TrustHLT/LaCour huggingface dataset:
GR1 (Government): Then the applicant's case was heard before the High Court of Justice, Council of Justice, which at the relevant time was a body responsible for the formation of the High Professional Judicial Corps capable of impartial conduct of justice on the professional grounds.
GR1 (Government): The government would like to stress that the applicant alleges that he was unable to participate in the meetings of the High Council of Justice fixed for 31 May and 14 June 2011, at which dates his case had to be considered, because he had beforehand planned vacation in Czech Republic.
GR1 (Government): In support of the statement, the applicant added the copy of his passport with a visa to Czech Republic.
GR1 (Government): However, the visa was opened on 7 June 2011.
GR1 (Government): So the normal course of events, you plan vacation, you go to the tourist agency, you receive visa, you go on vacation.
GR1 (Government): In the present case, the applicant first gave himself holiday, then he received visa, and then he went to Czech Republic.
GR1 (Government): The government cannot agree that the fact of the visa issue confirmed the beforehand planning of the vacation and traveled to the other country.
GR1 (Government): Moreover, the first meeting as to the applicant's case before the High Council of Justice was to be held on 30 and 31 May 2011.
GR1 (Government): And it follows from the copy of the passport, the applicant left Ukraine and departed to Czech Republic only on 12 June 2011.
GR1 (Government): Due to the applicant's second failure to appear before the meeting of the High Council of Justice, the consideration of the question of his dismissal from the post of the President of the Court was held without his presence, as it was foreseen by the provision of law.
GR1 (Government): And on 14 June 2011, the decision on dismissal of the applicant from the post of the President of the Court was adopted.
GR1 (Government): As to what I would like, again, to address the questions which were put by the court to the government.
GR1 (Government): As a material time, the High Council of Justice consisted of 20 members, which were accordingly appointed by the Conference of the Judges of Ukraine, three members, by the All-Ukrainian Conference of the Representatives of Law Universities and Scientific Institutions, three members, by the Conference of the Attorneys of Ukraine, three members, by the Parliament of Ukraine, three members, and by All-Ukrainian Conference of the Servants of the Prosecutor's Office, two members, by the President of Ukraine, three members.
GR1 (Government): Also, the Minister of Justice of Ukraine, Mr. Lavrinovich
GR1 (Government): at the time, President of the Supreme Court of Ukraine, Mr. Lopenko, and the General Prosecutors of Ukraine,
GR1 (Government): Mr. Pshonka at the time, were ex-officio members
GR1 (Government): of the High Council of Justice.
GR1 (Government): Thus, Mr. Kolesnichenko, Mr. Kobelansky,
GR1 (Government): Mr. Kravchenko, Mr. Onopenko, Mrs. Otrosh,
GR1 (Government): Mrs. Tatkov, Mr. Tatkov, I'm sorry, Mr. Udovichenko,
GR1 (Government): and Mr. Fesenko were judges.
GR1 (Government): Ms. Izotseva, Mr. Vysotsky, and Mr. Safulko were attorneys.
GR1 (Government): Mr. Kavryluk, Mr. Kuzmin were deputies
GR1 (Government): of the General Prosecutor.
GR1 (Government): Mr. Shepeval was the President
GR1 (Government): of the Central Electoral Committee.
GR1 (Government): Mr. Kivalov and Mr. Pertnov were members of the Parliament.
GR1 (Government): Mr. Bondyk was a Deputy Minister of Justice of Ukraine.
GR1 (Government): Mr. Zavolnyuk was the President of the Institute
GR1 (Government): of Training of Professional Judges.
GR1 (Government): Thus, about almost half of the members of the Council of Justice were judges.
GR1 (Government): Turning to the legal side of the matter, I would like first to stress that it is the government's opinion that the now current Wilhel Esklenen test should be reviewed by the court.
GR1 (Government): As we know, when, during the consideration of Wilhel Esklenen and others versus Finland case, the court considered that the current Willegrin test was insufficient.
