CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 janvier 2013

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color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }     FIFTH SECTION           CASE OF OLEKSANDR VOLKOV v. UKRAINE   (Application no. 21722/11)         JUDGMENT     This judgment was rectified on 9 April 2013 under Rule 81 of the Rules of Court     STRASBOURG   9 January 2013   FINAL   27/05/2013   This judgment has become final under Article 44 § 2 of the Convention. In the case of Oleksandr Volkov v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Dean Spielmann, President ,   Mark Villiger,   Boštjan M. Zupančič,   Ann Power-Forde,   Ganna Yudkivska,   Angelika Nußberger,   André Potocki, judges , and Claudia Westerdiek, Section Registrar , Having deliberated in private on 11 December 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 21722/11) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleksandr Fedorovych Volkov (“the applicant”), on 30 March 2011. 2.     The applicant was represented by Mr P. Leach and Ms J.   Gordon, lawyers of the European Human Rights Advocacy Centre in London. The Ukrainian Government (“the Government”) were represented by their Agent, Ms V.   Lutkovska, succeeded by Mr   N.   Kulchytskyy, from the Ministry of Justice. 3.     The applicant complained of violations of his rights under the Convention during his dismissal from the post of judge of the Supreme Court. In particular, he alleged under Article 6 of the Convention that (i)   his case had not been considered by an “independent and impartial tribunal”; (ii)   the proceedings before the High Council of Justice (“the HCJ”) had been unfair, in that they had not been carried out pursuant to the procedure envisaged by domestic law providing important procedural safeguards, including limitation periods for disciplinary penalties; (iii)   Parliament had adopted a decision on his dismissal at a plenary meeting without a proper examination of the case and by abusing the electronic voting system; (iv)   his case had not been heard by a “tribunal established by law”; (v)   the decisions in his case had been taken without a proper assessment of the evidence, and important arguments raised by the defence had not been properly addressed; (vi)   the lack of sufficient competence on the part of the Higher Administrative Court (“the HAC”) to review the acts adopted by the HCJ had run counter to his “right to a court”; and (vii)   the principle of equality of arms had not been respected. The applicant also complained that his dismissal had not been compatible with Article 8 of the Convention and that he had had no effective remedy in that respect, in contravention of Article   13 of the Convention. 4.     On 18 October 2011 the application was declared partly inadmissible and the above complaints were communicated to the Government. It was also decided to give priority to the application (Rule 41 of the Rules of Court). 5.     The applicant and the Government each filed observations (Rule 54 § 2 (b)). 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 12 June 2012 (Rule 59 § 3).   There appeared before the Court: (a)     for the Government Mr   N. Kulchytskyy ,   Agent , Mr   V. Nasad , Mr   M. Bem , Mr   V. Demchenko, Ms   N. Sukhova ,   Advisers ; (b)     for the applicant Mr   P. Leach,   Counsel , Ms   J. Gordon , Ms   O. Popova ,   Advisers.   The applicant was also present. The Court heard addresses by Mr   Kulchytskyy, Mr   Leach and Ms   Gordon, as well as the answers by Mr   Kulchytskyy and Mr   Leach to questions put to the parties. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1957 and lives in Kyiv. A.     Background to the case 8.     In 1983 the applicant was appointed to the post of judge of a district court. At the material time, domestic law did not require judges to take an oath upon taking office. 9.     On 5 June 2003 the applicant was elected to the post of judge of the Supreme Court. 10.     On 2 December 2005 he was also elected Deputy President of the Council of Judges of Ukraine (a body of judicial self-governance). 11.     On 30 March 2007 the applicant was elected President of the Military Chamber of the Supreme Court. 12.     On 26 June 2007 the Assembly of Judges of Ukraine found that another judge, V.P., could no longer act as a member of the HCJ and that her office should be terminated. V.P. challenged that decision before the courts. She further complained to the Parliamentary Committee on the judiciary ( Комітет Верховної Ради України з питань правосуддя ) [1] (“the Parliamentary Committee”) in relation to the matter. 13.     On 7 December 2007 the Assembly of Judges of Ukraine elected the applicant to the post of member of the HCJ and asked Parliament to arrange for the applicant to take the oath as a member of the HCJ in order to allow him to take up office, as required by section 17 of the HCJ Act 1998. A similar proposal was also submitted by the President of the Council of Judges of Ukraine. 14.     In reply, the Chairman of the Parliamentary Committee, S.K., who was also a member of the HCJ, informed the Council of Judges of Ukraine that that issue had to be carefully examined together with V.P.’s submissions alleging that the decision of the Assembly of Judges of Ukraine to terminate her office as a member of the HCJ had been unlawful. 