CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 février 2017

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RUSSIA   (Application no. 42911/08)           JUDGMENT         STRASBOURG   21 February 2017       FINAL   03/07/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Orlovskaya Iskra v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Helen Keller,   Dmitry Dedov,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 31 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 42911/08) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Redaktsiya Gazety Orlovskaya Iskra (hereinafter “ Orlovskaya Iskra ” or “the applicant organisation”), on 24   July 2008. 2.     The applicant organisation was represented by Mr D.   Krayukhin. The Russian Government (“the Government”) were represented by Mr   G.   Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicant organisation complained under Article 10 of the Convention about the classification of the articles it published as “election campaigning” material and about the fine imposed in the administrative offence case. 4.     On 6 April 2011 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 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). A.     Administrative offence case 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. B.     Constitutional complaint 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 ...” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Review of decisions concerning administrative offences under the CAO 1.     Ordinary appeal procedure 24.     Under the CAO, depending on the subject matter decisions concerning administrative offences could be issued by a non-judicial authority or a court (Chapter 23 of the CAO). 25.     At the relevant time, Chapter 30 of the CAO contained provisions concerning review of such decisions. 26.     Review could be sought by the person or legal entity accused of the administrative offence, the victim of the offence, or their representatives (Article 30.1). If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities, it was reviewed by a commercial court according to the rules of commercial procedure (Article 30.1). 27.     An ordinary appeal against a decision on an administrative offence could be lodged within ten days (or fifteen days, for some offences) following receipt of the copy of the decision (Article 30.3). The appeal should be examined within ten days (or within shorter periods, for some offences) following receipt of the case file to the reviewing court or authority (Article 30.5). The reviewing authority or court was not bound by the scope of arguments and reviews in the case in its entirety (Article 30.6). 28.     Article 30.10 gave a prosecutor a right to seek review of a decision on an administrative offence, within the procedure and time-limits set in Articles 30.1 – 30.3 of the CAO. 2.     Supervisory review procedure 29.     Until 20 December 2008, Article 30.11 of the CAO provided for supervisory review of final court decisions taken in respect of administrative offences. A regional prosecutor or his deputy, the Prosecutor General of the Russian Federation or his deputy had a right to apply for such a review. Pursuant to the ruling no.   5 of 24 March 2005 by the Plenary Supreme Court of Russia, those prosecuted in administrative offences cases also had a right to lodge a supervisory-review application (§ 34). 30.     If a supervisory-review judge had doubts about the lawfulness of the impugned court decisions, he or she could request the case file and then examine the case in its entirety, going beyond the grounds for review raised by the author of the supervisory-review application (§ 34 of the ruling of 24   March 2005). 31 .     Supervisory review was to be carried out by the president of the regional court or their deputies, and by the President of the Supreme Court of Russia or her deputies. Reviewing this provision the Constitutional Court of Russia stated that the reviewing court was to inform the person concerned by the administrative offence proceedings about the application for review lodged by the victim (decision no. 113-O of 4 April 2006 concerning the constitutional interpretation of Article 30.11 of the CAO; this decision was officially published in July 2006). The Constitutional Court also stated that until legislative amendment of the CAO concerning the scope of review, grounds for review, the reviewing courts’ powers, time-limits for seeking review and the procedure for such a review, the reviewing courts were to be guided by the relevant provisions of Chapter 36 of the Code of Commercial Procedure. 32.     Article 30.11 of the CAO was deleted in December 2008. Article   30.12 provided that first-instance and appeal judgments which had become final could be challenged by way of review before regional courts and the Supreme Court of Russia. Apparently, the decision no.   113-O of 4   April 2006 was not applied by some regional courts (see decision no.   4a10-790 of 31 August 2010 by the Chelyabinsk Regional Court, and, a   contrario , decision no. 4-a-854 of 24 November 2010 by the Rostov Regional Court); some regional courts stated that this decision was no longer applicable following the deletion of Article 30.11 of the CAO during the legislative reform in December 2008 (see decision no. 4a10-1227 of 28   December 2010 by the Chelyabinsk Regional Court). B.     Activity of mass media outlets during election periods 1.     Constitution of the Russian Federation 33.     Under Article 29 of the Russian Constitution everyone has a right to freedom of expression and a right to freely seek, receive, transfer, produce or disseminate information, by any lawful means; the freedom of mass information ( свобода массовой информации ) is also protected. 34.     