Last Updated on April 5, 2022 by LawEuro
Information Note on the Court’s case-law 261
April 2022
Teslenko and Others v. Russia – 49588/12, 65395/12, 49351/18 et al.
Judgment 5.4.2022 [Section III]
Article 10
Article 10-1
Freedom of expression
Prosecution for administrative offences for calling on voters not to vote for a party or to abstain from voting in elections: violation
Facts – The four applicants were prosecuted for administrative offences for calling on eligible voters not to vote for a specific political party, or to abstain from voting in various parliamentary and presidential elections. The first and fourth applicants were also escorted to a police station in the context of those offences and remained there for several hours.
Law – Article 10: The applicants’ prosecution amounted to an “interference” with their right to freedom of expression which pursued the legitimate aim of protecting the rights of others. It was not necessary to determine whether the interferences had been “prescribed by law”. The Court examined whether the applicants’ prosecution had been convincingly shown to have been “necessary in a democratic society” to achieve the legitimate aims:
(a) The first and second applicants’ calls not to vote for a specific political party
The first applicant had produced and attempted to distribute leaflets with content related to a forthcoming parliamentary election and a specific political party. He had been expressing his own political views, had not been a candidate himself and had not been acting on behalf of any registered candidate or electoral group.
The Court had previously dealt with the Russian regulatory framework relating to the “flow of information” during an electoral campaign, with a distinction between “informing voters” and “pre-election campaigning” (see Orlovskaya Iskra v. Russia and OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia). It had been lawful under Russian law for the applicant to engage in “informing” other voters during an electoral campaign. In addition, he could engage in “pre-election campaigning” without incurring any expenses whatsoever. It was presumed that “campaign material” had been commissioned by or for the benefit of a candidate or an electoral group and had to have been paid from their election fund. Failure to submit information about such a payment and other related information resulted in prosecution.
The domestic courts had not carried out a meaningful assessment of the content of the first applicant’s leaflets and had not explained why it had fallen within the scope of “pre-election campaigning”. They had found it sufficient to state that the content had been related to the election and had been produced and disseminated during the electoral campaign. The facts of the case disclosed that even a nominal personal expense for printing out leaflets exposed a private citizen to a risk of prosecution for unlawful pre-election campaigning.
Unaffiliated citizens who wished to exercise their right to freedom of expression by expressing critical views during and in relation to a forthcoming election had been faced with a dilemma: either they abstained from doing so or risked prosecution and, at times, measures such as administrative escorting or arrest. That state of affairs was present during the entire electoral period, that is, for some three months, from the launch of an electoral campaign until after election day.
The Constitutional Court had held against the exclusion of Russian citizens from election campaigning and had considered free elections to be impossible in the absence of free political discussion and opportunities for a free exchange of opinions, including both candidates and citizens. Citizens were allowed to engage in pre-election campaigning without incurring expenses by organising public gatherings or in other ways. The Constitutional Court had left it to the federal legislature’s discretion to choose the appropriate method and means to reconcile the exercise of the rights involved, taking into account the historical conditions prevailing at a particular stage of the country’s development.
As to the applicable legislation, however, the Government had provided no information about the regulation of electoral volunteering and had made no specific submissions relating to financial contributions to election funds and electoral campaigns of candidates or electoral groups under Russian law. As a matter of principle, the Court found it difficult to conceive that participation in and organisation of public campaign events would not necessitate any monetary or in-kind expenditure, not even a nominal personal expense, by the person concerned. Nor had the Court been provided with any detailed information relating to the rationale for adopting the relevant provisions of national legislation and whether any other, less restrictive, options had been considered by the authorities to ensure transparency of electoral spending. Furthermore, a complete ban on electoral speech by individuals that involved any amount of personal spending was difficult to reconcile with a legal regime that allowed the same individuals to provide significant amounts in personal donations to the electoral funds of political parties or presidential candidates.
The respondent State had overstepped its margin of appreciation, insofar as Russian law had operated, for all practical purposes, as a total barrier to the applicant disseminating content with a view to encouraging voters to vote in the forthcoming election in a particular manner, and had disproportionately restricted the very essence of his ability to influence an election.
