CASE OF KULYKOV AND OTHERS v. UKRAINE

1. The case originated in eighteen applications (nos. 5114/09, 4588/11, 9740/11, 12812/11, 20554/11, 35336/11, 68443/11, 75790/11, 78241/11, 5678/12, 11775/12, 21546/12, 54135/12, 65207/12, 77810/12, 242/13, 15073/13 and 57154/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eighteen Ukrainian nationals (“the applicants”), whose particulars and the dates on which they introduced their applications are set out in Appendix I. The applicants ’ representatives (where appointed) are indicated in Appendix II.
2. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr Ivan Lishchyna.
3. The applicants alleged, in particular, that their dismissals from their posts of judge had violated their rights under Articles 6 and 8 of the Convention.
4. Application no. 4588/11 was communicated to the Government on 14 June 2011. The rest of the applications were communicated to the Government on 15 January 2014.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were domestic court judges. Proceedings were brought against them, resulting in their dismissal from the post of judge. The facts giving rise to their dismissals were established by the High Council of Justice ( Вища рада юстиції, hereinafter “the HCJ”). The HCJ ’ s decisions were submitted to Parliament or to the President of Ukraine (depending on which of those authorities had appointed the applicants to the post of judge) for the final decisions on their dismissals.
6. The applicants further unsuccessfully challenged their dismissals before the Higher Administrative Court (“the HAC”) or other courts.
B. Specific facts relating to each application
1. Application no. 5114/09 by Andriy Volodymyrovych KULYKOV
7. On 4 February 2004 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had ignored the instructions given to him by the chairman and deputy chairman of his court. In addition, the applicant had unlawfully instituted criminal proceedings against the chairman of the court. The HCJ further noted that the applicant had disregarded the internal rules of the court, his professional competence had not improved and he had had communication difficulties with colleagues from the court. It rejected the applicant ’ s contentions that the dismissal proposal had not been based on the real facts and that the chairman of the court had been biased against him and had interfered with the applicant ’ s professional activity. The HCJ concluded that the applicant had not fairly and duly performed his duties and had to be dismissed.
8. On 22 May 2008 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
(a) Challenging the HCJ decision
9. The applicant challenged the HCJ ’ s decision concerning his dismissal before the courts.
10. On 13 July 2007 the Shevchenkivskyy District Court of Kyiv rejected the applicant ’ s claim as unsubstantiated.
11. On 26 October 2010 the Kyiv Administrative Court of Appeal upheld the judgment.
12. On 2 November 2010 the applicant unsuccessfully applied to the court of appeal for a copy of the decision of 26 October 2010.
13. On 17 and 19 November 2010 the applicant lodged cassation appeals against that decision with the HAC. He was not informed about the outcome of the proceedings before the HAC.
(b) Challenging the parliamentary resolution
14. On 22 April 2009 the applicant challenged the parliamentary resolution of 22 May 2008 before the Kyiv Administrative Court.
15. On 13 October 2009 the court suspended the proceedings pending the outcome of the proceedings concerning the lawfulness of the HCJ ’ s decision.
16. On 16 August 2012 the court decided to leave the applicant ’ s claim without consideration on the merits.
2. Application no. 4588/11 by Volodymyr Mykolayovych KORZACHENKO
17. On 7 June 2010 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to the President of Ukraine to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant, acting as a first-instance judge, had disregarded the rules governing territorial jurisdiction in a case concerning a labour dispute in a State company. It further found that he had violated the rules governing the interim measures in that case. Substantial damage to the State had been caused as a result of the interim measure ordered.
18. On 6 July 2010 the President of Ukraine issued a decree dismissing the applicant from the post of judge on grounds of “breach of oath”.
19. The applicant instituted proceedings in the HAC challenging the HCJ ’ s decision and the Presidential decree concerning his dismissal.
20. On 28 July 2010 the HAC upheld the factual findings and legal assessments of the HCJ in the applicant ’ s case and dismissed the claims as unsubstantiated.
3. Application no. 9740/11 by Oleg Volodymyrovych BACHUN
21. On 17 May 2010 the HCJ established that the applicant had breached the judicial oath. It adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had systematically made procedural mistakes when administering justice, had adopted decisions in breach of domestic law and had wrongly applied interim measures. The HCJ also considered that the applicant had incurred expenses which were manifestly incommensurate with his official income. The HCJ concluded that the facts of the case suggested that the applicant had dishonoured the judicial profession and cast doubt on his objectivity and impartiality. Objections raised by the applicant were rejected as unsubstantiated.
22. On 3 June 2010 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
23. The applicant instituted proceedings in the HAC challenging the HCJ ’ s decisions and the parliamentary resolution concerning his dismissal.
24. On 13 August 2010 the HAC rejected the applicant ’ s claims as unsubstantiated.
4. Application no. 12812/11 by Sergiy Mykhaylovych KONYAKIN
25. On 11 June 2009 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful and unsubstantiated decisions and had failed to follow procedural rules when administering justice. Objections raised by the applicant were rejected as unsubstantiated.
