CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 avril 2022

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font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s840A64EC { height:75.9pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     THIRD SECTION CASE OF TESLENKO AND OTHERS v. RUSSIA (Applications nos. 49588/12 and 3 others - see appended list)       JUDGMENT Art 5 § 1 • Lawful arrest or detention • Non-compliance with domestic law when escorting applicants to police station in the context of minor administrative offences Art 10 • Freedom of expression • Prosecution for administrative offences for calling on voters not to vote for a specific political party or to abstain from voting in elections • Margin of appreciation overstepped   STRASBOURG 5 April 2022   FINAL   05/07/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Teslenko and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Georges Ravarani, President,   Georgios A. Serghides,   María Elósegui,   Darian Pavli,   Anja Seibert-Fohr,   Peeter Roosma,   Mikhail Lobov, judges,   and Olga Chernishova, Deputy Section Registrar, Having regard to: the applications (nos.   49588/12, 65395/12, 49351/18 and 50424/18) 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 four Russian nationals (see appendix); the decisions to give notice to the Russian Government (“the Government”) of the complaints under Articles 5, 6, 7, 10 and 13 of the Convention and to declare inadmissible the remainder of the applications; the parties’ observations; Having deliberated in private on 8 March 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns, inter alia , the applicants’ prosecution for administrative offences for calling on other eligible voters not to vote for a specific political party or to abstain from voting in the parliamentary and presidential elections in 2011, 2012 and 2018. THE FACTS 2.     The Government were initially represented by Mr M.   Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. M r teSlenko (Application n o . 49588/12) 4.     The electoral campaign for the 2011 State Duma elections started on 30 August 2011. The election was held on 4 December 2011. 5 .     Mr Teslenko (hereinafter “the first applicant”) wanted to express, as a private citizen, his views on the United Russia party. He found some material (apparently drawings with slogans) on the Internet and printed it out on the back of some used paper. It appears that he printed out some eight leaflets that contained the phrases “United Russia is a party of crooks and thieves”, “Don’t let them steal your vote” and “Each person who skips the election is giving his vote to the party of crooks and thieves”. 6.     At around 10 p.m. on 29 November 2011 the applicant decided to put the leaflets on the wall of a block of flats. 7.     He was spotted by two police officers, V. and P. It appears from V.’s report that the applicant was taken to a police station in order to ascertain his identity. According to the applicant, he had had his passport on him but was first asked to present it at the police station, which he did. 8.     The applicant was kept at the police station for two hours. It appears that during that time his bag was searched and the leaflets were seized. On 30   November 2011 an offence report was compiled accusing him of unlawful “pre-election campaigning” in breach of Article   5.12 of the Code of Administrative Offences (“the CAO”, see paragraph 43 below). 9.     By a judgment of 23   December 2011 a justice of the peace considered that the leaflets had amounted to “campaign material” ( агитационные материалы ) and that their production and distribution had amounted to “pre-election campaigning” within the meaning of sections 2 and 48 of the Electoral Rights Act 2002 (see paragraphs 55 and 57 below). The applicant should therefore have complied with section 54 of that Act (see paragraph 59 below, hereinafter “the notification requirement”). The fact that he had incurred no expenses in producing the leaflets had no legal significance in terms of the charge against him. The justice of the peace sentenced the applicant to a fine of 1,000   Russian roubles (RUB – approximately 11   euros (EUR) at the time). 10 .     The applicant appealed, arguing that in view of the Constitutional Court’s findings made in 2005 and 2006 (see paragraphs 61 and 63 below), citizens who were not affiliated to any candidate or electoral group could lawfully campaign without incurring expenses. 11 .     On 16 January 2012 the Novoaltaysk Town Court upheld the judgment. The appellate court stated that the notification requirement was applicable to both the production and dissemination of campaign material; that the applicant did not deny that he had produced the material; that some (unspecified) leaflets had amounted to “campaign material” because they had concerned the State Duma election; and that he therefore should have complied with the notification requirement. The court also held that the absence of any note in the offence report about the applicant’s being taken to the police station did not adversely affect the legality of that report and the sentence. 