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FIRST
SECTION
CASE OF IGOR KABANOV v. RUSSIA
(Application
no. 8921/05)
JUDGMENT
STRASBOURG
3 February
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Igor Kabanov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8921/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Igor Gennadyevich
Kabanov (“the applicant”), on 12 February 2005.
- The
Russian Government (“the Government”) were initially
represented by Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights, Mr A. Savenkov,
First Deputy Minister of Justice of the Russian Federation, and
subsequently by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that his disbarment had amounted to
an infringement of his right to freedom of expression and that the
domestic court which had considered his case on appeal had not been
impartial.
- On
22 April 2008 the President of the First Section decided to give
notice of the application to the Government. Under the provisions of
former Article 29 § 3 of the Convention, the Court decided
to examine the merits of the application at the same time as its
admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Arkhangelsk.
- The
applicant, an advocate at the time, acted as defence counsel for a Mr
R.
- On
5 August 2003 the Primorskiy District Court of Arkhangelsk, chaired
by judge V., removed the applicant from his position as Mr R.’s
counsel. The District Court found that the applicant had acted
contrary to the Code of Criminal Procedure and the Advocate’s
Code of Ethics. The court noted, in particular:
“Persistent and repeated voluntary statements made
by [the applicant] that he provided legal advice to witnesses N. and
S. and at the same time acted as counsel for defendant R. ... show
that [the applicant], in violation of the formal requirements of the
Russian Code of Criminal Procedure, provided legal advice and acted
as counsel in respect of persons whose interests were in conflict.
Therefore, it is not possible for [the applicant] to continue to
participate in the trial as legal counsel for defendant R. or to
provide legal advice to N. and S.”
- On
26 September 2003 the District Court found Mr R. guilty as charged.
- On
16 December 2003 the Arkhangelsk Regional Court quashed Mr R.’s
conviction and remitted the matter for fresh consideration. The court
also upheld on appeal the decision of 5 August 2003.
- On
22 December 2003 the applicant asked the Presidium of the Regional
Court for supervisory review of the judicial decisions to remove him
from being Mr R.’s representative.
- On
2 February 2004 judge A. of the Regional Court dismissed the above
complaint. In particular, the judge noted as follows:
“I hereby return your complaint against ... the
decisions ... of 5 August 2003 and 16 December 2003 without
having considered it on the merits. [The reason for this is that] the
Primorskiy District Court of the Arkhangelsk Region opened R.’s
trial on 22 January 2004 and it is impossible to verify the
lawfulness and inconsistency of the decisions in question.”
- On
9 February 2004 the applicant filed a complaint against the judges
who had participated in the proceedings for the determination of the
criminal charge against Mr R., alleging that they had acted in
violation of the rules of criminal procedure by refusing to consider
his application for supervisory review in respect of the decision of
5 August 2003. The complaint was addressed to the President of the
Supreme Court of the Russian Federation with a copy to the President
of the Arkhangelsk Regional Court. The applicant asked for the
President’s intervention which would prompt, in his opinion,
the Arkhangelsk Regional Court to respond to his application for
supervisory review.
- In
particular, the applicant made the following comments in the
complaint:
“... Judges A. and V. used to “plough the
fields of justice together” at the Arkhangelsk Regional
Prosecutor’s Office, and, apparently, they “continue
their joint efforts now” at the Arkhangelsk Regional Court ...
... In my opinion, either judge A. is not quite familiar
with the law, which is sad, or judge A. wilfully and knowingly
restricts my access to court, which is twice as sad ...
... On 2 February 2004 I received an absolutely
unlawful “brush-off” reply from judge A ...
... [Judge A.] could have unglued his posterior from
[his] seat and brought it to the premises of the Primorskiy District
Court ...
... Otherwise, why would judge A. receive such a salary
which I, as a tax payer, contribute to? ...
... But judge A. simply pushed away my [request for]
supervisory review and, by doing so, he seriously violated the rules
of criminal procedure and my constitutional rights ...
... I believe that one telephone call from the Supreme
Court of the Russian Federation will be enough to make the
Arkhangelsk Regional Court consider my complaint on the merits ...”
