FOURTH SECTION      CASE OF MIKHAYLOVA v. UKRAINE (Application no. 10644/08)      JUDGMENT    STRASBOURG 6 March 2018 FINAL 06/06/2018 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Mikhaylova v. Ukraine,The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Vincent A. De Gaetano, President, Ganna Yudkivska, Paulo Pinto de Albuquerque, Faris Vehabović, Egidijus Kūris, Iulia Motoc, Georges Ravarani, judges,and Marialena Tsirli, Section Registrar,Having deliberated in private on 16 January and 13 February 2018,Delivers the following judgment, which was adopted on that last date:PROCEDURE1. The case originated in an application (no. 10644/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Olena Oleksandrivna Mikhaylova (“the applicant”), on 27 November 2007.2. The applicant was represented by Mr A.A. Kristenko, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna.3. The applicant alleged, in particular, that the court which had convicted her of contempt had not been impartial, that she had not had the time to prepare her defence, and that her right to legal assistance and to call and examine witnesses had not been respected. She also complained that her punishment had constituted an unlawful and unnecessary interference with her freedom of expression, in breach of Article 10 of the Convention, and that her conviction had not been subject to an appeal, contrary to Article 2 of Protocol No. 7.4. On 26 November 2012 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1957 and lives in Nova Kakhovka.A. Background6. Prior to the events of 1 June 2007 that are in issue in the present case the applicant, who is not a lawyer, had appeared before the Nova Kakhovka Court (hereinafter “the court”) in a number of cases, either as a party or as a representative. In particular she had been involved in litigation with the local municipal utilities company.7. In December 2006 B. – one of the judges of the court – ordered the applicant to pay damages to the municipal utilities company’s in-house lawyer Ms S. for defamation.B. Hearing before Judge M.8. In 2007 the municipal utilities company instituted proceedings against the applicant, seeking recovery of utilities arrears.9. On 1 June 2007 a preliminary hearing in that case was held before Judge M., sitting in a single-judge formation; it was audio-recorded at the applicant’s request.10. The applicant appeared before the court and, at the opening of the hearing, challenged the presiding judge, M., in the following terms:“Applicant: Your Honour, I would like to challenge the composition of the court.Judge: Please proceed.Applicant: Your Honour, the grounds on which I challenge you are that, [when] sitting on the [bench of] the Nova Kakhovka Court, you have not given a single lawful decision in any case where I was a representative or a party. You have not even once protected my rights or the rights of the individuals I have been representing and helping ... Previously I used not to challenge you but lately I have started to do so. You do not allow my challenges, arguing that my arguments against you are supposedly made up and subjective. However, recently I have read an article [entitled] “Father for son, brother for brother” in the Delovye Novosti newspaper, which clearly and specifically states that you, on the basis of corporate solidarity among judges, have given a similarly unlawful judgment, as a result of which a person was falsely convicted and sentenced to eight years’ imprisonment. The newspaper article says that this issue has attracted the attention of the presidential administration and the General Prosecutor’s Office. I know that the case in question was examined by the Council of Judges and by a parliamentary commission, before which you appeared, before your appointment. This was the source of the problems you had in securing your appointment to the position of judge for life .... This article tells me unequivocally that you will only decide [this] case according to the instructions which you ... receive, and the law – including my rights as a consumer – will mean absolutely nothing to you. All the more so because I know from a court clerk that an instruction [has been given to] the Nova Kakhovka Court to decide cases [in which I am involved] against me.In support of what I have said I can refer to the case where you considered my claim against [a prosecutor] and where you delivered a totally illegal judgment, even though there have been decisions of the Nova Kakhovka Court and of the Court of Appeal concerning the same situation, in which the actions of the prosecutor had been declared unlawful in that the prosecutor should have delivered not only letters in response to my complaints but formal decisions so that I could challenge those decisions. You, by your decision, deprived me of that right.For me this is another signal: if the fate of that young man did not mean anything to you, then mine would mean even less. So it is not just that I have serious doubts about your impartiality; I know of no case where you have given a lawful decision. When you came to the Nova Kakhovka Court, I told you that I had much hope in you – that you were a competent and good judge. I was mistaken. Especially since the time when I and [another person], waiting in the corridor, overheard you [discussing about me and laughing].Judge [voice rising]: Olena Oleksandrivna, I am forced to interrupt you because you are making clearly false statements; this is grounds for drawing up a report of contempt of court! So please be balanced; you have just made so many false statements that are insulting the court.Applicant: What I said ... [inaudible]Judge [voice rising]: Please substantiate it, substantiate it with evidence – substantiate it!Applicant: There is my complaint ... [inaudible]Judge [voice rising]: That complaint is just your subjective opinion! Please be balanced!Applicant [voice rising]: I am balanced. No, it is your subjective opinion. You prove that you haven’t done all of this! We stood there and heard ...Judge: The judgments were upheld by the Court of Appeal: your case concerning K. – your case concerning elections. So please be balanced [inaudible] in [stating] your grounds for your challenge.Applicant: Your references to the Court of Appeal’s decisions ... [the applicant lists names, apparently of other judges]Judge: The hearing is adjourned!”C. Proceedings against the applicant for contempt of court11. According to the applicant, the hearing was adjourned at 9.30 a.m. Upon the