MARTYNYUK v. UKRAINE

FIFTH SECTION

DECISION

Application no. 82673/17
Nataliya Viktorivna MARTYNYUK
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 8 July 2025 as a Chamber composed of:

 Kateřina Šimáčková, President,
 María Elósegui,
 Georgios A. Serghides,
 Gilberto Felici,
 Diana Sârcu,
 Mykola Gnatovskyy,
 Vahe Grigoryan, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to:

the above application lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 November 2017;

the decision to give notice of the application to the Ukrainian Government (“the Government”);

the observations submitted by the Government and the observations in reply submitted by the applicant;

Having deliberated, decides as follows:

INTRODUCTION

1.  The present case concerns the alleged failure of the High Council of Justice to comply with a final court decision ordering it to re-examine a recommendation made by the High Qualification Commission of Judges that the applicant be appointed as a local court judge, allegedly in breach of Article 6 § 1 and Article 13 of the Convention.

THE FACTS

2.  The applicant, Ms Nataliya Viktorivna Martynyuk, is a Ukrainian national who was born in 1978 and lives in Lviv. She was represented before the Court by Mr R. Kravets, a lawyer practising in Kyiv.

3.  The Government were represented by their Agent, Ms M. Sokorenko from the Ministry of Justice.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 2 June 2016 Parliament adopted amendments to the Constitution with regard to the rules governing the organisation and functioning of the domestic judiciary (Law no. 1401, which came into effect on 30 September 2016).

Under amendments to Articles 126, 128 and 131 of the Constitution, judges of ordinary courts were to be appointed by the President of Ukraine on submissions by the newly established High Council of Justice (Вища рада правосуддя – “the new HCJ”) and an appointed judge held his or her office indefinitely (see paragraphs 17, 19 and 20 below). Before the amendments, those judges had initially had to be appointed by the President of Ukraine for a five-year period and by Parliament for an indefinite term; this had had to be performed on submissions by the previously existing High Council of Justice (Вища рада юстиції – “the old HCJ”; ibid.).

The requirements for becoming a judge, as provided for in Article 127 of the Constitution, also changed under the constitutional amendments regarding the judiciary (see paragraph 18 below). Pursuant to subparagraph 1 of paragraph 16-1 of Chapter XV (Transitional provisions) of the Constitution, the new HCJ had to be established by the reorganisation of the old HCJ; before such establishment, its powers had had to be exercised by the latter.

6.  The draft amendments to the Constitution were preliminarily discussed with the European Commission for Democracy through Law (Venice Commission). In its Opinion on the proposed amendments to the Constitution regarding the judiciary as approved by the Constitutional Commission on 4 September 2015 (no. 803/2015, CDL-AD(2015)027, 23‑24 October 2015), the Venice Commission expressed support for those constitutional amendments (see paragraph 23 below). Previously, the Venice Commission, in its Preliminary Opinion on the proposed constitutional amendments regarding the judiciary of Ukraine (no. 803/2015, CDL-PI(2015)016, 24 July 2015), welcomed the removal of Parliament’s power to appoint judges and the abolition of probationary periods for junior judges (see paragraph 24 below).

7.  While enacting the amendments to the Constitution, Parliament also enacted a new Law on the judiciary and status of judges on 2 June 2016 (Law no. 1402 – “the Judiciary Act of 2016”), which came into effect on 30 September 2016. According to the explanatory note on the draft law, it was intended, among other things, to introduce appropriate mechanisms for renewing judicial staff in order to meet the social demand for a fair judiciary in Ukraine.

On 21 December 2016 Parliament adopted a Law on the new HCJ (Law no. 1798 – “the new HCJ Act of 2016”), which came into effect on 5 January 2017. That act determined the status, powers, principles of organisation and procedure of functioning of the new HCJ.

On 29 November 2017 both acts were amended by Law no. 2147 of 3 October 2017 (see paragraphs 21 and 22 below). Those amendments are still in force.

8.  Under the legislation on the judiciary and status of judges (before and after the constitutional amendments), selection (добір) for judicial office is to be performed by the High Qualification Commission of Judges (“the HQCJ”). The selection process includes the following main stages: (i) the announcement of the selection; (ii) the submission of documents for the selection; (iii) the admission to the selection; (iv) a preliminary selection exam (відбірковий іспит); (v) a special background check; (vi) special training at the National School of Judges; (vii) a qualification exam (кваліфікаційний іспит); (viii) the creation of a reserve list of successful candidates and their rankings; (ix) the announcement and conduct of a competition (конкурс) for filling vacancies in accordance with the number of vacant judicial positions in local courts and on the basis of the ranking of candidates from the reserve list; and (x) the recommendation on the appointment of a candidate to judicial office.

