FIFTH SECTIONCASE OF SAMSIN v. UKRAINE(Application no. 38977/19)  JUDGMENT(Merits) Art 8 • Private life • Unjustified dismissal and application of legislative lustration measures to former Supreme Court judge, in the absence of an individualised assessment of conduct and despite failure to submit lustration declaration • Legitimate aim achievable in circumstances of the case by accepting applicant’s resignation STRASBOURG14 October 2021 FINAL 28/02/2022 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Samsin v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou-Vikström, Jovan Ilievski, Lado Chanturia, Ivana Jelić, judges,and Martina Keller, Deputy Section Registrar,Having regard to:the application (no. 38977/19) 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, Mr Igor Leonovych Samsin (“the applicant”), on 18 July 2019;the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Articles 8 and 14 of the Convention and to declare the remainder of the application inadmissible;the parties’ observations;Having deliberated in private on 21 September 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The applicant complained, in particular, that his dismissal from the position of Supreme Court judge and the measures applied to him under the Government Cleansing (Lustration) Act had breached his rights under Article 8 of the Convention.THE FACTS2. The applicant was born on 30 November 1957 and lives in Kyiv. The applicant was represented by Mr I.V. Boychenyuk, a lawyer practising in Kyiv.3. The Government were represented by their Agent, Mr I. Lishchyna.4. Information on the background to the events leading to the adoption of the Lustration Act can be found in Polyakh and Others v. Ukraine (nos. 58812/15 and 4 others, 17 October 2019).5. The facts of the case, as submitted by the parties, may be summarised as follows.6. The applicant was first appointed as a judge in 1987. In 1995 he was appointed to the Supreme Court, and in 2003 that appointment was confirmed for an indefinite period (until retirement).7. In 2005 the Assembly of Judges of Ukraine elected him to the High Judicial Qualifications Commission (“the Commission”). The Commission’s primary role is the selection of candidates for judicial posts, and disciplinary proceedings against judges. The applicant was the Commission’s chairman from 2006 to 2009. In September 2010 the applicant was again appointed to the Commission by the head of the State Judicial Administration and elected its chairman.8. On 11 April 2014 the applicant’s tenure on the Commission was terminated on the coming into force of the Restoration of Trust in the Judiciary Act (see paragraph 33 below).9. On 16 October 2014 the Government Cleansing (Lustration) Act (“the GCA”) came into force (see the relevant provisions of the Act in paragraph 32 below).10. The President of the Supreme Court determined that the court’s judges had to submit the declarations required by the GCA between 1 and 11 December 2014. On 11 December 2014 the Acting President of the Supreme Court informed the Ministry of Justice (“the Ministry”) that the applicant had failed to submit that declaration.11. On 13 March 2015 the Ministry requested from the Commission information about individuals who were members of the Commission in 2010-2014 (the GCA’s “one-year rule”). The Commission provided the relevant information on 26 March 2015, confirming that the applicant had been a Commission member from 2010 to 2014, that is for more than a year in the relevant period.12. On 3 and 9 September 2015 the Ministry submitted to the High Council of Justice (“the HCJ’) applications seeking the applicant’s dismissal from his judicial post under the GCA on the grounds that he had not submitted his declaration, and because the GCA’s one-year rule applied to him.13. On 19 November 2015 the HCJ’s disciplinary section recommended to the HCJ that it open proceedings in relation to the Ministry’s applications. That recommendation was based on a report prepared by a member of the HCJ. Both documents stated that the GCA’s one-year rule applied to the applicant and that he had failed to submit the required declaration.14. On 11 July 2016 the applicant attempted to resign from the Supreme Court and submitted an application to that effect for examination by the HCJ (see the relevant provisions of the domestic law on judicial resignations in paragraph 29 below).15. On 9 September 2016 the HCJ decided to postpone its examination of the applicant’s resignation application until it had examined the Ministry’s applications.16. In the proceedings before the HCJ the applicant argued that he had not submitted a lustration declaration since, on a literal reading of the GCA, whatever he said in the declaration would lead to his dismissal. However, the applicant submitted that the provisions of the GCA could not lead to his dismissal since the GCA was contrary to the principles of post-Communist lustration set out in Council of Europe documents (see Polyakh, cited above, §§ 104 and 105), in particular as it provided for measures against civil servants without any evaluation of their individual role and conduct. The applicant stressed that he had not engaged in any blameworthy conduct and therefore application of the GCA measures to him could not serve the proclaimed purpose of the GCA, namely addressing the negative phenomena which had afflicted the civil service under the former President of Ukraine. He also pointed out that, in any event, he had already in 2014 been removed from the