|
MINISTERS’ DEPUTIES |
Notes on the Agenda |
CM/Notes/1419/H46-32 |
2 December 2021 |
|
1419th meeting, 30 November – 2 December 2021 (DH) Human rights
H46-32 Kudeshkina v. Russian Federation (Application No. 29492/05) Supervision of the execution of the European Court’s judgments Reference documents |
|
Application |
Case |
Judgment of |
Final on |
Indicator for the classification |
Case description
The gist of the impugned interviews consisted of criticism of the role of court presidents, including the President of the Moscow City Court, for interfering in the handling of individual cases in response to external pressure, and in allegations that pressure on judges in Moscow was common. The European Court found that the applicant had raised an important matter of public interest which had to be open to free debate in a democratic society. It also found that the disciplinary proceedings against her did not respect important procedural guarantees, in particular as regards the impartiality of the Moscow City Court, which had considered her appeal against the sanction imposed by the Judiciary Qualifications Board despite the fact that the sanction had been imposed for, among other things, criticising the president of that same court. Finally it found that the penalty was disproportionately severe and capable of having a “chilling effect” on judges wishing to participate in public debate concerning the effectiveness of judicial institutions (violation of Article 10).
In its inadmissibility decision of 17 February 2015 concerning the applicant’s complaint about the decision to refuse a reopening of the proceedings in her case, the European Court confirmed that the authorities remained under an obligation to implement appropriate individual measures to restore as far as possible the situation existing before the breach of the applicant’s rights and that this obligation was not limited to the payment of the monetary compensation awarded under Article 41 of the Convention (see § 74).[1]
Status of execution
In action reports of 23 August 2017 (DH-DD(2017)920), 22 January 2018 (DH-DD(2018)72) and 4 October 2018 (DH-DD(2018)969), the authorities provided information about the individual measures taken. The just satisfaction awarded to the applicant has been paid.
However, the court which had dismissed the applicant declined to review its decision. The refusal was upheld on appeal by the Supreme Court. The authorities recalled, as regards other possibilities to provide redress to the applicant, that the decision to dismiss her from judicial office had been taken by the Moscow Judicial Qualifications Board.
They further recalled that the principles governing the constitution and activities of a judicial qualifications board excluded any possible influence on its activities and its members by the executive authorities, including by quashing of decisions taken by the board.
The applicant’s representatives have complained about the lack of remedial action on numerous occasions, most recently on 25 October 2021 (see DH-DD(2021)1110).
The Committee has examined this case on many occasions, adopting six decisions and one interim resolution (CM/ResDH(2020)203) which urged the authorities to find a mutually acceptable solution in respect of the redress due to the applicant.
In their latest action plan submitted on 1 April 2021 (see DH-DD(2021)362), the authorities reiterated the information provided in their previous communications. They further indicated that study of the proposals for individual measures indicated in the Interim Resolution of 1 October 2020 had been suspended due to the changes planned in the mandate of the Representative of the Russian Federation at the European Court of Human Rights.
At the last examination of this case at the 1406th meeting in June 2021 (DH), the Committee again exhorted the authorities to urgently establish a means of providing appropriate redress for the applicant to erase the consequences of the violation of her right to freedom of expression as established by the Court and to report to the Committee by 30 September 2021 at the latest.
On 25 October 2021, the applicant submitted a communication reiterating that that the individual measures have not yet been taken despite repeated requests by the Committee (see DH-DD(2021)1110).
No information had been provided by the authorities at the time of writing these Notes.
General measures:
As regards the guarantee of impartiality in disciplinary proceedings against judges, the Committee has previously welcomed the setting up of the Supreme Court’s Disciplinary Panel, a single body which replaced the courts of the constituent entities of the Russian Federation, as capable of eliminating concerns existing under the previous system. This aspect of the case has thus been considered resolved.
As regards securing judges’ freedom of expression, the Committee has noted with interest the measures taken by the Supreme Court, including the dissemination of practice recommendations on the exercise of freedom of expression and on the application of the European Convention, and by the Constitutional Court, notably its legal positions reaffirming the principle of proportionality for disciplinary sanctions and the exceptional nature of dismissal from judicial office. At the same time, the Committee noted that the practical impact of these measures remains difficult to assess due to the lack of examples of the exercise by judges of their right to freedom of expression, as well as the continuing absence of redress for the applicant.
In the action plan of 25 June 2020 (DH-DD(2020)564), the authorities indicated that the Supreme Court has prepared a Summary of the Court’s recent judgments, including in it the case of Ramos Nunes de Carvalho e Sa v. Portugal, which has important precedent value for the examination of cases concerning judges’ disciplinary liability. The Summary was disseminated to the judiciary. Further, the Supreme Court is planning to produce a Review of the practice of applying legislation on prevention and resolution of conflicts of interest arising from the exercise of judicial power, as well as on the grounds and procedure for the application and consideration of (self-)disqualification of judges.
At its last examination of the case, the Committee recalled the above but also recalled that providing the applicant with appropriate redress is still required to remove the chilling effect on judges’ freedom of expression of the violation found in this case. It also decided to resume the examination of this case at its 1419th meeting (December 2021) (DH) at the latest.
Analysis by the Secretariat
Individual measures:
At the outset, it is highly regrettable that the authorities have not provided any information in time for the Committee’s examination of this case. It is recalled again that the European Court’s judgment in this case dates back to 2009. It is deplorable that in 12 years that have passed since the adoption of the judgment no means has been found to provide the applicant with redress for notably her lost income, despite the repeated calls from the Committee, including in the interim resolution adopted earlier. It is recalled that in cases of unjust dismissal of judges in particular as a reaction for exercising their right to freedom of expression, with dismissal being seen as a disproportionate measure, reinstatement of the judge would be one of the most appropriate forms of restitutio in integrum redress. However, when such reinstatement is not possible, other avenues or ad hoc practical solutions[2] such as payment of a basic salary or a pension of a judge must be explored.
In this context, it can be noted that on 1 July 2021 the federal Prosecutor’s Offices Act was amended to, inter alia, entrust the Prosecutor General’s Office with the mandate to represent the Russian Federation at the European Court of Human Rights. It is of particular interest that in case of adoption by the European Court of a judgment establishing a violation of the Convention, the law confers upon the Prosecutor General’s Office, among others, the right to conclude an agreement with an applicant on the means to execute the judgment, provided that its execution by other means is impossible (Article 39 § 4 of the law). In this light, the authorities should be exhorted to take advantage of the possibility created in the amended legislation and propose a solution which takes account of the European Court’s judgment to the applicant without further delay.
General measures:
It is further recalled that the Committee has previously positively assessed the full range of general measures aimed at increasing respect for the principles of proportionality and judicial independence in disciplinary proceedings against judges and review of the practice of the Supreme Court’s Disciplinary Panel. However, it cannot but reiterate that it is difficult to assess the practical impact of these measures due to the lack of case-law examples of continuous or well-established practice, and in this context, the continuing absence of redress for the applicant. Both elements cast doubt on the general measures taken to reinforce judges’ freedom of expression and to prohibit disproportionate interferences with freedom of expression of judges.
|
Financing assured: YES |