For the first time in its history, the European Court of Human Rights (ECtHR) ordered a Member State to reinstate a dismissed former judge. In its January 2013 judgment in Oleksandr Volkov v. Ukraine, the ECtHR found that Ukraine violated Article 6 (right to fair trial) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR) when the High Council of Justice dismissed Supreme Court Justice Oleksandr Volkov in May 2010 due to an alleged “breach of oath.” The ECtHR ordered Ukraine to reinstate him as a Supreme Court judge immediately. Furthermore, in view of the serious systematic problems concerning the functioning of the Ukrainian judiciary, the Court, under Articles 41 (just satisfaction) and 46 (binding force and execution of judgments), recommended that Ukraine immediately reform its system of judicial discipline.
Volkov became a Supreme Court judge in 2003. In December 2007, he was elected as a member of the High Council of Justice, but the Parliamentary Committee of the judiciary refused to allow him to take the oath of office or assume his duties. Two members of the High Council of Justice conducted preliminary inquiries in December 2008 and March 2009, looking into possible misconduct by Volkov. According to the ECtHR, Volkov had failed to recuse himself in cases concerning family members and had made, “gross procedural violations. However, Volkov did not have an opportunity to rebut the charges.
Following the inquiries, the President of the High Council of Justice submitted two applications to Parliament for Volkov’s dismissal. In June 2010, Parliament voted for Volkov’s dismissal for “breach of oath.” Volkov appealed unsuccessfully to the Higher Administrative Court against his dismissal. He subsequently challenged his dismissal before the Higher Administrative Court (HAC), but that court found the High Council of Justice’s dismissal had been lawful and refused to re-consider.
In response to Volkov’s petition, the ECtHR found four separate violations of the Article 6 right to fair trial. First, the Court held that the judicial bodies that had considered Volkov’s case were neither independent nor impartial. The Court emphasized that there were “structural deficiencies in the proceedings before the High Council for Justice,” including clear indications that a number of members had personal biases against Volkov. The Court further found that Parliament’s hearing of the case increased the politicization of the judicial process and limited the possibility of an independent judiciary and separation of powers. Furthermore, the review of the case by the Higher Administrative Court did not remedy these defects.
The ECtHR additionally found that Ukraine breached the principle of legal certainty by not limiting the period of review for the proceedings against Volkov. By violating fair voting practices through casting multiple ballots, the Court held that the Ukrainian parliament violated the Ukrainian Constitution and other legislation, therefore implicating the principle of legal certainty. Second, the ECtHR found a violation of the Article 8 (right to privacy) because the Court deemed Volkov’s dismissal to be inconsistent with domestic law as well an impermissible interference with his private and professional life. Because Ukraine had not established guidelines or normative practices establishing a consistent interpretation of the notion of “breach of oath,” the procedure lacked adequate procedural safeguards to prevent arbitrary use.
In conclusion, the Court found that the serious systemic problems result from the failure to organize the judicial branch to ensure sufficient separation of powers. The Court faulted the Ukrainian judiciary system for not providing sufficient “guarantees against abuse and misuse of disciplinary measures,” and found that this failure undermines the entire Ukrainian democracy. To remedy these violations, the ECtHR ordered Ukraine to carry out reform of the judicial discipline system, including legislative reform to help create sufficient separation of the judiciary from other branches of state power.
The ECtHR’s order and competence to reinstate a judges based on the violation of the right to a fair trial and the right to respect for private life found in this case demonstrate the scope and outreach a decision of the ECtHR potentially holds. By insisting upon an independent judiciary and fair proceedings, the Court’s decision can help propel necessary legal reforms and limit detrimental political influences. A political independent national judiciary is a critical tool, necessary for the protection of human rights in countries. According to the Court’s decision, Ukraine must show the Court that its efforts have increased judicial independence and processes.