Recusal as Contempt of Court: An Analysis of the ECHR Decision in “Mikhailova v. Ukraine”

On March 6, 2018, the ECHR issued a judgment in the case of “Mikhailova v. Ukraine,” in which it found violations of Article 6(1) and Article 6(3)(b) of the Convention, Article 10 of the Convention, Article 2 of Protocol No. 7 in a case concerning a request for a judge’s recusal, which the same judge deemed to be contempt of court and for which the applicant was held administratively liable.

This case illustrates the reality that persists to this day, namely, the attitude of certain judges toward the parties to the proceedings and their legal positions. In this case, the grounds for the judge’s recusal, as requested by Ms. Mikhailova, were deemed as contempt of court; a report was drawn up against the petitioner under Article 185-3 of the Code of Administrative Offenses, which was subsequently forwarded to the court, and she was found guilty and sentenced to an administrative penalty in the form of five days of administrative arrest.

The applicant argued that there had been a disproportionate interference with her freedom of expression. She contended that the judge was biased against her and that her opinion could not be considered offensive or humiliating to the judge.

The decision in *Mikhailova v. Ukraine* is significant for Ukraine; this is evidenced even by the fact that the Government of Ukraine agreed with the applicant’s position in this case that there had been an interference with her freedom of expression.

Paragraph 2.5 of the Bangalore Principles of Judicial Conduct, adopted by UN Economic and Social Council Resolution 2006/23 of July 27, 2006, emphasizes that a judge shall recuse himself or herself from participating in the consideration of a case if it is impossible for him or her to render an objective decision in the case, or if an outside observer might have doubts regarding his or her impartiality.

Based on these principles, the judge was obligated to consider the recusal request filed by Ms. Mikhailova and, subsequently, if a ruling were issued denying the recusal, to recuse himself to ensure the principle of judicial impartiality, rather than facilitating the drafting of a report on an administrative offense against the petitioner for contempt of court, as a result of which the fifty-year-old woman spent five days in unjustified administrative detention for the legal position she had taken in the case.

In the context of an impartial court, the ECHR noted: “This is the trust that the courts of a democratic society are obliged to foster in the public.”

An analysis of the “Mikhailova v. Ukraine” decision shows that, in violation of the provisions of Ukraine’s current procedural law, the judge failed to consider the motion for her recusal and rendered a decision on the merits of the case.

From this ECHR decision, a number of conclusions can be drawn regarding the partiality of certain judges, their arrogance, and their attempts to act as an extension of the punitive branch of government; however, the most important conclusion can be formulated as follows: A citizen of the state was held accountable for the legal position he chose to take during the proceedings.