TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): Further, we remind the Court that in this case, Mr. Volkov was dismissed on the basis
AP2 (Applicant): of one uncorroborated complaint regarding his judicial conduct in a particular commercial case.
AP2 (Applicant): The impugned conduct related to Mr. Volkov's decision
AP2 (Applicant): to institute casational proceedings and initiate a judicial review.
AP2 (Applicant): Mr. Volkov maintains that he acted at all times
AP2 (Applicant): within his powers under the Civil Procedure Code and made judicial decisions within the limit of those powers.
AP2 (Applicant): For this reason, we submit that domestic law on the dismissal of judges for breach of oath is neither certain nor foreseeable.
AP2 (Applicant): Further, it was applied in this case in a grossly disproportionate manner.
AP2 (Applicant): Mr. Volkov's dismissal, therefore,
AP2 (Applicant): violates Article 8 of the Convention.
AP2 (Applicant): Mr. President, I turn to the final question
AP2 (Applicant): concerning the application of Article 46 in this case.
AP2 (Applicant): The applicant submits that this case evidences fundamental systemic problems in the Ukrainian legal system.
AP2 (Applicant): As we have already highlighted, the lack of independence of the judiciary in Ukraine and the flagrant interference by both government and parliament have been recognized by this court on a number of occasions and by a significant number of independent international organizations.
AP2 (Applicant): In March 2010, the Venice Commission called for profound constitutional reform on the grounds that present constitutional provisions are an obstacle for an independent judiciary in line with European standards.
AP2 (Applicant): The PACE monitoring committee has endorsed this approach, as has the OECD.
AP2 (Applicant): In light of the court's established practice, we submit that Article 46 should be applied in this case in order to require the government to bring forward legislative proposals within a stipulated time in order to remedy the systemic failures identified.
AP2 (Applicant): We propose that the following laws will require amendment.
AP2 (Applicant): First, the Constitution, including A, removal of those provisions giving parliament a role in the appointment and dismissal of judges, and B, provisions relating to the appointment, composition, and role of the High Council of Justice.
AP2 (Applicant): Second, the law on the High Council of Justice, including first, the composition and role of the High Council of Justice.
AP2 (Applicant): Second, the terms of office of its members and the basis for dismissal.
AP2 (Applicant): Third, recusal of members from adjudicating on complaints which they have submitted.
AP2 (Applicant): And fourth, the definition of the concept of breach of oath.
AP2 (Applicant): Finally, the Code of Administrative Justice of Ukraine, including the jurisdiction and powers of the higher administrative court.
AP2 (Applicant): I turn finally to redress for the applicant in this case.
AP2 (Applicant): Mr. Volkov maintains that he is an innocent victim
AP2 (Applicant): of a politically motivated campaign to dismiss him.
AP2 (Applicant): He refers to the systemic failings in domestic law which have resulted in his unlawful dismissal and gross breaches of his human rights.
AP2 (Applicant): It is trite law that the effect of a judgment in which this court finds a violation of the convention is to impose a legal obligation on the respondent state to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.
AP2 (Applicant): In this case, we submit that the only appropriate and effective remedy is reinstatement of Mr. Volkov
AP2 (Applicant): as a judge of the Supreme Court of Ukraine.
AP2 (Applicant): Reinstatement is recognized as an appropriate form of restitution in international law.
AP2 (Applicant): It was evidenced by principle 19 of the basic principles and guidelines on the right to a remedy and reparation 2005.
AP2 (Applicant): The Inter-American Court of Human Rights has also held that reinstatement is an effective remedy in the case of dismissal without proper justification.
AP2 (Applicant): In Trujillo versus Venezuela, the Inter-American Court held that Venezuela had violated the right to an effective remedy when the Supreme Court refused to reinstate a judge who was unlawfully dismissed.
AP2 (Applicant): Mr. Volkov was a judge of the Supreme Court for 16 years
AP2 (Applicant): from 1994 to 2010.
AP2 (Applicant): He was dismissed without proper justification or due legal process.
AP2 (Applicant): The applicant respectively requests that the court stipulate that he be reinstated as a judge of the Supreme Court of Ukraine.
AP2 (Applicant): If the court is not minded to order Mr. Volkov's
AP2 (Applicant): reinstatement, we respectfully request in the alternative that the court stipulate in the operative provisions of its judgment that proceedings in this case should be reopened.
