TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): as president of the Supreme Court, I quote, concerns a public law dispute between two state organs over their respective positions and the scope of their powers.
AP1 (Applicant): This may be a description of what occurred in Baca, but it is not a description of the rule of law and the separation of powers in a democracy.
AP1 (Applicant): Further, we say that no such inference is possible from the case of Wojciech.
AP1 (Applicant): The court did not address the issue of removal of a court president.
AP1 (Applicant): This case concerns the same right at issue as Baca and falls more squarely within Article 6, according to the Escalonian test, than that case.
AP1 (Applicant): I'll now turn to the issue of independence and impartiality.
AP1 (Applicant): The High Council of Justice failed every test of independence in its composition, the subordination of its members to other state bodies, and in the personal bias of its members towards Mr. Deniso.
AP1 (Applicant): We refer the court to its findings in Volkov and the Venice Commission opinion on the structural deficiencies of the High Council of Justice, which compromise its independence.
AP1 (Applicant): Despite amendments in July 2010 to increase the number of judges, only three were elected by their peers.
AP1 (Applicant): This court and the Venice Commission have criticized the inclusion of the prosecutor general as ex officio member as potentially deterring judges from acting independently.
AP1 (Applicant): In the words of the Venice Commission, the risk of politicization of disciplinary proceedings is high and can have a chilling effect on judges, thus weakening their independence.
AP1 (Applicant): Members of the High Council of Justice deciding Mr. Deniso's case on the 14th of June 2011,
AP1 (Applicant): as we've heard, included members of the governing party, Mr. Bondyk, deputy minister of justice,
AP1 (Applicant): from what we've just been told, Mr. Kivalov,
AP1 (Applicant): and formerly Mr. Fesenko, the prosecutor general of Ukraine,
AP1 (Applicant): Mr. Pshonka, the deputy prosecutor generals
AP1 (Applicant): Kavryluk and Mr. Kuzmin, the deputy chief of staff
AP1 (Applicant): to the president, Mr. Portnov, chairman
AP1 (Applicant): of the Central Election Committee, Mr. Shapoval,
AP1 (Applicant): Mr. Koblyansky, chairman of the Council of Judges,
AP1 (Applicant): who was appointed to the High Council of Justice by President Yanukovych.
AP1 (Applicant): Clearly, this was not a panel that could be said to be independent, nor was it impartial, either objectively or subjectively.
AP1 (Applicant): A number of its members had instigated or threatened dismissal proceedings against Mr. Denisov.
AP1 (Applicant): Mr. Bondyk proposed Mr. Denisov's dismissal
AP1 (Applicant): from office for breach of oath on the 21st of January 2010.
AP1 (Applicant): On the 27th of January, during the presidential elections, he maintained an intimidating vigil at Mr. Denisov's court,
AP1 (Applicant): with a number of other MPs to monitor cases.
AP1 (Applicant): On 2nd February 2010, he sent a defamatory letter to all judges of Ukraine, accusing Mr. Denisov
AP1 (Applicant): of unlawful and unethical conduct in office.
AP1 (Applicant): Mr. Zavalnyuk had also submitted a petition
AP1 (Applicant): against Mr. Denisov for breach of oath
AP1 (Applicant): on the 20th of May 2007.
AP1 (Applicant): Mr. Kolesnichenko, chairman of the High Council of Justice,
AP1 (Applicant): had telephoned Mr. Denisov on the 20th of June 2010
AP1 (Applicant): to demand that he fined for the authorities in the UNESCO land transfer case.
AP1 (Applicant): He repeatedly used the two breach of oath petitions just mentioned against Mr. Denisov, abusively,
AP1 (Applicant): to threaten him by scheduling High Council of Justice meetings to decide the petitions to deliberately coincide with the dates of the court hearings in the UNESCO case.
AP1 (Applicant): Mr. Portnov, deputy chief of staff to President Yanukovych,
AP1 (Applicant): summoned Mr. Denisov in January 2011
AP1 (Applicant): to discuss his retention as court president.
AP1 (Applicant): Mr. Portnov asked him to affirm his loyalty to the president.
AP1 (Applicant): When Mr. Denisov refused, he threatened
AP1 (Applicant): that the Council of Judges would have him dismissed.
AP1 (Applicant): Mr. Koblyansky was chairman of the Council of Judges
AP1 (Applicant): and a judge at the Higher Administrative Court.
