Last Updated on November 22, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 9964/06
Viktor Aleksandrovich LISHNYAK
against Russia
The European Court of Human Rights (Third Section), sitting on 17 September 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 21 February 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Viktor Aleksandrovich Lishnyak, is a Russian national, who was born in 1955 and lives in Temryuk, the Krasnodar Region.
2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin and then by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.
3. The applicant complained in substance under Article 10 of the Convention that his written complaint to a public official had given rise to liability in the defamation proceedings against him. He also alleged, under Article 6 § 1, that his right of access to court had been breached, that he had not been duly notified of the hearing in one of his civil cases and that his absence from that hearing was in breach of principle of equality of arms.
4. On 28 January 2013 the Government were given notice of the application.
A. The circumstances of the case
5. Between 1997 and 2011 the applicant was involved as a party in the civil cases described below.
1. The proceedings relating to the applicant’s dismissal from the judicial office
6. In 1985, following the election of “people’s judges”, the Soviet Ministry of Justice appointed the applicant as a “people’s judge” at the Temryuk District Court of the Krasnodar Region. On 6 April 1990 he was elected and appointed for the same office for a ten-year term.
7. On 24 October 1997 the Judicial Qualifications Board of the Krasnodar Region (“the regional JQB”) dismissed the applicant from the judicial office for “committing acts incompatible with honour and dignity of the judicial office and diminishing the image of the judicial authority”. On 22 January 1998 the Federal JQB refuted the findings made by the Regional JQB, quashed the decision of dismissal and reinstated the applicant in his judicial function.
8. On 31 March 2000 the regional JQB refused to grant the applicant’s request for conversion of his ten-year judicial appointment to a permanent one and effective 6 April 2000, terminated the applicant’s appointment, owing to the expiry of the ten-year term of his judicial service. On 26 October and 14 December 2000, the Supreme Court, sitting as a court of the first-instance and as the appeal court, respectively, refused the applicant’s complaint against the decision of the Regional JQB of 31 March 2000.
9. On 14 May 2005 the applicant petitioned the regional JQB to reconsider its decision of 31 March 2000 on account of “newly discovered circumstances”.
10. By a decision of 3 June 2005 the JQB refused to reopen the proceedings.
11. The applicant challenged this decision before the Krasnodar Regional Court in March 2006. By its decision of 5 April 2006 the Krasnodar Regional Court returned the complaint to the applicant as it did not have territorial jurisdiction to examine it. The applicant did not appeal against that decision. He also did not submit any other appeals against the decision of the JQB of 3 June 2005.
2. The defamation proceedings brought against the applicant
12. On 30 June and 15 September 2004 the applicant wrote a letter to the President of the Krasnodar Regional Court, having made certain statements in respect of Mr G., the President of the Temryuk District Court and other judges of that court. The text of the letter of 30 June 2004 read as follows:
“To: Mr A.D. Chernov, the President of the Krasnodar Regional Court
From: Mr Viktor Aleksandrovich Lishnyak,
the retired judge of the Temryuk District Court …
According to Article 3.2 of the European Charter and the Law “On the Status of Judges” the law enlists circumstances which relate to the past activities of the judicial candidate or the members of his immediate family, which can create reasonable doubts as to impartiality and independence of that candidate and which can disqualify him from the judicial appointment.
The circumstances that proscribe the judicial appointment are enlisted in Article 119 of the Russian Constitution, in Articles 3,4 of the Law “On the Status of the Judges”, Articles 1-3 of the Judicial Code of Honour.
