PITKEVICH v. RUSSIA
Inadmissible
Christos Rozakis
The applicant is a Russian national, born in 1946. She is represented before the Court by Mr V. Ryakhovskiy and Mr A. Pchelintsev, lawyers practising in Moscow. The Government are represented by Mr Pavel Laptev, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. Since 1987 the applicant is a member of the Living Faith Church (hereinafter referred to as the “Church”), which is part of the Russian Union of Evangelical Christian Churches. From 1987 the applicant worked as a judge at the Noyabrsk City District Court of the Yamalo-Nenets Autonomous Area of Russia. In February and March 1997 she participated in the election for the post of a mayor of Noyabrsk. The applicant submits that one of her opponents in the election campaign, who was eventually elected to the post of the mayor, frequently criticised her in the media as a “cultist striving for power” and referred to the Church as a “totalitarian sect”. On 9 September 1997 the newly elected mayor sent a letter to the President of the Noyabrsk City District Court, requesting the applicant's dismissal from the judiciary on the ground that she was a “cultist”. A number of private persons also applied to the court, complaining about the applicant's performance of her judicial functions. On 9 December 1997 the Judiciary Council of the Yamalo-Nenets Autonomous Area, a local association of judges, considered the question whether the applicant had misused her authority as a judge. The council instituted disciplinary proceedings against her, applying to the Judiciary Qualification Panel of the Yamalo-Nenets Autonomous Area to decide the question of her dismissal from the judiciary. From 3 to 6 February 1998 the Judiciary Qualification Panel held hearings in the case. The panel consisted of four judges. Representatives of the council and a local authority were the applicant's opposing parties vis-à-vis the applicant. The panel heard the applicant and several witnesses, including officials of the Noyabrsk City Council and the Noyabrsk City District Court, who testified against her. The panel scrutinised written statements of 41 persons, including many private persons complaining about the way in which the applicant had handled their cases. The applicant asserts that she was refused to call several witnesses on her behalf. On 6 February 1998 the Judiciary Qualification Panel dismissed the applicant from the office and removed her “third qualification grade” of a judge on the ground that she had “damaged her reputation as a judge and impaired the authority of the judiciary” within the meaning of Article 14 of the Status of Judges Act. The panel also found that she had breached the Constitution, the Freedom of Conscience and Religious Associations Act and the Code of Honour of a Judge. The panel ruled that she had misused her office to “pursue religious activities in the interests of the Church” inter alia by recruiting as Church members several officials of the Noyabrsk City District Court and certain third persons, including parties to proceedings under her examination. It was also found that the applicant had unsuccessfully attempted to enrol a number of other persons, that she had prayed publicly during court hearings, and that she had promised certain parties to proceedings a favourable outcome of their cases if they joined the Church. The Judiciary Qualification Panel noted that that had resulted in numerous challenges against the applicant, and that a number of cases had been delayed as a result. The panel further observed that the applicant was free to choose her religion and that the Church was a legitimate organisation duly registered by the local authorities. The panel mentioned nonetheless that the Church was a “sect bearing with the label of a Christian church, [but that] it [was] not such in fact”. The Judiciary Qualification Panel further confirmed that the applicant had been entitled to run in the election of the mayor; it nonetheless criticised the applicant's campaign as promoting her religion rather than emphasising “current difficulties” of the society and the economy of the State. The applicant appealed to the Supreme Judiciary Qualification Panel of the Russian Federation, claiming in particular that she had never misused her office in the interest of the Church or promoted her religion by using her authority as a judge. On 21 May 1998 the Supreme Judiciary Qualification Panel, consisting of 23 judges, examined the appeal in the presence of the applicant and a representative of the Judiciary Qualification Panel of the Yamalo-Nenets Autonomous Area, who requested that the appeal be dismissed. The applicant submits that her representative was not permitted to attend the panel hearing. During the hearing the applicant did not deny the fact that she had several times “discussed” the morality of certain parties to proceedings concerning various family rights. The panel rejected the applicant's appeal, finding that the case had been decided properly. The applicant appealed to the Supreme Court. The applicant submits that on 7 August 1998 the Supreme Court examined the appeal in the presence of a representative of the Judiciary Council of the Yamalo-Nenets Autonomous Area and a prosecutor, who requested the court to dismiss the applicant's appeal. The applicant was not present. The Supreme Court rejected her appeal by reference to explanations by the representative of the judicial council and the prosecutor, and the prior findings of the panels. The court ruled that