15.     The applicant did not assume office as a member of the HCJ. B.     Proceedings against the applicant 16.     Meanwhile, S.K. and two members of the Parliamentary Committee lodged requests with the HCJ, asking that it carry out preliminary inquiries into possible professional misconduct by the applicant, referring, among other things, to V.P.’s complaints. 17 .     On 16 December 2008 R.K., a member of the HCJ, having conducted preliminary inquiries, lodged a request with the HCJ asking it to determine whether the applicant could be dismissed from the post of judge for “breach of oath”, claiming that on several occasions the applicant, as a judge of the Supreme Court, had reviewed decisions delivered by Judge B., who was his relative, namely his wife’s brother. In addition, when participating as a third party in proceedings instituted by V.P. (concerning the above-mentioned decision of the Assembly of Judges of Ukraine to terminate her office), the applicant had failed to request the withdrawal of the same judge, B., who was sitting in the chamber of the court of appeal hearing that case. On 24   December 2008 R.K. supplemented his request by giving additional examples of cases which had been determined by Judge B. and then reviewed by the applicant. Some of the applicant’s actions which served as a basis for the request dated back to November 2003. 18 .     On 20 March 2009 V.K., a member of the HCJ, having conducted preliminary inquiries, lodged another request with the HCJ seeking the applicant’s dismissal from the post of judge for “breach of oath”, claiming that the applicant had committed a number of gross procedural violations when dealing with cases concerning corporate disputes involving a limited liability company. Some of the applicant’s actions which served as a basis for the request dated back to July 2006. 19.     On 19 December 2008 and 3 April 2009 these requests were communicated to the applicant. 20.     On 22 March 2010 V.K. was elected President of the HCJ. 21.     On 19 May 2010 [2] the HCJ invited the applicant to a hearing on 25   May 2010 concerning his dismissal. In a reply of 20 May 2010 [3] , the applicant informed the HCJ that he could not attend that hearing as the President of the Supreme Court had ordered him to travel to Sevastopol from 24 to 28 May 2010 to provide advice on best practice to a local court. The applicant asked the HCJ to postpone the hearing. 22.     On 21 May 2010 the HCJ sent a notice to the applicant informing him that the hearing concerning his dismissal had been postponed until 26   May 2010. According to the applicant, he received the notice on 28 May 2010. 23.     On 26 May 2010 the HCJ considered the requests lodged by R.K. and V.K. and adopted two decisions on making submissions to Parliament to have the applicant dismissed from the post of judge for “breach of oath”. V.K. presided at the hearing. R.K. and S.K. also participated as members of the HCJ. The applicant was absent. 24 .     The decisions were voted on by the sixteen members of the HCJ who were present, three of whom were judges. 25.     On 31 May 2010 V.K., as President of the HCJ, introduced two submissions to Parliament for the dismissal of the applicant from the post of judge. 26.     On 16 June 2010, during a hearing presided over by S.K., the Parliamentary Committee examined the HCJ’s submissions concerning the applicant and adopted a recommendation for his dismissal. The members of the Committee who had requested that the HCJ conduct preliminary inquiries in respect of the applicant also voted on the recommendation. In addition to S.K., another member of the Committee had previously dealt with the applicant’s case as a member of the HCJ and had subsequently voted on the recommendation as part of the Committee. According to the file as it stood on the date of the Court’s deliberations, [4] the applicant was absent from the Committee hearing. 27 .     On 17 June 2010 the HCJ’s submissions and the recommendation of the Parliamentary Committee were considered at a plenary meeting of Parliament. The floor was given to S.K. and V.K., who reported on the applicant’s case. The applicant was present at the meeting. After deliberation, Parliament voted for the dismissal of the applicant from the post of judge for “breach of oath” and adopted a resolution to that effect. 28.     According to the applicant, during the electronic vote, the majority of Members of Parliament (MPs) were absent. The MPs present used voting cards which belonged to their absent peers. Statements by MPs about the misuse of voting cards and a video recording of the relevant part of the plenary meeting have been submitted to the Court. 29 .     The applicant challenged his dismissal before the HAC. The applicant claimed that: the HCJ had not acted independently and impartially; it had not properly informed him of the hearings in his case; it had failed to apply the procedure for dismissal of a judge of the Supreme Court provided for in Chapter 4 of the HCJ Act 1998, which offered a set of procedural guarantees such as notification of the judge concerned about the disciplinary proceedings and his active participation therein, a time frame for the proceedings, secret ballot voting, and a limitation period for disciplinary penalties; the HCJ’s findings had been unsubstantiated and unlawful; the Parliamentary Committee had not given him a hearing and had acted in an unlawful and biased manner; and Parliament had adopted a resolution on the applicant’s dismissal in the absence of a majority of the MPs, which was in breach of Article 84 of the Constitution, section 24 of the Status of Members of Parliament Act 1992 and Rule 47 of the Rules of Parliament. 