The applicant Olga Kudeshkina (K), a judge for more than 18 years, was on office at the Moscow City Court at the relevant time. She claimed in 2004 that she was unlawfully dismissed from her position for having publicly accused higher judicial officials of putting pressure on her deciding a high-profile criminal case.

In 2003, while sitting as a judge on a criminal case of great public importance, K withdrew from the case in circumstances which are contested by the parties. K herself submitted that the President of the Moscow City Court removed her from the case on 4 July 2003 without giving reasons, while the Government claimed that the case was withdrawn from her and assigned to another judge on 23 July 2003 on the grounds that she had delayed its examination.

In early December 2003, running for elections, K stated in several interviews that the President of the Moscow City Court had put pressure on her while she had been dealing with that case suggesting that Russian courts were manipulated by corruption. On 2 December 2003 she complained to the High Judiciary Qualification Panel about the pressure allegedly suffered in that case. The panel decided not to bring disciplinary proceedings against the President of the Moscow City Court.

In the meantime, on an unidentified date, the President of Moscow Judicial Council sought to dismiss K from office, alleging that she had behaved in a manner inconsistent with the authority and standing of a judge, having made statements which had the potential to undermine the authority of the judiciary. In May 2004, the Judiciary Qualification Board of Moscow decided that K should no longer act as a judge, having committed a disciplinary offence.

K complained about her dismissal before the Moscow City Court, which heard her case at first instance. K subsequently asked the Supreme Court to transfer her case to a different court, as the city court lacked impartiality. On 19 January 2005 the Supreme Court, in a final judgment, dismissed K’s request to have her case examined by any other court apart from the city court, and upheld the decision that K had to be removed from her judicial position.

Violation of Article 10:
The decision to dismiss the applicant from her judicial office, given that it was prompted by her statement to the media, constituted an interference with her right to freedom of expression under Article 10 of the Convention.

The Court assumed that the measure was prescribed by law and had a legitimate aim in that it was directed to the protection of the reputation, authority and impartiality of the judiciary.

In deciding whether the interference was necessary in a democratic society, the Court examined the circumstances of the case as a whole in the light of the Court’s established case-law. In particular, it reminded that on the one hand issues concerning the functioning of the judiciary constituted questions of public interest enjoying the protection of Article 10, but that on the other hand the judiciary’s authority and reputation as an impartial institution was to be protected. The Court also reminded that in the context of election debates the exercise of freedom of expression was only subject to a very low scrutiny.

As regards the present case, the Court saw nothing in the interviews that would justify the claims of disclosure, which had been made by the Judiciary Qualification Board of Moscow. Noting that K’s allegations of pressure had not been convincingly dispelled in the domestic proceedings and given that she had publicly criticised the conduct of various officials, and had alleged that pressure on judges was ordinary, the Court found that her statements raised a highly sensitive matter of public interest which had to be open to free debate in a democratic society. Even if K had allowed herself a certain degree of exaggeration and generalisation, the Court found that her statements had to be regarded as a fair comment on a matter of great public importance.

The Court further considered that K’s fears as to the impartiality of Moscow City Court were justified, given the allegations she had made against that court’s President. The Court concluded that the manner in which the disciplinary sanction had been imposed on K had not secured the required procedural guarantees. Finally, the Court recalled the “chilling effect” that the sanction imposed could have on the judges’ exercise of their freedom of expression. The Court noted that the penalty imposed, Ms Kudeshkina’s dismissal, had been capable of having this “chilling effect” on judges wishing to participate in the public debate on the effectiveness of the judicial institutions. The Court therefore held that the penalty of dismissing the applicant from her functions had been disproportionately severe, and had violated Article 10.

3 judges expressed a dissenting opinion:
Judge Kovler, joined by Judge Steiner, emphasized in his dissenting opinion the existing duty of loyalty for the judges. He pointed to the fact that K had disclosed specific factual information concerning the criminal proceedings having then had the opportunity to sit as a judge in a number of other cases. He thus submitted that having excluded herself from the community of judges, the imposition of the disciplinary sanction was justified. He added that the chilling effect of the sanction could not override the need to protect the judiciary’s authority.

Judge Nicolaou also emphasized the importance of the judge’s duty of loyalty to the system and the weight society gives to a judge’s statement. He also pointed to the categorical nature of the applicant’s statement and the potential it had to undermine the judiciary’s authority. He submitted that such categorical judgements needed to be supported by substantial facts, and that the certainty of those facts was lacking. He further added that the procedural irregularity “did not amount to anything” in this case.