12.     On 6 March 2012 a deputy President of the Altay Regional Court upheld the above-mentioned decisions. M r LYUTAREVICH (application n o . 65395/12) 13.     The electoral campaign for the 2012 Russian presidential election started in December 2011. The election was held on 4   March 2012. 14.     On an unspecified date, Mr Lyutarevich (hereinafter “the second applicant”) put writing on the rear window of his car saying “United Russia is a party of crooks and thieves”. By a judgment of 23 March 2012 a justice of the peace convicted him under Article 5.12 of the CAO and sentenced him to a fine of RUB 1,000. The justice of the peace considered that the writing had amounted to “campaign material” because it had contained a negative assessment of the political party that had nominated one of the candidates for the election (Mr V.   Putin); that the applicant had produced the material; and that he had not complied with the notification requirement under section 55 of the Presidential Elections Act (see paragraphs 59-60 below). On 10 April 2012 the Rodniki District Court of the Ivanovo Region upheld the judgment. It became final on that date. It is unclear whether the applicant paid the fine. 15 .     A deputy prosecutor of the Ivanovo regional prosecutor’s office sought a review of the above-mentioned decisions. On 19 June 2017 the deputy President of the Ivanovo Regional Court set them aside. The judge considered that it had not been established that the applicant had produced the material during the presidential election campaign, his claim of having put the writing on his car after the parliamentary elections on 4 December 2011 not having been refuted; that it could not be classified as “printed material” within the meaning of Russian law; and that it had not been established that it could be classified as “visual material”. The court discontinued the proceedings for lack of corpus delicti . M r DYACHKOV (application n o . 49351/18) 16 .     The electoral campaign for the 2018 Russian presidential election started in December 2017. The election was held on 18   March 2018. It appears that some 67% of eligible voters voted. 17.     During the electoral campaign, eight people were registered as candidates. Several others seeking to be registered as candidates were not. It appears that Mr A. Navalnyy was not registered because of an existing criminal record (see, in this connection, Navalnyy and Ofitserov v. Russia , nos. 46632/13 and 28671/14, 23 February 2016). In January 2018 the Supreme Court upheld the decision not to register him as a candidate. Mr   Navalnyy launched a campaign called “Voters’ Strike”, which was run through the local offices of his former campaign and through volunteer work. Protest rallies were held in early 2018 in Russia. 18.     It appears that Mr Dyachkov (hereinafter “the third applicant”) was the leader of the “Voters’ Strike” campaign in Ivanovo. He considered that equal access for all people wishing to stand as candidates in the election had not been ensured and that voters had the right to be informed of their constitutional rights, including the right to abstain from voting. 19 .     It also appears that the third applicant notified the Ivanovo city administration of his intention to organise, on 28 January 2018, a “Voters’ Strike”, a hybrid public event in the form of a march followed by a meeting to protest against the refusal to register Mr Navalnyy as a candidate in the forthcoming presidential election. The administration suggested that the applicant’s event be held on another date and in another place. 20.     On 20 February 2018 the applicant posted the following message on the Navalnyy Team page on VKontakte, a popular social media platform: “The Navalnyy office has received new leaflets and they urgently need to reach their readers! Come, take and distribute them: there are only a few weeks left before the staged election and less and less time to tell others about the impending fraud.” On 3 March 2018 he posted a message saying “Tell everyone that the ‘election’ on 18 March is a sham”. 21 .     The applicant also ordered and paid a printing company to produce 5,000 leaflets saying “Voters’ Strike. Do not vote. [Be an election observer.]”. It appears that on 1 March 2018 a search was carried out at the Navalnyy office in Ivanovo. The police seized 1,215 leaflets and some other material. On 18 March 2018 the applicant placed some leaflets saying “Voters’ Strike: don’t vote, watch [the election process]” on the wall of a block of flats and posted them through residents’ letterboxes. 22.     By a judgment of 30 May 2018 the Oktyabrskiy District Court of Ivanovo convicted the applicant of creating obstacles to the participation of voters in the voting process, an offence under Article 5.69 of the CAO (see paragraph 39 below). He was sentenced to a fine of RUB 4,500 (approximately EUR 62 at the time). 23.     