adjournment Judge M. instructed her secretary, Ms P., to draw up an administrative-offence report in respect of the applicant for contempt of court.12. The report charged the applicant with contempt of court. The report stated that the applicant “on 1 June 2017 in the course of a court hearing ..., while challenging the presiding judge, accused [her] of delivering unlawful judgments [and undertaking] unlawful actions, uttered knowingly (завідомо) false statements detrimental to the judge’s honour and dignity, failed to react to the court’s admonishment to be balanced, [and] continued making statements which demonstrated her clear contempt for the court”, and in doing so committed an offence under Article 185-3 of the Code of Administrative Offences (hereinafter “the Code”) – see paragraph 22 below). The report stated that the applicant’s rights as a person accused of an administrative offence, as set out in Article 268 of the Code (see paragraph 25 below), had been explained to her and that her case would be examined on the same day. According to the applicant, the report was drawn up at 10.04 a.m. Having read it, she refused to sign it.13. The report was accompanied by written statements by Ms S. (see paragraph 7 above) and Ms Me. (according to the applicant, Ms Me. was Judge M.’s trainee), who had been present at the hearing and who affirmed the information in the report.14. According to the applicant, the witness statements had not been in the file when it was transferred to Judge B., who examined her contempt case; rather, they were obtained subsequently under Judge B.’s direction.15. The applicant alleged that the case file had been transmitted from Judge M.’s secretary to Judge B. directly, without being registered at the court registry and without being assigned by the court president in accordance with the usual procedure. She also alleged that she had not been given access to the case file before the contempt hearing.16. On the same day Judge B. held a hearing in the presence of the applicant. According to the applicant, the hearing commenced at 10.27 a.m. In the course of the hearing the applicant pleaded not guilty of the administrative offence of contempt of court and made oral submissions in respect of the charge against her. It appears that in the course of the hearing the applicant secretly audio-recorded the proceedings, producing a recording of a rather poor quality which she provided to the Court on a CD disc (see paragraph 48 below).17. At 11.46 Judge B. gave her judgment, by which the applicant was found guilty of contempt of court and sentenced to administrative detention for five days. Judge B. found that the applicant “in the course of a court hearing, in making a challenge, had accused Judge M. of adopting unlawful decisions [and undertaking] unlawful actions, had made false statements detrimental to the judge’s honour and dignity, had failed to react to the court’s admonishment to be balanced, and had continued making insulting statements which had demonstrated clear contempt for the court.” In convicting the applicant the court relied on the report (see paragraph 12 above), the statements of the witnesses Me. and S. (see paragraph 13 above), and the audio recording of the hearing (see paragraph 10 above).18. The applicant then spent five days in detention.19. On 2 July 2007 the First Vice-President of the Kherson Regional Court of Appeal, acting on his own motion within the meaning of Article 294 of the Code (see paragraph 28 above), reviewed the case. He examined the case-file materials without holding a hearing and upheld Judge B.’s judgment (see paragraph 17 above). In his reasoning the First Vice-President noted in particular that the applicant had failed to lodge any application in her case, be it to be permitted to examine the case file, for evidence to be collected, or to be allowed to have the assistance of a lawyer.D. Newspaper article to which the applicant referred in her speech20. The article entitled “Father for son, brother for brother”, to which the applicant referred in her challenge of Judge M. (see paragraph 10 above), was published in the Delovye Novosti newspaper on an unspecified date. It described a criminal case concerning a bar brawl in which a person had been killed and a certain G. charged with murder. The article was apparently mainly based on the statements of G.’s father. It put forward a point of view according to which G. was innocent since he had not provoked the brawl but had simply been defending a friend whom the victim had supposedly humiliated. The article described, in caustic terms, the decisions of the courts in the case. It also described G.’s father’s and brother’s efforts to defend him. According to the article, G. had been convicted by Judge V. of the Nova Kakhovka Court and sentenced to eight years’ imprisonment. After the conviction had been quashed on appeal, a retrial had been conducted by Judge M. who, according to the article, had been driven to convict G. by “[judges’] esprit de corps and corporate solidarity”. The article reported that G’s conviction by Judge M. had again been quashed on appeal and the case remitted for retrial before a different district court and that G.’s relatives had apparently made sure that the case would be under the supervision of the presidential administration and other high State bodies.II. RELEVANT DOMESTIC LAWA. Code of Administrative Offences21. Article 32 § 1 of the Code provides that administrative detention for up to fifteen days shall be applied by courts only in exceptional cases for certain administrative offences. Article 32 § 2 of the Code bars the imposition of administrative detention on pregnant women, women with children under the age of twelve, persons under the age of eighteen and disabled persons suffering the first (most serious) degree of disability. Article 33 of the Code requires the sentencing authority, in determining sentence, to take into account the nature of the offence in question, the degree of culpability of the person concerned and his financial situation, and any attenuating and aggravating circumstances.22. Article 185-3 of the Code provides for punishment in the form of a fine or administrative detention for up to fifteen days for contempt of court manifested by a repeated failure to comply with a summons to appear, failure to comply with the instructions of the presiding judge or disorderly conduct in the course of a hearing, or any other acts which demonstrate clear contempt for the