Communicated on 16 October 2015
FIRST SECTION
Application no. 41055/12
ASSOTSIATSIYA NGO GOLOS and others
against Russia
lodged on 22 June 2012
STATEMENT OF FACTS
The first applicant, Association of Non-Governmental Organisations For protection of voters’ rights “GOLOS” (hereinafter, “Golos” or the “NGO”) is a non-governmental organisation registered in Russia.
The second applicant, Ms Liliya Vasilyevna Shibanova, was born in 1952 and lives in Moscow. At the relevant time, she was the NGO’s chief officer.
The third applicant, Ms Tatyana Georgievna Troynova, was born in 1942 and lives in Moscow. At the relevant time, she was a member of the NGO’s Council.
The applicants were represented before the Court by Mr R. Akhmetgaliyev, a lawyer practicing in Kazan.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant was founded in 2000 and aimed at providing a short-term and long-term monitoring of the electoral campaigns. The NGO had its own website.
The electoral campaign to the State Duma of the Russian Federation started on 30 August 2011.
On unspecified date in 2011 the first applicant launched a project, which consisted in the creation of a website called Map of Violations. According to the applicant, the website was to function following the method of crowd-sourcing, that is the website users were able to generate the site’s content while the project managers were in charge of preliminary monitoring of the content and technical support.
It appears that the NGO’s website had an active hyper-link to the project website.
First, a group of members of the State Duma and then the Chief Officer of the Central Elections Committee complained to the Prosecutor General, alleging that first applicant’s website contained negative information in respect of the ruling political party United Russia.
On 1 December 2011 Meshchanskiy inter-district prosecutor issued a decision to institute administrative offence proceedings against the first applicant under Article 5.5 of the Federal Code of Administrative Offences (CAO). The decision reads as follows:
“On 29 and 30 November 2011 the NGO published [on its website] the results of its research relating to the coming elections to the State Duma. The website has a folder “Map of Violations. Elections 2011”, that contains statistical data concerning the electoral campaigning and the analysis of such data, as well as the analytical conclusions of the received information about the violations committed during the electoral campaign ...
On 29 and 30 November 2011 the NGO violated the procedure for publishing information relating to the preparation and running of the elections to the State Duma. This violation consists in the publication of the information about the results of research carried out in Russia in relation to the electoral campaign.”
The prosecutor’s decision did not contain a reference to or a list of the impugned publications.
It appears that the impugned Internet publications were located on both the applicant’s website and the Map of Violations website. The relevant publications from the applicant’s website included texts, reports or links to the following: a press-release concerning the NGO’s activities on 3 and 4 December 2011; articles concerning the alleged pressure over the NGO; articles entitled “Meet the richest candidate to the regional Duma”, “Thirty-one violation complaints were registered in the Irkutsk Region”, “Golos in Tomsk united the civil sector and the parties”, “Pskov Region two days before the election: bare numbers”.
Around 1.30 p.m. on 1 December 2011 a copy of the prosecutor’s decision was handed over to one of the first applicant’s employees. The administrative offence case was submitted for trial before peace justice of section no. 383 of the Meshchanskiy district of Moscow.
The NGO’s head officer was abroad and did not take part in the proceedings. The NGO retained a lawyer who attended the court hearing listed for 2 December 2011.
It appears that the prosecutor also referred to a number of publications at the project’s website. According to the applicant, those were direct posts made by the website users.
The court dismissed the lawyer’s request for adjournment. However, the court then granted a 30-minute pause in the hearing for the lawyer to have access to the case file material.
The lawyer renewed his request for adjournment, arguing that he had insufficient time to study the 139 pages of the file. This request was rejected.
The lawyer also argued that the prosecutor’s decision affirmed that the NGO’s website contained unlawful campaigning material while the screenshots enclosed to the decision concerned the NGO’s project website Map of Violations. The lawyer also argued that the prosecutor had not properly articulated the accusation, namely by specifying the relevant webpages and texts that allegedly violated the requirements of Article 5.5 of the CAO.
