DISSENTING OPINION OF JUDGE NICOLA O U

The circumstances in which the Zaytzev case was transferred to another judge, during a trial conducted by the applicant, does indeed give cause for concern. This concern does not emanate directly from the applicant ’ s statements to the mass media as to what had taken place, since her version was disputed and it could not, therefore, be accorded preference in the present context. It is rather a concern arising from what was stated in a report prepared by an investigating judge, following the applicant ’ s complaint concerning those circumstances.

It should be noted that after 23 July 2003, when the case was assigned to another judge, the applicant acted as judge in several other criminal cases until the end of October 2003 when, at her request, she was excused from her judicial duties as she was a candidate in the general elections of 7 December 2003 for the State Duma of the Russian Federation. It was not until the beginning of December 2003, in the context of the election campaign and more than four months after the transfer of the Zaytzev case, that the applicant gave the interviews containing the impugned statements by which she attacked the domestic judicial system; and it was on the day of the last two interviews, 4 December 2003, that she lodged with the High Judiciary Qualification Panel a complaint that the Moscow City Court President had unlawfully exerted pressure on her to deflect her from the proper exercise of her judicial duties. There was thus a substantial delay but I am prepared to accept that nothing much turns on this.

Next, it should be noted that under Article 6.2 of the Code of Criminal Procedure of the Russian Federation , court presidents have administrative duties in addition to their judicial functions. They are thus responsible for organising the Court ’ s work and for distributing cases to judges. This is subject to Article 242 of the same Code, which states expressly what in principle should be taken for granted, namely that a case must be examined by one and the same judge unless he or she is no longer able to take part in the hearing. It was, apparently, in exercise of the powers conferred by Article 6.2 that in the instant case the Moscow City Court President withdrew the case from the applicant. Initially, this was on the pretext that if the case had remained with the applicant an unacceptable delay would have ensued. But this was later changed. In the report prepared by the investigating judge it was stated that the grounds relied on by the court president were, in fact, that the applicant: “was unable to conduct the court hearing, her procedural acts were inconsistent, [she acted] in breach of the principle of adversarial proceedings and equality of arms, she stated her legal opinion on the pending criminal case and she attempted to seek the court president ’ s advice on the case, and in view of the existence of confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina , in connection with the examination of Zaytsev ’ s case and other criminal cases” .

It has not been shown that, on an interpretation of the said Article 6 . 2, the domestic courts recognised that court presidents had such sweeping powers of dealing administratively with what are, quite clearly, procedural matters of a judicial nature; and it would be rather astonishing if they had. What, however, is most disquieting was the reliance placed on “... confidential reports by relevant agencies to the Moscow City Court President with regard to judge Kudeshkina ...” as a ground for removing the judge from the case. The investigating judge does not seem to have thought that such grounds raised any issue and neither did he relate them to the applicant ’ s version of events which was, to some extent, supported by the written statements of the lay assessors and the court secretary, at least in the way that events had unfolded. His conclusion that there was insufficient evidence in support of the applicant ’ s allegations, merely because they were denied by the person against whom they were made, cannot be regarded as satisfactory. Finally, it does not appear that the appropriate authorities addressed any of these matters in their decision not to proceed further with the complaint.

Against this background, and in the light of the investigating judge ’ s report which left room for a number of scenarios, the applicant ’ s right to freedom of expression acquired particular significance. That much I would accept. And although it seems to me that a judge, more than anyone else, should not go public either while a matter is sub judice – as it was in the present case – or before submitting a complaint to the appropriate authority and giving time for a response - which the applicant had failed to do – I might still contemplate the possibility of yielding to the view, apparently favoured by the majority, that a judge retained the right to go public immediately, on the basis presumably of highly exceptional circumstances.

The most important aspect of this case is, however, that the applicant ’ s statements were not confined to the Zaytzev trial. The applicant referred directly and in no uncertain terms to a much wider problem in the domestic judicial system. Relying on her many years of experience at the Moscow City Court, she stated categorically that she doubted the existence of independent courts in Moscow . She asserted, without any qualifying words and without specifying other instances, that Moscow courts are, in both their civil and criminal jurisdictions, systematically used as an instrument of commercial, political or personal manipulation; she spoke of brutal manipulation of judges, of outrageous scandals and of extensive corruption in the Moscow courts; and she concluded that if all judges kept quiet the country might soon end up in “judicial lawlessness”. As I read them, her statements clearly imply that she knew of particular instances which justified what she was describing as the magnitude of the problem. But she made no effort to substantiate this factual substratum before expressing value judgments on the extent and the gravity of the situation, which she summarised by saying that “[n]o 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.” These are extremely strong words coming from a judge and should not have been made unless the judge was able to back them up, at least to a meaningful extent.

The majority judgment concentrates on the Zaytzev incident without, in my view, addressing sufficiently the applicant ’ s statements about the wider problem, as she had alleged it, created by a mass of other similar instances of which the Zaytzev case was only an example. It was, in fact, her insistence that such conduct was widespread and systematic that formed the basis for her conclusions that it was impossible for an ordinary citizen to obtain justice in the Moscow courts. Further, in so far as the majority judgment makes reference to the applicant ’ s statements generally, I am unable to agree that the statements consisted essentially of value judgments requiring no substantiation, though I recognise the flexibility of the Court ’ s case-law on the matter.

If, indeed, the applicant knew of facts other than those concerning the Zaytzev case that judicial corruption was so rampant and judges were so effectively subjugated to behind the scenes arrangements, the applicant ought to have been more specific in her allegations. As it was, she condemned every single judge working in the Moscow courts as being either a willing accomplice or a helpless victim of a corrupt judicial system, and showed no regard for judges who, like herself, might also have claimed to have been above reproach. In short, she condemned indiscriminately all judges, demolishing in this way the whole judicial system. The incident in the Zaytsev case, taken alone, could not possibly have given cause for such far-reaching statements.

It should be borne in mind that what a judge says in public can have considerable impact since people would naturally consider a judge ’ s views as balanced and verified; whereas, for example, it is generally understood that a journalist, who is regarded as a public watchdog, may sometimes be provocative or prone to exaggeration and so more latitude is allowed. At the time that the impugned statements were made, the applicant ’ s judicial functions had already been suspended to enable her to conduct her political campaign. She could, consequently, express herself much more freely. But she still remained a judge. She was still bound by the Law on the Status of Judges and she should have had regard to the Code of Honour of a Judge, whether this latter had legislative effect or not. So her speech had to be tempered by discretion. Instead, she went to unacceptable extremes. In my opinion, therefore, 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, thus constituting a disciplinary offence”. Further, in these circumstances the disciplinary sanction imposed on the applicant was not, in my opinion, disproportionate.

There is one last thing. The applicant complained of a procedural irregularity in the examination of her application for judicial review. The complaint does not, in my view, amount to anything. Although with some delay, it was pointed out to her by a judge of the Supreme Court that the rules on jurisdiction prevented the transfer of judicial review of her case from the Moscow City Court to another court. In any event the involvement of the Moscow City Court could not have had a determinative influence on the outcome of the proceedings as a whole, given that the substantive findings and the final review of the sanction lay with bodies whose impartiality was not called into question.