FIFTH SECTION CASE OF OVCHARENKO AND KOLOS v. UKRAINE(Applications nos. 27276/15 and 33692/15) JUDGMENT Art 8 • Private life • Art 6 (civil) • Fair hearing • Constitutional Court judges’ dismissal for participating in a debatable judgment, without clear interpretation of the imputed “breach of oath” and the scope of their functional immunity • No legislative change since Oleksandr Volkov bringing about better foreseeability • Utmost caution and detailed reasons crucial where Constitutional judges are dismissed by Parliament • Domestic authorities’ use of discretionary powers undermining legal certainty, not justified by the context of massive protests and extraordinary change of State power • Inadequate judicial review lacking elaborate response on crucial issues • Clear European trend towards strict and narrow grounds for sanctioning Constitutional Court judges • Distinction to be made between a disputable interpretation or application of the law, on the one hand, and a serious and flagrant breach of the law, arbitrariness, a serious distortion of the facts, or an obvious lack of legal basis for a judicial measure, on the other hand • Cases concerning judges’ liability requiring consideration of mental element of alleged misconduct STRASBOURG12 January 2023FINAL 12/04/2023 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Ovcharenko and Kolos v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Georges Ravarani, President, Iulia Antoanella Motoc, Mārtiņš Mits, María Elósegui, Mattias Guyomar, Kateřina Šimáčková, Mykola Gnatovskyy, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the applications (nos. 27276/15 and 33692/15) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Mr Vyacheslav Andriyovych Ovcharenko (“the first applicant”) and Mr Mykhaylo Ivanovych Kolos (“the second applicant”), on 20 May and 2 July 2015 respectively;the decision to give notice to the Ukrainian Government (“the Government”) of the applications;the parties’ observations;Having deliberated in private on 29 November 2022,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The present case concerns the dismissal of two judges of the Constitutional Court of Ukraine, allegedly in breach of Articles 6, 8 and 18 of the Convention.THE FACTS2. The applicants were born in 1957 and 1953 respectively and were represented by Mr A. Bushchenko, at the relevant time a lawyer practising in Kyiv.3. The Government were represented by their Agent, Mr I. Lishchyna.4. The facts of the case may be summarised as follows.Background facts5. On 28 June 1996 the Parliament (Verkhovna Rada) of Ukraine enacted the Constitution of Ukraine.6. In December 2004 it introduced amendments to the Constitution which, among other things, increased the parliamentary features of the political system and diminished the powers of the President of Ukraine. Possible irregularities as to the manner in which the constitutional amendments were introduced were a matter of public debate which was also a point of discussion in the Parliamentary Assembly of the Council of Europe (PACE), as reflected in its Resolution 1466 (2005) of 5 October 2005 “Honouring of obligations and commitments by Ukraine” (see paragraph 43 below).7. On 4 August 2006 Parliament appointed the applicants as judges of the Constitutional Court of Ukraine (“the Constitutional Court”).8. On the same day, Parliament amended the “Final and Transitional Provisions” of the Constitutional Court of Ukraine Act (“the Constitutional Court Act”), specifying that the Constitutional Court was not authorised to review the constitutionality of Acts of Parliament concerning amendments to the Constitution.9. On 5 February 2008 the Constitutional Court, following an application by members of parliament, refused to open proceedings in relation to the constitutionality of the Act of Parliament by which the Constitution had been amended in December 2004. The court remarked that the provisions of an Act of Parliament amending the Constitution “had accomplished their function” once they had come into force. It then rejected the application for constitutional review on procedural grounds (for failure to indicate the full title and registration number of the impugned Act and the date of its enactment).10. On 26 June 2008 the Constitutional Court adopted a judgment declaring unconstitutional the provision of the Constitutional Court Act introduced in 2006 excluding from its jurisdiction Acts of Parliament on constitutional amendments (see paragraph 8 above). The court noted, in particular, that the Constitution established its power to examine the constitutionality of laws enacted by Parliament and made no exception as regards laws amending the Constitution.11. In February 2010 Mr V. Yanukovych was elected President of Ukraine.12. On 30 September 2010 the Constitutional Court, following an application by members of parliament lodged in July 2010, adopted a judgment declaring unconstitutional the 2004 amendments to the Constitution, finding that they had been enacted in breach of proper procedure. The court declared the amendments invalid with effect from the date of its judgment, and the applicability of the previous version of the Constitution was consequently restored. In its reasoning, the court referred, among other things, to PACE Resolution 1466 (2005) (see paragraphs 6 above and 49 below).Events of November 2013 to February 2014, change of power in Ukraine AND THE APPLICANTS’ REMOVAL13. In late November 2013 anti-government demonstrations commenced in Kyiv and then spread to other cities in Ukraine, turning into massive popular protests in the country, reportedly in response to the