Information Note on the Court’s case-law 230

June 2019

Cosmos Maritime Trading and Shipping Agency v. Ukraine - 53427/09

Judgment 27.6.2019 [Section V]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Court considering bankruptcy proceedings housed in debtor’s former building: violation

Facts – The applicant company had brought claims in bankruptcy proceedings against a State-owned company and complaine d that the domestic courts had lacked impartiality.

Law – Article 6 § 1: There was no material before the Court which would call into doubt the impartiality of the judges who had dealt with the applicant company’s case under the subjective test. The questi on was whether the judges and the courts had met the test of objective impartiality.

The proceedings in question concerned bankruptcy, a procedure in which the function of the domestic courts was to ensure an orderly distribution of the debtor’s assets bet ween its creditors. The applicant company had provided, both to the domestic court and the Court, prima facie evidence that the commercial court in charge of the bankruptcy case was itself housed in a building that had been transferred from the debtor to t he courts not long before the launch of the bankruptcy proceedings, when the debtor was already in financial distress, and that that transfer had been completed when the bankruptcy proceedings were already under way. There was no response to the applicant company’s arguments in that respect, other than one judge’s ruling that she had not been affected by that transfer as she had taken over the case at a later date. It was notable that the judge, even in dismissing the request for withdrawal, had not questio ned that the transfer had indeed happened as alleged by the applicant company.

In such circumstances, despite the absence of reasons to doubt the impartiality of the individual judges concerned, the applicant company’s perception that the court dealing wit h its case had lacked impartiality could be seen, by an objective observer, as not manifestly devoid of merit. That perception concerned the first-instance court itself, as opposed merely to any individual judge.

For that reason the only response of the domestic courts to the applicant company’s concerns in that respect, to the effect that one individual judge of the commercial court had not been personally affected by the transfer, could not be seen as sufficient. Article 6 § 1 imposed an obligation on every national court to check whether, as constituted, it was “an impartial tribunal” within the meaning of that provision where, as in the applicant company’s case, that had been disputed on a ground that did not im mediately appear to be manifestly devoid of merit. However, neither the Commercial Court nor the Court of Appeal had conducted such a check which would have made it possible to remedy, if it proved necessary, a situation contrary to the requirements of the Convention.

Conclusion : violation (unanimously).

The Court also unanimously found a violation of Article 6 § 1 as regards the length of the proceedings.

Article 41: EUR 10,000 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Ramos Nunes de Carvalho e Sá v. Portugal [GC], 55391/13 et al., 6 November 2018, Information Note 223 ; Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184 ; Boyan Gospodinov v. Bulgaria , 28417/07, 5 April 2018, Information Note 217 ; and Remli v. France , 16839/90 , 23 April 1996)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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