26. On 3 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect.
27. The applicant instituted proceedings against Parliament challenging his dismissal before the HAC. In his claim he also argued that the conclusions of the HCJ were unfounded and unlawful; there had been violations in the proceedings before the HCJ. The HCJ joined the proceedings as a third party.
28. On 18 August 2010 the HAC rejected the applicant ’ s claims as unsubstantiated. It found that the HCJ ’ s conclusions were well-founded and that the decisions of the HCJ and Parliament were lawful.
5. Application no. 20554/11 by Lyudmyla Ivanivna STASOVSKA
29. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It adopted three decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted a number of unlawful and unsubstantiated decisions and that she had failed to follow procedural rules when administering justice. The HCJ considered that the applicant ’ s procedural mistakes had dishonoured the judicial profession, cast doubt on her objectivity and impartiality, and suggested that she had to be dismissed. Objections raised by the applicant were rejected as unsubstantiated.
30. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect.
31. The applicant instituted proceedings in the HAC challenging one of the HCJ ’ s decisions of 26 May 2010 and the parliamentary resolution concerning her dismissal.
32. On 23 September 2010 the HAC considered the case. It found that the HCJ ’ s decision was lawful and substantiated. As to the other two decisions taken on the same day by the HCJ, the HAC noted that the applicant had not challenged them. The HAC concluded that there were no grounds to examine the lawfulness of the HCJ ’ s other decisions. The HAC further found that the applicant ’ s right to participate in the plenary session of Parliament had not been respected and declared the parliamentary resolution in respect of the applicant unlawful.
33. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ ’ s decisions of 26 May 2010) and adopted a resolution to that effect.
34. The applicant instituted proceedings in the HAC challenging the second resolution of Parliament.
35. On 31 May 2011 the HAC rejected the claim as unsubstantiated. It found that the procedure for the applicant ’ s dismissal in Parliament and the resolution to that effect were lawful.
6. Application no. 35336/11 by Petro Olegovych KOVZEL
36. On 7 June 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to the President of Ukraine to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied an interim measure in a case where the Ministry of Justice had been the defendant. It concluded that the violation had cast doubt on the applicant ’ s objectivity and impartiality, and suggested that he had not duly performed his duties and had dishonoured the judicial profession.
37. On 18 June 2010 the applicant was dismissed by decree of the President of Ukraine.
38. The applicant challenged his dismissal before the HAC.
39. On 27 January 2011 the HAC found that the HCJ ’ s decision was unlawful. It then noted that the applicant had not sought to have the presidential decree concerning his dismissal “declared unlawful” but had sought the “quashing” of that decree. However, such a measure was outside the competence of the HAC. In that regard the HAC referred to Article 11 of the Code of Administrative Justice (“the CAJ”) considering that it was prevented by that provision from examining the case beyond the scope of the claims.
40. On 18 March 2014 the Acting President of Ukraine reversed the Presidential decree of 18 June 2010 concerning the applicant ’ s dismissal, having regard to the HAC ’ s decision of 27 June 2011.
41. On 19 March 2014 the applicant resumed his office of judge.
7. Application no. 68443/11 by Kyrylo Oleksandrovych KORMUSHYN
42. On 6 December 2010 the HCJ established that the applicant had breached the judicial oath. It adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had violated procedural rules when administering justice and that he had interfered with the activities of the law-enforcement authorities when they carried out a search operation. Those violations had cast doubt on the applicant ’ s objectivity and impartiality, and suggested that he had not performed his duties properly. The HCJ rejected the applicant ’ s contentions challenging the dismissal proposal.
43. On 23 December 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect.
44. The applicant challenged the decisions of the HCJ and Parliament concerning his dismissal before the HAC.
45. On 6 April 2011 the HAC rejected the applicant ’ s claims as unsubstantiated. According to the applicant, on that day the HAC delivered only the introductory and operative parts of the decision.
46. On 5 May 2011 the HAC dispatched a copy of the full text of the decision to the applicant. Allegedly, the applicant received that letter on 7 May 2011.
8. Application no. 75790/11 by Liliya Anatoliyivna VASINA
47. On 1 March 2011 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful and unfounded decisions, had wrongly applied an interim measure, and had committed procedural errors when administering justice. The HCJ considered that those violations had cast doubt on the applicant ’ s objectivity, impartiality and independence; they also suggested that she had ignored requirements of domestic law and had failed to perform her duties properly. The HCJ rejected objections raised by the applicant as unfounded.
48. The applicant challenged the HCJ ’ s decision before the HAC.
49. On 2 June 2011 the HAC rejected the applicant ’ s claim as unsubstantiated.
50. On 7 July 2011 a draft parliamentary resolution concerning the applicant ’ s dismissal was not adopted by a majority vote in Parliament.
