CASE OF KULYKOV AND OTHERS v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev
5. The applicants were domestic court judges. Proceedings were brought against them, resulting in their dismissal from the post of judge. The facts giving rise to their dismissals were established by the High Council of Justice (Вища рада юстиції, hereinafter “the HCJ”). The HCJ’s decisions were submitted to Parliament or to the President of Ukraine (depending on which of those authorities had appointed the applicants to the post of judge) for the final decisions on their dismissals. 6. The applicants further unsuccessfully challenged their dismissals before the Higher Administrative Court (“the HAC”) or other courts. 7. On 4 February 2004 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had ignored the instructions given to him by the chairman and deputy chairman of his court. In addition, the applicant had unlawfully instituted criminal proceedings against the chairman of the court. The HCJ further noted that the applicant had disregarded the internal rules of the court, his professional competence had not improved and he had had communication difficulties with colleagues from the court. It rejected the applicant’s contentions that the dismissal proposal had not been based on the real facts and that the chairman of the court had been biased against him and had interfered with the applicant’s professional activity. The HCJ concluded that the applicant had not fairly and duly performed his duties and had to be dismissed. 8. On 22 May 2008 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 9. The applicant challenged the HCJ’s decision concerning his dismissal before the courts. 10. On 13 July 2007 the Shevchenkivskyy District Court of Kyiv rejected the applicant’s claim as unsubstantiated. 11. On 26 October 2010 the Kyiv Administrative Court of Appeal upheld the judgment. 12. On 2 November 2010 the applicant unsuccessfully applied to the court of appeal for a copy of the decision of 26 October 2010. 13. On 17 and 19 November 2010 the applicant lodged cassation appeals against that decision with the HAC. He was not informed about the outcome of the proceedings before the HAC. 14. On 22 April 2009 the applicant challenged the parliamentary resolution of 22 May 2008 before the Kyiv Administrative Court. 15. On 13 October 2009 the court suspended the proceedings pending the outcome of the proceedings concerning the lawfulness of the HCJ’s decision. 16. On 16 August 2012 the court decided to leave the applicant’s claim without consideration on the merits. 17. On 7 June 2010 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to the President of Ukraine to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant, acting as a first-instance judge, had disregarded the rules governing territorial jurisdiction in a case concerning a labour dispute in a State company. It further found that he had violated the rules governing the interim measures in that case. Substantial damage to the State had been caused as a result of the interim measure ordered. 18. On 6 July 2010 the President of Ukraine issued a decree dismissing the applicant from the post of judge on grounds of “breach of oath”. 19. The applicant instituted proceedings in the HAC challenging the HCJ’s decision and the Presidential decree concerning his dismissal. 20. On 28 July 2010 the HAC upheld the factual findings and legal assessments of the HCJ in the applicant’s case and dismissed the claims as unsubstantiated. 21. On 17 May 2010 the HCJ established that the applicant had breached the judicial oath. It adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had systematically made procedural mistakes when administering justice, had adopted decisions in breach of domestic law and had wrongly applied interim measures. The HCJ also considered that the applicant had incurred expenses which were manifestly incommensurate with his official income. The HCJ concluded that the facts of the case suggested that the applicant had dishonoured the judicial profession and cast doubt on his objectivity and impartiality. Objections raised by the applicant were rejected as unsubstantiated. 22. On 3 June 2010 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 23. The applicant instituted proceedings in the HAC challenging the HCJ’s decisions and the parliamentary resolution concerning his dismissal. 24. On 13 August 2010 the HAC rejected the applicant’s claims as unsubstantiated. 25. On 11 June 2009 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful and unsubstantiated decisions and had failed to follow procedural rules when administering justice. Objections raised by the applicant were rejected as unsubstantiated. 26. On 3 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 27. The applicant instituted proceedings against Parliament challenging his dismissal before the HAC. In his claim he also argued that the conclusions of the HCJ were unfounded and unlawful; there had been violations in the proceedings before the HCJ. The HCJ joined the proceedings as a third party. 28. On 18 August 2010 the HAC rejected the applicant’s claims as unsubstantiated. It found that the HCJ’s conclusions were well-founded and that the decisions of the HCJ and Parliament were lawful. 29. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It adopted three decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted a number of unlawful and unsubstantiated decisions and that she had failed to follow procedural rules when administering justice. The HCJ considered that the applicant’s procedural mistakes had dishonoured the judicial profession, cast doubt on her objectivity and impartiality, and suggested that she had to be dismissed. Objections raised by the applicant were rejected as unsubstantiated. 30. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 31. The applicant instituted proceedings in the HAC challenging one of the HCJ’s decisions of 26 May 2010 and the parliamentary resolution concerning her dismissal. 32. On 23 September 2010 the HAC considered the case. It found that the HCJ’s decision was lawful and substantiated. As to the other two decisions taken on the same day by the HCJ, the HAC noted that the applicant had not challenged them. The HAC concluded that there were no grounds to examine the lawfulness of the HCJ’s other decisions. The HAC further found that the applicant’s right to participate in the plenary session of Parliament had not been respected and declared the parliamentary resolution in respect of the applicant unlawful. 33. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ’s decisions of 26 May 2010) and adopted a resolution to that effect. 34. The applicant instituted proceedings in the HAC challenging the second resolution of Parliament. 35. On 31 May 2011 the HAC rejected the claim as unsubstantiated. It found that the procedure for the applicant’s dismissal in Parliament and the resolution to that effect were lawful. 36. On 7 June 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to the President of Ukraine to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied an interim measure in a case where the Ministry of Justice had been the defendant. It concluded that the violation had cast doubt on the applicant’s objectivity and impartiality, and suggested that he had not duly performed his duties and had dishonoured the judicial profession. 37. On 18 June 2010 the applicant was dismissed by decree of the President of Ukraine. 38. The applicant challenged his dismissal before the HAC. 39. On 27 January 2011 the HAC found that the HCJ’s decision was unlawful. It then noted that the applicant had not sought to have the presidential decree concerning his dismissal “declared unlawful” but had sought the “quashing” of that decree. However, such a measure was outside the competence of the HAC. In that regard the HAC referred to Article 11 of the Code of Administrative Justice (“the CAJ”) considering that it was prevented by that provision from examining the case beyond the scope of the claims. 40. On 18 March 2014 the Acting President of Ukraine reversed the Presidential decree of 18 June 2010 concerning the applicant’s dismissal, having regard to the HAC’s decision of 27 June 2011. 41. On 19 March 2014 the applicant resumed his office of judge. 42. On 6 December 2010 the HCJ established that the applicant had breached the judicial oath. It adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had violated procedural rules when administering justice and that he had interfered with the activities of the law-enforcement authorities when they carried out a search operation. Those violations had cast doubt on the applicant’s objectivity and impartiality, and suggested that he had not performed his duties properly. The HCJ rejected the applicant’s contentions challenging the dismissal proposal. 43. On 23 December 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 44. The applicant challenged the decisions of the HCJ and Parliament concerning his dismissal before the HAC. 45. On 6 April 2011 the HAC rejected the applicant’s claims as unsubstantiated. According to the applicant, on that day the HAC delivered only the introductory and operative parts of the decision. 46. On 5 May 2011 the HAC dispatched a copy of the full text of the decision to the applicant. Allegedly, the applicant received that letter on 7 May 2011. 47. On 1 March 2011 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful and unfounded decisions, had wrongly applied an interim measure, and had committed procedural errors when administering justice. The HCJ considered that those violations had cast doubt on the applicant’s objectivity, impartiality and independence; they also suggested that she had ignored requirements of domestic law and had failed to perform her duties properly. The HCJ rejected objections raised by the applicant as unfounded. 48. The applicant challenged the HCJ’s decision before the HAC. 49. On 2 June 2011 the HAC rejected the applicant’s claim as unsubstantiated. 50. On 7 July 2011 a draft parliamentary resolution concerning the applicant’s dismissal was not adopted by a majority vote in Parliament. 51. On 3 November 2011 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 52. On 17 May 2012 the HAC rejected as unfounded the applicant’s claim against the HCJ and Parliament concerning her dismissal, noting in particular that the HCJ decision of 1 March 2011 had been earlier reviewed by the HAC. The HAC further found no violations in the parliamentary procedure for the applicant’s dismissal. 53. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had participated, as a presiding judge, in the consideration of a case in which Judge V., a relative of his, had been a third party. The consideration of that case had resulted in a wrong decision, which had been quashed by a higher court. The HCJ further noted that the applicant had concealed the fact that he and Judge V. were related. The HCJ considered that those facts had cast doubt on the applicant’s objectivity and impartiality; they suggested that he had dishonoured the judicial profession, neglected the ethical rules of judicial conduct, and failed to carry out his duties properly. The HCJ rejected objections raised by the applicant as unfounded. 54. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 55. The applicant instituted proceedings in the HAC challenging the resolution of Parliament and arguing that the conclusions of the HCJ were unfounded and unlawful. 56. On 15 September 2010 the HAC considered the case. It noted that the applicant had not challenged the HCJ’s decision as such; nor had he indicated the HCJ as a party to the proceedings. The HAC concluded that there were no grounds to examine the lawfulness of the HCJ’s decision in respect of the applicant. It further found that the applicant’s right to participate in the parliamentary procedure had not been respected and declared the parliamentary resolution concerning the applicant unlawful. 57. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ’s decision of 26 May 2010) and adopted a resolution to that effect. 58. The applicant instituted proceedings in the HAC, challenging the second resolution of Parliament. He claimed that the conclusions of the HCJ were unfounded and unlawful, and that there had been violations in the proceedings before the HCJ. He requested that the HCJ be admitted to the case as a third party. 59. On 5 July 2011 the HAC considered the case and rejected the claim as unsubstantiated. It noted that the applicant had not challenged the HCJ’s decision as such and found that there were no grounds to review its findings. The HAC further found that the procedure for the applicant’s dismissal in Parliament and the resolution to that effect were lawful. 60. On 6 December 2010 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied domestic law in land and administrative cases and had not followed procedural rules when dealing with those cases. It concluded that those violations had cast doubt on the applicant’s objectivity and impartiality; they suggested that he had failed to carry out his duties properly and had dishonoured the judicial profession. Objections raised by the applicant were dismissed as unfounded. 61. On 21 April 2011 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 62. On 19 May 2011 the applicant applied to the HAC challenging the HCJ’s decision and the parliamentary resolution concerning his dismissal. He also claimed that he had missed the deadline for challenging the HCJ decision because of the serious illness of his child. 63. On 21 June 2011 the HAC left the applicant’s claim against the HCJ without consideration, finding that the applicant had missed the deadline for challenging the HCJ decision without a valid reason. 64. On 21 July 2011 the HAC dismissed the applicant’s claim against the parliamentary resolution as unsubstantiated. It noted in particular that the applicant had been informed of the plenary meeting of Parliament and that his failure to appear did not give grounds for declaring the parliamentary resolution unlawful. 65. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ found that the applicant had failed to follow procedural rules when administering justice in a corporate dispute and had adopted an unlawful decision in that case. It considered that those violations suggested that the applicant had dishonoured the judicial profession and had not acted diligently and impartially. Objections raised by the applicant were dismissed as unfounded. 66. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect. 67. The applicant instituted proceedings in the HAC challenging the HCJ’s decision and the resolution of Parliament. 68. On 18 August 2010 the HAC found that the decision of the HCJ was lawful. As to the proceedings in Parliament, the HAC found that the applicant’s right to participate in the parliamentary procedure had not been respected and declared the parliamentary resolution in respect of the applicant unlawful. 69. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ’s decision of 26 May 2010) and adopted a resolution to that effect. 70. The applicant instituted proceedings in the HAC challenging the second resolution of Parliament. At the applicant’s request, the HCJ joined the case as a third party. 71. On 28 September 2011 the HAC considered the case and rejected the claim as unfounded. It noted that the HCJ’s decision of 26 May 2010 had been earlier reviewed by the HAC. It then found that the procedure for the applicant’s dismissal in Parliament and the resolution to that effect were lawful. 72. On 14 June 2011 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful decisions and had committed procedural errors when administering justice. It considered that his errors had cast doubt on his objectivity, impartiality and independence, and suggested that he had not performed his duties properly. 73. On 22 September 2011 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 74. On 4 October 2011 the HAC dismissed a claim brought by the applicant concerning the alleged unlawfulness of the HCJ decision. 