TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): to the Plenary Parliament on 17 June, informing them that the committee recommended the dismissal of 12 judges, including Mr. Volkov. The papers relating to the complaint
AP1 (Applicant): lodged against Mr. Volkov in 2008 were submitted by the High Council of Justice to Mr. Kuzmin
AP1 (Applicant): as first deputy prosecutor general in order for them to be investigated. Mr. Kuzmin himself
AP1 (Applicant): submitted a request to the High Council of Justice for the dismissal of the applicant for breach of oath in December 2008. Mr. Kuzmin was also a member of the High Council
AP1 (Applicant): of Justice which made the decision in the applicant's case.
AP1 (Applicant): In March 2009, Mr. Kolesnichenko submitted a proposal to the High Council of Justice
AP1 (Applicant): for Mr. Volkov's dismissal, which explicitly attacked his objectivity, his impartiality,
AP1 (Applicant): and his independence, and alleged he'd committed gross violations of the law. Mr.
AP1 (Applicant): Kolesnichenko was himself the chairman of the High Council of Justice, which made the decisions in Mr. Volkov's case. He also took the floor in the Plenary Parliament
AP1 (Applicant): on 17 June 2010 to lay out the accusations against him.
AP1 (Applicant): I turn to the requirement for subjective impartiality. The applicant submits that members
AP1 (Applicant): of the High Council of Justice were personally biased against him, in particular Mr. Kivalov and Mr. Kolesnichenko, as evidenced by their extraordinary levels of involvement
AP1 (Applicant): of the various stages of the proceedings against him, as I've just outlined, and the very nature and wording of their complaints. We say that no one in their position could have
AP1 (Applicant): been unaware of the fundamental breaches of natural justice caused by there being, in effect, prosecutor and judge in the same action. From this alone, their lack of subjective
AP1 (Applicant): impartiality can be inferred. This case is much clearer even than Verner and Poland,
AP1 (Applicant): where the Court found that it was reasonable to accept that the judge who submitted a motion and later sat on the Court which heard it would have had an unacceptable personal conviction. But what is more, at the High Council of Justice meetings
AP1 (Applicant): in 2009 and 2010, including one chaired by Mr. Kolesnichenko, the proceedings
AP1 (Applicant): concerning Mr. Volkov's dismissal were taken off the agenda by the chairman. This
AP1 (Applicant): was because 14 votes were needed to ensure his dismissal, and it became clear at those meetings that the requisite votes would not be obtained. It was also intentional
AP1 (Applicant): that the hearing of the High Council of Justice on 26 May 2010 was conducted in Mr.
AP1 (Applicant): Volkov's absence. And I refer to the statements of Mr. Barbara and Mr. Sofulko,
AP1 (Applicant): who confirm that at that meeting, Mr. Onopenko, the President of the Supreme
AP1 (Applicant): Court, informed the chairman that Mr. Volkov had valid reasons for being absent,
AP1 (Applicant): that he had ordered Mr. Volkov to attend to judicial business at the military
AP1 (Applicant): court of appeal in Sevastopol. Nevertheless, Mr. Kolesnichenko decided to proceed
AP1 (Applicant): with the hearing in the applicant's absence, resulting in Mr. Onopenko leaving
AP1 (Applicant): the hearing, but he refused to take part in a meeting that was biased against Mr.