Cabinet of Ministers’ decision to suspend preparations for the signing of the Ukraine‑European Union Association Agreement. By late February 2014 the demonstrations had escalated into serious clashes between protesters and law‑enforcement authorities, causing numerous injuries and deaths (for further details, see Shmorgunov and Others v. Ukraine, nos. 15367/14 and 13 others, §§ 9-17, 21 January 2021).14. On 21 February 2014 Parliament adopted the Revalidation of Certain Provisions of the Constitution of Ukraine Act (“the Revalidation Act”) to revert to the 2004 Constitution with certain amendments. It also removed the Minister of the Interior from his post.15. On 22 February 2014 Parliament declared that Mr Yanukovych had unconstitutionally abandoned his duties as President. On the same day and on 23 February 2014 Parliament dismissed the Prosecutor General and took a number of further decisions concerning the change of high-ranking officials in the State and the functioning of executive power (for further details, see Shmorgunov and Others, cited above, §§ 44-45).16. On 24 February 2014 Parliament adopted a resolution “On responding to the ‘breach of oath’ by judges of the Constitutional Court of Ukraine”. By that resolution, Parliament, referring to Article 126 of the Constitution, dismissed, for “breach of oath”, the judges of the Constitutional Court who had been appointed under Parliament’s quota, as provided for in Article 148 of the Constitution (see paragraph 33 below), including the applicants. It then invited the acting President of Ukraine and the Congress of Judges to take measures to dismiss, for “breach of oath”, the other judges of the Constitutional Court (who had been appointed under the quotas of the President and the Congress of Judges, respectively). Lastly, it asked the Office of the Prosecutor General to initiate a criminal investigation into the circumstances in which the Constitutional Court had adopted its judgment of 30 September 2010 (see paragraph 12 above).17. In its reasons for adopting the above-mentioned resolution, Parliament stated that on 30 September 2010 the Constitutional Court had unconstitutionally amended the Constitution by appropriating parliamentary powers, and that it had infringed the fundamental constitutional principles of democracy and separation of powers and changed the constitutional system. In that regard, Parliament referred to the reasoning of the Constitutional Court’s ruling of 5 February 2008 (see paragraph 9 above) that the Act amending the Constitution “accomplished its function”, having become a part of the Constitution. Parliament further referred to the Venice Commission’s opinion of 20 December 2010 “On the constitutional situation in Ukraine” (see paragraph 50 below), stating that the Constitutional Court’s judgment of 30 September 2010 had called into question the legitimacy of the existing State institutions, since the President and Parliament had been elected under constitutional rules that were no longer recognised as valid; the President, with effect from that judgment, had enjoyed far more powers than could have been foreseen by the voters when he had been elected and, since that judgment, the workings of the main State organs had been based on rules changed by a court and not on rules changed by Parliament as a democratically legitimate body.18. Parliament further stated that on 29 May 2013 the Constitutional Court had adopted a judgment which had effectively made it impossible to hold elections in the city of Kyiv and the Ternopil Regional Council until October 2015. Parliament considered that, with that judgment, the judges of the Constitutional Court had violated citizens’ rights to elections.19. Lastly, Parliament stated that on 25 January 2012 the Constitutional Court had adopted a judgment allowing the Cabinet of Ministers to “manually” regulate the level of social payments, despite having previously adopted contrary decisions on the same subject matter. In that regard, Parliament found that the judges of the Constitutional Court had violated citizens’ constitutional rights to social security and an adequate standard of living.20. Parliament concluded that the judges of the Constitutional Court who had adopted the above-mentioned judgments had failed in their obligation to ensure the supremacy of the Constitution and to protect the constitutional system and citizens’ constitutional rights in violation of Articles 3, 19 and 147 to 153 of the Constitution, and that those failings had not been compatible with the judicial oath and the honest and rigorous performance of duties by a judge of the Constitutional Court.21. In March 2014 the applicants submitted statements of resignation, wishing to terminate their duties on a voluntary basis rather than by way of sanction applied by Parliament. Simultaneously, they challenged the parliamentary resolution of 24 February 2014 on their dismissal for “breach of oath” in court (see below).22. In a separate development, the Office of the Prosecutor General initiated criminal proceedings for unconstitutional seizure of State power by President Yanukovych through the introduction of amendments to the Constitution as a result of the adoption of an illegal judgment by the Constitutional Court, abuse of power by the judges of the Constitutional Court and the rendering of a knowingly illegal judgment on 30 September 2010. On 4 May 2020 the Pecherskyi District Court issued an arrest warrant in absentia for Mr Yanukovych within those criminal proceedings and that order was upheld by the Kyiv Court of Appeal on 25 March 2021. The proceedings in the case are still