51. On 3 November 2011 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect.
52. On 17 May 2012 the HAC rejected as unfounded the applicant ’ s claim against the HCJ and Parliament concerning her dismissal, noting in particular that the HCJ decision of 1 March 2011 had been earlier reviewed by the HAC. The HAC further found no violations in the parliamentary procedure for the applicant ’ s dismissal.
9. Application no. 78241/11 by Igor Ivanovych BARANENKO
53. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had participated, as a presiding judge, in the consideration of a case in which Judge V., a relative of his, had been a third party. The consideration of that case had resulted in a wrong decision, which had been quashed by a higher court. The HCJ further noted that the applicant had concealed the fact that he and Judge V. were related. The HCJ considered that those facts had cast doubt on the applicant ’ s objectivity and impartiality; they suggested that he had dishonoured the judicial profession, neglected the ethical rules of judicial conduct, and failed to carry out his duties properly. The HCJ rejected objections raised by the applicant as unfounded.
54. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect.
55. The applicant instituted proceedings in the HAC challenging the resolution of Parliament and arguing that the conclusions of the HCJ were unfounded and unlawful.
56. On 15 September 2010 the HAC considered the case. It noted that the applicant had not challenged the HCJ ’ s decision as such; nor had he indicated the HCJ as a party to the proceedings. The HAC concluded that there were no grounds to examine the lawfulness of the HCJ ’ s decision in respect of the applicant. It further found that the applicant ’ s right to participate in the parliamentary procedure had not been respected and declared the parliamentary resolution concerning the applicant unlawful.
57. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ ’ s decision of 26 May 2010) and adopted a resolution to that effect.
58. The applicant instituted proceedings in the HAC, challenging the second resolution of Parliament. He claimed that the conclusions of the HCJ were unfounded and unlawful, and that there had been violations in the proceedings before the HCJ. He requested that the HCJ be admitted to the case as a third party.
59. On 5 July 2011 the HAC considered the case and rejected the claim as unsubstantiated. It noted that the applicant had not challenged the HCJ ’ s decision as such and found that there were no grounds to review its findings. The HAC further found that the procedure for the applicant ’ s dismissal in Parliament and the resolution to that effect were lawful.
10. Application no. 5678/12 by Igor Anatoliyovych BONDARENKO
60. On 6 December 2010 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied domestic law in land and administrative cases and had not followed procedural rules when dealing with those cases. It concluded that those violations had cast doubt on the applicant ’ s objectivity and impartiality; they suggested that he had failed to carry out his duties properly and had dishonoured the judicial profession. Objections raised by the applicant were dismissed as unfounded.
61. On 21 April 2011 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
62. On 19 May 2011 the applicant applied to the HAC challenging the HCJ ’ s decision and the parliamentary resolution concerning his dismissal. He also claimed that he had missed the deadline for challenging the HCJ decision because of the serious illness of his child.
63. On 21 June 2011 the HAC left the applicant ’ s claim against the HCJ without consideration, finding that the applicant had missed the deadline for challenging the HCJ decision without a valid reason.
64. On 21 July 2011 the HAC dismissed the applicant ’ s claim against the parliamentary resolution as unsubstantiated. It noted in particular that the applicant had been informed of the plenary meeting of Parliament and that his failure to appear did not give grounds for declaring the parliamentary resolution unlawful.
11. Application no. 11775/12 by Nina Dmytrivna BABYCH
65. On 26 May 2010 the HCJ established that the applicant had breached the judicial oath. It therefore decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ found that the applicant had failed to follow procedural rules when administering justice in a corporate dispute and had adopted an unlawful decision in that case. It considered that those violations suggested that the applicant had dishonoured the judicial profession and had not acted diligently and impartially. Objections raised by the applicant were dismissed as unfounded.
66. On 17 June 2010 Parliament voted for the dismissal of the applicant and adopted a resolution to that effect.
67. The applicant instituted proceedings in the HAC challenging the HCJ ’ s decision and the resolution of Parliament.
68. On 18 August 2010 the HAC found that the decision of the HCJ was lawful. As to the proceedings in Parliament, the HAC found that the applicant ’ s right to participate in the parliamentary procedure had not been respected and declared the parliamentary resolution in respect of the applicant unlawful.
69. On 23 December 2010 Parliament once again voted for the dismissal of the applicant (on the basis of the HCJ ’ s decision of 26 May 2010) and adopted a resolution to that effect.
70. The applicant instituted proceedings in the HAC challenging the second resolution of Parliament. At the applicant ’ s request, the HCJ joined the case as a third party.
71. On 28 September 2011 the HAC considered the case and rejected the claim as unfounded. It noted that the HCJ ’ s decision of 26 May 2010 had been earlier reviewed by the HAC. It then found that the procedure for the applicant ’ s dismissal in Parliament and the resolution to that effect were lawful.