The court considered that between 20 February and 18 March 2018 the applicant had exerted influence over citizens by creating obstacles to the participation of voters in the presidential election and making calls to abstain from voting. He had misled voters by distributing information about the elections suggesting that they were flawed; he had not proved the truthfulness of that statement, which had amounted to a statement of opinion by the author of the leaflets. The leaflets had contained calls to abstain from voting and created a false impression and instilled doubts in people that the election was lawful. The applicant had thereby exerted unlawful influence over the choice of voters by inducing them to abstain from exercising their right to vote. His actions had not amounted to “pre-election campaigning” under section 48 of the Electoral Rights Act and section 49 of the Presidential Elections Act because the material had not referred to registered candidates. However, under section 46 of the Presidential Elections Act “information material” had to be objective, truthful and could not violate the equality of candidates. The court concluded that the applicant had violated section 1(2) of the Act by creating obstacles to the participation of voters in the election on 18   March 2018. 24.     The court dismissed as irrelevant the applicant’s reference to the Constitutional Court’s ruling of 14 November 2005 (see paragraph 61 below) because it concerned “pre-election campaigning” calling on people to vote against all registered candidates rather than calls to abstain from voting. The court also stated that there was no need to identify any specific voters who had fallen victim to the alleged obstacles to their voting. An offence under Article   5.69 of the CAO required no victim or actual adverse consequences, it being committed through “impugned actions” exerting influence over voters. 25.     On 8 June 2018 the Ivanovo Regional Court upheld the judgment. It held that an electorate’s abstention from exercising “their direct electoral functions” could be inspired by their own personal views, characterised by political passivity and inaction, or as a response to orders or calls from others interested in abstention. The large number of leaflets ordered by the applicant, together with his online publications, disclosed his intention to influence a considerable number of voters with the aim of that abstention. He had thereby violated section   1(2) of the Presidential Elections Act and created obstacles to the participation of voters in the voting process. M r Nigmatullin (Application n o . 50424/18) 26.     The present application also concerns the electoral campaign for the 2018 Russian presidential election. 27.     Mr Nigmatullin (hereinafter “the fourth applicant”) considered that equal access for all people wishing to stand as candidates in that election had not been ensured and that voters had the right to be informed of their constitutional rights, including the right to abstain from voting. He decided to distribute leaflets in Naberezhnyye Chelny. It appears that the leaflets were part of the above-mentioned “Voters’ Strike” campaign. 28 .     One leaflet was entitled “You should know your rights!”. It indicated that voting in an election was not mandatory and that failure to vote was not unlawful. It further specified that it was unlawful to compel people to participate in the voting process or to control how they voted, to campaign for candidates in schools or similar institutions, to hold campaign events requiring people to attend and to put pressure on people to change their views or beliefs. It also indicated that it was lawful not to “go to the polls”, to convince others to act accordingly, to distribute leaflets calling for a “voters’ strike”, to campaign for that boycott on social media or to become a member of an election observer team. The leaflet encouraged people to report instances of unlawful campaigning to the local offices of Mr   Navalnyy’s campaign and to further disseminate information about voters’ rights. 29 .     Another leaflet was entitled “It’s not an election, it’s fraud!”. It indicated that the forthcoming election would amount to a “re-appointment” resulting in six more years without changes, including as regards the fight against corruption or the possibility to run fair elections or receive higher salaries; it also stated that the authorities did not care who voters chose but did care about turnout. The leaflet invited people to join the “Voters’ Strike” and to abstain from voting or from calling on others to vote. It encouraged people to take part in protest rallies or join observer teams, to explain to others that an election without a real choice was not a genuine election. 30.     On an unspecified date, the applicant put those leaflets on the walls outside or inside several blocks of flats in Naberezhnyye Chelny. 31 .     It became clear in the ensuing proceedings (see below) that on 27   January 2018 the Central Electoral Committee of the Tatarstan Republic had classified the same leaflets (or leaflets with similar content) as “campaign material”. 