FIFTH SECTION
DECISION
Application no. 70728/10
Tatyana Petrovna BILYK
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 18 February 2021 as a Committee composed of:
Arnfinn Bårdsen, President,
Ganna Yudkivska,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 20 November 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Tatyana Petrovna Bilyk, is a Ukrainian national who was born in 1969 and lives in Dnipro. She was represented before the Court by Mr V.A. Makarenko, a lawyer practising in Petropavlivska Borshchagivka.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In June 2007 the applicant instituted proceedings in the Kirovskyy District Court of Dnipropetrovsk against the Dnipropetrovsk Higher College of Physical Culture (“the College”), seeking reinstatement in the position of lecturer, recovery of salary arrears, and compensation for non-pecuniary damage and legal costs.
5. On 2 July 2009 the Kirovskyy District Court of Dnipropetrovsk dismissed the applicant’s claim. The applicant’s case was heard by Judge V., sitting in a single-judge formation.
6. The applicant appealed. In her notice of appeal she claimed, inter alia, that Judge V. was biased and had been neglectful in the performance of her duties, as was confirmed by her excessively lengthy consideration of the applicant’s case and by the fact that after the commencement of the proceedings, the College or its director, L., had paid for renovation work on the premises of the Kirovskyy District Court of Dnipropetrovsk.
7. On 24 December 2009 the Dnipropetrovsk Regional Court of Appeal partly allowed the applicant’s claim. It ordered, inter alia, that the applicant was to be reinstated in the position of lecturer and that the College was to pay 28,652.17 Ukrainian hryvnias (UAH) in salary arrears and UAH 1,000 for non-pecuniary damage. Judge Ch. was one of the judges sitting in a three-judge panel at the appellate court. The Government submitted to the Court an excerpt from an audio recording of the second hearing at the appellate court. According to the recording, the applicant made an oral application in which she attempted for the first time to challenge Judge Ch., on the grounds that she had seen him attending a pool and sauna belonging to the College, together with the respondent’s representative. The latter denied any acquaintance with Judge Ch. and asked the appellate court to dismiss the application as time-barred. The appellate court dismissed the application as time-barred.
8. The applicant and the College both lodged a cassation appeal. The applicant complained in her notice of cassation appeal that Judge V. had been biased. She referred to the excessively lengthy consideration of her case, and to the fact that the College, or its director, had financed renovation work on the first-instance court premises. In relation to Judge Ch., the applicant stated that she had seen him in a state of intoxication, together with the respondent’s representative and some women, attending a pool belonging to the College. She claimed that she had not challenged Judge Ch. at the beginning of the appellate proceedings as she had been shocked and had not recognised him in his judicial robes. She further maintained that during the second appellate hearing, when she had tried to challenge Judge Ch., the respondent’s representative had confirmed that he had attended the pool with the said judge. Nevertheless, the appellate court had dismissed her application as time-barred.
9. On 10 March 2010 the Supreme Court of Ukraine refused to examine the applicant’s cassation appeal, finding that it was unsubstantiated.
10. On 15 March 2010 the Supreme Court of Ukraine opened cassation proceedings upon the College’s notice of cassation appeal. According to the applicant, she filed her reply to the College’s notice of cassation appeal of 18 April 2010, in which she agreed with the appellate court’s findings of fact and contested the College’s arguments relating to her dismissal. She did not raise any issues about the alleged bias of the judges of the lower courts.
11. On 25 April 2012 the Higher Specialised Court of Ukraine dismissed the College’s cassation appeal and upheld the decision of the Regional Court of Appeal.Relevant domestic law
12. The relevant provisions of the Code of Civil Procedure read, at the material time, as follows:
Article 20. Grounds for withdrawal of a judge
“1. A judge shall not take part in the examination of a case and shall be challenged or asked to resign if:
...
(2) he or she has a direct or indirect interest in the outcome of the case;
...
(4) there are other reasons to doubt his or her objectivity and impartiality ...”
Article 23. Applications for challenge and withdrawal
“1. If the grounds stipulated in Articles 20 ... exist, a judge ... shall be obliged to resign ...
2. The persons who participate in a case may challenge a judge ...on the grounds stipulated in Articles 20 ... of this Code.
3. An application for a challenge (withdrawal) shall include reasons and shall be made before the beginning of the determination of the circumstances of the case and their verification through evidence. It is permissible to make an application for a challenge after that time [the beginning of the determination of the circumstances of a case ...] in cases when [the person making the application] became aware of a ground for a challenge (withdrawal) after the beginning of the determination of the circumstances of a case and their verification through evidence.”
COMPLAINT
13. The applicant complained under Article 6 § 1 of the Convention that in the proceedings before the Kirovskyy District Court of Dnipropetrovsk and the Dnipropetrovsk Regional Court of Appeal she had not had a fair hearing by an “independent and impartial tribunal” in the determination of her civil rights.