Pursuant to those provisions, I, as a judge who is not indifferent to justice, have a right to know and you must reply to the following questions:
– Why was [Mr G.] appointed as the President of the Temryuk Regional Court even though he is a stranger to justice whose ethical, business and professional values disqualify him from serving as a judge?;
– Why does his wife [Ms.G.], who is a defence lawyer, work with him?;
– Why does the deputy president of the Temryuk Court [Ms Sh.], who is also a person of rather low ethical standards, work with her husband who is the head of the Bar Association of the Temryuk District;
– Why were the persons [G. and K.] appointed as judges to the Temryuk District Court even though they used to work as defence lawyers in this district and before this court and even though they are closely connected through their line of work to the representatives of the organised crime,?;
– Why was [Mr K.] appointed as a judge even though his wife is a deputy of a town council and the president of the committee?;
– Why does [Mr S.] continue to adjudicate cases even though his term of appointment expired in 2001 and the President of Russia refused to extend his term and the new judges were appointed in 2001 to the court?”
The text of the letter of 15 September 2004 to the President of the Regional Court read as follows:
“To: Mr A.D. Chernov, the President of the Krasnodar Regional Court
From: Mr Viktor Aleksandrovich Lishnyak,
the retired judge of the Temryuk District Court …
In his message to the peoples of Russia concerning the tragic events in Beslan, the President of the Russian Federation had to admit the fact that the judiciary is corrupt.
It is known and confirmed in reality that, in spite of all laws or increase in pay or other privileges, the judicial reform and the eliminating of corruption are not possible, if the persons distant from justice and incidental to it were dressed in the judicial robes.
In order to eliminate this phenomenon which is shameful for justice, I consider necessary to make the following proposals:
1. The President of the Krasnodar Regional Court should resign from his judicial office.
2. [You] should offer the judges who are your associates to resign;
3. To include the re-election of the President of the Judicial Qualifications Board, [Mr B.], in the agenda of its next meeting and in favour of a person of higher ethical, primarily ethical, and professional standards and not upon your recommendation.
4. If these judges do not resign, to create commission composed of the representatives of the President of Russia, Judicial Council, of the public representatives of the Judicial Qualifications Board, Prosecutor’s Office and the FSB, which is not contrary to Chapter 7 of the Constitution of RF [the Russian Federation] and federal laws “On Judicial System in RF” and “On Status of Judges in RF”. The aim of creation of this commission is to enquire about the activities of judges and their fitness for judicial office in respect of their ethical, again, primarily, ethical, business and professional qualities and the initiative for creation of that commission should belong definitely to you and it should precede your resignation.
I consider that this enquiry should start with the judges of the Regional Court: the deputy president of the court [Mr M.], deputy president [Ms Sh.], the President of the civil division [M.], judges [Gal.,], [Dz.], [Ye.], [Z.], [P.], and also the president of the Sovetskiy District Court of Krasnodar [Mr L.], the president of the Leninskiy District Court of Krasnodar [V.], the President of the Temryuk District Court [Mr G.], the judges of that court [Sh.], [S.], [Gar.], [K] and all alike in other courts of the region. You know them very well[,] good at disguising their real identity and creating negative images in respect of their opponents.”
13. The applicant sent copies of these letters to the President of the Russian Federation, to the President of the Supreme Court of Russia and to the Governor of the Krasnodar Region. No documents were attached to these letters in support of the applicant’s allegations contained therein.
14. Mr G. brought civil proceedings accusing the applicant of defamation.
15. On 18 April 2005 the Slavyanskiy Town Court of the Krasnodar Region issued a judgment granting Mr G.’s claims. The court considered that the applicant had disseminated information by way of letters to public officials; that this information became “open and accessible to a wide circle of people”; and that it was defamatory. In particular, the court noted that Mr G. had been appointed as President of the Temryuk District Court; his professional and ethical qualities had been duly checked before the appointment. The Court further held that disciplinary proceedings can be instituted if the facts indicated by the applicant were revealed. However, Mr G. had not been subject to any disciplinary proceedings and the applicant had not submitted any evidence thereof.
16. The court ordered the applicant to refute the content of the letter by bringing an apology to Mr G. The applicant was also ordered to pay 8,000 Russian roubles (RUB, at the time about 115 euros (EUR)) to Mr G. in respect of non-pecuniary damage. The applicant appealed.
17. On 30 August 2005 the Krasnodar Regional Court upheld the judgment in substance. It held as follows:
“…the applicant submitted that the information [contained in the letters] was a value judgment and expressed his personal view and that it was truthful…The court examined these allegations and correctly found them unsupported by the materials of the case.