AP1 (Applicant): In February 2011, together with Mr. Pasyniuk,
AP1 (Applicant): president of the Higher Administrative Court, he revised the Council of Judges' investigation into all administrative courts of Ukraine to focus instead on the Kiev Administrative Court of Appeal.
AP1 (Applicant): He submitted the Council of Judges' proposal to dismiss Mr. Denisov to the High Council of Justice.
AP1 (Applicant): Under Article 26 of the law on the High Council of Justice, these members should have recused themselves from the panel.
AP1 (Applicant): The High Council of Justice's procedure in this case demonstrates its lack of impartiality, including its decision to proceed in Mr. Denisov's absence, despite being reliably
AP1 (Applicant): and repeatedly informed by the acting head of the court that he was abroad on annual leave and could not be notified of the hearing.
AP1 (Applicant): These failings were not remedied by the Higher Administrative Court.
AP1 (Applicant): First, we rely on the court's findings in Volkov regarding the Higher Administrative Court, namely its inability to quash decisions, the fact that its president, Mr. Pasyniuk,
AP1 (Applicant): continued in office after his term had expired and selected the chamber reviewing the High Council of Justice decisions, and that its judges are themselves subject to the disciplinary proceedings by the High Council of Justice.
AP1 (Applicant): Second, the hack was neither structurally nor individually impartial in Mr. Denisov's case.
AP1 (Applicant): Mr. Pasyniuk was personally involved
AP1 (Applicant): in narrowing the Council of Judges investigation to focus on Mr. Denisov's court.
AP1 (Applicant): All but one of the investigative panel were Higher Administrative Court judges or employees subordinate to Mr. Pasyniuk,
AP1 (Applicant): and none of those 12 members of the Council of Judges.
AP1 (Applicant): The judges deciding on Mr. Denisov's appeal
AP1 (Applicant): were therefore assessing the evidential value of a report by their colleagues at the court, the only evidence in the case.
AP1 (Applicant): There was no lawful authority for Mr. Pasyniuk's role
AP1 (Applicant): in the work of the Council of Judges.
AP1 (Applicant): Court presidents and vice presidents are excluded from being members of the Council of Judges.
AP1 (Applicant): Third, the Higher Administrative Court made no genuine attempt to address any of Mr. Denisov's arguments
AP1 (Applicant): critical to the legality of the High Council of Justice decision, including his allegations of bias of its members, the failure to give him an opportunity to attend the hearing, and the lack of detail in the High Council of Justice's findings against him, which concluded that he had breached unspecified provisions of an unidentified number of laws.
AP1 (Applicant): These arguments were dismissed as unconvincing.
AP1 (Applicant): The Council of Judges report, which had not been tested at the Council of Judges meeting of 20th of May, nor by the High Council of Justice in the dismissal hearing, was again assumed to be proven without examination.
AP1 (Applicant): The Higher Administrative Court, therefore, did not demonstrate the requisite independence, impartiality, and failed to provide a reason judgment contrary to Article 6.1.
AP1 (Applicant): I'll now turn to Article 18.
AP1 (Applicant): Mr. President, we submit that this case
AP1 (Applicant): discloses a violation of Article 18 of the Convention, together with Article 6 and 8, as demonstrated by the extensive evidence relied on by Mr. Denisov in his application to the Court.
AP1 (Applicant): This Court's approach to the application of Article 18 to Article 6 has not been consistent.
AP1 (Applicant): In Gusinsky in 2004, the Court considered both the criminal proceedings and the resulting detention in its determination of Article 18.
AP1 (Applicant): In Khodorkovsky and Lebedev, 2013, the Court presumed that Article 18 applied and proceeded straight to an assessment of the merits, concluding, and I quote, insofar as the criminal proceedings at the heart of the present case are concerned, the Court cannot find that Article 18 was breached.
AP1 (Applicant): Whereas in Navalny and Ospitserov, and yesterday's judgment in Navalny, a slim majority of four judges to three held that Article 6 does not contain any express or implied restrictions that could allow examination under Article 18.
AP1 (Applicant): It is now essential that the Grand Chamber clarifies its approach to this provision, which addresses the gravest threats to democracy before this Court.
AP1 (Applicant): We submit that not only is there no bar to its application to Article 6, but that there are compelling reasons for applying it.
AP1 (Applicant): We agree with the dissenting opinion of judges Keller, Dedov, Nikolaou, and Sagaidis, in both Navalny judgments, that the travaux preparatoire do not support a restrictive interpretation.
