KUDESHKINA v. RUSSIA (No. 2)

FIRST SECTION

DECISION

Application no. 28727/11
Olga Borisovna KUDESHKINA
against Russia (no. 2)

The European Court of Human Rights (First Section), sitting on 17 February 2015 as a Chamber composed of:

Isabelle Berro, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 10 September 2010,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the comments submitted by the International Commission of Jurists,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Olga Borisovna Kudeshkina, is a Russian national who was born in 1951 and lives in Moscow. She was represented before the Court by Ms K. Moskalenko, Ms A. Panicheva and Ms M. Voskobitova, lawyers practising in Strasbourg and Moscow.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

3. From 6 November 2000 onwards the applicant held judicial office at the Moscow City Court.

4. In December 2003 the applicant, in series of media interviews, accused high-ranking judicial officials of putting pressure on her in connection with a high-profile criminal case.

5. On 19 May 2004 the Judicial Qualifications Board of Moscow decided that the applicant’s statements had been insulting to the judiciary and had been defamatory as regards the individuals mentioned therein. It found that the applicant had thus committed a disciplinary offence and terminated her office as a judge.

6. On 8 October 2004 the Moscow City Court upheld the decision of the Judicial Qualifications Board of Moscow. It found that the applicant’s statements in the media had been false, unsubstantiated and damaging to the reputation of the judiciary and to the authority of all courts of law. It also established that the applicant had publicly expressed an opinion prejudicial to the outcome of a pending criminal case.

7. On 19 January 2005 the Supreme Court of the Russian Federation, ruling at final instance, upheld the judgment of 8 October 2004, having confirmed the earlier findings of the lower courts.

8. On 26 February 2009 the Court adopted a judgment in the case of Kudeshkina v. Russia, no. 29492/05, in which it found that the applicant’s dismissal from the judiciary had violated her right to the freedom of expression guaranteed by Article 10 of the Convention.

9. In its judgment, the Court examined the proceedings before the Judicial Qualifications Board of Moscow and the ensuing judicial review. It considered that nothing in the impugned interviews would have justified the authorities’ claims of disclosure of confidential information about the pending criminal case. Having noted that the applicant had publicly criticised the conduct of various officials, and had alleged that pressure on judges was common, the Court found that she had undoubtedly raised a very important matter of public interest which had to be open to free debate in a democratic society. It further found that her allegations had not been convincingly refuted in the domestic proceedings. Even if the applicant had allowed herself a certain degree of exaggeration and generalisation, the Court found that her statements had to be regarded as fair comment on a matter of great public importance (ibid., § 95).

10. The Court also found that the disciplinary procedure which imposed a sanction on the applicant had not complied with important procedural guarantees, in particular as regards the impartiality of the Moscow City Court, which had considered her appeal despite the fact that that court’s President was implicated in the statements (ibid., §§ 96-97). The Court finally observed that the manner in which the penalty had been imposed was capable of having a “chilling effect” on judges wishing to participate in public debate concerning the effectiveness of judicial institutions and held that it had been disproportionately severe.

11. The Court concluded that the domestic authorities had failed to strike a fair balance between the need to protect the authority of the judiciary and the protection of the reputation or rights of others, on the one hand, and the need to protect the applicant’s right to freedom of expression on the other.

12. The applicant was awarded 10,000 euros (EUR) in respect of non‑pecuniary damage. No award was made in respect of pecuniary damage because no claims had been made under this head, nor was an award made in respect of costs and expenses because they had not been substantiated.

13. On 14 September 2009, the Government’s request for the case to be referred to the Grand Chamber having been rejected, the judgment became final.

14. On 11 December 2009 the applicant lodged an application with the Moscow City Court, asking it to quash the decision of 8 October 2004. Relying on the Court’s judgment of 26 February 2009, she sought to have the proceedings concerning her dismissal reopened on the grounds of new or newly discovered circumstances and to have the case transferred to the Supreme Court for fresh examination. She argued that the Code of Civil Procedure, read in the light of the Code of Commercial Procedure, required a case to be reopened if the Strasbourg Court had found a violation of the Convention on account of domestic judicial decisions taken in a case. She claimed that the finding of a violation of Article 10 as a result of her dismissal from the judiciary constituted a newly discovered circumstance within the meaning of Russian procedural law and that it bound the authorities to reconsider the merits of her case.

15. On 18 December 2009 the Moscow City Court dismissed the applicant’s application. In so far as relevant, it found as follows:

“... in accordance with [Russian] procedural law, not [all] judgments [of the Court] finding a violation of the Convention provide grounds for the review of a judicial decision, but only a judgment finding a violation of the Convention in the course of the adjudication of a particular case.

The Presidium of the Supreme Court ... has clarified that a judgment of the [Court] finding a violation of the [Convention] that affects the legal standing of a citizen is considered as an independent basis for the review of the national court’s judgment on the matter in relation to which the violation of the Convention was found on the grounds of newly discovered circumstances.

In Recommendation No. R (2000) 2 of the Committee of Ministers ... it is also pointed out that the Contracting Parties are encouraged to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention.

It follows that ... the function of the court deciding on whether to reopen a case on the grounds of newly discovered circumstances is not limited to automatic quashing of the judgment with reference to the [Court’s] judgment, but involves the precise identification of the matter examined by the [Court] and its relation to the circumstances taking place in the course of the [domestic] adjudication of the case.

The reason for this is that, in accordance with the general principles set out in the Convention, the exercise of supranational control by the [Court] over [domestic] courts is not absolute, but is limited by the internationally recognised principle of respect for the autonomy of the national courts’ judicial decisions.

Accordingly, the [Court’s] finding of a violation of the Convention in relation to a particular applicant does not by itself constitute a basis for the review of a judgment taken by the national courts ...

If the [Court] finds a violation of [those] provisions of the Convention that guarantee the general principles of lawfulness in the course of adjudication by national courts, this may provide grounds for the review of domestic judicial decisions in accordance with the procedure provided by law, unless an obstacle of an objective nature prevents it.

If, on the other hand, the [Court] finds a violation of the Convention unrelated to the fundamental guarantees of fair trial ... it may not give grounds for review ... under any rules of procedure because the [Court’s finding of a violation] has been [sufficiently] compensated by the mere fact of [its] acknowledgment or by the payment by the State of the just satisfaction award ...

The right to a fair hearing is guaranteed by Article 6 of the Convention.

However, there is no ... indication that the [Court] declared the [applicant’s] complaint admissible under Article 6 of the Convention.