Russian citizens have a right to elect and to be elected to public office and to participate in referendums (Article 32 of the Constitution). 35 .     Article 55 of the Constitution provides that rights and freedoms may be restricted by a federal statute only in so far as this is necessary in order to protect the foundations of the constitutional regime, morals, health, rights and lawful interests of others, or in the interests of defence of the country and national security. 2.     Legislation (a)     Regulations concerning mass media outlets 36.     The Mass Media Act of 1991 (Federal Law no.   2124-1 of 27   December 1991) defined a mass media outlet as a printed periodical, a television station, a radio station, a television programme, a video programme or “another form of periodical dissemination of mass information under a constant designation (title)” (section 2 of the Act). 37 .     The Electoral Rights Act of 2002 (Federal Law no. 67-FZ of 12 June 2002) provided that organisations releasing mass media could participate in the provision of “information” to voters (section 47). The relevant parts of sections 45 and 48 of the Act read as follows: “Section 45. Information for voters and referendum participants 1.     Information for voters and referendum participants is disseminated by public authorities, local authorities, committees, organisations that disseminate mass media, persons and legal entities pursuant to this Law ... 2.     The content placed in the mass media or disseminated in other ways must be objective, truthful, and must not violate the equality of candidates or electoral blocs. 3.     Committees should disseminate information to voters and referendum participants, including by way of the mass media, about the process of preparing and running an election or referendum, about the time-limits and procedures for accomplishing actions relating to an election or referendum, about the relevant legislation, and about candidates or electoral blocs. 4.     The activity of mass media outlets aiming at informing voters or referendum participants should not be hindered. 5.     Television or radio programmes or publications in print media containing information on an election or referendum should only present this information by way of a separate information bulletin, without comment. Such programmes or publications should not give preference to one of the candidates or electoral blocs ... including in terms of air time for their pre-election activities or in terms of print space for such information ... Section 48. Pre-election campaigning or referendum campaigning 1.     Russian citizens and non-governmental organisations have a right to engage in lawful pre-election campaigning by lawful means ... 2.     The following actions during an election campaign should be classified as pre-election campaigning: a) calls to vote for a candidate or candidates, a list or lists of candidates, or against them; b) expression of preference for one of the candidates or an electoral bloc, in particular by specifying the name of the candidate (list of candidates or electoral bloc) for which the voter will vote, except when it is by way of an opinion poll pursuant to section 46 ... c) description of possible consequences in the event that a specific candidate gets elected or does not get elected ... d) dissemination of information with manifest prevalence of data ( сведения ) about one candidate, a group of candidates, or an electoral bloc, with positive or negative comment; e) dissemination of information about a candidate’s activity that is not relevant to his professional activity or duties; f) activities participating in the creation of a positive or negative attitude of voters toward a candidate, the electoral bloc of that candidate, or a list of candidates. 2.1.     Actions committed by representatives of mass media outlets and actions listed in sub-paragraph 2(a) should be classified as pre-election campaigning if those actions have been taken with the aim of inducing voters to vote for a candidate, a number of candidates, or a list or lists of candidates, or against any of these; the actions listed in sub-paragraphs 2(b)-2(f) should be classified as pre-election campaigning if they have been taken with that intent more than once ... 7.     The following are not allowed to carry out pre-election campaigning or to disseminate any campaign material ... (i) representatives of mass media outlets when carrying out their professional duties ...” 38 .     “Election campaigning” in print and broadcast media begins twenty ‑ eight days before the election and ends the day before election day (section   49 of the Electoral Rights Act). 39.     All “campaign” material in the print media had to contain information as to which candidate’s electoral fund paid for the publication; if no fee was indicated, the publication was to indicate who had asked for the publication (section 52 § 6 of the Electoral Rights Act). The obligation to indicate the sponsor was incumbent on the editorial board of the print medium (ibid.). 40 .     The State Duma Deputies Election Act of 2005 defined “pre-election campaigning” by listing types of situations such as, inter alia , dissemination of information which was predominantly about one political party presenting a list of candidates, a candidate or candidates, in combination with positive or negative comment (section 55 § 1(4) of the Act); activities carried out during an election campaign, contributing to the creation of a positive or negative attitude on the part of voters towards a political party presenting a list of candidates or a candidate or candidates (section 55 §   1(6) of the Act). To fall within the scope of “campaigning”, such activities were to aim at inducing voters to vote for or against a list of candidates or for or against a candidate or candidates from such a list (section 10). 