| Applicant name | OVCHARENKO AND KOLOS |
| Applicant type | natural person |
| Number of applicants | 2 |
| Country | Ukraine |
| Application no. | 27276/15 33692/15 |
| Date | 12/01/2023 |
| Judges | Georges Ravarani, President, Iulia Antoanella Motoc, Mārtiņš Mits, María Elósegui, Mattias Guyomar, Kateřina Šimáčková, Mykola Gnatovskyy |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Unlawfull |
| Type of privacy | Private life; procedural privacy |
| Keywords | Quality of law |
| Facts of the case | Art 8 • Private life • Art 6 (civil) • Fair hearing • Constitutional Court judges’ dismissal for participating in a debatable judgment, without clear interpretation of the imputed “breach of oath” and the scope of their functional immunity • No legislative change since Oleksandr Volkov bringing about better foreseeability • Utmost caution and detailed reasons crucial where Constitutional judges are dismissed by Parliament • Domestic authorities’ use of discretionary powers undermining legal certainty, not justified by the context of massive protests and extraordinary change of State power • Inadequate judicial review lacking elaborate response on crucial issues • Clear European trend towards strict and narrow grounds for sanctioning Constitutional Court judges • Distinction to be made between a disputable interpretation or application of the law, on the one hand, and a serious and flagrant breach of the law, arbitrariness, a serious distortion of the facts, or an obvious lack of legal basis for a judicial measure, on the other hand • Cases concerning judges’ liability requiring consideration of mental element of alleged misconduct |
| Analysis | the Court considers that the lack of clarity and detailed explanations in the circumstances described led to a situation of legal uncertainty, which is unacceptable and even more so when it comes to the tenure of judges in a court playing a crucial role in maintaining the rule of law and democracy. While it is clear that on the question what constitutes “breach of oath” by a Constitutional Court judge, it is natural that case-law might be scarce, especially in a new democracy like Ukraine, the requirements of legal certainty should be seen as mandating particularly stringent legal argumentation taking into account all the applicable law and its underlying principles, when applying such a concept as “breach of oath” – untested with regard to Constitutional Court judges until the events complained of. Without very detailed and clear reasoning on the constituent elements of “breach of oath” in relation to the acts attributed to the applicants, the domestic authorities used their discretionary powers in a way that undermined legal certainty and thus compromised the requirement of lawfulness for the purposes of Article 8. |
| Other Article violation? | Yes Article 6 ECHR, no Article 18 ECHR |
| Damage awarded | Holds that the finding of a violation is sufficient just satisfaction for any non-pecuniary damage suffered by the applicants and dismisses the applicants’ claim for just satisfaction. |
| Documents | Judgment |