AP1 (Applicant): Volkov. Mr. Barbara and Mr. Sofulko both say it was clear that the majority of the
AP1 (Applicant): members of the High Council of Justice who were not representative of the judiciary were personally biased against Mr. Volkov. In the same week in May 2010, Mr. Kivalov
AP1 (Applicant): was quoted in the national weekly newspaper Yezhynyrdelnik 2000 speaking disparagingly of the meeting by name Mr. Volkov. The applications by the High Council of Justice
AP1 (Applicant): for the dismissal of Mr. Volkov were referred to the Parliamentary Committee
AP1 (Applicant): on the Judiciary before being referred to the Plenary Parliament. This process was
AP1 (Applicant): clearly incompatible with the principle of the separation of powers and violated the principle of the independence of the judiciary from political interference in the judiciary. The members of the High Council of Justice were also members
AP1 (Applicant): of the Parliamentary Committee, and indeed Mr. Kivalov was its chairman. As to the
AP1 (Applicant): role of the Plenary Parliament, the 2004 Judges Election and Dismissal Act simply stated that Parliament was required to take a decision on the dismissal of a judge on the grounds that the judge had breached his oath. In reality, this amounted
AP1 (Applicant): to the High Council of Justice and the Parliamentary Committee. As to the Higher
AP1 (Applicant): Administrative Court, the Code of Administrative Justice provides that decisions of the High Council of Justice may be challenged before the Higher Administrative Court for which purpose a separate chamber is to be set up, comprising at least five judges. There are no other legislative provisions dealing with the composition
AP1 (Applicant): of that separate chamber. This serious defect has been noted by the Venice
AP1 (Applicant): Commission, which has stated that the composition of this chamber, because of the significance of the cases it has to decide, should be set out in an objective way in the law. Otherwise, the risks of endangering the independence and impartiality
AP1 (Applicant): of the judiciary increase as political interferences in the composition of the court might occur. And there was a heightened such risk in this case, first because
AP1 (Applicant): the decision was being reviewed by the court, was controlled by the executive and the legislature, and second because the court was being asked to review the decisions of Parliament itself, as well as one of its committees. I turn to the
AP1 (Applicant): second question, the failure to apply any time limits. No limitation period was
AP1 (Applicant): applied in Mr Volkov's case, as we've heard. The Higher Administrative Court
AP1 (Applicant): found that there was no basis in the domestic law for applying the limitation periods referred to in either the Status of Judges Act 1992 or the High Council of Justice Act 1998. Mr Volkov had argued that the High Council of Justice should
AP1 (Applicant): correctly have applied Article 37 of the 1998 Act, which expressly provides for the dismissal of a Supreme Court judge, in which case various procedural guarantees would have applied, including the limitation set down in Section 43. That would
AP1 (Applicant): have meant a limitation period of either six months or one year. In fact, proceedings
AP1 (Applicant): brought against Mr Volkov, which were instigated in 2008 and 2009, concerned decisions he made going back to 2006 and even 2002 to 2003. In our submission,
AP1 (Applicant): the applicable law was opaque and incoherent, and there was a total lack of clarity or consistency in its application. I turn to the third question concerning
AP1 (Applicant): the proceedings before the Plenary Parliament. When the Plenary Parliament
AP1 (Applicant): considered Mr Volkov's case, both Mr Kivalov and Mr V.M. Kolesnichenko took the
AP1 (Applicant): floor to present the accusations against Mr Volkov. The Plenary voted in favor of
AP1 (Applicant): the applicant's dismissal as a judge, but members of Parliament present unlawfully cast multiple votes by using votes belonging to other MPs who were not there.
AP1 (Applicant): This is established not only by statements from the applicant and four MPs, all of whom were present, but also by the video of the proceedings. That video clearly
AP1 (Applicant): shows MPs reaching across from their positions in order to press the voting buttons of their absent neighbors. And when you see the video, it's obvious why this practice
AP1 (Applicant): is commonly referred to in Ukraine as playing the piano. Two hundred and forty-seven
AP1 (Applicant): MPs were recorded as having voted. Mr Volkov has said that in fact no more than
AP1 (Applicant): 140 to 150 MPs were present. I turn to the fourth question. Was the applicant's
AP1 (Applicant): case considered by a tribunal established by law? This Court's case law is very
AP1 (Applicant): clear that in order to merit the designation of a tribunal, a body must have full jurisdiction to examine all questions of fact and law relevant to the dispute and satisfy various requirements, including independence of the executive.
AP1 (Applicant): The applicant submits that neither the High Council of Justice nor the Parliamentary Committee on the Judiciary nor the Plenary Parliament can be considered a tribunal established by law. This requirement was also breached because of the manner in which
AP1 (Applicant): the Chamber of the Higher Administrative Court was established and composed.
AP1 (Applicant): The High Council of Justice could not constitute a tribunal established by law as it was a binding decision. It simply referred recommendations for Mr Volkov's dismissal
AP1 (Applicant): to the Parliamentary Committee on the Judiciary. Similarly, that committee also had
AP1 (Applicant): no power to reach a binding decision. It made a recommendation on the case to the
AP1 (Applicant): Plenary Parliament. And none of these bodies were independent from the executive.
