FIFTH SECTION

CASE OF GLUSHCHENKO AND PUSTOVYY v. UKRAINE

(Applications nos. 68073/17 and 72743/17)

JUDGMENT

STRASBOURG

2 March 2023

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

In the case of Glushchenko and Pustovyy v. Ukraine,

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

 Mārtiņš Mits, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 2 February 2023,

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. In application no. 72743/17 the applicant also raised another complaint under the provisions of the Convention.

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 principally of the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings. They relied, expressly or in substance, on Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

“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. REMAINING COMPLAINTS

11.  In application no. 72743/17 the applicant also raised a complaint under Article 6 § 3 of the Convention.

12.  The Court has examined this complaint and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, it either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

4. APPLICATION OF ARTICLE 41 OF THE CONVENTION

13.  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.”

14.  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.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaints concerning the lack of impartiality of the tribunal in view of the absence of the prosecuting party in administrative-offence proceedings admissible and the remainder of application no. 72743/17 inadmissible;
3. Holds that these complaints 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 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 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Mārtiņš Mits

 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.