By judgment of 2 December 2011 the peace justice convicted the first applicant and sentenced it to a fine of 30,000 Russian roubles (RUB). The court held as follows:
“[The applicant] unlawfully published the conclusions flowing from its research in relation to the coming elections to the State Duma ... The information resource of [the applicant] has a folder called “Map of Violations. 2011 Elections” that contains statistical data relating to the matter of electoral campaigning and the assessment of such data, as well as the conclusions relating to the assessment of the received messages on the violations during the electoral campaign. Thus, [the applicant] violated the procedure concerning publication of the content relating to the preparation and running of elections ...
The court has no doubt that the defendant published the results of public opinion polls, research reports relating to the ongoing election to the State Duma, as well as statistical data ... less than five days before the election day ...
The court rejects as irrelevant the argument suggesting that the [project website] is not the defendant’s website. It has been properly established that it was the defendant who committed the relevant administrative offence. In addition, the argument remains unsubstantiated with evidence ...”
On 4 December 2011 the elections to the State Duma took place.
On 29 December 2011 the Meshchanskiy District Court of Moscow upheld the judgment of 2 December 2011. The court dismissed the first applicant’s argument that the evidence submitted by the prosecutor concerned the project website and the publications made directly by its users rather than by the first applicant. The court considered that the project website was “a common project, in which [the applicant NGO] was one of the participants; the information posted on the NGO’s Internet platforms less than five days before the election day contained statistical data on the matters of campaigning and the analysis of such data, the analytical conclusions of the received complaints about violations during the electoral campaign.”
The Human Rights Ombudsman of the Russian Federation lodged a review request. On 2 November 2012 the deputy President of the Moscow City Court upheld the lower courts’ decisions on review.
The Human Rights Ombudsman lodged a further review request before the Supreme Court of Russia.
On 22 April 2013 the Supreme Court dismissed the request. The Supreme Court judge concluded that on 29 and 30 November 2011 the results of the NGO’s research had been published on the NGO’s website. This material included statistical data concerning electoral campaigning and analysis of such data, analytical conclusions on the received information concerning violations during the electoral campaign. The material was related to the preparation and running of the electoral campaign.
The judge also stated that the NGO’s website contained a link to the Map of Violations website, both being available to the unlimited audience.
B. Relevant domestic law and practice
1. Expression during an electoral campaign
(a) Legislation applied in the present case
Under Article 29 of the Russian Constitution everyone has a right to freedom of expression and a right to freely seek, receive, transfer, produce or disseminate information, by any lawful means. This constitutional provision also protects the freedom of mass information (свобода массовой информации).
Article 5.5 § 1 of the Federal Code of Administrative Offences was entitled “Violation of the procedure for participation of the mass media in the information support of elections or referenda”. It concerned chief editors of the mass media or its editorial board, legal entities dealing with television or radio broadcasting, as well as “other organisations that disseminate a mass media”. This Article punished violations of the procedure for publishing materials (including campaigning material) that were related to an electoral campaign and elections. The Article was amended in 2011 to also punish violation of the procedure for publishing the above material by means of information and telecommunication networks, “access to which was not limited to a group of people”.
The Mass Media Act of 1991 defined a mass media as a periodic print edition, a television station, a radio station, a television programme, a video programme or “another form of periodic dissemination of mass information under a constant designation (title)” (section 2 of the Act). The Act was amended in June 2011 to include a “network edition” in section 2 and to define it as an Internet website, which was registered as a mass media under the Mass Media Act.
The Electoral Rights Act of 2002 prohibited, within five days of the election day and on the election day, publication of the results of any opinion polls, election result prognoses or other research reports (исследования) relating to the ongoing elections or referenda, including by way of posting such information in telecommunication networks, including Internet, where access is not limited to a group of people (section 46 § 3).
Similar provisions were contained in section 53 of the State Duma Election Act of 2005.
