TrustHLT/LaCour huggingface dataset:
GR1 (Government): Furthermore, the government calls the Court's attention to the fact that the applicants never complained about alleged partiality or dependency of the judges at the High Administrative Court when the case was pending before the domestic authorities.
GR1 (Government): Besides, in his application to the Court, the applicant also failed to raise properly aforementioned issue.
GR1 (Government): Having regard to the mentioned above, the government considers that the applicant has failed to adduce any evidence of the dependency of the High Administrative Court on the Council, and that they cannot accordingly be considered impartial in the present case.
GR1 (Government): In answering the Court's question whether the principle of legal certainty was respected in the proceeding during the consideration of the applicant's case at the plenary meeting of the Parliament and the voting procedure, the government would like to note that in this part the applicant complains and to uphold the position laid down in observation of 15 February 2012.
GR1 (Government): As to authenticity of the video provided by the applicant, the government note that no authority did not carry out the examination of the video record provided by the applicant, and therefore no conclusion of the competent authority as to time and place where the video was filmed as well as to the reliability of this was done.
GR1 (Government): Consequently, such evidence is inadmissible.
GR1 (Government): In answering the Court's question as to the legislative basis of Mr. Plosennik to occupy
GR1 (Government): the post of judge and capability of his power with legislation, we insist on our position also laid down in our observation.
GR1 (Government): In addition, we would like to note that only upon the expiry of term of Mr. Plosennik's
GR1 (Government): office on 22 December 2009, he was actually to be dismissed.
GR1 (Government): However, at that time the provision of the mentioned law that governs the procedure for dismissal of the Court's president had been declared unconstitutional, while no new legislation on that point had been adopted by the Parliament.
GR1 (Government): Thus, there was no legally defined procedure of dismissal of a judge from an administrative position as on 22 December 2009.
GR1 (Government): Therefore, any actions aimed at dismissing Mr. Plosennik from the position of the head
GR1 (Government): of the Court would have been contrary to valid national legislation.
GR1 (Government): In order to ensure the free exercise by the person of the constitutional right to a judicial remedy, the Conference of Judges from the Administrative Courts of Ukraine decided that the duties of the President of the High Administrative Court be temporarily performed by Mr. Plosennik.
GR1 (Government): As to the Court's question of the applicant's violation of his rights to a written judgment, as far as this part of the applicant's complaint is concerned, the applicant maintained that the High Administrative Court failed to consider his allegations that some of the members of the High Council of Justice and those of the Parliamentary Committee were partial towards him and that the decision of the Parliament on his dismissal was unlawful.
GR1 (Government): We consider that this allegation of the applicant does not conform to the truth.
GR1 (Government): In this regard, the government would like to refer to the decision of the High Administrative Court of 19 October 2010.
GR1 (Government): In the mentioned decision, the Court noted that the applicant indeed alleged that three members of High Council of Justice were interested in his dismissal in view in particular of his involvement in judicial self-government.
GR1 (Government): In response to those complaints, the Court, having examined the submission of the High Council of Justice, noted the circumstances of the case disclosed, the applicant's personal prejudice or bias in this – in the exercise of his professional duties.
GR1 (Government): The mentioned facts were in the judge's opinion indicative of his branch of office.
GR1 (Government): Since the submission proposing to dismiss the applicant from the office had been confirmed, the Court decided that his dismissal could not have been connected with his involvement in judicial self-government.
GR1 (Government): As to the applicant's allegation about the partiality of the Parliamentary Committee's members, the government observed that those allegations of the applicant were also considered by the High Administrative Court.
GR1 (Government): Having examined them, the Court noted in particular that the Parliament was an authority competent to take decision on dismissal of judges.
GR1 (Government): At the same time, findings of the Parliamentary Committee on the judiciary were recommendatory and were not binding to the Parliament.
GR1 (Government): Thus, each member of the Parliament participating in voting had to decide on his own.
