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.