CASE OF IGOR KABANOV v. RUSSIA
Violation of Art. 6-1;Violation of Art. 10
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1966 and lives in Arkhangelsk. 7. The applicant, an advocate at the time, acted as defence counsel for a Mr R. 8. On 5 August 2003 the Primorskiy District Court of Arkhangelsk, chaired by judge V., removed the applicant from his position as Mr R.'s counsel. The District Court found that the applicant had acted contrary to the Code of Criminal Procedure and the Advocate's Code of Ethics. The court noted, in particular: “Persistent and repeated voluntary statements made by [the applicant] that he provided legal advice to witnesses N. and S. and at the same time acted as counsel for defendant R. ... show that [the applicant], in violation of the formal requirements of the Russian Code of Criminal Procedure, provided legal advice and acted as counsel in respect of persons whose interests were in conflict. Therefore, it is not possible for [the applicant] to continue to participate in the trial as legal counsel for defendant R. or to provide legal advice to N. and S.” 9. On 26 September 2003 the District Court found Mr R. guilty as charged. 10. On 16 December 2003 the Arkhangelsk Regional Court quashed Mr R.'s conviction and remitted the matter for fresh consideration. The court also upheld on appeal the decision of 5 August 2003. 11. On 22 December 2003 the applicant asked the Presidium of the Regional Court for supervisory review of the judicial decisions to remove him from being Mr R.'s representative. 12. On 2 February 2004 judge A. of the Regional Court dismissed the above complaint. In particular, the judge noted as follows: “I hereby return your complaint against ... the decisions ... of 5 August 2003 and 16 December 2003 without having considered it on the merits. [The reason for this is that] the Primorskiy District Court of the Arkhangelsk Region opened R.'s trial on 22 January 2004 and it is impossible to verify the lawfulness and inconsistency of the decisions in question.” 13. On 9 February 2004 the applicant filed a complaint against the judges who had participated in the proceedings for the determination of the criminal charge against Mr R., alleging that they had acted in violation of the rules of criminal procedure by refusing to consider his application for supervisory review in respect of the decision of 5 August 2003. The complaint was addressed to the President of the Supreme Court of the Russian Federation with a copy to the President of the Arkhangelsk Regional Court. The applicant asked for the President's intervention which would prompt, in his opinion, the Arkhangelsk Regional Court to respond to his application for supervisory review. 14. In particular, the applicant made the following comments in the complaint: “... Judges A. and V. used to “plough the fields of justice together” at the Arkhangelsk Regional Prosecutor's Office, and, apparently, they “continue their joint efforts now” at the Arkhangelsk Regional Court ... ... In my opinion, either judge A. is not quite familiar with the law, which is sad, or judge A. wilfully and knowingly restricts my access to court, which is twice as sad ... ... On 2 February 2004 I received an absolutely unlawful “brush-off” reply from judge A ... ... [Judge A.] could have unglued his posterior from [his] seat and brought it to the premises of the Primorskiy District Court ... ... Otherwise, why would judge A. receive such a salary which I, as a tax payer, contribute to? ... ... But judge A. simply pushed away my [request for] supervisory review and, by doing so, he seriously violated the rules of criminal procedure and my constitutional rights ... ... I believe that one telephone call from the Supreme Court of the Russian Federation will be enough to make the Arkhangelsk Regional Court consider my complaint on the merits ...” 15. The President of the Supreme Court forwarded the applicant's complaint to the Arkhangelsk Regional Court for further action. The President of the Arkhangelsk Regional Court lodged a complaint with the Council of the Arkhangelsk Region Bar Association (the “Council”) alleging that the above comments were offensive and incompatible with the Advocate's Code of Professional Conduct. He stated as follows: “In our opinion, [the applicant's complaint] contains remarks which are offensive and tactless vis-à-vis certain judges of the Arkhangelsk Regional Court. We believe that the content and the style of the complaint are impermissible. In our view, the reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession. [A]dvocates should, under any circumstances, be tactful and correct vis-à-vis their counterparts and public officers, including judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law. Having regard to the above ... I hereby request that you follow up on the applicant's conduct and inform the Arkhangelsk Regional Court of the measures taken.” 16. On 21 April 2004 the Council held a disciplinary hearing. The applicant did not challenge the offensive character of the comments. He submitted that he had been, in a way, provoked by the judges' allegedly unlawful decisions. The Council granted the complaint and terminated the applicant's bar membership as of 22 April 2004. In particular, the Council noted as follows: “[The applicant's complaint] addressed to the President of the Supreme Court of Russia contains tactless remarks in respect of certain judges of the Arkhangelsk Regional Court, which amounts to a violation of the Advocate's Code of Professional Conduct ... The content and the style of the [applicant's] complaint addressed to the President of the Supreme Court of Russia are impermissible. The reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession. [A]dvocates should, under any circumstances, be tactful and correct vis-à-vis ... judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law.” 17. The applicant appealed to the court. He claimed that he was disliked by the members of the Council and their decision had been retaliation against him for his personal views and convictions. He also alleged that the disciplinary hearing had been carried out with certain procedural irregularities. 