Information Note on the Court’s case-law No. 153
June 2012
Communist Party of Russia and Others v. Russia - 29400/05
Judgment 19.6.2012 [Section I]
Article 3 of Protocol No. 1
Choice of the legislature
Free expression of opinion of people
Allegations of biased media coverage of parliamentary elections: no violation
Facts – The applicants are two Russian political parties – the Communist Party of the Russian Federation and the Russian Democratic Party “Yabloko” – and six Russian nationals. In December 2003, during the election of members to the State Duma all of them positioned themselves as opposition parties and candidates. The pro-government forces were represented essentially by the United Russia Party, which obtained a majority of the votes (over 37%) and formed the biggest grouping in Parliament with 224 seats. The Communist Party won 12.6% of the vote and obtained 52 seats, and accordingly formed the second biggest grouping in the Duma. Yabloko obtained 4.3% of the vote. Since this was less than the statutory 5% minimum threshold, it did not obtain any seats in parliament. Only one of the six individual applicants was elected as an MP. The five main nationwide broadcasting companies covered the elections. Three of them were directly controlled by the State, and corporations affiliated with the State were major shareholders of the other two. During the electoral campaign each State broadcasting company was required to provide the competing candidate parties with one hour of free airtime per working day on each TV or radio channel they controlled. In addition, parties and candidates could buy a certain amount of paid airtime for campaigning on an equal footing with the others. Besides “campaigning”, all channels were involved in reporting on the elections in various news items. The applicants maintained that the media coverage was unfair, that the five major TV channels in fact campaigned for the ruling party, that airtime was allocated unevenly and that the information disseminated was not neutral. Many observers monitoring the elections noted that the TV media coverage was unfavourable to the opposition. The applicants lodged a series of complaints with the administrative authorities and courts on different grounds related to these allegations, but to no avail.
Law – Article 13: The applicants had complained not of one or several isolated cases of unlawful campaigning, but of the entire media policy of five broadcasters over a period of three months. They had tried to have the results of the elections invalidated. It had been within the powers of the Supreme Court to annul the results of the elections if it had detected serious breaches of electoral law, including those related to the alleged unlawful campaigning. Therefore the applicants had had access to a legal remedy capable of satisfying their claim, at least in theory. Their allegations had been reviewed at two levels of jurisdiction by the Supreme Court of Russia, the highest judicial body in electoral matters, which had had full jurisdiction over the case and had been entitled inter alia to invalidate the results of the elections. The independence of the Supreme Court as such had not been called into question. Furthermore, no serious flaws in the procedure before the Supreme Court were detected which would have made that remedy ineffective. The applicants had been well prepared for the hearings, had gathered and produced extensive material in support of their claims and had been able to make long oral and written submissions. The sampling method applied by the Supreme Court to examine the materials submitted by the applicants did not seem arbitrary or manifestly unreasonable. In particular, the Supreme Court had examined recordings of the five television channels for fourteen days and delivered a reasoned judgment. In sum, the proceedings before the Supreme Court had afforded the basic guarantees inherent in Article 13. Russian law had provided the applicants with a remedial legal mechanism capable of addressing their grievances under Article 3 of Protocol No. 1.
Conclusion: no violation (unanimously).
Article 3 of Protocol No. 1: As a matter of principle the Court was competent to examine complaints about the allegedly unequal media coverage of elections under Article 3 of Protocol No. 1. As regards the alleged media manipulation by the Government, in previous cases under Article 3 of Protocol No. 1 the Court had had to consider a specific legislative provision or a known administrative measure. In the present case the applicants had claimed that the de jure neutrality of five nationwide channels had not existed de facto. The Court noted, however, that the Supreme Court had not found that the media coverage had been equal in all respects, but had found in essence that no proof of political manipulation had been adduced, and that no causal link between media coverage and the results of the elections had been shown. The SPS political party, which had obtained generally positive media coverage, had not even passed the minimal electoral threshold, while the Rodina political block had obtained a much better score at the elections despite poor media coverage. Therefore, the Supreme Court’s arguments in this part did not appear arbitrary or manifestly unreasonable. Moreover, the applicants had not adduced any direct proof of abuse by the Government of their dominant position in the capital or management of the TV companies concerned. Nor had they sufficiently explained how it was possible, on the basis of the evidence and information available and in the absence of complaints of undue pressure by the journalists themselves, to distinguish between Government-induced propaganda and genuine political journalism and/or routine reporting on the activities of State officials. It followed that the applicants’ allegations of abuse by the Government had not been sufficiently proven.
The next question was thus whether the State had been under any positive obligation under Article 3 of Protocol No. 1 to ensure that media coverage by the State-controlled mass-media was balanced and compatible with the spirit of “free elections”, even where no direct proof of deliberate manipulation had been found. The system of electoral appeals put in place in the present case had been sufficient to comply with the State’s positive obligation of a procedural character. Turning to the substantive aspect, the State had been under an obligation to intervene in order to open up the media to different viewpoints. The applicants had obtained some measure of access to the nation-wide TV channels; thus, they had been provided with free and paid airtime, with no distinction made between the different political forces. The amount of airtime allocated to the opposition candidates had not been insignificant. Similar provisions regulated access of parties and candidates to regional TV channels and other mass media. In addition, the opposition parties and candidates had been able to convey their political message to the electorate through the media they controlled. The arrangements which existed during the 2003 elections had guaranteed the opposition parties and candidates at least minimum visibility on TV. As regards the allegation that the State should have ensured neutrality of the audio-visual media, the applicants’ claims had not been sufficiently substantiated. Certain steps had been taken to guarantee some visibility of opposition parties and candidates on Russian TV and to secure editorial independence and neutrality of the media. Probably, these arrangements had not secured de facto equality. However, when assessed in the light of the specific circumstances of the 2003 elections as they had been presented to the Court, and regard being had to the margin of appreciation enjoyed by the States under Article 3 of Protocol No. 1, it could not be considered established that the State had failed to meet its positive obligations in this area to such an extent that it had amounted to a violation of that provision.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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