It is clear from the [Court’s] judgment of 26 February 2009 that the question of [whether] the judicial decisions taken in [her] civil case complied with Article 6 was not originally the subject of the Court’s examination.

... [S]he complained ... under Article 10 ... and it was a violation of Article 10, not Article 6, which the [Court] found.

The violation [found by the Court] ... was unconnected with the fundamental guarantees of fair hearing in civil proceedings.

... [T]he conclusions made by the [Court] in paragraph 97 of the judgment ... are general statements concerning [the applicant’s] freedom of expression and not her right to a fair hearing.

It follows that the [Court’s decision] in the above judgment cannot constitute by itself a ground for the reopening of civil proceedings ...

In [her] application, [the applicant] also claims that under Article 46 of the Convention the High Contracting Parties undertake to abide by final judgments of the Court in any case to which they are parties.

However, such reference to Article 46 of the Convention is incorrect because the review of national courts’ decisions on the grounds of newly discovered circumstances does not fall [within the mandatory conditions of enforceability] of the [Court’s] judgments.

The operative part of the judgment of 26 February 2009 ... contains no express or implicit indication that the [domestic decision] is subject to review.

However, it is the operative part [of the Court’s judgments] that binds the High Contracting Parties under Article 46 of the Convention.

Accordingly [the applicant] is not a priori entitled to seek the review of the above judicial decision on the grounds of newly discovered circumstances within the framework of the execution of the judgment of 26 February 2009.

...

... [The just satisfaction award of] 10,000 euros constitutes, under the [Court’s] case-law, exhaustive and sufficient just satisfaction ... for the violation found under Article 10 of the Convention because the applicant is not currently suffering, and cannot suffer, any negative effects resulting from the domestic judicial decision on her freedom of expression as defined in Article 10 of the Convention, and her right of freedom of expression is ... not limited at the moment.

...

The judgment of 26 February 2009 does not disclose the existence of any facts of legal significance which [the applicant] had not been aware of during the proceedings in this civil case.

The [Court’s] statements in the judgment as to whether the disciplinary penalty imposed on [the applicant] was an appropriate measure are generalisations of a hypothetical and subjective, discretionary nature; personal opinion; and a debating point. They therefore cannot, in view of the requirement of legal certainty, constitute by themselves grounds for the review of a judicial decision.

...

The [applicant’s] motion to have the case transferred to the Supreme Court for examination ... must be refused because ... the first-instance court declining its jurisdiction in favour of another court is not permitted by civil procedural law in respect of a case where a [final] judgment remains in force.

...

The reopening of the proceedings [in order] to review the judgment of the Moscow City Court of 8 October 2004 on the grounds of newly discovered circumstances and the transfer of the civil case to the Supreme Court of the Russian Federation for examination must be refused.

This decision is subject to appeal to the Supreme Court of the Russian Federation, to be filed within 10 days.”

16. The applicant filed an appeal to the Supreme Court, which it dismissed on 10 March 2010, upholding the Moscow City Court’s decision. The decision in so far as relevant read as follows:

“On 26 February 2009 the [Court] delivered the judgment in the case Kudeshkina v. Russia in which a violation of Article 10 of the Convention was found.

In [the applicant’s] view, the said judgment of the [Court] constitutes grounds for the review of the judicial decision taken in the case.

On 18 December 2009 the Moscow City Court rejected [the applicant’s] application for a review of [the same court’s] judgment of 8 October 2004 owing to newly discovered circumstances.

...

In accordance with Article 392 of the Code of Civil Procedure of the Russian Federation decisions and judgments that have entered into force may be reviewed owing to newly discovered circumstances.

The Moscow City Court accepted and examined the substance of [the applicant’s] application for review of [its] judgment of 8 October 2004 on the grounds of newly discovered circumstances.

By operation of Article 10 § 1 of the Convention, everyone has a right to express one’s opinion freely. This right includes the freedom to hold one’s opinion and the freedom to impart or receive information without interference by public authorities.

At the same time, the exercise of these freedoms, which carry responsibilities and obligations, may be subject to restrictions or sanctions which are prescribed by law and are necessary in a democratic society for maintaining the authority and impartiality of the judiciary.

Such restrictions are set out for judges in Article 3 of the Law on the Status of Judges in the Russian Federation and Section 2 of the Judicial Code of Conduct ...

...

As is evident from the file, the reasons for the disciplinary penalty being imposed on [the applicant] were her media statements ...

Acting in breach of the Judicial Code of Conduct she made public statements and comments about a criminal case, the judgment in which had not entered into force.

It should not be overlooked that [the applicant’s] statements about her position, about her attitude to judges and the justice system took place not during her examination of the criminal case but a long time after.

She [made these statements] during the election campaign ...

The first-instance court that decided to reject [her] application for review of [its] judgment of 8 October 2004 owing to newly discovered circumstances took these circumstances into account.

The judicial panel, considering the particular circumstances of the case, cannot accept the arguments put forward by the applicant in her appeal ... and finds that the Moscow City Court’s decision must remain unchanged.”

B. Relevant domestic law

17. The Code of Civil Procedure (in force at the material time) contains the following provisions regulating the reopening of civil proceedings after a final judgment on the grounds of newly discovered circumstances:

Article 392. Grounds for reconsideration

“1. [Judgments] which have come into force may be reconsidered on the basis of newly discovered circumstances.

2. The grounds for reconsideration ... shall be:

(1) significant circumstances that were unknown and could not have been known to the applicant;

...

(4) the annulment of ... a decision of the State authority ... that was the basis for the judgment or decision of the court ...”

Article 394. Lodging of an application

“... [An application for the reconsideration of a [judgment] owing to the discovery of new circumstances] may be lodged by the parties, the prosecutor, or by other persons who participated in the proceedings within three months of the discovery of the new circumstances.”

Article 397. Decision on the reconsideration of the case

“1. Following the examination of an application for the reconsideration of a [judgment] owing to the discovery of new circumstances, the court may either grant the application and quash the [judgment], or dismiss the application.

2. A court decision by which an application for the reconsideration of a [judgment] owing to the discovery of new circumstances is granted shall not be subject to appeal.

3. Provided that a [judgment] is quashed, the case shall be examined in accordance with the rules of this Code.”

18. By a ruling of 26 February 2010 the Constitutional Court of Russia indicated that Article 392 of the Code of Civil Procedure should be interpreted as, in principle, allowing the launching of proceedings to have a final judgment re-examined on account of newly discovered circumstances, such as the finding of a violation of the European Convention in a given case by the European Court of Human Rights. The Code of Civil Procedure was amended accordingly on 9 December 2010.