GR1 (Government): It instead created a new two-step test, which involves the first step, the procedural requirement.
GR1 (Government): The national law must have expressly excluded access to a court for this type of disputes, and the substantive one, the civil servants in question should participate in the exercise of public power, and the subject matter of the disputing issue is related to the exercise of state power.
GR1 (Government): While Wilhel Esklenen explains at length the rationale behind the substantive requirement, showing with detail how the earlier Pelegrin test of purely functional approach towards the civil servants' labor dispute was unable to bring clarity to the matter, the appearance of the procedural test is not explained by the court at all.
GR1 (Government): This test, in our opinion, directly contradicts the dicta in Konyn that whether or not a right is to be regarded as a civil within the meaning of the convention must be determined by the reference to the substantive content and effect of the right, and not its legal classification under the domestic law.
GR1 (Government): However, Wilhel Esklenen test in its procedural part makes an exception from the above rule for the civil servants' labor disputes, rendering the domestic law decisive.
GR1 (Government): Moreover, the court was careful in Wilhel Esklenen to point out that certain other disputes remained outside the realm of Article VI, in particular assessment of taxes, matters of ancillary nationality and residence in the country, the adjudication of electoral disputes in respect of members of parliament.
GR1 (Government): However, with the same two-stage test applied to these cases, it is unlikely that they would fare much better against the procedural requirement than the civil servants' labor disputes.
GR1 (Government): There is a whole legal industry in all of the European countries in tax disputes.
GR1 (Government): The length and complicated adjudication of ancillary seekers is legendary in many countries, and legal challenging of the results of election is a widely spread partisan tactic of many political parties.
GR1 (Government): Moreover, there was a procedural requirement applied to the criminal head of Article VI.
GR1 (Government): It would have to be arguably extended to the victims of the crimes, who despite no right to private revenge under Article VI in the criminal procedures of member states, are normally accorded freestanding procedural status rights.
GR1 (Government): It is therefore the position of the government that the Wilka test should be limited only to the substantive step, namely that civil servants in question should participate in the exercise of public power, and the subject matter of the dispute and issue is related to the exercise of state power.
GR1 (Government): Were this test to be applied in this particular case, it would be obvious that Article VI should not be applied in the present case.
GR1 (Government): Alternatively, even if Wilka test is applicable and stands, we believe that Article VI should not be applied, and for the following reasons.
GR1 (Government): The government referred to court's judgment in the case of Oluzhich versus Kruatia, where the applicant who at the material time held the position of the president of the Supreme Court and the judge of the same court, was removed from both posts due to his, to the commitment of disciplinary offense.
GR1 (Government): In this case, the government argued that Article VI of convention was not applicable as the applicant's post as the president of the Supreme Court had involved by its very nature the exercise of power conferred by public law, and duties designed to safeguard the general interests of the state.
GR1 (Government): The court rejected this argument of the government of Kruatia, with reference to the fact that the applicant was dismissed not only from the post of the president of the Supreme Court, but also from his position as a judge, which by extension means that were the situation different, were the applicant dismissed only from the position of the president of the court, the European Court of Human Rights could come to a different conclusion.
GR1 (Government): Of course, there is always Baca versus Hungary.
GR1 (Government): It is the position of this government that it sides in its analysis, it sides with the analysis performed by Judge Wojtysiak in his dissenting opinion in Baca versus Hungary, that there is no right, there cannot be an individual civil right to exercise administrative function within the judiciary.
GR1 (Government): However, we all know that the majority of the Grand Chamber in Baca reached a different conclusion, finding that the right for an office holder to serve a term of office until such time as it expires, or until his or her judicial mandate came to an end.
GR1 (Government): However, the government submits that the present case is sharply distinguishable from that of Baca.
GR1 (Government): In particular, the applicant's dismissal was not a political vengeance for the exercise of free speech, but a mundane removal of a functionary who had failed in his duties.
GR1 (Government): The applicant was not removed from the office by specifically tailored constitutional legislation, but through an ordinary procedure, which was in substance the same as that which was in place when the applicant was appointed in 2009 to his position.