ongoing.Proceedings instituted by the first applicant23. On 27 February 2014 the first applicant, relying on the Code of Administrative Justice, lodged a claim with the Higher Administrative Court (“the HAC”) challenging his dismissal.24. On 18 June 2014 the HAC declared unlawful the parliamentary resolution of 24 February 2014 with respect to the first applicant’s dismissal. It found that Parliament had failed to follow the procedure for the dismissal of a judge of the Constitutional Court. In particular, the Rules of the Constitutional Court provided for a procedure requiring preliminary consideration of the case by the Constitutional Court itself, but that procedure had not been followed. Moreover, Parliament had adopted the impugned decision by way of simplified procedure[1], which was not possible in the event of dismissal of judges of the Constitutional Court. In its decision, the HAC also referred to section 28 of the Constitutional Court Act establishing the principle that Constitutional Court judges would not be held legally liable for the results of their votes in that court. The HAC lastly mentioned international legal principles concerning the independence of the judiciary and concluded that those principles had not been respected by Parliament.25. Parliament requested that the Supreme Court review the case.26. On 2 December 2014 the Supreme Court quashed the HAC’s judgment and dismissed the first applicant’s claim as unfounded. It reiterated the facts of the case, the relevant provisions of domestic law and the position of the parties, and further stated:“Analysing the essence of the violations that became the basis for the dismissal of V.A. Ovcharenko, the panel of judges of the Administrative Chamber of the Supreme Court considers it necessary to point out the following.As stated in the judgment [of 30 September 2010], the grounds for examination of the case by the Constitutional Court of Ukraine was an affirmation by 252 members of parliament on the non-compliance of Law no. 2222-IV with the Constitution of Ukraine.In deciding the matter raised in the constitutional complaint by the above-mentioned members of parliament, the Constitutional Court, in the reasoning of the judgment [of 30 September 2010], noted that recognising Law no. 2222-IV as unconstitutional owing to a violation of the procedure of its examination and adoption meant the renewal of the previous wording of the norms of the Constitution of Ukraine, which were amended, supplemented or repealed by Law no. 2222-IV.In item 3 of the operative part of that judgment, the Constitutional Court of Ukraine obliged the bodies of State power to immediately execute the judgment with respect to bringing normative legal acts into line with the Constitution of Ukraine of 28 June 1996 as worded prior to the amendments by Law no. 2222-IV.This conclusion of the Constitutional Court of Ukraine, as appears in Resolution No 775-VII, contradicts the procedure established by law for introducing amendments to the Constitution of Ukraine, according to which the provisions of law on amendments to the Constitution after they come into force become an integral part of the Basic Law – its individual provisions, and the law itself loses its function.The Constitution of Ukraine does not empower the Constitutional Court of Ukraine to recognise the invalidity (визнавати нечинність) of a constitutional norm, regardless of the legal form of its fixation.Under Article 85 § 1 (1) of the Constitution of Ukraine, the power of amending the Constitution of Ukraine is vested exactly in the [Verkhovna Rada] of Ukraine within the limits and in the manner prescribed by Chapter XII of the Constitution.The Constitutional Court, by its judgment [of 30 September 2010], in the adoption of which V.A. Ovcharenko participated, did not ensure the supremacy of the Constitution of Ukraine, actually amended it, breached the fundamental constitutional principle of democracy (народовладдя), changed the constitutional order of Ukraine, breached the constitutional principle of separation of powers and legitimacy of the acting institutions of State power, which resulted in their activities being based on the norms modified by the Constitutional Court of Ukraine and not by the [Verkhovna Rada] of Ukraine as the appropriate authority.The obvious non-compliance of the actions of V.A. Ovcharenko in the adoption of the judgment [of 30 September 2010] with the oath that he had taken, and the consequences of his actions, gave the [Verkhovna Rada] of Ukraine grounds to consider the actions of V.A. Ovcharenko as a breach of oath of a judge of the Constitutional Court and dismiss him from his position.”27. As regards the Constitutional Court’s judgments of 25 January 2012 and 29 May 2013, which were also examined in the impugned parliamentary resolution, the Supreme Court found that those two judgments had been made by the Constitutional Court within the scope of its discretion and that the first applicant’s participation in their adoption did not constitute a “breach of oath”[2].28. With respect to the procedure adopted for the first applicant’s dismissal, the Supreme Court found that the HAC’s reference to the Rules of the Constitutional Court had been unfounded since they had been an internal document of the Constitutional Court, and the latter had not been empowered by the Constitution or the Constitutional Court Act to regulate the procedure for dismissing its own members. By contrast, the first applicant had been dismissed in the course of a procedure which had been compatible with the Constitution and the Rules of Parliament.Proceedings instituted by the second