The Independence of the Judiciary in Strasbourg Judicial Disciplinary Case Law: Judges as Applicants and National Judicial Councils as Factotums of Respondent States

Aquilina, Kevin

doi:10.1007/978-3-030-20744-1_1

Kevin Aquilina²

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2 Citations

Abstract

This chapter discusses 20 European Court of Human Rights cases involving national judges as applicants and State authorities, primarily, National Judicial Councils who participated in the disciplinary proceedings instituted against applicant judges, as respondents. It lists the violated provisions of the European Convention on Human Rights resorted to by applicant judges with Article 6 being the most successfully invoked provision before the Court. The Court also found a violation of Articles 8, 10, and 13 of the Convention. Council of Europe Member States responsible for these violations are identified and a typology of disciplinary sanctions imposed is constructed. The National Judicial Councils and other national judicial disciplinary authorities are mentioned explicitly together with their respective level of participation in national judicial disciplinary proceedings. The chapter delves into the reparations requested by applicant judges as to pecuniary and non-pecuniary damages, costs and expenses, and general and individual measures. In only one case did the Strasbourg Court advocate the reinstatement of a dismissed applicant judge. The relevance of these cases to the evolution of human rights law is discussed, whilst identifying gaps in the literature that need addressing through further study. Recommendations are made to bring national legislation of Council of Europe Member States in line with the Convention.

Professor Kevin Aquilina is Dean of the Faculty of Laws, University of Malta.