court or the rules of conduct in court (дій, які свідчать про явну зневагу до суду або встановлених у суді правил).23. Article 245 of the Code provides that the goals of administrative-offence proceedings are the timely, complete and objective establishment of the circumstances of every case and their resolution in accordance with the law. Article 248 provides that in examining administrative-offence cases the authorities shall be guided by the principle of equality of all citizens, regardless of race, religion, origin, and so on.24. Article 250 provides that prosecutors can initiate administrative-offence proceedings, take part in the examination of such cases, lodge applications and exercise other procedural rights.25. Article 268 of the Code provides, inter alia, the following rights of the person accused of an administrative offence:“A person accused of an administrative offence shall be entitled to study the case material, to give explanations, to present evidence, to make requests, and to have the assistance of a lawyer ... during the examination of the case ...”The right to a lawyer in administrative-offence proceedings is further guaranteed by Article 271 of the Code.26. Under Article 277 of the Code, administrative-offence cases concerning contempt of court must be decided within twenty-four hours of the receipt of the administrative-offence report.27. Article 279 of the Code sets out the procedure for examination of administrative-offence cases. It provides that at the opening of the hearing the presiding judge announces which case is being examined and explains to the parties their rights and obligations. Then the administrative-offence report is read out, the parties are heard, evidence is examined and any applications presented by the parties are resolved. If a prosecutor participates in the hearing (see paragraph 24 above), his or her opinion is heard.28. At the material time Article 294 of the Code provided that a court decision on an administrative offence could be reviewed by the judge who had adopted it, upon an extraordinary appeal lodged by a prosecutor, or by the president of a higher court of his or her own motion.29. An amendment adopted in 24 September 2008 introduced an ordinary appeal procedure in administrative-offence cases (see Luchaninova v. Ukraine, no. 16347/02, § 33, 9 June 2011).B. Code of Civil Procedure30. Article 20 of the Code of Civil Procedure (hereinafter “the CCP”), which applied to the proceedings in which the applicant challenged Judge M., provides that a judge cannot take part in the examination of a case and may be subject to a challenge where: (i) the judge previously took part in the case as, for example, a witness, representative, or expert; (ii) the judge has a direct or indirect interest in the outcome of the litigation; (iii) the judge is a family member or close relative of a party; and/or (iv) there are other grounds for doubting the judge’s objectivity and impartiality.THE LAWI. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION31. The applicant complained of various violations of Article 6 of the Convention, the relevant parts of which provide:“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law ......3. Everyone charged with a criminal offence has the following minimum rights:...(b)  to have adequate time and facilities for the preparation of his defence;(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”A. The parties’ submissions1. Alleged violation of Article 6 § 1 on account of a lack of impartiality(a)  The applicant32. The applicant submitted that Judge B., who had tried her case, had not been independent and impartial. In particular, because of the absence at the hearing of any party for the prosecution, the judge had assumed this function and had acted as prosecuting authority, directing the collection of evidence against the applicant and thus undermining her own impartiality.33. Moreover, the case had been assigned to that judge in an irregular manner: despite the fact that under the relevant regulations an administrative-offence case file had to be entered into the records at the court’s registry and then transmitted to the court’s president to be then distributed to a judge (in accordance with objective criteria set out in the regulations – primarily on a first-come-first serve basis), in this instance it had been transmitted directly from Judge M. to Judge B. In support of this allegation the applicant stated that she had observed Judge M.’s secretary taking the case directly to Judge B.’s office and that the case file had had no number when Judge B. had examined the case (according to the applicant it had been added later but written in the wrong place on the case file’s front page). For the applicant, this had constituted proof that the case was being “rushed through”, in breach of applicable rules. The applicant believed that the case had been transferred to Judge B. because she had previously decided a defamation case against the applicant (see paragraph 7 above).34. The applicant further alleged that in the course of the hearing Judge B. had become involved in a dispute with the applicant and had referred to other cases over which she had presided and where the applicant had acted as a representative. The judge had remarked that it was habitual for the applicant to act in a contemptuous manner. When the applicant had tried to explain her reasons for challenging Judge M., Judge B. had interrupted her and had threatened her with another contempt charge. Finally, the statements of witnesses S. and Me. had not been enclosed with the administrative offence report but had been drawn up and added to the case on Judge B.’s instructions. The applicant had asked for a certain Mr D., allegedly Judge M.’s another trainee, to be called as a witness but Judge B. had failed to do so.(b)  The Government35. The Government referred to the legislative provisions guaranteeing objectivity and respect for equality in the examination of administrative-offence cases (see paragraph 23 above). They stressed that the court had examined the applicant’s case only on the grounds of the evidence already in the file – namely the offence report, witness statements and the audio recording of the preliminary hearing before Judge M. Therefore, the court had not taken over the duties of the prosecution. Moreover, the appropriateness of the decision in the applicant’s case had been confirmed by the Court of Appeal (see paragraph 19 above).36.

Outcome for Article 10: violation