applicant29. On 5 March 2014 the second applicant, relying on the Code of Administrative Justice, lodged a claim with the HAC challenging his dismissal.30. On 26 January 2015 the HAC dismissed the claim, referring to the Supreme Court’s legal position as laid down in its decision of 2 December 2014 in the first applicant’s case.31. The second applicant lodged an application with the Supreme Court for a review of the case, arguing, among other things that his participation in the judgment of 30 September 2010 adopted by the Constitutional Court could not constitute grounds for his dismissal, that Parliament had not ensured a fair and independent examination of the case, that the procedure under the Rules of the Constitutional Court had not been followed, and that he could not be held liable for a judgment for which he had voted as a member of the Constitutional Court.32. On 28 April 2015 the Supreme Court upheld the decision of 26 January 2015, repeating the reasoning given in the first applicant’s case.RELEVANT LEGAL FRAMEWORKRelevant domestic lawConstitution of 28 June 199633. The relevant provisions of the Constitution, as worded at the material time (prior to 2 June 2016), read as follows:Article 3“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value.Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State.”Article 19“The legal order in Ukraine is based on the principles according to which no one shall be forced to do what is not stipulated by law.Bodies exercising State power and local self-government bodies and their officials are obliged to act only on the grounds, within the limits of authority, and in the manner stipulated by the Constitution and the laws of Ukraine.”Article 126“The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine.Influencing judges in any manner is prohibited.A judge shall not be detained or arrested without the consent of the Verkhovna Rada of Ukraine, until convicted by a court.Judges hold office indefinitely, except judges of the Constitutional Court of Ukraine and judges appointed as a judge for the first time.A judge is dismissed from office by the body that elected or appointed him or her in the event of:(1)  expiry of the term for which he or she was elected or appointed;(2)  the judge’s attainment of the age of sixty-five;(3)  inability to continue his or her duties for health reasons;(4)  a violation by the judge of requirements concerning incompatibility;(5)  a breach of oath by the judge;(6)  entry into legal force of a verdict of guilty against him or her;(7)  termination of his or her citizenship;(8)  a declaration that he or she is missing, or the pronouncement that he or she is dead;(9)  submission by the judge of a statement of resignation or of voluntary dismissal from office.The authority of the judge terminates in the event of his or her death.The State ensures the personal security of judges and their families.”Article 147“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.The Constitutional Court of Ukraine decides on the conformity of laws and other legal acts with the Constitution of Ukraine and provides an official interpretation of the Constitution of Ukraine and the laws of Ukraine.”Article 148“The Constitutional Court of Ukraine is composed of eighteen judges of the Constitutional Court of Ukraine.The President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine each appoint six judges to the Constitutional Court of Ukraine.A citizen of Ukraine who has reached the age of forty on the day of appointment, has a higher legal education and at least ten years’ professional experience, has resided in Ukraine for the last twenty years, and has command of the State language, may be a judge of the Constitutional Court of Ukraine.A judge of the Constitutional Court of Ukraine is appointed for nine years without the right to be reappointed for a further term.The Chairman of the Constitutional Court of Ukraine is elected for one three-year term by secret ballot at a special plenary meeting of the Constitutional Court of Ukraine from among the judges of the Constitutional Court of Ukraine.”Article 149“Judges of the Constitutional Court of Ukraine are subject to the guarantees of independence and immunity, the grounds for dismissal from office provided for by Article 126 of this Constitution, and the requirements concerning incompatibility as determined in paragraph two of Article 127 of this Constitution.”Article 150“The Constitutional Court of Ukraine has authority to:1)  decide on the conformity with the Constitution of Ukraine (constitutionality) of:laws and other legal acts of the Verkhovna Rada of Ukraine;acts of the President of Ukraine;acts of the Cabinet of Ministers of Ukraine;legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea.Such issues are considered upon application by: the President of Ukraine; no less than forty-five People’s Deputies of Ukraine [members of parliament]; the Supreme Court of Ukraine; the Authorised Human Rights Representative of the Verkhovna Rada of Ukraine; the Verkhovna Rada of the Autonomous Republic of Crimea;2)  the official interpretation of the Constitution of Ukraine and the laws of Ukraine;On issues stipulated by this Article, the Constitutional Court of Ukraine adopts decisions mandatory for execution throughout the territory of Ukraine, and such decisions are final and shall not be appealed.”Article 151“The Constitutional Court of Ukraine, upon application by the President of Ukraine or the Cabinet of Ministers of Ukraine, provides opinions on the conformity with the Constitution of Ukraine of international treaties of Ukraine in force, or of international