32.     On 10 March 2018 the police received a complaint about the leaflets on (the walls of) several buildings. They identified the applicant as a suspect and on 11 March 2018 instituted proceedings against him under Article 5.69 of the CAO. 33.     On 14 March 2018 police officers went to his home. In his written report to his superior, Officer A. stated that he had met the applicant at the entrance to the block of flats and invited him to follow him to the police station. He had then been “escorted” to the station. 34.     According to the applicant, he refused to follow the officers, saying that they should issue him with a summons to come to the station. He was then threatened with handcuffs and told that he was going to be escorted by force. The applicant complied and got into the police vehicle. At the police station he had to hand over his mobile telephone and take off his shoes for shoe prints to be taken. 35.     The applicant remained at the police station for three hours. 36 .     By a judgment of 19 March 2018 a justice of the peace held that by placing the leaflets on the buildings the applicant had interfered with the work of the electoral committee and created obstacles to the participation of voters in the voting process of the presidential election. However, the justice of the peace considered that his conduct had amounted to an offence under Article   5.12 of the CAO rather than Article   5.69. The applicant was convicted accordingly and sentenced to a fine of RUB 1,000 (approximately EUR 14 at the time). 37 .     The applicant appealed. He admitted that he had placed the leaflets on the buildings because he had believed it necessary to boycott the presidential election as equal access for all people wishing to stand as candidates had not been ensured and voters had had the right to be informed of their constitutional rights mentioned in the leaflet entitled “You should know your rights!”, including the right not to vote. His actions had amounted to an acceptable exercise of his freedom of expression on a matter of public interest. The applicant also argued that he had been arrested on 14   March 2018 in breach of Article 27.2 of the CAO in the absence of any difficulty to compile an offence report on the spot (without any summons being issued and being compelled to go to the police station) and in the absence of any exceptional circumstances for depriving him of liberty as required by Article   27.3 of the CAO. 38.     On 23 April 2018 the Naberezhnyye Chelny Town Court of the Tatarstan Republic upheld the judgment in a summary manner. RELEVANT LEGAL FRAMEWORK AND PRACTICE Russian laW AND PRACTICE Code of Administrative Offences Article 5.69 of the CAO 39 .     Article 5.69 was introduced into the Code of Administrative Offences (“the CAO”) in 2016 and read, until April   2020, as follows: “Interference with the exercise by an electoral or referendum committee of its powers established by the legislation on elections and referenda, where such interference constitutes a violation of the procedure for their functioning as established in the [above] legislation, or creating obstacles [ помехи ] to the participation of voters or referendum participants in the voting process [ голосование ], where such actions do not constitute an act punishable by criminal law – is punishable by an administrative fine of RUB 2,000 to 5,000 for citizens, [and] RUB   20,000 to 50,000 for officials.” 40.     The above-mentioned expression “act punishable by criminal law” refers to Article 141 of the Criminal Code, which makes it an offence to “impede” ( воспрепятствование ) the free exercise by a citizen of his electoral rights or violate the secrecy of the ballot. 41 .     It appears that the proposal for Article 5.69 of the CAO was not included in the draft bill submitted for examination before the national legislature, nor was it assessed in the explanatory note to the draft bill. The proposal was introduced later by amendment during the second reading of the draft. During the consecutive second and third readings on 26 February 2016 the proposal was not discussed, except for one remark by a member of the State Duma. 42 .     The Constitutional Court held that Article   5.69 of the CAO used the “blanket reference” technique as regards its first part relating to a violation of the procedure for the functioning of an electoral committee, since that provision did not set out the “procedure”. As such, the “blanket reference” technique did not mean that the provision was incompatible with the Constitution. Regulatory norms which established rules of conduct were not necessarily contained in the legal act that established liability for violating those rules. Thus, when assessing the foreseeability of legislation, it was pertinent to have regard to the text and wording used, as well as their place in the regulatory system ( нормативные предписания ) (Decision no. 1772-O of 18 July 2017). Article 5.12 of the CAO 43 .     