THE LAWScope of the case
14. In her reply to the Government’s observations, the applicant additionally complained that the Dnipropetrovsk Regional Court of Appeal had failed to give adequate reasons for its decision, and that she had not received equal treatment from the Supreme Court when compared with the respondent, as it was not until the College’s notice of cassation appeal that the cassation proceedings had been opened.
15. The Court notes that these new, belated complaints do not constitute an elaboration on the applicant’s original complaint, on which the parties have commented. The Court considers, therefore, that it is not appropriate now to take up these matters in the context of the present case (see, for example, Piryanik v. Ukraine, no. 75788/01, § 20, 19 April 2005).Alleged violation of Article 6 § 1 of the Convention
16. The applicant complained that her case had not been considered by an “independent and impartial tribunal”. She relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
17. The Government argued that the applicant had failed to comply with the six-month time-limit, counting from 10 March 2010, when the Supreme Court had refused to consider the applicant’s notice of cassation appeal, and that the applicant had abused her right of petition in giving the Court untrue information in her application form, that is, the information that during the appellate court hearing, the respondent’s representative had confirmed that he had attended a pool and sauna with Judge Ch. Neither the audio recording nor the record of the hearing had contained any such information. On the contrary, the respondent’s representative had denied any acquaintance with Judge Ch. The Government further submitted that the applicant had failed to raise the issue of the alleged lack of impartiality properly before the national courts, and that her allegations were unfounded. They submitted to the Court a letter of 19 March 2019 from the Head of the Kirovskyy District Court of Dnipropetrovsk, stating that in accordance with the legislation in force at that time, the costs of the maintenance and renovation of court premises had been financed by the State Judicial Administration. The Government asked the Court to reject the application as inadmissible or to find that there had been no violation of the applicant’s rights under the Convention.
18. The applicant maintained her complaint.
19. The Court notes that the Government contended that the applicant had lodged her application outside the six-month time-limit and that her application should be dismissed as an abuse of the right of individual application. The Court will not examine these objections because, in any event, this application is inadmissible for the reasons set out below.
20. The general principles relating to impartiality under Article 6 of the Convention were recently summarised in Ramos Nunes de Carvalho e Sá v. Portugal ([GC], nos. 55391/13 and 2 others, §§ 145-50, 6 November 2018).
21. As regards the subjective aspect of impartiality, the Court notes that there is nothing in the present case that points to any prejudice or bias on the part of Judge V. and Judge Ch.
22. As to the objective test, the Court notes that the applicant complained of the lack of impartiality of Judge V. and Judge Ch. on the grounds that the College or its director had financed the installation of window grids on the first-instance court premises, and that Judge Ch. had been seen attending a pool and sauna that belonged to the College, together with the respondent’s representative.
23. In this connection, the Court firstly notes that the applicant, in her notice of appeal and her notice of cassation appeal, claimed before the national courts that the College or its director, L., had paid for the renovation work on the premises of the Kirovskyy District Court of Dnipropetrovsk. In her application form to the Court, the applicant indicated a new specific detail, that is, that she and her then representative had witnessed some window grids being unloaded from a vehicle belonging to the College and taken to the first-instance court premises for installation. She did not mention this important detail during proceedings in the national courts, nor did she submit a statement from her then representative confirming that he had indeed witnessed the window grids being unloaded from the vehicle belonging to the College. Therefore, this allegation should be rejected as unsubstantiated. Furthermore, the applicant did not elaborate before the Court to what extent the alleged bias of the first-instance court was remedied at the appeal stage, where her claim was largely allowed.
24. The Court notes, in relation to the alleged bias of Judge Ch., that the applicant raised this issue orally at the appellate court hearing after the beginning of the determination of the circumstances of the case. In particular, she claimed that the respondent’s representative had attended the pool and sauna belonging to the College, together with Judge Ch. This allegation was denied by the respondent’s representative and the appellate court dismissed it, as being submitted outside the prescribed time-limit (see paragraph 7 above). The applicant raised the same issue again before the Supreme Court, but misrepresented the statement of the respondent’s representative by asserting that he had confirmed her allegation (see paragraph 8 above). At the same time, the applicant did not raise this issue in her reply to the College’s notice of cassation appeal (see paragraph 10 above). She did not submit to the Court any witness statements or other evidence relating to her allegation.
25. In these circumstances, the Court finds that, even assuming that the applicant had properly raised the issue before the national courts, a mere allegation of bias is not sufficient to objectively justify the applicant’s doubts about Judge Ch.’s lack of impartiality, and in the absence of evidence, the Court finds that the applicant failed to substantiate her complaint.
26. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 March 2021.
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Martina KellerArnfinn Bårdsen
Deputy RegistrarPresident
Full & Egal Universal Law Academy