CASE OF YARTSEVA v. RUSSIA

THIRD SECTION

CASE OF YARTSEVA v. RUSSIA

(Application no. 19273/08)

JUDGMENT
 

STRASBOURG

25 February 2020

This judgment is final but it may be subject to editorial revision.

In the case of Yartseva v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 28 January 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 19273/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Galina Valentinovna Yartseva (“the applicant”), on 9 February 2008.

2.  The applicant was represented by Mr Y. Mylnikov, a lawyer practising in Velikiy Novgorod. The Russian Government (“the Government”) were represented Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3.  On 11 January 2018 notice of the complaint concerning the applicant’s right to freedom of expression was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1963 and lives in Velikiy Novgorod.

5.  The applicant was the founder and the editor of Russkiy Karavan, a newspaper distributed in Velikiy Novgorod. Some 5,000 copies were distributed randomly by volunteers, for instance, at bus stops. The applicant paid for the production of the newspaper. The edition of 15 October 2007, for instance, cost her 6,018 Russian roubles (RUB; approximately 170 euros (EUR) at the time).

6.  On 15 October and 26 November 2007 the applicant authored and published in Russkiy Karavan three articles entitled “For the indestructible union of Communists and the non-affiliated”, “Russia guards its borders” and “Signs of the time. Simplicity is worse than stealing”.

7.  In the same editions the applicant also published articles entitled “Under another person’s name” and “Russia for Russians too”.

8.  On 27 and 6 December 2007 the Prosecutor’s Office of Velikiy Novgorod initiated proceedings against the applicant, accusing her of unlawful pre-election campaigning in breach of the Code of Administrative Offences (CAO) (see paragraph 18 below) on account of the publication of the articles mentioned above.

9.  The applicant argued that her prosecution for allegedly breaching certain requirements of the legislation restricting the print media’s functioning during an election period had violated her right to freedom of expression under Article 10 of the Convention. For instance, she submitted that the article “For the indestructible union of Communists and the non‑affiliated” was an invitation for a wide debate on a matter of public interest, namely the removal of the line “against all candidates” from vote ballots. It discussed possible options for a voter who did not like any of the candidates on the ballot paper. The article indicated that some choices might result in ballots being declared invalid, and that such a finding would benefit the United Russia party. At the same time, the article expressed a fear that the “leftist” parties might only win less than seven percent of votes and thus would not obtain any seats in the State Duma. Those circumstances might result in the excessive dominance of the ruling party, United Russia. Thus the article sought to guard against restauration of the one-party system from the Soviet times and the destruction of political pluralism.

10.  According to the applicant, the articles “Russia guards its borders” and “Signs of the time. Simplicity is worse than stealing” concerned the topic of Russian citizenship and the related (arguably, controversial) federal law that had been adopted, inter alia, by the members of United Russia. The first article was based on a story of a child born in Russia.

11.  By a judgment of 11 December 2007 a justice of the peace convicted the applicant under Article 5.11 of the CAO and sentenced her, as the editor of Russkiy Karavan, to a fine of RUB 2,000 (EUR 56 at the time) for the articles “Russia guards its borders” and “Signs of the time. Simplicity is worse than stealing”, as well as for another article (“Russia for Russians too”).

12.  In the court’s view, the following part of “Russia guards its borders” contained calls not to vote for the United Russia party and described the consequences of electing its candidates:

“In order to save the kid we need to abolish the anti-Russian statute on Russian citizenship that was adopted by the United Russia [party] in 2002. They do not want to do it. We can save the kid and thousands of Russians from the fate of outcasts. To do this, abstain from voting for United Russia.”

13.  In the court’s view, the following part of “Signs of the time. Simplicity is worse than stealing” contained calls not to vote for the United Russia party and described activities aimed at creating a negative image of that party:

“The massive psychosis of exalting Putin is being fostered by the United Russia [party]. It has affected the awesomely independent judiciary who now treat Putin’s word as the law. However, it would be unfair to blame only the judiciary. It is not capable of remedying the defects of the law as such by way of its decisions. It is also true that not all outcasts from distant villages know about the possibility of going to a court. Thus it is the legislature (or, in reality, United Russia) that must correct the defect (or the intentional ugliness) of the new statute on citizenship. They do not want to do that. So the only way to save our compatriots is to not vote for the United Russia [party].”

