The European Court of Human Rights issued a decision in the case "Ovcharenka and Kolos v. Ukraine", which was considered at the request of former judges of the Constitutional Court of Ukraine during the time of President Viktor Yanukovych.
"European Truth" writes about it.
Vyacheslav Ovcharenko and Mykhailo Kolos appealed to the ECtHR in July 2015. The case concerned their dismissal from their positions for their participation in the adoption of a decision, which the authorities interpreted as an illegal act, which restored the previous version of the Constitution, which led to the usurpation of power by the then president of Ukraine.
Relying on Articles 6 (right to a fair trial), 8 (right to respect for private and family life) and 18 (limitations on the application of restrictions of rights) of the Convention, they complained that their dismissal was unjustified and argued that there was a hidden motive.
In its decision, the ECtHR determined that there was a violation of Article 8 and Article 6, paragraph 1, regarding the right to an independent and impartial court and the right to a reasoned judicial decision.
In particular, the question of whether their dismissal was compatible with the constitutional guarantees of the independence of judges, including the question of the functional immunity of judges of the Constitutional Court, which limits the scope of their legal responsibility for the results of their voting as members of the Constitutional Court, required a detailed answer. was silently dismissed and should have been examined in detail. Since this was not done, the decision to dismiss the applicants cannot be considered sufficiently justified," the decision reads.
At the same time, the court rejected the applicants' complaint under Article 18 of the Convention as clearly unfounded, not being convinced of the presence of an ulterior motive on the part of the authorities.
The court decided that a finding of infringement was in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicants. The decision does not provide for any financial compensation.
Kolos and Ovcharenko were part of the CCU, which on September 30, 2010 passed a decision declaring the amendments to the 2004 Constitution unconstitutional, establishing that they were adopted in violation of due process. The CCU recognized these changes as unconstitutional from the day of the decision, and thus the effect of the previous version of the Constitution was restored.
In February 2014, after the escape of Yanukovych, the judge was dismissed from his position by a resolution of the Verkhovna Rada of Ukraine "On responding to the facts of the violation of the oath of the judge by the judges of the Constitutional Court of Ukraine."