- The President of the Supreme Court forwarded the
applicant’s complaint to the Arkhangelsk Regional Court for
further action. The President of the Arkhangelsk Regional Court
lodged a complaint with the Council of the Arkhangelsk Region Bar
Association (the “Council”) alleging that the above
comments were offensive and incompatible with the Advocate’s
Code of Professional Conduct. He stated as follows:
“In our opinion, [the applicant’s complaint]
contains remarks which are offensive and tactless vis-à-vis
certain judges of the Arkhangelsk Regional Court.
We believe that the content and the style of the
complaint are impermissible.
In our view, the reference made by [the applicant] in
his complaint addressed to the President of the Supreme Court of
Russia that ... a decision could be made in response to his
application for supervisory review through a telephone call ... shows
that he is lacking the qualities appropriate to his profession.
[A]dvocates should, under any circumstances, be tactful
and correct vis-à-vis their counterparts and public officers,
including judges. [They] should demonstrate respect towards the court
and challenge [judicial] acts correctly and in accordance with the
law.
Having regard to the above ... I hereby request that you
follow up on the applicant’s conduct and inform the Arkhangelsk
Regional Court of the measures taken.”
- On
21 April 2004 the Council held a disciplinary hearing. The applicant
did not challenge the offensive character of the comments. He
submitted that he had been, in a way, provoked by the judges’
allegedly unlawful decisions. The Council granted the complaint and
terminated the applicant’s bar membership as of 22 April
2004. In particular, the Council noted as follows:
“[The applicant’s complaint] addressed to
the President of the Supreme Court of Russia contains tactless
remarks in respect of certain judges of the Arkhangelsk Regional
Court, which amounts to a violation of the Advocate’s Code of
Professional Conduct ...
The content and the style of the [applicant’s]
complaint addressed to the President of the Supreme Court of Russia
are impermissible.
The reference made by [the applicant] in his complaint
addressed to the President of the Supreme Court of Russia that ... a
decision could be made in response to his application for supervisory
review through a telephone call ... shows that he is lacking the
qualities appropriate to his profession.
[A]dvocates should, under any circumstances, be tactful
and correct vis-à-vis ... judges. [They] should demonstrate
respect towards the court and challenge [judicial] acts correctly and
in accordance with the law.”
- The
applicant appealed to the court. He claimed that he was disliked by
the members of the Council and their decision had been retaliation
against him for his personal views and convictions. He also alleged
that the disciplinary hearing had been carried out with certain
procedural irregularities.
- On
22 June 2004 the Oktyabrskiy District Court of Arkhangelsk dismissed
the claim brought by the applicant against the Bar Association
seeking reinstatement of his membership. The applicant appealed.
- On
9 August 2004 the applicant asked the Arkhangelsk Regional Court to
transfer the case to another jurisdiction for consideration. The
applicant alleged that any judge of the Regional Court would be
biased against him because the original complaint which had prompted
the disciplinary proceedings against him had been lodged by the
President of the said court. On the same day judge M. of the Regional
Court refused to consider the applicant’s request and returned
the relevant documents to him. In particular, the judge informed the
applicant as follows:
“I hereby return your application stating the
challenge to the whole composition of ... the Arkhangelsk Regional
Court and advise you that, pursuant to the rules of civil procedure,
it is only possible to challenge the specific judges who are
appointed to consider your case and not the whole composition of [the
court].”
- On
16 August 2004 the Arkhangelsk Regional Court upheld the judgment of
22 June 2004 on appeal. The court dismissed as unsubstantiated the
applicant’s allegations of the Council’s partiality. Nor
did it discern any procedural irregularities in the applicant’s
disbarment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Advocate’s disciplinary liability
- The
Advocate’s Code of Professional Conduct (Article 18 § 1)
establishes that an advocate may be subject to disciplinary
proceedings for a failure to abide by legislation concerning
advocates’ activities and advocacy and for failure to abide by
the Code itself. Any impropriety discrediting an advocate’s
professional integrity or the legal profession, a breach of the care
of duty vis-à-vis his or her client, or a failure to abide by
the decisions of the qualifications committee and council of the
advocates’ chamber gives rise to disciplinary liability
(Article 19 § 1).
