Last Updated on November 17, 2021 by LawEuro
Information Note on the Court’s case-law 256
November 2021
Assotsiatsiya NGO Golos and Others v. Russia – 41055/12
Judgment 16.11.2021 [Section III]
Article 10
Unjustified sanctioning of NGO for disseminating election-monitoring material on the basis of statutory ban on all election-related publications during pre-election “silence period”: violation
Facts – The first applicant was a not-for-profit association created by several non-governmental organisations aiming to provide short-term and long‑term monitoring of electoral campaigns. On an unspecified date in 2011, the first applicant launched a project, in partnership with an Internet news outlet, which consisted in creating a website called “Map of Violations”; its own website had textual or visual hyperlinks to this project website. Following a complaint by a group of State Duma members and the Chief Officer of the Central Elections Committee, administrative offence proceedings were instituted against the first applicant resulting in its conviction for the internet publication of election-related materials (including texts, visual material, an interactive map and a list of results following a key-word search) during the electoral campaign to the State Duma within the “silence period” prohibiting the dissemination of certain information during the five days preceding an election day provided by the Electoral Rights Act 2002. A fine was also imposed. The first applicant’s appeal and subsequent request for review were dismissed as were the review requests made by the Russian Federation Human Rights Ombudsman.
The applicants complained under Article 10 that the proceedings against the first applicant had interfered – through the enforcement of the statutory ban on all election-related publications in the days preceding the election day – with the election monitoring project that they had been running or had otherwise engaged in.
Law – Article 10:
The dissemination of the impugned materials on both the NGO’s and the project website and the provision of the project’s Internet platform for user‑generated content had amounted to the exercise of the right to freedom of expression as protected by Article 10 § 1. The first applicant’s conviction and sentence constituted an “interference” with its freedom of expression aimed at protecting the “rights of others”. The interference, however, had not been “necessary in a democratic society”. More specifically, the domestic courts had failed to provide relevant and sufficient reasons for enforcing the temporal restriction in the present case, to apply standards in conformity with the principles embodied in Article 10 or to conduct an acceptable assessment of the relevant facts. In particular, they had failed to discuss or even refer to any of the internet printouts that had been before them, to establish that the impugned materials had been uploaded or otherwise “published” within the relevant statutory five-day period, to specify what elements had led them to conclude that the impugned material fell within the scope of the notion of “research report” – one of the notions of material under the Electoral Rights Act – and to assess in any detail the content of various Internet publications on either website. The Court was not able to discern from their reasoning any element allowing them to reach the conclusion that any such material could reasonably amount to “research reports” “relating to” the ongoing election period.
It appeared that the first applicant’s conviction had been related to the printouts showing user-generated content, specifically texts alleging violations of the electoral legislation, and the interactive map of Russia. It was uncontested that this interactive and constantly updated map had been made available prior to the “silence period”. The application of that period to that technological tool and the first applicant’s conviction meant, in substance, that it had been unlawful under domestic law to impart in this manner data on a matter of public interest. The domestic courts’ reasoning had contained no elements disclosing whether that aspect of the interference was convincingly shown to have been “necessary in a democratic society”.
The first applicant, who had provided an Internet platform for users to generate content, specifically reports of alleged violations during the ongoing election period, had been punished, in substance, for continuing to run (for not suspending) – during the “silence period” – the Map of Violations online project, including the operation of the online interactive map. The unspecified nature of the charge against it in the administrative-offence report (deemed to constitute an act of accusation under the Federal Code of Administrative Offences) and the courts’ rather superficial approach to assessing this charge had also created an unjustified “chilling effect” vis-à-vis the first applicant’s exercise of its “social watchdog” function. When an NGO drew attention to matters of public interest, it was exercising a “public watchdog” role of similar importance to that of the press and might be characterised as a “social watchdog” warranting similar protection under the Convention as that afforded to the press.
Furthermore, the overbroad reach of the electoral legislation on the “silence period” extending to all material “relating to” an ongoing election – as interpreted and applied by the domestic courts and as confirmed by the Government in the present case – had disproportionately interfered with the first applicant’s exercise of the freedom to impart information and ideas on issues relating to the running of free and fair elections to the national legislature, specifically in so far as some publications had not been classified, for instance, as (last-minute) partisan or adverse political campaigning. In this connection, the Court considered that election observers should generally be able to draw the public’s attention to potential violations of electoral laws and procedures as they occur, otherwise such reporting would lose much of its value and interest.
There was little scope under Article 10 § 2 for restrictions on freedom of expression in the fields of political speech and other matters of public interest, including during electoral periods. Although, it could be assumed that the imposition of a short “silence and reflection period” on active campaigning before an election fell, in principle, within the scope of the State’s discretion in regulating certain forms of electoral campaigning with a view to safeguarding the democratic order within their own political systems, in the present case it had been overstepped by the sanctioning of the dissemination during the silence period of all content that could be considered as “relating to” a forthcoming election.
Conclusion: violation (unanimously) in respect of the first applicant.
The Court also held, unanimously, that there was no need to examine the first applicant’s complaints under Article 6.
Article 41: claims in respect of pecuniary and non-pecuniary damage dismissed.
(See also Animal Defenders International v. the United Kingdom [GC], 48876/08, 22 April 2013, Legal Summary; Orlovskaya Iskra v. Russia, 42911/08, 21 February 2017, Legal Summary; OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia, 43351/12, 18 May 2021)
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