THIRD SECTION
\nCASE OF YARTSEVA v. RUSSIA
\n(Application no.19273\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n25 February 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Yartseva v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of: Having deliberated in private on 28 January 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no. 19273\/08) against the Russian Federation lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Ms Galina Valentinovna Yartseva (\u201cthe applicant\u201d), on 9 February 2008.<\/p>\n 2. The applicant was represented by Mr Y.\u00a0Mylnikov, a lawyer practising in Velikiy Novgorod. The Russian Government (\u201cthe Government\u201d) were represented Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.<\/p>\n 3. On 11\u00a0January 2018 notice of the complaint concerning the applicant\u2019s right to freedom of expression was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054 \u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I. THE CIRCUMSTANCES OF THE CASE<\/p>\n 4. The applicant was born in 1963 and lives in Velikiy Novgorod.<\/p>\n 5. The applicant was the founder and the editor of Russkiy Karavan, a newspaper distributed in Velikiy Novgorod. Some 5,000 copies were distributed randomly by volunteers, for instance, at bus stops. The applicant paid for the production of the newspaper. The edition of 15 October 2007, for instance, cost her 6,018 Russian roubles (RUB; approximately 170 euros (EUR) at the time).<\/p>\n 6. On 15 October and 26 November 2007 the applicant authored and published in Russkiy Karavan three articles entitled \u201cFor the indestructible union of Communists and the non-affiliated\u201d, \u201cRussia guards its borders\u201d and \u201cSigns of the time. Simplicity is worse than stealing\u201d.<\/p>\n 7. In the same editions the applicant also published articles entitled \u201cUnder another person\u2019s name\u201d and \u201cRussia for Russians too\u201d.<\/p>\n 8. On 27 and 6 December 2007 the Prosecutor\u2019s Office of Velikiy Novgorod initiated proceedings against the applicant, accusing her of unlawful pre-election campaigning in breach of the Code of Administrative Offences (CAO) (see paragraph 18 below) on account of the publication of the articles mentioned above.<\/p>\n 9. The applicant argued that her prosecution for allegedly breaching certain requirements of the legislation restricting the print media\u2019s functioning during an election period had violated her right to freedom of expression under Article 10 of the Convention. For instance, she submitted that the article \u201cFor the indestructible union of Communists and the non\u2011affiliated\u201d was an invitation for a wide debate on a matter of public interest, namely the removal of the line \u201cagainst all candidates\u201d from vote ballots. It discussed possible options for a voter who did not like any of the candidates on the ballot paper. The article indicated that some choices might result in ballots being declared invalid, and that such a finding would benefit the United Russia party. At the same time, the article expressed a fear that the \u201cleftist\u201d parties might only win less than seven percent of votes and thus would not obtain any seats in the State Duma. Those circumstances might result in the excessive dominance of the ruling party, United Russia. Thus the article sought to guard against restauration of the one-party system from the Soviet times and the destruction of political pluralism.<\/p>\n 10. According to the applicant, the articles \u201cRussia guards its borders\u201d and \u201cSigns of the time. Simplicity is worse than stealing\u201d concerned the topic of Russian citizenship and the related (arguably, controversial) federal law that had been adopted, inter alia, by the members of United Russia. The first article was based on a story of a child born in Russia.<\/p>\n 11. By a judgment of 11 December 2007 a justice of the peace convicted the applicant under Article 5.11 of the CAO and sentenced her, as the editor of Russkiy Karavan, to a fine of RUB 2,000 (EUR\u00a056 at the time) for the articles \u201cRussia guards its borders\u201d and \u201cSigns of the time. Simplicity is worse than stealing\u201d, as well as for another article (\u201cRussia for Russians too\u201d).<\/p>\n 12. In the court\u2019s view, the following part of \u201cRussia guards its borders\u201d contained calls not to vote for the United Russia party and described the consequences of electing its candidates:<\/p>\n \u201cIn order to save the kid we need to abolish the anti-Russian statute on Russian citizenship that was adopted by the United Russia [party] in 2002. They do not want to do it. We can save the kid and thousands of Russians from the fate of outcasts. To do this, abstain from voting for United Russia.\u201d<\/p>\n 13. In the court\u2019s view, the following part of \u201cSigns of the time. Simplicity is worse than stealing\u201d contained calls not to vote for the United Russia party and described activities aimed at creating a negative image of that party:<\/p>\n \u201cThe massive psychosis of exalting Putin is being fostered by the United Russia [party]. It has affected the awesomely independent judiciary who now treat Putin\u2019s word as the law. However, it would be unfair to blame only the judiciary. It is not capable of remedying the defects of the law as such by way of its decisions. It is also true that not all outcasts from distant villages know about the possibility of going to a court. Thus it is the legislature (or, in reality, United Russia) that must correct the defect (or the intentional ugliness) of the new statute on citizenship. They do not want to do that. So the only way to save our compatriots is to not vote for the United Russia [party].