- The
disciplinary sanctions available are: reprimand; warning; disbarment;
or other sanctions as determined by the conference of the advocates’
chamber (Article 18 § 2).
B. Status of the president of a court
- The
Judges’ Status Act stipulates in section 6.2 that, in addition
to the performance of judicial functions, the president of a court:
“(1) organises the work of the court;
(2) determines the court’s internal
regulations on the basis of the model regulations adopted by the
Council of the Judges of the Russian Federation and supervises
compliance therewith;
(3) distributes the workload between the
deputy presidents and ... judges;
(4) organises the judges’ training;
(5) carries out the general management of the
court’s office as follows: hires and dismisses the court’s
employees; distributes the workload between them; decides on [their]
performance awards and disciplinary liability; organises training for
the court’s employees;
(6) informs on a regular basis the judges and
the court’s employees of his [or her] activities and [the]
activities of the court; and
(7) performs other functions pertaining to
the organisation of the court’s work.”
C. Challenge to a judge of a Regional Court and change
of jurisdiction in a civil case
- The Russian Code of Civil Procedure (Article 21)
provides that, should a challenge against a judge or panel of the
judges be granted, the matter should be transferred to another judge
or judicial panel within the same Regional Court. If the challenge to
a judge or a judicial panel is granted and it is no longer possible
to form a new judicial panel to consider the case, it should be
transferred to the Supreme Court of Russia which will reassign it to
another court.
- The
court should transfer the case to another court if, following a
challenge to one or several judges or due to other reasons, it cannot
consider the case. The transfer of the case is carried out by the
relevant superior court (Article 33 § 2 (4) of the Russian
Code of Civil Procedure).
- Pursuant to decision no. 72-G03-6 of the Supreme
Court of Russia of 1 April 2003, the Supreme Court of Russia
granted a request lodged by the Chita Regional Court to transfer a
case concerning a defamation action lodged by a judge of the Chita
Regional Court. The case was transferred to the Irkutsk Regional
Court. In particular, the Supreme Court of Russia noted as follows:
“... [I]n these circumstances, the matter cannot
be considered in accordance with the rules of jurisdiction due to
objective reasons. Given that the action was lodged by K.I.V., a
judge of the Chita Regional Court, [that court] upheld ... the
challenge to the whole panel of the Chita Regional Court and,
pursuant to Article 21 § 4 of the Russian Code of Civil
Procedure, forwarded the case to the Supreme Court of Russia for
determination of its jurisdiction.
The Constitutional Court of Russia has noted in its
ruling ... of 16 March 1998 that “under certain circumstances
(for example, if a civil action is lodged against a judge or by a
judge of the same court, and if the court which has jurisdiction over
the matter does not function for one reason or another), the change
of the jurisdiction of the matter is not only possible, but is
sometimes necessary.
Pursuant to [Article 33 § 2 (4) of the Russian Code
of Civil Procedure], the court transfers the case to another court
if, following the challenge to one or several judges or due to other
reasons, the replacement of the judge or consideration of the case by
the court becomes impossible. The transfer of the case is effected by
a superior court.”
THE LAW
I. THE GOVERNMENT’S OBJECTION AS TO THE ABUSE OF THE
RIGHT OF APPLICATION
- The Government claimed that the applicant had used
abusive language in his submissions to the Court. They had contained
serious allegations against the authorities of the Russian
Federation. In particular, the applicant had characterised the
Government’s memorandum as “a fairy tale told by civil
servants about the independent judiciary in the Russian Federation”.
He further referred to “Putin’s KGB regime” and
“the Kremlin thieves”. The Government asserted that this
was an abuse of the right of application within the meaning of
Article 35 § 3 of the Convention.
- The Court reiterates that, except in extraordinary
cases, an application may only be rejected as abusive if it was
knowingly based on untrue facts (see Akdivar and Others v. Turkey,
16 September 1996, §§ 53 54, Reports of
Judgments and Decisions 1996-IV; I.S. v. Bulgaria (dec.),
no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no.
