FIFTH SECTIONCASE OF GOLOVCHUK v. UKRAINE(Applications nos. 16111/19 and 4737/21)  JUDGMENTArt 8 • Private life • Unlawful interference with the applicant’s exercise of judicial office as a judge of the High Administrative Court, one of the three cassation courts whose activities were terminated as a result of legislative reform • Domestic authorities’ failure to transfer the applicant to another court in accordance with domestic law under which she had a right to a new judicial assignment in line with the principle of irremovability of judgesArt 6 § 1 (civil) • Applicant’s inability to challenge being prevented from exercising her judicial duties amounted to a disproportionate restriction on her right to access to a court • Findings in Gumenyuk and Others v. Ukraine applicable Prepared by the Registry. Does not bind the Court. STRASBOURG27 March 2025 FINAL 15/09/2025  This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Golovchuk v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mattias Guyomar, President, María Elósegui, Gilberto Felici, Andreas Zünd, Diana Sârcu, Kateřina Šimáčková, Mykola Gnatovskyy, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the applications (nos. 16111/19 and 4737/21) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Svitlana Volodymyrivna Golovchuk (“the applicant”), on 17 March 2019 and 6 January 2021;the decision to give notice to the Ukrainian Government (“the Government”) of part of the complaints under Articles 6, 8, 13 and 14 of the Convention and to declare inadmissible the remainder of the applications;the parties’ observations;Having deliberated in private on 4 March 2025,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The applicant, a judge of the High Administrative Court (“the HAC”), one of three cassation courts at the material time, complained mainly under Articles 8 and 13 of the Convention that, as a result of major judicial reforms conducted in Ukraine in 2016 and subsequent developments, she had been unlawfully prevented from exercising her judicial functions.THE FACTS2. The applicant was born in 1961 and lives in Kyiv. She was represented by Mr Y.L. Boychenko, a lawyer practising in Strasbourg.3. The Government were represented by their Agent, most recently Ms M. Sokorenko from the Ministry of Justice.4. The facts of the present case, as submitted by the parties, may be summarised as follows.Background information5. Full information about the origin and scope of the 2016 legislative amendments restructuring the higher courts in Ukraine, including, as a result, the abolition of the HAC, can be found in Gumenyuk and Others v. Ukraine (no. 11423/19, §§ 6-11, 22 July 2021). More specifically, those amendments stipulate the following.6. On 2 June 2016 Parliament adopted amendments to the Constitution with regard to the rules governing the organisation and functioning of the domestic judiciary (Law No. 1401, which came into effect on 30 September 2016). According to the new wording of Article 125 § 3 of the Constitution, “the Supreme Court” (“the new SC”) is the highest court in the Ukrainian judicial system (ibid., § 8).7. Simultaneously with the amendments to the Constitution, Parliament enacted a new Law on the judiciary and status of judges on 2 June 2016 (Law No. 1402 – hereinafter “the 2016 Judiciary Act”) which came into effect on 30 September 2016. The 2016 Judiciary Act provided that the new SC would, among other powers, exercise the function of cassation review (section 36(2)) and that it would be composed of the Grand Chamber, the Administrative Cassation Court (“the ACC”), the Commercial Cassation Court, the Criminal Cassation Court and the Civil Cassation Court (section 37(2)). The 2016 Judiciary Act also introduced a new method for determining judicial salaries which resulted in higher salaries for judges (ibid., §§ 9 and 10).Chapter XII of the 2016 Judiciary Act, entitled “Final and transitional provisions”, provided, inter alia, that the new SC would be established and that the judges of the new SC would be appointed based on the results of a competition (point 4); the existing Supreme Court of Ukraine (“the old SCU”) and three courts of cassation, including the HAC, would operate within their powers defined by procedural law until the new SC starts functioning and the relevant procedural legislation governing the proceedings at the new SC takes effect (point 6); the old SCU and three courts of cassation, including the HAC, would cease operating and would be abolished in accordance with the procedure established by law (point 7); and the judges of the courts that would be abolished (including the HAC) would retain the status, rights and guarantees as determined by the previous law on the status of judges (point 7) and the right to participate in the competition for the new SC (point 14) (ibid., § 11).8. The provisions of the 2016 Judiciary Act, in so far as