30.     The applicant therefore requested that the impugned decisions and submissions made by the HCJ and the parliamentary resolution be declared unlawful and quashed. 31.     In accordance with Article 171-1 of the Code of Administrative Justice (“the Code”), the case was allocated to the special chamber of the HAC. 32.     The applicant sought the withdrawal of the chamber, claiming that it was unlawfully constituted and that it was biased. His application was rejected as unsubstantiated. According to the applicant, a number of his requests for various pieces of evidence to be collected and admitted and for witnesses to be summoned were rejected. 33 .     On 6 September 2010 the applicant supplemented his claim with the statements of MPs about the misuse of voting cards during the vote on his dismissal and a video recording of the relevant part of the plenary meeting. 34.     After several hearings, on 19 October 2010 the HAC considered the applicant’s claim and adopted a judgment. It found that the applicant had taken up the office of judge in 1983, when domestic law had not envisaged the taking of an oath by a judge. The applicant had, however, been dismissed for a breach of the fundamental standards of the judicial profession, which were set forth in sections 6 and 10 of the Status of Judges Act 1992 and had been legally binding at the time of the actions committed by the applicant. 35.     The court further found that the HCJ’s decision and submission made in respect of R.K.’s request had been unlawful, because the applicant and Judge B. had not been considered relatives under the legislation in force at the material time. In addition, as to the proceedings in relation to which the applicant had been a third party, he had had no obligation to seek the withdrawal of Judge B. However, the HAC refused to quash the HCJ’s acts in respect of R.K.’s request, noting that in accordance with Article   171-1 of the Code it was not empowered to take such a measure. 36.     As regards the decision and submission made by the HCJ in respect of V.K.’s request, they were found to be lawful and substantiated. 37 .     As to the applicant’s contentions that the HCJ should have applied the procedure provided for in Chapter 4 of the HCJ Act 1998, the court noted that in accordance with section 37   §   2 of that Act that procedure applied only to cases involving such sanctions as reprimands or downgrading of qualification class. Liability for “breach of oath” in the form of dismissal was envisaged by Article 126 § 5 (5) of the Constitution and the procedure to be followed was different, namely the one described in section 32 of the HCJ Act 1998, contained in Chapter 2 of that Act. The court concluded that the procedure cited by the applicant did not apply to the dismissal of a judge for “breach of oath”. There had therefore been no grounds to apply the limitation periods referred to in section 36 of the Status of Judges Act 1992 and section 43 of the HCJ Act 1998. 38.     The court then found that the applicant had been absent from the hearing at the HCJ without a valid reason. It further noted that there had been no procedural violations in the proceedings before the Parliamentary Committee. As to the alleged procedural violations at the plenary meeting, the parliamentary resolution on the applicant’s dismissal had been voted for by the majority of Parliament and this had been confirmed by roll-call records. The court further noted that it was not empowered to review the constitutionality of the parliamentary resolutions, as this fell within the jurisdiction of the Constitutional Court. 39.     The hearings at the HAC were held in the presence of the applicant and the other parties to the dispute. C.     Events connected with the appointment of presidents and deputy presidents of the domestic courts and, in particular, the president of the HAC 40.     On 22 December 2004 the President of Ukraine, in accordance with section 20 of the Judicial System Act 2002, appointed Judge P. to the post of president of the HAC. 41 .     On 16 May 2007 the Constitutional Court found that section 20(5) of the Judicial System Act 2002, concerning the procedure for appointing and dismissing presidents and deputy presidents of the courts by the President of Ukraine, was unconstitutional. It recommended that Parliament adopt relevant legislative amendments to regulate the issue properly. 42.     On 30 May 2007 Parliament adopted a resolution introducing a temporary procedure for the appointment of presidents and deputy presidents of the courts. The resolution provided the HCJ with the power to appoint the presidents and deputy presidents of the courts. 43.     