CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 juillet 2021

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border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }   FIFTH SECTION CASE OF GUMENYUK AND OTHERS v. UKRAINE (Application no. 11423/19)   JUDGMENT Art 6 § 1 (civil) • Disproportionate restriction on access to court of former Supreme Court of Ukraine judges unable to contest termination of judicial duties after legislative reform • Art 6 applicable under civil head • Second condition of Eskelinen test not met • Impossibility for judges to uphold rule of law and give effect to Convention if domestic law deprives them of its guarantees on matters directly touching their individual independence and impartiality • Unjustified exclusion of judges from protection of Art 6 in matters concerning employment conditions on basis of special bond of loyalty and trust with State • Possibility of institutional action no substitute for judge’s right to bring action in personal capacity Art 8 • Private life • Unlawful interference with applicants’ exercise of judicial office as Supreme Court judges after abolition of Supreme Court of Ukraine • Constitutional Court’s findings as to unconstitutionality of legislative measures and their inconsistency with principle of irremovability of judges of significant weight • Clear lack of coordination in addressing applicants’ situation for considerable period seriously undermined legal certainty and predictability of constitutional principles on judicial independence   STRASBOURG 22 July 2021 FINAL   22/11/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Gumenyuk and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President ,   Mārtiņš Mits,   Ganna Yudkivska,   Lətif Hüseynov,   Jovan Ilievski,   Lado Chanturia,   Mattias Guyomar, judges , and Victor Soloveytchik, Section Registrar , Having regard to: the application (no.   11423/19) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight Ukrainian nationals (“the applicants”), whose particulars are set out in the appended table; the decision to give notice of the application to the Ukrainian Government (“the Government”); the parties’ observations; Having deliberated in private on 25 May and 29 June 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns judges of the Supreme Court of Ukraine who complained that they had been unlawfully prevented from exercising their judicial duties as a result of a judicial reform and legislative amendments in 2016. In this connection the applicants complained that their right of access to a court under Article 6 §   1 and their right to respect for their private life under Article 8 had been violated. THE FACTS 2.     The applicants were represented by Ms O.   Lyoshenko, a lawyer practising in Kyiv. 3.     The Government were represented by their Agent, Mr I.   Lishchyna. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On dates between 1994 and 2008, the applicants were elected to the post of judge of the Supreme Court of Ukraine (hereinafter “the SCU”) for an indefinite period. legislative amendments in 2016 restructuring the SYSTEM OF APEX courts in Ukraine 6.     The background to this case lies in the Maidan protests in 2013 ‑ 14, which resulted in the departure of the former President and a change of regime in Ukraine. In late November 2013 large anti-government demonstrations commenced in Kyiv and then spread to other cities in Ukraine. By late February 2014 the demonstrations had escalated to serious clashes between protesters and law-enforcement authorities, causing numerous injuries and deaths (for further details, see Shmorgunov and Others v. Ukraine , nos.   15367/14 and 13 others, §§   9-17, 21 January 2021). During these events, certain judges of lower-level courts were considered to have taken arbitrary decisions to detain demonstrators (ibid., §§   468-70 and   477), decisions which were part of a larger strategy in relation to protests which had started peacefully and which involved many peaceful protesters (ibid., §   476). According to the Government, by the end of those events the judiciary had turned into the least trusted public institution and judicial reform was therefore widely expected in society. 7.     The Government further submitted that in 2015 the President of Ukraine had initiated work on a strategy for reform of the judiciary which included both the modernisation of legislation and the adoption of amendments to the Constitution of Ukraine. The draft amendments to the Constitution were discussed with the European Commission for Democracy through Law (Venice Commission). In its Opinion on the proposed amendments to the Constitution of Ukraine 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 upheld the proposed amendments to the Constitution regarding the judiciary (see paragraph 34 below). 8.     On 2 June 2016 Parliament adopted amendments to the Constitution of Ukraine 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). According to the new wording of Article 125 §   3 of the Constitution, “the Supreme Court” (hereinafter “the SC”) is the highest court in the Ukrainian judicial system. 9 .     Simultaneously with the amendments to the Constitution, Parliament enacted a new Law on the judiciary and status of judges on 2   June 2016 (Law no. 1402 – hereinafter “the Judiciary Act 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 optimise the judicial system and to introduce appropriate mechanisms for renewing judicial staff in order to meet the social demand for a fair judiciary in Ukraine. The explanatory note specified that the draft law sought to increase the professional standards of the judiciary, limiting the immunity of judges to the functional level, and ensuring continuous and efficient operation of the judiciary for the transition period. According to the explanatory note, the Supreme Court would be established as a new body where judges would be appointed on a competitive basis. The function of ensuring the stability and coherence of judicial practice would be concentrated in a single supreme judicial authority. Reducing the number of court levels in the judicial system would simplify and speed up court proceedings. 10.     In contrast to the previous legislation, under which the SCU did not have the powers of cassation review (those had been transferred to the higher specialised courts as a result of earlier judicial reform), the Judiciary Act 2016 provided that the SC would, among other powers, again exercise the function of cassation review (section 36(2)) and that it would be composed of the Grand Chamber, the Administrative Cassation Court, the Commercial Cassation Court, the Criminal Cassation Court and the Civil Cassation Court (section 37(2)). The Judiciary Act 2016 also introduced a new method for determining judicial salaries which resulted in higher salaries for judges. 11.     Chapter XII of the Judiciary Act 2016, entitled “Final and transitional provisions”, provided, inter alia , that the SC would be established and that the judges of the SC would be appointed based on the results of a competition (point   4); the existing SCU and three courts of cassation would operate within their powers defined by procedural law until the SC starts functioning and the relevant procedural legislation governing the proceedings at the SC takes effect (point   6); the existing SCU and three courts of cassation would cease operating and would be abolished in accordance with the procedure established by law (point   7); and the judges of the courts that would be abolished (including the SCU) would retain the status, rights and guarantees as determined by the previous law on the status of judges (point   7) and the right to participate in the competition for the SC (point   14). 12.     On 3 October 2016 the plenary SCU challenged the provisions of the Judiciary Act 2016 before the Constitutional Court, in so far as the termination of SCU’s activity and the establishment of the new SC were concerned. The SCU argued, among other things, that preventing judges from exercising their judicial functions by way of abolition of the SCU would be contrary to the Constitution. 13.     On 7 November 2016 the Higher Qualification Commission of Judges (“the HQCJ”) announced a competition for 120 posts of judge for the SC. A total of 846 candidates participated in the competition. Among the candidates were 17 judges of the SCU (at the relevant time there were 21 judges at the SCU). All the applicants, except for the second applicant, participated in the competition but none of them succeeded. 14 .     Following the competition, new judges were selected and appointed to the SC. On 15   December 2017 the SC began to operate. 15 .     On 21 June 2018 the State registrar entered information in the State register on legal entities that the SCU was in the process of being abolished. The first applicant, acting on behalf of the SCU, challenged that measure but on 8   November 2018 the Kyiv Circuit Administrative Court refused to entertain the claim as the first applicant lacked standing and suggested that he was free to initiate proceedings in his personal capacity. On 11   March 2019 and 30 March 2020 respectively, the Sixth Administrative Court of Appeal and the SC upheld that ruling. 16 .     On 2 August 2018 the HQCJ announced a second competition for another seventy-eight posts of judge at the SC. The competition was concluded in 2019. Five members of the High Council of Justice (hereinafter “the HCJ”) applied and four of them ultimately succeeded. 17 .     On 18   February 2020 the Constitutional Court examined the case initiated on 3 October 2016 by the plenary SCU. The Constitutional Court found that under the Constitution only one supreme judicial body existed and that it had been renamed from the “Supreme Court of Ukraine” to “Supreme Court”. It further found that, in view of the principle of the irremovability of judges, the judges of the “old” SCU should continue performing their functions as judges of the “new” SC. The relevant extracts from the judgment read as follows: “7.     A systemic analysis of the Constitutional provisions on ‘the highest judicial body in the system of courts of general jurisdiction’ and ‘the highest court in the Ukrainian justice system’, in conjunction with the provisions of the laws of Ukraine on the judiciary and judicial procedure, gives the Constitutional Court grounds to assert that the removal of the word ‘Ukraine’ – the name of the State – from the phrase ‘Supreme Court of Ukraine’ did not affect the constitutional status of this body of State power. ... A systemic analysis of the amendments to the Constitution, introduced by Law no.   1401, indicates that they were not aimed at terminating the activity or abolition of the Supreme Court of Ukraine as a body of State power by removing the word ‘Ukraine’ – the name of the State – from the phrase ‘Supreme Court of Ukraine’. The Constitutional Court considers that Law no. 1401 did not violate the principle of the institutional continuity of the highest body in the justice system, which, after the entry into force of Law no. 1401, continued to operate under the name ‘Supreme Court’. ... 