AP2 (Applicant): The court has, on appropriate occasions, stipulated the reopening of proceedings on the finding of a violation of Article 6.
AP2 (Applicant): For example, in the civil case of Lungoci versus Romania, this court concluded in its operative provisions a direction to the state to ensure that if the applicant so desired, the proceeding for reopen within six months of the judgment becoming final.
AP2 (Applicant): In the 2010 grand chamber case of Kudak and Lithuania, the majority of the grand chamber noted that a retrial or the reopening proceedings would be an appropriate response by the authorities in a case concerning the dismissal of an employee following her claim of sexual harassment against another employee.
AP2 (Applicant): In his concurring opinion in that case, Judge Malinverni, supported by four other judges, argued that this point should have been included in the operative provisions of the judgment on the basis that the applicant had first and foremost sought a decision to the effect that her dismissal had been unlawful.
AP2 (Applicant): Thus, only the reopening of the proceedings would provide full satisfaction.
AP2 (Applicant): The same reasoning applies to the current case.
AP2 (Applicant): Due to the systemic failings of the judicial disciplinary process as set down in domestic law and the gravity of the violations in this case, the applicant submits that his only effective remedy is for proceedings in his case to be reopened and reviewed.
AP2 (Applicant): Mr. President, that concludes the applicants' oral
AP2 (Applicant): submissions.
AP2 (Applicant): OK.
AP2 (Applicant): And I'll get the vote on that.
AP2 (Applicant): Shall I do that?
AP2 (Applicant): All right.
AP2 (Applicant): Well then, I'll see you next week.
AP2 (Applicant): Goodbye.
AP2 (Applicant): Bye.
AP2 (Applicant): Take care.
AP2 (Applicant): you
Dean Spielmann (JudgeP): Thank you very much, Ms. Gordon.
Dean Spielmann (JudgeP): I now turn to the judges. Judge Yudkivska, please.
Ganna Yudkivska (Judge): Thank you, Mr. President. I have four questions which I would like to address to both parties.
Ganna Yudkivska (Judge): My first question concerns Judge P's power as the President of the High Administrative Court. According to section 41, paragraph 5 of the Judicial System Act of 2002, in the
Ganna Yudkivska (Judge): absence of the President of the High Specialized Court, his duties shall be performed by the first Deputy President. I would like to ask the parties to specify the term absence. In
Ganna Yudkivska (Judge): particular, if a judge's terms of office as President of a court has expired, does it mean that a President is absent as of that day, or he or she is not considered to be absent until a relevant decision on his or her dismissal is adopted?
Ganna Yudkivska (Judge): Second, what was the exact scope of review of Mr. Volkov's case in the Parliament during
Ganna Yudkivska (Judge): the plenary meeting of the Parliament, given also the very limited time the Parliament had to hear the parties?
Ganna Yudkivska (Judge): Third, the government's submission on compatibility of the applicant's dismissal with Article 8 of the Convention were concentrated on issues of legality of this measure. I would like
Ganna Yudkivska (Judge): to ask the parties to specify whether or not the High Administrative Court is entitled, under applicable legislation, to examine proportionality of the measure at issue and to set aside the impugned decision or to declare it unlawful if it considers it to be disproportionate.
Ganna Yudkivska (Judge): And finally, does absence of any time limit for proceedings on breach of judicial oaths pursue any legitimate aim, and is it justified in the state's legal system?
Dean Spielmann (JudgeP): Thank you, Judge Yudkivska.
Angelika Nußberger (Judge): I also have four questions to both parties.
Angelika Nußberger (Judge): So the first question is, the applicant was dismissed for breach of oath.
Angelika Nußberger (Judge): There were several reproaches in the beginning, and two were declared unlawful by the higher administrative court.
Angelika Nußberger (Judge): So the review of decisions of a relative was not seen as a breach of oath, and also the reproach that he had not seeked the withdrawal of another judge.
Angelika Nußberger (Judge): What remained was the reproach of gross procedural violations.
Angelika Nußberger (Judge): We have just heard now that he had instituted cassational procedures.
Angelika Nußberger (Judge): So I want to know, if that's considered to be the wrong application of procedural law, why is just the wrong application of the law already considered a breach of the oath?