the termination of the functions of the old SCU and the establishment of the new SC were concerned, were declared unconstitutional by a ruling of the Constitutional Court of 18 February 2020. Most notably, the Constitutional Court found that there was only one supreme judicial body under the Ukrainian Constitution, and that it was the “Supreme Court of Ukraine” which had been renamed and was now known as the “Supreme Court”; it further found that the principle of the irremovability of judges meant that the judges of the old SCU should continue to perform their duties as judges of the new SC (ibid., §§ 12 and 17). However, the Constitutional Court did not take a position on the continuation of the career of judges of the three cassation courts, including the HAC, whose activities had also been terminated by the disputed legislative changes.Circumstances of the case9. In 2008 the applicant was elected by Parliament to a post as a judge of the HAC for an indefinite period. There were then about 100 such judges.10. On 7 November 2016 the High Qualification Commission of Judges (“the HQCJ”) announced a competition for 120 judicial posts in the new SC, including thirty positions in the ACC. A total of 846 candidates, including the applicant, took part in that competition. The applicant applied for a vacant position in the ACC within the new SC.11. On 27 July 2017 the HQCJ determined the applicant’s results in the competition: she was recognised as having confirmed her suitability to sit as a judge but ranked 46th in the list of candidates for thirty vacant positions in the ACC within the new SC.12. On 28 August 2017 the applicant brought court proceedings challenging the HQCJ’s decision, in particular, the determination of her results in the competition for the ACC within the new SC.13. Following the competition, new judges were selected and appointed to the new SC, which began to operate on 15 December 2017.14. On 22 March 2018 the ACC within the new SC dismissed the applicant’s claim. It noted, inter alia, that the HQCJ’s powers were discretionary and that no other State body, not even a court, could interfere with the exercise of its authority to assess and select candidates for judicial posts. That judgment was upheld on appeal by the Grand Chamber of the new SC on 18 September 2018.15. On 17 May 2018 the HQCJ recommended the transfer of the applicant to a judicial panel of the Odesa Administrative Court of Appeal. That recommendation was not considered by the High Council of Justice (“the HCJ”) because it had ceased functioning, having been abolished by the President of Ukraine in December 2017. Since then, there have been no further recommendations or decisions on transferring the applicant to another court.16. On 2 August 2018 the HQCJ announced a second competition for a further seventy-eight judicial posts in the new SC, including twenty-three positions in its Civil Cassation Court. The applicant took part in the competition but was not successful. She was found unsuitable to sit as a judge in that court, so her participation was terminated without her having been given a ranking. That competition was concluded in 2019. There are now approximately 200 judges in the new SC.17. Between November 2019 and June 2023, the HQCJ did not exercise its functions because it had no members.18. Meanwhile, the applicant continued to retain the status, pay and benefits of a judge of the HAC until her resignation for early retirement (“the resignation”) on 8 February 2024.RELEVANT LEGAL FRAMEWORK19. A full account of the relevant domestic law and international material can be found in Gumenyuk and Others (cited above, §§ 23-34). In particular, the following domestic provisions are significant.20. Article 126 of the Constitution (as worded before the amendments of 2016) provided that judges held their posts for an indefinite term, except for the judges of the Constitutional Court and those judges who were appointed for the first time for a period of five years. The same provision provided for the following exhaustive list of grounds for the dismissal of judges: (1) expiry of the term for which the judge was elected or appointed; (2) reaching the age of 65; (3) inability to perform judicial duties resulting from health problems; (4) violation by a judge of the incompatibility requirements; (5) breach of the judicial oath; (6) criminal conviction; (7) termination of citizenship; (8) death or a decision declaring a judge missing or dead; and (9) resignation.After the amendments of 2016, the Constitution similarly proclaims the principle that judges hold their posts for an indefinite term (Article 126 § 5) and provides for an exhaustive list of grounds for the dismissal of judges and their removal from office which includes a refusal by a judge to be transferred to a different court in the event of the abolition or reorganisation of the court where the