FIFTH SECTION
CASE OF BANTYSH AND OTHERS v. UKRAINE
(Applications nos. 13063/18 and 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
JOINDER OF THE APPLICATIONS5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention6. 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.
APPLICATION OF ARTICLE 41 OF THE CONVENTION11. 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,
Decides to join the applications;Declares the applications admissible;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; 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)
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Penalty
Date of final domestic decision
Name of court
Specific defects
Amount awarded for non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
13063/18
04/03/2018
Sergiy Anatoliyovych BANTYSH
1972
suspension of the driving licence for a year, administrative fine of UAH 10,200
06/09/2017, Kirovograd Regional Court of Appeal
absence of the prosecuting party in the administrative-offence proceedings (Karelin v. Russia, no. 926/08, §§ 51-57, 20 September 2016 and Mikhaylova v. Ukraine, §§ 61-67, no. 10644/08, 6 March 2018)
900
8077/19
30/01/2019
Mykola Ivanovych LOBCHUK
1980
suspension of the driving licence for a year, administrative fine of UAH 10,200
30/07/2018,
Rivne Regional Court of Appeal
900
51757/19
20/09/2019
Andriy Valeriyovych MYRGORODSKYY
1983
Grygoryev Dmytro Valeriyovych
Vilnogirsk
suspension of the driving licence for a year, administrative fine of UAH 10,200
30/05/2019, Dnipro Court of Appeal
900
58464/19
29/10/2019
Sergiy Leonidovych SHYROKOV
1976
Vasylchenko Iryna Gennadiyivna
Kyiv
suspension of the driving licence for a year, administrative fine of UAH 10,200
13/05/2019,
Kyiv Court of Appeal
900
[1] Plus any tax that may be chargeable to the applicants.