However, the court absolves the applicant from the obligation to bring apology as it is not prescribed by law… it also reduces the non-pecuniary award to RUB 1,000 (about EUR 28 at the time) because it was not established that the dissemination of information contained in the letters was particularly wide or that it adversely affected Mr G…”.
3. The revocation of the applicant’s status of “retired judge”
18. On 16 December 2005 the Regional JQB granted a request of the Judicial Council of the Krasnodar Region of 9 November 2005 to revoke the applicant’s status of retired judge. The Board held that the applicant should no longer be treated as “retired judge” because he had engaged in commercial activities, the pursuit of which under Russian law is incompatible with judicial status. The members of the board further noted, in particular, that the applicant made impermissible references to his title and to his judicial immunity in his complaint to the police against a certain private party and then in his complaints to the courts against that party and the police official. The enquiries launched at the request of the applicant established that his complaints were unmeritorious. In the opinion of the Board, the applicant had abused his position in order to gain leverage in the resolution of the civil disputes in which he was involved. The Board held that these acts were incompatible with honour and dignity of the judicial office and that they diminished the image of the judicial authority.
19. The Board also referred, in passing, to the applicant’s complaints against the local and regional judiciary, including Mr.G.’s defamation case against the applicant. The Board established that his allegations had been checked by the competent authorities that found them “unsubstantiated, false and defamatory”. The Board further held that the failure by the applicant to comply with the outstanding civil judgment against him (payment of non-pecuniary damage) and the dissemination by the applicant of defamatory information, which entailed his liability in civil proceedings, had discredited him and thereby, damaged the image of judicial authority.
20. On 5 September 2006 the Supreme Court of Russia dismissed the applicant’s complaint against the decision of the JQB as time-barred, having established that the applicant had missed the time-limit for lodging his appeal without a valid excuse.
4. The proceedings against the applicant’s private employer
21. On 9 or 23 March 2007 the applicant sued his former employer (a private company) for their refusal to return his employment book or to issue its duplicate.
22. By a judgment of 17 April 2007 the first-instance court dismissed his claims. The applicant did not appeal against that judgment but sought supervisory review of the above judgment having stated in his request for review, inter alia, that the first-instance court did not adjudicate his request to compel his employer to issue him a duplicate of his employment book. On an unspecified date, the Regional Court quashed the judgment by way of supervisory review and ordered a re-examination of the case.
23. In the resumed proceedings, the first-instance court scheduled a hearing for 6 November 2007. According to the applicant, he requested the court via telegram to examine the case in his absence. However, the court adjourned and rescheduled a hearing for 19 November 2007.
24. On 19 November 2007 the first-instance court examined the applicant’s case, heard the defendant and dismissed the applicant’s claims. One of the documents presented by the applicant’s employer to the court was a letter dated 15 February 2007 that was sent to the applicant and in which he was requested to submit certain documents necessary for the issuance of the duplicate of his employment book. The court also established that a similar letter was sent to the applicant on 5 March 2007.
25. According to the text of the judgment of 19 November 2007,
“ … In the amended complaint … the applicant requested to have his case examined in his presence.
[The applicant] did not come to the hearing, he submitted a written request to have his case examined in his absence. Owing to the fact that [the applicant] was duly notified of date and place of the hearing, it is possible to examine the case on the merits in his absence …”.
26. According to the minutes of the hearing, the applicant did not take part in the hearing and submitted a written request to have his case examined in his absence.
27. For unspecified reasons, the applicant did not appeal against the judgment of 19 November 2007. Nor did he seek restoration of the time‑limit for an ordinary appeal on account of a valid reason.
28. The applicant, however, sought supervisory review of the judgment of 19 November 2007 and his request for supervisory review was granted. In his request for supervisory review he noted that he had sent a telegram to the court with the request to adjourn the hearing of 6 November 2007 and that the domestic court should not have taken note of that request in respect of 19 November 2007 hearing.