19. The Code of Commercial Procedure provides for the reopening of commercial proceedings on the basis of newly discovered circumstances. One of the grounds allowing such reopening is a finding by the European Court of Human Rights that there has been violation of the Convention in the examination of a particular case by a commercial court (Article 311 § 7).

C. Relevant Council of Europe instruments

20. Recommendation No. R (2000) 2 of the Committee of Ministers on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, adopted on 19 January 2000, encouraged the Contracting Parties “to examine their national legal systems with a view to ensuring that there exist adequate possibilities of re‑examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention, especially where: (i) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and (ii) the judgment of the Court leads to the conclusion that (a) the impugned domestic decision is on the merits contrary to the Convention, or (b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”

COMPLAINTS

21. The applicant complained under Article 10 in conjunction with Article 46 of the Convention that the domestic courts had refused to reopen the proceedings concerning her dismissal from the judiciary, in respect of which the Court had previously found a violation of Article 10, thus committing a new violation of her right to freedom of expression.

22. She also claimed that the same refusal had constituted a violation of Articles 8 and 13 of the Convention and of Article 1 of Protocol No. 1 to the Convention, in that it had prevented her from reinstatement in her professional post and from receiving a judicial salary and other benefits.

23. Finally, she complained under Article 34 of Convention of the Russian authorities’ failure to comply with the Court’s judgment in her favour.

THE LAW

24. The applicant complained that the domestic courts had refused to reconsider the decisions concerning her dismissal from the judiciary in fresh proceedings, despite the Court’s finding that they had been taken in violation of the applicant’s right to freedom of expression guaranteed by Article 10 of the Convention. She referred to Articles 10, 8, 13, 34 and 46 of the Convention and Article 1 of Protocol No. 1 to the Convention. These Articles provide as follows:

Article 10 (Freedom of expression)

“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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, 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.”

Article 8 (Right to respect for private and family life)

“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.”

Article 13 (Right to an effective remedy)

“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.”

Article 34 (Individual applications)

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

Article 46 (Binding force and execution of judgments)

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee.

4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”

Article 1 of Protocol No. 1 (Protection of property)

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties’ submissions

1. The Government

25. As a preliminary point, the Government objected to allowing a third party intervention by the International Commission of Jurists. They pointed out that the applicant’s representative, Ms Moskalenko, had previously collaborated with that NGO.

26. The Government objected to the admissibility of this application on the grounds of the applicant’s alleged failure to comply with the six-month time-limit for lodging an application, the incompatibility of the application ratione materiae with the provisions of the Convention and for being manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.

(a) Six months

27. The Government submitted that the time-limit for lodging this application had elapsed on 10 September 2010, that is to say six months from 10 March 2010, the date on which the Supreme Court had upheld the refusal to reopen the applicant’s case. They contended that although the application form was signed by the applicant on 10 September 2010, the Court could not have received it on the same date because of the time the post would have taken. She must have therefore missed the deadline by at least one day.

(b) Compatibility ratione materiae

28. The Government pointed out that according to Protocol 14 to the Convention the Court can interpret its own judgments and decide that a respondent State has not complied with them. However, these powers may only be exercised at the request of the Committee of Ministers. In the present case, no such request had been made by the Committee of Ministers.

29. They referred to judgments in which the Court had expressed doubt that Article 46 § 1 could be regarded as conferring upon an applicant a right that can be asserted in proceedings originating in an individual application (in particular, they relied upon Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 61-68 and §§78-98, ECHR 2009). The Court had consistently ruled that it does not have jurisdiction to verify, by reference to Article 46 § 1, whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments. They further considered that this case was not of a kind where the Court is called upon to examine whether measures taken by a respondent State in execution of one of its judgments are compatible with the substantive clauses of the Convention (referring to Akdivar and Others v. Turkey (Article 50), 1 April 1998, § 44, Reports of Judgments and Decisions 1998‑II; Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003-IV; Haase and Others v. Germany (dec.), no. 34499/04, 7 February 2008; Wasserman v. Russia (no. 2), no. 21071/05, § 31 in fine, 10 April 2008; Burdov v. Russia (no. 2), no. 33509/04, § 121, 15 January 2009; and Kafkaris v. Cyprus (no. 2) (dec.), no. 9644/09, 21 June 2011; making further reliance on the Commission decisions Times Newspapers Ltd. and Others v. the United Kingdom, no. 10243/83, 6 March 1985, DR 41, p. 123; Ruiz‑Mateos and Others v. Spain, no. 24469/94, 2 December 1994, DR 79‑B, p. 141; and Oberschlick v. Austria, nos. 19255/92 and 21655/93, 16 May 1995, DR 81‑A, p. 5). The new paragraphs 4 and 5, added to Article 46 by Article 16 of Protocol No. 14, also seemed to confirm their submissions.

30. The Government further expressed the view that the Court’s judgment of 26 February 2009 adopted in the case of Kudeshkina v. Russia, no. 29492/05, had been executed. However, even if it had not been executed it would have been for the Committee of Ministers to identify any problems and to seize the Court with a request for interpretation or to refer to it the question of whether the High Contracting Party had failed to abide by a final judgment of the Court, in accordance with Article 46 §§ 3 and 4 of the Convention. Applicants, for their part, have no power to launch such proceedings.

31. The Government contended that in the above-cited cases of Verein gegen Tierfabriken Schweiz (VgT), Kafkaris and also in Steck-Risch and Others v. Liechtenstein ((dec.), no. 29061/08, 11 May 2010) the supervision of the Committee of Ministers had been finished before the applicant’s new complaints had reached the Court. They considered it an important distinction with the present case, whereby Ms Kudeshkina’s present application had been lodged with the Court while the execution proceedings were pending before the Committee of Ministers. With reference to Lyons and Others v. the United Kingdom (dec.) (no. 15227/03, ECHR 2003-IX), they pointed out that the execution of a judgment is a matter of on-going discussion between the Committee of Ministers and the respondent Government, and that the Court cannot assume any role in this dialogue.

32. They considered, next, that there had been no new circumstances in the applicant’s case since the Court’s judgment of 26 February 2009, and that her present application was substantially the same as the previous one within the meaning of Article 35 § 2 (b) of the Convention. In particular, the refusal of the applicant’s application to reopen the case had not constituted fresh interference with her freedom of expression. On the contrary, the applicant had been able to give interviews and make public comments, and there had been no restrictions imposed on her in this respect. They listed eight examples dating from 2009-2011 of occasions on which the applicant had availed herself of this opportunity.