GR1 (Government): In other words, the applicant, when applying to the contested post, implicitly agreed to the fact that he could be removed following the procedure in issue.
GR1 (Government): In other words...
GR1 (Government): In other words, it could come to the conclusion that there was a violation of Article VI because the procedure by which the applicant was dismissed was not insufficient, was wrong, violated Article VI.
GR1 (Government): That would basically mean that the applicant, when he was appointed to his position in 2009, could not be removed by that same procedure which existed when he was appointed, and the government had to change the whole procedure in order to be able to remove a person who so obviously failed in his duties.
GR1 (Government): Therefore, the government reiterates that this case is a simple act of removal of an inept manager performed by the judiciary itself.
GR1 (Government): It has a direct relevance to the failure properly performed by the applicant of the public powers conferred on him.
GR1 (Government): For this reason, the government believes that the applicant's complaint under Article VI is inadmissible or shall not be carried.
GR1 (Government): As to the applicant's claims under Article VIII of the Convention, taking into account the applicant's claims, the government notes that in the court's case law, the private life income passes the right for an individual to form and develop relationships with other human beings, including relationships of a professional and business nature.
GR1 (Government): Article VIII of the Convention protects a right to personal development and the right to establish and develop relationships with other human beings and the outside world, the British versus the United Kingdom.
GR1 (Government): Therefore, restrictions imposed on access to a profession have been found to affect private life.
GR1 (Government): Likewise, dismissal from the office has been found to interfere with the right to respect for private life, where it was a result of investigation involving the aspects of the applicant's private life, or spinner versus turkey.
GR1 (Government): It is the government's position that the exercise of the administrative functions within the given court does not fall within the ambit of Article VIII.
GR1 (Government): Unlike applicants in Alexander Volkov versus Ukraine, the applicant in the present case was not dismissed from the office altogether, but was removed from administrative office in the Court of Appeal.
GR1 (Government): It would be stretching the notion of private life to the limit if the court were to read in it the right to occupy a given administrative position.
GR1 (Government): Therefore, this complaint should be rejected as being incompatible with shown in the material.
GR1 (Government): Even if the court were to find that private life involves the right to occupy the position of the president of a court, the removal from the office had very little impact on the applicant's private life.
GR1 (Government): The investigation of the counsel was strictly limited to the exercise by the applicant of his public functions and had no inroads into the private life.
GR1 (Government): The applicant probably had to change office within the same building and received a slightly lower salary.
GR1 (Government): This interference appears to fall short of the significant disadvantage test that should be rejected under Article 35, paragraph three, B, and four of the convention.
GR1 (Government): Finally, even assuming that there was interference that reached the requisite level of severity, the government submits that unlike in Alexander Volkov case, the law under which the applicant was dismissed from his position was sufficiently clear and foreseeable.
GR1 (Government): The interference pursued obviously legitimate aims of public safety, the economic well-being of the country, the prevention of disorder of crime, and the protection of rights of the freedoms of others.
GR1 (Government): The applicant's obvious failure to exercise his administrative duties in the proper manner threatened the orderly administration of justice in the Court of Appeal, which by extension put at risk the administrative justice in several regions covered by the Court of Appeal's jurisdiction.
GR1 (Government): Finally, the interference was necessary in democratic society given the significance of the public interest at stake and the relatively insignificant significance of interference.
GR1 (Government): Therefore, the applicant's complaints under Article 8 are manifestly founded within the meaning of Article 35, paragraph three of the convention, or alternatively, there was no violation of the applicant's right under Article 8 of the convention.
GR1 (Government): As to the applicant's claims concerning Article 1 of Protocol 1, as to the reduction of his salary and subsequently a reduction of his pension due to his dismissal from the position of the President of the Court, the government knows the following.
GR1 (Government): It is true that the dismissal precluded the applicant from receiving a salary and subsequently pension as the President of the Court.
GR1 (Government): However, that future income had neither been earned nor was it definitely payable.
