of the applicants ’ dismissal?

The Government are requested to provide documents concerning formalisation of the dismissal of the applicants (including internal orders by the Constitutional Court and supporting documents).

[1] . More details on these events can be found in the Report of 31 March 2015 on review of the Maidan Investigations prepared by the International Advisory Panel established by the Secretary General of the Council of Europe in April 2014 ( http://www.coe.int/en/web/kyiv/report-on-maidan-investigations ).