29. On 2 July 2008 the Presidium of the Regional Court held a supervisory review hearing. According to the text of the judgment, the applicant was not present at the hearing for unspecified reasons. Having heard the defendant in the proceedings, the Presidium court upheld the judgment of 19 November 2007. The court held, inter alia, that the first‑instance court did examine the applicant’s claim concerning the non‑issuance of the duplicate his employment book. In particular, it was established that the letter requesting the applicant to submit the documents for the duplicate of his employment book had been sent to the applicant on 15 February 2007, that is, three weeks before he brought his complaint against his employer on 9 March 2007 and more than half a year before the hearing of 19 November 2007. The second letter was sent to him on 5 March 2007. However, the applicant did not act on the letter and failed to submit the documents that were requested of him.
5. The proceedings in respect of non-pecuniary damage for wrongful dismissal from the judicial office
30. In 2002 the applicant brought a claim for non-pecuniary damage for wrongful dismissal from the judicial office against JQB and the Judicial Department, which is responsible for the JQB (see paragraphs 36 and 37 below). On 29 July 2002 the court held that the applicant had not substantiated his claim either with detailed explanations, medical or other relevant documents. The court also held that the applicant had not proved that the defendants’ evaluation of the applicant’s fitness for judicial office was prejudicial and that they had an intent to inflict non‑pecuniary damage on him, which, according to the domestic law on compensation of non‑pecuniary damage, was a required element in finding them liable. The court also noted that even though the applicant had called the decision of the JQB “defamatory” he had not refuted the facts on the basis of which the Regional JQB took its decision. On 14 November 2002 the appeal court confirmed that judgment.
31. On 1 October 2009 the applicant sued the Judicial Department claiming a monetary compensation in respect of non-pecuniary damage caused by the 1997 decision of the JQB (see paragraph 7 above). On 29 October 2009 the Oktyabrskiy District Court of Krasnodar considered that the Judicial Department had not caused any damage to the applicant and that his complaint was time-barred as he had failed to bring it within the three-year time-limit of the date when the contested decision was taken. On 11 February 2010 the Regional Court upheld the judgment.
32. The applicant then sued the Federal Treasury and the JQB having sought non-pecuniary damage in respect of the 1997 decision of the JQB.
33. On 21 March 2011 the Oktyabrskiy District Court of Krasnodar dismissed his claims. The court considered that the non-pecuniary damage allegedly caused by the acts or omissions of the federal or regional state organs is compensated at the expense of the federal or regional treasury. The Regional JQB was not an organ of state and had no budget of its own and the Treasury could not incur any liability for decisions taken by the JQB.
34. By a final judgment of 10 May 2011 the Regional Court confirmed the judgment on appeal. The appeal court noted that the JQB was financed by the Judicial Department and that the court had dismissed, in separate proceedings in 2009, the applicant’s identical claim against the Judicial Department.
B. Relevant domestic law
35. Article 15 § 1 of the Law No. 3132-I of 26 June 1992 “On the Status of Judges in the Russian Federation” provides:
“… A person who is a retired judge retains official judicial title, judicial immunities and remains a part of the judiciary.”
36. According to Article 1 of the Law No. 7-FZ of 8 January 1998, the Judicial Department of the Supreme Court of the Russian Federation (“the Judicial Department”) is a federal state body which is responsible for management of human, financial, technical, informational and other resources of courts and organs of judicial community.
37. According to Article 1 of the Regulation on Judicial Qualifications Boards of 22 March 2007, the Judicial Qualifications Board (“JQB”) is an organ of judicial community.
COMPLAINTS
38. The applicant complained under Article 10 of the Convention that the defamation proceedings against him breached his right to freedom of expression. The applicant further complained that the various civil proceedings in which he had participated had not been fair, in breach of Article 6 § 1. Lastly, the applicant brought other complaints under Article 6 § 1 of the Convention in respect of the civil proceedings in which he was involved as a party.
