Communicated on 23 November 2020
Published on 14 December 2020
FIFTH SECTION
Application no. 36452/20
Volodymyr Mykolayovych KOLESNYCHENKO
against Ukraine
lodged on 19 August 2020
STATEMENT OF FACTS
The applicant, Mr Volodymyr Mykolayovych Kolesnychenko, is a Ukrainian national, who was born in 1958 and lives in Kyiv. He is represented before the Court by Mr A. Fedur, a lawyer practicing in Kyiv.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a member of the High Council of Justice since 2007. In 2010 he became its President (see Oleksandr Volkov v. Ukraine, no. 21722/11, §§ 18 and 20, ECHR 2013) and remained in that position until 2013 when he ceased to preside but was re-appointed as an HCJ member. His membership was terminated with effect from April 2014 by operation of the Restoration of Trust in the Judiciary Act enacted the same month (see Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, § 79, 17 October 2019).
In 2012 the applicant received an indefinite term (that is, until retirement) appointment to the post of a judge of the High Specialised Court for Civil and Criminal Matters.
On 23 May 2017 the HCJ dismissed the applicant from judicial office pursuant to the Government Cleansing Act, on the grounds that he had been an HCJ member in 2010 to 2014 (see Polyakh and Others, cited above, § 73).
On 27 May 2019 the Administrative Court of Cassation, sitting as the first-instance court, ruled for the applicant and held his dismissal unlawful.
The High Council of Justice and the Ministry of Justice appealed to the Grand Chamber of the Supreme Court.
In the proceedings before the Grand Chamber the applicant invoked the Court’s judgment in Polyakh and Others (cited above).
On 21 May 2020 the Grand Chamber of the Supreme Court allowed the appeals, quashed the first-instance court’s judgment and rejected the applicant’s claim. The Grand Chamber distinguished the applicant’s case from those of the applicants in Polyakh and Others. It stated, notably, that while in those applicants’ cases there had been no indication that they had personally committed any misconduct, the applicant had personally contributed, in his role on the HCJ, to the violations established in Oleksandr Volkov (cited above).
COMPLAINTS
Under Article 6 § 1 of the Convention the applicant complained that the proceedings before the domestic courts had been unfair, notably because the Grand Chamber of the Supreme Court had relied on the arguments which had not been invoked when he had been dismissed from judicial office.
Under Article 8 the applicant complained that the measures applied to him under the Government Cleansing Act had breached his right to respect for his private life.
Under Article 14 taken in conjunction with Article 8 of the Convention the applicant complained that he had been discriminated vis-à-vis individuals who had not occupied high-ranking positions during the presidency of Mr Yanukovych and vis-à-vis another judge (T.) who had been in a similar situation as the applicant but had allegedly been allowed to resign without being subjected to lustration.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of equality of arms and adversarial proceedings respected as regards the grounds on which the decision of the Grand Chamber of the Supreme Court was based (see, for example and mutatis mutandis, Čepek v. the Czech Republic, no. 9815/10, §§ 44-50, 5 September 2013, and Les Authentiks and Supras Auteuil 91 v. France, nos. 4696/11 and 4703/11, § 50, 27 October 2016, with further references)?
2. Has there been an interference with the applicant’s right to respect for his private life within the meaning of Article 8 § 1 of the Convention? If so, did that interference comply with Article 8 § 2?
3. Has the applicant suffered discrimination in the enjoyment of his rights under Article 8 of the Convention, contrary to Article 14 of the Convention?
In particular, has the applicant been subjected to a difference in treatment? If so, did that difference in treatment pursue a legitimate aim and did it have a reasonable justification?
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