treaties submitted to the Verkhovna Rada of Ukraine for approval of their binding nature.Upon application by the Verkhovna Rada of Ukraine, the Constitutional Court of Ukraine provides an opinion on the observance of the constitutional procedure of investigation and consideration of the case of removing the President of Ukraine from office by the impeachment procedure.”Article 152“Laws and other legal acts, by decision of the Constitutional Court of Ukraine, are deemed to be unconstitutional, whether in whole or in part, should such laws not conform to the Constitution of Ukraine, or in the event of a violation of the procedure established by the Constitution of Ukraine for their review, adoption or entry into force.Laws and other legal acts or their separate provisions that are deemed to be unconstitutional lose legal force from the day the Constitutional Court of Ukraine adopts the decision on their unconstitutionality.Material or moral damages inflicted on natural and legal persons by acts or actions deemed to be unconstitutional are compensated by the State under the procedure established by law.”Article 153“The procedure for the organisation and operation of the Constitutional Court of Ukraine, and the procedure for its review of cases, are determined by law.”Chapter XIIIIntroducing Amendments to the Constitution of UkraineArticle 154“A draft law on introducing amendments to the Constitution of Ukraine may be submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no fewer National Deputies of Ukraine than one-third of the constitutional composition of the Verkhovna Rada of Ukraine.”Article 155“A draft law on introducing amendments to the Constitution of Ukraine, with the exception of Chapter I — "General Principles," Chapter III — "Elections. Referendum," and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine," previously adopted by the majority of the constitutional composition of the Verkhovna Rada of Ukraine, is deemed to be adopted, if at the next regular session of the Verkhovna Rada of Ukraine, no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine have voted in favour thereof.”Article 156“A draft law on introducing amendments to Chapter I — "General Principles," Chapter III — "Elections. Referendum," and Chapter XIII — "Introducing Amendments to the Constitution of Ukraine," is submitted to the Verkhovna Rada of Ukraine by the President of Ukraine, or by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and on the condition that it is adopted by no less than two-thirds of the constitutional composition of the Verkhovna Rada of Ukraine, and is approved by an All-Ukrainian referendum designated by the President of Ukraine.The repeat submission of a draft law on introducing amendments to Chapters I, III and XIII of this Constitution on one and the same issue is possible only to the Verkhovna Rada of Ukraine of the next convocation.”Article 157“The Constitution of Ukraine shall not be amended, if the amendments foresee the abolition or restriction of human and citizens’ rights and freedoms, or if they are oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine.The Constitution of Ukraine shall not be amended in conditions of martial law or a state of emergency.”Article 158“The draft law on introducing amendments to the Constitution of Ukraine, considered by the Verkhovna Rada of Ukraine and not adopted, may be submitted to the Verkhovna Rada of Ukraine no sooner than one year from the day of the adoption of the decision on this draft law.Within the term of its authority, the Verkhovna Rada of Ukraine shall not amend twice the same provisions of the Constitution.”Article 159“A draft law on introducing amendments to the Constitution of Ukraine is considered by the Verkhovna Rada of Ukraine upon the availability of an opinion of the Constitutional Court of Ukraine on the conformity of the draft law with the requirements of Articles 157 and 158 of this Constitution.”34. On 2 June 2016 Parliament amended, among other things, Article 149 of the Constitution to provide, in particular, that a Constitutional Court judge could not have a measure of legal liability imposed on him or her for voting for judgments or opinions adopted by that court, except in cases where the judge had committed a criminal or disciplinary offence.Code of Administrative Justice of 6 July 2005 (as worded at the material time)35. Pursuant to Article 161 of the Code, when an administrative court decided a case, it had to determine, among other things: (i) whether there were circumstances substantiating the claim and objections and what evidence they were supported by; (ii) whether there was any other factual information relevant to the case and evidence to support that information; and (iii) which legal provision was to be applied to the legal relations in dispute.36. Article 162 of the Code provided that, if it found a claim substantiated, an administrative court could, among other things, declare the impugned decision, action or omission unlawful, overturn or annul the decision in question, oblige the defendant to undertake or abstain from taking certain actions, or order the defendant to make payments. An administrative court could also take other decisions to ensure the protection of human and citizens’ rights, as well as the rights and interests of other subjects of public-law relationships.37. Article 171-1 of the Code provided, among other things, that acts, actions or omissions of Parliament could be challenged before the HAC. After considering the case, the HAC could: (i) declare the Act of Parliament unlawful in full or in part; or (ii) declare the actions or omission of