THE LAW
A. The complaint under Article 10 of the Convention
39. The applicant complained that his written complaint to a public official in respect of Mr G., the President of the Krasnodar Regional Court, had given rise to liability in the defamation proceedings against him, in breach of Article 10 of the Convention, which provides 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. 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 … for maintaining the authority and impartiality of the judiciary.”
40. The Government submitted that the applicant had not suffered a significant disadvantage in the defamation proceedings against him because the applicant had not been obliged to change the opinion he had expressed by bringing an apology to the aggrieved party or by any other means. As for the monetary part of the judgment, its enforcement was never sought by Mr G., it was voluntary (that is, the applicant could pay if he so wished) and it had never been and never would be enforced, owing to the expiry of the term of its enforcement. The Government further submitted that that the interference with the applicant’s right to freedom of expression was proportionate to the pursued legitimate aim and that it corresponded to a “pressing social need”.
41. The applicant submitted that he had paid RUB 1,000 (equivalent of EUR 28 at the time) to Mr G. in cash in the presence of witnesses and that the defamation proceedings were brought against him with “the sole purpose of allowing Mr G.’s ‘associates’ to use that judgment later in order to revoke the applicant’s status of the retired judge”. The applicant contended that his statements in respect of Mr G. were truthful and that they had expressed the opinion of the public about him.
42. In the light of the parties’ observations, the Court will first have to determine whether the applicant has complied with Article 35 of the Convention, which, in so far as relevant, provides as follows:
“ …
3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
…
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
43. The Court has considered the rule contained in this provision to consist of three criteria, that is, whether the applicant has suffered a “significant disadvantage”; whether the respect for human rights compels the Court to examine the case and whether the case has been duly considered by a domestic tribunal (see Smith v. the United Kingdom (dec.), no. 54357/15, § 44, 28 March 2017).
44. The Court notes that even though no formal hierarchy exists between the three elements of Article 35 § 3 (b) mentioned above, the main element of the criterion set by Article 35 § 3 (b) of the Convention is whether the applicant has suffered any significant disadvantage (see Shefer v. Russia (dec.), no. 45175/04, § 17, 13 March 2012 and El Kaada v. Germany, no. 2130/10, § 39, 12 November 2015).
45. In the case of El Kaada,cited above, §§ 40-41, with references cited therein, the Court held as follows:
“40. The criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case …
41. In the light of the criteria established in its case-law, the Court considers that, in ascertaining whether the violation of a right attains the minimum level of severity, the following factors, inter alia, should be taken into account: the nature of the right allegedly violated, the seriousness of the impact of the alleged violation on the exercise of a right and/or the possible effects of the violation on the applicant’s personal situation …”.
46. The Court observes that that the applicant was relieved by the appeal court of the obligation to bring an apology to Mr G. and that the financial impact, if any at all, on the applicant has been petty (see paragraph 17 above).
47. In so far as the applicant may be understood as alleging in his observations that the defamation judgment was used against him in the proceedings of 16 December 2005 by the JQB (see paragraphs 18 and 41 above), the Court notes that an alleged violation of the Convention may indeed concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interest (see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010 and in particular, Konstantin Stefanov v. Bulgaria, no. 35399/05, §§ 46-47, 27 October 2015 where the respect for the applicant’s position as a defence lawyer in the exercise of his professional activities was at issue).
48. However, the Court notes that in the present case the reference to the defamation proceedings made by the JQB is outside of scope of the Court’s examination of the present complaint, which concerns only the defamation proceedings brought by Mr G. and the alleged impact that their direct outcome had on the applicant’s right to freedom of expression (see paragraph 39 above). That being said, the Court, nevertheless, also notes that the reference by the JQB to the defamation proceedings in its decision was incidental and not decisive for the outcome of that case and that the applicant’s status of retired judge was revoked primarily because he had been found to have engaged in the activities the pursuit of which was incompatible with holding judicial office and because he had abused his position with a view of gaining a personal gain in various civil proceedings (see paragraph 18 above) (see, for similar reasoning, Savelyev v. Russia (dec.), 42982/08, § 29, 21 May 2019). The Court also accepts the Government’s argument that the applicant failed to appeal against the decision of the JQB of 16 December 2005 without any valid excuse and the applicant acknowledged that in his observations.
