The European Court of Human Rights has
ruled in favour of Oleksandr Volkov, who was dismissed from his post as a
Supreme Court judge of Ukraine in May 2010 due to an alleged ‘breach of oath’.
The Court found violations of the right to a fair trial and respect for private
life and ordered Ukraine to reinstate him immediately as a Supreme Court judge,
the first time the Court has made such an order. Mr Volkov was represented by
the European Human Rights Advocacy Centre (EHRAC) based at Middlesex
University.
Mr Volkov was appointed as a Supreme
Court judge in 2003. In 2008, proceedings were brought against him before the
High Council of Justice for alleged professional misconduct, and he was
consequently dismissed by the plenary parliament from his post in 2010 for
“breach of oath”. Mr Volkov appealed unsuccessfully to the Higher
Administrative Court against his dismissal.
In its judgment, the Court found four
separate violations of the right to a fair hearing (Article 6(1)). Firstly, the
bodies which considered Mr Volkov’s case were not independent and impartial.
There were ‘structural deficiencies’ in the proceedings before the High Council
of Justice, a number of whose members were also found to be personally biased.
The hearing of the case by Parliament “only served to contribute to the
politicisation of the procedure and to aggravate the inconsistency of the
procedure with the principle of the separation of powers”. These defects were
not considered to have been remedied during the review of the case by the
Higher Administrative Court.
Secondly, the principle of legal
certainty was breached because there was no limitation period relating to the
proceedings against Mr Volkov.
Thirdly, the principle of legal
certainty was also violated because, during the plenary meeting of Parliament,
‘the MPs present deliberately and unlawfully cast multiple votes belonging to
their absent peers’, which violated the Ukrainian Constitution and other
legislation. Fourthly, the chamber of the Higher Administrative Court was not
considered to be a ‘tribunal established by law’ because its president had
continued to perform the duties of president after the expiry of the relevant
statutory time limit.
The Court also found a violation of
Article 8 of the Convention because Mr Volkov’s dismissal from the post of
judge did not comply with the domestic law and also because the law was
arbitrary.
The Court ordered the Ukrainian
authorities to reinstate Mr Volkov in the post of Supreme Court judge ‘at the
earliest possible date’.
Significantly, the Court found ‘serious
systemic problems as regards the functioning of the Ukrainian judiciary’ and
ordered Ukraine to carry out reform of the system of judicial discipline,
including legislative reform.
My colleague Prof. Philip Leach, who
directs the European Human Rights
Advocacy Centre at Middlesex, commented: “We are delighted by this decision. Mr
Volkov was the victim of endemic political corruption, which this judgment
confirms is prevalent in Ukraine. It is significant that the European Court
has, for the first time, ordered the reinstatement of someone who was unfairly
dismissed. This judgment confirms that the Ukrainian legal system is in urgent
need of fundamental reform.”
