CASE OF ORLOVSKAYA ISKRA v. RUSSIA
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to impart information);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant is a non-governmental organisation that publishes Orlovskaya Iskra, a newspaper in the Orel Region. As of March 2003, the Orel branch of the Communist Party of the Russian Federation and the Orel branch of the People’s Patriotic Union of Russia, a nationwide movement, were listed as the applicant organisation’s founders. This information was specified on the front page of the newspaper. 6. Pursuant to the Articles of incorporation, the founders were in charge of setting up an editorial board and determining the editorial policy; in the case of disagreement on the editorial policy the matter was to be resolved by a meeting of the founders’ representatives. 7. During the election campaign for the State Duma, the lower chamber of Parliament, on 2 December 2007, the applicant organisation expressed to the Electoral Committee of the Orel Region (see paragraph 41 below) its intention to accept proposals for publication for a fee and, as required by law, published the fees applicable to the publications on behalf of political parties (30,000 roubles (RUB) per page). The applicant organisation specified that the above fee “was not applicable to the newspaper’s founder”. The applicant organisation signed a contract with the Communist Party for this purpose for publications on 7, 14, 21 and 28 November 2007. The contract mentioned a fee of RUB 30,000 per page; the total amount of the contract was RUB 300,000 for ten pages. Some of the publications in the applicant organisation’s newspaper on these dates did mention the Party’s sponsorship, others did not (see paragraph 8 below). 8. Apart from the publications mentioned above, on 7 and 14 November 2007 the applicant organisation’s newspaper also published, in the same weekly issues, two articles written by its staff correspondent, Ms O. Both articles were critical of Mr Stroyev, the then governor of the Orel Region and the former Chairman of the Federation Council (the upper chamber of the Russian Parliament). Governor Stroyev was a candidate at those elections: he was no. 1 on the regional list of United Russia (Единая Россия), a political party aligned with President Putin and dominant in the State Duma. The Communist Party was one of the main opposition parties at those elections. 9. The first article was entitled ‘Hatred, Stroyev style’. It can be summarised as follows. It described Governor Stroyev as a person consumed by hatred towards people who oppose him. The journalist referred to the decision of the governor to wind up a publicly owned newspaper, Gorod Orel. According to journalist O., that decision was a direct consequence of a conflict between Mr Stroyev and the newspaper’s former editor-in-chief who kept criticising Stroyev’s policies. The speaker of the municipal council, who was politically weak owing to a corruption scandal involving municipal land, was unable to oppose the decision of the governor to close the newspaper. Most of the regional journalists under Stroyev became servile; those few who, like the editor-in-chief of Gorod Orel, remained independent and refused to flatter Mr Stroyev, were subjected to pressure and fell victim to Mr Stroyev’s hatred. The article then turned to the story of two deputies of the regional legislature. They were elected as members of the Communist Party and were originally in opposition to Mr Stroyev, but later they both became members of United Russia. One of them was a businessman. The author suspected that the first deputy had changed political sides because of very serious pressure exerted by the Stroyev administration on local businessmen. The second deputy was a history professor. The article suggested that his decision to leave the Communist Party was also forced. The journalist ironically supposed that in fact Mr Stroyev did not want United Russia to win the elections, since he was doing everything to make the electorate angry with the ruling party. In 2006 the town population voted in large numbers for the Communist Party, which was in fact a vote of disapproval of Mr Stroyev’s policies. However, the journalist supposed that Mr Stroyev’s personal interests always prevailed over those of the United Russia party. The town mayor tried to protect himself by joining United Russia, but this was a weak defence against Mr Stroyev’s hatred. The only people Mr Stroyev loved and defended were his own relatives and protégés. The article cited the example of Mr Stroyev’s nephew, a businessman suspected of abuse of public funds and fraud. His case was still pending; the article suggested that regional law-enforcement agencies being discouraged from pursuing the investigation actively. The article then turned to the dismissal of the head of the regional public Audit Chamber, who reported on abuses of funds allocated for road maintenance. The newly appointed head of the Audit Chamber, who was Mr Stroyev’s man, came to the opposite conclusion, namely that the manipulation of the road funds had been perfectly in order. Nevertheless, the money had been spent; as a result, the federal authorities had had to allocate additional funds for road maintenance