On the same date, the applicant challenged the resolution before the court claiming, inter alia , that it was inconsistent with the HCJ Act 1998 and other laws of Ukraine. The court immediately delivered an interlocutory decision suspending the effect of the resolution. 44.     On 31 May 2007 the Council of Judges of Ukraine, having regard to the legislative gap resulting from the Constitutional Court’s decision of 16   May 2007, adopted a decision assigning itself temporary power to appoint the presidents and deputy presidents of the courts. 45.     On 14 June 2007 the parliamentary gazette published an opinion by the Chairman of the Parliamentary Committee, S.K., stating that the local courts had no power to review the above-mentioned resolution of Parliament and that the judges reviewing that resolution would be dismissed for “breach of oath”. 46.     On 26 June 2007 the Assembly of Judges of Ukraine endorsed the decision of the Council of Judges of Ukraine of 31 May 2007. 47.     On 21 February 2008 the court reviewing the parliamentary resolution quashed it as unlawful. 48.     On 21 December 2009 the Presidium of the HAC decided that Judge   P. should continue performing the duties of president of the HAC after the expiry of the five-year term provided for in section 20 of the Judicial System Act 2002. 49 .     On 22 December 2009 the Constitutional Court adopted a decision interpreting the provisions of section 116(5)(4) and section 20(5) of the Judicial System Act 2002. It found that those provisions were only to be understood as empowering the Council of Judges of Ukraine to give recommendations for the appointment of judges to administrative posts by another body (or an official) defined by the law. The court further obliged Parliament to comply immediately with the decision of 16   May 2007 and to introduce relevant legislative amendments. 50.     On 24 December 2009 the Conference of Judges of the Administrative Courts decided that Judge P. should continue to act as President of the HAC. 51 .     On 25 December 2009 the Council of Judges of Ukraine quashed the decision of 24 December 2009 as unlawful and noted that, by virtue of section   41(5) of the Judicial System Act 2002, the First Deputy President of the HAC, Judge S., was required to perform the duties of president of that court. 52 .     On 16 January 2010 the General Prosecutor’s Office issued a press release noting that the body or public official empowered to appoint and dismiss presidents of the courts had not yet been specified in the laws of Ukraine, while the Council of Judges of Ukraine was only entitled to give recommendations on those issues. Judge P. had not been dismissed from the post of president of the HAC and therefore continued to occupy it lawfully. 53.     Judge P. continued to act as President of the HAC. 54.     On 25 March 2010 the Constitutional Court found that the parliamentary resolution of 30 May 2007 was unconstitutional. 55.     The Chamber of the HAC dealing with the cases referred to in Article   171-1 of the Code was set up in May and June 2010 through the use of the procedure provided for in section 41 of the Judicial System Act 2002. II.     RELEVANT DOMESTIC LAW A.     Constitution of 28 June 1996 56.     Article 6 of the Constitution proclaims that the State power in Ukraine is exercised on the basis of its separation into legislative, executive and judicial branches. 57.     Article 76 of the Constitution provides that MPs are to be elected from the citizens of Ukraine who have reached the age of twenty-one, have the right to vote and have lived in Ukraine for the last five years. 58.     Article 84 of the Constitution provides that MPs are to vote in person at sittings of Parliament. 59.     Article 126 §   5 of the Constitution reads as follows: “A judge shall be dismissed from office by the body which elected or appointed him or her in the event of: (1)     the expiry of the term for which he or she was elected or appointed; (2)     the judge’s attainment of the age of sixty-five; (3)     inability to continue his or her duties for health reasons; (4)     violation by the judge of the requirements concerning judicial incompatibility; (5)     breach of oath by the judge; (6)     the entry into legal force of a conviction against him or her; (7)     the termination of his or her citizenship; (8)     a declaration that he or she is missing, or a pronouncement that he or she is dead; (9)     submission by the judge of a statement of resignation or of voluntary dismissal from office.” 60.     Articles 128 and 131 of the Constitution provide as follows: Article 128 “The initial appointment of a professional judge to office for a five-year term shall be made by the President of Ukraine. All other judges, except for the judges of the Constitutional Court, shall be elected by Parliament for an indefinite term in accordance with the procedure established by law. ...” Article 131 “The High Council of Justice shall operate in Ukraine. Its tasks shall comprise: (1)     making submissions on the appointment or dismissal of judges; (2)     adopting decisions with regard to the violation by judges and prosecutors of the requirements concerning judicial incompatibility; (3)     conducting disciplinary proceedings in respect of judges of the Supreme Court and judges of higher specialised courts, and considering complaints against decisions imposing disciplinary liability on judges of courts of appeal and local courts and on prosecutors. The High Council of Justice shall consist of twenty members. The Parliament of Ukraine, the President of Ukraine, the Assembly of Judges of Ukraine, the Assembly of Advocates of Ukraine, and the Assembly of Representatives of Higher Legal Educational Establishments and Scientific Institutions, shall each appoint three members to the High Council of Justice, and the All-Ukrainian Conference of Prosecutors shall appoint two members to the High Council of Justice. The President of the Supreme Court, the Minister of Justice and the Prosecutor General shall be ex officio members of the High Council of Justice.” B.     