GR1 (Government): As the mentioned facts indicate that those allegations of the applicant were properly examined by the High Administrative Court.
GR1 (Government): However, the government would like to reiterate that the domestic courts is not obliged to provide a detailed analysis of all arguments of the applicants in its judgment.
GR1 (Government): Moreover, in this present case, the applicant's allegations about the lack of partiality on the part of the Council of Justice were rather general in character and did not corroborate them with concrete facts.
GR1 (Government): At the same time, the government considered that in order for certain allegations to be examined by the Court shortly and for the resulted findings to be set out in the Court decision, the applicant should provide detailed arguments in support of such allegations.
GR1 (Government): Furthermore, he or she must submit any specific circumstances on which an objective observer could doubt the impartiality of the Court.
GR1 (Government): As already noted above, the applicant failed to deduce sufficient arguments in support of his allegation about partiality towards him.
GR1 (Government): The government accordingly in the view that the arguments set out by the High Administrative Court in its decision are sufficient for resolution to be regarded as reasoned.
GR1 (Government): Furthermore, the applicant contends that the High Administrative Court did not properly examine his complaint of the alleged unlawfulness of the Parliament's resolution on the basis of which he had been dismissed from the office.
GR1 (Government): The decision of the High Administrative Court of 19 October 2010 clearly states that on the applicant's initiative, the Court examined the documents with records of the individual voting held in the Parliament on 17 June 2012.
GR1 (Government): As a result of the Court found that in favor of a resolution of the applicant's dismissal from the post of the judge, there were 1,200 247 votes, while 226 were required for adoption of such a decision.
GR1 (Government): Accordingly, the Court held that the resolution of Parliament was lawful.
GR1 (Government): Furthermore, the Court noted that the applicant had been present at the motioned session and was able to express his opinion as regards the submission of the High Council of Justice.
GR1 (Government): Therefore, the government considers that the dismissal proceedings against the applicant were properly reviewed by the Court and its findings are reflected in each judgment.
GR1 (Government): The government would like also to note that the branch of establishing the Constitution of Ukraine parliamentary procedure of adopting legal acts is the reason for finding those acts unconstitutional.
GR1 (Government): According to Article 171, Prime 1 of the Code of Administrative Procedure of Ukraine, it doesn't belong to the competence of the High Administrative Court to adjudicate the compliance of legal acts adopted by the Parliament in the Constitution of Ukraine.
GR1 (Government): For this reason, the High Administrative Court doesn't consider the voting procedure in the Parliament.
GR1 (Government): The above facts were also mentioned in the Court's resolution of 19 October 2012.
GR1 (Government): Therefore, the government considers that the dismissal proceedings against the applicant were properly examined by the Court and its findings were reflected in its decision.
GR1 (Government): Therefore, we would like to turn the Court's question concerning the alleged inability of the High Administrative Court to formally quash the decision of the High Council of Justice and the Parliament in the applicant's case and the alleged absence of rules on further conduct of the proceedings in the event of those decisions being declared unlawful.
GR1 (Government): Given the complaints of the applicant, the government observes that in the response of his action to set aside the resolution of the Parliament and the decision of the High Council of Justice, the High Administrative Court noted that it was only empowered under Article 171, Prime 1 of the Code of Administrative Justice to review the lawfulness of those decisions.
GR1 (Government): In this regard, the government points to the fact that on 1 July 2011, the High Administrative Court analyzed and summarized its practice as regards proceedings brought by action challenging decision of Parliament and those of the High Council of Justice on dismissal of judges.
GR1 (Government): The aforementioned was clarified in the Court's letter of 1 July 2011.
GR1 (Government): Having made the mentioned analysis, the Court concluded that in cases similar to the applicant case, claimants tended to formulate their claims differently.
GR1 (Government): In particular, they often sought to have acts of Parliament set aside.
GR1 (Government): Given that, the Court noted that it was only competent to declare a decision unlawful, that is, incompatible with law.