Angelika Nußberger (Judge): Has there to be any extra element, or is whatever breach of procedural law a wrong application of procedural law already considered as breach of the oath?
Angelika Nußberger (Judge): Second question, the government stated that the consequences of the decision of the higher administrative court is to say that it's unlawful.
Angelika Nußberger (Judge): The consequence would be, in the end, that the judge would be reinstated and compensated for the period during which he was dismissed.
Angelika Nußberger (Judge): Do you have any concrete example of a reinstatement after such a declaration of unlawfulness, first?
Angelika Nußberger (Judge): And second, in this case, it was declared only partially unlawful.
Angelika Nußberger (Judge): So the first reproaches were seen to be unlawful.
Angelika Nußberger (Judge): Nevertheless, there were no consequences.
Angelika Nußberger (Judge): Would it not have been logical, then, to restart the procedure, at least in the parliament, as it was based on partial unlawful reproaches?
Angelika Nußberger (Judge): The third question concerns the voting in the parliament.
Angelika Nußberger (Judge): There was the video, and the applicant referred to the video.
Angelika Nußberger (Judge): The government has stated that there was no examination of this video, and there was no conclusion of a competent authority.
Angelika Nußberger (Judge): Do the government argue that this video does not show reality?
Angelika Nußberger (Judge): So does it not mirror what has really happened?
Angelika Nußberger (Judge): And if so, does it mean that it's falsified?
Angelika Nußberger (Judge): Or what is exactly the argumentation of the government?
Angelika Nußberger (Judge): And last question that's a little bit refers to the second question of Judge Yudkivska.
Angelika Nußberger (Judge): In the parliament, there was a vote on the dismissal.
Angelika Nußberger (Judge): And actually, was it a legal or a political vote?
Angelika Nußberger (Judge): Because I understand that the parliament, they are not lawyers, or not only lawyers in any case.
Angelika Nußberger (Judge): And it was a legal question if there was a breach of oath.
Angelika Nußberger (Judge): So what is the function of the parliamentarians?
Angelika Nußberger (Judge): What can they say to this legal question?
Dean Spielmann (JudgeP): Thank you, Judge Nußberger. Are there any other questions? Judge Zupančič, please.
Boštjan M. Zupančič (Judge): I have really more of a comment than a question, because when looking at the applicant's brief, I found that the claim for just satisfaction, according to Article 41, was about how much we said?
Boštjan M. Zupančič (Judge): 1,100,000 euros for the projection of the lost salary in the future, et cetera.
Boštjan M. Zupančič (Judge): What has pleasantly surprised me in Mrs. Gordon's statement
Boštjan M. Zupančič (Judge): now is that she maintains, and I assume both representatives of the applicant maintain, that the only proper remedy in this kind of case is reinstatement.
Boštjan M. Zupančič (Judge): Because under a different terminology, we're talking about an impeachment of a judge.
Boštjan M. Zupančič (Judge): When the impeachment procedure itself is problematic, it is clear that the reinstatement is the proper remedy, exactly as has been pointed out by Mrs. Gordon, or at least secondarily,
Boštjan M. Zupančič (Judge): perhaps, the repeat of the procedure, the retrial of the impeachment procedure, rather than 1,100,000 euros for a period projected up to 1,022.
Boštjan M. Zupančič (Judge): Now, since this is apparently a surprise coming from the applicant based on international sources of international law, I would appreciate more buffering, not buffering, more substantiation in this respect, because our own case law goes back to Scozzari and Giunta.
Boštjan M. Zupančič (Judge): It goes back to Assanidze.
Boštjan M. Zupančič (Judge): It goes back to Broniowski, the three triangle of cases which have initiated restitutio in integrum, restitution as a proper remedy under Article 41 in conjunction with 4619, et cetera.
Boštjan M. Zupančič (Judge): In other words, what I'm saying is, yes, I'm – I am surprised presently with this consultation on the part of the applicant as far as remedies are concerned, but I don't see that in the brief.
Boštjan M. Zupančič (Judge): So either you may submit that – depends on the decision of the President – either you may submit that later on, substantiating your position on the reinstatement or retrial, or you explain why is it not in the brief.
Dean Spielmann (JudgeP): Well, I propose that we have a short break and we will resume at 10.30,
Dean Spielmann (JudgeP): so a quarter of an hour, 15 minutes.