31365/96, § 36, ECHR 2000-X). Furthermore, the persistent use of
insulting or provocative language by an applicant may be considered
an abuse of the right of application within the meaning of Article 35
§ 3 of the Convention (see Manoussos v. the Czech Republic
and Germany (dec.), no. 46468/99, 9 July 2002; Duringer
and Grunge v. France (dec.), nos. 61164/00 and 18589/02,
ECHR 2003-II (extracts); Stamoulakatos v. the United Kingdom,
no. 27567/95, Commission decision of 9 April 1997).
- Turning to the present case, the Court notes that the
statements made by the applicant, quoted by the Government, reflect
his emotional attitude towards the behaviour of the authorities in
his case. Those statements are value judgments, and, as such, they
cannot be regarded as “untrue”. As to their form, they
are not, in the eyes of the Court, such as to lead it to the
conclusion that the statements quoted above amounted to an abuse of
the right of petition. Accordingly the Government’s objection
must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
- The
applicant complained that the disbarment proceedings which ended with
the judgment of the Arkhangelsk Regional Court on 16 August 2004 had
been unfair. In particular, he claimed that any judge in the
Arkhangelsk Region would have been biased against him on the basis
that the disciplinary proceedings against him had been initiated by
the President of the said court. He referred to Article 6 § 1 of
the Convention, which, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Government contested the applicant’s allegations. In their
view, the proceedings in question had been fair. The decision of the
Council of the Regional Bar Association had been subjected to review
by impartial domestic courts at two levels of jurisdiction. The
proceedings had been adversarial and in compliance with the principle
of equality of arms and other procedural safeguards within the notion
of a fair hearing. The fact that the initial complaint against the
applicant had been brought by the President of the Regional Court was
of no relevance. The President had been responsible for the
organisation of the work of the court only and had been in no
position to influence the decisions delivered by the judges of the
court. They further pointed out that the applicant had failed to
provide any evidence in support of his allegations that the President
of the Regional Court had exerted any pressure on the judges involved
in the proceedings in question. Nor had the President exercised any
function in the said proceedings. It had been open to the applicant
to challenge the composition of the court which had considered his
case. However, he had not done so before the District Court. As
regards the hearing in the Regional Court, it had not been open to
the applicant to challenge the partiality of the whole court. He
should have challenged only the judges appointed to consider his
case.
- The
applicant maintained his complaint.
A. Admissibility
- In
so far as the Government may be understood to suggest that the
applicant failed to exhaust domestic remedies in respect of the
complaint, the Court notes that the applicant challenged the
composition of the Regional Court in accordance with the rules of
domestic civil procedure and established practice. He lodged a
request in writing with the Regional Court asking for the transfer of
the appeal hearing to a different court, arguing that the judges of
the Regional Court might be biased against him (see paragraphs 24 –
26 above).
- In
this connection, the Court finds without merit the Government’s
assertion that the domestic rules of civil procedure did not provide
for the possibility to challenge the composition of the court in full
and that the applicant’s should have challenged each and every
judge of the tribunal.
- The
Court therefore dismisses the Government’s objection as to the
non-exhaustion of domestic remedies.
- The
Court further considers that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court reiterates that there are two aspects to the requirement of
impartiality in Article 6 § 1 of the Convention. First, the
tribunal must be subjectively impartial, that is, no member of the
tribunal should hold any personal prejudice or bias. Personal
impartiality is presumed unless there is evidence to the contrary.
Secondly, the tribunal must also be impartial from an objective
viewpoint, meaning it must offer sufficient guarantees to exclude any
legitimate doubt in this respect (see, among numerous authorities,
Daktaras v. Lithuania, no. 42095/98, § 30, ECHR 2000 X).
- As
to the subjective test, the Court notes that no evidence has been
produced in the present case which might suggest personal bias on the
part of the individual judges of the Regional Court.