GR1 (Government): Besides, Article 1 of Protocol 1 does not guarantee as such any right to receive the salary of a given amount, nor does it guarantee as such any right to a pension or of a particular amount.
GR1 (Government): The future income in question cannot be considered as an earned one.
GR1 (Government): Furthermore, there is no enforceable claim concerning future salary as well as future pension, which would constitute possession.
GR1 (Government): In conclusion, this complaint, which is based upon the diminution of the value of the salary and pension assessed by the future income and position and which amount to claim for the loss of future income, falls outside the scope of Article 1 of Protocol 1, as therefore should be declared inadmissible as being manifestly unfounded within the meaning of Article 35, Paragraph 3 and 4 of the Convention.
GR1 (Government): Moreover, the Convention and its Protocol do not provide for a right to employment.
GR1 (Government): And the Court reiterated that further income cannot be considered as constituting possession unless it has already been earned or is definitely payable.
GR1 (Government): There is no right under the Convention to continue to be paid a salary of a particular amount.
GR1 (Government): See Baca v. Hunger.
GR1 (Government): In this connection, the Government object to Article 18 of the applicant's representative submissions to the Grand Chamber.
GR1 (Government): In the present case, the Government considers that the applicant complains that because of his dismissal he lost potential future income, namely his salary.
GR1 (Government): It is true that the dismissal precluded the applicant from receiving a future salary in the post.
GR1 (Government): He had held prior to the dismissal.
GR1 (Government): It follows that the complaint under Article 1 of Protocol 1 is incompatible or shown immaterial with the provisions of the Convention.
GR1 (Government): As to Article 13 of the Convention, it is to be noted that even as human, that the applicant has an arguable claim to be victim of a violation of the Convention right.
GR1 (Government): The Government reiterates that where, as an instant case, the applicant alleged a violation of the rights conferred by the Convention by the final judicial authority of the domestic legal system, the application of Article 17 is implicitly restricted.
GR1 (Government): Therefore, the absence of a remedy against the decision of the High Administrative Court's resolution does not raise an issue under Article 13 of the Convention.
GR1 (Government): As to paragraphs 123, 139, as to violation of Article 18 of the Convention, paragraphs of the statement of the applicant, the Government notes that, firstly, the Court did not note the relevant question to the parties.
GR1 (Government): And secondly, the Government is of the opinion that the circumstances of the case do not disclose the violation of the above article.
GR1 (Government): Taking the above into consideration, the Government is of the opinion that, in fact, the applicant's demotion due to insufficient fulfillment of the duties at his post as the President of the Administrative Court of Appeal should not be considered as a violation of any of the provisions of the Convention.
Guido Raimondi (JudgeP): Thank you very much, Mr. Lishchyna.
Guido Raimondi (JudgeP): And I call now Mrs. Gavron. Please, you have the floor.
AP1 (Applicant): Mr. President, the dismissal of Mr. Denisov
AP1 (Applicant): as president of the Kiev Administrative Court of Appeal was in flagrant breach of the requirements of a fair and impartial hearing.
AP1 (Applicant): The circumstances surrounding his dismissal demonstrate overt political interference in the senior judiciary, constituting a deliberate attack on the fundamental principle of the separation of powers.
AP1 (Applicant): The lack of independence of the judiciary in Ukraine at the time is well known to this court, notably from Volkov and the 18 judges in Kuliakov this year.
AP1 (Applicant): It has also been criticized by the Venice Commission, the Parliamentary Assembly, and the Commissioner for Human Rights.
AP1 (Applicant): In response to the facts as alleged by the government, we refer the court to our written submissions.
AP1 (Applicant): Today, I will focus on aspects of Article 6 and 18, and Mr. Halban will address the court on Article 8.
AP1 (Applicant): Article 6.
AP1 (Applicant): We note that the government does not argue that the Vilhoeska-Leinen test would be satisfied in this case.
AP1 (Applicant): Instead, it has urged the court to reconsider the test, contending that its emphasis on the availability of a judicial remedy domestically could extend the remit of Article 6 to disputes over taxation, asylum, and elections.