Dean Spielmann (JudgeP): The hearing in the case of Volkov against Ukraine is resumed.
Dean Spielmann (JudgeP): Before I give the floor to Ms. Kulchytskyy,
Dean Spielmann (JudgeP): please be seated, please be seated.
Dean Spielmann (JudgeP): So the hearing is resumed and before I give the floor to Ms. Kulchytskyy,
Dean Spielmann (JudgeP): I would like to make the following observations in connection with Dr.
Dean Spielmann (JudgeP): Zupančič's question concerning the articulation between Article 41 and Article 46 of the Convention if, and I insist on the if, the court would find a violation, which we will reflect upon and decide eventually.
Dean Spielmann (JudgeP): We will see what we are going to do with this case.
Dean Spielmann (JudgeP): So the court does not find it necessary for the time being to file additional written observations.
Dean Spielmann (JudgeP): So I invite both parties to comment also upon Judge Zupančič's question, which is also one of the questions we have put in the file for this hearing today, question number eight.
Dean Spielmann (JudgeP): So we do not want additional written observations, but you are free to comment upon this issue if you wish to do so now.
Dean Spielmann (JudgeP): So subject to this remark, I give now the floor to Mr. Kulchytskyy.
Dean Spielmann (JudgeP): Please, you have the floor.
GR1 (Government): As concerning first question of Judge Kiskov, end of the term of person in his post doesn't mean that he's automatically relieved from this post.
GR1 (Government): And only after official retirement of this person from his post, the post is considered vacant.
GR1 (Government): And after official dismissal of the head of high administrative court, his deputy can act as the head of the court, as it's provided by Article 41 of this law.
GR1 (Government): Concerning second question of Judge Kiskov, and I believe it's first question of Judge Nussenberg, concerning Parliament and establishing of branch of oath, according to legislation acting at that time, just High Council of Justice was authorized to establish branch of oath by the judge.
GR1 (Government): No other state authority was authorized to do so.
GR1 (Government): In spite of this, just Parliament can take decision on dismissal of the judge from the post for branch of oath.
GR1 (Government): And no other decision of any state authority was binding in the Parliament.
GR1 (Government): Concerning third question, question of personality could be raised in case if there is possibility to use different sanctions.
GR1 (Government): But according to Ukrainian legislation, branch of oath provides just one sanction, dismissal from the post.
GR1 (Government): And for this reason, this question was not considered by high administrative court.
GR1 (Government): According time limitation for branch of oath, there is no time limitation, since the branch of oath is the gravest violation which can be done by the judge.
GR1 (Government): And it's by itself has a particular negative impact on the public confidence in justice in the state.
GR1 (Government): And for this reason, the government of Ukraine believes that there could be no time limit for such violation.
GR1 (Government): Concerning branch of procedure rules, and government would like to know that Judge Volkov was released not for single violation of procedure legislation.
GR1 (Government): The reason of his dismissal, it was systemic violation concerning one case.
GR1 (Government): There was at least four violation of different procedural rules, which led to conclusions that it was his illegal activity.
GR1 (Government): And that led to conclusions that such action constitutes a branch of oath.
GR1 (Government): Concerning video record, the government is not able to say that this video fails or it can be used, because it's, as I told earlier, it wasn't a matter for consideration before national authorities.
GR1 (Government): And I'm not able to decide whether it's relevant.
GR1 (Government): And first question, I believe that's all.
GR1 (Government): And concerning just satisfaction claim, I would like to know that according to Ukrainian legislation, in case when European courts find violation of Article 6 of Convention, according to Article 236 of the Code of Administrative Procedure, judgment of national courts which resulted violation of Convention should be quashed.
GR1 (Government): And there can be a fresh consideration on this issue.
GR1 (Government): And government submitted the position as applicants claim for just satisfaction.
GR1 (Government): And we believe that it's not possible to grant to the applicant amount of material claims, in case of fresh consideration.
GR1 (Government): All this judgment can be found unlawful.
GR1 (Government): And he can act again as a judge.
GR1 (Government): And it's not possible to pay two times to the applicant as compensation and second time as salary in case of his appearance as a judge.
GR1 (Government): One more question concerning concrete examples of finding some decision unlawful.
GR1 (Government): And government is ready to provide concrete examples under which after some decision of, for example, High Council of Justice, we find unlawful.
