ECHR judgment of June 27, 2019 in the case of the Cosmos Maritime Trading and Shipping Agency v. Ukraine, Maritime Trading and Shipping Agency (application No. 53427/09).
In 2009, the applicant company was assisted in preparing the application. Subsequently, the application was communicated to Ukraine.
In the case, a application was successfully examined regarding the fact that the court considering the bankruptcy case was in the building that previously belonged to the debtor. The case contained a violation of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant company filed complaints against the state company as part of the bankruptcy procedure and claimed that the Ukrainian courts were not impartial.
QUESTIONS OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. The Court does not have materials that would cast doubt on the impartiality of the judges who examined the applicants' case from a subjective point of view. The question was whether judges and courts met the requirement of objective impartiality.
The proceedings in question concerned bankruptcy, a procedure in which the task of the domestic courts was to ensure the distribution of the debtor's assets between its creditors. The applicant company presented evidence to the courts of Ukraine and the European Court prima facie that the bankruptcy tribunal was in the building itself, which was transferred from the debtor to the courts shortly before the bankruptcy proceedings began, when the debtor was already experiencing financial difficulties, and that the transfer was completed when the bankruptcy case was already pending. There were no answers to the relevant arguments of the applicant company, only one of the judges noted that the said transfer of the building had no personal effect on her since she entered the case much later. It should be noted that the judge, even rejecting the application for the dismissal of the judge, did not dispute that the transfer of the building took place, as claimed by the applicant company.
In such circumstances, despite the absence of reasons to doubt the impartiality of individual judges, the applicant company's assumption that the court that examined the case was biased could be regarded by the objective observer as manifestly unfounded. This proposal related to the trial court as a whole, and not to individual judges.
For this reason, the response of the Ukrainian courts to the pending complaint of the applicant company, according to which one of the several judges of the panel of the arbitral tribunal was not influenced by the fact of the transfer of the building, could not be considered sufficient. Article 6 § 1 of the Convention obliged any court of the respondent Government to verify whether it was “impartial” within the meaning of this provision of the Convention if, as in the case of the applicant company, such a moment is disputed and this complaint does not seem unfounded at first glance. However, the arbitration courts of neither the first nor the second instance of Ukraine carried out an audit that could help to correct, if necessary, a situation that violated the requirements of the Convention.
In the case there was a violation of the requirements of Article 6 of the Convention (adopted unanimously).
The Court also unanimously found a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings.
In application of Article 41 of the Convention. The Court awarded the applicant company EUR 10,000 in respect of non-pecuniary damage, the claims for pecuniary damage were rejected.