AP1 (Applicant): The proposal initially submitted in 1949 by the rapporteur Mr. Teichkin
AP1 (Applicant): refers to the rights and freedoms guaranteed in the Convention, and states, these rights and freedoms may in no case be exercised contrary to the aims and principles of the Council of Europe.
AP1 (Applicant): Article 18 was and is intended to apply to all the rights and freedoms in the Convention, to protect democratic values and to prevent the encroachment of authoritarianism.
AP1 (Applicant): That danger was a real concern then, and is again now.
AP1 (Applicant): The Grand Chamber has underlined that democracy is the only political model contemplated by the Convention, and accordingly, the only one compatible with it, United Communist Party of Turkey.
AP1 (Applicant): It is generally accepted that modern democracies are founded on the separation of powers, and that the judiciary is one of three equal pillars of a democratic state.
AP1 (Applicant): Its role is to ensure the rule of law and safeguard democracy, and the deliberate undermining of the separation of powers and the independence of the judiciary is then exactly the territory for Article 18.
AP1 (Applicant): Notably, this is the first case before the Court concerning its application to a judge.
AP1 (Applicant): In both Navalny judgments, the majority dealt with Article 18 and 6 in one sentence and took, we submit, an overly literal and semantic approach.
AP1 (Applicant): Article 18 was not intended to be construed so restrictively.
AP1 (Applicant): In any case, Article 6, in fact, contains restrictions.
AP1 (Applicant): As with Articles 5, 8, 9, 10, and 11, Article 6 is a derogable right, and its guarantees are therefore not absolute.
AP1 (Applicant): This Court well knows the restrictions that it applies.
AP1 (Applicant): The right of access to a court can be limited if pursuing a legitimate aim with proportionality.
AP1 (Applicant): The overall fairness test means that a serious defect in an earlier trial can be rectified by a later hearing.
AP1 (Applicant): In Ibrahim against the UK, the Court balanced the fundamental guarantee of access to a lawyer against national security considerations.
AP1 (Applicant): Even the key principle of the presumption of innocence is not absolute.
AP1 (Applicant): So, in fact, Article 6 procedural guarantees can be restricted on certain public interest grounds as long as the overall fairness of proceedings are not compromised.
AP1 (Applicant): Given the inherent risk of grave restrictions on rights in the determination of a criminal charge or a civil right, the purpose of Article 6 is to make sure that these restrictions are applied fairly.
AP1 (Applicant): We therefore submit that the framing of Article 6 is not and should not be a barrier to the application of Article 18.
AP1 (Applicant): On the contrary, a classic tool of authoritarianism to silence critics is to bring proceedings against them in which the outcome is predetermined, restricting the application of Article 18 to political charges under Article 5, but not to the criminal proceedings that follow, is artificial and draws a line, a difficult line to draw, as this Court has acknowledged in both Litsenko at paragraph 108 and Timoshenko at 298.
AP1 (Applicant): This Court found in both Mamadov and Jafarov that charges against an Azerbaijani opposition politician and a human rights defender were not grounded in evidence and in the context of each case were politically motivated.
AP1 (Applicant): However, Mr. Mamadov is not in prison today
AP1 (Applicant): solely because of those charges.
AP1 (Applicant): An independent and impartial tribunal would have found them baseless, as this Court did.
AP1 (Applicant): Trump-topped charges only succeed if the outcome of the case is predetermined.
AP1 (Applicant): This requires the collusion of the judiciary, which brings us back to Mr. Denisov.
AP1 (Applicant): The evidence shows that his dismissal was not only a foregone conclusion, but a punishment for his refusal to compromise his judicial independence to predetermine the outcome of decisions in the government's favor.
AP1 (Applicant): A priority for authoritarian governments is to capture the courts.
AP1 (Applicant): The most effective way in which to do so is by the key role of court presidents.
AP1 (Applicant): Once this capture is achieved, new laws will not be held unconstitutional, dissenters can be locked up, and the government will be beyond the count.
AP1 (Applicant): This is not some far-fetched scenario.
AP1 (Applicant): This Court has dealt with these issues in Azerbaijan, Ukraine, Hungary, and perhaps Russia.
AP1 (Applicant): We are watching it happen in Poland, where proposed laws to bring the judiciary under government control nearly caused the EU to trigger Article 7.
AP1 (Applicant): Even now, President Duda is proposing laws that violate the Polish Constitution, including replacing the Judicial Council before the end of its constitutional term and allowing Parliament to re-elect its judicial members.
AP1 (Applicant): It is, therefore, a crucial issue for Europe today.