41 .     The Central Electoral Committee of the Russian Federation, regional electoral committees, local electoral committees within districts, towns or other areas, as well as electoral committees at voting stations are responsible for the organisation and running of elections, and ensure the exercise of electoral rights by the citizens (section 18 of the State Duma Deputies Election Act). Regional and local mass media outlets are required to inform a regional electoral committee about their intention to publish campaigning material submitted by political parties and about the related fees and other relevant conditions (section 57 § 11). (b)     Penalties for breaching the regulations 42.     Article 5.5 § 1 of the Federal Code of Administrative Offences was entitled “Violation of the procedure for participation of the mass media in the information support of the elections or referenda”. This Article punished violations of the procedure for publishing materials (including campaigning material) that were related to an electoral campaign and elections. It concerned chief editors of the mass media or its editorial board, legal entities dealing with broadcasting, as well as “other organisations that disseminate material for mass consumption”. 3.     Constitutional Court of Russia (a)     Ruling of 30 October 2003 43.     In 2003 the Constitutional Court of Russia examined several individual applications and an application from a group of members of the State Duma. On 30 October 2003 the Constitutional Court issued ruling no.   15-P concerning sections 45 § 5 and 48 § 2 and § 7 of the Electoral Rights Act (see paragraph 37 above). The ruling was published in October and November 2003 in several official bulletins and journals. (i)     The judgment 44 .     The Constitutional Court found as follows: -     In order to secure free elections the federal legislator is empowered to set in place procedures and conditions for information support ( информационное обеспечение ) for the elections. Free elections also require protection of the right to information and the freedom to express opinions. Therefore, the legislator must protect citizens’ rights to receive and disseminate information about elections, while striking a balance between two constitutional values, namely the right to free elections and freedom of information and expression, avoiding inequality and disproportionate restrictions. -     Mass media outlets carry out a social function consisting in information support for elections, and should accompany the free expression of the citizens’ choice and transparent elections. The exercise of the freedom of mass information is accompanied by particular duties and a particular responsibility on the part of mass media outlets. Thus, while acting on the basis of editorial independence and the rules of self-regulation, the representatives of the mass media outlets must take ethical and balanced stances and cover election campaigns in a fair, balanced and impartial manner. Distinguishing between two elements of information support for elections (namely “information” and “campaigning”) the Electoral Rights Act is intended to exclude representatives of mass media outlets from “campaigning” activities. This distinction is aimed at securing open elections and at ensuring the process of formation ( формирование ) of the free expression of the citizens’ choice. Unlike “information”, “campaigning” is not subject to the requirement of objectivity. -     Limitation on the freedom to express opinion aims at protecting the right to free elections, which is one of the foundations of the constitutional regime, including the process of formation of the citizens’ free expression of their choice. -     Restrictions or limitations on the freedom of mass information must be necessary and proportionate to the constitutionally recognised aims. Where constitutional rules allow such restrictions, the regulation should not impinge upon the very essence of the right or freedom being restricted, and should not empty it of its real content; the State should not use excessive measures; the regulatory legislation should be clear and precise, without room for extensive interpretation of the allowable restrictions and arbitrary application. -     All the above corresponds to the case-law of the European Court of Human Rights in relation to the scope of the freedom of expression and right to information in the context of elections ( Bowman v. the United Kingdom , 19   February 1998, Reports of Judgments and Decisions 1998 ‑ I). -     Both “campaigning” and “information” may induce the electorate to vote in favour of one choice or another. The only criterion for distinguishing between them is the presence of a special goal inherent in “campaigning”, that is to induce voters to vote in one specific direction and to provide support, whether that is for or against a candidate. If this were not so the line between “information” and “campaigning” would be blurred to the extent that all information disseminated in this period would be classified as “campaigning”. In view of the prohibition on mass media outlets’ “campaigning”, this would entail unlawful restrictions on freedom of expression and freedom of information, while also breaching the principles of free and open elections. -     As such, the expression of a positive or negative opinion about a candidate does not amount to “campaigning”, and thus cannot entail administrative offence liability on the part of the mass media outlet. A special purpose consisting in the support or opposition to a specific candidate is necessary. “Expression of preference” is a manner of expressing an opinion. Thus, expression of a preference by a representative of a mass media outlet cannot be classified as an offence in the absence of a campaigning purpose. -     The relevant provisions of the Act did not permit an extensive interpretation of the notion of “pre-election campaigning” in so far as the ban concerns the professional activities of mass media. The relevant provisions mean that unlawful campaigning includes only the premeditated acts listed in section 48 § 2, which are directly aimed at such campaigning and differ from providing information to the voters. 