Employment-related disputes are not excluded from the scope of “private life”. The dismissal of a judge from his post as President of the Court due to his inability to carry out his managerial duties.
Denisov v. Ukraine 25.09.2018 (no. 6639/11)
The case concerned the applicant’s removal from the post of president of the Kyiv Administrative Court of Appeal.
The Court found that the way that the High Council of Justice had first dismissed Mr Denisov as president of the court owing to managerial inefficiency and that the Higher Administrative Court had later reviewed that decision had revealed similar issues as in the case of Oleksandr Volkov v.
Ukraine. The first body had not been sufficiently independent and impartial and the second had not been able to remedy the defects of the first set of proceedings. There had therefore been a violation of the right to a fair trial.
After a review of its case-law, the Court noted that the protection of private life under Article 8 of the Convention could also be relied on in work-related disputes. However, it could not be applied in Mr Denisov’s particular case as the reasons for his dismissal had not been linked to his private life and the dismissal itself had not had a significant impact on his private life after that. For instance, the consequences he had suffered in terms of lost prestige for no longer being the president of a court or because of the loss of salary, had not been severe enough to bring this provision of the Convention into play.
Article 1 of the First Additional Protocol
The applicant, Anatoliy Oleksiyovych Denisov, is a Ukrainian national who was born in 1948 and lives in Kyiv (Ukraine).
In June 2011 the Ukrainian High Council of Justice dismissed Mr Denisov from his role as president of the Kyiv Administrative Court of Appeal – though he continued to serve as a regular judge there.
The High Council of Justice considered that the administration of justice in the court had not been properly organised because of Mr Denisov’s failure to duly perform the duties of president.
Mr Denisov challenged his dismissal before the Higher Administrative Court, but his claim was dismissed as unsubstantiated.
In June 2013 Parliament also dismissed Mr Denisov from his remaining role as a judge, after he had tendered a statement of resignation.
THE DECISION OF THE COURT
Article 6 § 1
The Court noted that the bodies and constitutional arrangements involved in this case were the same as in Oleksandr Volkov, where it had found a violation of the Convention after Mr Volkov had been dismissed as a judge.
In Mr Denisov’s case, it held that the Ukrainian High Council of Justice, which had initially dismissed him for his managerial failings as president of the Kyiv Administrative Court of Appeal, was not sufficiently impartial and independent. Of the personnel who had made the decision to remove him, judges constituted the minority and there were members of the Council who were dependent in some way for their careers and salaries on other parts of the State apparatus. In addition, one of the judges had been the chairman of the preliminary inquiry which had recommended Mr Denisov’s dismissal.
The Higher Administrative Court, to which Mr Denisov had then appealed, had in turn failed to provide a sufficient review of the case. It had, for instance, stated that Mr Denisov had not contested the facts behind his dismissal, which was not the case. It had also not genuinely taken up his allegations of a lack of impartiality against the first body.
In addition, the Higher Administrative Court itself was under the disciplinary jurisdiction of the High Council of Justice, meaning that its judges could not show, in the circumstances of the case, the independence and impartiality required under the Convention
(a) General Principles – Article 8 could not be relied on in order to complain of a loss of reputation or other repercussions that were the foreseeable consequences of one’s own actions (see Gillberg v. Sweden [GC]).
Employment-related disputes were not per se excluded from the scope of “private life” within the meaning of Article 8. There were some typical aspects of private life which might be affected in such disputes. Those aspects included the applicant’s “inner circle”, the applicant’s opportunity to establish and develop relationships with others, and the applicant’s social and professional reputation. There were two ways in which a private-life issue could arise in such a dispute: either because of the underlying reasons for the impugned measure (in that event the Court employed the reason-based approach) or – in certain cases – because of the consequences for private life (in that event the Court employed the consequence-based approach).