\u201d<\/p>\n 14. By another judgment of 11 December 2007 the justice of the peace convicted the applicant under Articles 5.10, 5.11 and 5.20 of the CAO. She was sentenced to a fine of RUB 3,000 (EUR\u00a084 at the time) for the article \u201cFor the indestructible union of Communists and the non-affiliated\u201d and another article (entitled \u201cUnder another person\u2019s name\u201d).<\/p>\n 15. In the court\u2019s view, the following part of \u201cFor the indestructible union of Communists and the non-affiliated\u201d contained calls to vote for the Communist Party of the Russian Federation:<\/p>\n \u201cThe Communist Party of the Russia Federation is the only force that is capable of opposing the United Russia [party] today, and this is despite the Communist Party\u2019s mistakes and claims that many citizens might have against it. Let us unite around it. There are other parties that inspire respect and trust. However, a vote for them would partition the votes and thus would improve the chances of United Russia … Receiving less than seven percent of votes, the leftist parties will not get seats in the Duma while at the same time each of those parties would take some 3 or 4 percent away from the Communist Party. Remember that there is a real threat of United Russia\u2019s total dominance and we have seen it blossom.\u201d<\/p>\n 16. The justice of the peace considered, inter alia, that the article \u201cFor the indestructible union of Communists and the non-affiliated\u201d constituted an unlawful election contribution in the amount of RUB 6,018 to the Communist Party of the Russian Federation\u2019s participation in the ongoing election to the State Duma.<\/p>\n 17. On 10 and 11 January 2008 the Novgorod Town Court upheld the judgments.<\/p>\n II. RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 18. Article 5.10 of the CAO proscribes pre-election campaigning outside the official campaigning period. Article 5.11 oftheCAOproscribes pre\u2011election campaigning by persons who are not authorised by law to engage in pre-election campaigning. Article 5.20 of the CAO proscribes financing an electoral campaign outside the scope of a candidate\u2019s electoral fund or by way of providing free services or services for manifestly reduced or increased fees, when the aim of the above-mentioned actions are directed at obtaining a desired election result and when the relevant candidate has not given his written consent and has not paid for them from his or her electoral fund.<\/p>\n 19. For a summary of other relevant domestic law and judicial practice, see Orlovskaya Iskra v. Russia (no. 42911\/08, \u00a7\u00a7 36-51, 21\u00a0February 2017).<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 20. The applicant complained under Article 10 of the Convention about the classification of the material she had published as \u201celection campaigning\u201d and the fines imposed on her in the administrative-offence cases.<\/p>\n 21. Article 10 of the Convention reads, in the relevant parts, as follows:<\/p>\n \u201c1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …<\/p>\n 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 22. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 23. The applicant\u2019s complaint before the Court is limited to the \u201cinterferences\u201d relating to three newspaper articles (see paragraph 5 above). The Court observes that the essential legal aspects of the present case (in particular, in relation to the applicant\u2019s convictions under Articles 5.10 and\u00a05.11 of the CAO in relation to those articles) are similar to those already examined by the Court in Orlovskaya Iskra v. Russia (no.\u00a042911\/08, 21\u00a0February 2017). Namely, the main thrust of both cases concerns the notion of \u201cpre-election campaigning\u201d under Russian law carried out in the print media by people who were not authorised to do so.<\/p>\n 24. In Orlovskaya Iskra the Court assessed the regulatory framework that had been applied to that applicant and held as follows:<\/p>\n \u201c117. The Government\u2019s central argument was that the regulatory framework was acceptable because for a period during the electoral campaign it was obligatory for the print media to demonstrate a degree of neutrality and objectivity in their coverage of the election. The applicant organisation argued in reply that the \u2018campaigning\u2019 regulations entailed an excessive restriction on public debate in the print media during the election period.<\/p>\n 118. The Court takes note of the Russian legislature\u2019s choice of preventing mass media outlets from participating on their own in \u2018election campaigning\u2019, that is from acting in a way intended to induce voters to vote for or against a candidate or a political party. The legislation covers articles, such as that in the present case, which focus predominantly on one person in combination with commentaries. It is also noted that the Russian legislature put in place a regulatory framework aimed at defining the scope of the media\u2019s work during elections and providing for penalties for related breaches.