KOSTYUCHENKO v. RUSSIA - 6991/07 (Judgment : Article 6 - Right to a fair trial : Third Section Committee) [2019] ECHR 544 (09 July 2019)

In the case of Kostyuchenko v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Committee composed of:

Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Fatoş Aracı, Deputy Section Registrar ,

Having deliberated in private on 18 June 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 6991/07) 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, Ms Nadezhda Nikolayevna Kostyuchenko ("the applicant"), on 18 January 2007 .

2 . The applicant was represented by Mr O. Anishchik, a lawyer practising in St Petersburg. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3 . The applicant alleged, in particular, that she had not been given a fair hearing by an independent and impartial tribunal established by law . She also alleged that her telephone communications had been tapped and that she had been subject ed to surveillance measures , and that she had had no effective remed ies in th ose respect s .

4 . On 18 March 2011 the complaints under Articles 6, 8 and 13 of the Convention were communicated to the Government .

5 . The Russian Government objected to the examination of the application by a Committee. After having considered the Government ' s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1962 and lives in Samara .

7 . On 18 December 1997 t he applicant was appointed , for an indefinite period , as a judge of the Commercial Court of the Samara Region . In February 2003 the regional Judiciary Qualification s Board ( к валификационная коллегия судей - hereinafter "the JQB" or "the Board" ) awarded her the second qualification class . S he was subsequently assigned to preside over a panel of the commercial court.

8 . It appears that a number of written and oral complaints were submitted to Mr N., the President of the Commercial Court of the Samara Region , in relation to the applicant ' s work. An internal inquiry was then carried out. In January 2006 Mr N. made an application to the regional JQB to institut e disciplinary proceedings against the applicant. The following examples , inter alia , were listed :

(i) A biased adjudication in cases relating to Toliattiazot OJSC , that is to say the applicant examined a n application to restore a procedural time-limit for challenging a decision taken by the bailiff service in the decision on the merits of the case, instead of dealing with it at the start of the proceedings. T his allegedly disclosed a lack of knowledge of the requirements of Article 170 of the Code of Commercial Procedure. Moreover, the case should not have been examined at all, having been lodged outside the statutory prescription period. Thus, the manifestly unlawful decision delivered by the applicant was then quashed on appeal. Prior to that, the applicant had issued a decision setting aside the bailiffs ' freezing order in respect of a number of shares. The applicant ' s manifestly unlawful decision in that case was also set aside following a cassation review. The above considerations indicated , in Mr N. ' s view, that the applicant had lacked professional knowledge and impartiality. Similar considerations were also applicable to two cases concerning another private company.

(ii) In another case , the applicant examined the matter of interim measures in an interlocutory decision concerning the start of the proceedings. Such decision s were not amenable to appeal , while matters relating to interim measures could be appealed against and thus should have been decided in a separate procedural decision.

(iii) In another case , the applicant suspended the proceedings, requiring a party to submit an authority form, and then still proceeded with the case, despite not receiving any of the relevant documents. The judge made various mistakes in that case and examined the merits. Subsequently, the case was reassigned to another judge , who examined it.

(iv) During a hearing in another case , the applicant expressed her opinion on the merits of the case. She was then challenged and the case was reassigned.

(v) In certain cases , the applicant unlawfully indicated the contents of the operative part of the judgment in the verbatim record instead of issuing a separate procedural decision; there were inconsistencies between the content of those orders and the text indicated in the verbatim record.

(vi) Over ten months, some 19.3% of court decisions (among those that were challenged on appeal) were set aside. Overall, some thirty court decisions were quashed during that period of time.

It does not appear that the application was accompanied by any supportin g documents or other enclosures (see also paragraphs 9 , 12 and 30 below).

9 . The applicant was provided with a copy of the application and made writ ten submissions in reply.

10 . The Court has not been supplied with any written material adduced as evidence or added to the case file before the JQB.

11 . On 1 February 2006 a hearing was held by a seventeen-member panel of the regional JQB . T he applicant did not attend because she felt ill. The JQB heard the regional prosecutor, who, according to t he hearing record, stated as follows:

" In relation to many of the cases that [the applicant] examined, there are now pending criminal investigations, for instance, as regards Toliattiazot OJSC ... We do have operational information that [the applicant] delivered judgments [motivated by] the consideration of personal interest or gain; many of those were taken in a restaurant. I do consider the application [for her disqualification] justified ... We do have records of telephone conversations involving persons suspected of criminal offen c es. The examination of th o se records led us to [the applicant], who delivered [in return for] payment unlawful decisions in their favour."