49. Accordingly, in the light of the above considerations and the parties’ submissions, the Court finds that the applicant does not appear to have suffered a significant disadvantage for the purposes of Article 35 § 3 (b) of the Convention.
50. The second element and the third elements contained in Article 35 § 3 (b) of the Convention, respectively, oblige the Court to examine the case in any event if respect for human rights so requires or if the case has not been duly considered by a domestic tribunal. However, the Court will not make this inquiry because in any event, in the Court’s opinion, the applicant has not made a plausible complaint about the interference with his right to freedom expression before the Court.
51. In particular, the Court notes that in his letters of 30 June and 15 September 2004 sent to the President of the Regional Court and also disseminated to high public officials, the applicant implied that Mr G. and other judges of the district and regional courts were unfit for office and corrupt, that they promoted nepotism and had connections to a criminal organisation (see paragraph 12 above).
52. In this respect the Court reiterates that issues concerning the functioning of the justice system constitute questions of public interest, the debate on which enjoys the protection of Article 10 (see Kudeshkina v. Russia, no. 29492/05, § 86, 26 February 2009). The interference with the exercise of freedom of expression can be justified by the existence of “pressing social need” and in making that assessment a careful distinction needs to be made between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof. However, even where a statement amounts to a value judgment, the proportionality of interference may depend on whether there exists sufficient factual basis for that statement, since even a value judgment without any factual basis to support it may be excessive (Ibid., § 84). Furthermore, the Court has on many occasions emphasised the special role in society of the judiciary, which, as the guarantor of justice, a fundamental value in a law-governed State, must enjoy public confidence if it is to be successful in carrying out its duties. It 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 criticised are subject to a duty of discretion that precludes them from replying (Ibid., § 86).
53. Turning to the facts of the present case, the Court does not consider it necessary to determine whether the impugned statements were assertions of facts or value judgments in the light of the following. In the Court’s view, when the applicant made his statements his purpose was to draw scrutiny on the members of the judiciary from high public officials and accordingly, his allegations, being rather serious, should have been duly substantiated with either references to concrete facts of professional or personal misconduct by Mr G. or to evidence in support of such allegations (see Kudeshkina, cited above, § 84, with further references,and Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, §§ 37-40, 28 March 2013). Otherwise, those statements may be considered as having been motivated by personal grievance or antagonism which, under the Court’s standards, would not justify a particularly strong level of protection (see Kudeshkina, § 95). The Court notes that the applicant did not corroborate his allegations with any documents (see paragraph 13 above). Furthermore, the competent domestic authorities who checked his allegations, found them unsubstantiated, false and defamatory (see paragraph 18 above). The Court has no reason to disagree with those findings and in particular, with the findings of the appeal court (see paragraph 17 above) and considers that, in the absence of relevant evidence, the letters written by the applicant contained nothing more than his own speculative, frivolous and arguably, harassing statements towards Mr G. (and other judges) which aimed to cast doubt on their professional qualifications and fitness for judicial office without any proof.
54. Having established that the applicant’s statements lacked factual basis, the Court also notes that that at the time when the applicant wrote those letters, he still held the status of retired judge (and identified himself as such), which according to the Russian law, allowed him to retain an official judicial title, to maintain judicial immunity and continue to be member of the judiciary (see paragraph 35 above), that is, essentially, he was a civil servant. In this respect, the Court reiterates that civil servants also enjoy the right to freedom of expression (see Simić v. Bosnia and Herzegovina (dec.) 75255/10, 15 November 2016, §32, with further references). However, given the special role of the judiciary in the society, the Court also 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 (see Simić, cited above, § 33 and Kudeshkina,cited above, § 86). The duty of loyalty and discretion owed by civil servants, and particularly the judiciary, requires that the dissemination of even accurate information is carried out with moderation and propriety (see Kudeshkina, cited above, § 93). However, the applicant cannot be said to have exercised restraint, moderation and propriety required of the representatives of the judiciary in expressing criticism towards fellow judges.