If the consequence-based approach was at stake, the threshold of severity with respect to those typical aspects of private life assumed crucial importance. It was for the applicant to show convincingly that the threshold had been attained. The applicant had to present evidence substantiating consequences of the impugned measure. The Court would only accept that Article 8 was applicable where those consequences were very serious and had affected his or her private life to a very significant degree.
An applicant’s suffering was to be assessed by comparing his or her life before and after the measure in question. In determining the seriousness of the consequences in employment-related cases it was appropriate to assess the subjective perceptions claimed by the applicant against the background of the objective circumstances existing in the particular case. That analysis would have to cover both the material and the non-material impact of the alleged measure. However, it remained for the applicant to define and substantiate the nature and extent of his or her suffering, which had to have had a causal connection with the impugned measure.
(b) Application – The explicit reasons for the applicant’s dismissal had been strictly limited to his performance in the public arena, namely his alleged managerial failings, which were said to have undermined the proper functioning of the court. Those reasons related only to the applicant’s administrative tasks in the workplace and had had no connection to his private life. In the absence of any such issues in the reasons given for his dismissal, it had to be determined whether, according to the evidence and the substantiated allegations put forward by the applicant, the measure had had serious negative consequences for the aspects constituting his “private life”.
The applicant contested the very existence of any misconduct, thus implying that the measure involving his legal liability – his dismissal – could not have been a foreseeable consequence of his conduct in the position of president of a court of appeal and therefore his case could be distinguished from the applicant’s case in Gillberg.
The applicant had not provided any evidence to suggest that the reduction in his monthly remuneration had seriously affected the “inner circle” of his private life. As to establishing and maintaining relationships with others, his dismissal from the position of president had not resulted in his removal from his profession. He had continued to work as an ordinary judge and he had remained at the same court alongside his colleagues. Even if the applicant’s opportunities to establish and maintain relationships, including those of a professional nature, might have been affected, there were no factual grounds for concluding that such effects were substantial.
The applicant’s principal professional function was that of a judge. The profession of judge required him to possess specific knowledge, educational qualifications, skills and experience. In recompense for his service in that capacity, the applicant had been paid the predominant part of his salary. The successful performance of a presidential or administrative function in a court was not, strictly speaking, a characteristic of the judicial profession. Therefore, in objective terms, the judicial function constituted the applicant’s fundamental professional role. His position as president of a court, however important and prestigious it might have been in the judicial sphere and however it might have been subjectively perceived and valued by the applicant, did not relate to the principal sphere of his professional activity. At no point had the domestic authorities examined the applicant’s performance as a judge or expressed any opinion as to his judicial competence and professionalism. Unlike in Oleksandr Volkov v. Ukraine, the decisions concerned only his managerial skills. That limited area of scrutiny and criticism could not be regarded as having related to the core of the applicant’s professional reputation. While his position as president might have been the apex of his legal career, he had not specified how the alleged loss of esteem among his peers had caused him serious prejudice in his professional environment or how his dismissal had affected his future career as a judge.
As regards social reputation in general, the criticism by the authorities had not affected a wider ethical aspect of the applicant’s personality and character. Even though his dismissal had been based on the findings of breaches of official duties in the administration of justice, there had been no accusation of intentional misconduct or criminal behaviour. The applicant’s moral values had not been called into question and no reproaches of that nature could be identified in the impugned decisions.
Accordingly, measuring the applicant’s subjective perceptions against the objective background and assessing the material and non-material impact of his dismissal on the basis of the evidence presented before the Court, it had to be concluded that the dismissal had had limited negative effects on the applicant’s private life and did not cross the threshold of seriousness for an issue to be raised under Article 8 of the Convention.
The Court also rejected his complaints under Article 18 (limitation on use of restrictions on rights) and Article 1 of Protocol No. 1 to the Convention (protection of property).
Just satisfaction (Article 41)
The Court held that Ukraine was to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary damage, and EUR 3,000 in respect of costs and expenses(echrcaselaw.com editing)