Another official , a federal inspector , was also hea r d by the Board and stated as follows:

"I have heard myself the records of telephone conversations between [the applicant] and others. Th o se conversations concerned money."

12 . Another hearing was held on 1 March 2006. Nineteen members of the JQB were present at the hearing. The presiding judge read out the application for disciplinary proceedings and, according to the hearing record, referred to "other material". The applicant presented her oral arguments. As is clear from the hearing record, she raised, among other matter s, the interception of her telephone communications . She stated as follows:

"I would like to comment on certain [information that was] mentioned during the earlier hearing. The tapping of telephone conversations concerned all telephone numbers and not just those relating to the criminal cases. The President [of the Commercial Court of the Samara Region] gave me an opportunity to listen to my conversations with some of the judges of the Supreme Commercial Court of Russia. All this indicates that all my telephone conversations were tapped unlawfully. I am ready to provide further details relating to the tapping of my telephone communications ... "

The President of the Board replied as follows:

"The application, which we are examining, does not concern the institution of criminal proceedings. We are examining the application. At the same time, we would like to have information characterising [the applicant]. So let us go back to the matter relating to [the applicant ' s] flat ... "

The discussion that followed concerned the circumstances in which the applicant had been provided with housing by the municipality.

13 . The applicant was then asked to leave the hearing room and complied.

14 . The Board then heard Mr N., the President of the Commercial Court of the Samara Region , who had instituted the proceedings . He stated as follows:

"[The applicant ' s] actions in the cases relating to Tolialliazot OJSC caused significant damage to the interests of the State because the company ' s shares were transferr ed abroad. She has been a participant in an elaborate criminal scheme aimed at blocking lawful decisions by way of suspending enforcement proceedings ."

15 . The Board also heard the federal inspector, the acting President of the Samara Regional Court, the President of the Ju dicial Council and the deputy President of the Regional Judicia ry Department.

16 . The federal inspector stated as follows:

"I think that the President of the JQB has provided [the applicant] with an opportun ity to leave judicial office voluntarily, at the start of this hearing when asking about any applications to be examined. However, [the applicant] consider s her work to [have been] perfect. Her decision in the case of Toliattiazot OJSC in relation to a bailiff ' s actions blocked the examination of another case. People fled justice and were then put on a wanted list in a criminal case relating to this company ... I consider that N. ' s application is timely and I ask you to grant it because people such as [the applicant] have no place in the judicial community."

17 . Mr Sh., acting President of the Samara Regional Court , stated as follows:

"It is a difficult situation to sort out. However, if there are manifestly unlawful decisions, such situations are not acceptable. As we have heard today, [the applicant] delivered knowingly unlawful decisions in the case of Toliattiazot OJSC ."

18 . The President of the Jud icial Council stated as follows:

"It has been established that [the applicant] is a competent judge but issued manifestly unlawful judgments. Thus , the matter requires high scrutiny and, if there is evidence, the application should be granted . "

19 . The deputy President of the Regional Judiciary Department stated as follows:

" The matter of the dismissal of judges has become acute recently. One must give principled consideration to that and get rid of judges who [have] manifestly violated the law."

20 . On the same date, 1 March 2006, t he Board disqualified the applicant from her post as commercial court judge, endorsing the factual assertions and legal grounds presented by the President of the Regional Commercial Court in his application. The Board held as follows:

"Having examined the written materials and having heard ... [the applicant], the federal inspector ... the Board accepts as established the indication that [the applicant] committed a disciplinary offence that entails the early termination of her judicial office."

21 . T he hearing record provided that the Board ' s decision was "amenable to appeal b efore the Supreme Court of Russia" within ten days of receiving a copy . It also appears that t he applicant was informed verbally that she could seek a review of the decision before the Supreme JQB .

22 . Relying on Article 27 of the Code of Civil Procedure, the applicant asked for clarification as to the judicial procedure for lodging an application for review, which, in her opinion, was to be examined by the Supreme Court of Russia.

23 . A regional Board official allegedly replied that she could seek a judicial review before the Samara Regional Court.