Parliament unlawful and oblige it to take certain actions. On 8 April 2014 Article 171-1 was amended to provide that, in this type of case, the HAC could also take further measures as set out in Article 162 of the Code.38. On 14 March 2014 Article 171-1 was further amended to provide that, in such cases, the HAC’s judgment only entered into force after being reviewed by the Supreme Court or after the expiry of the time-limit for applying for such a review.Criminal Code of 5 April 200139. Article 375 of the Code (as worded at the relevant time) provided:“1. The adoption by a judge (or judges) of a knowingly wrongful conviction, judgment, decision or resolution shall be punishable by restriction of liberty of up to five years or imprisonment of two to five years.2. The same acts, if they led to serious consequences or were committed for financial gain or other personal benefit, shall be punishable by imprisonment of five to eight years.”Constitutional Court of Ukraine Act of 16 October 1996 (in force at the relevant time)40. Section 3 of the Act provided:“1. The organisation, competence and procedure for the functioning of the Constitutional Court of Ukraine shall be determined by the Constitution and this Act.2. The Constitutional Court of Ukraine shall adopt acts [decisions] which regulate the organisation of its internal operations in accordance with this Act.”41. Section 28 of the Act provided:“... Judges of the Constitutional Court of Ukraine shall not be held legally liable for the results of votes conducted or statements expressed in the Constitutional Court of Ukraine and its chambers, except in cases of liability for insult or defamation expressed in the course of the examination of cases, the adoption of judgments and the pronouncement of opinions by the Constitutional Court of Ukraine.”42. The new Constitutional Court Act was adopted on 13 July 2017. Section 24(3) reflects the new wording of Article 149 of the Constitution (see paragraph 34 above) and states that a Constitutional Court judge cannot have a measure of legal liability imposed on him or her for voting for judgments or opinions adopted by the Constitutional Court, except in cases where the judge has committed a criminal or disciplinary offence.The High Council of Justice Act of 15 January 1998 (“the HCJ Act 1998”), as worded at the relevant time43. Section 32(2) of the Act defined a breach of oath by judges as follows:“Breach of oath by a judge is:(i)  the commission of actions which dishonour the judicial office and may call into question his or her objectivity, impartiality and independence, as well as the fairness and incorruptibility of the judiciary;(ii)  unlawful acquisition of wealth or expenditure by a judge which exceeds his or her income and that of his or her family;(iii)  deliberate delay in considering a case within the time-limits fixed; [or](iv)  violation of the moral and ethical principles of the judicial code of conduct.”44. The above-cited provision was examined by the Constitutional Court in 2011 and found to be constitutional (see paragraph 47 below).Judiciary and Status of Judges Act 2010 (“the 2010 Judiciary Act”)45. Section 105 of the Act provides for the procedure for dismissal of a judge from office in case of breach of oath:“1. In accordance with paragraph 5 of [Article 126 § 5] of the Constitution of Ukraine, a judge shall be dismissed in the event of a breach of judicial oath.2. Facts indicating a breach of oath by the judge shall be established by the High Qualifications Commission of Judges of Ukraine or the High Council of Justice.3. Dismissal of a judge on the basis of a breach of judicial oath shall be performed upon a motion of the High Council of Justice after consideration of this issue at its meeting in accordance with [the HCJ Act].4. On the basis of a motion of the High Council of Justice, the President of Ukraine shall issue a decree on the dismissal of a judge.5. On the basis of a motion of the High Council of Justice, the [Verkhovna Rada] of Ukraine shall adopt a resolution on dismissal of a judge.”Rules of the Constitutional Court of Ukraine of 5 March 1997, with further amendments (as in force at the relevant time)46. In accordance with paragraph 63 of the Rules, if a body that had appointed a Constitutional Court judge raised the question of “breach of oath” by that judge, the Constitutional Court had to carry out an investigation and, following a conclusion of its Standing Committee on Rules and Ethics, had to take a decision as to the existence of grounds for dismissal of the Constitutional Court judge. It had to inform the relevant body of that decision within three days.Judgment of the Constitutional Court of Ukraine of 11 March 2011 on the constitutionality of certain provisions of the High Council of Justice Act47. Following an application by fifty-three members of parliament, the Constitutional Court of Ukraine examined several provisions of the HCJ Act, including section 32(2). The Constitutional Court of Ukraine noted with respect to that provision:“The procedure for appointment, election of a person to the position of a judge and the grounds for dismissal from that position are regulated by the Basic Law of Ukraine (Articles 126 [and] 128). Other issues of the legal status of judges are defined exclusively by the laws of Ukraine (paragraph 14 of [Article 92 § 1] of the Constitution of Ukraine).The legal status of a judge provides for both constitutionally defined guarantees of the independence and inviolability of judges in the administration of justice and legal liability for failure to perform their duties. Under the Basic Law of Ukraine, a judge is