<\/p>\n …<\/p>\n 121. … the publication of the impugned articles by the applicant organisation constituted a fully-fledged exercise of its own freedom of expression, namely the choice to publish the articles, thus imparting information to the readers and potential voters …<\/p>\n 122. Bearing in mind the approach outlined in\u00a0Animal Defenders International, cited above, \u00a7\u00a7 106-11, the Court will consider whether the above regulatory framework and the effects it entailed in the present case were in conformity with the Convention …<\/p>\n 123. The Court has had the benefit of reading the Russian Constitutional Court rulings of 30 October 2003 and 16 June 2006, its decision of 25 December 2008 on the applicant organisation\u2019s application, and a number of other decisions. This Court has carefully examined the reasoning put forward by the Russian Constitutional Court to justify the distinction between \u2018information\u2019 and \u2018campaigning\u2019 and, foremost, for restricting the activity of mass media outlets during an election campaign.<\/p>\n 124. It transpires from the constitutional ruling of 16 June 2006 (see paragraph 51 above) that the regulatory framework was meant to \u2018take account of the historical conditions that prevail[ed] at a particular stage of the country\u2019s development\u2019 when \u2018the need to ensure transparent financing of elections required reinforced safeguards\u2019, \u2018also taking into account the [then] current realistic possibility of control over the financing of elections\u2019. Judge Kononov, in his separate opinion to the ruling of 30\u00a0October 2003, suggested that the exclusion of mass media outlets from engaging in election campaigning might be aimed at dealing with the issue of \u2018black PR\u2019 …<\/p>\n 125. The Court reiterates in this connection that by reason of their direct and continuous contact with the vital forces of their countries, their societies and their needs, the legislative and judicial authorities are best placed to assess the particular difficulties in safeguarding the democratic order in their State (see\u00a0Animal Defenders International, cited above, \u00a7 111). The State must therefore be accorded some discretion as regards this country-specific and complex assessment which is of central relevance to the legislative choices at issue (ibid.). However, neither the above rulings themselves nor the Government in the present case developed this line of argument, in particular to demonstrate how the special regulations in question related to and actually addressed the situation mentioned in paragraph 124 above in a proportionate manner while being \u2018necessary in a democratic society\u2019.<\/p>\n 126. The Court has at its disposal no information relating to the quality of the parliamentary review of the necessity of the special regulatory framework, to enable the Court to ascertain the operation of the relevant margin of appreciation.<\/p>\n 127. As to the practical implications of the special regulations on the freedom of expression, as the Constitutional Court admitted, despite their formal distinction both information and campaigning could induce voters to make a certain choice; the only criterion to distinguish between them would be the existence of a particular campaign aim, namely to incline the voters to support or oppose a certain candidate …<\/p>\n 128. In the Court\u2019s view, while it may be desirable, for the sake of the \u2018free expression of the opinion of the people in the choice of the legislature\u2019 or another legitimate and compelling consideration, for publications to contain a review of several candidates or parties or their programmes, it is difficult if not impossible to ascertain whether the content in relation to a candidate should be perceived as a mere \u2018negative comment\u2019 or whether it had a \u2018campaigning\u2019 goal. The domestic regulative framework restricted the activity of the print media on the basis of a criterion that was vague and conferred a very wide discretion on the public authorities that were to interpret and apply it.<\/p>\n 129. Foremost, it has not been convincingly demonstrated, and the Court does not find sufficient basis for upholding the Government\u2019s argument, that the print media should be subjected to rigorous requirements of impartiality, neutrality and equality of treatment during an election period …<\/p>\n 130. In the Court\u2019s opinion, at election time the press assists the \u2018free expression of the opinion of the people in the choice of the legislature\u2019. The \u2018public watchdog\u2019 role of the press is no less pertinent at election time … This role is not limited to using the press as a medium of communication, for instance by way of political advertising, but also encompasses an independent exercise of freedom of the press by mass media outlets such as newspapers on the basis of free editorial choice aimed at imparting information and ideas on subjects of public interest. In particular, discussion of the candidates and their programmes contributes to the public\u2019s right to receive information and strengthens voters\u2019 ability to make informed choices between candidates for office …<\/p>\n 131. Having said this, it remains the case that both during and outwith an election period, the print media\u2019s activity is subject to the requirement to act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see the cases cited in paragraph 109 above) and considerations relating to certain boundaries, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information. In this connection, the assessment of impugned publications should, as it is for instance in defamation cases, be subject to the traditional criteria under Article 10 of the Convention, including the distinction to be drawn between statements of fact and value judgments …<\/p>\n 133. In the Court\u2019s view, the applicable regulatory framework excessively and without compelling justification reduced the scope for press expression by restricting the number of participants and impinging upon the applicant organisation\u2019s freedom to impart information and ideas during the election period and was not shown to achieve, in a proportionate manner, the aim of running fair elections.