Article 5.12 § 1 of the CAO entitled “Production, dissemination or placement of campaign material in breach of the electoral legislation”, as in force until 2016, penalised the production ( изготовление ) or dissemination of printed or audiovisual campaign material ( агитационные материалы ) without providing information on the number of copies produced ( тираж ), the date of dissemination, the election fund used to pay for it and details on the organisation or person having commissioned or produced it. 44.     In 2016 Article 5.12 § 1 was redrafted. It now penalises the production or dissemination of printed, audiovisual or other campaign material in breach of the requirements of the electoral legislation. 45.     When committed by a citizen, the offence was, until 2021, punishable by a fine of RUB 1,000 to 1,500. It is now punishable by a fine of RUB 5,000 to 20,000. Electoral legislation Right to vote under Russian law 46.     Section 3 of Federal Law no. 67-FZ of 12   June 2002 (“the Electoral Rights Act”) provides that the participation of citizens of the Russian Federation in an election or referendum is free and voluntary. No one may exert influence ( воздействие ) on a citizen with the aim to compel ( принудить ) him or her to participate or abstain from participating in an election or impede ( воспрепятствовать ) the free expression of his or her choice. 47.     Section 1 of Federal Law no. 19-FZ of 10 January 2003 (“the Presidential Elections Act”) provides that the participation of citizens of the Russian Federation in a presidential election is free and voluntary. No one may exert influence over a citizen with the aim to compel him or her to participate or abstain from participating in a presidential election or impede the free expression of his or her choice. 48.     Until 2006 Russian law explicitly provided for the possibility to campaign against all candidates and vote “against all candidates”. 49.     Since 2006 Russian law has required no minimum turnout for a national election to be considered valid. Contributions to electoral campaigns (a)    Donations to election funds 50 .     A political party’s election fund may not exceed RUB   700,000,000. An individual or a legal entity may contribute up to 0.07% (RUB 490,000; some EUR 6,000 in 2018, for instance) and 3.5% (RUB   24,500,000; some EUR 295,000 in 2018) respectively to such a fund (section 64 of Federal Law no. 51-FZ of 18 May 2005 and section 71 of Federal Law no.   20-FZ of 22   February 2014). 51 .     The election fund of a candidate in a presidential election may not exceed RUB 400,000,000. An individual or a legal entity may contribute up to 1.5% (RUB   6,000,000; some EUR 72,300 in 2018) and 7% (RUB   28,000,000; some EUR 337,350 in 2018) respectively to such a fund (section 58 of the Presidential Elections Act). (b)    Other contributions 52 .     A candidate or an electoral group that has nominated candidates or a list of candidates may appoint proxies. They are registered by an electoral committee and may engage in pre-election campaigning in favour of the relevant candidate or electoral group (section 43 of the Electoral Rights Act). A presidential candidate may appoint up to 600 proxies; a political party that has nominated a candidate may appoint up to 100 proxies (section   43 of the Presidential Elections Act). In a State Duma election, a political party that has nominated a federal list of candidates may appoint up to 1,000 proxies; a candidate in a single-mandate constituency may appoint up to 20 proxies (section 55 of Federal Law no.   20-FZ of 22   February 2014). 53 .     A candidate is free to determine the content, forms or methods of his or her campaigning, conduct it freely and, pursuant to the procedure prescribed by law, involve other persons for campaigning purposes (section   48(4) of the Electoral Rights Act). Pre-election campaigning may be carried out by holding public campaign events (section 48(3)). Such events are subject to the notification requirement under the Public Events Act (“the PEA”) (section 53 of the Electoral Rights Act and section 1 of the PEA). They may take one of the forms of public events specified in the PEA (Decision no.   18-AD14-18 of 2 June 2014 of the Supreme Court). On behalf of a candidate, a proxy may organise and run that event, including a meeting with voters (Decision no. 5-APA19-162 of 23 October 2019 of the Supreme Court). Flow of information during an election period (a)    Informing voters 54 .     Section 45 of the Electoral Rights Act provides that public authorities, electoral committees, media outlets, legal entities and citizens may engage in providing information to voters, in compliance with that Act. The content of such information must be objective and truthful and must not violate the equality of candidates or electoral groups. A similar provision is contained in section   46 of the Presidential Elections Act. (b)    Pre-election campaigning and campaign material 55 .     