9.  On 5 November 2012 the HQCJ announced a selection of candidates to positions of junior judges (for a five-year period). The next day the applicant pre-registered for that selection. The HQCJ then invited her to submit the relevant documents on 19 November 2012, which she did.

Having been admitted to the selection in December 2012, the applicant then passed the preliminary selection exam and underwent the half-year special training.

In September 2013 the applicant passed the qualification exam (with a score of 76 points out of 100), so the HQCJ then put her onto the reserve list.

10.  On 28 July 2016 the HQCJ announced a competition to fill vacant positions of local court judges among the candidates from the reserve list. The applicant took part in that competition, applying for a vacant post in the Novovolynsk City Court of Volyn Region.

On 15 September 2016 the HQCJ issued a recommendation for her appointment as a judge of the above-mentioned court.

11.  On 22 September 2016 the old HCJ refused to apply to the President of Ukraine to recommend that the applicant be appointed to the judicial position. The old HCJ explained its refusal by the fact that, at the time of the submission of documents to the HQCJ, she had lacked fifteen days out of the minimum of three years of professional legal experience which was required by the legislation in force (see paragraph 18 below). The applicant challenged that refusal in the courts.

12.  On 12 January 2017 the old HCJ delivered a decision on its reorganisation into the new HCJ, which became a legal successor to the rights and obligations of the old HCJ.

13.  On 12 April 2017 the Supreme Court upheld a judgment of the High Administrative Court (“the HAC”), dated 23 November 2016, quashing the old HCJ’s refusal of 22 September 2016 as unlawful and obliging the latter to re-examine the HQCJ’s recommendation for the applicant’s appointment as a junior local court judge (for a five-year period). The courts reasoned that she could not be blamed for the premature submission of documents to the HQCJ, since the date of such submission had been determined by the latter, without any possibility of choosing another date. Moreover, at the time of her admission to the selection and the HQCJ’s recommendation for appointment, the applicant had had sufficient professional legal experience to be regarded as suitable for the judicial position. The HAC’s judgment of 23 November 2016 became enforceable on 12 April 2017.

14.  In June 2017 the applicant requested the new HCJ to provide her with information about the time and means of enforcement of the final court decision delivered in her favour. In reply, she was notified of the impossibility of such enforcement, since the new HCJ Act of 2016 did not provide for a procedure for the re-examination of the HQCJ’s recommendation regarding the appointment of a judge. The new HCJ also pointed out that the HAC’s judgment of 23 November 2016 did not contain any instructions on a procedure for its enforcement. The new HCJ lastly informed the applicant that it had nevertheless requested the HQCJ’s recommendation for her appointment as a local court judge together with other relevant material.

15.  On 21 December 2017 the new HCJ re-examined the above-mentioned recommendation, returning it to the HQCJ for the organisation of an additional selection (a special check and a new competition for vacant judicial posts in local courts), as required by the Judiciary Act of 2016 and the new HCJ Act of 2016. The relevant provisions of those acts exempted candidates (such as the applicant) who had obtained more than 75% of a maximum possible score in the previous qualification exam from the need to undergo the repeated preliminary selection exam and special training or to pass another qualification exam (see paragraphs 21 and 22 below).

16.  On 5 August 2019 the HQCJ announced a competition to fill vacant positions of local court judges among the above-mentioned candidates. The applicant did not participate in that competition.

RELEVANT LEGAL FRAMEWORK

17.  Article 126 of the Constitution (as worded before the amendments of 2016) provided that judges held their posts for an indefinite term, except for judges of the Constitutional Court and those judges who had been appointed for the first time for a five-year period.

The amendments of 2016 of Article 126 of the Constitution set out the principle that judges should hold their posts for an indefinite term (except for judges of the Constitutional Court).

18.  In accordance with Article 127 of the Constitution (as worded before the amendments of 2016), a citizen of Ukraine who was at least twenty-five years old, had attained a higher legal education and at least three years of professional legal experience, resided in Ukraine for no fewer than ten years and had a command of the official State language could be recommended for appointment as a judge by a qualification commission of judges; additional requirements for certain categories of judges in respect of their experience, age and professional level had to be provided for by law.

The amendments of 2016 of Article 127 of the Constitution provide that a citizen of Ukraine who is at least thirty years old and no more than sixty-five years old, has a higher legal education and at least five years of professional legal experience, is competent and virtuous and has a command of the official State language can be appointed to the post of judge; the law may also provide additional requirements for the appointment of a judge.

19.  Under Article 128 of the Constitution (as worded before the amendments of 2016), the President of Ukraine appointed junior judges for a five-year period; all other judges, except for judges of the Constitutional Court, were elected by Parliament for an indefinite term in the order provided for by law.

The amendments of 2016 provide that the President of Ukraine appoints judges on submissions by the new HCJ in the order provided for by law (except for judges of the Constitutional Court).