Commission under the Restoration of Trust in the Judiciary Act.17. On 25 April 2017 the HCJ dismissed the applicant from the position of Supreme Court judge. The HCJ found that the GCA’s one-year rule applied to the applicant, and he had failed to submit a lustration declaration. Subsequently the HCJ left the applicant’s resignation application without consideration because he had already been dismissed from judicial office. This deprived the applicant of the benefits associated with judicial retirement, banned him from employment in the civil service until the end of 2024, and put his name in a publicly accessible Lustration Register.18. The applicant appealed against the decision, reiterating the same arguments he had raised before the HCJ. The case was examined by the Administrative Court of Cassation (“the ACC”), sitting as a first-instance court.19. On 22 March 2018 the ACС suspended the proceedings concerning the applicant’s appeal until the Constitutional Court had ruled on the constitutionality of the GCA (for more detail on those proceedings see Polyakh, cited above, §§ 60-70)[1] but on 17 May 2018 the Grand Chamber of the Supreme Court quashed that decision and held that the examination of the case had to proceed.20. On 18 September 2018 the ACC allowed the applicant’s claim and quashed the HCJ’s decision. It found that, while the GCA applied to the applicant under the Act’s one-year rule and because the applicant had failed to submit a lustration declaration, the HCJ’s decision had been disproportionate. This was because the GCA’s goal was to remove certain categories of civil servants from their positions, not to punish them, and that goal could have been achieved by allowing the applicant to resign.21. The Ministry and the HCJ appealed.22. On 31 January 2019 the Grand Chamber of the Supreme Court quashed the ACC’s ruling and upheld the HCJ’s decision. The Grand Chamber agreed with the ACC’s assessment that the GCA applied to the applicant under the Act’s one-year rule and because the applicant had failed to submit a lustration declaration but considered that the proportionality principle had not been breached. The relevant parts of the Grand Chamber’s decision read, insofar as relevant:“[The ACC][2] came to the conclusion that the HCJ had breached the principle of proportionality because the applicant had intended to remove himself from the exercise of State power of his own volition, which would in itself be the result at which the lustration procedure was aimed. In other words, according to the position of the first-instance court, the interference with the rights of a person (dismissal of the plaintiff) did not justify the aim of the lustration process, that is the “balance was not achieved” and this conclusion was found by the court to be sufficient to set aside the decision of the HCJ of 25 April 2017...By contrast [the appellants] argued that the court’s conclusion concerning the violation of the constitutional right of the plaintiff to retire had not corresponded to the circumstances of the case because the HCJ had complied with the requirements of legislation in that respect.The Grand Chamber accepts this position of the appellants and considers it necessary to point out the following.The GCA establishes one procedure for voluntary removal of the subject of lustration from State power, that is for him to inform the competent authorities in his statement that restrictions under the GCA apply to him...The Grand Chamber specifies that the plaintiff did not lodge the statement envisaged by the Act.. within the time-limit set by the order of the president of the Supreme Court... This statement was not lodged later either.The plaintiff’s failure to submit the statement is grounds for the [imposition of restrictions under the Act] because this provision of the legislation is obligatory.The case-file material shows that on 11 July 2016 the plaintiff lodged the application for resignation from the position of the judge of the Supreme Court of Ukraine. In other words, the application was submitted after the HCJ had received applications from the Ministry... and started considering them according to the procedure established by law.Therefore the [grounds for the plaintiff’s dismissal] had arisen before he had expressed his willingness to resign. And that is why the HCJ had lawfully postponed the examination of his resignation application of 11 July 2016 until examination of the above-mentioned applications from the Ministry of Justice. This did not contradict the Rules of the HCJ.The Grand Chamber also considers it necessary to point out that the right to resign can be used by the judge if before the lodging of the application for resignation he had not committed any actions which may justify his dismissal by the competent authorities on other grounds.The reason for this is that the judge dismissed based on his resignation application retains the title of the judge... The title is not retained in case of dismissal on other grounds.According to section 120 of the Judiciary and the Status of Judges Act as worded at the relevant time the resignation application shall be launched by the judge directly with the HCJ which, within a month of receipt of that application, had to make an application for dismissal due to resignation to the authority who had appointed the judge. However this provision does not deprive the HCJ of the possibility to exercise other powers envisaged by the Constitution and the laws....

Outcome for Article 8: violation