13.     Comparative analysis of the provisions of the Constitution before and after the amendments of Act no. 1401, the provisions of the Law ‘On the Judiciary and Status of Judges’ dated 7 July 2010, and Law no. 1402, gives the Constitutional Court grounds to conclude that there is no difference between the legal status of a judge of the Supreme Court of Ukraine and a judge of the Supreme Court. The Constitutional Court notes that renaming of a body envisaged in the Constitution of Ukraine – the Supreme Court of Ukraine – cannot take place without the transfer of judges of the Supreme Court of Ukraine to the office of judge of the Supreme Court, since there is no difference between the legal status of a judge of the Supreme Court of Ukraine and a judge of the Supreme Court, and the removal of the word ‘Ukraine’ – the name of the State – from the phrase ‘the Supreme Court of Ukraine’ cannot be valid grounds for dismissal of all judges of the Supreme Court of Ukraine or their transfer to another court, all the more so to a lower court. Judges of the Supreme Court of Ukraine must continue to exercise their powers as judges of the Supreme Court. Therefore, to draw a distinction between judges of the Supreme Court of Ukraine and those of the Supreme Court is not consistent with the principle of irremovability of judges, which is a part of the constitutional guarantee of the independence of judges. ... Thus, ... the Constitutional Court of Ukraine rules that: ... 2.     The provisions of paragraph 7 ‘and shall be abolished as regards the Supreme Court of Ukraine, paragraph 14 ‘judges of the Supreme Court of Ukraine’ ... of Section XII ‘Final and transitional provisions’ of the Law of Ukraine ‘On the Judiciary and Status of Judges’ of 2 June 2016, are not in conformity with the Constitution of Ukraine (unconstitutional). ...” 18 .     In June 2020, draft law no. 3711 was introduced in Parliament, with the proposal that the judges of the SCU be enrolled in the staff of the SC. As at June 2021 this law had not yet been adopted and the applicants had not been able to resume their duties as Supreme Court judges. The Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe provided their comments on the draft law (see paragraph 35 below). 19.     According to the Government, the SCU Abolition Commission regularly offered to pay all the salaries to the applicants according to the amounts determined on the basis of the previous law on the status of judges, as prescribed by transitional provisions of the Judiciary Act 2016. The SCU Abolition Commission made the amounts of their salaries available to the applicants and informed them about that. According to the information available to the Court, the applicants however do not appear to have collected those amounts. attempted transfer of the applicants to other courts 20.     On 20 June 2018 the HQCJ issued recommendations for transferring the applicants to various appellate courts. 21.     One of the applicants (Ms G. Kanygina) lodged a claim against the HQCJ, challenging the recommendation concerning her transfer. On 27   August 2018 the SC, acting as the first ‑ instance court, rejected the claim as inadmissible considering that it had not been open to Ms Kanygina to appeal against the recommendation in view of the fact that the HCJ had not yet taken its decision on the basis of that recommendation. On 6 February 2019 the Grand Chamber of the SC upheld that ruling. 22 .     On 20 and 29 November 2018 the HCJ rejected the above-mentioned recommendations without considering them on the merits, noting that the appellate courts in question had ceased to operate due to restructuring. At the time of that decision, five members of the HCJ were taking part in the second competition for appointment to the new SC (see paragraph 16 above) and another member of the HCJ was the President of the new SC. RELEVANT LEGAL FRAMEWORK RELEVANT DOMESTIC LAW Constitution of Ukraine, 1996 23 .     Pursuant to the Constitution, new laws or acts amending existing laws may not narrow the content and scope of existing Constitutional rights and freedoms (Article 22 §   3). Everyone has the right to work, which includes earning a living by performing work of one’s free choice or free will (Article 43 §   1). Everyone is guaranteed the right to appeal in court against decisions, actions or omissions of public authorities, local governments and officials (Article 55 §   2). 24 .     