CASE OF SHKITSKIY AND VODORATSKAYA v. RUSSIA

THIRD SECTION

CASE OF SHKITSKIY AND VODORATSKAYA v. RUSSIA

(Applications nos. 27863/12 and 66513/12)

JUDGMENT

STRASBOURG

16 October 2018

This judgment is final but it may be subject to editorial revision.

In the case of Shkitskiy and Vodoratskaya v. Russia,

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

Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 25 September 2018,

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

PROCEDURE

1. The case originated in two applications (nos. 27863/12 and 66513/12) 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 two Russian nationals, Mr Aleksey Vladilenovich Shkitskiy and Ms Veronika Igorevna Vodoratskaya (“the applicants”), on 31 March and 17 September 2012 respectively.

2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 15 November 2016 and 20 September 2017 the Government were informed of the complaints concerning the applicants’ disbarment and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The first applicant was born in 1975 and lives in Moscow. The second applicant was born in 1960 and lives in Irkutsk.

A. Elections in the Bar

5. On 20 February 2009, the first applicant, a lawyer at the time, was elected to be a member of the council of the Irkutsk Regional Bar (“the Bar”).

6. On 24 October 2010 the members of the council conducted elections for the presidency of the Bar. Five members of the Council voted for S. and the other five voted for the second applicant.

7. On 25 November 2010 the second applicant issued an order appointing herself acting President of the Bar.

8. On an unspecified date a group of lawyers applied to the Commercial Court of the Irkutsk Region challenging the second applicant’s appointment. The court granted their request to enjoin the second applicant from fulfilling the functions of acting president pending the outcome of the proceedings.

9. On 19 January 2012 the Commercial Court discontinued the proceedings. The final decision on the matter was taken by the Supreme Commercial Court on 26 September 2012.

B. Complaints lodged by the applicants

10. On 11 February, 2 March and 5 April 2011 several members of the Bar, including the applicants, lodged complaints with the President of the Commercial Court of the Irkutsk Region, to the Supreme Commercial Court of the Russian Federation and to the Supreme Judicial Qualifications Board, alleging that Judge R. had acted in contravention of the applicable laws on jurisdiction when she had accepted the claims concerning the second applicant’s appointment to the office of President of the Bar for consideration. They further claimed that (1) S. had announced in public that his opponents in the council of the Bar would be disbarred and that he would organise a “red terror” in response to the “orange revolution”; (2) S.’s ultimate goal had been to get rid of his opponents in the Council of the Bar through rotation and disbarment; (3) S. had had an extra‑professional relationship with the Deputy President of the Regional Commercial Court, who had been instrumental in ensuring a favourable outcome in the proceedings against the second applicant’s appointment; (4) through his personal connections with the Deputy President of the Regional Commercial Court, S. had obtained an injunction against the second applicant and ensured that a group of bailiffs had been present at the Bar’s conference in order to put pressure on the participants and his opponents.

11. On an unspecified date in July 2011 the lawyers posted their complaints on the website of the President of the Russian Federation. They sent a copy of their complaint to the President of the Supreme Commercial Court and to the Public Anticorruption Committee.

12. On 18 July 2011 the First Deputy of the President of the Regional Commercial Court informed the plaintiffs that their allegations had not been confirmed by the conducted investigation.

13. On 27 July 2011 the President of the Regional Commercial Court forwarded a copy of the lawyers’ complaint to the Bar and the First Vice‑President of the Bar instituted disciplinary proceedings against the applicants.

C. The first applicant’s disbarment

14. On 31 October 2011 the council of the Bar disbarred the first applicant. The council considered that (1) the letters sent by the group of the lawyers to the Judicial Qualifications Board and the President of the Commercial Court had not been a correct or permissible conduct in response to the actions of the judges of the Commercial Court; (2) the complaints had contained untrue allegations damaging to the reputation and goodwill of Judges B. and R., and S., a lawyer; (3) the first applicant had been disrespectful towards them. The Council concluded that (1) the first applicant had violated the relevant legislation and the Code of Professional Conduct for Lawyers (Кодекс профессиональной этики адвоката); (2) the dissemination of information damaging the reputation and goodwill of judges and lawyers was incompatible with membership of the Bar; (3) the first applicant’s conduct had disparaged the Bar and its members.

15. On 8 December 2011 the Kirovskiy District Court of Irkutsk dismissed a complaint lodged by the first applicant against the decision of 31 October 2011.

16. On 11 March 2012 the Irkutsk Regional Court upheld the judgment of 8 December 2011 on appeal.

D. The second applicant’s disbarment

17. On 16 December 2011 the council of the Bar disbarred the second applicant. The reasons underlying the council’s decision were identical to the one used in the first applicant’s case.

18. On 27 December 2011 the Kirovskiy District Court of Irkutsk dismissed a complaint lodged by the second applicant against the decision of 16 December 2011.

19. On 19 April 2012 the Irkutsk Regional Court upheld the judgment of 27 December 2011 on appeal.

II. RELEVANT DOMESTIC LAW

A. Bar Act

20. Pursuant to the Bar Act (Об адвокатской деятельности и адвокатуре в Российской Федерации) (Article 7 § 1 (4)), a lawyer must abide by the Code of Professional Conduct for Lawyers and the decisions of the Bar.

B. Lawyers’ disciplinary liability

21. Article 18 § 1 of the Code of Professional Conduct for Lawyers provides that a lawyer may be subject to disciplinary proceedings for a failure to abide by legislation concerning legal-professional activities and legal representation and for failure to abide by the Code itself. Any impropriety discrediting a lawyer’s professional integrity or the legal profession, a breach of the duty of care vis-à-vis his or her client, or a failure to abide by the decisions of the qualifications committee and the council of the lawyers’ chamber gives rise to disciplinary liability (Article 19 § 1).