33. The Government contended that although under domestic law the Court’s judgment finding a violation of the Convention had constituted grounds for the reopening of proceedings owing to new circumstances, reopening was not an automatic right, and Ms Kudeshkina’s case had not been of a kind where reopening was necessary. In particular, there had been no extraordinary circumstances that would require quashing of the earlier decisions in the case. Furthermore, they claimed that no connection could be established between the application to reopen the applicant’s case and her taking up judicial office once more, because even if the case was reopened this by itself would not guarantee her reinstatement to judicial office. They also considered that this had not been one of the exceptional cases where the nature of the violation found left no real choice as to the measures required to remedy it and the Court would decide to indicate only one such measure (seeking to distinguish Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II).

34. They further alleged that the award of just satisfaction made in the judgment of 26 February 2009 (EUR 10,000) had been substantial and in any event bigger than in other cases of this category. It had therefore only been fair for the authorities to have assumed that no other measures needed to be taken in the applicant’s favour. Moreover, they suggested that the applicant’s reinstatement would impose an impossible or disproportionate burden on the authorities. They referred to Osman v. the United Kingdom (28 October 1998, § 116, Reports 1998‑VIII), and Appleby and Others v. the United Kingdom (no. 44306/98, § 40, ECHR 2003‑VI) in support of this statement.

35. Finally, they informed the Court of the general measures taken pursuant to the judgment in question. In particular, the Supreme Court of Russia and the Moscow City Court had been notified of the judgment and provided with its Russian translation. The Plenary of the Supreme Court had then issued an explanatory ruling on matters relating to the judicial protection of the honour and dignity of citizens, and of the business reputation of individuals and legal persons, apparently related to the facts underlying the applicant’s first case. In addition to that, the judgment had been published in two popular legal databases and in one official journal.

2. The applicant

(a) Six months

36. The applicant considered that she had lodged her application within the six-month time-limit. In particular, she contended that her application had been posted on 10 September 2010, the last day of the six-month limitation period provided for by Article 35 § 1 of the Convention, and this had been confirmed by a postal receipt. She contended that the six-month rule had required her to post her application on 10 September 2010 at the latest, which she had done.

(b) Compatibility ratione materiae

37. The applicant disputed the assertion that Protocol no. 14 had prevented the Court from exercising jurisdiction in the present case. She relied, in particular, on Emre v. Switzerland (no. 2) (no. 5056/10, 11 October 2011) and Ivanţoc and Others v. Moldova and Russia (no. 23687/05, 15 November 2011), cases which had been accepted by the Court owing to a new issue undecided by a previous judgment in each case. She also referred to the principle whereby it is for the Court to decide itself on the issue of its jurisdiction ratione materiae if that competence is called into question.

38. She further considered that her case fell within the category of cases where there existed a new issue which required a fresh judgment by the Court within the meaning of Verein gegen Tierfabriken Schweiz (VgT), cited above. The applicant referred to the decisions of the Moscow City Court and the Supreme Court and considered that they had contained a new evaluation of the matter relevant to Article 10 of the Convention. She complained that the reasoning in the aforementioned decisions had not corresponded to the letter or spirit of the Court’s judgment in her favour and by refusing to reopen the proceedings concerning her dismissal they had effectively denied her reinstatement. She argued that this had constituted a fresh punishment for her past media statements and asked the Court to find a violation of Article 10 on that count. In the alternative, she suggested that exclusion from a profession could constitute a lasting violation akin to that examined in Wasserman (cited above, §§ 34-35). In particular, she complained that the failure to reinstate her status as a judge had resulted in the loss of wages, pension and other benefits, thus aggravating the damage caused by the original decisions.

39. The applicant contended that at the time of her application for review of the judicial decisions owing to newly discovered circumstances Article 392 of the Code of Civil Procedure had not contained an express provision for the reopening of proceedings following the Court’s finding of a violation. By contrast, the Code of Commercial Procedure had contained such a provision which, she considered, should have applied by analogy. She also claimed that the Constitutional Court’s ruling of 26 February 2010 had compelled the authorities to grant her application for reopening.

40. The applicant further alleged that the obligation to reopen the case had existed irrespective of the nature of the violation in question. In particular, it was not limited to cases where a violation of the right to a fair hearing guaranteed by Article 6 of the Convention had been found. She relied on one example whereby the domestic courts had granted an application for reopening of proceedings made pursuant to the Court’s judgment in the case of Republican Party of Russia v. Russia (no. 12976/07, 12 April 2011), where a violation of Article 11 had been found.

41. Finally, she contended that the obligation to reopen the case had also entailed the obligation to reinstate her in the job, otherwise the objectives of the Court’s judgment of 26 February 2009 would not have been achieved. She considered, contrary to what the Government had claimed, that the violation of Article 10 found in her case had left the authorities no choice as to the measures to be taken, the margin of appreciation notwithstanding.

3. The third party intervener

42. On 20 December 2011 the President of the First Section granted leave, under Rule 44 § 3 of the Rules of Court, to the International Commission of Jurists to intervene as a third party in the Court’s proceedings and to make written submissions concerning this application.

43. In reply to the Government’s preliminary point contesting their standing as a third party (see paragraph 25 above), the International Commission of Jurists submitted that Ms Moskalenko was its member (Commissioner) and as such was not involved in operational decisions. The decision to intervene as a third party had been taken by its International Secretariat, who had also determined the content of their submissions, independently of the Commission or its Executive Committee.

44. As regards the admissibility of this application, the third party considered that it fell within the Court’s competence. They contended that the supervision by the Committee of Ministers of the execution of the Court’s previous judgment did not by itself restrict the jurisdiction of the Court. They pointed out that a new violation could occur during the implementation of the judgment and raise a new issue that would attract the jurisdiction of the Court. They referred to Verein gegen Tierfabriken Schweiz (VgT), Emre and Kafkaris, all cited above. Moreover, even if the Committee of Ministers had not finished, or had not even initiated its review, this was not an obstacle for the Court to assume jurisdiction (see Mehemi (no. 2) and Emre, both cited above).

45. They further submitted that if it was determined that the supervision of the Committee of Ministers required an applicant to wait until completion of that process before raising a new complaint, this waiting period should not lead to the inadmissibility of the case under the six-month rule.

