Case Summary and Outcome

The European Court of Human Rights held that the removal from office of a Russian judge was based on statements the judge had made when she was running for political office and was therefore an infringement of her right to freedom of expression. During her unsuccessful election campaign the judge had criticized the judiciary and called for judicial reform, and was then subject to disciplinary action which led to her removal from office. The Court acknowledged that there are specific constraints on a judge’s freedom of expression but also that judicial reform is a matter of public interest.  The Court held that the judge was entitled to raise the issues she had and that her dismissal was a disproportionate sanction and was therefore an infringement of her right.

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Facts

In June 2003, Judge Olga Kudeshkina, a judge at the Moscow City Court, was hearing a case (with two lay assessors) involving an alleged abuse of power by a police investigator, Mr Zaytsev. Zaytzev had allegedly carried out unlawful searches as part of an inquiry into large-scale customs and financial fraud in an investigation involving companies and allegedly individuals holding prominent positions within the state hierarchy. On June 26, 2003, the public prosecutor complained that the court had failed to secure the attendance of a prosecution witness and of alleged irregularities in the proceedings and, the following day, alleged that Kudeshkina had shown bias towards one of the victims. The challenge was rejected by the lay assessors. The public prosecutor then made two attempts to challenge the lay assessors, both of which were refused. On June 30, the lay assessors submitted a request for withdrawal from the case, which was approved by Kudeshkina on July 3 where she acknowledged that the withdrawals were caused by the public prosecutor conduct. On July 1, the public prosecutor sought access to the minutes of the proceedings, claiming that it had been incorrectly kept. The court dismissed this request citing procedural delay.

During these proceedings Kudeshkina was summoned to her office by Ms. Yegorova, the President of the Moscow City Court, who questioned Kudeshina about her handling of the Zaytsev case, including the resolution of related submissions. Kudeshkina was removed from the case.

In October 2003, Kudeshkina submitted her candidacy for the State Duma (legislature) election. On October 29, 2003, the Judiciary Qualification Board of Moscow granted her a suspension from her judicial functions until the elections. Kudeshkina campaigned on the need for judicial reform. She gave three interviews – to the radio station Ekho Moskvy and to two newspapers – Novaya Gazeta and Izvestiya – where she voiced criticisms of the Russian judicial system, focusing on the Moscow courts. Kudeshkina commented that “[y]ears of working in the Moscow City Court have led me to doubt the existence of independent courts in Moscow. Instances of a court being put under pressure to take a certain decision are not that rare, not only in cases of great public interest but also in cases encroaching on the interests of certain individuals of consequence or of particular groups”. [para. 19] She also said that “[t]he law applies quite strictly to ordinary people, but this is not the case when it comes to persons holding important posts. But they break the law too”. [para. 21]. Kudeshkina focused on judges’ dependence on a court president, who possesses the capacity to impact the substantive operations of the court via his formal administrative authority. Kudeshkina noted that the experience in the Zaytsev case was not unusual, and said that “as far as I am aware, this is not the only case where the courts of law are used as an instrument of commercial, political or personal manipulation”. [para. 19] She described it as a “dangerous state of affairs because no one can rest assured that his case – whether civil or criminal or administrative – will be resolved in accordance with the law, and not just to please someone”. [para. 19] She also cautioned that “if all judges keep quiet this country may soon end up in a [state of] judicial lawlessness”. [para. 19]

Kudeshkina was not elected in the general elections held on December 7, 2003, and the Judiciary Qualification Board of Moscow reinstated her as a judge.

Just prior to the elections, on December 2, 2003, Kudeshkina filed a complaint with the High Judiciary Qualification Panel against Ms Yegorova’s conduct, requesting that she be given a disciplinary offence for applying undue pressure on her during the Zaytsev case. Kudeshkina’s complaint was supported by letters from the lay assessors and from a court secretary. Judge S. of the Moscow City Commercial Court, appointed by the High Judiciary Qualification Panel, considered the complaint. The Panel found that Kudeshkina had sought advice from Ms. Yegorova, and there was insufficient evidence to suggest that Ms. Yegorova exerted pressure on her, and that there were confidential reports filed by relevant agencies to the President of the Moscow City Court about Kudeshkina. The findings of the High Judiciary Qualification Panel were forwarded to the President of the Supreme Court on May 11, 2004. Yegorova was not subjected to disciplinary proceedings.