dismissed by the body that elected or appointed him, in the event, in particular, of a breach of oath by the judge; the submission of an application for the dismissal of judges belongs to the powers of the High Council of Justice (paragraph 5 of [Article 126 § 4], paragraph 1 of [Article 131 § 1]). The procedure and grounds for filing an application to dismiss judges for breaching their oath are established by section 105 of the Judiciary Act and section 32 of [the HCJ Act]....Observance of the oath is the duty of a judge under paragraph 4 of [section 54(4)] of the Judiciary Act and corresponds to paragraph 5 of [Article 126 § 5] of the Constitution of Ukraine. This gives grounds to consider that a judge’s observance of the oath is his constitutionally defined duty. Thus, the oath of a judge has the legal nature of a unilateral, individual, public law, constitutional obligation of a judge.A judge’s observance of his or her duties is a necessary condition for public trust in the judiciary and justice.Breach of oath by a judge is one of the grounds for his dismissal in accordance with paragraph 5 of [Article 126 § 5] of the Basic Law of Ukraine.The legal regulation of a judge’s liability for failure to comply with the oath of a judge in the form of dismissal is in line with the 1998 European Charter on the statute for judges, which allows judges to be sanctioned for dereliction of one of the duties expressly defined by the statute (paragraph 5.1).Thus, the [Verkhovna Rada] of Ukraine, having legally defined the criteria of liability for actions that constitute the breach of oath by a judge, acted within the powers and in the manner prescribed by the Constitution and the laws of Ukraine, and the provisions of section 32 of [the HCJ Act], which defines acts that are a breach of oath by a judge, do not contradict the Constitution of Ukraine.”48. On these grounds, the Constitutional Court found the provision in question to be constitutional.INTERNATIONAL MATERIALSMaterials concerning the situation in Ukraine49. In its Resolution 1466 (2005) of 5 October 2005 “Honouring of obligations and commitments by Ukraine”, PACE stated as follows:“14. The Assembly recalls its Resolutions 1346 (2003) and 1364 (2004), where it emphasised that all provisions of the constitution in force should be thoroughly respected ... . It deeply regrets that the constitutional amendments of 8 December 2004, adopted as part of a package deal to halt the political turmoil, contained provisions which the Venice Commission has repeatedly found incompatible with the principles of democracy and the rule of law, in particular with regard to the imperative mandate of people’s deputies and the powers of the Prokuratura. The Assembly is also concerned that the new constitutional changes were adopted without prior consultation with the Constitutional Court, as envisaged by Article 159 of the Ukrainian Constitution and interpreted in the Constitutional Court of Ukraine’s decision of 1998. Therefore, the Assembly urges the Ukrainian authorities to address these issues as soon as possible in order to secure the legitimacy of the constitutional amendments and their compliance with European standards.”50. The relevant extract from Opinion no. 599/2010 of 20 December 2010 “On the constitutional situation in Ukraine”, adopted by the Venice Commission at its 85th Plenary Session (CDL-AD(2010)044), reads as follows:“69. The recent constitutional history of Ukraine has involved constant challenges and attempts to find the right balance of powers between the President, the Cabinet and Parliament. It soon became apparent that the text of the 1996 Constitution did not, taking into account realities in Ukraine, provide for sufficient checks and balances and that there was a risk of authoritarian presidential system. The Venice Commission therefore supported, already in 2003, the efforts for constitutional reform. These efforts led to the adoption of the 2004 constitutional amendments. The change brought about by these amendments was welcome, in principle, but neither coherent nor well thought through. The amendments therefore led to increased tension, especially between the President and the Cabinet of Ministers.70. The reinstatement of the 1996 version of the Constitution by a judgment of the Constitutional Court of Ukraine raises questions of the legitimacy of past actions, as the institutions of Ukraine worked for several years on the basis of constitutional rules later declared unconstitutional. It also raises questions of legitimacy with respect to the present state institutions, since the President and the Parliament were elected under constitutional rules that are no longer recognised as valid. The President of Ukraine, as from this judgment, enjoys far more powers than could be foreseen by the voters when he was elected. The working of the main state organs is now based on rules changed by a court and not on rules changed by the Verkhovna Rada, as a democratically legitimate body.”Materials concerning the independence of judges and their irremovability from officeThe United Nations51. The Basic Principles on the Independence of the Judiciary were adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, which took place in Milan in 1985. They were endorsed by UN General Assembly Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. The relevant parts read as follows:“8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are like other citizens entitled to freedom of expression, belief, association and assembly; provided, however, that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary....12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists....18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”52. The Draft Universal Declaration on the Independence of Justice (“Singhvi Declaration”), prepared subsequently by the UN Special Rapporteur Mr. Singhvi, expands on the basic principles as follows:“Discipline and Removal26. (a)  A complaint against a judge shall be processed expeditiously and fairly under an appropriate practice and the judge shall have the opportunity to comment on the complaint at the initial stage. The examination of the complaint at its initial stage shall be kept confidential, unless otherwise requested by the judge.