A judge against the state

A judge against the state

1. A person in a dispute with a state body expects it to be decided by a judge who depends on neither side. In Oleksandr Volkov v. Ukraine that was missing when the state dismissed a judge himself. The European Court of Human Rights delivered its judgment in the case on 9 January 2013. The story shows the signs by which a hearing is checked for independence and impartiality.

2. Oleksandr Volkov became a judge in 1983, and in June 2003 he was elected to the Supreme Court of Ukraine. Dismissals of judges were then prepared by the High Council of Justice, a body of twenty members that made submissions on appointing and dismissing judges. At the end of 2008 and in March 2009 two of its members conducted inquiries and asked for Volkov’s dismissal for “breach of oath”. Some of the allegations concerned 2003 and 2006.

3. The council examined these requests in 2010, and the whole dismissal procedure took about three weeks. On 26 May the council, with Volkov absent, adopted two submissions for his dismissal and sent them to Parliament. On 16 June the Parliamentary Committee on the judiciary recommended the dismissal. On 17 June Parliament voted for it: under the Constitution then in force, a judge was dismissed by the body that had elected him.

4. Volkov challenged his dismissal before the Higher Administrative Court of Ukraine. On 19 October 2010 that court found one of the council’s two submissions unlawful but could not quash it: the law only allowed it to declare such an act unlawful. It found the second submission lawful and well-founded and saw no violations in Parliament’s vote. The dismissal stood, and on 30 March 2011 Volkov lodged an application with the European Court of Human Rights.

5. The European Court of Human Rights is an international court in Strasbourg where a person can bring a complaint against their own state, because that state has joined the Convention for the Protection of Human Rights and undertaken to abide by the Court’s judgments. Article 6 of the Convention guarantees a hearing by an independent and impartial tribunal: shielded from pressure by other branches of power, free of prejudice and of any reason to suspect it. The Court examined whether the bodies that dismissed Volkov met that test.

6. The Government of Ukraine argued that these bodies met the requirements. In its view the council decided by majority, so any bias of individual members did not change the result; the committee’s opinion did not bind Parliament, and judicial review cured any defects. Volkov replied that the case was decided by the same people who had started it, that there were hardly any judges among them, that MPs voted for absent colleagues, and that the court had no power to quash the dismissal.

7. The European Court found unanimously that the council itself fell short of these requirements. Of the sixteen members who voted, only three were judges. Two members who had conducted the inquiries and asked for the dismissal then voted on it, and one of them presided over the hearing. The Court recalled the rule: “justice must not only be done, it must also be seen to be done”.

8. The later stages did not cure these defects. Parliament voted for the dismissal while most MPs were absent: those present used the voting cards of absent colleagues, although the Constitution requires MPs to vote in person. The administrative court could not quash the dismissal, and its chamber had been formed by a court president whose five-year term had already expired. The law set no limitation period for dismissal for breach of oath, so the judge had to defend himself over events of 2003.

9. Besides the right to a fair hearing, the Court found a violation of the right to respect for private life, because the dismissal affected the applicant’s professional relationships, his reputation and his family’s material well-being. Normally the state itself chooses how to remedy a violation. Here the Court held that a new hearing under the existing system would achieve nothing and indicated a specific measure: Ukraine must reinstate the applicant as a Supreme Court judge at the earliest possible date and urgently reform its system of judicial discipline.

10. The judgment became final on 27 May 2013. On 25 December 2014 Parliament, in a separate resolution enforcing the judgment, declared the dismissal resolution no longer in force as regards Volkov. On 2 June 2016 the Constitution was amended: since then a decision to dismiss a judge is taken by the High Council of Justice in a new composition, ten of whose twenty-one members are elected by the Congress of Judges, and breach of oath is no longer among the grounds for dismissal.

11. The judgment does not mean that judges cannot be dismissed: the European Court assessed the procedure, not whether Volkov had breached his oath. Nor did it quash Parliament’s resolution; Parliament itself declared it no longer in force. Four questions from this case apply to any proceedings: who decides, whether the accuser also votes, whether there is a limitation period, and whether a court can overturn the decision.