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Notes

1.
Appl. No. 63235/00, Vilho Eskelinen and Others v. Finland (ECtHR 19 April 2007), hereinafter Vilho Eskelinen and Others v. Finland.
2.
Not discussed in this chapter are cases where (a) the applicant judge’s complaint did not involve discipline namely: (1) Appl. No. 58222/09, Juračić v. Croatia (ECtHR 26 October 2011); (2) Appl. No. 33173/05, G. v. Finland (ECtHR 27 April 2009); (3) Appl. No. 28396/95, Wille v. Liechtenstein (ECtHR [GC] 28 October 1999); (4) Appl. Nos. 6360/04 and 16820/04, Petrova and Chornobryvets v. Ukraine (ECtHR 15 August 2008); (5) Appl. No. 12628/09, Dzhidzheva-Trendafilova v. Bulgaria (ECtHR 9 October 2012); (6) Appl. No. 43800/12, Tsanova-Gecheva v Bulgaria (ECtHR 1 February 2016); and/or (b) where the applicant judge lost the complaint: (1) Appl. No. 47936/99, Pitkevich v. Russia, (ECtHR 8 February 2001); (2) Appl. No. 62584/00, Štefan Harabin v. Slovakia (ECtHR 9 July 2002); (3) Appli. No. 36593/97, Muammer Yilmazoğlu, (ECtHR 12 June 2003); (4) Appl. No. 3964/05, Serdal Apay v. Turkey (ECtHR 11 December 2007); (5) Appl. No. 27791/06, Luigi Tosti v. Italy (ECtHR 12 May 2009); (6) Appl. No. 51160/06, Di Giovanni v. Italy (ECtHR 9 July 2013); (7) Appl. No. 75255/10, Krstan Simić v. Bosnia and Herzegovina (ECtHR 15 November 2016); and (8) Appl. No. 2873/17, Çatal v. Turkey (ECtHR 7 March 2017).
3.
The Hungarian Helsinki Committee, the Hungarian Civil Liberties Union, the Eötvös Károly Institute, and the Helsinki Foundation for Human Rights of Poland were third party interveners in Baka v. Hungary (see paras 5 and 85 of the Second Section judgment and paras 9, 98, 136 and 137 of the Grand Chamber judgment), and the International Commission of Jurists was a third party intervener in Denisov v. Ukraine (see paras 7, 42 and 91).
4.
Appl. No. 38406/97 (ECtHR 7 July 2008), hereinafter Albayrak v. Turkey.
5.
Appl. No. 22330/05 (ECtHR 5 May 2009), hereinafter Olujić v. Croatia.
6.
Appl. No. 29492/05 (ECtHR 14 September 2009), hereinafter Kudeshkina v. Russia.
7.
Appl. No. 20999/04 (ECtHR 19 January 2011), hereinafter Özpinar v. Turkey.
8.
Appl. No. 18381/05 (ECtHR 7 March 2011), hereinafter Mishgjoni v. Albania.
9.
Appl. No. 58688/11 (ECtHR 20 February 2012), hereinafter Harabin v. Slovakia.
10.
Appl. No. 21722/11 (ECtHR 27 May 2013), hereinafter Oleksandr Volkov v. Ukraine.
11.
Appl. No. 7984/06 (ECtHR 20 January 2016), hereinafter Saghatelyan v. Armenia.
12.
Appl. No. 48783/07 (ECtHR 7 April 2016), hereinafter Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia.
13.
Appl. Nos. 55391/13, 57728/13 and 74041/13 (ECtHR [GC] 6 November 2018), hereinafter Ramos Nunes de Carvalho e Sá v. Portugal.
14.
Appl. No. 20261/12 (ECtHR [GC] 23 June 2016, hereinafter Baka v. Hungary.
15.
Appl. No. 6899/12 (ECtHR 30 July 2015), hereinafter Mitrinovski v. The Former Yugoslav Republic of Macedonia.
16.
Appl. No. 29908/11 (ECtHR 21 April 2016), hereinafter Ivanovski v. The Former Yugoslav Republic of Macedonia.
17.
Appl. Nos. 56381/09 and 58738/09 (ECtHR 7 April 2016), hereinafter Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia.
18.
Appl. Nos. 69916/10 and 36531/11 (ECtHR 7 April 2016), hereinafter Poposki and Duma v. The Former Yugoslav Republic of Macedonia.
19.
Appl. No. 5114/09 and 17 others (ECtHR 19 January 2017), hereinafter Kulykov and Others v. Ukraine.
20.
Appl. No. 22254/14 (ECtHR 22 February 2017), hereinafter Erményi v. Hungary.
21.
Appl. No. 45729/05 (ECtHR 27 April 2017), hereinafter Sturua v. Georgia.
22.
Appl. No. 147/07 (ECtHR 31 January 2018), hereinafter Kamenos v. Cyprus.
23.
Appl. No. 76639/11 (ECtHR [GC], 25 September 2018), hereinafter Denisov v. Ukraine.
24.
Thirty-five applicant judges in 16 judgments: Olujić v. Croatia, Oleksandr Volkov v. Ukraine, Mishgjoni v. Albania, Harabin v. Slovakia, Saghatelyan v. Armenia, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Ramos Nunes de Carvalho e Sá v. Portugal, Baka v. Hungary, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Ivanovski v. The Former Yugoslav Republic of Macedonia, Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, Poposki and Duma v. The Former Yugoslav Republic of Macedonia, Sturua v. Georgia, Kamenos v. Cyprus, and Denisov v. Ukraine, and Kulykov and Others v. Ukraine (eighteen applicants).
25.