14.  By another judgment of 11 December 2007 the justice of the peace convicted the applicant under Articles 5.10, 5.11 and 5.20 of the CAO. She was sentenced to a fine of RUB 3,000 (EUR 84 at the time) for the article “For the indestructible union of Communists and the non-affiliated” and another article (entitled “Under another person’s name”).

15.  In the court’s view, the following part of “For the indestructible union of Communists and the non-affiliated” contained calls to vote for the Communist Party of the Russian Federation:

“The Communist Party of the Russia Federation is the only force that is capable of opposing the United Russia [party] today, and this is despite the Communist Party’s mistakes and claims that many citizens might have against it. Let us unite around it. There are other parties that inspire respect and trust. However, a vote for them would partition the votes and thus would improve the chances of United Russia ... Receiving less than seven percent of votes, the leftist parties will not get seats in the Duma while at the same time each of those parties would take some 3 or 4 percent away from the Communist Party. Remember that there is a real threat of United Russia’s total dominance and we have seen it blossom.”

16.  The justice of the peace considered, inter alia, that the article “For the indestructible union of Communists and the non-affiliated” constituted an unlawful election contribution in the amount of RUB 6,018 to the Communist Party of the Russian Federation’s participation in the ongoing election to the State Duma.

17.  On 10 and 11 January 2008 the Novgorod Town Court upheld the judgments.RELEVANT DOMESTIC LAW AND PRACTICE

18.  Article 5.10 of the CAO proscribes pre-election campaigning outside the official campaigning period. Article 5.11 of the CAO proscribes pre‑election campaigning by persons who are not authorised by law to engage in pre-election campaigning. Article 5.20 of the CAO proscribes financing an electoral campaign outside the scope of a candidate’s electoral fund or by way of providing free services or services for manifestly reduced or increased fees, when the aim of the above-mentioned actions are directed at obtaining a desired election result and when the relevant candidate has not given his written consent and has not paid for them from his or her electoral fund.

19.  For a summary of other relevant domestic law and judicial practice, see Orlovskaya Iskra v. Russia (no. 42911/08, §§ 36-51, 21 February 2017).

THE LAWALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

20.  The applicant complained under Article 10 of the Convention about the classification of the material she had published as “election campaigning” and the fines imposed on her in the administrative-offence cases.

21.  Article 10 of the Convention reads, in the relevant parts, as follows:

“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 ...

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.”Admissibility

22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

23.  The applicant’s complaint before the Court is limited to the “interferences” relating to three newspaper articles (see paragraph 5 above). The Court observes that the essential legal aspects of the present case (in particular, in relation to the applicant’s convictions under Articles 5.10 and 5.11 of the CAO in relation to those articles) are similar to those already examined by the Court in Orlovskaya Iskra v. Russia (no. 42911/08, 21 February 2017). Namely, the main thrust of both cases concerns the notion of “pre-election campaigning” under Russian law carried out in the print media by people who were not authorised to do so.

24.  In Orlovskaya Iskra the Court assessed the regulatory framework that had been applied to that applicant and held as follows:

“117. The Government’s central argument was that the regulatory framework was acceptable because for a period during the electoral campaign it was obligatory for the print media to demonstrate a degree of neutrality and objectivity in their coverage of the election. The applicant organisation argued in reply that the ‘campaigning’ regulations entailed an excessive restriction on public debate in the print media during the election period.

118. The Court takes note of the Russian legislature’s choice of preventing mass media outlets from participating on their own in ‘election campaigning’, that is from acting in a way intended to induce voters to vote for or against a candidate or a political party. The legislation covers articles, such as that in the present case, which focus predominantly on one person in combination with commentaries. It is also noted that the Russian legislature put in place a regulatory framework aimed at defining the scope of the media’s work during elections and providing for penalties for related breaches.

