Information Note on the Court’s case-law 221
August-September 2018
Denisov v. Ukraine [GC] - 76639/11
Judgment 25.9.2018 [GC]
Article 8
Article 8-1
Respect for private life
Dismissal of judge from the position of President of appeal court for failure to properly perform administrative duties: Article 8 not applicable; inadmissible
Facts – The applicant had been dismissed from the position of President of the Kyiv Administrative Court of Appeal on the basis of a failure to perform his administrative duties properly. He remained a judge of that same court. He complained, inter alia, that his dismissal had constituted an unlawful and disproportionate interference with his private life, contrary to Article 8 of the Convention.
Law – Article 8 (applicability): As the question of applicability was an issue of the Court’s jurisdiction ratione materiae, the general rule of dealing with applications had to be respected and the relevant analysis had to be carried out at the admissibility stage unless there was a particular reason to join that question to the merits. No such particular reason existed in the applicant’s case.
(a) General Principles – Article 8 could not be relied on in order to complain of a loss of reputation or other repercussions that were the foreseeable consequences of one’s own actions (see Gillberg v. Sweden [GC]).
Employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8. There were some typical aspects of private life which might be affected in such disputes. Those aspects included the applicant’s “inner circle”, the applicant’s opportunity to establish and develop relationships with others, and the applicant’s social and professional reputation. There were two ways in which a private-life issue could arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employed the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employed the consequence-based approach).
If the consequence-based approach was at stake, the threshold of severity with respect to those typical aspects of private life assumed crucial importance. It was for the applicant to show convincingly that the threshold had been attained. The applicant had to present evidence substantiating consequences of the impugned measure. The Court would only accept that Article 8 was applicable where those consequences were very serious and had affected his or her private life to a very significant degree.
An applicant’s suffering was to be assessed by comparing his or her life before and after the measure in question. In determining the seriousness of the consequences in employment-related cases it was appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. That analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remained for the applicant to define and substantiate the nature and extent of his or her suffering, which had to have had a causal connection with the impugned measure.
(b) Application – The explicit reasons for the applicant’s dismissal had been strictly limited to his performance in the public arena, namely his alleged managerial failings, which were said to have undermined the proper functioning of the court. Those reasons related only to the applicant’s administrative tasks in the workplace and had had no connection to his private life. In the absence of any such issues in the reasons given for his dismissal, it had to be determined whether, according to the evidence and the substantiated allegations put forward by the applicant, the measure had had serious negative consequences for the aspects constituting his “private life”.
The applicant contested the very existence of any misconduct, thus implying that the measure involving his legal liability – his dismissal – could not have been a foreseeable consequence of his conduct in the position of president of a court of appeal and therefore his case could be distinguished from the applicant’s case in Gillberg.
The applicant had not provided any evidence to suggest that the reduction in his monthly remuneration had seriously affected the “inner circle” of his private life. As to establishing and maintaining relationships with others, his dismissal from the position of president had not resulted in his removal from his profession. He had continued to work as an ordinary judge and he had remained at the same court alongside his colleagues. Even if the applicant’s opportunities to establish and maintain relationships, including those of a professional nature, might have been affected, there were no factual grounds for concluding that such effects were substantial.
The applicant’s principal professional function was that of a judge. The profession of judge required him to possess specific knowledge, educational qualifications, skills and experience. In recompense for his service in that capacity, the applicant had been paid the predominant part of his salary. The successful performance of a presidential or administrative function in a court was not, strictly speaking, a characteristic of the judicial profession. Therefore, in objective terms, the judicial function constituted the applicant’s fundamental professional role. His position as president of a court, however important and prestigious it might have been in the judicial sphere and however it might have been subjectively perceived and valued by the applicant, did not relate to the principal sphere of his professional activity. At no point had the domestic authorities examined the applicant’s performance as a judge or expressed any opinion as to his judicial competence and professionalism. Unlike in Oleksandr Volkov v. Ukraine, the decisions concerned only his managerial skills. That limited area of scrutiny and criticism could not be regarded as having related to the core of the applicant’s professional reputation. While his position as president might have been the apex of his legal career, he had not specified how the alleged loss of esteem among his peers had caused him serious prejudice in his professional environment or how his dismissal had affected his future career as a judge.
As regards social reputation in general, the criticism by the authorities had not affected a wider ethical aspect of the applicant’s personality and character. Even though his dismissal had been based on the findings of breaches of official duties in the administration of justice, there had been no accusation of intentional misconduct or criminal behaviour. The applicant’s moral values had not been called into question and no reproaches of that nature could be identified in the impugned decisions.
Accordingly, measuring the applicant’s subjective perceptions against the objective background and assessing the material and non-material impact of his dismissal on the basis of the evidence presented before the Court, it had to be concluded that the dismissal had had limited negative effects on the applicant’s private life and did not cross the threshold of seriousness for an issue to be raised under Article 8 of the Convention.
Conclusion: inadmissible (incompatible ratione materiae).
Applying the criteria set out in Oleksandr Volkov v. Ukraine, the Court found, unanimously, that the High Council of Justice had failed to ensure an independent and impartial examination of the applicant’s case and that the subsequent review by the Higher Administrative Court had not remedies those defects, in breach of Article 6 § 1 of the Convention.
Article 41: EUR 3,000 in respect of non-pecuniary damage.
(See Gillberg v. Sweden [GC], 41723/06, 3 April 2012, Information Note 151; and Oleksandr Volkov v. Ukraine, 21722/11, 9 January 2013, Information Note 159; see also Erményi v. Hungary, 22254/14, 22 November 2016)
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This summary by the Registry does not bind the Court.
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