Article 126 of the Constitution (as worded before the amendments of 2016) provided that judges held their posts for an indefinite term except for the judges of the Constitutional Court and those judges who were appointed for the first time for a period of five years. The same provision provided for the following exhaustive list of grounds for the dismissal of judges: (1)   expiry of the term for which the judge was elected or appointed; (2)   reaching the age of 65; (3) inability to perform judicial duties resulting from health problems; (4) violation by a judge of the incompatibility requirements; (5) breach of the judicial oath; (6) criminal conviction; (7) termination of citizenship; (8) death or a decision declaring a judge missing or dead; and (9) resignation. 25.     After the amendments of 2016, Article 126 similarly proclaimed the principle that judges would hold their posts for an indefinite term (Article   126 §   5) and provided for an exhaustive list of grounds for the dismissal of judges and their removal from office which included a refusal by a judge to be transferred to a different court in the event of the abolition or reorganisation of the court where the judge was employed (Article 126 §   6   (5)). 26.     Under Article 131 of the Constitution (as amended in 2016), the HCJ consists of twenty-one members, elected or appointed as follows: ten by the Congress of Judges from among judges or retired judges, two by the President of Ukraine, two by the Parliament, two by the Congress of Advocates of Ukraine, two by the All-Ukrainian Conference of Prosecutors, and the remaining two by the Congress of representatives of legal higher education institutions and scientific institutions. The Head of the SC is an ex officio member of the HCJ. Code of Administrative Justice, 2005 27 .     Article 5 of the Code of Administrative Justice provides that everyone claiming that a decision, action or inaction of a public authority violates his or her rights, freedoms or legitimate interests has the right to apply to the administrative courts in accordance with the procedure established by that Code. Judiciary and Status of Judges Act, 2016 (“the Judiciary Act 2016”) 28.     Section 53 of the Judiciary Act 2016 provides that a judge may not be transferred to another court without his or her consent, except for (1)   transfers in case of reorganisation, abolition or cessation of the operation of a court; (2) transfer as a disciplinary sanction. High Council of Justice Act, 2016 29 .     According to the High Council of Justice Act, the question of transfer of a judge from one court to another must be decided by the HCJ: (1)   on the basis and within the limits of a recommendation by the HQCJ and the materials attached to it; or (2) on the basis of a report of the Disciplinary Chamber of the HCJ on the transfer of a judge to a lower court by way of disciplinary sanction (section 70). The issue of transferring a judge from one court to another must be considered at a hearing of the HCJ (section 71(1)) to which the judge concerned must be invited. However, the absence of the judge concerned from the hearing, regardless of the reasons, does not preclude consideration of the issue in their absence (section 71(2)). The recommendation of the HQCJ or the report of the Disciplinary Chamber of the HCJ must be read out at the beginning of the hearing (section 71(3)). The HCJ must adopt a reasoned decision (section 71(4)) that can be appealed against. The court examining the appeal must annul the HCJ’s decision if, among other grounds, it does not state the grounds for the transfer, as determined by law, or the reasons for the HCJ’s conclusions (section 72). International material 30 .     In its General Comment No. 32 on Article 14 of the International Covenant on Civil and Political Rights (Right to equality before courts and tribunals and to a fair trial) published on 23 August 2007, the UN Human Rights Committee stated as follows (footnotes omitted): “20.     Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.” 31 .     The relevant extracts from the European Charter on the Statute for Judges (Department of Legal Affairs of the Council of Europe, 8-10 July 1998, DAJ/DOC (98)23) read as follows: “1.1.     The statute for judges aims at ensuring the competence, independence and impartiality which every individual legitimately expects from the courts of law and from every judge to whom is entrusted the protection of his or her rights. It excludes every provision and every procedure liable to impair confidence in such competence, such independence and such impartiality. The present Charter is composed hereafter of the provisions which are best able to guarantee the achievement of those objectives. Its provisions aim at raising the level of guarantees in the various European States. They cannot justify modifications in national statutes tending to decrease the level of guarantees already achieved in the countries concerned. 1.2.     In each European State, the fundamental principles of the statute for judges are set out in internal norms at the highest level, and its rules in norms at least at the legislative level. 1.3.     In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary. 1.4.     The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy. ... 3.4.     A judge holding office at a court may not in principle be appointed to another judicial office or assigned elsewhere, even by way of promotion, without having freely consented thereto. An exception to this principle is permitted only in the case where transfer is provided for and has been pronounced by way of a disciplinary sanction, in the case of a lawful alteration of the court system, and in the case of a temporary assignment to reinforce a neighbouring court, the maximum duration of such assignment being strictly limited by the statute, without prejudice to the application of the provisions at paragraph 1.4 hereof.” 