...

121. ... the publication of the impugned articles by the applicant organisation constituted a fully-fledged exercise of its own freedom of expression, namely the choice to publish the articles, thus imparting information to the readers and potential voters ...

122. Bearing in mind the approach outlined in Animal Defenders International, cited above, §§ 106-11, the Court will consider whether the above regulatory framework and the effects it entailed in the present case were in conformity with the Convention ...

123. The Court has had the benefit of reading the Russian Constitutional Court rulings of 30 October 2003 and 16 June 2006, its decision of 25 December 2008 on the applicant organisation’s application, and a number of other decisions. This Court has carefully examined the reasoning put forward by the Russian Constitutional Court to justify the distinction between ‘information’ and ‘campaigning’ and, foremost, for restricting the activity of mass media outlets during an election campaign.

124. It transpires from the constitutional ruling of 16 June 2006 (see paragraph 51 above) that the regulatory framework was meant to ‘take account of the historical conditions that prevail[ed] at a particular stage of the country’s development’ when ‘the need to ensure transparent financing of elections required reinforced safeguards’, ‘also taking into account the [then] current realistic possibility of control over the financing of elections’. Judge Kononov, in his separate opinion to the ruling of 30 October 2003, suggested that the exclusion of mass media outlets from engaging in election campaigning might be aimed at dealing with the issue of ‘black PR’ ...

125. The Court reiterates in this connection that by reason of their direct and continuous contact with the vital forces of their countries, their societies and their needs, the legislative and judicial authorities are best placed to assess the particular difficulties in safeguarding the democratic order in their State (see Animal Defenders International, cited above, § 111). The State must therefore be accorded some discretion as regards this country-specific and complex assessment which is of central relevance to the legislative choices at issue (ibid.). However, neither the above rulings themselves nor the Government in the present case developed this line of argument, in particular to demonstrate how the special regulations in question related to and actually addressed the situation mentioned in paragraph 124 above in a proportionate manner while being ‘necessary in a democratic society’.

126. The Court has at its disposal no information relating to the quality of the parliamentary review of the necessity of the special regulatory framework, to enable the Court to ascertain the operation of the relevant margin of appreciation.

127. As to the practical implications of the special regulations on the freedom of expression, as the Constitutional Court admitted, despite their formal distinction both information and campaigning could induce voters to make a certain choice; the only criterion to distinguish between them would be the existence of a particular campaign aim, namely to incline the voters to support or oppose a certain candidate ...

128. In the Court’s view, while it may be desirable, for the sake of the ‘free expression of the opinion of the people in the choice of the legislature’ or another legitimate and compelling consideration, for publications to contain a review of several candidates or parties or their programmes, it is difficult if not impossible to ascertain whether the content in relation to a candidate should be perceived as a mere ‘negative comment’ or whether it had a ‘campaigning’ goal. The domestic regulative framework restricted the activity of the print media on the basis of a criterion that was vague and conferred a very wide discretion on the public authorities that were to interpret and apply it.

129. Foremost, it has not been convincingly demonstrated, and the Court does not find sufficient basis for upholding the Government’s argument, that the print media should be subjected to rigorous requirements of impartiality, neutrality and equality of treatment during an election period ...

130. In the Court’s opinion, at election time the press assists the ‘free expression of the opinion of the people in the choice of the legislature’. The ‘public watchdog’ role of the press is no less pertinent at election time ... This role is not limited to using the press as a medium of communication, for instance by way of political advertising, but also encompasses an independent exercise of freedom of the press by mass media outlets such as newspapers on the basis of free editorial choice aimed at imparting information and ideas on subjects of public interest. In particular, discussion of the candidates and their programmes contributes to the public’s right to receive information and strengthens voters’ ability to make informed choices between candidates for office ...

131. Having said this, it remains the case that both during and outwith an election period, the print media’s activity is subject to the requirement to act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see the cases cited in paragraph 109 above) and considerations relating to certain boundaries, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information. In this connection, the assessment of impugned publications should, as it is for instance in defamation cases, be subject to the traditional criteria under Article 10 of the Convention, including the distinction to be drawn between statements of fact and value judgments ...