AP1 (Applicant): As to the Higher Administrative Court, Judge Pasyniuk was appointed by the President and Chairman for a five-year term on 22 December 2004. His term, therefore, expired
AP1 (Applicant): on 22 December 2009. There was no legislative basis for him to continue beyond that
AP1 (Applicant): date. However, after the expiry of his term of office, Mr Pasyniuk issued an order
AP1 (Applicant): to constitute the special chamber of the Higher Administrative Court which would hear the applicant's case. Mr Volkov sought to challenge the list of judges before
AP1 (Applicant): the Court, contrary to what we've heard this morning, on the basis of its unlawful composition by Mr Pasyniuk. But his application was rejected as being unsubstantiated,
AP1 (Applicant): and there was no right of appeal against that decision. Convention case law has clarified
AP1 (Applicant): that the object of the term established by law is to ensure that the judicial organization in a democratic society does not depend on the discretion of the executive, but that it is regulated by laws and in Austria, and that the organization of the judicial system is not left to the discretion of the judicial authorities, Kerm and Belgium.
AP1 (Applicant): The term law incorporates any provision of domestic law which, if breached, would render the participation of one or more of the judges in the examination of a case irregular. And in cases such as Gurov and Moldova, the participation of a judge
AP1 (Applicant): in the summary of his term of office led to a finding of a violation of Article 6.1,
AP1 (Applicant): for the same reasons Article 6, we say, has been breached in this case.
AP1 (Applicant): Mr President, that concludes my submissions, and Ms Gordon will now respond to questions 5 to 8.
Dean Spielmann (JudgeP): Thank you very much, Mr. Leach.
Dean Spielmann (JudgeP): Try to call Miss Gordon, please.
Dean Spielmann (JudgeP): Miss Gordon, you have the floor.
AP2 (Applicant): I turn next to the question of whether there has been a violation of the applicant's right to a reasoned judgment.
AP2 (Applicant): We submit that there was a violation of Article 6.1
AP2 (Applicant): because of the higher administrative court's failure to properly address a number of Mr. Volkow's principal grounds
AP2 (Applicant): of appeal, including the allegations of personal bias of certain members of the High Council of Justice and parliamentary committee against him and the voting irregularities in Parliament resulting in an unlawful decision to dismiss him.
AP2 (Applicant): In essence, Mr. Volkow submits that the higher administrative
AP2 (Applicant): court simply repeated the findings reached by the High Council of Justice to the effect that he had breached his judicial oath, but it failed to adequately explain the reasons why it considered his oath to have been breached or to set out the evidence it relied upon to reach this finding.
AP2 (Applicant): First, the higher administrative court determined that Mr. Volkow had had a personal interest
AP2 (Applicant): in a case he had dealt with as judge of the Supreme Court.
AP2 (Applicant): However, the court failed to identify or explain the nature of this personal interest.
AP2 (Applicant): Its decision was based on generalities and unjustified assumptions.
AP2 (Applicant): There was therefore no proper basis for its finding.
AP2 (Applicant): Second, the higher administrative court relied upon this unsubstantiated conclusion of Mr. Volkow's personal interest
AP2 (Applicant): to dismiss in their entirety his claims regarding the personal bias of members of the High Council of Justice and the parliamentary committee.
AP2 (Applicant): Without providing any further reasoning or justification, the court simply referred to its own finding of the applicant's bias to refute and reject Mr. Volkow's
AP2 (Applicant): claims of bias against him.
AP2 (Applicant): The court thereby categorically failed to consider his allegations, which were critical to the assessment of the legality of the proceedings before the High Council of Justice and to the legitimacy of the parliamentary decision which resulted in his dismissal.
AP2 (Applicant): In Kuznetsov and others in Russia, this court found a violation of Article 6 because domestic courts failed to address submissions on key arguments, remained silent on a crucial point, and failed to explain the reasons for rejecting the evidence put forward by the applicant.
AP2 (Applicant): The same reasoning can be applied to the present case.
AP2 (Applicant): The higher administrative court's failure to address Mr. Volkow's arguments regarding
AP2 (Applicant): the personal bias of members of the High Council of Justice as well as the parliamentary committee and to consider the evidence relating to that allegation violated Mr. Volkow's right to a recent judgment
AP2 (Applicant): under Article 6.
AP2 (Applicant): We further submit that the higher administrative court failed to properly address Mr. Volkow's allegation regarding
AP2 (Applicant): the unlawfulness of the parliamentary decision to dismiss him.