GR1 (Government): In such an event, there is no need for Court to question it in order to then or to order the body to adopt or annul its decision, since the declaration of its unlawfulness means that it has not given rise to any legal consequences since the day of its adoption.
GR1 (Government): At the same time, the annulment of the decision means that it lost its effect no earlier than from the time of respective Court's decision-take effect.
GR1 (Government): Thus, in its practice, the High Administrative Court has rejected actions of annulment of impugned acts, and such claims do not fall within competence, and because a finding of unlawful is also in itself to address such a claim. Also, the mentioned clarification
GR1 (Government): was provided in July 2011. It concerns the practice that had been in place prior
GR1 (Government): to its adoption. The mentioned practice is uniform and doesn't raise doubts.
GR1 (Government): Thus, the applicant's dismissal had been declared unlawful.
GR1 (Government): He would have been treated as having not been dismissed.
GR1 (Government): Moreover, he would have been entitled to obtain compensation, and in particular, the salary for period during which it not had been paid to him in view of his dismissal.
GR1 (Government): In answering the Court question as to whether the applicant's dismissal was compatible with requirements of Article 8 of the Convention, the government would like to note the following.
GR1 (Government): The dismissal of the applicant from the post of the judge and consequently the alleged interference with his right granted by Article 8 of the Convention were effected in accordance with law in force. Those laws were publicly accessible
GR1 (Government): and formulated with sufficient precision that enabled the applicant to foresee the consequences of his action in the capacity of judge.
GR1 (Government): Thus, the legislation applicable at that time envisaged disciplinary liability of a judge in the form of requirement for demotion in the qualification round, and also a specially defined liability for branch of oath dismissal of a judge from the office. The government observed that the liability for branch of oath
GR1 (Government): was defined by the legislation separately in view of the fact that such branch in itself has a particularly negative impact on the public's confidence in the judiciary in the State.
GR1 (Government): Thus, in the instant case, the applicant was brought to liability not for single unlawful act, but for a series of four acts, continuing branch of oath, discrediting him as a judge. For these reasons, time limits for holding the judge liability
GR1 (Government): for branch of oath could not be applied. It's also worth mentioning that according
GR1 (Government): to the decision of Constitutional Court of Ukraine of 11 March 2011, the provisions of Article 32 of the Law of Ukraine and Higher Council of Justice, which govern the issue of dismissal of a judge for branch of oath, complied with the Constitution of Ukraine. The government therefore point out that the legal status of the judge
GR1 (Government): presupposed both availability of constitutional and defined guarantees of his independence and immunity in administrating justice, as well as possibility of holding him legally liable for failure to perform his duties, in particular dismissing him from office for branch of oath.
GR1 (Government): As to the last question of the Court, the government would like to observe that they adhere to their position as set out in the observation of 15 February 2012.
GR1 (Government): At the same time, it should be noted that fighting of violation of Article 46 of Convention in cases like the instant one is in the fact to indicate necessity for the responding State to introduce relevant changes into domestic legal system in order to eliminate the exciting problem.
GR1 (Government): Furthermore, when finding a violation of Article 46 of the Convention on the account of differences in the domestic legal system, the Court normally refers to legislation applied by the domestic authorities in the particular case of the applicant concerned. Consequently, in so far as it's concerned, a finding of
GR1 (Government): violation disclosing the existence of a persistent problem of a systemic nature, the application of Article 46 of the Convention depends on the valuability of the legislation in question at the time of adoption decision by the Court.