24 . In order to comply with the ten-day time-limit for appeal and before receiving a copy of the disqualification decision, the applicant applied to the Samara Regional Court.

25 . Thereafter, a judge of the Regional Court informed her that the Supreme Court of Russia had jurisdiction in the matter. However, she did not withdraw her application, considering that the Supreme Court would not process it because the time-limit had expired by that time. Besides, she expected that the Regional Court would, in any event, forward the application to the Supreme Court for examination , as required under Article 33 of the Code of Civil Procedure.

26 . On an unspecified date, the applicant received a copy of the disqualification decision, which indicated that it was amenable to review by the Supreme Court of Russia.

27 . T he case was examined by the Regional Court by J udge R., sitting as a single judge .

28 . The applicant argued, inter alia , as follows:

(i) She had been convicted of the disciplinary offence (and dismissed from her post as judge) on account of , inter alia , a " grave violation of the law" in the cases relating to Toliattiazot OJSC . This grave violation consisted of examining the company ' s applications. However, the company had been party to the enforcement proceedings: as clearly stated in the relevant earlier court decision and bailiffs ' orders, it was the debtor; it sought precisely to challenge this (allegedly wrongful) attribution of debt. The applicant requested that those documents be admitted to the case file and examined by the R egional C ourt.

(ii) The mere fact that certain procedural decisions had been quashed on appeal or cassation review could not serve as a sufficient basis for concluding that the judge had committed a " grave violation of the law" or delivered "manifestly unlawful decisions", and had thereby conducted herself in a biased manner.

(iii) The JQB had been unduly influenced by the unethical, emotionally charged and unsubstantiated, albeit particularly serious, assertions against the applicant accusing her , in substance, of criminal conduct. As clearly indicated in the JQB ' s decision, the opinions expressed by Mr N. and the federal inspector had been taken into account.

29 . The regional JQB submitted comments on the applicant ' s statement of appeal.

30 . On 28 April 2006 J udge R. of the Samara Regional Court held a hearing. After hearing the applicant and two members of the regional JQB and examin ing the available material, the judge upheld the disqualification decision . In particular, he made the following findings :

" As transpires from the verbatim record of the hearing on 1 March 2006 before the JQB, the material laid before the JQB and the material relating to the cases before the Commercial Court of the Samara Region, [the applicant] committed a grave violation of the law when dealing with the cases relating to Toliattiazot OJSC ...

The Regulations o f the J udici ary Q ualification s B oards do not enable a judge under review to put questions to invited people or members of the board ' s panel dealing with the case ... It was not against the Regulations and the Judicial Authorities Act to hear, after removing [the applicant] from the hearing room, the chief federal inspector for the Samara R egion, the acting president of the Samara Regional Court, that of the Samara Commercial Court or the Regional Judicial Council ...

Article 27 of the [ C ode of C ivil P rocedure] , which has been in force since 1 February 2003, provides for the right to challenge decisions taken by a J udicia ry Q ualification s B oard before the Supreme Court of Russia. Thus, the regional JQB was right to indicate in its decision that it was amenable to review by the Supreme Court. At the same time, the previously enacted Law of 14 March 2002 "On the Bodies of the Judicial Community" provided , as amended, for the right to challenge a regional JQB ' s decision before a regional court. That Act has not been amended. Thus, the court concludes that the applicant continued to have the right to challenge the JQB ' s decision before the Samara Regional Court."

31 . On 19 July 2006 the Supreme Court of R ussia upheld the above judgment , stating that the R egional C ourt had had jurisdiction "in view of the Law of 14 March 2002 and the established judicial practice".

32 . The applicant sought a supervisory review of the above court decisions. On 20 March 2007 a judge of the Supreme Court dismissed her application considering, inter alia , that she had been lawfully removed from the Board ' s hearing room before its deliberations. The judge also noted that, despite the procedure explained in the disqualification decision and before the Constitutional Court ' s decision of 2 F ebruary 2006 had become public, the applicant had voluntarily chosen to seek a judicial review before the Regional Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Status of a judge and r equirements relating to judicial office

33 . Pursuant to section 11 of the Judiciary Act of 1992 (Federal Law no. 3132-1 of 26 June 1992 "On the Status of Judges in the Russian Federation"), as in force at the time, judicial office of a federal judge was not limited in time (until attaining the age of 70), except for situations listed in that Act or other statutes.