AP1 (Applicant): However, since Article 5 does not apply to civil proceedings, if the Court precludes Article 18 from applying to Article 6, it can never find civil proceedings to violate Article 18, no matter how abusive or undermining of democracy.
AP1 (Applicant): The evidence of political motivation in this case is overwhelming.
AP1 (Applicant): It is incontrovertible that at the time, the Ukrainian judiciary was subject to routine political interference, as widely denounced by the Council of Europe bodies.
AP1 (Applicant): This Court has adjudicated a number of high-profile and politicized dismissals of Ukrainian judges.
AP1 (Applicant): There is compelling evidence that Mr.
AP1 (Applicant): Denisov was subjected to systematic and overt political threats to his independence, culminating in his dismissal.
AP1 (Applicant): Notably, the harassment began during the elections of 2010.
AP1 (Applicant): This included, but was not confined to, at least six letters from the prosecutor's office between November 2009 and January 2010 summoning Mr. Denisov and other judges
AP1 (Applicant): to explain their decisions in cases relating to the elections.
AP1 (Applicant): The behavior of MPs and High Council of Justice members, Bondi, Kolesnichenko, and Fesenko, all of whom sat on the panel that dismissed Mr. Denisov,
AP1 (Applicant): and Deputy Prosecutor General Kudriyavtsov, also a High Council of Justice member, who kept an intimidating vigil at the Court during the presidential elections, unlawfully accessing the restricted case database, and threatening Mr. Denisov with dismissal
AP1 (Applicant): and criminal proceedings.
AP1 (Applicant): Mr. Bondi's draft resolution to Parliament
AP1 (Applicant): calling for Mr. Denisov's dismissal,
AP1 (Applicant): despite it having no power to do so, and the defamatory letter he sent to the whole Ukrainian judiciary accusing Mr. Denisov of his unlawful conduct as a judge.
AP1 (Applicant): And of course, Mr. Portnov's explicit face-to-face threat
AP1 (Applicant): to have Mr. Denisov dismissed by the Council of Judges
AP1 (Applicant): for failing to swear loyalty to President Yanukovych in January 2011.
AP1 (Applicant): The investigation into Mr. Denisov's court
AP1 (Applicant): began a few weeks later.
AP1 (Applicant): This extraordinary level of political interference caused the Council of Judges to respond on 2 February 2010, calling on judges to resist blackmail and demanding that the Prosecutor General and MPs halt their political interference in the Kiev Administrative Court of Appeal, and specifically towards Mr. Denisov as court president.
AP1 (Applicant): Mr. Denisov himself vigorously defended his independence.
AP1 (Applicant): On 18 November 2009, he wrote to the Prosecutor General's office stating that it was unlawfully interfering in the Court's work.
AP1 (Applicant): On 2 February 2010, he wrote to the OSCE election mission denouncing the interference of MPs and the Prosecutor General during the elections.
AP1 (Applicant): On 3 March 2010, he wrote to Parliament requesting that it disavow the allegations made against him in the letter of MPs Bondyk and Pritika.
AP1 (Applicant): On 10 December 2010, he wrote to the High Council of Justice Chairman and the President of Ukraine objecting to the repeated use of the breach of oath petitions against him and requesting that the petitions be resolved.
AP1 (Applicant): This case shows a direct attack on democratic accountability by the deliberate removal of the applicant as head of the court that judicially reviews government decisions because he refused to compromise his judicial independence.
AP1 (Applicant): This is a separate issue to fair trial.
AP1 (Applicant): Article 6 cannot encompass the level of political interference in this case, nor can it convey the deliberate undermining of the separation of powers and the rule of law that was the real motive behind Mr Denisov's dismissal.
AP1 (Applicant): That is the job of Article 18.
AP1 (Applicant): I will now hand over to Mr Halban.
Guido Raimondi (JudgeP): Thank you very much Mrs. Gavron. Now Mr. Halban. You have seven minutes, please.
AP2 (Applicant): Mr. President, we submit that Mr. Deniso's dismissal
AP2 (Applicant): as president of the Court of Appeal also violates his right to respect his private life under Article 8.
AP2 (Applicant): It is well established that private life includes the right to form and develop relationships, including professional relationships, and that it can be affected by restrictions on access to professions and by dismissal from office.
AP2 (Applicant): The right also covers the protection of honor and reputation as part of a person's psychological integrity and identity.
AP2 (Applicant): Reputation is protected even if a person is criticized in a public debate, as in FIFA, or by criticism of his conduct in office, as in Kyriakides.