in the Orel Region. Mr Stroyev tried to get credit for that funding, but it was not United Russia’s money that had been used, as they claimed, but taxpayers’money. In the opinion of the author, by trying to present the whole situation as his personal achievement Mr Stroyev was making a fool of President Putin and of the population of the Orel Region. The article had a long post-scriptum. It cited the European Court’s findings in the case of Chemodurov v. Russia (no. 72683/01, judgment of 31 July 2007). That case concerned a defamation claim lodged by a governor of another Russian region against a journalist of a local newspaper. The case ended with a finding of a violation of Article 10 of the Convention by the Court. The author alluded to similarities between her criticism of Mr Stroyev’s policies and the situation in the Chemodurov case. 10. The second article was entitled ‘Stroyev sues people: people sue Stroyev’. It also concerned several topics. It opened with the statement that the electorate of Orel Region did not trust the authorities and at the 2006 and 2007 elections preferred to support the Communist Party. Next, it touched upon the story of Ms Ch., a former forest inspector who was dismissed from her job as a result of a reorganisation of the forestry authority. Forty-two other workers of the forest authority also lost their jobs. The article alleged that the reform of the forest authorities was initiated by Governor Stroyev in breach of federal legislation. It suggested that the reform was driven by the need to facilitate industrial tree-cutting. Ms Ch. sued the regional authorities, and at the relevant time the proceedings were pending. However, in the opinion of the journalist, there was little hope for impartiality on the part of the regional courts. The article then turned to the case of Ms G., who had made statements critical of the governor during a public rally and had been prosecuted for slander. The article then analysed recent public statements of the governor, who had criticised the policy lines of former President Yeltsin, whereas he himself during that period had been Chairman of the Federation Council, and therefore the second most important statesman in the country. According to the journalist, the proceedings in the case of Mr G. were adjourned, probably because Governor Stroyev wanted to avoid a scandal before the date of elections. The article closed with the suggestion that President Putin should not have associated himself such controversial figures as Governor Stroyev. 11. On 17 November 2007 the Working Group on Informational Disputes of the regional Electoral Committee examined both articles. The Working Group concluded that the articles contained elements of electoral campaigning (агитация). The Working Group concluded as follows: The publications contained “negative, purposeful, systematically published information about a member of the High Political Council of the United Russia political party ... Mr E. Stroyev. The above-mentioned publications have created a negative attitude on the part of the voters towards ... United Russia. Although the text of the articles does not call for people to vote for or against United Russia, all the electorate understand that this is in fact counter-campaigning [against Mr Stroyev]”. The publications “did not correspond to the current information policy of the organisations editing mass media”, which (the policy) was “aimed at informing the voters about the development of the electoral campaign ... [and] about the political parties participating in it”. Those articles, in the opinion of the Electoral Committee, fell “outside the information space created by the political parties during the ongoing electoral campaign”. The publication of those articles was not paid for from the official campaign fund of any party participating in the campaign, contrary to section 52 § 6 of the Electoral Rights Act of 2002. 12. Consequently, in the opinion of the Electoral Committee, publication of those articles amounted to a breach of electoral law punishable by a fine in accordance with Article 5.5 of the Federal Code of Administrative Offences (CAO). 13. The official of the Electoral Committee compiled an administrative offence record against the applicant organisation, referring to the legislative provisions defining “campaigning” (see paragraph 40 below): “[The applicant organisation] has committed an administrative offence: publications on 7 and 14 November 2007 containing elements of election campaigning as defined in sections 10 and 55 § 1(6) of the State Duma Deputies Elections Act” ... Liability for this offence is prescribed under: Article 5.5 § 1 of the CAO.” 14. The case was then submitted to a justice of the peace. On 29 November 2007 the justice of the peace examined the case. At the hearing the editor-in-chief of the newspaper explained that both articles were informational in essence and were not a part of the election campaign. They reflected the author’s opinion of Governor Stroyev. Consequently, there was no need for those articles to be paid for from any candidate’s campaign fund. 15. The judge held that, according to the State Duma Deputies Elections Act of 2005, taken in conjunction with the Electoral Rights Act, “election