- Under
the objective test, it must be determined whether there are
ascertainable facts which may nevertheless raise doubts as to those
judges’ impartiality. In this respect even appearances may be
of a certain importance. What is at stake is the confidence which the
courts in a democratic society must inspire in the public and above
all in the parties to the proceedings (ibid., § 32).
- Turning to the facts of the present case, the Court
notes that the disciplinary proceedings against the applicant were
initiated by the Council of the Regional Bar Association in response
to the complaint lodged by the President of the Regional Court who
alleged, inter alia, that “[the applicant] lacked [the]
qualities appropriate to an advocate” (see paragraph 15 above).
In such circumstances, the Court, accordingly, is unable to conclude
that the President’s position was neutral vis-à-vis the
applicant. By asking the Council to initiate disciplinary proceedings
against the applicant and implying that the applicant’s conduct
was incompatible with the status of advocate, the President became
his opponent (see, by contrast, Parlov Tkalčić
v. Croatia, no. 24810/06, § 90,
22 December 2009, where the President of the court whose impartiality
was challenged by the applicant played no role in the civil
proceedings against the applicant).
- Admittedly,
the President did not sit as a member of the tribunals at either
level of jurisdiction which considered the applicant’s appeal
against the Council’s decision to disbar him. Nevertheless, the
Court cannot accept the Government’s argument that the fact
that the President chose the members of the tribunal and assigned the
case to them was of no importance.
- On
the contrary, given that the President de facto initiated the
disciplinary proceedings against the applicant and, in addition to
his organisational and managerial functions, also determined the
composition of the court and assigned the case to it, the Court
cannot conclude that, from an objective standpoint, there were
sufficient guarantees to exclude any legitimate doubt as to the
impartiality on the part of the tribunal.
- Lastly,
the Court notes that the Regional Court did not address the
applicant’s request for the transfer of the case due to the
possibility of the judges’ bias. Instead of putting the
applicant’s mind at rest as to any doubts he had about the
perceived lack of impartiality on the part of the judges of the
Regional Court, the court dismissed the request without
consideration.
- In the light of these circumstances, the Court finds
that the applicant’s doubts as to the impartiality of the
Regional Court may be said to have been objectively justified. There
has accordingly been a violation of Article 6 § 1 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that he had been disbarred for having expressed
his opinion. He relied on Article 10 of the Convention, which in so
far as relevant, reads as follows:
“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 ...
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 integrity or public safety, for the
prevention of 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.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that the interference with the applicant’s
right to freedom of expression had been prescribed by law. They
referred to the Advocacy Act and the Advocate’s Code of
Professional Conduct. It had pursued the legitimate aim of protecting
the reputation of the judiciary and had been necessary in a
democratic society. The penalty imposed on the applicant had not been
severe. It had been proportionate to the disciplinary offence
committed by the applicant.
- In
particular the Government noted that “the applicant did not
only criticize the procedural decisions rendered by the judge, he
made critical and impermissible statements about the judge’s
professional qualities which were tantamount to personal[ly]
insult[ing] the judiciary”. The Government further submitted
that the unethical and groundless insulting remarks which the
applicant had made in a letter to the President of the Supreme Court
of the Russian Federation could have damaged the reputation of the
judges of the Arkhangelsk Regional Court. He had also asked the
President to resort to so-called “telephone justice”.
- As
for the manner in which the disciplinary penalty had been imposed,
the Government argued that the applicant had had a fair hearing on
the matter. His conduct had been reviewed by his counterparts, a
regional bar association. The principles of equality of arms and the
adversarial nature of proceedings had been fully complied with. The
association’s findings had been subject to judicial review. The
disciplinary sanction had been commensurate with the applicant’s
behaviour. Lastly, the applicant had not been permanently disbarred.
It remained open to him to pass the bar exam anew. In any event, he
could act as a legal representative of a party to proceedings even
without being a member of the bar.
- The
applicant maintained his complaint. He further submitted that his
letter addressed to the President of the Supreme Court of the Russian
Federation had been of a private character. Its content had not been
disclosed in the course of judicial proceedings or through any other
public domain. The disciplinary penalty imposed on him had been too
severe.
2. The Court’s assessment
- The
Court notes that it is common ground between the parties that the
applicant’s disbarment constituted an interference with his
right to freedom of expression as protected by Article 10 § 1.
It is not contested that the interference was prescribed by law,
notably the Advocacy Act and the Advocate’s Code of
Professional Conduct. The Court also accepts the Government’s
argument that the interference pursued the legitimate aim of
maintaining the authority of the judiciary within the meaning of
Article 10 § 2 of the Convention. Accordingly, it
remains to be ascertained whether the interference was “necessary
in a democratic society”.
- The
fundamental principles relating to this question are well established
in the Court’s case-law and have been summarised as follows
(see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, §
171-75, ECHR 2005 XIII):
“170. The test of “necessity in a
democratic society” requires the Court to determine whether the
interference complained of corresponded to a “pressing social
need”. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes
hand in hand with European supervision, embracing both the
legislation and the decisions applying it, even those delivered by an
independent court (see Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, § 58, ECHR 1999-III; Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 88, ECHR
2004 XI; and Nikula v. Finland, no. 31611/96, § 46,
ECHR 2002 II).
171. In particular, the Court must determine
whether the measure taken was “proportionate to the legitimate
aims pursued” (see The Sunday Times v. the United Kingdom
(no. 1), 26 April 1979, p. 38, § 62, Series A no. 30, and
Chauvy and Others v. France, no. 64915/01, § 70,
ECHR 2004-VI). In doing so, the Court has to satisfy itself that the
national authorities, basing themselves on an acceptable assessment
of the relevant facts, applied standards which were in conformity
with the principles embodied in Article 10 (see, among many other
authorities, Zana v. Turkey, judgment of 25 November 1997,
Reports 1997-VII, pp. 2547-48, § 51). In addition, the
fairness of the proceedings, the procedural guarantees afforded (see,
mutatis mutandis, Steel and Morris v. the United Kingdom,
no. 68416/01, § 95, ECHR 2005-II) and the nature and
severity of the penalties imposed (see Ceylan v. Turkey [GC],
no. 23556/94, § 37, ECHR 1999-IV; Tammer v. Estonia,
no. 41205/98, § 69, ECHR 2001-I; Skałka,
no. 43425/98, §§ 41-42, 27 May 2003; and
Lešník v. Slovakia, no. 35640/97,
§§ 63 64, ECHR 2003-IV) are factors to be taken
into account when assessing the proportionality of an interference
with the freedom of expression guaranteed by Article 10.
172. The phrase “authority of the
judiciary” includes, in particular, the notion that the courts
are, and are accepted by the public at large as being, the proper
forum for the settlement of legal disputes and for the determination
of a person’s guilt or innocence on a criminal charge (see Worm
v. Austria, judgment of 29 August 1997, Reports 1997-V, p.
1549, § 40). What is at stake as regards protection of the
authority of the judiciary is the confidence which the courts in a
democratic society must inspire in the accused, as far as criminal
proceedings are concerned, and also in the public at large (see,
mutatis mutandis, among many other authorities, Fey v.
Austria, judgment of 24 February 1993, Series A no. 255-A, p. 12,
§ 30).
173. The special status of lawyers gives them
a central position in the administration of justice as intermediaries
between the public and the courts. Such a position explains the usual
restrictions on the conduct of members of the Bar. Regard being had
to the key role of lawyers in this field, it is legitimate to expect
them to contribute to the proper administration of justice, and thus
to maintain public confidence therein (see Amihalachioaie v.
Moldova, no. 60115/00, § 27, ECHR 2004 III; Nikula,
cited above, § 45; and Schöpfer, cited above,
pp. 1052-53, §§ 29-30, with further references).
174. Article 10 protects not only the
substance of the ideas and information expressed but also the form in
which they are conveyed. While lawyers too are certainly entitled to
comment in public on the administration of justice, their criticism
must not overstep certain bounds. Moreover, a lawyer’s freedom
of expression in the courtroom is not unlimited and certain
interests, such as the authority of the judiciary, are important
enough to justify restrictions on this right ... [T]he Court refers
to its case-law to the effect that it is only in exceptional
circumstances that restriction – even by way of a lenient
criminal penalty – of defence counsel’s freedom of
expression can be accepted as necessary in a democratic society (see
Nikula, cited above, §§ 54-55).”
- Turning
to the circumstances of the present case, the Court observes that the
applicant was subjected to disciplinary liability for having made
offensive comments in respect of two judges of the Regional Court.
The Council of the Regional Bar Association and subsequently the
courts found the applicant’s behaviour to be incompatible with
the Advocate’s Code of Professional Conduct.
- In
such circumstances, the Court must ascertain whether a fair balance
was struck between, on the one hand, the need to protect the
authority of the judiciary and, on the other hand, the protection of
the applicant’s freedom of expression in his capacity as a
lawyer (see, Kyprianou, cited above, § 177).
- The
Court notes that the domestic authorities decided to disbar the
applicant. This cannot but be regarded as a harsh sanction. The
applicant’s conduct reflects a lack of respect for the judges
of the Regional Court. Nonetheless, whilst they were discourteous,
his comments were aimed at and limited to the manner in which the
judges were trying the case, in particular as regards his removal
from the position of legal counsel representing Mr R. in the course
of the criminal proceedings and the judges’ refusal to act on
his request for supervisory review.
- Having
regard to the above, the Court is not persuaded by the Government’s
argument that the applicant’s disbarment was commensurate with
the seriousness of the offence, considering the alternatives
available.
- Accordingly,
it is the Court’s assessment that such a penalty was
disproportionately severe for the applicant and was capable of having
a chilling effect on the performance by lawyers of their duties as
defence counsel. The Court’s earlier finding of the procedural
unfairness in the disbarment proceedings (see para. 40 – 44)
serves to compound this lack of proportionality.
- This
being so, the Court considers that the domestic authorities failed to
strike the right balance between the need to protect the authority of
the judiciary and the need to protect the applicant’s right to
freedom of expression.
- The
Court accordingly holds that Article 10 of the Convention has been
breached by reason of the disproportionate sanction imposed on the
applicant.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 of the Convention that
he had been denied a right to call several witnesses on his behalf;
and under Article 9 of the Convention that he had been penalised for
his thoughts. He also referred to Articles 13 and 14 of the
Convention.
- However,
having regard to all the material in its possession, the Court finds
that there is no appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 1,000,000 Russian roubles (RUB) in respect of
non-pecuniary damage.
- The
Government contended that, given that the applicant’s rights
under the Convention had not been infringed, his claims for damages
should be rejected in full. Alternatively, they proposed that a
finding of a violation would constitute sufficient just satisfaction
for any such violation. In any event, they considered the applicant’s
claims to be excessive, unsubstantiated and unreasonable.
- The
Court accepts that the violation of the applicant’s rights
under Articles 6 § 1 and 10 of the Convention caused him
distress and frustration – resulting from the lack of
impartiality of the tribunal and the infringement of his right to
freedom of expression – which cannot be compensated solely by
the findings of violations. Making its assessment on an equitable
basis, the Court awards the applicant EUR 11,700 in respect of
non-pecuniary damage, plus any tax that may be chargeable to the
applicant on that amount.
B. Costs and expenses
- The
applicant also claimed RUB 65.00 for costs and expenses incurred
before the domestic courts, RUB 198.05 for dispatch of the letters
addressed to the President of Russia and other state bodies, RUB
733.60 for costs and expenses incurred in the proceedings before the
Court, and RUB 700.00 for translation services.
- The
Government contended that none of the costs and expenses the
applicant claimed should be reimbursed.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and to the above criteria, the Court
considers it reasonable to award the sum of EUR 40.00 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that default interest should be based
on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the alleged
partiality of the appeal court and the alleged breach of the
applicant’s freedom of expression admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to
be converted into Russian roubles at the rate applicable at the date
of settlement:
(i) EUR
11,700 (eleven thousand and seven hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
40 (forty euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