Those findings applied a fortiori to the second applicant, who had been prosecuted for unlawful pre-election campaigning in relation to a forthcoming presidential election for putting writing on the rear window of his car saying “United Russia is a party of crooks and thieves”. His conviction had subsequently been quashed on rather technical grounds, and for some five years there had been a chilling effect on his exercising of his right to freedom of expression.
(ii) The third and fourth applicants’ calls to abstain from voting
The third applicant had been prosecuted for creating obstacles to the participation of voters in the voting process by calling on the electorate to abstain from voting in a forthcoming presidential election.
Establishing and maintaining the foundations of an effective and meaningful democracy were better served by the active participation of voters in electoral processes, specifically the voting process, conducted in compliance with the principles relating to free and fair elections. That said, in so far as an “interference” under Article 10 was concerned, the respondent State’s choice to prosecute calls to abstain from voting in an election had to be subjected to strict scrutiny.
Those calls had not amounted to calling on voters to engage in unlawful activities: there had been no legal obligation under Russian law to vote in an election. Nor had the third applicant incited hatred, intolerance or discrimination or called for violence or other criminal acts to be committed. It had also not been established that the impugned material had contained false information. The Russian courts had found that the material had constituted a point of view. At the same time, they had concluded that the material had been misleading and untruthful: however, the truth of value judgments was not susceptible of proof. The requirement to prove the truth of a value judgment was impossible to fulfil and infringed freedom of opinion itself.
The national courts had not delved into whether the third applicant’s exercise of his freedom of expression had contributed to an ongoing nationwide debate on a matter of general interest. The leaflets had encouraged citizens to engage in the electoral process in another manner, specifically through acting as election observers. The third applicant’s expression had not been intended to single out and promote or prejudice electoral prospects of any particular candidate running in the national election: indeed, his actions had not been classified as “pre-election campaigning” under Russian law.
The national courts had considered that the impugned material could have influenced voters into adopting the author’s point of view and that that had indeed been the third applicant’s intention. Yet convincing others of a point of view was often at the heart of the right to freedom of expression in a democracy. The mere fact of that intention had been insufficient to justify the applicant’s prosecution. Finally, regarding the Government’s reference to the need to reduce abstention in elections, they had failed to convincingly demonstrate how the mere expression of a point of view concerning the non-participation of the electorate in a forthcoming election could have exerted undue influence over eligible voters in the absence of any proven elements of coercion or impediment.
Accordingly, the respondent State had overstepped its margin of appreciation in so far as the applicant had been prevented from disseminating during an election period content with a view to encouraging the electorate to abstain from voting in a forthcoming national election.
The above findings also applied to the fourth applicant’s situation. The national courts had considered that the distribution by the applicant of leaflets containing, inter alia, calls to abstain from voting in the same presidential election had amounted to “pre-election campaigning” within the meaning of Russian law. However, it had not been convincingly established that that expression had been intended to single out and promote or prejudice the electoral prospects of any particular candidate running in that election. Moreover, the courts had taken no heed of the rationale for the applicant’s calls to abstain from voting as specified in the leaflets, or of the fact that the leaflets had provided information relating to voters’ rights, and had encouraged citizens to engage in the electoral process as election observers instead. It had not been convincingly established that the fourth applicant’s exercise of his right to freedom of expression had been such as to undermine the foundations of an effective and meaningful democracy.
Conclusion: violation in respect of each applicant (unanimously).
The Court also held, unanimously, that there had been a violation of Article 5 § 1 in respect of the first and fourth applicants, who had been unlawfully deprived of their liberty through escort to a police station in non-compliance with the requirements of Russian law.
Article 41: Sums ranging between EUR 3,000 and 3,300 in respect of non-pecuniary damage to each applicant; EUR 14 in respect of pecuniary damage to the fourth applicant; claim dismissed in respect of pecuniary damage to the second and third applicants.
(See also 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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