22. The disciplinary sanctions available are: reprimand; warning; disbarment; or other sanctions as determined by the conference of the lawyers’ chamber (Article 18 § 2).

THE LAW

I. JOINDER OF THE APPLICATIONS

23. In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

24. The applicants complained that they had been disbarred for having expressed their opinion. They relied on Article 10 of the Convention, which, in so far as relevant, reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

25. The Government contested that argument. They submitted that the interference with the applicants’ rights had been in compliance with the Convention provisions. In particular, they pointed out that the applicants’ attacks had been aimed at two judges of the Regional Commercial Court and, given the special role of the judiciary in society, it had been necessary for the State to protect them. On the other hand, the applicants had not been journalists. Nor had they acted as private persons. The applicants had been members of the Bar and their status had imposed certain restrictions on their conduct. The disbarment proceedings had been carried out in accordance with law. The national courts had thoroughly examined the applicants’ argument and had established that their conduct had been incompatible with Bar membership. The complaints lodged by the applicants had contained rude and indiscreet expressions. The allegations that the Deputy President of the Regional Commercial Court and the lawyer S. had had an extra‑professional relationship had been unsubstantiated and false and had demonstrated disrespect towards the judiciary. The interference with the applicants’ rights had pursued a legitimate aim of maintaining the authority and impartiality of the judiciary. Lastly, the Government submitted that interference with the applicants’ rights had been proportionate to the legitimate aim pursued. The applicants had had their own agenda of promoting their supporter to the position of President of the Bar. They had attempted to exert undue pressure on the judiciary and the then President of the Bar. The applicants’ effort had been aimed at disseminating untruths about the judges among the judicial authorities and beyond. The sanction imposed on the applicants should not be considered extremely harsh. Having made false accusations against the judges of the commercial court, the applicants had demonstrated blatant disrespect towards the judiciary. Accordingly their disbarment had been proportionate to their conduct. As regards the second applicant, the Government submitted that, having joined a bar in another region, she had continued to practise law. Accordingly, her disbarment had not prevented her from pursuing her professional activities.

26. The applicants maintained their complaint. The second applicant submitted that she had lodged the complaints after having been sued in the proceedings before the Commercial Court. The disciplinary proceedings instituted against her had not been impartial. The only purpose of her disbarment had been retaliation. The individuals who had sued her in court had later instituted disciplinary proceedings against her.

A. Admissibility

27. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

28. The Court accepts, and the Government do not argue otherwise, that the applicants’ disbarment constituted an interference with their right to freedom of expression as protected by Article 10 § 1 of the Convention. The Court further accepts that the interference was prescribed by law, notably the Bar Act and the Code of Professional Conduct for Lawyers. The Court also accepts the Government’s argument that the interference pursued the legitimate aim of maintaining the authority of the judiciary within the meaning of Article 10 § 2 of the Convention. Accordingly, it remains to be ascertained whether the interference was “necessary in a democratic society”.

29. The fundamental principles relating to this question are well established in the Court’s case-law and have been summarised, in particular, in the case of Kyprianou (see Kyprianou v. Cyprus [GC], no. 73797/01, §§ 170-74, ECHR 2005‑XIII).

30. The Court notes that, in an earlier case against Russia, it has already examined a situation in which a lawyer was disbarred after having made offensive remarks in respect of members of the judiciary (see Igor Kabanov v. Russia, no. 8921/05, §§ 53-59, 3 February 2011). In Igor Kabanov the Court found a violation of Article 10 of the Convention, noting that such a measure had been disproportionately severe and capable of having a chilling effect on the conduct of professional activities by lawyers.

31. Having examined the material submitted by the parties in the present case, the Court considers that the Government have not put forward any fact or arguments capable of persuading it to reach a different conclusion. It notes that the applicants were subjected to disciplinary liability for having made offensive comments in respect of the two judges of the Regional Commercial Court. The council of the Bar found the applicants’ behaviour to be incompatible with the Code of Professional Conduct for Lawyers and decided to disbar them. That decision was then upheld by the national courts at two levels of jurisdiction. In the Court’s view, the applicants’ disbarment, in the circumstances of the case, cannot but be regarded as a harsh sanction. The Court is not persuaded by the Government’s argument that it was commensurate with the seriousness of the applicants’ behaviour, considering the alternatives available (see paragraph 22 above). Neither the Bar nor the national judicial authorities assessed the adequacy of the disciplinary sanction imposed or furnished any reason justifying their decision to apply the heaviest penalty.

32. Regard being had to the above, the Court’ concludes that the domestic authorities failed to strike the right balance between the need to protect the authority of the judiciary and the need to protect the applicants’ right to freedom of expression. The disbarment was disproportionately severe for the applicants and was capable of having a chilling effect on the conduct by lawyers of their professional activities. There has been a violation of Article 10 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

33. 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.”

34. The first applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

A. Damage

35. The second applicant claimed just satisfaction in respect of non‑pecuniary damage, leaving the amount of the award to the Court’s discretion.

36. The Government considered that (1) the second applicant had made her claims in abstracto and had failed to substantiate them and (2) that no award should be made to her.

37. The Court observes that it has found a violation of the second applicant’s right to freedom of expression. It considers that her suffering and frustration cannot be compensated for by merely finding a violation. Making its assessment on an equitable basis, the Court awards the applicant 7,500 euros (EUR) in respect of non-pecuniary damage.

B. Costs and expenses

38. The second applicant did not submit claims for costs and expenses. Accordingly, the Court considers that there is no call to award her any sum on that account.

C. Default interest

39. 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 join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 10 of the Convention;

4. Holds

(a) that the respondent State is to pay the second 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 EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 16 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıBranko Lubarda
Deputy RegistrarPresident

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