55. Furthermore, at the time of writing of the letters, the applicant was not a member of the press who would be protected by the standards established in the Court’s case-law regarding, in particular, journalistic freedom and Mr G. was not a political figure who, owing to his status, would be required to display a greater degree of tolerance to criticism (see Savelyev, cited above, § 31; Novaya Gazeta and Borodyanskiy, cited above §§ 34-35, with further references). Nor was the applicant, who identified himself as “retired judge” in the letters that he wrote (see paragraph 12 above) acting as a private individual raising a complaint against a public servant and reporting irregularities in the conduct of an official to a body competent to deal with such complaints (see Kazakov v. Russia, no. 1758/02, § 28, 18 December 2008).
56. Having examined the parties’ observations and the materials of the case-file, the Court also notes that the defamation proceedings against the applicant were prescribed by law and pursued the legitimate aim of protecting Mr G.’s reputation. Given the special role of the judiciary emphasised by the Court on many occasions, the defamation proceedings against the applicant served the “pressing social need” to protect the judiciary authority associated with Mr G. against what appears to be unwarranted attempts by the applicant to undermine the public confidence in it (see Kudeshkina, cited above, §§ 84-86). Finally, the Court also finds that the penalty imposed on the applicant (order to pay the equivalent of EUR 28 in non-pecuniary damage) by the domestic court was not disproportionate to the aim pursued
57. Accordingly, given the above considerations, it follows that the applicant’s complaint under Article 10 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The complaints under Article 6 of the Convention
1. The proceedings in respect of non-pecuniary damage for wrongful dismissal from the judicial office
58. The applicant further complained that his right of access to court had been breached in the proceedings in which he sought to recover non‑pecuniary damage for wrongful termination from the judicial office.
59. The Government submitted that the applicant had not had an arguable claim in the domestic law, that he had submitted his complaint to the Court out of time and that his right of access to court had not been breached.
60. The Court notes that the applicant sought non-pecuniary damage from the Regional JQB and the Judicial Department for the first time in 2002. On 29 July 2002 his claim was rejected by the domestic court which found that the applicant had not duly substantiated his claim either with detailed explanations, medical or other relevant documents. The court also held that the applicant had not proved that the defendants had intent to inflict non-pecuniary damage on him, which, according to the domestic law, was a required element in finding them liable (see paragraph 30 above). On 14 November 2002 the appeal court confirmed that judgment.
61. In 2009 the applicant brought the same complaint against the Judicial Department only. On 29 October 2009 and 11 February 2010, the first-instance court and the appeal court, respectively, dismissed his claim as time-barred and did not examine it on the merits (see paragraph 31 above). The applicant then brought this complaint against the Regional JQB, the Russian Ministry of Finance and the Treasury. On 21 March 2011 the domestic court held that the Russian Ministry of Finance and the Treasury could not be considered as designated defendants in the proceedings and that there had been no grounds to grant the applicant’s claim against them or JQB (see paragraph 33 above). The judgment was confirmed by the appeal court which established that the JQB was financed by the Judicial Department, a claim against which was dismissed in 2009 (see paragraph 34 above).
62. The Court observes from the text of the judgments of the domestic courts that the applicant’s complaints concerning the recovery of non‑pecuniary damage brought by him before the domestic courts in 2009 and 2011, except for designated defendants, are identical to his original complaint which was examined at the national level in 2002. They concern the same circumstances and legal matter without raising any new issues. The Court notes that the applicant’s original complaint was brought by him timely in 2002 against the correct defendants, that is, the JQB which took the decision that the applicant contested and the Judicial Department which is financially responsible for the JQB (see paragraph 36 above). His complaint was duly examined on the merits by the domestic courts which found no grounds for granting his claim. Therefore, the Court considers that the final domestic decision in respect of the applicant’s claim for non‑pecuniary damage was taken in 2002.
63. In the Court’s view, the complaints subsequently brought by the applicant in 2009 and 2011 were vexatious and could be characterised as an appeal in disguise and an attempt by the applicant to circumvent the six‑month period during which the matter should be brought to the attention of the Court.
64. The six-month period provided for by Article 35 § 1 of the Convention should thus be calculated from 14 November 2002, a day when the appeal court issued its judgment on the merits in respect of the applicant’s claim for non-pecuniary damage. The Court notes that the applicant lodged his complaint with the Court on 15 June 2011, that is, more than six months after the final decision had been taken by the domestic court.
65. Accordingly, in the light of the above considerations, the Court holds the applicant’s complaint under Article 6 § 1 in this part inadmissible, pursuant to Article 35 § 1 of the Convention.
2. The proceedings against the applicant’s former private employer
66. The applicant further complained under Article 6 § 1 that he was put in a disadvantageous position vis-à-vis the opposing party (his former private employer) in the hearing of 19 November 2007 because he had not been notified of that hearing and because the court had examined his case in his absence.
67. The Court notes that in his request for supervisory review of judgment of 19 November 2007, the applicant explained that he had submitted a request to adjourn in respect of the hearing of 6 November 2007 and that the domestic court examining the case should not have taken note of that request in respect of 19 November 2007 hearing (see paragraph 28 above). He did not specifically state in his request for supervisory review that he had not been notified of the hearing of 19 November 2007. It is also not clear whether the request in relation to the hearing of 6 December 2007, to which the applicant refers, was to adjourn the hearing or to hold it in the applicant’s absence (see paragraphs 23 and 28 above) and the applicant did not explain this evident discrepancy to the Court in his submissions.
68. Furthermore, according to the minutes of the hearing of 19 November 2007 (see paragraph 26 above), the applicant submitted a written request to the court to examine his case in his absence. The applicant did not dispute the accuracy of the minutes of the hearing of 19 November 2007 either in the domestic proceedings or before the Court and did not repudiate the Government’s submissions in this respect, having contended in his observations only that he had not been apprised of the hearing. In addition, it also follows from the text of the judgment of 19 November 2007 that the applicant had been duly apprised of the date and the place of the hearing and that the court received his written request to examine the case in his absence (see paragraph 25 above). Therefore, the applicant’s allegations in respect of lack of notification of the hearing are unsubstantiated and unsupported by the material of his case file before the Court.
69. Furthermore, it does not appear that the absence of the applicant from the hearing rendered the proceeding against him unfair. The Court notes from the applicant’s observations that the thrust of the applicant’s complaint under Article 6 § 1 in this part concerns the alleged lack of opportunity for the applicant to comment, in particular, on the letter of 15 February 2007 presented by his former employer in the hearing on 19 November 2007 in defence of their position. In this letter the applicant had been requested to submit certain documents which were required for the issuance of the duplicate of his employment book (see paragraph 24 above).
70. However, as was established by the domestic court in the supervisory review proceedings, the letter had been sent to the applicant on 15 February 2007, that is, three weeks before he brought his complaint against his employer on 9 March 2007 and more than half a year before the hearing of 19 November 2007 (see paragraph 29 above). The court also established that a similar letter was sent to the applicant on 5 March 2007. The applicant acknowledged in his submissions to the Court that he had received the letter of 15 February 2007 but did not submit the documents that were requested from him. In these circumstances, the Court finds that the contents of the letter sent to the applicant by his employer was known to him well in advance of the hearing of 19 November 2007 but the applicant failed to act on it without any valid excuse and chose to bring his demands against his former employer in the civil proceedings instead.
71. Accordingly, it follows that the applicant’s complaints under Article 6 § 1 of the Convention concerning the lack of notification and his absence from the hearing is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Other complaints under Article 6 § 1 of the Convention
72. Lastly, the Court has examined the other complaints submitted by the applicant. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 October 2019.
Stephen Phillips Paulo Pinto de Albuquerque
Registrar President
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