12. Application no. 21546/12 by Oleksandr Mykolayovych ROZDOBUDKO
72. On 14 June 2011 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had adopted several unlawful decisions and had committed procedural errors when administering justice. It considered that his errors had cast doubt on his objectivity, impartiality and independence, and suggested that he had not performed his duties properly.
73. On 22 September 2011 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
74. On 4 October 2011 the HAC dismissed a claim brought by the applicant concerning the alleged unlawfulness of the HCJ decision.
13. Application no. 54135/12 by Lidiya Volodymyrivna TOKAR
75. On 21 February 2007 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have her dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had wrongly applied an interim measure in a corporate dispute by which she had groundlessly interfered with the economic activities of a company; she had also failed to follow procedural rules when administering justice in that case. The HCJ found that those violations suggested that the applicant had not acted lawfully, impartially and independently. Objections raised by the applicant were rejected as unsubstantiated.
76. On 5 June 2008 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
77. The applicant challenged her dismissal before the Vinnytsya Administrative Court, arguing that the HCJ and Parliament had acted unlawfully.
78. On 28 November 2008 that court rejected the applicant ’ s claim as unfounded.
79. On 16 December 2009 the Kyiv Administrative Court of Appeal dismissed an appeal lodged by the applicant.
80. On 6 March 2012 the HAC dismissed a cassation appeal lodged by the applicant.
14. Application no. 65207/12 by Oleksandr Anatoliyovych SHKINDER
81. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reasons; he had prevented his judicial assistant from performing his functions; he had refused to take cases for consideration; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed.
82. On 12 April 2012 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
83. Between February and August 2012 the applicant attempted to institute proceedings in the HAC challenging the HCJ ’ s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ.
84. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal.
85. On 5 June 2012 the HAC rejected the applicant ’ s claim as unsubstantiated.
15. Application no. 77810/12 by Aleksandr Ivanovich VOLVENKO
86. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have him dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reason; he had refused to take cases for consideration; he had delayed the examination of criminal cases; he had prevented his judicial assistant from performing his functions; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed.
87. On 12 April 2012 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
88. Between February and August 2012 the applicant attempted to institute proceedings in the HAC, challenging the HCJ ’ s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ.
89. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal.
90. On 27 June 2012 the HAC rejected the applicant ’ s claim as unsubstantiated.
16. Application no. 242/13 by Yuriy Oleksiyovych STREBKOV
91. On 24 January 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make a submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant had on several occasions taken leave without obtaining the relevant approval from the court administration; he had failed to appear in the office without valid reason; he had refused to take cases for consideration; he had shown disrespect to the officers of the court registry; and he had not complied with the requirement to submit income-tax declarations. Having regard to those facts, the HCJ found that the applicant had neglected his professional duties, dishonoured the judicial profession and had to be dismissed.
92. On 12 April 2012 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
93. Between February and October 2012 the applicant attempted to institute proceedings in the HAC, challenging the HCJ ’ s decision. By several decisions the HAC refused to open proceedings, noting that the applicant had failed to prepare and submit his claim in accordance with the requirements of the CAJ.
94. The applicant instituted proceedings before the HAC, challenging the parliamentary resolution on his dismissal.
95. On 20 September 2012 the HAC rejected the applicant ’ s claim as unsubstantiated.
17. Application no. 15073/13 by Gennadiy Leonidovych NEMYNUSHCHIY
96. On 29 May 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. The HCJ found that the applicant had committed numerous procedural errors when reviewing, under newly discovered circumstances, a case involving local authorities. The HCJ considered that the errors had been committed intentionally; they cast doubt on the applicant ’ s objectivity and impartiality and called for his dismissal. Objections raised by the applicant were rejected as unsubstantiated.
97. The applicant instituted proceedings in the HAC, challenging the HCJ ’ s decision.
98. On 21 June 2012 a draft parliamentary resolution concerning the applicant ’ s dismissal was not adopted by a majority vote.
99. On 4 July 2012 the HAC rejected the applicant ’ s claim against the HCJ as unsubstantiated. According to the applicant, he received the full text of the decision between 24 and 26 July 2012.
100. On 5 July 2012 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
101. The applicant instituted proceedings before the HAC, challenging the resolution of Parliament.
102. On 4 September 2012 the HAC considered the case and rejected the claim as unfounded. It noted that the HCJ ’ s decision of 29 May 2012 had been earlier reviewed by the HAC. It further found that the parliamentary procedure for the applicant ’ s dismissal and the resolution to that effect were lawful.