Before Kudeshkina had been reinstated as a judge, Yegorova had also initiated proceedings before the Judiciary Qualification Board of Moscow against Kudeshkina. She alleged that Kudeshkina had behaved in a manner inconsistent with the authority and standing of a judge during her election campaign. The hearing before the Judiciary Qualification Board of Moscow, initially scheduled for March 24, 2004, was postponed several times and on May 19, despite Kudeshkina’s continued absence, the case was examined, and the Judiciary Qualification Board of Moscow dismissed Kudeshkina from judicial office. It held that: “During her election campaign, in order to win fame and popularity with the voters, judge Kudeshkina deliberately disseminated deceptive, concocted and insulting perceptions of the judges and judicial system of the Russian Federation, degrading the authority of the judiciary and undermining the prestige of the judicial profession, in violation of the Law On the Status of Judges in the Russian Federation and the Code of Honour of a Judge in the Russian Federation”. [para. 34]

Kudeshkina appealed the decision to the Moscow City Court, and on September 13, 2004, she requested that the President of the Supreme Court transfer her case to another court due to a perceived lack of impartiality. The Moscow City Court, composed of a single judge, began considering the case on October 7, 2004. Kudeshkina challenged the appointment of the judge on the grounds that he was a member of the Moscow Judicial Council, of which Yegorova was the President, and sought an adjournment of the case pending the Supreme Court’s decision on the motion to transfer the case. Both requests were denied.

On October 8, 2004, the Moscow City Court upheld the decision of the Judiciary Qualification Board of Moscow, finding that Kudeshkina’s statements to the media were unfounded and damaged the reputation of the judiciary.

On January 19, 2005, the Supreme Court of the Russian Federation dismissed Kudeshkina’s appeal, agreeing with the position of the Judiciary Qualification Board of Moscow and the Moscow City Court. On October 25, 2004, Kudeshkina was informed by the Supreme Court that it had refused to transfer the case from the Moscow City Court.

Kudeshkina approached the European Court of Human Rights, arguing that her rights to freedom of expression had been infringed by her removal from judicial office. Article 10 of the European Convention on Human Rights states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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Decision Overview

The First Section of the European Court of Human Rights Chamber delivered a split decision with a majority of five to four. The central issue for the Court’s determination was whether the termination of Kudeshkina’s judicial office was necessary in a democratic society and so an unjustifiable limitation of her right to freedom of expression.

Kudeshkina argued that her right to freedom of expression had been infringed, and that this was not justifiable as it did not meet the criteria in Article 10(2) for permissible limitations of the right. She submitted that the infringement had not been “prescribed by law”, because the provisions of the Law “On the Status of Judges” were too vague, and she also denied that the Code of Honour of a Judge was of a legislative nature because of irregularities in the adoption process. She also challenged the jurisdiction of the Moscow City Court over her case. Kudeshkina argued that there was no “legitimate aim” grounding the interference in her right and disagreed with the Russian government that her dismissal was done to “maintain the authority and impartiality of the judiciary” or for the “protection of the reputation or rights of others”. She also argued that the interference was not “necessary in a democratic society” because the action was disproportionate and that despite her office, she was entitled to the rights and freedoms safeguarded by the Convention. Kudeshkina submitted that the value judgments she had made had a factual basis and the domestic authorities had failed to prove the contrary, and that the lay assessors supported her position that Yegorova had exerted pressure on her.