(b)  The proceedings for judicial removal or discipline when such are initiated shall be held before a Court or a Board predominantly composed of members of the judiciary. The power of removal may, however, be vested in the Legislature by impeachment or joint address, preferably upon a recommendation of such a Court or Board.27. All disciplinary action shall be based upon established standards of judicial conduct.28. The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.29. Judgments in disciplinary proceedings instituted against judges, whether held in camera or in public, shall be published.30. A judge shall not be subject to removal except on proved grounds of incapacity or misbehaviour rendering him unfit to continue in office.”In its Resolution 1989/32, the Commission on Human Rights invited governments to take into account the principles set forth in the declaration in implementing the United Nations’ Basic Principles on the Independence of the Judiciary.53. In its General Comment no. 32 on Article 14 of the International Covenant on Civil and Political Rights (Right to equality before courts and tribunals and to a fair trial) published on 23 August 2007, the UN Human Rights Committee stated as follows (footnotes omitted):“19. The requirement of competence, independence and impartiality of a tribunal in the sense of Article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.20. Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.”54. In 2006 the United Nations Economic and Social Council (ECOSOC) adopted Resolution 2006/23 “Strengthening Basic Principles of Judicial Conduct”, by which it endorsed the Bangalore Principles, which were drafted by a group of chief justices and superior court judges from around the world (the Judicial Integrity Group) and were intended to establish standards of ethical conduct for judges. The “Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (the Implementation Measures)”, adopted by the Judicial Integrity Group in 2010, contain the following sections on the discipline and removal of judges:“Discipline of Judges15.1  Disciplinary proceedings against a judge may be commenced only for serious misconduct. The law applicable to judges may define, as far as possible in specific terms, conduct that may give rise to disciplinary sanctions as well as the procedures to be followed....15.5  All disciplinary proceedings should be determined by reference to established standards of judicial conduct, and in accordance with a procedure guaranteeing full rights of defence.Removal of Judges from Office16.1  A judge may be removed from office only for proved incapacity, conviction of a serious crime, gross incompetence, or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary.16.2  Where the legislature is vested with the power of removal of a judge, such power should be exercised only after a recommendation to that effect of the independent authority vested with power to discipline judges.”55. In 2013 the Human Rights Council in its Resolution 35/12 “Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers” reiterated its earlier view and stressed that:“3.  ... the term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and age of retirement should be adequately secured by law, that the security of tenure of judges is an essential guarantee of the independence of the judiciary and that grounds for their removal must be explicit, with well-defined circumstances provided by law, involving reasons of incapacity or behaviour that renders them unfit to discharge their functions, and that procedures upon which the discipline, suspension or removal of a judge are based should comply with due process;”56. In the decision of the UN Human Rights Committee (CCPR) in Pastukhov v. Belarus, Communication No. 814/1998, UN Doc. CCPR/C/78/D/814/1998 (2003), the Committee stated as follows:“7.3  The Committee takes note of the author’s claim that he could not be removed from the bench since he had, in accordance with the law in force at the time, been elected a judge on 28 April 1994 for a term of office of 11 years. The Committee also notes that presidential decree of 24 January 1997 No. 106 was not based on the replacement of the Constitutional Court with a new court but that the decree referred to the author in person and the sole reason given in the presidential decree for the dismissal of the author was stated as the expiry of his term as Constitutional Court judge, which was manifestly not the case. Furthermore, no effective judicial protections were available to the author to contest his dismissal by the executive. In these circumstances, the Committee considers that the author’s dismissal from his position as a judge of the Constitutional Court, several years before the expiry of the term for which he had been appointed, constituted an attack on the independence of the judiciary and failed to respect the author’s right of access, on general terms of equality, to public service in his country.

Outcome for Article 41: violation