Section 56 of the State Duma Election Act also provided that the electoral campaigning was to stop twenty-four hours before the election day.
(b) Other relevant legislative provisions and case-law relating to the elections and the mass media
(i) Legislation
Section 48 § 2 of the Electoral Rights Act of 2002 defined “pre-electoral campaigning” as calls to vote for or against a candidate, expressions of preference for one or several candidates, description of possible consequences of electing or not electing a certain candidate, dissemination of information with the prevailed content on one of the candidates, dissemination of content on one of the candidate’s activities, which were not related to his employment or official status, or “other actions aimed at inciting voters to cote for candidates or against all candidates”.
In order to comply with the constitutional ruling of 30 October 2003 (see below), in 2005 section 48 § 2 of the Electoral Rights Act was amended with § 2.1, stating that actions by the mass media, consisting in calling to vote for or against a candidate, should be classified as “pre-electoral campaigning”, if such actions have been done with the aims of inciting votes to vote for candidates (see also section 48 § 2.1 of the Electoral Rights Act).
(ii) Constitutional Court of Russia
Ruling of 30 October 2003
In 2003 the Constitutional Court of Russia examined several individual applications (under section 96 of the FCL) and the application from a group of members of the State Duma (under section 84 of the FCL) concerning several provisions of the Electoral Rights Act. On 30 October 2003 the Constitutional Court issued ruling no. 15-P concerning sections 45 § 5 and 48 § 2 of the Electoral Rights Act. The Constitutional Court made the following findings:
- The relevant provisions of the Act did not permit an extensive interpretation of the notion of “pre-electoral campaigning” in so far as its ban is concerned by the professional activities of a mass media. The relevant provisions mean that the unlawful campaigning includes only premeditated acts listed in section 48 § 2, which are directly aimed at such campaigning as different from providing information to the voters, including when, as to its form, this resemble to campaigning.
- The Constitutional Court also ruled that section 45 § 5 should not be interpreted as giving basis for prohibiting the mass media from expressing their opinion, from giving a comment outside the scope of a specific news bulletin.
- The Constitutional Court stated that should not be treated as “pre-electoral campaigning” “other actions” (beyond those listed in section 48) aimed at inciting voters to vote for candidates, lists of candidates or against them, against all candidates or against all lists.
- The Constitutional Court concluded that the above constitutional interpretation of the relevant provisions of the Electoral Rights Act excludes any other interpretation in the judicial practice or another interpretation of similar provisions of other legislation.
- The Constitutional also stated that the above constitutional interpretation of the legal provisions was mandatory for everyone and excluded another interpretation by the courts in respect of the same provisions or similar provisions of other legal acts.
- Furthermore, the Constitutional Court concluded in respect of the individual applicants that their cases were to be re-examined, unless there were obstacles for doing so.
Ruling of 18 June 2006
By ruling no. 7-P of 18 June 2006 the Constitutional Court declared compatible with the Constitutional the provisions of the Electoral Rights Act that prevented citizens (who were not themselves candidates, representatives of candidates or electoral groups) from engaging into “electoral campaigning” for or against a candidate or a list of candidates, by way of incurring expenses outside the electoral funds. The Constitutional Court held as follows:
- Having regard to the need for free expression of the citizens during elections held at reasonable periods and the need for competitive and transparent nature of such elections, the federal legislature must put in place a framework of the information flow, including the rules of electoral campaigning and its funding.
- To reconcile the exercise of the electoral rights, the freedom of expression and freedom of mass information, the federal legislature has discretion to choose the appropriate methods and means that take account of the historical conditions that prevail at a certain stage of the country’s development. To determine the conflict between the competing rights and freedoms, the legislature should respect the balance of the constitutional values, without putting in place disproportionate restrictions that would not be necessary in a democratic society and that would impinge upon the very essence of the protected rights.