GR1 (Government): And after this, person start acting as a judge.
GR1 (Government): So we can provide this.
GR1 (Government): I don't have this materials with me.
GR1 (Government): But in day or two, we can provide this to the court.
Dean Spielmann (JudgeP): Thank you very much, Mr. Kulchytskyy.
Dean Spielmann (JudgeP): I give the floor now to Mr. Leach.
Dean Spielmann (JudgeP): Mr. Leach, please.
AP1 (Applicant): In response to Judge Judkiewska's first question, we say that section 415 of the Judicial System Act 2002 does refer to the expiry of the president's term of office.
AP1 (Applicant): And even if it were to refer to mere absence or illness, that would mean that there's no provision.
AP1 (Applicant): It doesn't deal with the issue where the president's term has expired.
AP1 (Applicant): We say it's very, very clear.
AP1 (Applicant): Judge Plaseniuk's five-year term had expired, and there was, therefore, no other provision dealing with his succession other than this principle, this provision in 415.
AP1 (Applicant): The second question from Judge Judkiewska was about the scope of the review of the plenary parliament.
AP1 (Applicant): The plenary parliament, in accordance with the 2004 Judges Election Dismissal Act, was simply asked to make a decision on the dismissal of a judge on the grounds that the judge had breached his oath.
AP1 (Applicant): That's what the law simply says and nothing else.
AP1 (Applicant): And on that basis, on the day in question, 12 judges were dismissed by the plenary parliament.
AP1 (Applicant): Judge Judkiewska's third question in relation to Article 8, whether the higher administrative court was able to examine the question of proportionality, yes, it could, and yes, the applicant did raise proportionality, but of course, his claim was dismissed.
AP1 (Applicant): Judge Judkiewska's fourth question, did the absence of time limits have any legitimate aim?
AP1 (Applicant): We say there's no legitimate aim.
AP1 (Applicant): This is a question of legal certainty.
AP1 (Applicant): And on the contrary, because of the seriousness of the issues in this case, it should have been dealt with in a timely fashion.
AP1 (Applicant): Turning to Judge Nussberg's questions, her first question, which went to the issue of why simply a wrong application of the procedure could amount to a breach of the oath, we think that's a highly pertinent question to ask of the government.
AP1 (Applicant): Our position is that Mr. Volkov made appropriate decisions
AP1 (Applicant): within the limits of his powers, within the Civil Procedure Code of Ukraine.
AP1 (Applicant): And what this case is about is that, in fact, an assessment of his decision by a non-judicial body amounts to interference with judicial independence.
AP1 (Applicant): Judge Nussberg's second question, whether it would have been logical to review his case given the partial decision of the Higher Administrative Court, our answer would be simply, yes, it would have been logical to review, but it didn't happen.
AP1 (Applicant): And Judge Nussberg's third question was related to the government about the government's position on the video.
AP1 (Applicant): Did the government, were they suggesting that the video doesn't accord with reality?
AP1 (Applicant): Mr. President, on that, we note that this point hasn't
AP1 (Applicant): been raised until now.
AP1 (Applicant): We would say it's up to the government, of course, to produce evidence if they wish to challenge the veracity of this video.
AP1 (Applicant): There is no such evidence whatsoever to challenge it.
AP1 (Applicant): There's no question before this court that it's inadmissible because of any rules that may be applicable in the Ukrainian system.
AP1 (Applicant): And we would say that the government, in the Ukrainian system, and finally, if you view the video itself, it's very clear that it refers and can only refer to the voting in Mr. Volkov's case.
AP1 (Applicant): There's absolutely no basis on which the government can challenge it.
AP1 (Applicant): Judge Nussberg's fourth question overlaps a little bit with one of Judge Rudkiewska's questions about the role of parliamentarians.
AP1 (Applicant): Was it a legal or political vote?
AP1 (Applicant): I've dealt with that already.
AP1 (Applicant): I'd also emphasize that the decision was made in the course of just simply 10 or 15 minutes.
AP1 (Applicant): And it dealt with, I've said, 12 judges in addition, 11 other judges as well as Mr. Volkov.
AP1 (Applicant): We'd also remind the court that it was only on the 15th of May that the definition of the breach of oath in Article 32 was introduced.
AP1 (Applicant): And that definition was not explained at the plenary hearing before parliament on the 17th of June.