20.  In accordance with Article 131 of the Constitution (as worded before and after the amendments of 2016), the old HCJ and the new HCJ operate in Ukraine with the authority, in particular, to submit candidates for judicial appointments.

21.  Paragraph 29 of Chapter XII (Final and transitional provisions) of the Judiciary Act of 2016 provides that shortlisted candidates to the position of judge and candidates who have been recommended by the HQCJ but not appointed to the position of judge may participate in the selection for judicial office in accordance with the procedure established by this Law without having to pass the preliminary selection exam or to undergo the special training; such candidates may be required to re-take the qualification exam and may participate in a competition for the position of judge depending on the score achieved.

22.  Paragraph 13 of Chapter III (Final and transitional provisions) of the new HCJ Act of 2016 provides that the material and submissions of the old HCJ on the appointment of junior judges which had not been dealt with before the entry into force of the constitutional amendments regarding the judiciary had to be transmitted to the new HCJ for a decision on the appointment of those judges.

The same paragraph also specifies that candidates for the position of judge whose materials have been transmitted to the new HCJ and who meet the requirements for appointment as a judge must undergo the special check and participate in a competition for the position of judge. If a candidate for the position of judge scored less than 75% of the maximum possible score on the qualification exam, taken before the entry into force of the Judiciary Act of 2016, he or she must re-take the qualification exam, undergo the special check and participate in a competition for the position of judge. For this purpose, the new HCJ must transfer the relevant material to the HQCJ.

23.  The following is an extract from the Venice Commission’s Opinion on the proposed amendments to the Constitution of Ukraine regarding the judiciary (see paragraph 6 above):

“39.  In the view of the Venice Commission, the latest version of the constitutional amendments prepared by the Working Group on the Judiciary of the Constitutional Commission of Ukraine is very positive and well-drafted, and deserves to be fully supported.”

24.  The following are extracts from the Venice Commission’s Preliminary Opinion on the proposed constitutional amendments regarding the judiciary (ibid.):

“23.  Article 126 § 5 provides that ‘judges shall hold office for an unlimited term’. This proposal and the proposed removal of current Article 128 deserve strong support, as they put an end to the practice of the probationary periods for junior judges, which the Venice Commission had repeatedly criticised, and introduce permanent tenure until the prescribed mandatory age of retirement (fixed at the age of 65: see Article 126 § 7 (1)) for all judges (with the exception of the judges of the Constitutional Court) [footnote omitted].

...

26.  The draft amendments under consideration will bring about a substantive and long overdue change in the system of appointment of the Ukrainian judges. Judges will no longer be elected by the Verkhovna Rada; they will be appointed by the President upon the submission of the High Council of Justice.”

COMPLAINTS

25.  The applicant complained that the domestic authorities had failed to enforce the final court decision in her case obliging the old HCJ to re-examine the HQCJ’s recommendation for her appointment as a junior local court judge and that there had been a lack of effective domestic remedies in this connection. The applicant relied on Article 6 § 1 and Article 13 of the Convention, which read as follows:

Article 6

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

THE LAW

26.  The Government contended that Article 6 § 1 of the Convention did not apply to the present case because there had been no genuine or serious dispute concerning the existence in domestic law of any “civil” right of the applicant, such as the right to a fair procedure for selection of judges or the right to equal access to civil service, and the court proceedings in question had not been directly decisive of the determination of this right. Most notably, the old HCJ’s refusal to apply to the President of Ukraine for the applicant’s appointment as a local court judge did not determine any rights or obligations of civil character, since the HQCJ’s recommendation for her appointment was not the final stage in the procedure for appointment as a judge.

27.  The Government submitted that the applicant’s complaints were ill‑founded because the final court decision in her favour could not be interpreted as an obligation to appoint her as a local court judge and the process of enforcement of that decision had coincided with major constitutional and legislative changes in the system of the domestic judiciary. The Government asserted that, in view of this, the new HCJ had enforced the final court decision in the applicant’s case by re-examining the HQCJ’s recommendation for her appointment and transferring it to the latter for the organisation of the additional selection, as required by the new legislation. However, the applicant had decided not to take that opportunity.

28.  The applicant objected to the Government’s submissions, arguing that the dispute in her case had consisted of the deprivation of her right to be appointed to the position of judge and that the national courts had recognised that right by examining her claim and finding that the old HCJ’s refusal to submit her for that appointment had been unlawful.

29.  The applicant insisted that the final court decision in her favour had not been properly enforced because she would have had to compete again under the new procedure in order to become a judge. In the applicant’s view, as a result of such non-enforcement, she had been deprived of the right to be appointed as a local court judge under the rules that had existed when she had passed the qualification exam and had been put onto the reserve list of successful candidates.