- The exclusion of Russian citizens from engaging into electoral campaigning and the absence of legislative safeguards would mean, in substance, to refuse them a realistic possibility to influence the electoral process, confining it to the fact of casting a vote. The absence of free political discussion and possibilities for a free exchange of opinions, including both candidates and citizens, during the elections would remove the possibility to consider such elections as free.
- The legislature must ensure adequate exercise of the citizens’ right to receive and impart information about elections. Under the Electoral Rights Act, the information flow is ensured by way of information about candidates, dates and the procedural for electoral acts), as well as via electoral campaigning aimed at inducing voters to vote for or against a candidate.
- Candidates are allowed to put in place electoral funds and incur expenses from such funds for campaigning purposes; to have broadcast time and access to the print media, for a fee and free of charge. Other citizens are allowed to carry out electoral campaigning, without incurring expenses by way of public gatherings or otherwise. They can also make contributions to electoral funds within the limits prescribed by law.
Judge Kononov issued a separate opinion, considering that non‑candidate citizens had no practical possibility to exercise their active electoral rights by way of having access to the media in order to express their opinion and to influence the results of the election. Recalling the distinction between information (understood as the provision of objective data on events or facts) and campaigning aimed at inducing a vote, the judge noted that a political discussion could not be a dispute about objective facts. Opinions and comments, by their nature, contain a value judgment and a potential to induce a choice or a preference. Moreover, it is frequently difficult to determine the exact goal of an utterance. Thus, exclusion of value judgments from the notion of “information”, their arbitrary classification as “campaigning” and the deprivation of ordinary citizens of a possibility to express their attitude toward a candidate and his or her policy choices significantly impinged upon the constitutional rights under Article 29 of the Constitution.
Decision of 23 April 2013
In 2013 the Constitutional Court examined an application concerning the provisions contained after 2005 in section 48 § 2.1 of the Electoral Rights Act. It issued an inadmissibility decision no. 512-O dated 23 April 2013. The Court stated as follows:
- As stated in the ruling of 30 October 2003, it was necessary to distinguish between campaigning and information because the absence of such distinction had adverse consequences for the mass media in that it would unlawfully restrict the constitutional guarantees of the freedom of expression and information; it would also violate the principle of free and open elections. As stated in the ruling, the primary criterion for distinguishing between campaigning and information must be the presence of a special goal for an campaigning activity, that is to incline the voters into one direction, to secure support or, to the contrary, to secure opposition to a specific candidate or an electoral block.
- The Constitutional Court also made findings in its 2003 ruling on the provisions of the Electoral Rights Act concerning the procedure for giving information and requiring that the news bulletins and printed publications must confine their information about pre-electoral events to one separate information note, without comments and without giving preference to a certain candidate or electoral block. The Constitutional Court held in the ruling that the above provisions should not be interpreted as banning the mass media from expressing their opinion, from giving a comment outside the scope of the information note.
- Thus, assessing the impugned legislative provision within the scope of the current regulatory framework and the above-mentioned statements of principle by the Constitutional Court and taking into account the special role of the mass media in the electoral process, the impugned provision cannot be perceived as giving preference to the mass media as compared to other participants in the electoral process. Thus, the impugned provision does not violate the applicant’s rights in the relevant aspect.
2. Review under the CAO
The reviewing authority or court examines the existing and new evidence and decides on the legality and well-foundedness of the impugned decision. The reviewing court is empowered to hear oral evidence or to take other procedural measures (Article 30.6 of the CAO). The reviewing court is not bound by the scope of the appeal and reviews the case in its entirety.
3. Human Rights Ombudsman
Under section 29 of the Human Rights Ombudsman Act (Federal Constitutional Law no. 1-FKZ of 26 February 1997) following examination of a complaint, the Ombudsman may lodge an application before a court in order to challenge a final court decision.
C. Council of Europe document
Recommendation CM/Rec(2007)15 of the Committee of Ministers to member states on measures concerning media coverage of election campaigns
“...
Principles
I. General provisions
...