judge was employed (Article 126 § 6 (5)). Point 16-1 (4) of Chapter XV “Transitional provisions” of the Constitution also provides that a judge appointed for the five-year period or elected for an indefinite term before the amendments of 2016 must confirm his or her suitability to sit as a judge, which shall be evaluated in the order determined by law. If such evaluation finds a judge unsuitable for the post held in terms of his or her competence, professional ethics or integrity, or a judge refuses to undergo such evaluation, this shall be the grounds for the dismissal of a judge.21. Section 53 of the 2016 Judiciary Act provides that a judge may not be transferred to another court without his or her consent, except for (1) transfer in case of reorganisation, abolition or cessation of operations of a court; (2) transfer as a disciplinary sanction.22. Under the 2016 High Council of Justice Act, the transfer of a judge from one court to another must be decided by the HCJ, which must take into account (1) the reasons and limits of any recommendation made by the HQCJ and the materials provided in support of that recommendation; or (2) the reasons for the transfer of a judge to a lower court by way of disciplinary sanction as set out in a report of the Disciplinary Chamber of the HCJ (section 70). The HCJ must give reasons for their decision so that it can be appealed against (section 71); the court examining the appeal must annul the HCJ’s decision if, among other grounds, it does not state the grounds for the transfer, which must have been determined according to law, or the reasons for the HCJ’s conclusions (section 72).23. Following the Constitutional Court’s ruling of 18 February 2020 (see paragraph 8 above), Parliament adopted Law No. 3481 of 21 November 2023 (in force as of 27 December 2023), which amended the 2016 Judiciary Act by bringing in a new point 14-1 of Chapter XII “Final and transitional provisions”. That point provides that a judge of the “old” high court may be transferred to an appellate or local court, depending on his or her specialisation, without a recommendation from the HQCJ, but on the basis of his or her request for a transfer, to be lodged within thirty days of the 2023 Law entering into force. If no such request is filed, the HCJ may propose the transfer of a judge to an appellate court, depending on his or her specialisation, independently and without a recommendation from the HQCJ. A judge who declines to take up the HCJ’s proposal may be dismissed for that reason.THE LAWJOINDER OF THE APPLICATIONS24. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.PRELIMINARY OBSERVATIONS25. Given the prominent place that the judiciary occupies among State organs in a democratic society and the growing importance attached to the separation of powers and to the necessity of safeguarding the independence of the judiciary (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], no. 55391/13 and 2 others, § 196, 6 November 2018), the Court must be particularly attentive to the protection of members of the judiciary against measures affecting their status or career that can threaten their judicial independence and autonomy (see Gumenyuk and Others, cited above, § 52). The Court nevertheless reminds that the Convention does not prevent States from taking legitimate and necessary decisions to reform the judiciary. Furthermore, the Court is aware of the complicated background to and context of the impugned judicial reform in Ukraine and considers that it is not its role to adjudicate upon its goals and appropriateness or determine whether it was justified under Ukrainian constitutional law. As highlighted by the Venice Commission, it may be necessary and justified to take extraordinary measures in order to remedy corruption and incompetence among the judiciary (ibid., § 43).ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION26. The applicant complained of a violation of the principle of immovability of judges and, therefore, of an unlawful interference with her right to respect for her private life, on account of the fact that following the abolition of the HAC, in which she had sat as a judge, she was unlawfully obliged to sit a competition for the new SC and, not having succeeded in that competition, had been de facto removed from her judicial duties. The applicant relied on Article 8 of the Convention, which reads as follows:“1. Everyone has the right to respect for his private and family life, his home and his correspondence.2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”AdmissibilityThe parties’ submissions27. The Government referred to Denisov v. Ukraine ([GC], no. 76639/11, §§ 102 and 115-17, 25 September 2018) and submitted that the disputed measures did not affect the applicant’s reputation (the reason-based approach) and had not had serious negative consequences for her private life (the consequence-based