Strasbourg v Kafka: Diplomatic Immunity of the Judges of the European Court of Human Rights

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-Chief of the European Convention on Human Rights Law Review)

I have already written about the unprecedented pressure that the Ukrainian authorities place on the sitting judge of the European Court of Human Rights (ECtHR or Court) in my previous blogpost on the issue. A while ago, the National Anti-Corruption Bureau of Ukraine started investigating the fact that the Ministry of Justice of Ukraine accepted a friendly settlement and paid compensation in one of the cases pending before the Court. There was nothing unusual about that case except a significant amount of compensation that would perhaps even have been higher if the friendly settlement had not been concluded. The Anti-Corruption Bureau tried to implicate the husband of the sitting Ukrainian Judge, Georgii Logvynskyi, in this case. Mr Logvynskyi is a well-known lawyer and politician in Ukraine. In my previous blog, I argued that the Court needs to react to these attempts to put the whole Court in disrepute. Now the Court was forced to react as the Prosecutor General of Ukraine requested the ECtHR to lift the immunity of Mr Logvynskyi which derives from the immunity of his spouse – Judge Ganna Yudkivska of the ECtHR. The Court decided not to lift this immunity because of the pressure that the National Anti-Corruption Bureau placed on the witnesses in this case. As far as I know this was only the second time that the question of immunities of the ECtHR judges came before the Court and the first time when the request was denied in full.

The scope of immunity

According to Article 1 of the Protocol 6 to the General Agreement on Privileges and Immunities of the Council of Europe the judges of the ECtHR, their spouses and minor children enjoy privileges, immunities, exemptions and facilities accorded to diplomatic envoys in accordance with international law. This includes immunity from criminal jurisdiction (Article 31 of Vienna Convention on Diplomatic Relations). In other words, before initiating a criminal investigation concerning any person protected by immunity, such immunity needs to be lifted. In case of judges and their close relatives, only the Plenary Court (all sitting judges) can lift these immunities which are in place to ensure independence of judges. Having said that, such immunities must be waived if they would impede the course of justice.

Not the first case

In 2011, the wife of the then judge elected in respect of Romania was implicated in a corruption scandal. Judge Bîrsan’s wife who was also a judge in one of the highest courts in Romania was accused of receiving presents for some professional favours. The Romanian authorities searched the house that was shared by Judge Bîrsan and his wife. At that time, the authorities did not even request the waiver of diplomatic immunities. This triggered a negative reaction from the ECtHR. Later, the authorities did request the waiver which was approved by the Court in relation to Judge Bîrsan’s wife but not himself. The Court also emphasised that this waiver did not apply retrospectively. It is needless to say how sensitive the issue of criminal investigations concerning its judges and their relatives is for the Court. Although, Judge Bîrsan’s spouse was subsequently acquitted, the infamous British newspaper Daily Mail used this situation to “argue” that “The sooner that the UK introduces proper safeguards against rulings from judges in Strasbourg the better”. Therefore, the Court needs to be clear and consistent in its position in such cases.

But unique in its own right

So, Mr Logvynskyi’s case is not the first one in which the Court had to deal with the request to waive immunities of a spouse of a ECtHR judge. However, some aspects of this case make it unique or at least the first of its kind. In this case, the Ukrainian authorities failed to persuade the ECtHR judges that the waiving of immunities would be necessary for the course of justice. The Plenary Court in its decision focused on the procedural shortcomings of this investigation. It did not look into the substance of the case, although it is quite fascinating and I have discussed it in some detail in my previous post on the issue. Here, the Court rejected the request of the Ukrainian authorities on grounds that are hugely concerning and the Anti-Corruption Bureau needs to fundamentally review their method of criminal investigation as a result of it.

The procedural issues that the Court focused on included pressuring witnesses. The Court stated that such

“actions of the National Anti-Corruption Bureau of Ukraine to obtain evidence to be used against Mr Logvynskyi are incompatible with his immunity, … and as such run counter to the purpose and meaning of immunity and risk undermining the integrity of the waiver procedure before the Court”.

The Court has also highlighted that the covert surveillance that was conducted by the Anti-Corruption Bureau should be considered as an act of criminal investigation. This perhaps means that the request to the Court for waiver of Mr Logvynskyi’s immunity should have been submitted before the surveillance had taken place and not afterwards. Although the Court has not explicitly said so, the judges seem to doubt that this case will be investigated fairly and in compliance with the rules of due process.

The decision of the Court is very brief and it does not contain much in terms of reasoning. Considering the seriousness of the issue, some further elaboration could have been useful. Except for a press release and a very short decision it is not known how the Court came to this decision. Moreover, it would perhaps be useful if the Court discussed the evidence submitted by the Ukrainian authorities in this case.

