Published on 27 September 2021
FIFTH SECTION
Application no. 40066/18
Roman Ivanovych BREGEY against Ukraine
and 2 other applications
(see list appended)
communicated on 7 September 2021
SUBJECT MATTER OF THE CASE
The applications concern two judges of the domestic courts who unsuccessfully participated in the competition to the Supreme Court which was established as a result of a legislative reform of 2016. Not having succeeded, the applicants challenged the relevant decisions of the Higher Qualification Commission of Judges (“the HQCJ”) in court. Their claims were eventually dismissed by the newly established Supreme Court.
I. With regard to the establishment of the new Supreme Court and the competition to the new judicial posts in that court, the applicants complain as follows:
1. Mr Bregey complains under Articles 8 and 14 of the Convention that his access to the judicial profession was unlawfully restricted in violation of his right to respect for his private life. He argues that the competition was conducted in an unforeseeable manner in view of the allegedly unlawful and contradictory decisions by the HQCJ which failed to ensure neutrality and non-discrimination.
2. Ms Golovchuk complains under Articles 8 and 14 of the Convention that the establishment of the Supreme Court and ensuing liquidation of the Higher Administrative Court in which she had served as a judge was contrary to the principle of irremovability of judges and therefore constituted an unlawful interference with her right to respect for her private life. Ms Golovchuk argues that as a result of the liquidation of the Higher Administrative Court she was unlawfully obliged to take part in the competition to the new Supreme Court and that, not having succeeded, she was de facto removed from exercising her judicial duties. These measures allegedly disclosed unequal and discriminating treatment, contrary to Article 14 of the Convention.
3. Ms Golovchuk complains under Article 13 of the Convention that she does not have effective remedies in relation to the continuing situation in which she has been prevented from exercising her judicial duties.
II. With regard to the domestic court proceedings against the decisions of the HQCJ, both applicants complain under Article 6 § 1 of the Convention that in those proceedings: (i) the courts failed to ensure sufficient judicial review of the competition procedure, (ii) the courts did not provide adequate reasons for their decisions; (iii) the principle of judicial impartiality was not respected because the matter was examined by judges who had participated and succeeded in the same competition about which the applicants complained. Mr Bregey additionally alleges in that latter connection a violation of the principle of “tribunal established by law” with regard to the newly established Supreme Court.
QUESTIONS TO THE PARTIES
1. Is Article 8 of the Convention applicable to the applicants’ cases (see Denisov v. Ukraine ([GC], no. 76639/11, §§ 115 and 116, 25 September 2018)? Was the reputation of Mr Bregey seriously affected by the impugned decision of the Higher Qualification Commission of Judges (“the HQCJ”)? Was Ms Golovchuk given options of transfer to other judicial posts? Did Ms Golovchuk exercise her judicial duties after the Higher Administrative Court had stopped functioning? How does the fact that Ms Golovchuk continued receiving her salary after that date affect the issues under Article 8?
2. Has there been an interference with the applicants’ right to respect for private life, within the meaning of Article 8 § 1 of the Convention? If so:
(a) Was the interference in accordance with the law? Was the legal framework, as established and applied by the HQCJ, compatible with the requirements of quality of law? Did the HQCJ change the competition rules in an unforeseeable manner during the competition? Was the principle of legal certainty ensured by the decisions of the HQCJ?
(b) What is the relevance of the principle of irremovability of judges, as provided for under Ukrainian law, in the assessment of the complaint under Article 8 raised by Ms Golovchuk (see, mutatis mutandis, Gumenyuk and Others v. Ukraine, no. 11423/19, §§ 97-101, 22 July 2021, not final)?
(c) Did the interference pursue a legitimate aim and was it “necessary in the democratic society”?
3. Have the applicants suffered discrimination in the enjoyment of their Convention right under Article 8, contrary to Article 14 of the Convention? In particular:
(a) Has Mr Bregey been subjected to a difference in treatment in relation to other candidates who had not received the minimum grade for the written practical assignment but were admitted to the next stage of the competition? If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?
(b) Has Ms Golovchuk been subjected to a difference in treatment in connection with her status of judge of a court of cassation? If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?
4. Has Ms Golovchuk had at her disposal an effective domestic remedy for her complaint under Article 8 concerning her continued removal from judicial service, as required by Article 13 of the Convention? Has there been a violation of her right of access to a court under Article 6 § 1 of the Convention on that account?
5. With regard to the court proceedings initiated by the applicants concerning their participation in the competition to the Supreme Court, was Article 6 § 1 of the Convention under its civil head applicable (see Juričić v.Croatia, no. 58222/09, §§ 51-58, 26 July 2011; Dzhidzheva-Trendafilova v. Bulgaria (dec.), §§ 43-50, no. 12628/09, 9 October 2012; and Baka v. Hungary [GC], no. 20261/12, §§ 109-111, ECHR 2016)?
6. If so, were the applicants’ disputes examined in accordance with the requirements of Article 6 § 1 of the Convention? In particular:
(a) Did the courts exercise full jurisdiction and provided sufficient review of the decisions challenged by the applicants (see Tsanova-Gecheva v. Bulgaria, no. 43800/12, §§ 90-105, 15 September 2015)?
(b) Did the courts comply with their obligation to give reasons for their decisions and to reply to specific, pertinent and important arguments by the parties?
(c) Did the proceedings violate the applicants´ right to be heard by an independent and impartial tribunal under Article 6 § 1 of the Convention?
(d) Did the proceedings before the Supreme Court violate the right of Mr Bregey to be heard by a tribunal established by law guaranteed by Article 6 § 1 of the Convention (see, mutatis mutandis, Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 243-252, 1 December 2020 and Reczkowicz v. Poland, no. 43447/19, § 216 et seq., 22 July 2021, not final)?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
40066/18
Bregey v. Ukraine
12/08/2018
Roman Ivanovych BREGEY
1978
Kropyvnytskyy
Ukrainian
Bogdan Vasylyovych FOKIY
2.
16111/19
Golovchuk v. Ukraine
17/03/2019
Svitlana Volodymyrivna GOLOVCHUK
1961
Kyiv
Ukrainian
3.
4737/21
Golovchuk v. Ukraine
06/01/2021
Svitlana Volodymyrivna GOLOVCHUK
1961
Kyiv
Ukrainian
Full & Egal Universal Law Academy