GR1 (Government): Here, the government would like to call attention to the fact that since the time the applicant applied to the Court, numerous and substantial changes have been introduced into national legislation which have been applied in the course of dismissal proceeding against him and which are under examination of the Court in present case. In particular, on 7 July 2010, the law of Ukraine on High
GR1 (Government): Council of Justice was amendment. The amendments introduced with the aim to
GR1 (Government): ensuring the mentioned body would be more independent, consisted in a substantial increase in number of judges among the member. In particular, according to new
GR1 (Government): wording of the law, 11 out of 20 members of the High Council of Justice should be judges. Hence, judges constitute the majority of the compulsion of the High
GR1 (Government): Council of Justice. According to Article 111 of the law of Ukraine on Judiciary
GR1 (Government): and Judges Status adopted on 7 July 2010, dismissal proceeding against judge elected for an identified term are to be held before the plenary session of the Parliament with no requirement for findings of parliamentary committee or any inquiries.
GR1 (Government): Moreover, we would like to call the Court's attention to the fact that on 5 June 2012, the Parliament passed on a law on amendments on certain legal acts of Ukraine.
GR1 (Government): The mentioned law provides for measures of strengthening the guarantees of judges independence. In particular, according to Article 1 of the law, which was amended,
GR1 (Government): that inquiries in response to a request from the prosecution authorities into allegation of misconduct by the judge in conducting certain court proceedings may only be carried out if the case in question is not pending before a court of any level.
GR1 (Government): Furthermore, a member of High Council of Justice who holds the post of prosecutor or held at that time of his appointment may not be entrusted with concluding such inquiry. However, the Court may not assess the changes that have taken place
GR1 (Government): in domestic legislation since the time when it was applied by the domestic authorities in present case. It follows in particular from the fact that it's not
GR1 (Government): a function to rule in abstracto in assessing domestic law in terms of its compatibility with the Convention. That is where such assessment is beyond the context of examination
GR1 (Government): of a specific complaint about a violation by the State of any subjective right.
GR1 (Government): Therefore, the government considers that the Court may assess only those laws which were applied in the applicant's case and which, as he alleged, led to violation of his rights under the Convention. However, in the view of those substantial
GR1 (Government): changes that have taken place in domestic legislation, any analysis in terms of Article 46 of the Convention of the laws which were applied in the applicant's case and to the Court has lost its relevance. Thus, most of alleged by the applicant's
GR1 (Government): legislation which, according to him, caused problems of systemic nature, concerned the procedure of formation of High Council of Judges. At the same time, it was above
GR1 (Government): procedure which became the subject of most changes in domestic legislation.
GR1 (Government): As far as the government knows, the grounds for deciding on measures to address systemic problems may only raise doubt of finding a violation made in the context of existing domestic legal system. Therefore, we consider that it's impossible
GR1 (Government): to determine from the circumstances of this particular case whether there currently exists a systemic problem in Ukrainian legal system.
GR1 (Government): Moreover, in the commentaries to the government's observations, the applicant asserts that the violation of his rights resulted from presence of problems of systemic nature in Ukrainian legislation. Instead of this, in his application to
GR1 (Government): the Court, the applicant asserts that his dismissal was a result of numerous violations of national legislation. Such position of the applicant confirms in
GR1 (Government): the government opinion the absence of the problem of systemic nature in Ukrainian legislation. Due to the aforementioned, the government considers that Article 46
GR1 (Government): is not applicable in the instant case. Thank you for your attention.
Dean Spielmann (JudgeP): Thank you very much Mr Kulchytskyy. I call Mr Leach please.
AP1 (Applicant): Mr. President, the dismissal of Supreme Court Judge Alexander Volkov in circumstances involving
AP1 (Applicant): a flagrant denial of natural justice originates in the ongoing systemic constitutional crisis in Ukraine. It reflects the failure to respect the rule of law, undermining the principle
AP1 (Applicant): of the separation of powers, and demonstrating an overwhelming level of political control over the senior judiciary. This lack of independence of the judiciary in Ukraine and the blatant
AP1 (Applicant): intervention of government and parliament have been noted by this Court in previous cases such as SovtransAvto Holdings, Salove and AgroComplex. And it's been analysed and
AP1 (Applicant): condemned in recent years by a host of independent international organisations, including the Venice Commission, the Parliamentary Assembly of the Council of Europe, the Commissioner for Human Rights, the OECD, the European Association of Judges, and Transparency International.
