FIFTH SECTION
DECISION
Application no. 11614/20
Mykhaylo Volodymyrovych PLOTNIK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 4 February 2021 as a Committee composed of:
Stéphanie Mourou-Vikström, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 14 February 2020,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mykhaylo Volodymyrovych Plotnik, is a Ukrainian national, who was born in 1975 and lives in Rivne.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was dismissed from his position in the tax police under the Government Cleansing (Lustration) Act (GCA) on the grounds that he had occupied certain positions covered by the GCA in the tax police in the period from February 2010 to February 2014 (see Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, §§ 24, 72-78, 17 October 2019).
4. The applicant challenged his dismissal before the Rivne Circuit Administrative Court (the first-instance court) seeking reinstatement and back pay.
5. On 26 September 2018 the first-instance court allowed the applicant’s claim. On 23 January 2019 the Eighth Administrative Court of Appeal reversed and rejected the claim.
6. On 9 July 2020 the Supreme Court allowed the applicant’s appeal, quashed the Court of Appeal’s decision and upheld the first-instance court’s judgment. By way of reasoning the court stated that, according to the Court’s Polyakh and Others judgment, dismissal based on the mere fact that an individual had occupied certain positions in the civil service in the relevant period was contrary to Article 8 of the Convention. That had occurred in the applicant’s case and, therefore, his dismissal breached Article 8.
7. The court concluded that, in the light of Polyakh and Others, the absence, in the GCA itself, of the requirement to assess a civil servant’s individual conduct as a precondition to GCA’s application did not release the administrative courts from the obligation to assess proportionality of dismissal in the particular circumstances of the case. This requirement was inherent in Article 2 of the Code of Administrative Justice which declared proportionality to be one of the principles of administrative justice.
8. The Supreme Court also observed that it had taken a similar position concerning the need to take into account the requirement of proportionality, as interpreted in Polyakh and Others, in resolving cases arising under the GCA, in another case it had decided on 3 June 2020 (see paragraph 11 below).
9. The Supreme Court finally noted that the matter of amounts awarded had not been challenged on appeal and therefore there was no call to examine that issue.Relevant domestic law and practice
10. The relevant provisions of the domestic law can be found in Polyakh and Others (cited above, §§ 72-78).
11. In its decision of 3 June 2020 in case no. 817/3431/14 the Supreme Court found unlawful the dismissal of a tax official under the GCA and, setting aside the lower courts’ decisions rejecting the claim, ordered his reinstatement. The court reiterated that the proceedings for review of the GCA’s constitutionality remained pending before the Constitutional Court (see, concerning the background of those proceedings, Polyakh and Others, cited above, §§ 60-70). It also referred to the provisions of domestic law making international treaties and the Court’s case-law binding on the domestic courts (ibid., §§ 83-85). Then, relying on Polyakh and Others (cited above), the Supreme Court found that dismissal of the claimant based on the mere fact that he had occupied certain positions in the civil service in 2010-2014, in the absence of any finding of wrongdoing on his part, had been disproportionate, in breach of Article 8 of the Convention.
COMPLAINTS
12. Under the criminal limb of Article 6 of the Convention the applicant complained that he had not enjoyed any of the rights of a criminal defendant: to be informed of the nature and cause of the accusation against him, to have adequate time and facilities for the preparation of his defence, to defend himself in person or through legal assistance and to examine witnesses.
13. Under Article 8 of the Convention the applicant complained that his dismissal had breached his right to respect for his private life.
THE LAW
14. The Court held in Polyakh and Others v. Ukraine (nos. 58812/15 and 4 others, §§ 151-60, 17 October 2019) that Article 6 was not applicable under its criminal limb to the relevant proceedings. Accordingly, the applicant’s complaint under Article 6 of the Convention is incompatible with the Convention ratione materiae and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
15. As to the complaint under Article 8, the domestic courts ordered the applicant’s reinstatement on the grounds that his dismissal had been contrary to Article 8 of the Convention, and awarded him back pay. They, accordingly, acknowledged the violation of his rights and afforded him redress appropriate under the circumstances (see, mutatis mutandis, Oleksandr Volkov v. Ukraine, no. 21722/11, § 208, ECHR 2013). The applicant, accordingly, can no longer claim to be a victim of a violation of Article 8 within the meaning of Article 34 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 March 2021.
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Martina KellerStéphanie Mourou-Vikström
Deputy RegistrarPresident
Full & Egal Universal Law Academy