 The Government accepted that Kudeshkina’s right to freedom of expression had been infringed, but argued that this was carried out in accordance with the requirements set out in Article 10(2). It submitted that it had been “prescribed by law” as the Law “On the Status of Judges” was not too vague for disciplinary charges and that the Code of Honour of a Judge constituted a legally binding document. It also maintained that the Moscow City Court had jurisdiction, noting that Kudeshkina had, herself, brought the matter to that court and had only challenged its impartiality and not its jurisdiction. The Government argued that dismissing Kudeshkina was necessary for “maintaining the authority and impartiality of the judiciary”, considering the harm inflicted upon the judiciary by Kudeshkina’s statements, and for the “protection of the reputation or rights of others”, because her statements were defamatory of officials of the Moscow City Court. The Government argued that the dismissal was also  “necessary in a democratic society”, as it was proportionate to the legitimate aim pursued and fulfilled a “pressing social need”. It emphasized the constraints on judicial freedom of expression and the wide margin of appreciation given to States in this respect (which is even wider than in the case of “ordinary” civil servants). The Government drew attention to two aspects of Kudeshkina’s conduct which justified her dismissal as a judge: her radical criticism of the Russian judiciary, particularly given her position as a judge; and that she commented on the Zaytsev case, even it was still pending. It added that Kudeshkina had exploited her position as a judge to achieve personal political goals, making her statements during the election campaign a few months after the relevant events.

The Court accepted that Kudeshkina’s dismissal was a result of her public statements, and so constituted an infringement of her right to freedom of expression. It found that the interference in her rights was “prescribed by law” as it had been published and was foreseeable, and served a “legitimate aim”.

In determining whether the interference was “necessary in a democratic society”, the Court noted that it had to take account of the circumstances of the case as a whole as well as its jurisprudence on similar matters.  The Court stressed that freedom of expression is one of the essential foundations of a democratic society, and that the protection encompasses information and ideas which offend, shock or disturb. It added that exceptions to the principle of freedom of expression must be strictly interpreted and supported by convincing arguments, and that the term “necessary” in Article 10(2) implies the existence of a “pressing social need,” for which Contracting States have a certain margin of appreciation in assessing whether such a need exists. The supervisory function of the Court is not to replace the competent national authorities, but to review, in accordance with Article 10, the decisions taken by them pursuant to their power of appreciation. The Court explained that the factors it considers in assessing the proportionality of an interference with the freedom of expression under Article 10 include the fairness of the proceedings, the procedural guarantees afforded and the nature and severity of the penalties imposed.

Concerning the term “pressing social need”, the Court emphasized the distinction between facts and value judgments: while the existence of facts can be proven, the truth of value judgments cannot, but there is a certain connection between facts and value judgments, since a value judgement without any factual basis may be excessive. The Court confirmed that freedom of expression applies to civil servants, but that employees, particularly civil servants, are subject to certain constraints on their expression in connection with their work: “Disclosure by civil servants of information obtained in the course of work, even on matters of public interest, should therefore be examined in the light of their duty of loyalty and discretion”. [para. 85] 

The Court addressed the challenge of criticizing the judiciary, highlighting that in its previous case law it had repeatedly drawn attention to the special role of the judiciary as the guarantor of justice, which creates the need for public confidence in the performance of its duties. It stated that “[i]t may therefore prove necessary to protect that confidence against destructive attacks which are essentially unfounded, especially in view of the fact that judges who have been criticized are subject to a duty of discretion that precludes them from replying” [para. 86] It added that the Court has “found it incumbent on public officials serving in the judiciary that they should show restraint in exercising their freedom of expression in all cases where the authority and impartiality of the judiciary are likely to be called into question”. [para. 86]. The Court noted that issues pertaining to the functioning of the justice system enjoy the protection of Article 10, as constituting questions of public interest, and emphasized the particular significance of unhindered exercise of freedom of speech by election candidates, such as Kudeshkina.