AP1 (Applicant): And a number of these bodies have called for constitutional reform in order to free the judiciary from political control. Mr. President, the applicant maintains each of the arguments
AP1 (Applicant): set out in his written observations, but our submissions this morning will focus on the Court's eight questions. I will respond to the first four, after which Ms. Gordon will
AP1 (Applicant): respond to questions five to eight. The first question, concerning the requirement of independence
AP1 (Applicant): and impartiality. The High Council of Justice fails each of the Court's tests of independence.
AP1 (Applicant): The manner of appointment of its members, their terms of office, the existence of guarantees against outside pressure, and whether it presents an appearance of independence. The High Council
AP1 (Applicant): of Justice is neither independent of the executive nor of the legislature. Both the President
AP1 (Applicant): of Ukraine and the legislature, the Vokovna Rada, are directly involved in the appointment of its members. At the time of these events, its composition included the Minister of Justice,
AP1 (Applicant): the Deputy Chief of Staff of the Administration of the President of Ukraine, and three deputies of the Vokovna Rada. Indeed, as the Venice Commission has noted, 50% of the members belong
AP1 (Applicant): to or were appointed by the executive or the legislature. Its composition also included
AP1 (Applicant): the Prosecutor General and three other senior officials from his office. This Court, of
AP1 (Applicant): course, has frequently emphasised that prosecutors cannot be considered to have the status of independent and impartial actors. The judgment in merit in Ukraine confirmed that the Prosecutor
AP1 (Applicant): General is part of the executive branch of the government. And various international
AP1 (Applicant): bodies have noted the powerful position of the Procurator in Ukraine. In accordance with
AP1 (Applicant): Article 131 of the Constitution, the Congress of Judges of Ukraine is entitled to appoint only three of the 20 members of the High Council of Justice. This contrasts sharply with this
AP1 (Applicant): Court's position, as confirmed by the Lecomte and Belgium decision, that to be a strong indicator of independence and impartiality, at least half the membership of such a tribunal should be composed of judges. The Domestic Law does not specify the length of term of
AP1 (Applicant): office of members of the High Council of Justice sitting on an ex officio basis, including the Minister of Justice and the Prosecutor General. The Venice Commission has highlighted
AP1 (Applicant): the structural deficiency of the composition of the Council and it has concluded that there are insufficient guarantees to ensure that it safeguards fundamental principles of justice.
AP1 (Applicant): In our submission, the High Council of Justice could not be considered to be independent of the executive or the legislature, which have a decisive level of control and influence over it. This was a body which at May 2010 had more than 140 proposals pending before
AP1 (Applicant): it for the dismissal of judges for breach of oath made by its members.
AP1 (Applicant): I turn now to the question of impartiality. The proceedings against Mr. Volkov breach
AP1 (Applicant): the objective impartiality requirement because various members of the High Council of Justice were directly involved in both the instigation and the consideration of the proceedings against the applicants. I refer in particular to the involvement of Mr. Kivarov, Mr. Kuzmin,
AP1 (Applicant): and Mr. V. M. Kolesnichenko. As a member of the Parliamentary Committee on the Judiciary,
AP1 (Applicant): Mr. Kivarov transmitted a complaint to the High Council of Justice against Mr. Volkov
AP1 (Applicant): in early 2008, and he wrote to the High Council of Justice in December 2008 to accuse Mr.
AP1 (Applicant): Volkov in relation to his links with Judge Baranenko. He was a member of the High Council
AP1 (Applicant): of Justice which made the decisions in Mr. Volkov's case in May 2010. He then presided
AP1 (Applicant): as chair at the meeting of the Parliamentary Committee on the Judiciary on 16 June 2010, which recommended Mr. Volkov's dismissal. And as chair of that committee, he then reported