75. On 21 February 2007 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have her dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied an interim measure in a corporate dispute by which she had groundlessly interfered with the economic activities of a company; she had also failed to follow procedural rules when administering justice in that case. The HCJ found that those violations suggested that the applicant had not acted lawfully, impartially and independently. Objections raised by the applicant were rejected as unsubstantiated. 76. On 5 June 2008 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 77. The applicant challenged her dismissal before the Vinnytsya Administrative Court, arguing that the HCJ and Parliament had acted unlawfully. 78. On 28 November 2008 that court rejected the applicant’s claim as unfounded. 79. On 16 December 2009 the Kyiv Administrative Court of Appeal dismissed an appeal lodged by the applicant. 80. On 6 March 2012 the HAC dismissed a cassation appeal lodged by the applicant. 81. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reasons; he had prevented his judicial assistant from performing his functions; he had refused to take cases for consideration; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed. 82. On 12 April 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 83. Between February and August 2012 the applicant attempted to institute proceedings in the HAC challenging the HCJ’s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ. 84. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal. 85. On 5 June 2012 the HAC rejected the applicant’s claim as unsubstantiated. 86. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reason; he had refused to take cases for consideration; he had delayed the examination of criminal cases; he had prevented his judicial assistant from performing his functions; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed. 87. On 12 April 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 88. Between February and August 2012 the applicant attempted to institute proceedings in the HAC, challenging the HCJ’s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ. 89. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal. 90. On 27 June 2012 the HAC rejected the applicant’s claim as unsubstantiated. 91. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reason; he had refused to take cases for consideration; he had shown disrespect to the officers of the court registry; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed. 92. On 12 April 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 93. Between February and October 2012 the applicant attempted to institute proceedings in the HAC, challenging the HCJ’s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ. 94. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal. 95. On 20 September 2012 the HAC rejected the applicant’s claim as unsubstantiated. 96. On 29 May 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ found that the applicant had committed numerous procedural errors when reviewing, under newly discovered circumstances, a case involving local authorities. The HCJ considered that the errors had been committed intentionally; they cast doubt on the applicant’s objectivity and impartiality and called for his dismissal. Objections raised by the applicant were rejected as unsubstantiated. 97. The applicant instituted proceedings in the HAC, challenging the HCJ’s decision. 98. On 21 June 2012 a draft parliamentary resolution concerning the applicant’s dismissal was not adopted by a majority vote. 99. On 4 July 2012 the HAC rejected the applicant’s claim against the HCJ as unsubstantiated. According to the applicant, he received the full text of the decision between 24 and 26 July 2012. 100. On 5 July 2012 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect. 101. The applicant instituted proceedings before the HAC, challenging the resolution of Parliament. 102. On 4 September 2012 the HAC considered the case and rejected the claim as unfounded. It noted that the HCJ’s decision of 29 May 2012 had been earlier reviewed by the HAC. It further found that the parliamentary procedure for the applicant’s dismissal and the resolution to that effect were lawful. 103. On 16 October 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have her dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant, as a member of a panel of judges, had participated in the consideration of a criminal case and the adoption of the judgment in that case. Subsequently, that judgment had been partly quashed by a higher court on the grounds that it was unsubstantiated and the sentence was too lenient. The HCJ considered that the first-instance court’s judgment had had negative consequences: it had caused discontent in society, since the criminal case had been widely discussed in the media. The HCJ concluded that the applicant had disregarded the requirements of procedural law, had not acted diligently and impartially when considering the criminal case and had to be dismissed. Objections raised by the applicant were rejected as unfounded. 104. The applicant instituted proceedings before the HAC, challenging the HCJ’s decision. 105. On 28 February 2013 the HAC rejected the applicant’s claims as unsubstantiated. It noted, among other things, that the HCJ had repeatedly postponed the hearings due to the applicant’s failure to appear and had properly informed the applicant of the hearings. 106. On 23 May 2013 Parliament voted for the applicant’s dismissal and adopted a resolution to that effect.