32.     The relevant extract from the Explanatory Memorandum to the European Charter on the Statute for Judges (mentioned above) provides as follows: “3.4     The Charter enshrines the irremovability of judges, which means that a judge cannot be assigned to another court or have his or her duties changed without his or her free consent. However, exceptions must be allowed where transfer is provided for within a disciplinary framework, when a lawful re-organization of the court system takes place involving for example the closing down of a court or a temporary transfer is required to assist a neighbouring court. In the latter case, the duration of the temporary transfer must be limited by the relevant statute. Nevertheless, since the problem of transferring a judge without his or her consent is highly sensitive, it is recalled that under the terms of paragraph 1.4 he or she has a general right of appeal before an independent authority, which can investigate the legitimacy of the transfer. In fact, this right of appeal can also remedy situations which have not been specifically catered for in the provisions of the Charter where a judge has such an excessive workload as to be unable in practice to carry out his or her responsibilities normally.” 33.     The relevant extracts from the appendix to Recommendation CM Rec (2010)12 of the Committee of Ministers of the Council of Europe to member States on judges’ independence, efficiency and responsibilities, adopted on 17 November 2010, read: “Tenure and irremovability ... 49.     Security of tenure and irremovability are key elements of the independence of judges. Accordingly, judges should have guaranteed tenure until a mandatory retirement age, where such exists. ... 52.     A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system. ...” 34 .     The following are extracts from the Venice Commission’s Opinion on the proposed amendments to the Constitution of Ukraine regarding the judiciary (see paragraph   7 above): “36.     In their joint opinion ‘on the Law on the Judiciary and the Status of Judges and amendments to the Law on the High Council of Justice of Ukraine’, the Venice Commission and the Directorate of Human Rights of the Directorate General of Human Rights and the Rule of Law had indeed taken note of the Ukrainian authorities’ explanation that a choice needed to be made between dismissing all the judges and inviting them to reapply for their position or assessing them in the manner proposed in the law. The Venice Commission and the Directorate expressed the view that ‘it may be both necessary and justified to take extraordinary measures’ to remedy ‘corruption and incompetence among the judiciary which are a result of political influence on judges’ appointments in the previous period’ but that ‘dismissal of every member of the judiciary appointed during a particular period would not be an appropriate solution to the problems indicated by the authorities’. They stressed in addition that even ‘the qualification assessment as provided for in transitional Article   6 should be regarded as wholly exceptional and be made subject to extremely stringent safeguards to protect those judges who are fit to occupy their positions’ and that ‘the matter needs to be dealt with in a substantive legal provision in much more detail and requires constitutional underpinning’. Finally, the Venice Commission and the Directorate called for ‘harmonisation with the lustration process’. ... 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.”   35 .     The Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe, in their Joint Opinion on the draft amendments to the law ‘On the Judiciary and the Status of Judges’ and certain laws on the activities of the Supreme Court and judicial authorities (draft law no. 3711), adopted by the Venice Commission at its 124th online Plenary Session (8-9 October 2020) observed as follows: “ 5.     Integration of the Judges of the Supreme Court of Ukraine into the Supreme Court 58.     Clause 7 of Section XII ‘Final and transitional provisions’ of draft Law no.   3711 transfers the remaining eight judges of the ‘old’ Supreme Court of Ukraine to the Supreme Court. 59.     In order to implement the decision 2-p/2020 of Constitutional Court of 18   February 2020, there is indeed an urgent need to resolve the issue of the alignment of the Supreme Court. The Constitutional Court held that in the 2016 reform, the old ‘Supreme Court of Ukraine’ was only renamed ‘Supreme Court’ and no new court was created. This is a coherent argument avoiding the existence of two parallel courts. There must indeed be continuity between the ‘old’ and the ‘new’ Court, not least to ensure that the Supreme Court can refer to the case-law of the former Supreme Court of Ukraine. The lack of a de-registration of the old Supreme Court of Ukraine was clearly not a useful step. The decision of the Constitutional Court corrects that error. In general, what matters is the situation as set out in the law, not the formal registration of a legal entity, which nevertheless should be corrected. It is up to the Ukrainian authorities to find a solution within the framework of the decision of the Constitutional Court, according to which there is a single supreme court.” 