Criminal Code of 5 April 2001 61.     Article 375 of the Code provides: “1.     The adoption by a judge (or judges) of a knowingly wrongful conviction, judgment, decision or resolution – shall be punishable by restriction of liberty for up to five years or by imprisonment from two to five years. 2.     The same acts, if they resulted in serious consequences or were committed for financial gain or for other personal interest – shall be punishable by imprisonment from five to eight years.” C.     Code of Administrative Justice of 6 July 2005 62.     The relevant provisions of the Code read as follows: Article 161 – Questions to be determined by a court when deciding on a case “1.     When deciding on a case, a court shall determine: (1)     whether the circumstances referred to in the claim and objections took place and what evidence substantiates these circumstances; (2)     whether there is any other factual information relevant to the case and evidence in support of that information; (3)     which provision of law is to be applied to the legal relations in dispute; ...” Article 171-1 – Proceedings in cases concerning acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the High Qualification Commission of Judges [the provision in force as from 15 May 2010] “1.     The rules set down in this Article shall apply to proceedings in administrative cases concerning: (1)     the lawfulness (but not constitutionality) of resolutions of Parliament, and decrees and orders of the President of Ukraine; (2)     acts of the High Council of Justice; ... 2.     Acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the High Qualification Commission of Judges may be challenged before the Higher Administrative Court. For this purpose a separate chamber shall be set up in the Higher Administrative Court. ... 4.     Administrative cases concerning acts, actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice and the High Qualification Commission of Judges shall be considered by a bench composed of at least five judges ... 5.     Following the consideration of the case, the Higher Administrative Court may: (1)     declare the act of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice or the High Qualification Commission of Judges unlawful in full or in part; (2)     declare the actions or omissions of the Parliament of Ukraine, the President of Ukraine, the High Council of Justice or the High Qualification Commission of Judges unlawful and oblige [it or them] to take certain measures. ...” D.     The Law on the judicial system of 7 February 2002 with further amendments (“the Judicial System Act 2002”) (in force until 30   July 2010) 63.     The relevant provisions of the Act provide as follows: Section 20 – The procedure for the setting up of courts “... (5)     The president and deputy president of a court shall be judges appointed to the relevant post for a five-year term, who may be dismissed from that post by the President of Ukraine on application by the President of the Supreme Court (and, in respect of the specialised courts, on application by the president of the relevant higher specialised court), on the basis of a recommendation by the Council of Judges of Ukraine (and, in respect of the specialised courts, a recommendation by the relevant council of judges). ...” By a decision of the Constitutional Court of 16   May 2007, the provision of section 20(5) of the Act concerning the appointment of presidents and deputy presidents of the courts by the President of Ukraine was declared unconstitutional. Section 41 – The president of a higher specialised court “(1)     The president of a higher specialised court shall: ... 3.     ... set up the chambers of the court; make proposals for the individual composition of the chambers, to be approved by the Presidium of the court; ... (5)     In the absence of the president of the higher specialised court, his duties shall be performed by the first deputy president, or, in the absence of the latter, by one of the deputy presidents of the court, according to the distribution of administrative powers.” Section 116 – The Council of Judges of Ukraine “(1)     The Council of Judges of Ukraine shall operate as a higher body of judicial self-governance in the period between the sessions of the Assembly of Judges of Ukraine. ... (5)     The Council of Judges of Ukraine shall: ... 4.     decide on the appointment of judges to administrative posts and their dismissal from those posts in the cases and in accordance with the procedure provided for by this Act; ... (6)     The decisions of the Council of Judges of Ukraine shall be binding on all bodies of judicial self-governance. A decision of the Council of Judges of Ukraine may be repealed by the Assembly of Judges of Ukraine.” E.     