approach). According to the Government, the measures complained about did not result in any substantial loss of salary to the applicant; she was not deprived of the status and benefits of being a judge of the HAC. The Government therefore asserted that the disputed measures had not crossed the threshold of seriousness as was required to engage Article 8, so the applicant’s complaints were incompatible ratione materiae with the Convention.28. The applicant disagreed with the Government, insisting that her case did engage Article 8 of the Convention. In particular, the applicant underlined that, like in the Gumenyuk and Others case, the 2016 legislative amendments and their subsequent implementation had effectively prevented her from exercising her judicial functions, without formally dismissing her. In addition, according to the applicant, having been de facto removed from the judicial service but still holding a judicial mandate, she was subject to legal restrictions on her ability to take up other employment or to develop her career; her salary was five times lower than the salary paid to the judges of the new SC.The Court’s assessment29. In Gumenyuk and Others (cited above, §§ 87-89), the Court has already dealt with the question of whether Article 8 of the Convention was engaged when judges of the old SCU were prevented from exercising their judicial functions without being formally dismissed as a result of the 2016 legislative amendments and their subsequent implementation. The Court observed in that case that “[t]he reasons underpinning those measures were not expressly related to the applicants, let alone to their private lives” (the reason-based approach). The Court relied on the consequence-based approach, saying that “even assuming that the applicants were not substantially affected financially, the impugned measures deprived them of the opportunity to continue their judicial work and to live in the professional environment where they could pursue their goals of professional and personal development”. The Court therefore concluded that “the impugned measures affected the applicants’ private lives to a very significant degree, falling therefore within the scope of Article 8”.30. The Court observes that the aforementioned findings in Gumenyuk and Others are fully relevant to the present case. The applicant complained about her continued inability to perform her duties as a judge without her having been formally dismissed, a situation which resulted from the same amendments and their subsequent implementation. Even though the reasons behind those measures were not linked to the applicant’s private life in any way, they had a direct bearing on her professional and personal development and her opportunities to establish relationships with others in the professional environment where she had previously worked. In addition, it is not in dispute between the parties that the measures complained about had significantly restricted the applicant’s ability to take up other employment opportunities or to develop her career, because she continued to hold a judicial mandate which prevented her from taking up other jobs until the issue of her employment in the national court system had been decided. The issue therefore had substantial repercussions on the applicant’s private life until her resignation in February 2024 (see paragraph 18 above).31. Having regard to the nature and duration of those adverse repercussions, the Court considers that the disputed measures affected the applicant’s private life seriously enough to engage Article 8 of the Convention.32. The Court further notes that the applicant’s complaints under Article 8 of the Convention are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. These complaints must therefore be declared admissible.MeritsThe parties’ submissions33. The applicant maintained that there had been a violation of Article 8 of the Convention because she had been unable to resume her judicial activities during a considerable period, although her suitability to sit as a judge in the ACC within the new SC, a cassation court allegedly equivalent to the HAC where she had previously worked, had been confirmed. Furthermore, the applicant asserted that the HQCJ and the HCJ, which had unfettered discretionary powers to transfer judges from one court to another, had not even given her a transfer to a lower court where she could still perform her judicial duties.34. The Government contended that the measures complained about had a clear basis in domestic law and pursued the legitimate aim of reforming the domestic judiciary. Moreover, according to the Government, the measures at issue were not disproportionate in respect of the applicant, who had had the options of participating in the competition for the new SC or being transferred to a lower court.

Article of the Convention at issue: Article 8
Outcome: violation