36.     Other relevant international material, including the UN Basic Principles on the Independence of the Judiciary, the decisions of the UN Human Rights Committee, the Opinions of the Consultative Council of European Judges, the Opinions of the Venice Commission, the case-law of the Inter-American Court of Human Rights, the Universal Charter of the Judge approved by the International Association of Judges, and the International Bar Association’s Minimum Standards of Judicial Independence can be found in the judgment in Baka v. Hungary [GC] (no.   20261/12, §§   72, 74-76 and 79-87, 23   June 2016). THE LAW ALLEGED VIOLATION OF ARTICLE 6 §   1 OF THE CONVENTION 37.     The applicants raised two complaints under Article 6 §   1 of the Convention. First, they complained that they did not have access to a court to challenge the fact that they had been prevented, in their view unlawfully, from exercising their judicial duties as a result of legislative amendments in 2016. Secondly, they complained that in 2018, when dealing with the issue of the attempt to transfer to other judicial posts, the HCJ had failed to act as an “independent and impartial tribunal”. 38.     The applicants relied on Article 6   § 1 of the Convention, the relevant parts of which read as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...” Alleged violation of right of access to a court as a result of the 2016 legislative amendments Admissibility (a)    The parties’ submissions 39 .     The Government submitted that Article 6 was not applicable to the applicants’ complaint of a lack of access to a court because there was no civil right at stake in view of the public nature of their employment; moreover, the lack of a judicial remedy by which to challenge the applicants’ removal from their judicial duties had been justified under the Eskelinen test (as established in Vilho Eskelinen and Others v. Finland [GC], no.   63235/00, ECHR 2007 ‑ II). In that regard the Government noted that the legislative amendments providing for the abolition of the SCU had been adopted in order to carry out a general judicial reform and that all the judges of the new SC had had to go through a rigorous competition. 40 .     The Government further argued that all the applicants had failed to exhaust domestic remedies in respect of their complaint of a lack of access to a court since they had not challenged the SCU abolition procedure. The proceedings initiated by the first applicant on behalf of the SCU, and not in his personal capacity (see paragraph 15 above), had been devoid of any prospect of success and were irrelevant. The Government admitted, however, that in so far as the applicants’ complaint concerned legislative measures, the applicants had not had a remedy against a parliamentary enactment. 41.     The Government then submitted that the second applicant had not complied with the six-month rule under Article 35   §   1 of the Convention. They noted that the second applicant had not participated in the competition for the new SC which had started to operate on 15   December 2017 (see paragraph 14 above). If she had considered that the establishment of the new SC had been in violation of her rights, she should have applied to the Court within six months of the date when the alleged violation had taken place. 42.     The applicants maintained their complaints and submitted that the situation complained of was of a long-term nature and that they had had no effective remedy. Accordingly, their complaints could not be dismissed on the grounds of failure to comply with the six-month rule or the rule of exhaustion of domestic remedies. (b)    The Court’s assessment 43.     The Court would make it clear from the outset that the Convention does not prevent States from taking legitimate and necessary decisions to reform the judiciary. The Court is aware of the complicated background to and context of the impugned judicial reform in Ukraine and considers that it is not its role to adjudicate upon its goals and appropriateness or determine whether it was justified under Ukrainian constitutional law. As highlighted by the Venice Commission (see paragraph 34 above), it may be necessary and justified to take extraordinary measures in order to remedy corruption and incompetence among the judiciary. However, the Court must examine whether the applicants’ rights under the Convention were affected by the manner in which the reform was actually implemented. In this regard, the first question to arise is whether Article 6 applies to the present case. (i)       Applicability of Article 6 (α)      Existence of a right 44.     The Court reiterates that for Article 6 § 1 in its civil limb to be applicable, there must be a “dispute” regarding a right which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, lastly, the result of the proceedings must be “directly decisive” for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Baka , cited above, §   100, and Denisov v. Ukraine [GC], no.   76639/11, §   44, 25 September 2018). 45.     