The Law on the status of judges of 15 December 1992 with further amendments (“the Status of Judges Act 1992”) (in force until 30   July 2010) 64.     The relevant provisions of the Act provided as follows: Section 5 – Requirements of compatibility “A judge may not be a member of a political party or trade union, participate in any political activity, have been given any mandate of representation, have any other gainful occupation, or hold any other paid job with the exception of scientific, educational or artistic occupations.” Section 6 – Duties of judges “Judges shall be obliged: –     to adhere to the Constitution and the laws of Ukraine when administering justice, and to ensure the full, comprehensive and objective consideration of cases within the time-limits fixed; –     to comply with the requirements of section 5 of this Act and internal regulations; –     not to divulge information which is classified as State, military, commercial or banking secrets ... –     to refrain from any acts or actions which dishonour the judicial office and which may cause doubt as to their objectivity, impartiality and independence.” Section 10 – Judicial oath “Upon initial appointment, a judge shall solemnly take the following oath: ‘I solemnly declare that I will honestly and rigorously perform the duties of judge, abide only by the law when administering justice, and be objective and fair.’ The oath shall be taken before the President of Ukraine.” Section 31 – Grounds for disciplinary liability of judges “(1)     A judge shall be liable to a disciplinary penalty for a disciplinary offence, that is, for a breach of: –     legislation when considering a case; –     the requirements of section 5 of this Act; –     the duties set out in section 6 of this Act. (2)     The revocation or amendment of a judicial decision shall not entail disciplinary liability for a judge who participated in the adoption of that decision, provided that there was no intent to violate the law or the requirements of rigorousness and that no serious consequences were brought about by that decision.” Section 32 – Types of disciplinary penalties “(1)     The following disciplinary penalties may be imposed on judges: –     reprimand; –     downgrading of qualification class. (2)     For each of the violations described in section 31 of this Act, only one disciplinary penalty shall be imposed. ...” Section 36 – Time-limits for imposing a disciplinary penalty and removing a disciplinary record “(1)     A judge shall receive a disciplinary penalty within six months of the date the offence became known, excluding any period of temporary disability or leave. (2)     If, within a year of the date the disciplinary measure was applied, the judge does not receive a new disciplinary penalty, that judge shall be treated as having no disciplinary record. ...” F.     The Law on the High Council of Justice of 15 January 1998 (“the HCJ Act 1998”), as worded at the relevant time 65.     Section 6 of the Act, before the amendments of 7 July 2010, read as follows: “A citizen of Ukraine aged from 35 to 60 may be recommended for the post of member of [the HCJ] if he or she has a good command of the national language, has a higher legal education and at least ten years of work experience in the field of law and has been living in Ukraine for the last ten years. The requirements of subsection 1 of this section shall not be extended to individuals who are ex officio members of [the HCJ]. Any attempt to influence a member of [the HCJ] shall be prohibited.” 66.     By the amendments of 7 July 2010, section 6 of the Act was supplemented with the following paragraph: “If this Act requires that a member of [the HCJ] should be a judge, that member shall be appointed from among the judges who have been elected for an indefinite term.” 67.     Sections 8 to 13 deal with the procedures for the appointment of members of the HCJ by the bodies designated in Article 131 of the Constitution. 68 .     By the amendments of 7 July 2010, these sections were supplemented with additional requirements to the effect that ten members of the HCJ were to be appointed from the judicial corps by the bodies designated in Article 131 of the Constitution. 69.     Section 17 of the Act provides that, before entry into office, a member of the HCJ must take an oath at a sitting of Parliament. 70.     Section 19 of the Act provides that the HCJ comprises two sections. The work of the HCJ is coordinated by its president or, in his or her absence, the deputy president. The president, deputy president and heads of sections of the HCJ work on a full-time basis. 71.     