45.     The Constitutional Court also ruled that section 45 § 5 should not be interpreted as providing a basis for prohibiting the mass media from expressing their opinions or from comment outside specific news bulletins. The Constitutional Court stated that “other actions” (beyond those listed in section 48), aimed at inducing voters to vote for candidates, lists of candidates or against them, against all candidates or against all lists, should not be treated as “pre-election campaigning”. The Constitutional Court concluded that this constitutional interpretation of the relevant provisions of the Electoral Rights Act excludes any other interpretation in judicial practice and also any other interpretation of similar provisions of other legislation. The Constitutional Court also stated that this constitutional interpretation of the legal provisions was mandatory for everyone and excluded any other interpretation by the courts in respect of the same provisions or similar provisions of other legal acts. Furthermore, the Constitutional Court concluded in respect of the individual applicants that their cases were to be re-examined, unless there were obstacles to doing so. (ii)     Separate opinions (α)     Judge Gadzhiyev 46.     Judge Gadzhiyev expressed a separate opinion, noting that in Bowman v. the United Kingdom (cited above) the European Court assessed the freedom of expression in the light of the right to free elections, which means that neither has priority over the other. This is the only kind of approach which makes it possible to seek a balance between these equally valued fundamental rights. The exercise of one right creates “inherent boundaries” for the other right. Having regard to Article 15 of the Russian Constitution, which defines Russia’s international treaties as “an integral part of its legal system”, the choice between the relevant legitimate aims may be used to set limits on a protected right, in line with the European Convention. Given the aims listed in Article 10 of the European Convention, only some of the aims listed in Article 55 of the Russian Constitution may be referred to when limits are set on the freedom to express opinions. (β)     Judge Kononov 47.     Judge Kononov also expressed a separate opinion, as follows. While upholding the majority’s restrictive interpretation and application of the “campaigning” regulations, the judge noted that some provisions of the Electoral Rights Act could not but be assessed as absurd and utterly lacking reasonable grounds. All possible and justified restrictions on the freedom of the mass media are listed in section 4 of the Mass Media Act. There is no reason to treat an electoral campaign as an emergency situation that would justify wider limitations on rights and freedoms. Quite to the contrary, the voters’ need to receive and disseminate information, to express opinions, and to know about views held in society are greater during an election campaign. Print, broadcast and other media serve as a necessary means of exercising the right to free choice, without losing their autonomous and independent role in society. Freedom to express opinions should be given a wider possible interpretation. In 1999 the Constitutional Court of Slovakia declared a similar statute unconstitutional, dismissing the argument justifying the restriction in the interest of free competition among political actors. That court held that, democracy not being a form of government instituted exclusively for the sake of political parties, denial of fundamental rights and freedoms for the benefit of parties equals denial of democracy. 48 .     Judge Kononov concluded that there were no compelling reasons for opposing freedom of expression and freedom of choice, and thus no justification for putting in place special limitations on the mass media during an election period. Before the Constitutional Court the Russian authorities referred to the need to counter “black PR”, or negative paid-for publications, rather than to the need to ensure free choice for voters. One of the Election Commission officials admitted that if there had been an efficient mechanism to supervise payment for publications there would have been no need to create restrictions on the wording of “campaigning” by the mass media. In Judge Kononov’s view, the issue of paid-for publications should have been resolved by other, more appropriate, means, rather than by restricting fundamental freedoms. (γ)     Judge Yaroslavtsev 49.     In his separate opinion Judge Yaroslavtsev considered that the impugned provisions of the Electoral Rights Act violated freedom of expression and the principle of free elections. Free elections require free expression of the citizens’ choice, which is achievable if there is a choice available, and also unhindered expression of preferences by way of free expression of opinions for or against a candidate. The free expression of choice requires access to information, which should be truthful and objective. Referring to the European Court’s judgment in Bowman (cited above), the majority overlooked that a conflict between freedom of expression and the right to free elections arises only in “certain circumstances” so that “usually” restrictions on freedom of expression “would not be acceptable”. In the absence of any pressing social need during a pre-election period, varied opinions and information, including information containing preference for a candidate, should be allowed to circulate freely. The requirements of objectivity and truthfulness apply, so that the relevant information will guide voters, irrespective of the preference expressed within the text of the information. (b)     Other decisions 50.     