Article 6 § 1 does not guarantee any particular content for (civil) “rights and obligations” in the substantive law of the Contracting States: the Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (see, for example, Roche v. the United Kingdom [GC], no. 32555/96, §   117, ECHR 2005 ‑ X). The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts (ibid., §   120; see also Károly Nagy v. Hungary [GC], no.   56665/09, §   62, ECHR 2017, and Regner v. the Czech Republic [GC], no. 35289/11, §   100, 19 September 2017). The Court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, unlike them, that there was arguably a right recognised by domestic law (see Károly Nagy , cited above, § 62). 46.     The Court’s traditional approach to determining whether there is a right attracting the application of Article 6 is based on the distinction between the substantive content of the right relied on and possible procedural obstacles to obtaining judicial protection thereof (see Roche , cited above, §   119). Whether a person has an actionable domestic claim may depend not only on the content, per se , of the relevant civil right as defined under national law, but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims before a court (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no.   76943/11, § 87, 29   November 2016). In the latter kind of case Article 6 §   1 may be applicable (see Petko Petkov v. Bulgaria , no.   2834/06, § 26, 19 February 2013, with further reference to Al-Adsani v. the United Kingdom [GC], no.   35763/97, §   47, ECHR 2001 ‑ XII). 47.     By implication, Article 6 remains inapplicable where it is clear beyond argument that no right exists in domestic law (see Sultana v. Malta (dec.), no.   970/04, 11 December 2007). Such is the case where a person’s rights under the domestic legislation are limited to a mere hope of being granted a right, and where the actual grant of that right depends on an entirely discretionary and unreasoned decision of the authorities (see Regner v. the Czech Republic [GC], no.   35289/11, § 103, 19 September 2017). 48.     In determining whether there was a “right” within the meaning of Article   6 §   1, the Court needs to ascertain only if the applicants’ arguments were sufficiently tenable, not whether they would necessarily have won had they had access to a court (see, inter alia , Neves e Silva v. Portugal , 27   April 1989, § 37, Series A no.   153-A). In so doing, the Court must have regard to the wording of the relevant legal provisions and to their interpretation, if any, by the domestic courts (see Yanakiev v. Bulgaria , no.   40476/98, § 58, 10 August 2006). Nevertheless, the concept of “civil rights and obligations” is an autonomous concept deriving from the Convention which cannot be interpreted solely by reference to the respondent State’s domestic law (see Naït-Liman v.   Switzerland [GC], no.   51357/07, § 106, 15 March 2018). In that connection, in its assessment of whether there existed a right on which an applicant could rely, on arguable grounds, the Court takes domestic provisions as a starting-point only (see, among many other authorities, Denisov , cited above, § 45) and may rely on international norms to assess or enhance the interpretation of the existence of that right (see, for example, Enea v.   Italy [GC], no.   74912/01, §   101, ECHR 2009; Boulois v. Luxembourg [GC], no.   37575/04, § 102, ECHR 2012; and Naït-Liman , cited above, § 108). 49.     The Court reiterates that although there is in principle no right under the Convention to hold a public post in the administration of justice (see Dzhidzheva-Trendafilova v. Bulgaria (dec.), no.   12628/09, §   38, 9   October 2012; and concerning tenured judicial positions, see Baka , cited above, §   107; Denisov , cited above, § 47; and Kövesi v. Romania , no.   3594/19, §   113, 5 May 2020), such a right may exist at the domestic level. 50.     In the present case it is not disputed that all the applicants were entitled under the domestic law to remain judges until their retirement if none of the exceptional grounds for premature termination of office, as set out in Article 126 of the Constitution, materialised. However, as a result of the “final and transitional provisions” of the Judiciary Act 2016 ordering the abolition of the SCU and the establishment of the new SC and also as a result of further measures taken in order to implement the judicial reform, the applicants, while not being formally dismissed, were in fact prevented from exercising their judicial functions, at least for a certain period of time, despite what the Constitutional Court also confirmed to be the validity of their tenure. 51.     The wording of the domestic provisions relating to the applicants’ status (see paragraphs 23 and 24 above) could give rise to various interpretations, including that the applicants were entitled solely to remain active judges, and not necessarily to keep their posts in a particular court of law. At the time of the impugned events in 2016, there was no case-law clarifying the precise scope and meaning of the constitutional guarantees at issue. However, it was not disputed that the relevant constitutional principles provided the applicants at least with an arguable basis on which the right to be protected against arbitrary removal from judicial duties could be claimed (see, mutatis mutandis , Bilgen v.   Turkey , no. 1571/07, § 57 in fine , 9 March 2021). 52 .     The Court does