The other relevant provisions of the Act provide as follows: Section 24 – Hearings before the High Council of Justice “... A hearing before the High Council of Justice shall be public. A private hearing shall be held upon a decision of the majority of the constitutional composition of the High Council of Justice ...” Section 26 – Withdrawal of a member of the High Council of Justice “A member of the High Council of Justice may not participate in the consideration of a matter and shall withdraw if it is established that he or she has a personal, direct or indirect interest in the outcome of the case ... In these circumstances the member of the High Council of Justice shall withdraw on his own initiative. In the same circumstances a person ... whose case is being considered ... shall be entitled to request the withdrawal of the member of the High Council of Justice. ...” Section 27 – Acts of the High Council of Justice “... The acts of the High Council of Justice may be challenged exclusively before the Higher Administrative Court in accordance with the procedure provided for in the Code of Administrative Justice.” 72 .     Chapter 2 of the Act, “Consideration of matters concerning the dismissal of judges”, provides, in so far as relevant, as follows: Section 32 – A submission for the dismissal of a judge in special circumstances [wording of the section before 15 May 2010] “The High Council of Justice shall consider the question of dismissing a judge on the grounds provided for by Article 126   §   5 (4)-(6) of the Constitution upon receipt of the relevant opinion from the qualification commission or of its own motion. The judge concerned shall be sent a written invitation to attend the hearing before the High Council of Justice. The decision of the High Council of Justice to apply for dismissal of a judge under Article 126   §   5 (4) and (5) of the Constitution shall be taken by a two-thirds majority of the members of the High Council of Justice participating in the hearing, and, in the cases provided for by Article 126   §   5 (6) of the Constitution, by a majority of the constitutional composition of the High Council of Justice.” Section 32 – A submission for the dismissal of a judge in special circumstances [wording of the section as from 15 May 2010] “The High Council of Justice shall consider the question of dismissing a judge on the grounds provided for by Article 126   §   5 (4)-(6) of the Constitution (violation of judicial incompatibility requirements, breach of oath, entry into legal force of a conviction against a judge) upon receipt of the relevant opinion from the qualification commission or of its own motion. Breach of oath by a judge shall comprise: (i)     the commission of actions which dishonour the judicial office and which may call into question his or her objectivity, impartiality and independence, as well as the fairness and incorruptibility of the judiciary; (ii)     unlawful acquisition of wealth or expenditure by the judge which exceeds his or her income and the income of his family; (iii)     deliberate delaying of the consideration of a case exceeding the time-limits fixed; [or] (iv)     violation of the moral and ethical principles of the judicial code of conduct. The judge concerned shall be sent a written invitation to attend a hearing before the High Council of Justice. If the judge cannot participate in the hearing for a valid reason, he or she shall be entitled to make written submissions, which shall be included in the case file. The written submissions by the judge shall be read out at the hearing before the High Council of Justice. A second failure on the part of the judge to attend a hearing shall be grounds for considering the case in his or her absence. A decision of the High Council of Justice to apply for dismissal of a judge under Article 126   §   5 (4)-(6) of the Constitution shall be taken by a majority of the constitutional composition of the High Council of Justice.” 73.     Chapter 4 of the Act, “Disciplinary proceedings against judges of the Supreme Court and the higher specialised courts”, provides, in so far as relevant, as follows: Section 37 – Types of penalties imposed by the High Council of Justice [wording of the section until 30 July 2010] “The High Council of Justice shall impose disciplinary liability ... on judges of the Supreme Court ... on the grounds provided for in Article 126   §   5 (5) of the Constitution and the Status of Judges Act. The High Council of Justice may impose the following disciplinary penalties: (1)     reprimand; (2)     downgrading of qualification class. The High Council of Justice may decide that a judge is not compatible with the post he or she occupies and lodge a submission for the judge’s dismissal with the body which appointed him or her.” Section 39 – Stages of disciplinary proceedings “Disciplinary proceedings shall comprise the following stages: (1)     verification of information about a disciplinary offence; (2)     institution of disciplinary proceedings; (3)     consideration of the disciplinary case; (4)     adoption of a decision. ...” Section 40 – Verification of information about a disciplinary offence “Verification of information about a disciplinary offence shall be carried out by ... one of the members of the High Council of Justice by way of receiving written explanations from the judge and other persons, requesting and examining material from case files, and receiving other information from State bodies, organisations, institutions, associations and citizens. Following the verification of information, a statement of facts with conclusions and proposals shall be prepared. The statement and other materials shall be communicated to the judge concerned. ...” Section 41 – Institution of disciplinary proceedings “If there are grounds to conduct disciplinary proceedings against ... a judge of the Supreme Court ... they shall be instituted by a decision of the High Council of Justice within ten days of the date of receipt of the information about the disciplinary offence or, if it is necessary to verify this information, within ten days of the date of the completion of the verification.” Section 42 – Consideration of a disciplinary case [wording of the section until 30 July 2010] “The High Council of Justice shall consider a disciplinary case at its next hearing after the receipt of a conclusion and other material resulting from the verification. The decision in a disciplinary case shall be taken by a secret ballot vote without the judge concerned being present ... The High Council of Justice shall hear evidence from a judge when determining his or her disciplinary liability. If the judge cannot participate in the hearing for a valid reason, he or she shall be entitled to make written submissions, which shall be included in the case file. The written submissions by the judge shall be read out at the hearing before the High Council of Justice. A second failure on the part of a judge to attend a hearing shall be grounds for considering the case in his absence.” Section 43 – Time-limits for imposing a disciplinary penalty “A judge shall receive a disciplinary penalty within six months of the date the offence became known, excluding any period of temporary disability or leave, but in any event not later than one year from the date of the offence.” Section 44 – Removal of disciplinary record “If, within a year of the date the disciplinary penalty was applied, the judge does not receive a further disciplinary penalty, that judge shall be treated as having no disciplinary record. ...” G.     The Law of 18 March 2004 on the procedure for electing and dismissing judges by Parliament (“The Judges (Election and Dismissal) Act 2004”) (in force until 30 July 2010) 74.     The relevant provisions of the Act provided as follows: Section 19 – Procedure before the Parliamentary Committee concerning the consideration of the submission for the dismissal of a judge elected for an indefinite term “A submission [of the High Council of Justice] for the dismissal of a judge who has been elected for an indefinite term shall be considered by the Parliamentary Committee within a month of the date of receipt of the submission. ... The Parliamentary Committee shall carry out inquiries in respect of applications made by citizens and other notifications concerning activities of the judge. The Parliamentary Committee may request that additional inquiries be conducted by the Supreme Court, the High Council of Justice, the relevant higher specialised court, the State judicial administration, the Council of Judges of Ukraine or the relevant qualification commission of judges. The results of the additional inquiries shall be provided to the Parliamentary Committee by the relevant authorities in writing within the time-limits set by the Parliamentary Committee but in any event not later than fifteen days after the request for inquiries. The judge concerned shall be notified of the time and place of the hearing before the Parliamentary Committee.” Section 20 – Procedure before the Parliamentary Committee concerning the determination of the issue of the dismissal of a judge elected for an indefinite term “The hearing before the Parliamentary Committee on the dismissal of a judge elected for an indefinite term may be attended by members of Parliament and by representatives of the Supreme Court, the higher specialised courts, the High Council of Justice, the State judicial administration, other State authorities, local self ‑ governing bodies and public institutions. The judge concerned shall be present at the hearing, except in cases of dismissal under Article 126 §   5 (2), (3), (6), (7), (8) and (9) of the Constitution. A second failure on the part of the judge concerned to attend a hearing without a valid reason shall be grounds for considering the case in his or her absence after the Parliamentary Committee has ascertained that the judge has received notice of the time and place of the hearing. The Parliamentary Committee shall assess the validity of any reasons for failure to appear. ... A hearing before the Parliamentary Committee on the dismissal of a judge shall start with a report by the chairman. The members of the Parliamentary Committee and other members of Parliament may put questions to the judge as regards the material resulting from [any] inquiries and the facts noted in [any] applications made by citizens. The judge shall be entitled to study the material, the statements of facts and the conclusion of the Parliamentary Committee concerning his or her dismissal.” Section 21 – Tabling of a proposal for the dismissal of a judge ... before a plenary meeting of Parliament “The Parliamentary Committee shall table before a plenary meeting of Parliament a proposal recommending or not recommending the dismissal of a judge elected for an indefinite term. The representative of the Parliamentary Committee shall be given the floor.” Section 22 – Invitation to attend the plenary meeting concerning the dismissal of a judge elected for an indefinite term “... The judge conc