46. They believed that the Court’s competence ratione materiae depended on whether the application contained relevant new information possibly entailing a fresh violation. In their view, new developments which could change the nature or quality of an applicant’s situation were capable of leading to a new violation of a substantive Convention right in conjunction with Article 46 of the Convention. They considered that a distinction could be made between cases where the original violation had been found in respect of Article 6 and those where the Court had established a violation of a substantive right, such as under Article 10. They claimed that the latter cases were more likely to result in a fresh violation if the authorities had refused to reopen the original proceedings following the Court’s finding of a violation.

47. Finally, they considered that failure to apply an effective means of restitution which was available in the national legal system could constitute a new violation of the Convention right at issue. In this case, the reopening of the proceedings would have been an important form of restitution.

B. The Court’s assessment

48. As a preliminary point, the Court takes cognisance of the Government’s objection to the third party intervention in this case by the International Commission of Jurists. Having regard to the information submitted by the Government and the reply of the third party, it discerns no obstacles to accepting the written submissions of the International Commission of Jurists in accordance with Article 36 of the Convention and Rule 44 of the Rules of Court.

49. Turning to the admissibility of this application, the Court will examine the Government’s objections concerning the alleged failure to comply with the six-month time-limit for lodging this application and its compatibility ratione materiae with the provisions of the Convention.

1. Six months

50. The Court observes that, in accordance with Rule 47 § 5 of the Rules of Court, as in force at the relevant time, the date of introduction of the application is as a general rule considered to be the date of the first communication from the applicant setting out, even summarily, the object of the application. The date of introduction was accordingly the date on which the first letter was written by the applicant or, where there was an undue delay between this date and the date on which the letter was posted, the Court could decide that the postage date should be considered to be the date of introduction (see Gaspari v. Slovenia, no. 21055/03, § 35, 21 July 2009; Calleja v. Malta (dec.), no. 75274/01, 18 March 2004; Arslan v. Turkey (dec.), no. 36747/02, ECHR 2002-X (extracts); and Andrushko v. Russia, no. 4260/04, § 32, 14 October 2010).

51. The final domestic decision in the present case was given on 10 March 2010. The applicant drafted her application form on 10 September 2010, as indicated on its last page, and posted it on the same date. The Court therefore accepts 10 September 2010 as the date of introduction of the application. It notes that the application was introduced within six months of the final judgment. For the above reasons, the Court dismisses the Government’s objection.

2. Compatibility ratione materiae

(a)  General principles

(i) Principles governing the execution of the Court’s judgments

52. The Court reiterates that findings of a violation in its judgments are in principle declaratory (see Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31; Lyons and Others, cited above; and Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004).

53. The Court has consistently emphasised that the question of compliance by the High Contracting Parties with the Court’s judgments falls outside its jurisdiction if it is not raised in the context of the “infringement procedure” provided for in Article 46 §§ 4 and 5 of the Convention (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 56, 18 October 2011, and Bochan v. Ukraine (no.2) [GC], no. 22251/08, § 33, 5 February 2015). It has therefore refused to examine complaints concerning the failure by States to execute its judgments, declaring such complaints inadmissible ratione materiae (see Franz Fischer v. Austria (dec.), no. 27569/02, ECHR 2003‑VI; Costică Moldovan and Others v. Romania (dec.), no. 8229/04 and other applications, 15 February 2011; and Egmez v. Cyprus (no. 2) (dec.); no 12214/07, §§ 48-51, 18 September 2012).

54. According to Article 46 of the Convention, a respondent State found to have breached the Convention or its Protocols is under an obligation to abide by the Court’s decisions in any case to which it is a party. In other words, a total or partial failure to execute a judgment of the Court can engage the State Party’s international responsibility. The State Party in question will be under an obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to take individual and, if appropriate, general measures in its domestic legal order to put an end to the violation found by the Court and to redress the effects. As regards the individual measures to be taken in response to a judgment, their primary aim is to achieve restitutio in integrum, that is to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see, among many other authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 11, Series A no. 85; Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330‑B; and Verein gegen Tierfabriken Schweiz (VgT), cited above, § 85).

55. The States should organise their legal systems and judicial procedures so that this result may be achieved (see Verein gegen Tierfabriken Schweiz (VgT), cited above, § 97, and Recommendation (2000) 2 of the Committee of Ministers). This reflects the principles of international law whereby a State responsible for a wrongful act is under an obligation to make restitution, consisting of restoring the situation that existed before the wrongful act was committed, provided that restitution is not “materially impossible” and “does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation” (Article 35 of the Articles of the International Law Commission on Responsibility of States for Internationally Wrongful Acts). In other words, while restitution is the rule, there may be circumstances in which the State responsible is exempted – fully or in part – from this obligation, provided that it can show that such circumstances obtain (see Verein gegen Tierfabriken Schweiz (VgT), cited above, § 86).

56. Under Article 46 § 2, the Committee of Ministers is vested with the powers to supervise the execution of the Court’s judgments and evaluate the measures taken by respondent States. It is for the Committee of Ministers to assess, in the light of the above principles of international law and the information provided by the respondent State, whether the latter has complied in good faith with its obligation to restore as far as possible the situation existing before the breach. While the respondent State in principle remains free to choose the means by which it will comply with this obligation, it is also for the Committee of Ministers to assess whether the means chosen are compatible with the conclusions set out in the Court’s judgment (see Scozzari and Giunta, v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Verein gegen Tierfabriken Schweiz (VgT), cited above, §§ 241-42; and Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 247-249, 25 April 2013).

57. With regard in particular to the reopening of proceedings, the Court clearly does not have jurisdiction to order such measures (see, among other authorities, Saïdi v. France, 20 September 1993, § 47, Series A no. 261-C, Pelladoah v. the Netherlands, 22 September 1994, § 44, Series A no. 297-B, and Verein gegen Tierfabriken Schweiz (VgT), cited above, §§ 241-42). However, where an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, the Court may indicate that a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010). This is in keeping with the guidelines of the Committee of Ministers, which in Recommendation R (2000) 2 called on the States Parties to the Convention to introduce mechanisms for re‑examining the case and reopening the proceedings at domestic level, finding that in certain circumstances such measures represented “the most efficient, if not the only, means of achieving restitutio in integrum”. Many Member States of the Council of Europe have put in place domestic mechanisms providing for the possibility to request review of civil cases terminated by a final judicial decision on the basis of a finding of a violation of the Convention by the Court (see the summary of comparative survey of national legislation and practice in thirty-eight Member States set out in Bochan (no. 2), cited above, § 26).

58. In certain other situations, the Court can also exceptionally indicate the specific remedy or other measure to be taken by the respondent State (see, for instance, Assanidze, cited above, point 14 of the operative part of the judgment, ECHR 2004-II, Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005‑IX; and Oleksandr Volkov v. Ukraine, no. 21722/11, § 208, ECHR 2013). Whenever the Court takes this adjudicative approach, it does so with due respect for the Convention organs’ respective functions: it falls to the Committee of Ministers to evaluate the implementation of individual and general measures under Article 46 § 2 of the Convention (see Burdov, cited above, § 126; Suljagić v. Bosnia and Herzegovina, no. 27912/02, § 61, 3 November 2009; Greens and M.T. v. the United Kingdom, nos. 60041/08 and 60054/08, § 107, 23 November 2010; Egmez, cited above, § 49, and Bochan (no. 2), cited above, § 34).

(ii) Principles governing the Court’s competence to examine a new issue undecided by the previous judgment

59. The Committee of Ministers’ role in the sphere of execution of the Court’s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment. Measures taken by a respondent State to remedy a violation found by the Court which raise a new issue undecided by the original judgment fall within the Court’s jurisdiction and, as such, form the subject of a new application that may be dealt with by the Court (see Liu v. Russia (no. 2), no. 29156/09, 26 July 2011; Emre, cited above, Egmez, cited above, § 52, and Bochan (no. 2), cited above, § 36; see also Mehemi, cited above, § 43, with references to Pailot v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; Rando v. Italy, no. 38498/97, § 17, 15 February 2000). In so far as the fresh applicant raises a new issue it is immaterial whether the execution proceedings in the previous case are pending or terminated by the Committee of Ministers.

60. Thus, for example, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Lyons and Others, cited above, and also Hertel v. Switzerland (dec.), no. 3440/99, ECHR 2002-I).

61. Similarly, in Emre, cited above, the Court found that a new domestic judgment given following the reopening of the case, and in which the domestic court had proceeded to carry out a new balancing of interests, constituted a new issue. It also observed in this respect that the execution procedure before the Committee of Ministers had not yet commenced.

62. A new Convention issue may also arise in the specific context of a continuing violation of a Convention right. Following the adoption of a judgment in which the Court has found a violation of a Convention right during a certain period of time, it is not unusual for the Court to examine a second application concerning a violation of that right in the subsequent period (see, amongst others, Wasserman and Ivanţoc and Others, both cited above).

63. The Court has also found that in certain circumstances a new issue arose from the fact that a domestic court had dismissed an application to reopen proceedings following the Court’s judgment, in particular where the fresh complaint concerns the alleged procedural flaw in the examination of the request for reopening, and not the outcome of those proceedings (for example, in the examination of an appeal in the light of exceptional circumstances, see Bochan (no. 2), cited above, §§ 36-39). It is clear from the Court’s case-law that the determination of the existence of a “new issue” very much depends on the specific circumstances of a given case (ibid., §§ 35-36).

64. So, for instance, in Verein gegen Tierfabriken Schweiz (VgT), cited above, the Grand Chamber considered the decision of the Swiss Federal Court to dismiss the applicant’s application for reopening of the proceedings following the Court’s finding of a breach of Article 10 to be capable of giving rise to a fresh violation of Article 10. In coming to that conclusion, the Court found that when dismissing the application to reopen the proceedings and to allow the applicant to broadcast the commercial in question, the Federal Court had mainly relied on new grounds. It pointed out that the first refusal had been based on the statutory prohibition of political advertising, whereas the second one had relied on the assumption that the original commercial would be out of date almost eight years after the initial attempt to broadcast it (ibid., § 65). In addition, the Court observed that the Committee of Ministers had ended its supervision of the execution of the Court’s previous judgment by adopting a Resolution in which it had relied on the fact that the applicant was entitled to seek the revision of the impugned judgment of the Swiss Federal Court. The Court therefore considered itself competent ratione materiae to examine the new application (ibid., §§ 25, 67-68).

65. Complaints about the domestic courts’ failure to reopen the proceedings were, however, dismissed in the cases of Schelling v. Austria (no. 2) ((dec.), no. 46128/07, 16 September 2010) and Steck‑Risch and Others, cited above, as the Court considered that on the facts, the decisions of the domestic courts refusing the applications for reopening were not based on or connected with relevant new grounds capable of giving rise to a fresh violation of the Convention. Further, in Steck-Risch and Others, cited above, the Court observed that the Committee of Ministers had ended its supervision of the execution of the Court’s previous judgment prior to the domestic court’s refusal to reopen the proceedings and without relying on the fact that a reopening request could be made. Therefore the refusal of such a request did not constitute relevant new information in this respect.

66. In Meltex Ltd v. Armenia ((dec.), no. 45199/09, 21 May 2013) the Court found that it had no jurisdiction to examine a complaint concerning the refusal of the domestic courts to reopen the applicant company’s case following the Court’s finding of a violation of Article 10. In deciding whether there had been relevant new information the Court noted that the Court of Cassation had dismissed the applicant company’s reopening request, stating that no such requirement had emanated from the Court’s earlier judgment. Accordingly it did not rely on any new grounds in refusing the applicant company’s request. The Court also noted that the Committee of Ministers had been informed that the Court of Cassation had dismissed the application to reopen the proceedings, but nonetheless ended its supervision of the execution of the Court’s previous judgment, having declared in its resolution that it was satisfied with the individual and general measures taken by the Republic of Armenia.

67. The latter case confirmed the limits of the Court’s jurisdiction to evaluate the implementation measures taken by the States, which only allows it to deal with relevant new information in the context of a fresh application raising an issue undecided by the previous judgment (ibid.).

68. Finally, reference should also be made to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”: (i) an application is considered as being “substantially the same” where the parties, the complaints and the facts are identical (see Pauger v. Austria (dec.), no. 16717/90 and no. 24872/94, 9 January 1995, and Verein Gegen Tierfabriken Schweiz (VgT), cited above, § 63); (ii) the concept of complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172; Guerra and Others v. Italy, 19 February 1998, § 44, Reports 1998-I; and Previti v. Italy (dec.), no. 45291/06, § 293, 8 December 2009); and (iii) where the applicant submits new information, the application will not be essentially the same as a previous application (see Chappex v. Switzerland (dec.), no. 20338/92, 12 October 1994, and Patera v. the Czech Republic (dec.), no. 25326/03, 10 January 2006).