34 . Pursuant to section 3 of the Jud iciary , a judge must strictly comply with the Constitution and any other statute, and avoid everything that could undermine the authority of the judiciary, a judge ' s dignity or cast doubt on his or her impartiality , fairness or objectivity.

35 . Pursuant to section 3 of the Code of Judicial Ethics , adopted on 2 December 2004 by the Sixth All-Russian Judicial Congress of Judges, a judge must always preserve his or her personal dignity, cherish his or her honour, and avoid any thing that could damage his or her reputation or cast doubt on his or her objectivity and impartiality in the administration of justice.

B . Disciplinary proceedings in respect of a judge

1. General provisions

36 . Under section 12 ( 1 ) of the Jud iciary Act of 1992, as in force at the material time, a disciplinary offence was defined as violation of the rules of the Jud iciary Act or the Code of Judicial Ethics adopted by the All-Russian Congress of Judges. A judge could be punished by a disciplinary penalty (a warning or early termination of judicial office). J udiciary Q ualification s B oard s had jurisdiction to examine such matter s and impose penalt ies .

37 . Article 305 of the Criminal Code punished the adoption of a knowingly wrongful ( заведомо неправосудное ) decision by a judge .

38 . Under section 11 of the Judicial Authorities Act, a regional J udiciary Q ualification s B oard is composed of two judges of a regional court, five judges of a regional commercial court, one judge of a garrison military court, three judges of a district court, one judge of a regional constitutional court, one justice of the peace, seven members of civil society and one representative of the President of the Russian Federation.

39 . Section 21 (6) of the Judicial Authorities Act of 2002 (Federal Law no. 30-FZ of 14 March 2002 "On the Bodies of the Judicial Community") provides that certain officials (such as presidents or deputy president s of courts, chief officers of the Judicial Department of the Supreme Court of Russia or its constituent bodies; presidents or deputy presidents of Judicial Councils, members of other JQBs) could express an opinion on the questions being discussed during hearings before a JQB.

40 . The J QB Regulations were adopted by the Supreme JQB on 15 July 2002 (in force until March 2007) . Section 3 of the Regulations provided that following a report of a matter by a JQB member, other members could ask him or her questions; a judge and other people having information relating to the matter would then be heard. Following an examination of the material, the JQB would hear the final remarks of the people participating in the hearing , who would thereafter be removed from the hearing room. Presidents or deputy presidents of courts would "express their opinions on the issues being discussed, prior to the JQB ' s deliberations". The JQB would deliberate in the absence of invited people and issue its decision immediately following its deliberation s . In addition, s ection 4 of the Regulations specifically concerned proceedings before a JQB relating to the dismissal of a judge. It read as follows:

"A judge has the right to have access to the material relating to an application for his dismissal, take notes in relation to that material and to make photocopies of it, submit to the JQB his or her observations or additional material, seek leave of the JQB for the participation of people having information in relation to the material.

The official who signed the application bears the burden of proving the disciplinary offence committed by a judge ...

All irremovable doubts related to proving the disciplinary offence should be interpreted in favour of the judge."

2. Judicial review

41 . Section 26 of the Judicial Authorities Act of 2002 read as follows at the material time :

" 2. The following decisions taken by the Supreme Judiciary Qualifications Board or regional Judiciary Qualifications Boards are amenable to review at the request of the person concerned within ten days of receiving a copy ... : a decision to suspend or terminate the judicial office of a judge , a decision to engage the disciplinary liability of a judge ...

If taken by the Supreme Judiciary Qualifications Board , such a decision may be challenged before the Supreme Court of Russia; if taken by a regional Judiciary Qualifications Board, it may be challenged before a regional court ...

3. Other decisions taken by Judiciary Qualifications Boards may be challenged following the same procedure , but only on procedural grounds."

In 2014 section 26 of the Judicial Authorities Act of 2002 was amended to exclude from a regional court ' s jurisdiction cases relating to the dismissal of a judge on account of a disciplinary offence. Such cases were reassigned to the Supreme Court of Russia acting as a first-instance court.

42 . Article 27 of t he Code of Civil Procedure provide d at the material time that the Supreme Court of Russia had jurisdiction, as a first-instance court, in cases concerning decisions to terminate the judicial office of a judge . According to the Constitutional Court (ruling no. 3-P of 28 February 2008), t he choice of Article 27 of the C ode of C ivil P rocedure for giving the Supreme Court of Russia exclusive jurisdiction in dealing with challenges against disqualification decisions constitutes an additional safeguard against using the related disciplinary proceedings to unlawfully exert pressure on a judge, with the aim of putting him or her in a dependent and subordinate position vis-à-vis other persons, including the president of the relevant or higher court .