the applicant had been involved in propaganda of the Church and religious intimidation of parties to proceedings under her examination. The Supreme Court decided that the applicant therefore gave rise to doubts as to impartiality and independence of the court. The applicant states that the hearing before the Supreme Court was initially set to take place on 11 August 1998. As no notification of a change of that date was sent to her, she arrived on 11 August 1998, but found that the case had in fact been heard on 7 August 1998. The Government state that the hearing at the Supreme Court was scheduled for and took place on 11 August 1998 The date of the Supreme Court hearing in the Supreme Court written judgment is indicated as 7 August 1998. The Government submit that the date of the Supreme Court hearing as being 7 August 1998 was put by mistake in the judgment, which was eventually corrected. Article 2 § 1 of the Status of Judges Act and Article 12 of the Judicial System Act provide that all judges have equal status. Pursuant to Article 2 § 2 of the Status of Judges Act, judges can be granted “qualification grades” on the basis of their judicial experience or other professional accomplishments. The grant of a particular “qualification grade” does not affect the status of the judge vis-à-vis other judges. There are six “qualification grades”, which are granted or removed on the basis of decisions of judiciary qualification panels established under the Status of Judges Act, the Judiciary Qualification Panels Ordinance and the Qualification Assessment of Judges Ordinance (also see below). Article 19 of the Status of Judges Act provides for special supplementary payments to the salary or pension of the judge on the basis of his “qualification grade”. Article 14 of the Constitution separates churches from the State. Articles 3 and 4 of the Freedom of Conscience and Religious Associations Act prohibit State officials from using their official powers to promote religion. Pursuant to Article 3 of the Code of Honour of a Judge, the work of a judge in administering justice should prevail over his other activities. Article 3 § 2 of the Status of Judges Act provides that a judge should avoid engaging in any activities that can impair the authority of the judiciary, damage his reputation as a judge or call into question his impartiality. Paragraph 3 of the above provision states that a judge cannot occupy a position of an elected representative, belong to political parties or movements, be involved in business activities, receive salary in connection with his other activities, let alone academic, scientific and creative work. Article 14 § 1 (9) of the above Act provides for the dismissal of a judge who has acted in a way “damaging his reputation as a judge and impairing the authority of the judiciary”. Under Articles 14 § 2 and 18 § 1 of the Status of Judges Act, the questions of dismissal of a judge and removal of his “qualification grade” are decided by a judiciary qualification panel. The decision of the panel, insofar as it concerns dismissal, can be appealed to the Supreme Judiciary Qualification Panel, and from there - to the Supreme Court. Pursuant to Article 26 § 4 of the Judiciary Qualification Panels Ordinance, the decision of a panel to remove a “qualification grade” is not subject to appeal. Under Articles 1-3 and 9 of the Judiciary Qualification Panels Ordinance, judiciary qualification panels work under the authority of regional and higher courts, and are elected for a term of three years by a secret vote of judges during the meetings of professional judicial associations. Article 6 of the Ordinance states that only judges can be members of panels. Pursuant to Article 15 of the Ordinance, any application concerning a particular judge lodged by a State authority or a private person shall be scrutinised provided that the panel is competent to examine the questions raised therein. Following such an application, a panel president or his deputy opens an inquiry into the facts alleged, draws up the list of persons to be invited to the panel hearing, and sets the date of that hearing in accordance with Article 16 of the Ordinance. The judge concerned is entitled to have access to all the material collected for the hearing, and to submit his observations in reply before the hearing pursuant to Article 17. Under Article 19 of the Ordinance, the panel president, with the accord of the panel members, decides on the procedure for the hearing. A prosecuting or other legal authority is entitled to present its own opinion on the case pursuant to Article 20 of the Ordinance. Article 11 of the Code of Civil Procedure provides that higher courts conduct “supervisory review” (надзор) of the activities of the lower courts. This means, according to Articles 319, 320 and 327, that specific senior judicial officers, at any time, by request of a person or of their own motion, may lodge with a higher court a “special appeal” (протест) against the final decision of a lower court on all questions of fact and law. The “supervisory review” procedure has to be distinguished from the proceedings whereby a case may be reviewed on the ground of new or newly established facts (Articles 333 - 337). Following an amendment to the Code of Civil Procedure and the Judiciary System Act of 4 January 1999 (in force since 6 January 1999), judgments of the Supreme Court taken at first instance can be appealed against to the Appeal Chamber of the Supreme Court, under Article 105 of the Code of Civil Procedure.