CEDH · CASELAW;CLIN;ENG — 26 février 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 116 February 2009 Kudeshkina v. Russia - 29492/05 Judgment 26.2.2009 [Section I] Article 10 Article 10-1 Freedom of expression Removal from judicial office for making critical statements about the Russian judiciary: violation   Facts : In 2003 the applicant, who at the time held judicial office at the Moscow City Court, was appointed to sit in a high-profile criminal case concerning abuse of powers by a police investigator, Mr Zaytsev. The applicant   submitted that   during the proceedings in question, the President of the Moscow City Court, Ms Yegorova,   called   her to her office and asked her certain questions regarding the conduct of the trial. The parties disagreed on the circumstances of the applicant’s withdrawal from the case.   The applicant   herself submitted that Ms Yegorova had   removed her from the case without giving reasons, while the Government claimed that the case   had been   assigned to another judge on the grounds that she had delayed its examination. The applicant subsequently   asked for Ms Yegorova to be charged with a disciplinary offence for having allegedly exercised unlawful pressure on   her. The judge appointed to examine the applicant’s allegations concluded that Ms Yegorova had decided to re-assign the case because she disapproved of the way the applicant was conducting the hearing and because there existed “confidential reports by relevant agencies” on the applicant’s examination of the Zaytsev case. The competent authority therefore decided not to institute disciplinary proceedings against Ms Yegorova. Several months later the applicant stood as a candidate in a general election to the Russian Duma. During her campaign, which included a programme for judicial reform, she gave interviews to two newspapers and a radio station in which she was highly critical of the Russian judiciary. Among other things, she expressed doubts as to the independence of the courts in Russia and fears of “judicial lawlessness” within the country. She was not elected to the Duma but was reinstated in her previous judicial office. Meanwhile, the President of the Moscow Judicial Council sought the applicant’s removal from office claiming that during her election campaign she had behaved in a manner that was incompatible with the authority and standing of a judge. In May 2004, without hearing representations from the applicant who was absent, apparently without a valid excuse, the competent authority decided to remove her from office, stating that she had “disseminated … false and untruthful fabrications” and that the statements were “clearly based on fantasies, on knowingly false and distorted facts”. The authority further concluded that the applicant had “disclosed specific factual information concerning the criminal proceedings against Mr   Zaytsev before the judgment in this case had entered into legal force”. The applicant subsequently appealed to the Moscow City Court and requested the transfer of her case owing to lack of impartiality, to no avail. Law : The Court reiterated that Article 10 applied to the workplace, that civil servants also enjoyed the right to freedom of expression and that disclosure of information obtained in the course of their work, even on matters of public interest, always needed to   be examined in the light of their duties of loyalty and discretion. As regards the applicant’s alleged disclosure of facts concerning pending criminal proceedings, the domestic authorities had not relied on any specific statements and the Court saw   nothing in the impugned interviews that would amount to a “disclosure”. Although the applicant had referred to   her experience in the Zaytsev case and the alleged pressure exercised by Ms Yegorova, this was only in support of her criticism of the role of court presidents, and   in no way constituted divulgation of classified information acquired in her official capacity. Moreover, the applicant’s accounts of her experience in the Zaytsev case were   regarded as statements of fact which needed to be supported by facts and which, in the context, were inseparable from her opinions expressed in the same interviews. As to the factual substantiation of her claims, the Government had relied on the competent domestic authorities’ findings that there was no evidence that Ms Yegorova had attempted to influence the applicant in the conduct of the case. Although it was difficult to establish the content of communications between the applicant and Ms   Yegorova in private, the Court attached importance to the manner in which the applicant had been removed from the Zaytsev case. In particular, in addition to the existence of witnesses in support of the applicant’s allegations against Ms Yegorova, the suggestion that “the existence of confidential reports by relevant agencies” concerning the applicant’s conduct may have triggered the transfer of the case to another judge should not have been overlooked by the competent authorities which therefore had failed to convincingly dispel the applicant’s allegations of pressure. Noting that the applicant had publicly criticised the conduct of various officials and alleged that pressure on judges was common practice in Russian courts, the Court found that she had undoubtedly raised a very important matter of public interest which had to be open to free debate in a democratic society. Even allowing for a certain degree of exaggeration and generalisation, the Court found that her statements were not entirely devoid of factual grounds and consequently had to be regarded as fair comment on a matter of great public importance. As to her fears concerning the impartiality of the Moscow City Court, the Court considered them justified given the allegations she had made against that court’s President. Since her arguments were not considered in the domestic proceedings, the Court concluded that she had been denied important procedural guarantees. Finally, the penalty – dismissal from judicial service – was disproportionately severe and capable of having a “chilling effect” on judges wishing to participate in public debate on the effectiveness of the judicial institutions. Conclusion : violation (four votes to three). Article 41 – EUR 10,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes