DISSENTING OPINION OF JUDGE KOVLER JOINED BY JUDGE STEINER

(Translation)

I regret that I am unable to join the fragile majority in this judgment.

The case concerns not only the applicant ’ s personal situation, but also crucial points of judicial ethics as such. Unlike some followers of the “pure theory of law”, I am not convinced that legal issues can be separated from ethical and moral problems and that the Convention and national law can be analysed only nominally.

The Resolution on Judicial Ethics adopted by the Plenary of our Court on 23 June 2008 stipulates in point VI, on “Freedom of expression”: “ Judges shall exercise their freedom of expression in a manner compatible with the dignity of their office. They shall refrain from public statements or remarks that may undermine the authority of the Court or give rise to reasonable doubt as to their impartiality ”. Having applied this principle to ourselves, we must then apply it to our colleagues in other courts, who are also constrained by similar obligations, namely laws on the status of judges and Codes of judicial ethics adopted by judicial communities (see paragraphs 43-44 of the judgment). Thus, laws and professional ethics are a common ground in assessing judges ’ behaviour.

In its decision on inadmissibility in the case Pitkevich v. Russia (no. 47936/99, 8 February 2001) – concerning the dismissal of a judge who misused her office to pursue religious activities – the Court, having analysed judge Pitkevich ’ s dismissal, found that the judiciary, while not part of the ordinary civil service, was nonetheless part of typical public service. A judge has specific responsibilities in the field of administration of justice, a sphere in which States exercise sovereign powers. Consequently, a judge participates directly in the exercise of powers conferred by public law and performs duties designed to safeguard the general interests of the State. In the Pitketich case the Court concluded, in line with its Pellegrin judgment ( Pellegrin v. France [GC], no. 28541/95, ECHR 1999 ‑ VIII ) , that the dispute concerning the judge ’ s dismissal did not concern her “civil” rights or obligations within the meaning of Article 6 of the Convention, and that her dismissal pursued legitimate aims within the meaning of paragraph 2 of Article 10 of the Convention, with a view to protecting the rights of others and maintaining the authority and impartiality of the judiciary.

Even assuming that the present case differs substantially from that mentioned above, a similar problem arises concerning the limits on the freedom of expression of judges.

It is known from the Court ’ s case-law that the status of a public or civil servant does not deprive the individual concerned of the protection of Article 10. In its recent judgment in the case of Guja v. Moldova , the Grand Chamber again reiterated that “the protection of Article 10 extends to the workplace in general and to public servants in particular” (see Guja v. Moldova [GC], no. 14277/04, § 52 , ECHR 2008 ‑ ... ; see also Vogt v. Germany , 26 September 1995, § 53, Series A no. 323; Wille v. Liechtenstein [GC], no. 28396/95, § 41, ECHR 1999-VII; Ahmed and Others v. the United Kingdom , 2 September 1998, § 56, Reports of Judgments and Decisions 1998-VI; Fuentes Bobo v. Spain , no. 39293/98, § 38, 29 February 2000). However, the right to freedom of expression as such is not without limits and the Court in the same Guja judgment warns against an entirely “permissive” reading of Article 10: “At the same time, the Court is mindful that employees owe to their employer a duty of loyalty, reserve and discretion. This is particularly so in the case of civil servants since the very nature of civil service requires that a civil servant is bound by a duty of loyalty and discretion ” (see Guja , cited above , § 70; Vogt , cited above, § 53; Ahmed and Others, cited above, § 55; De Diego Natria v. Spain , no. 46833/99, § 37, 14 March 2002). The Court in the present judgment reproduces this reasoning (see paragraph 85), but ignores its development in Guja , and thus I am obliged to reiterate the following conclusion from paragraph 71 of the Guja judgment (since, on occasion, an omission may be significant):

“Since the mission of civil servants in a democratic society is to assist the government in discharging its functions and since the public has a right to expect that they will help and not hinder the democratically elected government, the duty of loyalty and reserve assumes special significance for the m (see, mutatis mutandis , Ahmed and Others v. the United Kingdom , cited above, § 53). In addition, in view of the very nature of their position, civil servants often have access to information which the government, for various legitimate reasons, may have an interest in keeping confidential or secret. Therefore, the duty of discretion owed by civil servants will also generally be a strong one . ”

Turning to the present case, I would point out that the Judiciary Qualification Board of Moscow reproached the applicant for having “disclosed specific factual information concerning the criminal proceedings against Zaytsev before the judgment in this case had entered into legal force” (paragraph 34). Let us remember that the criminal proceedings concerned Mr Zaytsev ’ s actions as an investigator in an extremely sensitive case of large-scale corruption, and that this case is still pending. It is very strange that in this regard the Court concludes: “The Court, for its part, sees nothing in the three impugned interviews that would justify the claims of ‘ disclosure ’ ” ( paragraph 91) . Even accepting that statements giving details of a pending case in which the applicant was a judge do not amount to the divulgation of classified information, it is somewhat difficult to consider them as a value judgment. The Court appears to justify this behaviour:

“There is no doubt [sic! – AK] that, in so doing, she raised a very important matter of public interest which should be open to free debate in a democratic society. Her decision to make this information public was based on her personal experience and was taken only after she had been prevented from participating in the trial in her official capacity” (paragraph 94).

It is necessary to point out that “after [she] had been prevented from participating in [one] trial”, the applicant subsequently sat as a judge in several other criminal cases (paragraph 16) and her office as judge was not at this stage terminated, but only temporarily suspended for two months, pending the elections and at her own request. Nothing indicates that she was released from her obligation to uphold judicial ethics and her obligation of professional discretion. Yet the applicant abused her immunity as a candidate, disclosing specific factual information concerning the criminal proceedings in a sensitive case before the judgment in that case had entered into legal force.

For the Court this, shall we say “uncommon” (for an acting judge), behaviour is justified by the fact that, at the time of her statements, the applicant was involved in an electoral campaign: “ political speech ... enjoys special protection under Article 10” (paragraph 95). Thus, if one wishes to settle a personal score with someone, it is safer to do so during an electoral campaign, as in that case even a disclosure of professional and restricted information is “not to be regarded as a gratuitous personal public attack, but as a fair comment on a matter of great public importance” (paragraph 95).

This conclusion, which is more than “permissive”, contrasts with another: “ ... 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 ...” (paragraph 86). Disclosure by civil and public servants of information obtained in the course of their work, even on matters of public interest, must be examined in the light of their duty of loyalty and discretion. Once again, I would point out that in the case of Guja (cited above, §§ 72-78) the Court held that, in deciding whether the signalling of illegal conduct or wrongdoing in the workplace enjoyed the protection of Article 10, account must be had to whether there was available to the civil servant in question any other effective means of remedying the wrongdoing which he or she intended to uncover, such as disclosure to the person ’ s superior or other competent authority or body ... The applicant preferred to do so publicly some months later, during her electoral campaign (see paragraph 19) and only after this did she lodge the complaint with the High Judiciary Qualification Panel (see paragraph 24): this was clearly done in order to achieve her personal goals, as the Government has submitted.

It is significant that all of the applicant ’ s allegations concerning procedural irregularities during her participation in the criminal case against Mr Zaytsev were examined by an independent judge from the commercial courts system, and were rejected as unsubstantiated because the applicant failed to prove the alleged facts. The remainder of the applicant ’ s statements in the course of her media interviews, such as “the courts of law are used as an instrument of commercial, political and personal manipulation” could be easily tolerated if made by journalists or professional politicians, but are not reconcilable with the status of a judge within the same judicial system, in which she had exercised her profession for 18 years. The central moral issue in this story is that, through her conduct, former judge Kudeshkina excluded herself from the community of judges prior to the imposition of the disciplinary penalty. Thus, there was a reasonable relationship of proportionality between the measures applied against the applicant and the legitimate aim of protection of the authority of the judiciary as provided by paragraph 2 of Article 10 of the Convention (see Vogt , cited above, § 53). These measures were “prescribed by law” (see paragraphs 45-47 of the judgment), pursued a legitimate aim as provided by the last sentence of Article 10 § 2 (“preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”) and were “necessary in a democratic society”, leaving to the national authorities a certain margin of appreciation in determining whether the impugned interference was proportionate to the above aim (see, among other authorities, Vogt , cited above, § 53).

The Court draws attention to the “chilling effect that the fear of sanction has on the exercise of freedom of expression”. I am afraid that the “chilling effect” of this judgment could be to create an impression that the need to protect the authority of the judiciary is much less important than the need to protect civil servants ’ right to freedom of expression, even if the civil servant ’ s bona fide intentions are not proved. I am profoundly pained by the Court ’ s conclusions. I hope that my esteemed colleagues will pardon me this freedom of expression.