AP1 (Applicant): We say this is to misunderstand the nature and application of the test, which recognizes that there is often no conflict between the interests of the state and the employment rights of civil servants, and therefore leaves it to member states to identify the areas where there is a conflict.
AP1 (Applicant): The court has thus held that employment disputes by public servants, in principle, fall within the scope of Article 6.
AP1 (Applicant): As the government acknowledges, the court has been explicit that the Esker-Leinen test, as with Pellegrin before it, applies exclusively to civil servants' disputes over employment rights.
AP1 (Applicant): It has no bearing on matters that do not concern a civil right and fall outside Article 6 altogether, such as tax and immigration.
AP1 (Applicant): The court has relied on the Esker-Leinen test for 10 years, confirming that Article 6.1 applies to civil proceedings
AP1 (Applicant): relating to the terms of employment and functions of judges, including their dismissal, Volkov and Kuliakov, and the removal of the president of a Supreme Court, Bakker.
AP1 (Applicant): On one level, this case concerns an employment dispute.
AP1 (Applicant): Mr. Denisov was appointed president
AP1 (Applicant): of the Kiev Administrative Court of Appeal in 2009 for a five-year term.
AP1 (Applicant): He was dismissed as president in June 2011 under the laws on the judiciary and status of judges and the High Council of Justice.
AP1 (Applicant): Under Article 171 of the Code of Administrative Justice, 2005, he could challenge his dismissal before the higher administrative court.
AP1 (Applicant): There was clearly then a right in domestic law and an express provision for judicial review of its termination, as in Bakker.
AP1 (Applicant): That the employment right in question is to his tenure as president of the court rather than as judge makes the applicability of Article 6 no less, if not more, important in our submission.
AP1 (Applicant): Judges are in a structurally different position to government civil servants, far from being answerable to government.
AP1 (Applicant): The role of judges is to ensure that the government functions within the law, and this is predicated on their independence from the executive and the legislature.
AP1 (Applicant): Therefore, in cases concerning the judiciary, the exclusion of access to a court should never be justifiable on the basis of government discretion under the second limb of the Escalinan test.
AP1 (Applicant): We submit that in cases concerning the appointment, terms of office, and dismissal of judges, Article 6 should always apply or be strongly presumed to.
AP1 (Applicant): The court will be familiar with the international standards on the independence of the judiciary, which establish the importance of the irremovability of judges and court presidents without distinction.
AP1 (Applicant): These are cited in our written submissions.
AP1 (Applicant): And the need for procedural guarantees to preserve their independence, including due process by an independent body.
AP1 (Applicant): Court presidents typically have powers over judicial appointments, promotions, salaries, and benefits, and assign cases to judges.
AP1 (Applicant): The International Commission of Jurists, as intervenors in this case, and the Consultative Council of European Judges emphasize the importance of the role of court presidents as guarantor of the court's independence.
AP1 (Applicant): Therefore, procedural guarantees afforded to judges should a fortiori be applied to court presidents.
AP1 (Applicant): These guarantees protect an individual judge from unlawful interference in order to protect the integrity of the judiciary as a whole.
AP1 (Applicant): Safeguarding the independence of individual judges is a prerequisite for an independent judiciary, as recognized by this court in agro-contracts.
AP1 (Applicant): Judge Sicilianos, in his concurring opinion in Baca, sets out persuasive reasons for recognizing the right of individual judges to judicial independence as inherent in the protections of Article 6.
AP1 (Applicant): This would strengthen the protection afforded to judges under the convention.
AP1 (Applicant): For instance, in circumstances where political pressure is brought to bear on a judge without an interference in the exercise of a separate convention right.
AP1 (Applicant): The government relies on the dissenting opinion of Judge Wojciech in Baca.
AP1 (Applicant): We say that the early removal of a court president is not akin to a political vote of no confidence or to the inherent insecurity of political office.
AP1 (Applicant): Judge Wojciech states that the removal of Mr. Baca