CASE OF DZHAVADOV v. RUSSIA
Violation of Art. 10
Christos Rozakis
6. The applicant was born in 1959 and lives in Belgorod. 7. On 23 October 2002 the applicant filed an application with the Ministry for the Press, Television and Radio Broadcasting and Mass Communications (hereafter “the Ministry”), for registration of a newspaper entitled Letters to the President (Письма Президенту). 8. By letter of 23 January 2003, the deputy head of the Ministry's Department for Registration and Licensing informed the applicant that, judging by its title, the newspaper could be perceived as an official bulletin published by a competent State authority. As that was likely to mislead potential readers, the applicant was advised to “obtain the approval of the competent authorities”. 9. The applicant replied to the deputy head and to the Minister, insisting that either the newspaper be registered or an official refusal be issued. 10. On 3 July 2003 the applicant challenged the Ministry's failure to act before the Tverskoy District Court of Moscow. He claimed that he had satisfied the legal requirement to be the founder of a newspaper and that the Ministry's procrastination was unlawful. 11. On 9 July 2003 the applicant received the Ministry's official refusal to register the newspaper, based on two grounds. First, it was said that the information in the application was “inconsistent with the real state of affairs” (сведения, не соответствующие действительности) because the newspaper purported to cover a broader range of subjects than its title suggested. Second, the Ministry considered that only the Administration of the President of the Russian Federation could consent to the publication of letters to the President or be a founder of a newspaper with such a title. 12. On 15 July 2003 the applicant amended his claim, seeking to have the Ministry's refusal overturned. 13. On 3 September 2003 the Tverskoy District Court of Moscow upheld the refusal on the following grounds: “... The court considers it possible to agree with the argument [of the Ministry] that the title of a newspaper denotes its specialisation which [in this case] could be perceived by the readership as an official publication founded by a competent State body ... which prepares the President's direct answers to incoming letters from citizens. The court considers that the above fact may give rise to incompatibility of the actual specialisation of the publication under the title Letters to the President with the current legislation. In this connection the court concludes that the Ministry's argument as regards the specialisation of the newspaper in question is a sufficient ground to refuse its registration ... under section 13(1)(2) of the Mass Media Act, which does not violate [the applicant's] rights to found a newspaper and to choose its title ...” 14. On 22 December 2003 the Moscow City Court upheld the judgment of the district court, endorsing the above reasoning. The court also held: “...the [first-instance] court rightly concluded that [the applicant] had failed to comply with the time-limit for bringing court proceedings without a valid excuse. Having received on 23 January 2003 the refusal to register his newspaper, he lodged his claim before a court only on 3 July 2003 ... The expiry of the three-month time-limit for lodging such claim is an independent reason for rejecting the applicant's claims (Article 256 § 2 of the Code of Civil Procedure).” 15. A newspaper may be founded by an adult who has not been convicted or declared legally incapable (section 7). The editor's office may begin functioning upon registration of a newspaper; an application for registration is to be examined within one month of being lodged (section 8). 16. An application for registration must specify, in particular, the title of the newspaper and an approximate list of subjects and/or specialisation (section 10(2) and (7)). 17. Registration may only be refused on the following grounds: (1) the application is lodged by an individual who cannot be a founder; (2) the information in the application is “inconsistent with the real state of affairs”; (3) the title, range of subjects and/or specialisation represent an abuse of the freedom of mass media as defined in section 4; (4) if an existing newspaper with the same title has been registered earlier (section 13). 18. Section 4 prohibits using the mass media for the commission of criminal offences, the disclosure of State secrets or protected information, for extremist activities, or for the dissemination of pornography or the promotion of violence and cruelty. 19. An individual may bring a complaint within three months of the date when he or she became aware of a violation of his or her rights or freedoms (Article 256 § 1). The court must examine the reasons for any failure to comply with the three-month period and may reject the complaint on that ground (Article 256 § 2). 20. If the complaint is rejected owing to failure to comply with the time-limit for lodging the complaint before a court without a valid reason, the court's reasoning must be limited to the indication of the circumstances confirming the above (Article 198 § 4).