(b) Application of these principles to the present case

(i) As to the alleged failure to implement the Court’s judgment

69. The Court has previously stressed that one of the most significant features of the Convention system is that it includes a mechanism for reviewing compliance with the provisions of the Convention. Thus, the Convention does not only require the States Parties to observe the rights and obligations deriving from it, but also establishes a judicial body, the Court, which is empowered to find violations of the Convention in final judgments by which the States Parties have undertaken to abide (Article 19, in conjunction with Article 46 § 1). In addition, it sets up a mechanism for supervising the execution of judgments, under the Committee of Ministers’ responsibility (Article 46 § 2 of the Convention). Such a mechanism demonstrates the importance of effective implementation of judgments (Verein Gegen Tierfabriken Schweiz (VgT), cited above, § 84).

70. The Court notes that the applicant alleged a violation of Article 10 in conjunction with Article 46 on account of the decision by the Moscow City Court to reject her application for reopening of the proceedings concerning her dismissal from the judiciary. She argued that by refusing to reopen the proceedings following the Court’s finding of a violation of Article 10, the respondent State had failed to give effect to the Court’s judgment of 26 February 2009 and had thwarted any possibility of her obtaining restitutio in integrum.

71. The applicant claimed that the Court’s judgment in her first case had implicitly required the Russian authorities to reverse the decision to order her dismissal and to reinstate her to judicial office. It was with this end in mind that she had applied for the proceedings to be reopened owing to newly discovered facts, a procedure that she considered to be the most appropriate avenue for securing the reparation of the breach of Article 10. The domestic courts, however, had held that neither the reopening of proceedings nor the applicant’s reinstatement in the job were required by the Court’s judgment. The Government in their observations had confirmed, in essence, that no such steps were intended to be taken by the authorities. They had claimed that the award of just satisfaction for non-pecuniary damage, together with a number of general measures listed by them, had provided her with sufficient reparation.

72. The Court observes that the finding of a violation in its judgment of 26 February 2009 was a declaratory one. It is not generally the Court’s task to rule on the specific measures needed to provide reparation, and the applicant’s case was not one of the exceptional cases where the Court would decide to indicate the specific steps to be taken by the authorities in order to comply with the judgment (cf. Assanidze, cited above, and Oleksandr Volkov, cited above, § 208). Where no specific measures are indicated in the operative provisions of the judgment, the respondent State’s obligation to abide by the judgment binds it to identify and use in good faith such legal and practical means that may be necessary to secure to the maximum possible extent the applicant’s right which the Court has found to have been violated. Their choice of measures will be subject to supervision of the Committee of Ministers (see Savriddin Dzhurayev, cited above, § 253).

73. In any event, the respondent State is required to provide the Committee of Ministers with detailed, up-to-date information on developments in the process of executing the judgment that is binding on them (see Verein gegen Tierfabriken Schweiz (VgT), cited above, § 35 citing Rule 6 of the Committee of Ministers’ Rules for the supervision of the execution of judgments and of the terms of friendly settlements). In this connection, the Court emphasises the obligation on States to perform treaties in good faith, as noted, in particular, in the third paragraph of the preamble, and in Article 26, of the 1969 Vienna Convention on the Law of Treaties (see Verein gegen Tierfabriken Schweiz (VgT), cited above, §§ 37 and 87).

74. In exercising their choice of individual measures, the Government must bear in mind their primary aim of achieving restitutio in integrum. The Government have not provided any justification why this principle should be redundant in respect of the applicant’s first case. The Court, for its part, does not discern in the Government’s submissions any convincing reason why the obligation to comply with the judgment of 26 February 2009 should be limited to payment of the monetary compensation awarded under Article 41, which is only designed to make good for the consequences of a violation that cannot otherwise be remedied (see Scozzari and Giunta, cited above, § 250). Nor does it discern any such reason in the domestic courts’ decisions refusing the reopening of the applicant’s case. It considers that the respondent Government remain under an obligation to implement, under the supervision of the Committee of Ministers, appropriate individual measures to restore as far as possible the situation existing before the breach of the applicant’s rights under Article 10 of the Convention.

75. The Court reiterates the importance of ensuring that domestic procedures are in place which allow a case to be revisited in the light of its finding of a violation of the Convention. It confirms that reopening proceedings may represent “the most efficient, if not the only, means of achieving restitutio in integrum” (see Verein gegen Tierfabriken Schweiz (VgT), cited above, §§ 33 and 89; Steck-Risch and Others and Schelling, both cited above). This applies irrespective of whether a violation found by the Court concerns a substantive Convention right or the right to a fair hearing (see the Committee of Ministers’ Recommendation No. R (2000) 2 and the explanatory memorandum thereto; Interim Resolution CM/ResDH(2007)1 of 14 February 2007 adopted by the Committee of Ministers in the case Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005‑IV; and Interim Resolution DH(99)529 adopted by the Committee of Ministers on 28 July 1999 in the case Socialist Party and Others v. Turkey, 25 May 1998, Reports 1998‑III). Moreover, the Russian courts have previously granted applications for reopening of proceedings made pursuant to the Court’s judgment where a violation of a substantive right had been found (see Resolution CM/ResDH(2011)301 adopted by the Committee of Ministers on 2 December 2011 in the case Baklanov v. Russia, no. 68443/01, 9 June 2005; in the same way, on 23 January 2012 the Supreme Court of the Russian Federation decided to reopen the relevant domestic decision following the finding of a violation of Article 11 by the Court in the case of Republican Party of Russia, cited above).

76. Reopening the applicant’s case would not only allow the domestic authorities to conduct a fresh determination of the disciplinary charges in the light of the Court’s assessment of the applicant’s public statements and the ensuing penalty, but also to remedy the procedural defects found by the Court (see Kudeshkina, cited above, §§ 96-97)

77. The Court considers, nevertheless, that if the applicant’s case could not be reopened on the grounds of new or newly discovered circumstances other options remain open to the Government, who may decide to provide redress to the applicant through other mechanisms or ad hoc practical solutions.

78. The Court is convinced that it is incumbent upon the Russian Federation to avail itself of the necessary tools and procedures in order to take such measures in respect of the applicant. Otherwise the “chilling effect” referred to in the Court’s judgment will persist and continue to affect judges wishing to participate in the public debate on the effectiveness of judicial institutions and on matters affecting society as a whole (ibid., §§ 99-100).