Applying the principles to the present case, the Court identified that the nature of the disciplinary offence against Kudeshkina involved disseminating false information within civil society which harmed the judiciary and that Kudeshkina had allegedly disclosed specific factual details concerning ongoing criminal proceedings. The Court found no evidence of Kudeshkina disclosing any details about ongoing proceedings, and characterized her “accounts of her experience in the above proceedings … as statements of fact which, in the given context, were inseparable from her opinions expressed”. [para. 91] The Court acknowledged that Kudeshkina and the Russian Government had different accounts of whether Yegorova did attempt to influence Kudeshkina, but the Court noted that the lay assessors supported Kudeshkina’s position and that the findings by Judge S that Yegorova had withdrawn the case from Kudeshkina because “of her disapproval of [Kudeshkina’s] conduct of the hearing and the ‘existence of confidential reports by relevant agencies’” supported Kudeshkina’s allegations. [para. 92]. Accordingly, the Court found that Kudeshkina’s statements had a factual background, but, with reference to its cases in Guja v. Moldova and Wille v. Liechtenstein, noted that it was then required to determine whether Kudeshkina’s statements were “nevertheless excessive in view of her judicial status”. [para. 93]

The Court recognized the sensitivity of the issue raised by Kudeshkina – her personal experience which illustrated the problem of judicial independence in Russia – and found this to be a significant subject of public interest, which should be open to free discussion in a democratic society. The Court characterized the statements as political speech, entitled to special protection under Article 10, and reiterated its finding in the Wille case that even if an issue under debate has political implications, this is not by itself sufficient to prevent a judge from making any statement on the subject. The Court stressed that the interviews in question were published during Kudeshkina’s election campaign and that, even if she had used some exaggeration and generalization, her statements were not entirely unfounded and so they were not personal attacks that would not require a particularly high level of protection.

The Court examined Kudeshkina’s argument that the courts implicated in her critical statements should not have presided over her case and found that the domestic authorities had not considered this which “constituted a grave procedural omission”. [para. 97] Accordingly, the Court held that “the manner in which the disciplinary sanction was imposed on [Kudeshkina] fell short of securing important procedural guarantees”. [para. 97]

The Court found that the disciplinary measure applied to Kudeshkina – her removal from judicial office – represented the most severe sanction within the disciplinary framework and that this sanction did not correspond to the gravity of the offense and could potentially deter other judges from expressing criticism of public institutions or policies. The Court stressed that Kudeshkina was “undeniably entitled” to bring raise the issues and found that the penalty was therefore “disproportionately severe” and could serve as a “chilling effect” on other judges seeking to participate in public discussions. [para. 100]. The Court described this “chilling effect” as an effect which “works to the detriment of society as a whole”. [para. 99]

The Court held that the domestic authorities had failed to strike the appropriate balance between protecting the authority of the judiciary and the reputation or rights of others, on the one hand, and the need to ensure Kudeshkina’s right to freedom of expression, on the other, and that there had therefore been an infringement of Kudeshkina’s Article 10 rights.

In his dissenting opinion, Judge Kovler would have found that Kudeshkina’s conduct was not in line with judicial ethics. He disputed the finding that there was no “disclosure” of specific factual information regarding a pending criminal case., and noted that Kudeshkina’s actions were taken with a significant delay of several months, coinciding with the election campaign which “was clearly done in order to achieve her personal goals, as the Government has submitted”. [p. 35] In noting that he would have found that the interference in Kudeshkina’s freedom of expression was justified, Judge Kovler concluded that “I am profoundly pained by the Court’s conclusions. I hope that my esteemed colleagues will pardon me this freedom of expression” [p. 36]

In his dissenting opinion, Judge Nicolaou also noted the period of four months between the transfer of the Zaytzev case and the interviews, but concluded that “[t]here was thus a substantial delay but I am prepared to accept that nothing much turns on this”. [p. 37] He characterized the crucial aspect of the case as being that Kudeshkina’s statements “were not confined to the Zaytzev trial [she] referred directly and in no uncertain terms to a much wider problem in the domestic judicial system”. [p. 38] He commented that the majority decision had not addressed Kudehskina’s wider comments about the Russian judiciary and that it was “reasonably open to the domestic authorities to find, as they did, that ‘the actions of Judge Kudeshkina have degraded the honour and dignity of a judge, discredited the authority of the judiciary [and] caused substantial damage to the prestige of the judicial profession’.” [p. 41] Judge Nicolaou would have found that the Russian authorities’ disciplinary sanction was proportionate.

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