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE 6 OF THE CONVENTION

43 . The applicant complained under Article 6 of the Convention that she had been removed from the JQB ' s hearing room , and that the disqualification decision and court decisions upholding it had not been properly reasoned and had not addressed her arguments.

44 . The applicant also alleged under Article 6 § 1 of the Convention that t he R egional C ourt had had no jurisdiction in relation to the disqualification decision and that, by implication, the Supreme Court of Russia could not lawfully act as a second-instance court in the case. She also alleged that the R egional C ourt (sitting as a first-instance court) had not been impartial and independent, and that the applicable legislation concerning disqualification proceedings did not meet the "quality of law" requirement under the Convention.

45 . The relevant part of Article 6 of the Convention reads as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law."

A. The parties ' submissions

1. The Government

46 . The Government submitted that the civil limb of Article 6 of the Convention was inapplicable to the proceedings against the applicant, which had concerned the termination of her judicial office.

47 . The Government submitted that the case against the applicant had been examined by a regional J u diciary Q ualification s B oard (JQB) , which was part of the framework of regional JQBs and the Supreme JQB that had been set in place under constitutional and ordinary statute and were aimed at protecting the interests of judges. The Government argued that out of twenty-one members only two judges had been from the Samara Regional Court, which in the present case had acted as a first-instance court against the disqualification decision. The acting president of the Samara Regional Court had not expressed an opinion on the applicant ' s disqualification.

48 . The procedure before a regional JQB was prescribed by a federal statute and the Regulations adopted by the Supreme JQB on 15 July 2002 (see paragraph 40 above).

49 . It had been lawful to hear the President of the Commercial Court, the federal inspector and other officials, without the applicant being present in the room. The disqualification decision had only been based on the information mentioned in the request made by the President of the Commercial Court.

50 . The Government argued that prior to the publication of the Constitutional Court ' s decision of 2 February 2006, which had confirmed the exclusive competence of the Supreme Court of Russia, it had been lawful to apply the then prevailing approach , under which a regional court had jurisdiction in respect of a disqualification decision issued by a regional JQB. Referring to three procedural orders by which the Su preme Court had refused in 2002 and 20 03 to deal, at first instance, with challenges against JQBs ' decisions, the Government affirmed that those decisions confirmed the Supreme Court ' s lack of jurisdiction. Prior to 2005 such decisions had been published (on the Supreme Court ' s website) sporadically; since 2005 all rulings by the Supreme Court had been published on the website.

2. The applicant

51 . The applicant submitted that the factual allegations against her fell within the scope of both the disciplinary rules (paragraph s 34 - 36 above) and criminal law (paragraph 37 above) , namely prosecution in relation to adopting a knowingly unlawful court decision. The wording used in the application for her disqualification, the Board ' s decision and various opinions expressed during the hearing ( paragraphs 11 , 12 and 16 - 19 above ) had consistently referred to "manifest" violations of the law or "manifestly" unlawful court decisions, which was in substance the same as a "knowingly" unlawful criminal decision under the Criminal Code.

52 . The applicant also submitted that after she had been removed from the hearing room in compliance with the requirements of section 3 of the Regulations, four high-ranking officials had been given the opportunity to express their "opinions on the matters being discussed" , as was allowed by the same section 3 of the Regulations (see paragraph 40 above) . Even judging by their summary in the hearing record, all four opinions had been manifestly against her and in favour of the application for her disqualification. She had not been made aware of those opinions and could not reply to them prior to the disqualification decision being issued. Even accepting as established the assertion of the domestic courts and the Government that the disqualification decision had not been based on those adverse opinions and that those opinions had not been held by the JQB against her in any manner, this did not remove the violation of Article 6 of the Convention , since under the Court ' s case-law she should have been made aware of their opinions and afforded the opportunity to react to them, irrespective of any potential or actual weight they could be or had actually been given by the courts in the decision .

53 . The applicant had made detailed written submissions, refuting one by one the various accusation s put forward against her in the application submitted to the JQB. However, neither the JQB ' s decision nor the first - instance judgment by the R egional C ourt had contained any assessment, or even a summary, of her arguments. The Supreme Court of Russia, sitting as an appellate court, had merely endorsed the JQB ' s decision and the first-instance judgment.

54 . Acting as an appellate court , a chamber of the Supreme Court could not remedy and had not remedied the violation since it had had a limited scope of jurisdiction relating to questions of fact and law. In any event, by implication, the chamber had not been "established by law" since the case should have been examined by the Cassation Chamber of the Supreme Court.

55 . The applicant argued that the Samara Regional Court, that is , the composition that had examined her case as a first-instance court on judicial review ( judge R., sitting as a single judge ) , had not been an "independent and impartial tribunal". It had had to deal with a decision of the JQB taken following an opinion expressed by the (acting) President of the R egional C ourt during the hearing before the JQB. In fact, Mr Sh., acting President of the Regional Court , had stated at that hearing that the applicant had issued manifestly unlawful decisions (see paragraph 16 above). Judge R. could not but be influenced by such an assessment given by the President of the court. Furthermore, the regional JQB had wide powers vis-à-vis regional judge s and this was precisely the rationale for later moving the judicial review of regional JQBs ' decisions from regional court s up to the Supreme Court.

B. The Court ' s assessment

1. Admissibility

56 . The impugned proceedings arose as a result of an application by the president of a court imputing to the applicant various violations of the law and her duties under the Judicial Ethics Code (paragraphs 34 - 36 above). The applicant was accused of a disciplinary offence and found guilty of it by the regional JQB. This finding entailed a penalty consisting of the termination of her judicial office as a judge of the Commercial Court of the Samara Region.

(a) Criminal limb

57 . The Court notes that p ossessing a special status, the applicant was punished for failure to comply with her professional duties - that is, for an offence falling within the ambit of the disciplinary law (see paragraph 36 above; see , in a comparable context, Oleksandr Volkov v. Ukraine , no. 21722/11 , § 93, ECHR 2013). The sanction imposed on the applicant was a classic disciplinary measure for professional misconduct and, in terms of domestic law, it was separate from criminal-law proceedings, for instance on account of the criminal offence of the adoption of a knowingly wrongful decision by a judge (see Article 305 of the Criminal Code) (see paragraph 37 above) .

58 . The Court concludes that the criminal limb of Article 6 was inapplicable.

(b) Civil limb

59 . It has not been argued by the parties that the impugned proceedings "determined" the applicant ' s "civil obligations".

60 . As to a "civil right", t he Court refers to the general principles summarised by the Court in Denisov v. Ukraine [GC] , no. 76639/11, §§ 44 - 46 , 25 September 2018 .

61 . U nder Russian law the applicant had a right to serve a term of office until such time as it expired (in particular, on account of attaining the maximum statutory age of 70) , or until her judicial mandate came to an end (see paragraphs 7 , 33 and 36 above) . The JQB ' s decision entailed the termination of her judicial office as a judge of the Commercial Court of the Samara Region. Thereby her "right" was "determined" within the meaning of Article 6 § 1 of the Convention . T h is "right" was "civil" within the autonomous meaning of Article 6 § 1, since Russian law did not exclude access to a court for the post or category of staff in question , so it was open to the applicant under Russian law to seek a judicial review of the disqualification decision (see paragraph 41 above) .

62 . It follows that the civil limb of Article 6 of the Convention was applicable to the disciplinary proceedings against the applicant .

63 . The Court notes that t h e applicant ' s complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2 . Merits

64 . T he Court observes at the outset that the applicant ' s case was examined and decided by a regional Judiciary Qualifications Board. T he parties agree that the JQB is a non-judicial body. The Court accept s this and considers it unnecessary to examine this issue further.

65 . The Court will focus on t he complaint alleging that the Regional Court lacked independence and impartiality (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13and 2 others, § 134 , 6 November 2018) .

66 . As to the requirement of an "independent and impartial tribunal", the Court refers to the general principles summarised in Denisov , cited above, §§ 60-65.

67 . The applicant argued that the proceedings before the Samara Regional Court had not been carried out by an "independent and impartial tribunal" within the meaning of Article 6 § 1 of the Convention (see paragraph 55 above). It is noted that t he Board ' s decision to terminate the applicant ' s judicial office was reviewed by a court of general jurisdiction, which did not form part of the system of commercial courts. The case was examined by a single-judge formation, Judge R., who had not been previously involved in the matter in any direct manner and had no connection to Mr N., the President of the Commercial Court of the Samara Region who had initiated the disciplinary proceedings against the applicant.

68 . Firstly, t he Court has taken note of the applicant ' s submission that the regional Board was competent to deal with a variety of issues that affected judges in the same region, including judges of the Regional Court. Those judges could also be the subject of disciplinary proceedings before the Board. However, u nder the Court ' s case-law, the fact that the regional judges were subject to disciplinary law and were bound by rules of judicial discipline and ethics is not in itself a reason to put in doubt their independence and impartiality in relation to the authority empowered to implement disciplinary rules (see Denisov , cited above, § 79) . The question of compliance with the fundamental guarantees of independence and impartiality may arise, however, if the structure and functioning of the disciplinary body raise serious issues in this regard (ibid). The applicant has not substantiated any such issues about the structure or functioning of the regional JQB (see, by contrast, Oleksandr Volkov , cited above, §§ 117-18 and 130) . The Court will thus assess the remaining arguments raised by the applicant.

69 . T he Court notes in this connection that it was open to the president or deputy president of a regional court to make a statement at a Board ' s hearing (see paragraph 39 and 40 above). As a matter of fact, the acting President of the Samara Regional Court , Mr Sh., did make what could be perceived as, at the very least, an adverse statement in respect of the applicant . In the Court ' s view, this discloses legitimate grounds to doubt whether a judge of the same regional court was in a position to del iver an impartial judgment, given the acting President ' s statement that the applicant "had delivered knowingly unlawful decisions in the case of Toliattiazot OJSC" (see paragraph 17 above ; in this respect, compare Igor Kabanov v. Russia , no. 8921/05 , §§ 42-44, 3 February 2011, in which the Court found a violation of the requirement of objective impartiality where the president of a regional court had not adjudicated in the applicant ' s case but had initiated disciplinary proceedings against him and, in addition to his organisational and managerial functions, had also taken a decision to distribute the case to the judge who then examined the case).

70 . In any event, with reference to the legislation as such, shortly after the events in the present case the Constitutional Court had occasion to clarify (see paragraph 42 above) that the choice to give the Supreme Court of Russia the exclusive jurisdiction in dealing with challenges against (regional) disqualification decisions constitutes an additional safeguard against using the related disciplinary proceedings for unlawfully exerting pressure on a judge, with the aim of putting him or her in a dependent and subordinate position vis-à-vis other persons, including the president of the relevant court. While the above clarifications were given after the events in the present case, they assist the understanding of the domestic law at the material time and disclose the issue of a potentially "dependent and subordinate" position that a regional judge might have vis-à-vis the (acting) President of a regional court (compare Salov v. Ukraine , no. 65518/01, §§ 83-86, ECHR 2005 - VIII (extracts)) .

71 . T he Court accepts that there were legitimate grounds to doubt whether a judge of the Samara Regional Court was in a position to act as an impartial and independent tribunal against the decision taken by the regional Judiciary Qualifications Board.

72 . In so far as account must be taken of the entirety of the proceedings conducted in the domestic legal order, a higher or the highest court may, in some circumstances, make reparation for an initial violation of the Convention (see De Haan v. the Netherlands , 26 August 1997, § 54, Reports of Judgments and Decisions 1997 - IV , and Alenka Pečnik v. Slovenia , no. 44901/05 , § 43, 27 September 2012 ). Even assuming that the Supreme Court of Russia, sitting as a second-instance court, had the power to quash the first-instance judgment on the ground that the objective impartiality requirement had been violated, and , as it might be appropriate in the specific context of the present case, to proceed with a complete rehearing of the case itself ( compare Kyprianou v. Cyprus [GC], no. 73797/01, § 134, ECHR 2005 - XIII, and Henryk Urban and Ryszard Urban v. Poland , no. 23614/08, § 54, 30 November 2010) , the appeal court ' s reply to the matter was limited to merely stating that the Regional Court had had jurisdiction "in view of the Law of 14 March 2002 and the established judicial practice" when upholding its judgment (see paragraph 31 above).

73 . There has therefore been a violation of Article 6 § 1 of the Convention as regards the requirement of an independent and impartial tribunal .

74 . Taking the proceedings as a whole and i n view of the nature and scope of the Court ' s above findings relating to the breach of the requirement of objective impartiality at the judicial stage of those proceedings , it is not necessary to deal separately with the applicant ' s remaining arguments relating to the non-judicial and judicial stages of the proceedings.

II . ALLEGED VIOLATION S OF ARTICLE S 8 AND 13 OF THE CONVENTION

75 . The applicant alleged that she had been subjected to covert operational-search measures in breach of Article 8 of the Convention, particular ly in that her telephone communications had been intercepted and she had been subject ed to "surveillance" measures . She contended, in the alternative, that the regime established under the applicable legislation relating to interception of telephone communications and "surveillance" had not complied with the requirements of Article 8 § 2 of the Convention. In particular, she argued that the legislation did not meet the "quality of law" requirement and did not contain sufficient guarantees to satisfy the requirements of Article 8 of the Convention , which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

76 . The applicant also argued that she had had no effective remedies for the above grievances, in breach of Article 13 of the Convention , which reads as follows:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

77 . R elying on various statements made by the public official s during the disqualification case, the applicant alleged that her telephone conversations had been intercepted by the authorities and that she had been subject ed to covert ( visual ) surveillance measures . The applicant made another (alternative) complaint , arguing that there had been an interference with her rights as a result of the mere existence of legislation permitting covert surveillance measures, including the covert interception of telephone communications, and a risk of being subjected to interception measures.

78 . The Court notes that t he applicant became aware of the "interference" when she had access to the written record of the hearing before the JQB, that is in or around February 2006. The JQB refused to delve into the matter (see paragraph 12 above). It does not appear from the available material that she subsequently brought the matter before any public authority, for instance with the aim of ascertaining the relevant factual or legal elements pertaining to the "interference". In particular, it has not been submitted that she made any argument to this effect in the course of the judicial review proceedings agains t the disqualification decision, or that this course of action had any prospect of success ( compare Akhlyustin v. Russia , no. 21200/05 , § 28, 7 November 2017, and Zubkov and Others v. Russia , nos. 29431/05 and 2 others, §§ 102- 10 , 7 November 2017 ). Thus, by raising the complaint under Article 8 of the Convention before the Court in January 2007 , the applicant has not complied with the six-month rule. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

79 . In view of the above finding , her related complaint under Article 13 of the Convention has also been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

I II . OTHER PROVISIONS OF THE CONVENTION

80 . The applicant complained that her dismissal had violated Article 10 of the Convention. In her observations in 2011, she withdrew this complaint. Referring to A rticle 37 § 1 (a) of the Convention , t he Court considers that it is appropriate to strike out this part of the applica tion .

I V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

81 . 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

82 . The applicant claimed 1,000 euros (EUR) in respect of non - pecuniary damage in relation to Article 6 of the Convention.

83 . The Government contested th is claim .

84 . T he Court awards the applicant the amount claimed , plus any tax that may be chargeable.

B. Costs and expenses

85 . The applicant also claimed EUR 5,825 for the legal costs incurred before the Court and EUR 163 for postal expenses (to be paid to a non - governmental organisation).

86 . The Government contested the se claims .

87 . 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 , the above criteria and in so far as the sums were related to the findings of violation by the Court, it considers it reasonable to award the sum of EUR 2,600 , plus any tax that may be chargeable to the applicant, covering costs under all heads .

C. Default interest

88 . The Court considers it appropriate that the default interest rate 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,

1. Decides to strike out the complaint under Article 10 of the Convention;

2. Declares the complaints under Article 6 of the Convention admissible and the remainder of the application inadmissible;

3 . Holds that there has been a violation of Article 6 § 1 of the Convention on account of the requirements of objective impartiality;

4 . Holds that there is no need to examine the remaining complaint s under Article 6 § 1 of the Convention;

5 . Holds

(a) that the respondent State is to pay the applicant, within three months , the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,000 ( one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,600 ( two thousand six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

6 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 9 July 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Alena Poláčková
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> KOSTYUCHENKO v. RUSSIA - 6991/07 (Judgment : Article 6 - Right to a fair trial : Third Section Committee) [2019] ECHR 544 (09 July 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/544.html Cite as: CE:ECHR:2019:0709JUD000699107, [2019] ECHR 544, ECLI:CE:ECHR:2019:0709JUD000699107