18. Application no. 57154/13 by Nataliya Grygorivha SEREDNYA
103. On 16 October 2012 the HCJ established that the applicant had breached the judicial oath. It decided to make submission to Parliament to have her dismissed from the post of judge for “breach of oath”. The HCJ noted that the applicant, as a member of a panel of judges, had participated in the consideration of a criminal case and the adoption of the judgment in that case. Subsequently, that judgment had been partly quashed by a higher court on the grounds that it was unsubstantiated and the sentence was too lenient. The HCJ considered that the first-instance court ’ s judgment had had negative consequences: it had caused discontent in society, since the criminal case had been widely discussed in the media. The HCJ concluded that the applicant had disregarded the requirements of procedural law, had not acted diligently and impartially when considering the criminal case and had to be dismissed. Objections raised by the applicant were rejected as unfounded.
104. The applicant instituted proceedings before the HAC, challenging the HCJ ’ s decision.
105. On 28 February 2013 the HAC rejected the applicant ’ s claims as unsubstantiated. It noted, among other things, that the HCJ had repeatedly postponed the hearings due to the applicant ’ s failure to appear and had properly informed the applicant of the hearings.
106. On 23 May 2013 Parliament voted for the applicant ’ s dismissal and adopted a resolution to that effect.
A. Constitution of 28 June 1996
107. The relevant part of Article 19 of the Constitution provides:
“... 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 envisaged by the Constitution and the laws of Ukraine.”
B. Code of Administrative Justice of 6 July 2005 (“the CAJ”)
108. Article 2 § 3 of the CAJ provides as follows:
“3. In cases where the decisions, acts or inactivity of a public authority are being challenged, the courts shall review whether [the impugned decisions and acts] have been adopted or taken:
(3) in a substantiated manner, in other words with the consideration of all the circumstances that are relevant for the adoption of the decision (or taking of the act);
(7) in compliance with the principle of equality before the law ...
(8) proportionately, in particular, by ensuring the necessary balance between any possible unfavourable outcome for an individual ’ s rights, freedoms and interests and the aims the impugned decision or action seeks to achieve; ...”
109. Article 11 § 2 of the CAJ provides that the court should examine administrative case only on the basis of a claim submitted in accordance with the Code. The court cannot examine a case beyond the scope of the claim unless it is necessary to do so for the full protection of the rights, freedoms and interests of the parties to the case or other persons seeking the protection of their rights.
110. Article 160 §§ 1 and 3 of the CAJ provides that the administrative court should take a decision immediately after consideration of the case (paragraph 1). In exceptional circumstances, depending on the complexity of the case, the preparation of the full text of the decision may be postponed for up to five days from the date on which consideration of the case was terminated; however, the court should deliver the introductory and operative parts of the decision at the court session in which consideration of the case has been terminated (paragraph 3).
111. Article 167 § § 1 and 2 of the CAJ provides that the court ’ s decision should be delivered publicly immediately after the members of the court come out of the deliberation room. If the parties to the proceedings so request, the court should issue a copy of the decision (or its introductory and operative parts) on the same day. If the court delivers only the introductory and operative parts of its decision, it should indicate when the parties to the proceedings can receive a copy of the full text of the decision. The court should prepare the full text of the decision within the time-limit provided for in Article 160 § 3 of the Code.
C. Other provisions of domestic law
112. The Law on the status of judges of 15 December 1992 (in force until 30 July 2010) provided that upon initial appointment, a judge had to take solemnly the following oath: ‘ I solemnly declare that I will honestly and rigorously perform the duties of judge, abide only by the law when administering justice, and be objective and fair. ’
113. Other provisions of domestic law can be found in Oleksandr Volkov v. Ukraine (no. 21722/11, §§ 56-77, ECHR 2013).
114. On 8 April 2014 Parliament enacted legislation on the restoration of trust in the judiciary in Ukraine, which took effect on 11 April 2014. Paragraph 3 of Chapter II entitled “Final and Transitional Provisions”, provided, inter alia, that on the day of the Act ’ s entry into force, the powers of the current members of the HCJ, except for the Minister of Justice and the Prosecutor General, were terminated and that the new composition of the HCJ must be formed in accordance with the law.
D. Recent amendments to domestic law
115. On 2 June 2016 Parliament adopted amendments to the Constitution regarding the judiciary (which took effect on 30 September 2016, except for a provision concerning the jurisdiction of the International Criminal Court, which will take effect three years after the publication of the amendments). On the same day Parliament adopted the new law on judiciary and the status of judges (which took effect on 30 September 2016, except for certain transitional provisions which took effect earlier). The explanatory notes to both draft laws stated that the legislature had incorporated all the key recommendations made in relation to those draft laws by the European Commission for Democracy through Law (“the Venice Commission”). Those recommendations concerned the principles of the formation and functioning of the bodies responsible for the judicial profession; ensuring that judicial appointments and dismissals were depoliticised; as well as strengthening the independence of the judiciary.
116. The “Final and Transitional Provisions” of the Act introducing the amendments to the Constitution provided that following its entry into force, the termination of powers and the dismissal of judges must be conducted in accordance with those amendments to the Constitution; the powers of the Minister of Justice and the Prosecutor General as members of the HCJ were terminated; the other members of the HCJ would exercise, for the period of their office, the functions of members of the new High Council of Justice ( Вища рада правосуддя ); in any case, however, their term of office would expire on 30 April 2019.
