European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF BANTYSH AND OTHERS v. UKRAINE

(Applications nos. 13063/18and 3 others - see appended list)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

6 October 2022

This judgment is final but it may be subject to editorial revision.

In the case of Bantysh and Others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

  Stéphanie Mourou-Vikström , President,

  Ivana Jelić ,

  Kateřina Šimáčková , judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar ,

Having deliberated in private on 25 August 2022,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.     The case originated in applications against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on the various dates indicated in the appended table.

2.     The Ukrainian Government ("the Government") were given notice of the applications.

THE FACTS

3.     The list of applicants and the relevant details of the applications are set out in the appended table.

4.     The applicants complained of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings.

THE LAW

1. JOINDER OF THE APPLICATIONS

5.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention

6.     The applicants complained of the absence of the prosecuting party in administrative-offence proceedings. They relied, expressly or in substance, on Article 6 §§ 1 and/or 2 of the Convention. The Court, being the master   of the characterisation to be given in law to the facts of any case before it (see   Akdeniz v. Turkey , no. 25165/94, §   88, 31   May 2005), considers that these complaints fall to be examined under Article 6 § 1 of the Convention which reads as follows:

Article 6 § 1

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law."

7.     The relevant principles of the Court's case-law concerning the requirement of impartiality under Article 6 § 1 of the Convention can be found in Karelin v. Russia (no.   926/08, §§ 51-57, 20 September 2016, with further references).

8.     In the leading case of Mikhaylova v. Ukraine (no. 10644/08, 6 March 2018), the Court already found a violation in respect of issues similar to those in the present case.

9.     Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of the complaints in the instant case.

10.     These complaints are therefore admissible and disclose a breach of Article   6 § 1 of the Convention on account of the lack of the impartiality of the tribunal in view of the absence of the prosecuting party in the administrative-offence proceedings.

3. APPLICATION OF ARTICLE   41 OF THE CONVENTION

11.     Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

12.     Regard being had to the documents in its possession and to its case - law (see, in particular, Mikhaylova, cited above), the Court considers it reasonable to award the sums indicated in the appended table.

13.     The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the lack of impartiality of the tribunal in view of the absence of the prosecuting party in the administrative-offence proceedings;
4. Holds

(a)   that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 6 October 2022, pursuant to Rule  
77   §§   2 and   3 of the Rules of Court.

 

  Viktoriya Maradudina   Stéphanie Mourou-Vikström

  Acting Deputy Registrar   President

 

 

 

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention

(lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings)

 

[1] Plus any tax that may be chargeable to the applicants.