8. Opinion polls
Regulatory or self-regulatory frameworks should ensure that the media will, when disseminating the results of opinion polls, provide the public with sufficient information to make a judgement on the value of the polls. Such information could, in particular :
- name the political party or other organisation or person which commissioned and paid for the poll;
- identify the organisation conducting the poll and the methodology employed;
- indicate the sample and margin of error of the poll;
- indicate the date and/or period when the poll was conducted.
All other matters concerning the way in which the media present the results of opinion polls should be decided by the media themselves.
Any restriction by member states forbidding the publication/dissemination of opinion polls (on voting intentions) on voting day or a number of days before the election should comply with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as interpreted by the European Court of Human Rights.
Similarly, in respect of exit polls, member states may consider prohibiting reporting by the media on the results of such polls until all polling stations in the country have closed.
9. “Day of reflection”
Member states may consider the merits of including a provision in their regulatory frameworks to prohibit the dissemination of partisan electoral messages on the day preceding voting or to provide for their correction. ...”
COMPLAINTS
The applicants allege under Article 6 of the Convention that the proceedings on the administrative offence charge were unfair; that they were not afforded “adequate time and facilities” to understand the nature and cause of the accusation and to prepare their defence, in particular on account of the swift course of the pre-trial and trial proceedings.
The applicants argue that the administrative offence proceedings disclosed a violation of their freedom under Article 10 of the Convention, in particular their freedom to impart information to the voters in the national election in a non-partisan matter and, inter alia, by way providing a forum to those who wished to report violations relating to this election. The domestic statutes relating to the “silence period” and the domestic courts should have made a distinction between “campaigning” (for instance, via partisan publications) and mere provision of information.
QUESTIONS TO THE PARTIES
1. Did the first applicant have a fair hearing in the determination of the “criminal charge”, in accordance with Article 6 § 1 of the Convention? In particular:
- Was the applicant informed in sufficient detail of the nature and cause of the accusation, as required by Article 6 § 3 (a) of the Convention? Was the applicant afforded adequate “time and facilities” to prepare the defence, as required by Article 6 § 3 (b) of the Convention?
- Did the appeal proceedings or ensuing review proceedings remedy the alleged procedural shortcomings at the trial (cf. Khrabrova v. Russia, no. 18498/04, § 52, 2 October 2012)?
2.1. Has the first applicant exhausted domestic remedies as regards the complaint under Article 10 of the Convention, in so far as a constitutional complaint was concerned? Did the domestic law contain a specific time-limit for using such remedy?
2.2. Has there been a violation of Article 10 of the Convention in relation to the first applicant’s right to freedom of expression, in particular the freedom to receive and impart information and ideas (see Delfi AS v. Estonia [GC], no. 64569/09, §§ 110-162, 16 June 2015; Bowman v. the United Kingdom, 19 February 1998, §§ 38-47, Reports of Judgments and Decisions 1998‑I, and TV Vest AS and Rogaland Pensjonistparti v. Norway, no. 21132/05, §§ 63-78, ECHR 2008 (extracts))? In particular:
- Was the applicable legislation, in particular the notion of “other research reports” in section 46 § 3 of the Electoral Rights Act of 2002, sufficiently clear, precise and foreseeable?
- What legitimate aim in terms of Article 10 § 2 of the Convention was pursued by the six-day “silence period” under the electoral legislation and by the administrative offence liability under Article 5.5 of the CAO as such and as applied to the applicant?
- Did the applicable legislation, as applied to the applicant, draw any distinction between printed, broadcasted or Internet publications? Was the first applicant found liable, inter alia, for merely hosting posts that were made there by the website users? To what extent these considerations were or should have been relevant to the applicant’s claim and the State’s margin of appreciation?
3. Did the administrative offence proceedings entail a violation of the second and third applicants’ rights under Articles 6 and 10 of the Convention?
4. Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the administrative offence file in respect of the first applicant; any available material on the legislative process relating to the adoption of the six-day silence period.
Full & Egal Universal Law Academy