117. Having regard to the similarity of the applications, the Court decided that, in the interests of the proper administration of justice, the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATIONS OF ARTICLES 6 AND 8 OF THE CONVENTION
118. Relying on Article 6 of the Convention, the applicants complained that their dismissal proceedings had been unfair and incompatible with the principle of an independent and impartial tribunal. Some of the applicants also complained, referring either expressly or in substance to Article 8 of the Convention, that their private lives had been substantially affected by their dismissals.
119. Having regard to the findings in the case of Oleksandr Volkov v. Ukraine ( no. 21722/11, §§ 165-87, ECHR 2013), the Court decided that, for the sake of a uniform approach and equal protection of human rights, the complaint under Article 8 of the Convention should be examined in all the applications.
120. The relevant parts of Article 6 § 1 and Article 8 of the Convention provide as follows:
Article 6 (right to a fair hearing)
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
Article 8 (right to respect for private and family life)
“1. Everyone has the right to respect for his private ... life ....
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.”
121. The Government referred to the Court ’ s findings in the case of Oleksandr Volkov (cited above, §§ 123-30), and submitted that all the applicants had not been obliged to challenge the decisions on their dismissals before the courts because such proceedings would not ensure an effective review of their cases. The Government maintained that all the applicants had missed the six-month deadline for applying to the Court, which had to be calculated from the date of the HCJ ’ s decisions in their cases.
122. The applicants disagreed and argued that their complaints were admissible.
(a) As to the exhaustion of domestic remedies
123. The Court notes that certain applicants failed either to properly apply for judicial review or to take all the steps required in order to complete judicial review at the domestic level. The Government did not submit any objection as regards the non-exhaustion of domestic remedies, considering instead that judicial review was ineffective. They made their objection based on the six-month rule, which is examined below. The Court reiterates that the scope of review of an applicant ’ s compliance with the rule on exhaustion of domestic remedies is limited by the Government ’ s objections (see, for example, Kotiy v. Ukraine, no. 28718/09, § 37, 5 March 2015 ). It follows that the applications concerned cannot be rejected on the ground that domestic remedies have not been exhausted.
(b) As to the Government ’ s objection based on the six-month rule
124. As noted above, the Government submitted that the six-month rule laid down in Article 35 § 1 of the Convention had to be counted from the date of the HCJ decisions in the applicants ’ cases because judicial review of their cases would not constitute an effective remedy.
125. The Court reiterates that as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate, for the purposes of Article 35 § 1, to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009, with further references).
126. The decisions of the HCJ and Parliament on the applicants ’ dismissals were open to appeal in the domestic courts. Even though the Court subsequently criticised those review proceedings in the case of Oleksandr Volkov (cited above, §§ 123-30), it cannot be argued that at the relevant time it was clear for the applicants that the available judicial review had been ineffective and should not have been pursued. On the contrary, the Court considers that where the applicants tried to settle their cases by way of available domestic judicial review, those attempts cannot be held against them (see, mutatis mutandis, Voloshyn v. Ukraine, no. 15853/08, § 42, 10 October 2013 ). In such cases the applicants reasonably waited for the completion of the court proceedings, even though they might not have met the requirements of effectiveness under the Convention (see, mutatis mutandis, Kaverzin v. Ukraine, no. 23893/03, § 99, 15 May 2012 ).
127. These considerations are equally pertinent to some of the applicants, who were waiting for the outcome of the proceedings in which the court reviewed only the parliamentary resolution on dismissal. Those applicants were reasonably entitled to assume that such resolutions were decisive for the termination of their employment. Indeed, in the absence of a parliamentary resolution on dismissal, there was no dismissal as such; a judge continued to work, despite the negative decision of the HCJ, and it could not be argued that his or her case had been finally determined. Accordingly, in the context of the six-month rule, those applicants cannot be reproached for having challenged the final decision in the process of their dismissal and having waited for the outcome of the relevant proceedings.
128. The Court therefore dismisses the Government ’ s objection under this head. It further notes that no other issues as to the six-month rule arise with the exception of one application addressed below.
(c) Otherwise as to the six-month rule in the application of Mr Kormushyn (no. 68443/11)
129. The Court reiterates that, where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment, whereas in cases where the domestic law does not provide for service, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to be informed of its content (see, among others, Oğuz v. Turkey (dec.), no. 14040/10, § 31, 5 November 2013, with further references). Where the court publicly pronounced the operative part of the final decision and gave a brief oral explanation of its reasons, but the applicant could familiarise himself with the written grounds for the decision only subsequently, that later date was taken as a starting point for the calculation of the six-month period (see Piętka v. Poland, no. 34216/07, §§ 44-46, 16 October 2012).
