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Case of Kulykov and 17 Others v. Ukraine: Waiting for Reinstatement or New Litigation in the European Court

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Case of Kulykov and 17 Others v. Ukraine: Waiting for Reinstatement or New Litigation in the European Court

20. 02. 2017

On 19 January 2017 the European Court delivered judgment against Ukraine in the Case of Kulikov and 17 Others v. Ukraine (application no. 5114/09), in which the Court found that dismissal of 18 judges in the period from 2008 to 2013 was carried out in violation of the rights guaranteed by the Convention.

There was no doubt that the dismissal of 18 judges was conducted in violation of the Convention. The only intrigue was whether the Court would reinstate the applicants in their positions as in the Case of Alexander Volkov. Recalling the case, in 2013, at the request of the former (at the time) judge of the Supreme Court of Ukraine Alexander Volkov, the European Court has decided in his favour and ordered his reinstatement.

Alexander Volkov has remained the exception to the rule. In the Case of Kulikov and 17 Others v. Ukraine the Court refused to reinstate applicants in their positions, grounding its decision on the following explanation:

«… at the present time a full-fledged judicial reform is taking place in Ukraine which includes constitutional and further legislative amendments, as well as institutional changes. Against this background, the Court is not in a position to assess the effectiveness at the moment of the procedure for the reopening of the domestic proceedings, if requested by the applicants. However, given the scope and the circumstances of the present applications, it cannot be concluded that this substantially new background renders the relevant domestic procedures prima facie futile and useless. The Court does not therefore follow the approach taken in Oleksandr Volkov (ibid., § 208) as to the indication of an individual measure and dismisses the relevant request».

The Court therefore held that national legislation has changed significantly and judicial reform shows a real hope that the applicants purely theoretically have a chance of a fair review of their cases in the national courts.

As for me, this judgment is a result of a good work of Government Agent and his Office.

The Court made a clear conclusion on substantial violation of the applicant’s rights and on the need to review their cases. Consequently, decisions of domestic institutions on dismissal of the applicants are subject to cancellation.

As of today, bringing judges accountable for actions that have led to their dismissal is not possible, because it has passed at least 4 years from the moment of conducting offense for which judges have been accused for a violation of their oath.

At the same time, disciplinary sanction can be applied on a judge not later than 3 years after committing an offense.

Further developments may lead to two options: either applicants will be reinstated in their positions and Ukraine will confirm its positive trends in judicial reform, or they will apply to the European Court again, and Ukraine will once more convince the Court that any remedies we have for human rights exist only in theory.

Nazar Kulchytskyy

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