Oleksandr Volkov v. Ukraine: Independence and impartiality of the judiciary

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The Oleksandr Volkov v Ukraine case concerned the dismissal of a Supreme Court Judge, the applicant Mr. Volkov, and the proceedings leading up to it. More generally the judgment regards issues related to the independence and impartiality of the judiciary.

Facts

In 2010, having reviewed the applications by the High Council of Justice (HCJ), the Ukrainian Parliament voted for the dismissal of Mr. Volkov for ‘breach of oath.’ The applicant complained that the proceedings before the HCJ had lacked impartiality and independence; given the way in which the HCJ was composed and alleged conflicts of interest. Additionally, Mr. Volkov claimed that he was a victim of political corruption. He complained inter alia that during the vote Members of the Parliament who had attended had used their absent peers’ voting cards – the misuse of voting cards was confirmed by witness statements and a video.

Judgment of the European Court of Human Rights

Considering the composition of the HCJ, its vast majority comprised of non-judicial members appointed directly by the Ukrainian Government and the Parliament. Additionally, the Minister of Justice and the Prosecutor General were ex officio members of the HCJ, which created a risk that judges would not act impartially when appointing, disciplining and removing judges. Furthermore, the Court found that the members of HCJ who had requested Mr. Volkov’s dismissal were personally biased against him and involved in political corruption; two of the parliamentary committee of the judiciary were at the same time members of the HCJ.

 

The Court found therefore four violations of Article 6 (right to a fair trial) and a violation of article 8 (right to respect for private and family life) of the ECHR. In particular, the Court held that the proceedings leading up to Mr. Volkov’s dismissal had not fulfilled the requirements of an ‘independent and impartial tribunal’; the proceedings before the HCJ had been unfair, the vote in Parliament on the applicant’s dismissal had been unlawful as certain Members of Parliament had unlawfully cast votes belonging to other Members of Parliament, and the review of the case carried out by the Higher Administrative Court had been insufficient, uncertain and had not complied with the principle of a ‘tribunal established by law.’

 

Implementation

Mr Volkov was reinstated as a Supreme Court judge on 2 February 2015.

Following the delivery of the judgment, reforms were initiated to the systems of judicial discipline and careers, through constitutional amendments, legislation and practical and institutional measures (such as a re-organisation of the High Council of Justice to reduce the possibility of any political influence; changes to procedures for evaluating judges and disciplinary sanctions; changes to the judicial review and appeals procedure against decisions to remove or discipline judges).

 

It was indicated however, in March 2020 at the meeting of the Committee of Ministers, that the laws introduced by Ukraine on Amendments to the Legal Framework Governing the Supreme Court and Judicial Governance Bodies, could have adverse effects on the independence of the Supreme Court and that the adoption of the law alone cannot fully resolve the deficiencies in the Ukrainian justice system. Therefore, the Committee urged the authorities to amend the mentioned law as well as to review the criminal law provisions relating to the liability of judges and to ensure that any potential influence or undue interference with judicial decision-making is eliminated and prosecuted. Ukrainian NGOs still stress that significant steps need to be taken in order to improve judicial independence in the country. The Ukrainian Government is to report on the measures taken by 15 June 2020.  

 

Useful links

·       Judgment and Press Release of the European Court of Human Rights

·       Case summary on Hudoc Exec