campaigning” meant publications where information about one of the candidates prevailed and was combined with negative comment about him or her. Having studied the impugned articles the judge agreed with the Electoral Committee that they primarily concerned candidate Stroyev, and secondly were negative. The judge concluded that those articles were in substance election “campaigning”. Such material should either have been paid for from the campaign fund of one of the candidates or have been published free of charge; in any event, the newspaper had been required to indicate who had sponsored the publication. No such mention had been made in the articles. Consequently, the publication of both articles amounted to a breach of the electoral law. The applicant organisation was therefore found guilty of the administrative offence described in Article 5.5 § 1 of the Code of Administrative Offences of 2001 (hereinafter “the CAO”). The justice of the peace ordered the applicant organisation to pay a fine of 35,000 roubles (RUB, equivalent to 1,000 euros (EUR) at the time). 16. The applicant organisation appealed to the Zheleznodorozhny District Court of Orel. On 27 December 2007 it heard the applicant organisation’s representatives and rejected the appeal. The relevant extract from the judgment reads as follows: “Having regard to the fact that the publication of the above articles took place during an election campaign period, the judge considers that the above-mentioned articles contained elements of election campaigning, and therefore could be described as campaign literature. This conclusion is supported by the words of the representatives of the newspaper ... who acknowledged that the articles contained criticism of Governor Stroyev ...” 17. The appeal decision entered into legal force on the same date. 18. On unspecified dates the applicant organisation received a copy of this decision and lodged a supervisory-review application with the President of the Orel Regional Court. The scope of that application remains unclear. 19. Without holding a hearing, on 29 January 2008 the acting president of the court issued a decision dismissing the application. The reasoning of the decision of the acting president was identical to that of the lower courts. On an unspecified date the applicant organisation received a copy of the acting president’s decision. 20. The applicant organisation then lodged a supervisory-review application with the President of the Supreme Court of Russia. The scope of this application remains unclear. On 19 June 2008 the Vice-President dismissed it. On an unspecified date the applicant organisation received a copy of this decision. 21. On an unspecified date the applicant organisation introduced an individual application before the Constitutional Court of Russia, arguing that the impugned provisions of the Electoral Rights Act and the State Duma Deputies Election Act ran counter to freedom of the press. The Acts de facto regarded any critical material published during a pre-election period as “campaigning”, and imposed additional requirements on such publications. 22. By a letter of 23 October 2008 the Registry of the Constitutional Court informed the applicant organisation that its application was not allowed because, in substance, it was merely challenging the factual and legal findings made by the courts in the administrative offence case. 23. On an unspecified date the applicant organisation resubmitted its application to the Constitutional Court. On 25 December 2008 a panel of judges of the Constitutional Court issued a decision (определение) refusing examination of the application. It held as follows: “In its ruling of 30 October 2003 the Constitutional Court made the following statement of principle concerning a distinction between information for voters and pre-election campaigning. To protect the right to free elections, freedom of expression on the part of the mass media may be restricted, provided that the balance of constitutional values has been respected ... [The Electoral Rights Act] distinguishes between information for voters appearing in the mass media and pre-election campaigning by them. Both information and campaigning can influence voters to make certain choices, thus the obvious and only criterion to distinguish between them would be the existence of a particular aim, namely to incline voters to support or oppose a certain candidate ... Without such an aim in mind there would be no dividing line between information and campaigning, to the effect that all information would amount to campaigning. This would go against the constitutional guarantees of freedom of information and freedom of expression ... It is incumbent on the courts and other authorities to establish that there is a campaigning aim in each case ... Thus, in view of the above statement of principle, the impugned legislative provisions cannot be considered to have violated the applicant organisation’s rights or freedoms ... Establishment of the specific circumstances (whether or not the information provided by the applicant organisation concerned the electoral campaign rather than the reporting on the candidate’s professional activity as a governor) are beyond of the Constitutional Court’s competence ...”