133. In the Court’s view, the applicable regulatory framework excessively and without compelling justification reduced the scope for press expression by restricting the number of participants and impinging upon the applicant organisation’s freedom to impart information and ideas during the election period and was not shown to achieve, in a proportionate manner, the aim of running fair elections.

...

134. The Court concludes that, in view of the regulatory framework, the applicant organisation was restricted in its freedom to impart information and ideas. By subjecting the expression of comments to the regulation of ‘campaigning’ and by prosecuting the applicant with reference to this regulation, there was an interference with the applicant organisation’s editorial choice to publish a text taking a critical stance and to impart information and ideas on matters of public interest. No sufficiently compelling reasons have been shown to justify the prosecution and conviction of the applicant organisation for its publications at election time.”

25.  The respondent Government have not pointed out any essential factual or legal elements distinguishing the present case from Orlovskaya Iskra. Nor have they put forward any specific argument pertaining to the legitimate aim(s) pursued by the applicable provisions of Russian law regulating pre-election campaigning and the role of the print media, or the legislation punishing certain actions held against the applicant under Articles 5.10 and 5.11 of the CAO. For its part, the Court considers that its findings in Orlovskaya Iskra pertaining to the state of the domestic law and judicial practice are applicable in the present case.

26.  At the same time, it has not been suggested, and the Court does not find on the basis of the available material, that either the applicant or Russkiy Karavan was affiliated to any political party, electoral group or candidate. Nor has it been argued or otherwise raised as part of the subject‑matter before the domestic courts that the applicant had failed to act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism or exceeded the acceptable boundaries, for instance as regards the reputation and rights of others.

27.  In the Court’s view, the applicable regulatory framework excessively and without compelling justification reduced the scope for expression in the press by restricting the number of participants and by impinging upon the applicant’s freedom of expression during the election period. Furthermore, it has not been shown to achieve, in a proportionate manner, for instance, the aim of running fair elections. By subjecting the expression to the regulations concerning “campaigning” and by prosecuting the applicant with reference to those regulations, there was an interference with her (inter alia, editorial) choice to publish texts taking a critical stance and to impart information and ideas on matters of public interest (for the specific parts of the articles held against the applicant, see paragraphs 12, 13 and 15 above). No sufficiently compelling reasons have been given to justify the prosecution and conviction of the applicant for her publications during an election period.

28.  There has accordingly been a violation of Article 10 of the Convention as regards the applicant’s convictions under Articles 5.10 and 5.11 of the CAO.

29.  Having reached this conclusion and also noting the absence of any specific argument pertaining to the conviction under Article 5.20 of the CAO and the related legislative framework affecting what might be classified as unsolicited non-monetary contributions to an electoral campaign of a party or a candidate, including by means engaging one’s freedom of expression (compare with Bowman v. the United Kingdom, 19 February 1998, § 47, Reports of Judgments and Decisions 1998‑I), the Court does not find it necessary to make a separate assessment of the merits of this distinct issue in the present case.APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

31.  The applicant claimed 5,000 euros (EUR) in respect of non‑pecuniary damage.

32.  The Government contested the claim.

33.  The Court awards the applicant EUR 2,600 in respect of non‑pecuniary damage, plus any tax that may be chargeable.Costs and expenses

34.  The applicant made no claim under this heading. Thus the Court makes no award.Default interest

35.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint concerning freedom of expression admissible;Holds that there has been a violation of Article 10 § 2 of the Convention as regards the applicant’s convictions under Articles 5.10 and 5.11 of the CAO;Holds that it is not necessary to examine separately the merits of the complaint under Article 10 of the Convention as regards Article 5.20 of the CAO;Holds

(a)  that the respondent State is to pay the applicant, within three months EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;Dismisses the remainder of the claim for just satisfaction.

Done in English, and notified in writing on 25 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

               Stephen PhillipsPaulo Pinto de Albuquerque
RegistrarPresident

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