Information Note on the Court’s case-law 253
Gumenyuk and Others v. Ukraine – 11423/19
Judgment 22.7.2021 [Section V]
Access to court
Civil rights and obligations
Former Supreme Court of Ukraine judges’ inability to contest the prevention from exercising their judicial functions after legislative reform: violation
Respect for private life
Unlawful prevention of former Supreme Court of Ukraine judges from exercising judicial functions after legislative reform: violation
Facts – Following legislative amendments in 2016 the Supreme Court of Ukraine (SCU) was liquidated and replaced by the new Supreme Court (SC), in which the posts were filled exclusively by way of competition. The eight applicants were SCU judges and as a result of the amendments, since the beginning of the SC’s operation in December 2017, they were prevented from exercising judicial functions without their formal dismissal. This was despite a ruling on 18 February 2020 by the Constitutional Court, following a challenge by the plenary SCU, declaring the relevant legislative measures unconstitutional and confirming the validity of the applicants’ tenure.
Law – Article 6 § 1:
At the outset the Court emphasised that the Convention did not prevent States from taking legitimate and necessary decisions to reform the judiciary. It was aware of the complicated background and context of the impugned judicial reform in Ukraine and considered that it was not its role to pronounce on its goals and appropriateness or determine whether it was justified under Ukrainian constitutional law. What had to be examined in the instant case was whether manner in which the reform had been implemented had affected the applicants’ rights under the Convention.
(i) Existence of a right – Firstly, the applicants had been entitled under domestic law to remain judges until their retirement if none of the exceptional grounds set out in the Constitution for early termination of office materialised. Secondly, under the relevant constitutional principles they at least had an arguable basis to claim the right to be protected against arbitrary removal from judicial duties. Thirdly, the exact scope of the applicants’ “right” in this context had been sufficiently established and articulated under the domestic law by the Constitutional Court which had made it clear in its ruling that they had had a right to remain judges of the highest judicial body. Accordingly, and having regard to the role of the judicial functions which the applicants had been prevented from exercising, there had been a genuine and serious dispute over a “right” which the applicant could claim on arguable grounds under domestic law.
(ii) Civil nature of the right –The applicants’ dispute was not about renumeration but about their inability to exercise their mandate as judges which had direct bearing on their professional and personal development and the possibility to establish relationships with others. These private-law aspects of the case were substantial and could not be overweighed by the public nature of the applicants’ employment. Moreover, in view of the nature of the impugned unilateral measures and their considerable effects on the applicants’ professional life and the exercise of their judicial functions, excluding the dispute at issue from the protection of Article 6 would not only be artificial but also undermine the protection of the judiciary’s role in society.
To determine whether the right claimed by the applicants was “civil”, the Court applied the criteria developed in the judgment Vilho Eskelinen and Others v. Finland [GC]. Although in the circumstances it appeared that the applicants had not had a right of access to a court under national law in relation to their claim, the Court held that it was not necessary to give a conclusive opinion under the first condition of the Eskelinen test, since, the second condition of this test had not been met. In particular, bearing in mind the guarantees for the independence of the judiciary, the Court held that it would be a fallacy to assume that judges could uphold the rule of law and give effect to the Convention if domestic law deprived them of the guarantees of the Articles of the Convention on matters directly touching their individual independence and impartiality. It was therefore not justified to exclude members of the judiciary from the protection of Article 6 in matters concerning the conditions of their employment on the basis of the special bond of loyalty and trust to the State. Article 6 was thus applicable under its civil head.
The right of access to a court was one of the fundamental procedural rights for the protection of members of the judiciary and the applicants should have in principle enjoyed the direct access to court in respect of their allegations of unlawful prevention from exercising their judicial functions. Although the possibility of institutional action, as that initiated by the plenary SCU in the present case, could be a supplementary guarantee, it could not replace the right of a member of the judiciary to bring a court action in his or her personal capacity. It was hard to see how the aims of securing fair domestic judiciary and speeding up the domestic proceedings set out in the explanatory note to the draft law on judicial reform could be achieved by restricting the applicants’ access to court in relation to their claims regarding their prevention from exercising their judicial functions. In these circumstances, the absence of access to court was not reasonably proportionate to the legitimate aim sought.
Conclusion: violation (unanimously).
In the circumstances, the Court employed the consequence-based approach: having regard to the nature and duration of the negative effects on the applicants, it found that the impugned measures had affected their private lives to a very significant degree, falling therefore within the scope of Article 8. In particular, the impugned measures, albeit not expressly related to the applicants, had deprived them of the opportunity to continue their judicial work and to live in the professional environment where they could pursue their goals of professional and personal development. At the time of the Court’s examination of the case, these substantial effects had not been put right after the Constitutional Court’s ruling confirming the applicability of the principle of irremovability in their regard.
The main question in the present case was whether the interference with the applicants’ right to respect for private life, which originated from a parliamentary law, had been lawful for the purpose of the Convention. The Court found that it had not. In this connection, it attached weight to the Constitutional Court’s ruling declaring the relevant legislative measures unconstitutional and, particularly its findings that: the Constitutional amendments did not violate the principle of the institutional continuity of the highest judicial body which continued to operate under the name “Supreme Court”; the renaming of the judicial body envisaged in the Constitution could not take place without the transfer of SCU judges to the offices of SC judges, as there was no difference between their legal status; the removal of the word “Ukraine” from the phrase “the Supreme Court of Ukraine” could not justify the dismissal of all SCU judges or their transfer to another court. Thus, the SCU judges had to continue to exercise their powers as SC judges. The differentiation between SCU and SC judges was not consistent with the principle of irremovability of judges, which was part of the constitutional guarantee of judicial independence. Further, the Government had not shown that the manner in which the applicants had been compelled to compete in order to maintain their right to carry out their judicial duties and, in particular, the manner in which the competition had been organised, including the choice of assessors and the lack of institutional and procedural safeguards, could be reconciled with the Constitutional principles on the general protection of individual rights and with the specific guarantees relating to tenure of judicial office including the principle of the irremovability of judges which, according to the Court’s case-law and international and Council of Europe instruments, was a key element for the maintenance of judicial independence and public trust in the judiciary.
Nevertheless, despite the Constitutional Court’ s ruling, the issue of the applicants’ resumption of their judicial functions had still been under examination by Parliament and, since the SC had started to operate, the applicants had not been able to exercise their judicial functions as Supreme Court judges. There had, therefore, been a clear lack of coordination in addressing the applicants’ situation for a considerable period which had seriously undermined the legal certainty and predictability of the constitutional principles on judicial independence.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage to each applicant; claim in respect of pecuniary damage dismissed.
(See also Vilho Eskelinen and Others v. Finland [GC], 63235/00, 19 April 2007, Legal Summary; Baka v. Hungary [GC], 20261/12, 23 June 2016, Legal Summary; Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal Summary; Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 et al., 6 November 2018, Legal Summary; Bilgen v. Turkey, 1571/07, 9 March 2021)