18. On 22 June 2004 the Oktyabrskiy District Court of Arkhangelsk dismissed the claim brought by the applicant against the Bar Association seeking reinstatement of his membership. The applicant appealed. 19. On 9 August 2004 the applicant asked the Arkhangelsk Regional Court to transfer the case to another jurisdiction for consideration. The applicant alleged that any judge of the Regional Court would be biased against him because the original complaint which had prompted the disciplinary proceedings against him had been lodged by the President of the said court. On the same day judge M. of the Regional Court refused to consider the applicant's request and returned the relevant documents to him. In particular, the judge informed the applicant as follows: “I hereby return your application stating the challenge to the whole composition of ... the Arkhangelsk Regional Court and advise you that, pursuant to the rules of civil procedure, it is only possible to challenge the specific judges who are appointed to consider your case and not the whole composition of [the court].” 20. On 16 August 2004 the Arkhangelsk Regional Court upheld the judgment of 22 June 2004 on appeal. The court dismissed as unsubstantiated the applicant's allegations of the Council's partiality. Nor did it discern any procedural irregularities in the applicant's disbarment. 21. The Advocate's Code of Professional Conduct (Article 18 § 1) establishes that an advocate may be subject to disciplinary proceedings for a failure to abide by legislation concerning advocates' activities and advocacy and for failure to abide by the Code itself. Any impropriety discrediting an advocate's professional integrity or the legal profession, a breach of the care of duty vis-à-vis his or her client, or a failure to abide by the decisions of the qualifications committee and council of the advocates' 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 advocates' chamber (Article 18 § 2). 23. The Judges' Status Act stipulates in section 6.2 that, in addition to the performance of judicial functions, the president of a court: “(1) organises the work of the court; (2) determines the court's internal regulations on the basis of the model regulations adopted by the Council of the Judges of the Russian Federation and supervises compliance therewith; (3) distributes the workload between the deputy presidents and ... judges; (4) organises the judges' training; (5) carries out the general management of the court's office as follows: hires and dismisses the court's employees; distributes the workload between them; decides on [their] performance awards and disciplinary liability; organises training for the court's employees; (6) informs on a regular basis the judges and the court's employees of his [or her] activities and [the] activities of the court; and (7) performs other functions pertaining to the organisation of the court's work.” 24. The Russian Code of Civil Procedure (Article 21) provides that, should a challenge against a judge or panel of the judges be granted, the matter should be transferred to another judge or judicial panel within the same Regional Court. If the challenge to a judge or a judicial panel is granted and it is no longer possible to form a new judicial panel to consider the case, it should be transferred to the Supreme Court of Russia which will reassign it to another court. 25. The court should transfer the case to another court if, following a challenge to one or several judges or due to other reasons, it cannot consider the case. The transfer of the case is carried out by the relevant superior court (Article 33 § 2 (4) of the Russian Code of Civil Procedure). 26. Pursuant to decision no. 72-G03-6 of the Supreme Court of Russia of 1 April 2003, the Supreme Court of Russia granted a request lodged by the Chita Regional Court to transfer a case concerning a defamation action lodged by a judge of the Chita Regional Court. The case was transferred to the Irkutsk Regional Court. In particular, the Supreme Court of Russia noted as follows: “... [I]n these circumstances, the matter cannot be considered in accordance with the rules of jurisdiction due to objective reasons. Given that the action was lodged by K.I.V., a judge of the Chita Regional Court, [that court] upheld ... the challenge to the whole panel of the Chita Regional Court and, pursuant to Article 21 § 4 of the Russian Code of Civil Procedure, forwarded the case to the Supreme Court of Russia for determination of its jurisdiction. The Constitutional Court of Russia has noted in its ruling ... of 16 March 1998 that “under certain circumstances (for example, if a civil action is lodged against a judge or by a judge of the same court, and if the court which has jurisdiction over the matter does not function for one reason or another), the change of the jurisdiction of the matter is not only possible, but is sometimes necessary. Pursuant to [Article 33 § 2 (4) of the Russian Code of Civil Procedure], the court transfers the case to another court if, following the challenge to one or several judges or due to other reasons, the replacement of the judge or consideration of the case by the court becomes impossible. The transfer of the case is effected by a superior court.”