79. Given the variety of means to achieve this aim and the nature of the issues involved, the Committee of Ministers is better placed than the Court to assess the specific measures to be taken. It should thus be left to the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the applicant’s evolving situation, the adoption of such measures that are feasible, timely, adequate and sufficient to ensure the maximum possible reparation for the violations found by the Court (see Savriddin Dzhurayev, cited above, § 255).

80. Moreover, the execution of the judgment of 26 February 2009 has not yet finished. Its supervision thus remains within the competence of the Committee of Ministers. Accordingly, there is no risk that the refusal to reopen the applicant’s case would escape the scrutiny of the Convention organs (see Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, 17 June 2008). Clearly, the Committee of Ministers recognise their competence in this case. As the Government pointed out, it did not refer to the Court any question on the interpretation of the judgment of 26 February 2009 in accordance with Article 46 § 3 of the Convention, or the question whether the High Contracting Party has failed to fulfill its obligation to abide by the final judgment of the Court, in accordance with Article 46 § 4 of the Convention.

81. In view of the foregoing, the Court finds that it has no jurisdiction to examine whether the respondent State has complied with its obligations imposed on it by the Court’s judgment of 26 February 2009.

(ii) As to the alleged existence of a new issue under the Convention

82. The Court reiterates that the measures taken by a respondent State to implement a judgment delivered by the Court can become the subject of a new application that may be dealt with by the Court, if such an application raises a new issue that was not decided by the previous judgment (see, mutatis mutandis, Oberschlick, cited above; Mehemi, cited above, § 43; Verein gegen Tierfabriken Schweiz (VgT), cited above, § 65; Emre, cited above, § 43, and Bochan (no. 2), cited above, § 37).

83. It will therefore examine whether the Moscow City Court’s refusal to reopen the applicant’s case constituted relevant new information capable of giving rise to a new application falling within the Court’s competence ratione materiae.

84. The Court observes that the Moscow City Court refused to reopen the proceedings concerning the applicant’s dismissal from the judiciary. While acknowledging that a case might be reopened following the Court’s finding of a violation, the city court deemed that power discretionary and stressed that it remained within the domestic court’s competence to decide whether a case merited a rehearing. The court went on to suggest that a violation of Article 6 of the Convention should, as a general rule, necessitate the reopening of a case. Essentially, it concluded that the applicant’s case was not automatically bound to be reopened because it involved a violation of Article 10, and not of Article 6, of the Convention. Other than that, the Court notes that this decision contained no assessment of the applicant’s employment situation or new justification for interference with the applicant’s freedom of expression.

85. The appeal court gave yet another reason for the rejection of the applicant’s application. In its decision of 10 March 2010 the Supreme Court upheld the Moscow City Court’s findings, while reiterating the reasons why the applicant had been dismissed from the judiciary in the first place. The Court considers that this restatement of the argument contained in the earlier decisions did not constitute a fresh evaluation of the applicant’s situation. It therefore cannot amount to a new interference with the applicant’s freedom of expression (cf. Bochan (no. 2), cited above, §§ 36-39). Furthermore, the Court notes that the procedure followed by the Supreme Court when it examined the request for reopening has not been called into question; hence this is not the case where the alleged procedural flaw may be considered as giving rise to a new issue to be examined by the Court (ibid.).

86. The Court, further, considers it necessary to stress the distinction that lies between this case, on one hand, and Verein gegen Tierfabriken Schweiz (VgT), Mehemi, cited above, Liu and Emre, both cited above, on the other hand. In the cited cases the new domestic decisions were capable of having a direct impact on the substantive Convention right. In the Verein gegen Tierfabriken Schweiz case, in particular, the refusal to publish the commercial fell within the scope of Article 10. Likewise, in the three cited expulsion cases the domestic decisions subsequent to the Court’s judgments provided, in effect, a new determination of the applicants’ residence status; and therefore the new decisions fell within the ambit of Article 8. By contrast, when Ms Kudeshkina filed her application for reopening, she did not seek to exercise her freedom of expression, but rather to remove the consequences of the violation previously found. In that, this application is identical to Costică Moldovan and Others (cited above, § 127), where the applicants had argued under Articles 3 and 8 that by not completely rebuilding and repairing their homes the domestic authorities had failed to give effect to the Court’s judgment. The Court declared these complaints inadmissible, having found that they did not disclose an ongoing situation, or any new circumstances, and decided that this was a matter relating to the execution of the first judgment.

87. The present application must also be distinguished from Ivanţoc and Others, cited above, where the new complaint under Article 5 related to a period of detention subsequent to the period already examined by the Court and which was thus found to be new and falling within the scope of Article 5. The same distinction lies with the case of Wasserman, cited above, where the new issues concerned the respondent State’s failure to execute the domestic judgment in the period subsequent to the Court’s previous judgment. In the present case, on the contrary, the violation was caused by an instantaneous act which the Court has already examined in its judgment of 26 February 2009.

88. In view of the foregoing, the Court finds that this application does not raise any new issue that was not decided by the previous judgment.

(iii) The Court’s conclusion

89. Having regard to the considerations set out above, the Court finds that it is not competent to examine the applicant’s complaints, and rejects this part of the application as incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 (a) and 4.

3. Other complaints

90. The applicant complained under Article 8 and under Article 1 of Protocol No. 1 that the original decision to dismiss her from the judiciary had prevented her from pursuing her career and had deprived her of wages that she would have received had she continued to work as a judge. She contended that the refusal to reopen the proceedings had perpetuated and aggravated those violations. The Court considers that the Moscow City Court’s refusal to reopen the case was not capable of constituting an interference with the applicant’s rights under Article 8 and Article 1 of Protocol No. 1, as it is clear that the interference, if any, had been caused by her dismissal from the judiciary. In turn, the complaints relating to the applicant’s dismissal were lodged out of time, because the final decision concerning the dismissal of the applicant was taken by the Supreme Court of the Russian Federation on 19 January 2005. Applications for reopening of proceedings or similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see, for example, R. v. Denmark, no. 10326/83, Commission decision of 6 September 1983, Decisions and Reports 35, p. 218; Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002; Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; Martynets v. Russia (dec.), no. 29612/09, ECHR 2009; and Boyajyan v. Armenia, no. 38003/04, § 38, 22 March 2011).

91. Lastly, the applicant alleged a violation of Articles 13 and 34 on account of all the domestic decisions in her case. The Court has examined these complaints as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court 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 is manifestly ill-founded and must be rejected in accordance with 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 12 March 2015.

Søren NielsenIsabelle Berro
RegistrarPresident

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