AP2 (Applicant): Mr. Volkow's statement, the statements of the four MPs,
AP2 (Applicant): and the video evidence irrefutably demonstrate that MPs present for the vote on Mr. Volkow's
AP2 (Applicant): dismissal deliberately and unlawfully cast votes belonging to other MPs.
AP2 (Applicant): Yet the court's consideration of the allegation of unlawful voting was perfunctory.
AP2 (Applicant): It failed to set out the nature of the allegation made or to assess the evidence put forward.
AP2 (Applicant): Instead, the court simply referred to the data roll call vote and relied upon it as an accurate record of the number of MPs present.
AP2 (Applicant): This missed the point.
AP2 (Applicant): The allegation made by Mr. Volkow
AP2 (Applicant): was that the data roll call was deliberately manipulated by MPs with the result that the vote was unlawful.
AP2 (Applicant): The court failed to address this point.
AP2 (Applicant): Instead, the court held that it did not have the authority to review the constitutional compliance of a parliamentary decision and concluded the matter on this basis.
AP2 (Applicant): It thereby ignored Mr. Volkow's arguments
AP2 (Applicant): on the legality of the parliamentary vote, specifically that the abuse of the voting procedure violated the law of Ukraine on the status of people's deputies of Ukraine and the law of Ukraine on regulations of Parliament of Ukraine.
AP2 (Applicant): The court's judgment is silent on the point.
AP2 (Applicant): Like Prunina and Ukraine and Bokon and Ukraine, this case again demonstrates Ukrainian domestic courts ignoring specific, relevant, and important submissions concerning questions central to the case.
AP2 (Applicant): We submit that the failure of the High Administrative Court to analyze Mr. Volkow's specific allegations regarding
AP2 (Applicant): the unlawfulness of the parliamentary decision to dismiss him falls short of the requirement under Article 6.1 for judicial authorities
AP2 (Applicant): to give adequate reasons for their decisions.
AP2 (Applicant): I move next to the sixth question, whether there has been a violation of the applicant's right to a court.
AP2 (Applicant): The Higher Administrative Court is unable to quash acts carried out by the High Council of Justice, which it finds to be unlawful, because it is not empowered by Article 1711 of the Administrative Code to do so.
AP2 (Applicant): The court explicitly confirmed this legal position in its judgment of 19th of October, 2010.
AP2 (Applicant): Further, the Higher Administrative Court is not empowered to review the constitutionality of parliamentary resolutions.
AP2 (Applicant): Again, the court explicitly confirmed this legal position in its judgment, stating that this falls within the remit of the Constitutional Court.
AP2 (Applicant): In the proceedings in this case, the Higher Administrative Court held that Mr. Volkov's claim was satisfied in part.
AP2 (Applicant): The court declared unlawful the decision of the High Council of Justice of 26 May, 2010, which found that Mr. Volkov violated his judicial oath
AP2 (Applicant): because he concealed the fact of his familial relationship with Judge Baranenko, the brother of Mr. Volkov's wife.
AP2 (Applicant): The court held that under the law then applicable, Mr. Volkov and Judge Baranenko were not considered relatives.
AP2 (Applicant): The court found no facts indicating personal interest and concluded that there was no evidence of a violation of his judicial oath.
AP2 (Applicant): Nevertheless, the court refused Mr. Volkov's claim
AP2 (Applicant): that the High Council of Justice's decision of the 26th of May and subsequent parliamentary resolution to dismiss him should be negated or canceled.
AP2 (Applicant): The court stated that it did not have the legal jurisdiction or powers to do so.
AP2 (Applicant): There is no statutory procedure or set of rules governing the further conduct of proceedings in the event that the higher administrative court declares a decision of the High Council of Justice and its submission to Parliament to be unlawful, or it's being the consequence of such a declaration.
AP2 (Applicant): This effectively renders, we submit, the higher administrative court's declaration meaningless.
AP2 (Applicant): On the basis of the above, we submit there has been a violation of Mr. Volkov's right to a court,
AP2 (Applicant): as required by Article VI, on account of, first, the insufficiency of the jurisdiction and review powers of the higher administrative court, second, its inability to formally quash the decisions of the High Council of Justice and or Parliament, and finally, the absence of rules on the further conduct of proceedings in the event that the court declares decisions of the High Council of Justice and or Parliament unlawful.