130. Mr Kormushyn alleged that on 6 April 2011 the HAC had pronounced only the introductory and operative parts of its decision, that the letter with the full text of the decision had been sent to him on 5 May 2011 and that he had received it on 7 May 2011.
131. Having regard to the evidence produced by the applicant and to the absence of any submissions by the Government refuting that evidence, the Court gives credence to the applicant ’ s allegation and considers that he did not have sufficient knowledge of the grounds and reasons for the final decision in his case until 7 May 2011. Accordingly, that date should be taken as the starting point for the calculation of the six-month period. Given that the application was introduced on 26 October 2011, the applicant did not miss the six-month deadline.
132. The Court notes that the above-mentioned complaints made by the applicants are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
133. The applicants maintained their complaints.
134. The Government did not comment on the merits.
1. Article 6 § 1 of the Convention
135. With regard to the complaints under Article 6 § 1 of the Convention that the domestic bodies dealing with the applicants ’ cases lacked independence and impartiality, the Court refers to its findings in Oleksandr Volkov (cited above, §§ 109-31). In that case, it concluded that the procedure before the HCJ and Parliament had disclosed a number of structural and general shortcomings which had compromised the principles of independence and impartiality, and that the subsequent judicial review had not remedied those shortcomings. The Court considers that those findings are equally relevant to the present applications.
136. The Court notes that in the applications of Mr Korzachenko (no. 4588/11) and Mr Kovzel (no. 35336/11) the HCJ ’ s decisions were submitted to the President of Ukraine, not to Parliament, for a final decision on the applicants ’ dismissals. Where that part of the decision-making process was entrusted to the President of the State, who had vast executive powers, it does not appear that that stage of the domestic procedure ensured the basic guarantees of judicial process typically required by Article 6 of the Convention. The Court considers that this distinctive feature in the intermediary stage of the complex domestic procedure does not affect the overall conclusion that the principles of independence and impartiality were not ensured at domestic level.
137. The Court holds that there has been a violation of Article 6 § 1 of the Convention in respect of all the applicants as regards non-compliance with the principles of independence and impartiality.
138. The Court has to determine whether the applicants ’ dismissals violated their right to respect for private life. In Oleksandr Volkov (cited above, §§ 166-67 and 173-85) the Court found that the applicant ’ s dismissal from the post of judge had constituted an interference with his private life and that such interference did not comply with the requirements of “quality of law” and was not therefore lawful for the purpose of Article 8 of the Convention. Those findings are relevant to the present applications and there is no reason to depart from them.
139. There has therefore been a violation of Article 8 of the Convention in respect of all the applicants.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
140. The applicants raised other complaints. In particular, relying on various Convention provisions, some of the applicants made the following complaints: their right of access to court had been unfairly restricted; the proceedings had been too lengthy; the principles of legal certainty, equality of arms, “tribunal established by law” and the public consideration of the case had not been respected; the decisions in their cases had been unlawful, and had not been properly reasoned and substantiated; their right to an effective remedy had not been ensured; their property rights had been violated; their dismissal had breached their right to express opinions; the authorities had failed to comply with the principle of ne bis in idem; and the dismissal proceedings had been discriminatory.
141. Having regard to the facts of the case, the submissions of the parties and the above findings under Article 6 § 1 and Article 8 of the Convention, the Court considers that the main legal questions in the present applications have been determined. It holds, therefore, that there is no need to give a separate ruling on the remaining complaints (see, among other authorities, Varnava and Others, cited above, §§ 210 - 211, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references).
IV. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
142. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
143. Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ...”
A. General and individual measures
144. Relying on Oleksandr Volkov (cited above, §§ 199-202 and §§ 205 ‑ 208), some of the applicants requested the Court to indicate to the Government the need to introduce general measures to reform the system of judicial discipline in Ukraine, as well as to take the individual measure of ordering their reinstatement.
145. The Government submitted that considerable legislative steps had been taken to reform the system of judicial discipline in Ukraine. They argued that after the events of February 2014, leading to an extraordinary change in State power in Ukraine, there had been a positive tendency towards protection of human rights and, in particular, the rights of judges. As an example, they referred to the case of Mr Kovzel (application no. 35336/11), who had been reinstated in his position. The Government suggested that they could therefore settle the issues of individual measures themselves.
146. As to the general measures, the Court considers that following its ruling on general measures in Oleksandr Volkov, there is no call to make any similar ruling in the present case. The applicants ’ request concerning general measures is therefore dismissed.
147. As regards the individual measure requested, namely the reinstatement of the applicants, in many cases where the domestic proceedings were found to be in breach of the Convention, the Court has held that the most appropriate form of reparation for the violations found would be the reopening of the domestic proceedings (see for example, Huseyn and Others v. Azerbaijan, nos. 3 5485/05, 45553/05, 35680/05 and 36085/05, § 262, 26 July 2011, with further references). In Oleksandr Volkov the Court considered that the reopening of the domestic proceedings was not an adequate measure. Having regard to the circumstances giving rise to the violations and the necessity of an extensive reform of the system of judicial discipline, the Court concluded in that case that there were no grounds to assume that the applicant ’ s case would be retried in accordance with the principles of the Convention in the near future and indicated to the Government that they had to secure the applicant ’ s reinstatement (see Oleksandr Volkov, cited above, §§ 207 and 208).
