Communicated on 4 February 2021
Published on 22 February 2021
THIRD SECTION
Application no. 33215/17
OOO IZDATELSTVO MIG
against Russia
lodged on 20 April 2017
STATEMENT OF FACTS
1. The applicant company, OOO Izdatelstvo Mig, is a limited-liability company established under Russian law in 2009 with the registered office in Astrakhan. It is represented before the Court by its sole founder and director, Mr N. Bashirov, and by Ms M. Ledovskikh, a lawyer practising in Voronezh.The circumstances of the case
2. The facts of the case, as submitted by the applicant company, may be summarised as follows.
3. Since 2010 the applicant company has been publishing the weekly newspaper Mig («Миг»).
4. In August 2016 the telecoms and media regulator Roskomnadzor conducted a planned audit of the newspaper. It established that 566 copies of Issue 23 had been printed on 16 June 2016, whereas its 2010 application for State registration stated an estimated circulation of 300 copies. It charged the applicant company with an offence under Article 13.23 of the Code of Administrative Offences for failing to provide written notice of an increase in the maximum volume of the newspaper. That notice was allegedly required under section 11(4) of the Mass Media Act.
5. On 16 September 2016 a justice of the peace in the Kirovskiy District in Astrakhan found the applicant company guilty as charged and fined it 10,000 Russian roubles (RUB, approximately 150 euros on the date of judgment). The judge considered the report on an administrative offence and copies of the 2010 application form and of the 16 June 2016 issue to be sufficient evidence of the offence.
6. In their grounds of appeal, the applicant company submitted that the court arbitrarily conflated the “volume” of a periodical with its circulation. Sections 10 and 11 of the Mass Media Act established an obligation to inform the authorities of the “maximum volume” of a periodical, that is to say, how many sheets, pages or columns a newspaper contained. Conceptualising “circulation” as an element of “volume” had no legal basis because it appeared only in a registration form created by the Ministry for Mass Communications which did not have legal authority to give a new definition to the terms of the Mass Media Act. Circulation could change from one issue to the next, depending on the demand, and the requirement to notify changes one month in advance was impossible to fulfil. It was not specified whether the annual, average or daily circulation should be taken into account. Lastly, the applicant company submitted that the amount of fine was excessive and disproportionate to the formal violation. The newspaper was exempt from State registration because of its small circulation. It was losing money; 266 copies were sold RUB 5 apiece and the remainder was distributed free of charge among socially disadvantaged groups.
7. On 20 October 2016 the Kirovskiy District Court in Astrakhan rejected the appeal in a summary fashion.Relevant domestic lawMass Media Act (Law no. 2124-1 of 27 December 1991)
8. The application for State registration of a periodical shall specify, in particular, the founder or founders, the title, the language, the address of the editor’s office, the estimated frequency of publication and its maximum volume (section 10).
9. The founder of a periodical shall inform the registration authority in writing within one month of a change in the address of the editor’s office, the website address, frequency of publication or its maximum volume (section 11(4) at the material time, currently section 11(2)).
10. Print periodicals with a circulation of no more than one thousand copies are exempt from State registration (section 12).
11. Each issue of a periodical shall indicate, in particular, the title, the identity of its founder, the name of the editor-in-chief, the sequential number of the issue, the date of issue, and the circulation (section 27).
12. The circulation of a periodical is determined by the editor-in-chief in agreement with the publisher (section 28).Code of Administrative Offences
13. Article 13.23 establishes that a company’s failure to submit a written notice when it is required by law is punishable with a fine of between 10,000 and 20,000 Russian roubles.Application form for State registration
14. The Ministry for Mass Communications approved the form of application for State registration of periodicals by Order 362 of 29 December 2011. Section 7 – where the estimated frequency of publication and its maximum volume need to be specified – indicates that the maximum volume of print periodicals includes the number of pages, the paper format and the circulation.Technical standards
15. The State technical standard for the statistical registration of non-periodical and periodical publications GOST 7.81-2001 defines “volume of a publication” as “a quantitative measure of a publication expressed in sheets, pages, columns” (paragraph 3.13), and “circulation” as “a quantitative measure of the volume of publishing output expressed in number of copies” (paragraph 3.17).
COMPLAINTS
16. The applicant company complains under Article 10 of the Convention that the finding of liability for not reporting an increase in circulation was not based on clear and foreseeable provisions of national law or necessary in a democratic society.
QUESTIONS TO THE PARTIES
As regards the finding of liability of the applicant company for failing to notify an increase in circulation, has there been a violation of Article 10 of the Convention? In particular,
(a) Were the provisions of Russian law sufficiently foreseeable to meet the “quality of law” requirement? Were the concepts of “volume” and “circulation” defined in a federal law? Was it sufficiently clear which circulation – annual, average or daily – should have been taken as the basis for the reporting requirement?
(b) What legitimate aim did the measure pursue?
(c) Was the measure necessary in a democratic society (see, for the relevant principles, Morice v. France [GC], no. 29369/10, § 124, ECHR 2015)?
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