AP2 (Applicant): I turn now to question 7, whether the applicant's dismissal was compatible with Article 8.
AP2 (Applicant): The concept of private life under Article 8.1
AP2 (Applicant): includes moral integrity and the protection of reputation and incorporates relations in the professional sphere.
AP2 (Applicant): Mr. Volkov was dismissed for breaching his judicial oath.
AP2 (Applicant): The High Council of Justice considered that he had discredited the reputation of the judiciary and displayed a lack of integrity in carrying out his responsibilities as a judge.
AP2 (Applicant): The higher administrative court concluded that he had demonstrated bias and personal interest.
AP2 (Applicant): There is no doubt, therefore, that Mr. Volkov's dismissal
AP2 (Applicant): raised fundamental questions as to his moral integrity.
AP2 (Applicant): The government has conceded that there has been an interference with Mr. Volkov's right
AP2 (Applicant): to respect for his private life.
AP2 (Applicant): We submit that this interference cannot be justified in accordance with Article 8.2.
AP2 (Applicant): First, the applicable domestic law on the dismissal of a judge for breach of oath is too vague to comply with the in accordance with the law test.
AP2 (Applicant): It was not until 15th of May 2010 that Article 32 of the law on the High Council of Justice set out what constitutes a breach of oath by a judge.
AP2 (Applicant): Even then, the article failed to precisely define the conduct which will give rise to a breach.
AP2 (Applicant): It is vague and uncertain, using such phraseology as the commission of actions which dishonor the judicial office and violation of moral and ethical principles of the judicial code of conduct.
AP2 (Applicant): The result is that it is neither clear nor foreseeable in law what conduct gives rise to a breach of oath.
AP2 (Applicant): This legal uncertainty of the domestic law has been criticized by independent international bodies, including the OECD and the Venice Commission.
AP2 (Applicant): In its opinion of October 2010, the Venice Commission highlighted a number of serious concerns with Article 32, including its overlap with the provisions of the law and the judiciary and the status of judges, thereby creating complexity and uncertainty in relation to the disciplinary regime for judges and its inclusion of very general concepts, which the commission considered dangerous because of the possibility of using the article as a political weapon against judges.
AP2 (Applicant): Our second point regarding legal uncertainty is that Article 32 of the law on the High Council of Justice sets down no time limit in relation to the disciplinary procedure for the dismissal of a judge for breach of oath.
AP2 (Applicant): This means that there is no finite period within which the disciplinary procedure for judicial breach of oath must be initiated or completed.
AP2 (Applicant): This causes significant uncertainty and imposes no requirement that allegations be dealt with expeditiously.
AP2 (Applicant): Further, there is no time bar on making an allegation or finding a breach.
AP2 (Applicant): As such cases as Kresland and France make clear, the expression in accordance with the law under Article 82 requires that a measure which interferes with an individual's private life must have some basis in domestic law.
AP2 (Applicant): But further, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him.
AP2 (Applicant): But additionally, adequate safeguards against possible abuse must be put in place, including time limits.
AP2 (Applicant): We submit that Ukrainian law does not indicate, with either reasonable clarity, the scope and manner of exercise of the discretion conferred on the High Council of Justice in relation to the disciplinary procedure for the dismissal of a judge for breach of oath.
AP2 (Applicant): The absence of time limits makes the discretion open-ended and arbitrary.
AP2 (Applicant): Finally, on Article 8, we submit that the disciplinary procedure for breach of judicial oath is disproportionate, because the only possible sanction that can be imposed is dismissal.
AP2 (Applicant): The Special Rapporteur on the Independence of Judges and Lawyers states that disciplinary measures must be in proportionality to the gravity of the infraction committed by the judge, and calls for the adoption of a well-defined scheme of available disciplinary measures.
AP2 (Applicant): In this case, Article 126 of the Constitution and Article 32 of the law on the High Council of Justice provide that the only disciplinary sanction for breach of oath by a judge is dismissal.
AP2 (Applicant): For other types of judicial misconduct, Article 37 of the law on the High Council of Justice sets out just two other types of sanction, reprimand or demotion.
AP2 (Applicant): We submit that domestic law provides an inadequate range of disciplinary sanctions to deal with judicial misconduct.