30.  Considering, for the reasons set out below, that, assuming the applicability of Article 6, the application is in any event inadmissible, the Court will proceed on the basis that Article 6 was applicable, without it being necessary to examine in detail the applicability objection raised by the Government.

31.  The Court has already held on numerous occasions that the right to a court protected by Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997‑II). Otherwise, the provisions of Article 6 § 1 of the Convention would be deprived of all useful effect (see Burdov v. Russia, no. 59498/00, §§ 34 and 37, ECHR 2002‑III).

32.  The Court, furthermore, reiterates that it is the State’s obligation to ensure that final decisions against its organs, or entities or companies owned or controlled by the State, are enforced in compliance with the Convention requirements (see, among many other authorities, Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 54, 15 October 2009). However, the Court accepts that a situation may exceptionally arise where the restitutio in integrum enforcement of a court judgment, declaring administrative acts unlawful and void, may, as such, prove objectively impossible on account of insurmountable factual or legal obstacles. In such situations and in accordance with the right of access to a court, guaranteed by Article 6 § 1 of the Convention, a member State must, in good faith and of its own motion, examine other alternative solutions that can remedy the unlawful effects of its acts (see Cıngıllı Holding A.Ş. and Cıngıllıoğlu v. Turkey, nos. 31833/06 and 37538/06, § 41, 21 July 2015).

33.  Turning to the present case, the Court takes note that its key issue concerns the alleged failure by the State authorities to perform a particular action clearly identified by the domestic courts. In particular, having quashed as unlawful the old HCJ’s refusal to apply to the President of Ukraine with a submission for the applicant’s appointment as a junior local court judge (for a five-year period), the courts obliged the old HCJ to re-examine the HQCJ’s recommendation for the applicant’s appointment (see paragraphs 11 and 13 above). It therefore appears that there is nothing to suggest that the domestic authorities were under an obligation to appoint the applicant to the judicial position.

34.  The Court further observes that the national courts were examining the applicant’s claim under the legislation which was in force when the dispute had arisen, that is, when the old HCJ had adopted its contested decision on 22 September 2016 just before the implementation of the constitutional amendments regarding the domestic judiciary (see paragraph 5 above). During the court proceedings in the applicant’s case and the subsequent process of enforcement of the final court decision in her favour, those amendments had already been incorporated into the Ukrainian legal system. As a result, the old HCJ was reorganised into the new HCJ, the requirements for appointments of judges became stricter and, most importantly, the five-year period for the first appointment as a judge was abolished with the introduction of permanent tenure for all ordinary judges (see paragraphs 5 and 17-20 above). These significant changes in the procedures for the appointment of Ukrainian judges, which aimed at strengthening the independence of the courts (see paragraphs 6, 23 and 24 above), undoubtedly gave rise to significant difficulties in the enforcement of the final court decision favourable to the applicant. Despite the above, in December 2017 the new HCJ took steps to comply with the judgment in the applicant’s case in that it re-examined the recommendation and took measures for the organisation of a new competition (see paragraph 15 above).

35.  The Court lastly notes that the domestic legislation specifically addressed the manner in which successful candidates, who had been recommended for appointment for a five-year period but not appointed to judicial posts, could become judges under the new Constitutional regime. More concretely, that legislation provided that such candidates had to take additional steps in order to obtain a judicial appointment for an indefinite period (see paragraphs 21 and 22 above). The applicant belonged to this category of successful candidates and the new HCJ re-examined the HQCJ’s recommendation for her appointment as a judge, inviting her to undergo the special check and another competition for vacant judicial posts in local courts to be organised by the HQCJ, as required by the new legislation (see paragraph 15 above). However, the applicant did not take this opportunity (see paragraph 16 above).

36.  In the light of the above considerations the Court finds that, assuming that Article 6 was applicable, the national authorities’ approach to their duty to enforce the judgment in the applicant’s case cannot be said to have been arbitrary or unreasonable, seeing, in particular, that it was for the domestic authorities to assess the applicable procedure for enforcement of the court decision at issue in the light of the circumstances of the applicant’s case and the applicable law (see Kandyba and Others v. Ukraine (dec.), no. 33137/16, § 56, 13 October 2020). The court decision favourable to the applicant was not enforceable in the particular way asserted by her (ibid., § 57).

37.  It follows that the applicant’s complaint under Article 6 § 1 of the Convention must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4.

38.  As to the Article 13 complaint, the Court reiterates that Article 13 of the Convention applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52). In the light of the Court’s findings above, the Court considers that the applicant did not have an arguable claim in respect of her Article 6 § 1 complaint and that Article 13 of the Convention was not applicable as regards this complaint. It follows that the Article 13 complaint is incompatible ratione materiae with the Convention and must be rejected pursuant to its Article 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 September 2025.

 Victor Soloveytchik Kateřina Šimáčková
 Registrar President