Legal summary

January 2023

Ovcharenko and Kolos v. Ukraine - 27276/15 and 33692/15

Judgment 12.1.2023 [Section V]

Article 8

Article 8-1

Respect for private life

Constitutional Court judges’ dismissal for participating in a debatable judgment, without clear interpretation of the imputed “breach of oath” and the scope of their functional immunity: violation

Article 6

Civil proceedings

Article 6-1

Fair hearing

Inadequate judicial review of Parliament’s decision to dismiss Constitutional Court judges for “breach of oath” without a clear interpretation of that offence and the scope of their functional immunity: violation

Facts – In late February 2014, mass protests (known as the Ukrainian Revolution of Dignity) culminated in the ousting of Ukraine’s fourth President, Mr Yanukovych. This was followed by a series of changes in Ukraine’s political system, including the formation of a new interim government, the restoration of the previous Constitution and impromptu presidential elections. At that time, the applicants were dismissed from their post of Constitutional judges, through a parliamentary resolution, for “breach of oath” for participating in a judgment rendered by the Constitutional Court in 2010. That judgment had the effect of substantively increasing the powers of the President of Ukraine, Mr Yanukovych at that time. The applicants unsuccessfully challenged their dismissal before the domestic courts. The Supreme Court held, notably, that, by the impugned 2010 judgment, the Constitutional Court had amended the Constitution, while the power to do so was vested in Parliament; it had thus breached the fundamental principles of democracy, separation of powers and legitimacy of the acting institutions of State power.

Law – Article 8:

(a) Applicability – Although the reasons for the applicants’ dismissal had been strictly limited to their exercise of judicial office and had had no connection to their private life, the latter had been affected by their dismissal to a very significant degree. In particular, it had had a serious impact on their inner circle, given the ensuing pecuniary losses, and on their reputation, given that the grounds for the dismissal – “breach of oath” – had directly concerned their personal integrity and professional competence. The impugned measure therefore fell within the scope of Article 8.

(b) Merits – The applicants’ dismissal had constituted an interference with their right to respect for their private life. It had not, however, been lawful for the following reasons.

The Court had already dealt with the “quality of the law” aspect of the lawfulness of sanctions imposed in Ukraine on judges for “breach of oath” in its judgment in the case of Oleksandr Volkov v. Ukraine and had found that the applicable domestic law failed to satisfy the requirements of foreseeability and protection against arbitrariness. Since that judgment, the Court could not discern any legislative change that could be seen as having brought about significantly better foreseeability on the question of what conduct of a judge constituted “breach of oath” under Ukrainian law. Nor had the Government referred to any relevant case-law in this regard.

In particular, the terms of Article 126 of the Constitution, providing for dismissal of a judge in the event of a “breach of oath”, were very general and appeared to allow wide discretion to the domestic authorities. So was the case with section 32 of the High Council of Justice Act (“HCJ”). Section 105 of the new Judiciary Act (adopted in 2010) had not brought any clarity to the content of the said concept either.

The present case, however, differed from Oleksandr Volkov . Firstly, the context was significantly different. Secondly, it concerned Constitutional Court judges, whose the status was defined by specific legislation, namely the Constitutional Court Act. Section 28 of that Act, as in force at the relevant time, established functional immunity for Constitutional Court judges by stating, in particular, that they would not be held legally liable for the results of their votes in that court. It appeared that no clarification had been available at the relevant time in case-law or another authoritative source as to whether that provision provided immunity only from criminal and civil liability or had also been intended to protect against dismissal, limiting the scope of liability of Constitutional Court judges for “breach of oath” under Article 126 of the Constitution and section 32 of the HCJ Act.

However, having regard to the fact that the applicants had been dismissed precisely for the results of their votes, in particular for their judicial opinion expressed in the judgment, the question of how the above provision of the Constitutional Court Act was to be interpreted had been of crucial importance. In such circumstances, a very detailed and clear analysis was normally needed to demonstrate that all relevant arguments were taken into consideration in the application of the Constitution and the law and that the impugned decision was based on a careful interpretation of the relevant legal principles.

No such analysis and reasoning had been provided by Parliament. Moreover, while the High Administrative Court at first instance in the applicants’ cases, had taken the view that the functional immunity under section 28 had prevailed and prevented the applicants’ dismissal on the grounds of “breach of oath”, the Supreme Court had quashed that decision without providing a detailed analysis of the scope of judicial immunity granted by the Constitutional Court Act.