It is undisputed that immunities should not shield judges and their close relatives from criminal charges when these charges are substantiated. However, immunities were created for judges to prevent undue pressure on them from authorities. There were a few cases in which states tried to influence the decisions of judges through various means such as public statements, media campaigns etc. For example, in 2008 the ECtHR judge elected in respect of Albania was publicly criticised by one of the political parties in Albania for how he voted in one of the cases. There are plenty of similar or even more covert examples of pressure on the ECtHR judges. These examples are more subtle but also very problematic. However, authorities rarely use criminal charges and prosecution. It is all even more concerning if one considers the methods that were used by the Anti-Corruption Bureau. If even in such a high-profile case the Anti-Corruption Bureau put undue pressure on witnesses, one can only imagine how less high-profile cases are investigated by this organ of the Ukrainian authorities.

5 thoughts on “Strasbourg v Kafka: Diplomatic Immunity of the Judges of the European Court of Human Rights

  1. Interesting, and important as well. But, first observation, for such case concerning immunity, is whether, the suspicions, has to do with acts, done by the judges, while carrying out his professional duty, or, outside of it. We couldn’t understand it from the post it seems. For example, article 4 to the protocol, dictates in relevant part, I quote:

    ” Privileges and immunities are accorded to judges not for the personal benefit of the
    individuals themselves but in order to safeguard the independent exercise of their functions…..”

    End of quotation:

    So, if has to do with his functions, it is one thing indeed. Outside of it, another thing. This is very critical preliminary issue. Not so well explained in that post it seems with all due respect.

    Thanks

  2. My comment posted, has disappeared simply. So again:

    Interesting, and important as well. But, first observation, for such case concerning immunity, is whether, the suspicions, has to do with acts, done by the judges, while carrying out his professional duty, or, outside of it. We couldn’t understand it from the post it seems. For example, article 4 to the protocol, dictates in relevant part, I quote:

    ” Privileges and immunities are accorded to judges not for the personal benefit of the
    individuals themselves but in order to safeguard the independent exercise of their functions…..”

    End of quotation:

    So, if has to do with his functions, it is one thing indeed. Outside of it, another thing. This is very critical preliminary issue. Not so well explained in that post it seems with all due respect.

    Thanks

  3. Thank you very much for this important comment and perhaps I was not clear on that. The reason for that probably is that often it is difficult to clearly separate what is private and what is not in such cases. The states might often use a case that is not evidently connected to the judicial function but the real purpose is to put pressure on a judge. Having said that, in case of judge Yudkivska the criminal investigation of her spouse is very closely connected to the work of the ECtHR. Please, check my previous blog post on the issue – I explain what is the substance of the case. It is very closely linked to the activities of the European Court and execution of its judgments.

  4. Dear El roam,

    I’m not sure if your observation is entirely correct (i.e. that the suspicion must have to do with acts carried out in the Judge’s official capacity). Ukraine requested to waive the immunity of the Judge’s spouse and in the decision, the Court writes ‘that the immunity of serving Judges’ spouses exists irrespective of whether or not their acts are associated with the performance of Judges’ functions’. Based on this, it seems like the spouse enjoys personal immunity when the Judge is still in office (i.e. immunity that applies regardless of whether an act is associated with the performance of a function). This can perhaps also be derived from Article 1 of the Sixth Protocol to the General Agreement on Privileges and Immunities of the Council of Europe (General Agreement), which notes that spouses enjoy immunities accorded to diplomatic envoys in accordance with international law. The Vienna Convention on Diplomatic Relations also seems to give them personal immunity (Article 37(1) jo. Articles 29 and 31).

    It think that your remark is correct in so far as it relates to the Judges and that the Judges, therefore, only enjoy functional immunity. Article 51 ECHR refers to entitlement to immunities ‘during the exercise of their functions’ and Schabas, in his commentary on the ECHR (p. 892), states: ‘this is a functional immunity’. Additionally, Article 18 of the General Agreement refers to ‘all acts performed by them in their official capacity and within the limit of their authority’ and Article 3 of the Sixth Protocol to the General Agreement to ‘complete independence in the discharge of their duties’. In other words, when the Judge is still in function, the Judge seems to be afforded less broad immunity than his/her spouse (see also soft law instruments that seem to confirm that judges should only enjoy functional immunity: Recommendation CM/Rec(2010)12, para. 71; Opinion no. 3, the Council of Europe’s Consultative Council of European Judges, para 75). This would make sense from a logical standpoint, because the spouse does not exercise the judge’s function and limiting the immunity of the spouse to matters related to the Judge’s function would make the spouse’s immunity of little practical use.

    I’m not an expert on immunities in international law at all, but writing a case note (in Dutch) about this decision so if you or professor Dzehtsiarou have any thoughts on this point, they are more than welcome!

    Kind regards,
    Lize Glas

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