Twenty-two applicant judges in five judgments: one applicant judge in Özpinar v. Turkey, Oleksandr Volkov v. Ukraine, Ivanovski v. The Former Yugoslav Republic of Macedonia, Erményi v. Hungary, and eighteen applicant judges in Kulykov and Others v. Ukraine.
26.
Three applicant judges in three judgments: one applicant judge in Albayrak v. Turkey, Kudeshkina v. Russia, and Baka v. Hungary.
27.
Two applicant judges in two judgments: one applicant judge in Özpinar v. Turkey, and another applicant judge in Mishgjoni v. Albania.
28.
One applicant judge in one judgment, Albayrak v. Turkey.
29.
Ramos Nunes de Carvalho e Sá v. Portugal and Baka v. Hungary.
30.
Olujić v. Croatia and Oleksandr Volkov v. Ukraine.
31.
Denisov v. Ukraine.
32.
One applicant judge, Mishgjoni v. Albania.
33.
One applicant judge, Saghatelyan v. Armenia.
34.
One applicant judge, Olujić v. Croatia.
35.
One applicant judge, Kamenos v. Cyprus.
36.
One applicant judge, Sturua v. Georgia.
37.
One applicant judge, Ramos Nunes de Carvalho e Sá v. Portugal.
38.
One applicant judge, Harabin v. Slovakia.
39.
One applicant judge, Kudeshkina v. Russia.
40.
Two applicant judges in Baka v. Hungary, and Erményi v. Hungary (three judgments were delivered as in the case of Baka v. Hungary, there were two judgments—one by the Second Section and another by the Grand Chamber).
41.
Two applicant judges, Albayrak v. Turkey and Özpinar v. Turkey.
42.
Six applicant judges with four judgments delivered by the ECtHR, one applicant judge in Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Mitrinovski v. The Former Yugoslav Republic of Macedonia, and Ivanovski v. The Former Yugoslav Republic of Macedonia; two applicant judges in Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, and Poposki and Duma v. The Former Yugoslav Republic of Macedonia.
43.
Twenty applicant judges with three judgments delivered by the ECtHR, one judge applicant, Oleksandr Volkov v. Ukraine, eighteen applicant judges in Kulykov and Others v. Ukraine, and one applicant judge in Denisov v. Ukraine.
44.
Erményi v. Hungary.
45.
Albayrak v. Turkey. But see also Appl. No. 27791/06, Luigi Tosti v. Italy (ECtHR 12 May 2009).
46.
Albayrak v. Turkey.
47.
Ibid.
48.
One applicant judge in Olujić v. Croatia, Özpinar v. Turkey, Oleksandr Volkov v. Ukraine, Saghatelyan v. Armenia, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Baka v. Hungary, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Ivanovski v. The Former Yugoslav Republic of Macedonia, Erményi v. Hungary, Sturua v. Georgia, Kamenos v. Cyprus, and Denisov v. Ukraine, 2 applicant judges in Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, and Poposki and Duma v. The Former Yugoslav Republic of Macedonia, and eighteen applicant judges in Kulykov and Others v. Ukraine.
49.
Kudeshkina v. Russia.
50.
Ramos Nunes de Carvalho e Sá v. Portugal.
51.
Harabin v. Slovakia.
52.
Albayrak v. Turkey, concerning transfer, withholding of promotion, and reprimand; and Özpinar v. Turkey, concerning removal from office and refusal to reinstate applicant judge.
53.
Mishgjoni v. Albania.
54.
Erményi v. Hungary.
55.
Mishgjoni v. Albania, Harabin v. Slovakia, Saghatelyan v. Armenia, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Ramos Nunes de Carvalho e Sá v. Portugal, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Ivanovski v. The Former Yugoslav Republic of Macedonia, Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, Poposki and Duma v. The Former Yugoslav Republic of Macedonia, Kulykov and Others v. Ukraine but only in relation to seventeen (out of eighteen) applicant judges, and Kamenos v. Cyprus.
56.
Albayrak v. Turkey, and in Kulykov and Others v. Ukraine but only to one (out of eighteen) applicants.
57.
Baka v. Hungary, and Erményi v. Hungary.
58.
Oleksandr Volkov v. Ukraine.
59.
Özpinar v. Turkey, Olujić v. Croatia, Kudeshkina v. Russia.
60.
Ramos Nunes de Carvalho e Sá v. Portugal, and Kulykov and Others v. Ukraine but only in relation to four (out of eighteen) applicant judges.
61.
Mishgjoni v. Albania, Harabin v. Slovakia, Oleksandr Volkov v. Ukraine, Saghatelyan v. Armenia, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Baka v. Hungary, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Ivanovski v. The Former Yugoslav Republic of Macedonia, Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia but only in relation to second applicant, Poposki and Duma v. The Former Yugoslav Republic of Macedonia in relation to second applicant only, Kulykov and Others v. Ukraine but only in relation to eleven out of eighteen applicants, Erményi v. Hungary, Sturua v. Georgia, Kamenos v. Cyprus, and Denisov v. Ukraine.