148. The Court notes that at the present time a full-fledged judicial reform is taking place in Ukraine which includes constitutional and further legislative amendments, as well as institutional changes. Against this background, the Court is not in a position to assess the effectiveness at the moment of the procedure for the reopening of the domestic proceedings, if requested by the applicants. However, given the scope and the circumstances of the present applications, it cannot be concluded that this substantially new background renders the relevant domestic procedures prima facie futile and useless. The Court does not therefore follow the approach taken in Oleksandr Volkov (ibid., § 208) as to the indication of an individual measure and dismisses the relevant request.
149. Most of the applicants claimed various amounts in respect of pecuniary damage, arguing that they had lost earnings and benefits, including pensions, to which they would be entitled upon reaching retirement age.
150. As regards the claim for past loss, the Government considered that some of the claims were entirely unsubstantiated and that others contained wrong calculations or lacked evidence. They further invited the Court to dismiss the claims for any future loss, arguing that that part of the claims was entirely hypothetical and speculative. In that regard, the Government referred to İlhan v. Turkey ([GC], no. 22277/93, § 109, ECHR 2000 ‑ VII), in which the applicant ’ s claim for compensation of future medical expenses was dismissed.
151. The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. In appropriate cases, this may include compensation in respect of loss of earnings (see Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 81, ECHR 2014). In the present case, the Court has found that the domestic proceedings for the applicants ’ dismissals were in breach of the Convention. There is therefore a sufficient causal link between those violations of the Convention and the applicants ’ loss of earnings.
152. Questions remain, firstly, as to the method used by the applicants to determine the amounts of compensation claimed in respect of pecuniary damage and, secondly, as to the evidence submitted in support of the claims.
153. The Court notes that a precise calculation of the sums necessary to make complete reparation (restitutio in integrum) in respect of the pecuniary losses suffered by an applicant may be prevented by the inherently uncertain character of the damage flowing from the violation. An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved, the more uncertain the link between the breach and the damage becomes. The question to be decided in such cases is the level of just satisfaction, in respect of either past or future pecuniary loss, to be awarded to an applicant, which is a matter to be determined by the Court at its discretion, having regard to what is equitable (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 171, ECHR 2005 ‑ VII).
154. The applicants based their calculation on the assumption that they would work until retirement age, after which they would be entitled to a pension. However, various eventualities impairing that assumption (for example, incapacity to work, dismissal, demotion, change of salary or pension rates) were not considered. Secondly, following dismissal the applicants were not prevented from taking up new employment, even though their dismissal records imposed certain limitations and might have had a negative impact on their prospects of finding new jobs. Meanwhile, the income received after the dismissal, as a result of new employment or obtained otherwise, would have to be examined and taken into account when determining the amount of pecuniary loss actually caused by the dismissal. In that regard, the Court observes that some of the applicants, in quantifying their pecuniary loss, submitted information on the earnings they had received from their new employment after their dismissal. Finally, the applicants ’ opportunities of reinstatement, mentioned above, substantially affect their estimate of the future loss.
155. Having examined the submissions by the parties and the available evidence, the Court, ruling on an equitable basis, awards 8,000 euros (EUR) to Ms L. Vasina in respect of pecuniary losses incurred between 2012 and 2014 (inclusively). The Court dismisses the remaining claims for pecuniary damage on the grounds that they are unsubstantiated and speculative.
156. Most of the applicants claimed various amounts in respect of non ‑ pecuniary damage. The Government objected to those claims, arguing that they were unfounded. The Court considers that the applicants must have sustained non-pecuniary damage which the finding of violations of the Convention in this judgment does not suffice to remedy. The Court, ruling on an equitable basis, makes awards to those applicants who submitted claims under this head as specified in Appendix II.
157. The majority of the applicants also claimed the reimbursement of the costs and expenses incurred before the Court.
158. The Government submitted that the claims were excessive.
159. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court finds it reasonable to make the followings awards:
(a) the eleven applicants represented by the European Human Rights Advocacy Centre based in London (“the EHRAC”), as specified in Appendix II, should be awarded jointly EUR 11,000 for costs and expenses incurred in the proceedings before the Court;
(b) Ms L. Vasina should be awarded EUR 600 for costs and expenses incurred in the proceedings before the Court.
160. The amounts awarded under this head are to be paid directly into the bank accounts of the applicants ’ representatives (see, for example, Hristovi v. Bulgaria, no. 42697/05, § 109, 11 October 2011, and Singartiyski and Others v. Bulgaria, no. 48284/07, § 54, 18 October 2011).
161. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;