AP2 (Applicant): This court's decision in Ermeni has materially similar facts to the present case.
AP2 (Applicant): The court found that the applicant's dismissal as vice president of the Supreme Court of Hungary, but his retention as an ordinary judge of the court, violated his right to private life.
AP2 (Applicant): In this case, Mr. Deniso's dismissal as president
AP2 (Applicant): interfered with his private life, including his professional relationships, reputation, and standing.
AP2 (Applicant): His appointment as president was the culmination of his legal career.
AP2 (Applicant): The court was the second highest administrative court in Ukraine, and critically, it was the court which held the government to account.
AP2 (Applicant): The role of president was an important and prestigious one.
AP2 (Applicant): It was key to safeguarding the court's independence.
AP2 (Applicant): It was no mere adjunct position.
AP2 (Applicant): The circumstances culminating in his dismissal and the conduct of the proceedings are critical for the assessment of the interference under Article 8.
AP2 (Applicant): We wish to highlight two aspects.
AP2 (Applicant): First, as you have heard, on the 2nd of February, 2010, Mr. Bondik sent a letter to every judge in Ukraine
AP2 (Applicant): about Mr. Denisov.
AP2 (Applicant): It contained false defamatory allegations, accusing him of blatant misconduct, knowingly delivering illegal judgments, and violating his independence and impartiality.
AP2 (Applicant): This letter was part of a campaign of character assassination and political harassment against Mr. Denisov.
AP2 (Applicant): Just days before, Mr. Bondik had proposed his removal
AP2 (Applicant): from office for breach of oath.
AP2 (Applicant): And along with other MPs, he had come to Mr. Denisov's court,
AP2 (Applicant): intimidated him during the elections, threatened to start a criminal proceedings against him, and have him dismissed from office if he did not cooperate.
AP2 (Applicant): As the culmination of this campaign, Mr. Bondik later sat on the HCJ panel,
AP2 (Applicant): which dismissed Mr. Denisov.
AP2 (Applicant): Mr. Bondik's letter was a direct attack
AP2 (Applicant): on Mr. Denisov's judicial reputation and integrity
AP2 (Applicant): by members of the government.
AP2 (Applicant): And it was sent to the whole Ukrainian judiciary.
AP2 (Applicant): It undermined him and thus the court of which he was president.
AP2 (Applicant): This defamation is more extreme than that in Peruzzi, where a lawyer falsely accused a judge of misconduct.
AP2 (Applicant): This court found his conviction for defamation proportionate in protecting the judge's reputation and the authority of the judiciary.
AP2 (Applicant): In the present case, Mr. Bondik was far more powerful.
AP2 (Applicant): He was a government MP, and later, as we've heard, minister.
AP2 (Applicant): And as an HCJ member, he exercised disciplinary power over Mr. Denisov and over the judges
AP2 (Applicant): to whom the letter was sent.
AP2 (Applicant): Secondly, we wish to highlight Mr. Denisov's dismissal
AP2 (Applicant): by the HCJ itself, which also interferes with his private life and reputation.
AP2 (Applicant): The evidence shows that the dismissal proceedings were never intended to be fair nor to reflect his actual conduct in office.
AP2 (Applicant): This is shown by the cursory nature of the decision, which held he had breached a number of unspecified laws without explaining how, and accused him of improperly carrying out his duties as president without giving any examples.
AP2 (Applicant): This directly impugned his professional reputation and judicial competence.
AP2 (Applicant): It was particularly humiliating for him since he was dismissed because of his insistence on his independence.
AP2 (Applicant): His retention as an ordinary judge of the court emphasized his diminished status and reputation.
AP2 (Applicant): As he says, my unjust dismissal, based on far-fetched and twisted facts, became a stain on my honor, dignity, and professional reputation as a judge, which caused me profound moral damage.
AP2 (Applicant): This has also affected the interests of my children, who are trained lawyers, even though they don't work within the judicial system.
AP2 (Applicant): After my dismissal from the position of chairman of the court, I remained a judge at the same court.
AP2 (Applicant): Therefore, those persons whose cases I was examining could be given a misleading impression about my professional reputation and have doubts as to my professionalism as a judge.
AP2 (Applicant): The circumstances of his dismissal and the reputational damage caused to him by members of the governing party and the HCJ make this case significantly stronger than many.
AP2 (Applicant): As the court found in Kyriakides, unproven criticism of an official's conduct in office and defamation of character can injure moral integrity in breach of Article 8.
AP2 (Applicant): We submit that the interference with Mr. Deniso's private life