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04. 03. 2019

Denisov v. Ukraine

On September 19, 2018, the Grand Chamber of the European Court delivered the judgment in Denisov v. Ukraine (application no. 76639/11), where the applicant complained of a violation of his rights as a result of his dismissal from the position of the president of the Kyiv Administrative Court of Appeal in 2011.

It seems that there is nothing interesting in this case: the same period of time and the same High Council of Justice, which cannot be considered an independent and impartial body within the meaning of Article 6 of the Convention – we all have seen these facts in the case of Oleksandr Volkov (Oleksandr Volkov v. Ukraine, application no. 21722/11). The peculiarity of this decision is the Court’s conclusion on a violation of the right to respect for the applicant’s private life regarding his dismissal.

In the case of Denisov v. Ukraine, the ECHR provided a clear and understandable algorithm to determine the scope of application of Article 8 of the Convention in cases on dismissal and access to profession. In particular, interference with private life in such a category of cases can be examined on the basis of two different approaches

  • Reasons: certain aspects of privacy (for example, sexual orientation or religious belief) have become a reason for dismissal/admission to the profession;

  • Consequences: because of dismissal/non-admission to a profession, the person experiences serious negative consequences, including the consequences of the material impact, damage to a reputation and the ability of the person to establish and develop relationships with other people.

Thus, if the case is examined precisely in the context of the negative consequences, as in the case of judge Denisov, such impact should reach the minimum level of severity covered by Article 8 of the Convention.

In the case of Denisov v. Ukraine, the applicant was dismissed from the position of the president of the court, but he was not deprived of the judge’s mantle and he continued to exercise his judicial powers. The Court noted that the case concerned solely the managerial skills of the applicant, and the national authorities had in no way questioned neither his professional nor moral and ethical qualities as a judge:

«As regards the applicant’s professional reputation, the Court notes that his 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 this capacity, the applicant was paid the predominant part of his salary. At the same time, the successful performance of a presidential or administrative function in a court is 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 be 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» (§ 125)

Furthermore, the Applicant was also unable to prove that his dismissal had a significant effect on the ability to establish and develop professional relationships with other people and that the reduction of his wage and pension had sever impact on his private life.

Thus, the Court found that the negative effects which the applicant suffered as a result of his dismissal from the position of the president of the court did not reach the minimum level of severity, and therefore the complaint in that part was found to be inadmissible ratione materiae with the provisions of the Convention.

Anastasiia Nekrasova

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