62.
Baka v. Hungary, and Erményi v. Hungary.
63.
Kudeshkina v. Russia, Ramos Nunes de Carvalho e Sá v. Portugal, Poposki and Duma v. The Former Yugoslav Republic of Macedonia, but only in relation to first applicant, and Kulykov and Others v. Ukraine, but only in relation to seven out of eighteen applicants.
64.
Albayrak v. Turkey, Kudeshkina v. Russia, Özpinar v. Turkey, Mishgjoni v. Albania, Harabin v. Slovakia, Oleksandr Volkov v. Ukraine, Saghatelyan v. Armenia, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Ivanovski v. The Former Yugoslav Republic of Macedonia, Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, Poposki and Duma v. The Former Yugoslav Republic of Macedonia, Kulykov and Others v. Ukraine but only in relation to fourteen out of eighteen applicant judges, Sturua v. Georgia and Denisov v. Ukraine.
65.
Albayrak v. Turkey and Olujić v. Croatia.
66.
Volkov v. Ukraine, para 200.
67.
Ibid., para 202.
68.
Ibid., para 208.
69.
Paras 177 and 178.
70.
Paras 67 and 68.
71.
Ramos Nunes de Carvalho e Sá v. Portugal, Grand Chamber, para 222.
72.
Paras 58 and 59.
73.
Paras 57 and 58.
74.
Paras 62 and 63.
75.
Para 92.
76.
In Massa v Italy, the ECtHR held that: ‘26. Disputes relating to the recruitment, careers and termination of service of public servants are as a general rule outside the scope of Article 6 para. 1 (art. 6-1) (on recruitment to the civil service, see the Glasenapp and Kosiek v. Germany judgments of 28 August 1986, Series A no. 104, p. 26, para. 49, and no. 105, p. 20, para. 35), but State intervention by means of a statute or delegated legislation has not prevented the Court from finding in several cases that the right in issue was a civil one (see, among other authorities, the Francesco Lombardo and Giancarlo Lombardo v. Italy judgments of 26 November 1992, Series A no. 249-B, p. 26, para. 17, and no. 249-C, p. 42, para. 16)’.
77.
Pitkevich v Russia, note 2, p. 8.
78.
Appl. No. 28541/95, Pellegrin v France (ECtHR 8 December 1999).
79.
Pitkevich v Russia, note 2.
80.
Appl. Nos. 3955/04, 5622/04, 8538/04 and 11418/04, Zubko and Others v. Ukraine (ECtHR 26 July 2006).
81.
Pitkevich v Russia, note 2, p. 8.
82.
Appl. No. 17851/91, Vogt v. Germany (ECtHR [GC] 26 September 1995), para 53.
83.
Ibid., para 53.
84.
Vilho Eskelinen and Others v Finland, para 62.
85.
Harabin v. Skovakia, para 133. See also Ramos Nunes de Carvalho e Sá v. Portugal, para 196.
86.
Erményi v. Hungary, para 32.
87.
Baka v. Hungary, para 154.
88.
Ibid, para 117.
89.
Oleksandr Volkov v Ukraine, para 103 and Saghatelyan v. Armenia, para 43.
90.
Oleksandr Volkov v Ukraine, Kulykov and Others v. Ukraine, Baka v. Hungary, Erményi v. Hungary, Olujić v. Croatia, and Ivanovski v. The Former Yugoslav Republic of Macedonia.
91.
Kulykov and Others v. Ukraine, and Saghatelyan v. Armenia.
92.
Oleksandr Volkov v Ukraine, Denisov v. Ukraine, and Saghatelyan v. Armenia.
93.
Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Oleksandr Volkov v Ukraine, and Oleksandr Volkov v Ukraine.
94.
Albayrak v. Turkey, Özpinar v. Turkey, Olujić v. Croatia, Kudeshkina v. Russia, Mishgjoni v. Albania, Ramos Nunes de Carvalho e Sá v. Portugal, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, Poposki and Duma v. The Former Yugoslav Republic of Macedonia, Sturua v. Georgia, Kamenos v. Cyprus, and Denisov v. Ukraine.
95.
Kamenos v. Cyprus, Sturua v. Georgia, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Olujić v. Croatia, Oleksandr Volkov v. Ukraine, Gerovska Popčevska v. The Former Yugoslav Republic of Macedonia, Mitrinovski v. The Former Yugoslav Republic of Macedonia, Jakšovski and Trifunovski v. The Former Yugoslav Republic of Macedonia, Poposki and Duma v. The Former Yugoslav Republic of Macedonia,Denisov v. Ukraine, Harabin v. Slovakia, Mishgjoni v. Albania, and Kudeshkina v. Russia.
96.
Ramos Nunes de Carvalho e Sá v. Portugal, para 196.
97.
Appl. Nos. 7299/75 and 7496/76 (ECtHR 10 February 1983), para 29.
98.
Saghatelyan v. Armenia, para 39.
99.
Oleksandr Volkov v. Ukraine, para 123.
100.
Albayrak v. Turkey, para 47. See also supra the previous paragraph in relation to Özpinar v. Turkey.
101.