<\/p>\n …<\/p>\n 134. The Court concludes that, in view of the regulatory framework, the applicant organisation was restricted in its freedom to impart information and ideas. By subjecting the expression of comments to the regulation of \u2018campaigning\u2019 and by prosecuting the applicant with reference to this regulation, there was an interference with the applicant organisation\u2019s editorial choice to publish a text taking a critical stance and to impart information and ideas on matters of public interest. No sufficiently compelling reasons have been shown to justify the prosecution and conviction of the applicant organisation for its publications at election time.\u201d<\/p>\n 25. The respondent Government have not pointed out any essential factual or legal elements distinguishing the present case from Orlovskaya\u00a0Iskra. Nor have they put forward any specific argument pertaining to the legitimate aim(s) pursued by the applicable provisions of Russian law regulating pre-election campaigning and the role of the print media, or the legislation punishing certain actions held against the applicant under Articles 5.10 and 5.11 of the CAO. For its part, the Court considers that its findings in Orlovskaya Iskra pertaining to the state of the domestic law and judicial practice are applicable in the present case.<\/p>\n 26. At the same time, it has not been suggested, and the Court does not find on the basis of the available material, that either the applicant or Russkiy Karavan was affiliated to any political party, electoral group or candidate. Nor has it been argued or otherwise raised as part of the subject\u2011matter before the domestic courts that the applicant had failed to act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism or exceeded the acceptable boundaries, for instance as regards the reputation and rights of others.<\/p>\n 27. In the Court\u2019s view, the applicable regulatory framework excessively and without compelling justification reduced the scope for expression in the press by restricting the number of participants and by impinging upon the applicant\u2019s freedom of expression during the election period. Furthermore, it has not been shown to achieve, in a proportionate manner, for instance, the aim of running fair elections. By subjecting the expression to the regulations concerning \u201ccampaigning\u201d and by prosecuting the applicant with reference to those regulations, there was an interference with her (inter alia, editorial) choice to publish texts taking a critical stance and to impart information and ideas on matters of public interest (for the specific parts of the articles held against the applicant, see paragraphs 12, 13 and 15 above). No sufficiently compelling reasons have been given to justify the prosecution and conviction of the applicant for her publications during an election period.<\/p>\n 28. There has accordingly been a violation of Article\u00a010 of the Convention as regards the applicant\u2019s convictions under Articles 5.10 and\u00a05.11 of the CAO.<\/p>\n 29. Having reached this conclusion and also noting the absence of any specific argument pertaining to the conviction under Article 5.20 of the CAO and the related legislative framework affecting what might be classified as unsolicited non-monetary contributions to an electoral campaign of a party or a candidate, including by means engaging one\u2019s freedom of expression (compare with Bowman v. the United Kingdom, 19\u00a0February 1998, \u00a7 47, Reports of Judgments and Decisions 1998\u2011I), the Court does not find it necessary to make a separate assessment of the merits of this distinct issue in the present case.<\/p>\n II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 30. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 31. The applicant claimed 5,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 32. The Government contested the claim.<\/p>\n 33. The Court awards the applicant EUR 2,600 in respect of non\u2011pecuniary damage, plus any tax that may be chargeable.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 34. The applicant made no claim under this heading. Thus the Court makes no award.<\/p>\n C. Default interest<\/strong><\/p>\n 35. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the complaint concerning freedom of expression admissible;<\/p>\n 2. Holdsthat there has been a violation of Article 10 \u00a7 2 of the Convention as regards the applicant\u2019s convictions under Articles 5.10 and 5.11 of the CAO;<\/p>\n 3. Holdsthat it is not necessary to examine separately the merits of the complaint under Article 10 of the Convention as regards Article 5.20 of the CAO;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;<\/p>\n 5. Dismissesthe remainder of the claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 25 February 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paulo Pinto de Albuquerque
\nPaulo Pinto de Albuquerque, President,
\nHelen Keller,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n