In this regard, the Court emphasised the importance of a clear and foreseeable legal framework concerning judicial immunity and judicial accountability for the purposes of ensuring judicial independence. It considered, more generally, that the liability of a judge for the substance of judicial activity was a highly delicate question which required that a distinction be made between a disputable interpretation or application of the law, on the one hand, and a decision or measure which revealed, for example, a serious and flagrant breach of the law, arbitrariness, a serious distortion of the facts, or an obvious lack of legal basis for a judicial measure, on the other hand. Only the latter conduct might constitute the actus reus of such offences. Furthermore, cases involving the liability of a judge required consideration of the mental element: a good-faith legal error should be distinguished from bad-faith judicial misconduct. Taking note of the relevant principles developed in Recommendation CM/Rec (2010)12 of the Committee of Ministers, the Court considered that, in such cases, it was necessary to carry out a specific analysis of the mens rea of the individual judge to establish the individual mental aspect of such activity.

This held true with regard to Constitutional Court judges who, as observed by the Venice Commission (Opinion 967/2019), should be subject to liability for their judicial opinions in exceptional cases of extreme deviation from the principles and standards of the rule of law and constitutionality. A comparative-law survey suggested the existence of a clear trend among the Member States of the Council of Europe towards common understanding that the grounds for sanctioning Constitutional Court judges must be particularly strict and narrow.

Utmost caution and detailed reasons were particularly crucial for the dismissal of Constitutional Court judges and in circumstances where the decision to dismiss them was taken by Parliament. In the present case, the 2010 judgment for the adoption of which the applicants had been dismissed had been debatable in a constitutional-law dimension. The applicants had been sanctioned for a judicial opinion on a complex legal issue which had also been a matter of serious debate inside and outside Ukraine, notably, before the Parliamentary Assembly of the Council of Europe. The particular context and complexity involved had called for particular caution and solid arguments if the body vested with the power to dismiss Constitutional Court judges, Parliament, considered that the applicants’ votes in the adoption of a judgment on such issues constituted a “breach of oath”.

It was natural that case-law might be scarce, especially in a new democracy like Ukraine, on the question what constituted “breach of oath” by a Constitutional Court judge. Nevertheless, the requirements of legal certainty had to be seen as mandating particularly stringent legal argumentation taking into account all the applicable law and its underlying principles, when applying such a concept as “breach of oath” – untested with regard to Constitutional Court judges until the events complained of. Insufficient clarity of the law on the dismissal of such judges, as well as its application by Parliament and the courts without detailed legal reasoning on, in particular, the constituent elements of “breach of oath” under the applicable law, was difficult to reconcile with the very goal pursued by sanctioning breaches of oath – maintaining confidence in the rule of law. This had also led to an unacceptable situation of legal uncertainty, even more so when it came to the tenure of judges in a court playing a crucial role in maintaining the rule of law and democracy.

In sum, the domestic authorities had used their discretionary powers in a way that had compromised the requirement of lawfulness for the purposes of Article 8. Although the Court was mindful of the particular context at the time in which the applicants had been dismissed, namely massive popular protests and violent events leading to the extraordinary change of State power, that did not justify the failure by the authorities to respect the basic Convention requirements of lawfulness and foreseeability. It had not been shown that Parliament had had to act in extreme urgency as regards that particular matter while, in any event, the reviewing courts had had sufficient time to properly contemplate the applicants’ cases in the course of the subsequent judicial review.

Conclusion : violation (unanimously).

Article 6 § 1: The present case concerned the accountability of two judges before a political body which had not acted as a preliminary authority but exercised conclusive decision-making power resulting in the applicants’ dismissal. As that use of power had not been preconditioned by any assessment of the matter by an independent authority, the ex post judicial review of the case had been of crucial significance in the global assessment of the compatibility of the domestic proceedings with Article 6 § 1.

There was no indication that that law limited in some way the scope of review that the courts could exercise in cases. It had been crucial for the domestic courts to assess whether the applicants had been provided with sufficient guarantees of an independent and impartial examination of their cases and to address all relevant factual and legal issues that had been decisive for the outcome of the case. In particular, the question whether their dismissal had been compatible with the constitutional guarantees of judicial independence, including the question of functional immunity of Constitutional Court judges limiting the scope of their legal liability for the results of their votes as members of the Constitutional Court, had called for an elaborate response. It could not be tacitly discarded and had to be examined in detail, if the judicial review were to be considered “sufficient” for the purposes of the Convention. As this had not been done, the decisions on the applicants’ dismissal could not be considered sufficiently reasoned.

Conclusion : violation (unanimously).

The Court rejected as manifestly ill-founded the applicants’ complaint under Article 18 of the Convention, not being convinced of the existence of an ulterior motive on the part of the authorities.

Article 41: finding of a violation sufficient in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Oleksandr Volkov v. Ukraine , 21722/11, 9 January 2013, Legal Summary ; Shmorgunov and Others v. Ukraine , 15367/14 and 13 others, 21 January 2021, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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