In 2013 the Constitutional Court examined an application concerning the provisions contained after 2005 in section 48 § 2.1 of the Electoral Rights Act. It issued an inadmissibility decision, no.   512-O dated 23 April 2013. The Court stated as follows: As stated in the ruling of 30 October 2003, it was necessary to distinguish between campaigning and information, because without such a distinction there would be adverse consequences for the mass media, in that the constitutional guarantees of freedom of expression and information would be unlawfully restricted; it would also violate the principle of free and open elections. The primary criterion for distinguishing between campaigning and information had to be the presence of a particular campaigning aim, namely to incline voters in one direction, to secure either support for or opposition to a specific candidate or electoral bloc. The Constitutional Court also found, in its 2003 ruling on the provisions of the Electoral Rights Act concerning the procedure for giving information, that news bulletins and printed publications must confine their information about pre-election events to one separate information note, without comment and without giving preference to any one or electoral bloc. The Constitutional Court held in the ruling that the above provisions should not be interpreted as banning the mass media from expressing opinions or from commenting outside the scope of the information note. Thus, assessing the impugned legislative provision within the scope of the current regulatory framework and the above-mentioned statements of principle by the Constitutional Court, and taking into account the special role of the mass media in the electoral process, the impugned provision could not be perceived as giving preference to the mass media over other participants in the electoral process. Thus, the impugned provision did not violate the applicant organisation’s rights in the relevant aspect. 51 .     By ruling no.   7-P of 16 June 2006 the Constitutional Court examined various provisions of the Electoral Rights Act, including its sections 48 § 5 and 52 § 6, in so far as it allegedly prevented citizens (who were not themselves candidates or representatives of candidates or electoral groups) from engaging in “election campaigning” for or against a candidate or a list of candidates, and thereby incurring expenses outwith election funds. The Constitutional Court held as follows: Having regard to the need for free expression for citizens during elections held at reasonable periods and the need for such elections to be of a competitive and transparent nature, the federal legislature had to put in place a set of criteria for information flow, including rules for election campaigning and its funding. To reconcile the exercise of electoral rights, freedom of expression, and freedom of mass information, the federal legislature had discretion to choose appropriate methods and means that take account of the historical conditions that prevail at a particular stage of the country’s development. To reconcile any conflict between these competing rights and freedoms, the legislature was to maintain the balance of constitutional values and not put in place disproportionate restrictions that would not be necessary in a democratic society and that would impinge upon the very essence of the protected rights. The exclusion of Russian citizens from election campaigning and the absence of legislative safeguards would mean, in substance, refusing them a realistic opportunity to influence the electoral process, confining them to the action of casting a vote. The absence of free political discussion and opportunities for a free exchange of opinions, including both candidates and citizens, during the elections would make it impossible to consider such elections as free. The legislature had to ensure adequate exercise of the citizens’ right to receive and impart information about elections. Under the Electoral Rights Act information flow was ensured by the provision of information about candidates, dates and the procedural for electoral acts, as well as by election campaigning aimed at inducing voters to vote for or against a candidate. Candidates were allowed to put in place campaign funds and to incur expenses from such funds for campaigning purposes and to have broadcast time and access to the print media, both paid and free of charge. Other citizens were allowed to engage in election campaigning without incurring expenses by way of public gatherings or otherwise. They could also make contributions to campaign funds within the limits prescribed by law. At that stage of Russia’s development the need to ensure transparent financing of elections required reinforced safeguards. Therefore, also taking into account the current realistic possibility of control over the financing of elections, the applicable regulatory framework, including sections 48, 51, 52, 58   and 50 of the Electoral Rights Act, pursued a legitimate aim and did not upset the balance of constitutional values. It also complied with the criterion of being necessary in a democratic society and was not disproportionate vis-à-vis the constitutionally protected aims. Judge Kononov issued a separate opinion, noting that a political discussion could not be a dispute about objective facts. Opinions and comments, by their nature, contain value judgments