Appl. No. 46295/99, Stafford v. the United Kingdom (ECtHR [GC] 28 May 2002, para 78; Oleksandr Volkov v. Ukraine, para 103; and Saghatelyan v. Armenia, para 43.
102.
Other cases not discussed in this chapter where the ECtHR had the opportunity to consider whether Parliament was an independent and impartial tribunal, even if not in relation to an applicant judge, were Appl. No. 13057/87, Demicoli v Malta (ECtHR 27 August 1991) and Appl. Nos. 17214/05, 20329/05 and 42113/04, Savino and Others v. Italy (ECtHR 28 April 2009).
103.
Kulykov and Others v. Ukraine and Saghatelyan v. Armenia.
104.
Such as the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan (1985) and endorsed by the United Nations General Assembly resolutions 40/32 and 40/146 (1985). Basic Principles on the Independence of the Judiciary. Resource document. United Nations. https://www.un.org/ruleoflaw/blog/document/basic-principles-on-the-independence-of-the-judiciary. Accessed 3 April 2019; the Judicial Group on Strengthening Judicial Integrity (2007). Bangalore Principles of Judicial Conduct and the Commentary thereon. Resource document. United Nations Office on Drugs and Crime. https://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf. Accessed 3 April 2019; the International Association of Judges (1999). Universal Charter of the Judge. Resource document. International Association of Judges. https://www.iaj-uim.org/universal-charter-of-the-judges/. Accessed 3 April 2019.
105.
Such as the Consultative Council of European Judges. Magna Carta of Judges (Fundamental Principles). Council of Europe. Resource document. https://rm.coe.int/16807482c6. Accessed 3 April 2019; Consultative Council of European Judges. Opinion no 10 on the Council for the Judiciary at the service of society (2007). Council of Europe. Resource document. https://rm.coe.int/168074779b. Accessed 3 April 2019; and the Department of Legal Affairs of the Council of Europe (1998). European Charter on the Statute for Judges. DAJ/DOC (98)23. Council of Europe. Resource document. https://rm.coe.int/16807473ef. Accessed 3 April 2019.
106.
Such as the, the General Assembly of the European Network of Councils for the Judiciary (2007). Judicial Ethics—Principles Values and Qualities. European Network of Councils for the Judiciary. Resource document. https://www.encj.eu/images/stories/pdf/ethics/judicialethicsdeontologiefinal.pdf. Accessed 3 April 2019; and The European Association of Judges Istanbul (2011). Resolution Concerning the Conformity with International Standards of Judicial Independence of the Amendments/Proposed Amendments to the Status of Judges in the Legislation of the Slovak Republic. Resource document. https://www.iaj-uim.org/iuw/wp-content/uploads/2013/06/AEM-resolution-on-Slovakia-2011-eng.pdf. Accessed 3 April 2019.
107.
See, for instance, the United Nations Office of the High Commissioner (2019) Submissions for the report on national judicial councils. United Nations Office of the High Commissioner. Resource document. https://www.ohchr.org/EN/Issues/Judiciary/Pages/ResponsesNJC.aspx. Accessed 3 April 2019.

References

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Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan (1985) and endorsed by the United Nations General Assembly resolutions 40/32 and 40/146 (1985). Basic Principles on the Independence of the Judiciary. Resource document. United Nations. Retrieved April 3, 2019, from https://www.un.org/ruleoflaw/blog/document/basic-principles-on-the-independence-of-the-judiciary
United Nations Office of the High Commissioner. (2019). Submissions for the report on national judicial councils. United Nations Office of the High Commissioner. Resource document. Retrieved April 3, 2019, from https://www.ohchr.org/EN/Issues/Judiciary/Pages/ResponsesNJC.aspx

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Department of Media, Communications and Technology Law, University of Malta, Faculty of Laws, Msida, Malta
Kevin Aquilina

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Aquilina, K. (2019). The Independence of the Judiciary in Strasbourg Judicial Disciplinary Case Law: Judges as Applicants and National Judicial Councils as Factotums of Respondent States. In: Pinto de Albuquerque, P., Wojtyczek, K. (eds) Judicial Power in a Globalized World. Springer, Cham. https://doi.org/10.1007/978-3-030-20744-1_1

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