Section 2 of the Electoral Rights Act defines “campaign material” as printed, audiovisual and any other material containing indications of “pre ‑ election campaigning” and designed for mass distribution during an election campaign. It defines “pre-election campaigning” as activities carried out during an electoral campaign inciting – or aimed at inciting – voters to vote for or against a candidate, candidates or a list of candidates. 56.     Pursuant to section 2 of the Presidential Elections Act, the concepts and terms used in the Electoral Rights Act also apply in respect of presidential elections. 57 .     Since 2006, section 48 of the Electoral Rights Act has provided as follows: “1. Citizens of the Russian Federation and public associations [ общественные объединения ] have the right to engage – by legal means and in the forms permitted by law – in pre-election campaigning. 2. During an electoral campaign the following [actions] amount to pre-election campaigning: a) calls to vote for a list of candidates, lists of candidates, a candidate, candidates or against him or her (them); b) an expression of preference for a candidate or an electoral group [ избирательное объединение ], in particular, by indicating the candidate, list of candidates or electoral group the voter will vote for (except for situations of releasing the results of an opinion poll under section 46(2) [of the Act]); c) a description of the possible consequences of a certain candidate (not) being elected or certain list of candidates (not) obtaining parliamentary mandates; d) dissemination of information which is predominantly about one candidate, several candidates or one electoral group, in combination with positive or negative comment; e) dissemination of information about a candidate’s activities that are not connected with his or her professional activities or the exercise of his or her official duties; f) activities contributing to the creation of a positive or negative attitude on the part of voters towards a candidate or an electoral group that presents that candidate or a list of candidates.” 58.     Similar provisions are contained in section 49 of the Presidential Elections Act. 59 .     Section 54 of the Electoral Rights Act provides that candidates or electoral groups have the right to freely disseminate printed, audiovisual or other campaign material, pursuant to the procedures prescribed by law. All printed and audiovisual campaign material must contain information about the person or organisation having commissioned or produced it, the number of copies, the date of distribution and the election fund used to pay for it. Before disseminating campaign material, a candidate or an electoral group must submit a copy of it to the competent electoral committee. It is prohibited to disseminate campaign material if that requirement has not been complied with. 60 .     Similar provisions are contained in section 55 of the Presidential Elections Act. 61 .     In Ruling no. 10-P of 14 November 2005 the Constitutional Court examined whether the Electoral Rights Act (prior to its amendment in force since late 2005 and 2006, see paragraph 62 below) prohibited pre-election campaigning in the form of calls to vote against all registered candidates, independently of any candidates or electoral groups, that is, without incurring expenses from their electoral funds. The Constitutional Court’s findings may be summarised as follows: (a)     At the time, Russian law provided that a voter had the right to express his or her choice in the form of a vote against all registered candidates. The federal legislature had been allowed to regulate the flow of information during an electoral campaign. Elections could only be considered “free” where citizens’ rights to receive and impart information and freedom of expression were effectively protected. The legislature therefore had to strike a balance between the right to free elections and freedom of expression and information while avoiding excessive limitations. During an electoral campaign, citizens were not merely consumers of information but had the right to receive, produce or disseminate information by lawful means and to actively put forward their views on an election and call on others to share those views as regards voting for or against a specific candidate or against all registered candidates. The absence of an opportunity to engage in pre-election campaigning or the lack of safeguards for doing so would, in substance, amount to a denial of the right to influence the electoral process, which would be reduced to voting. Since the legislature had provided for such a choice of vote as a vote against all candidates, it was therefore necessary to regulate the pre-election campaigning relating to that choice. (b)     The Electoral Rights Act defined “pre-election campaigning” as activities inciting or aimed at inciting voters to vote for or against a specific candidate or list of candidates, as well as against all candidates or all lists. Activities aimed at inciting voters to vote against all candidates were therefore unequivocally classified as “pre-election campaigning”. The differences in the regulation of campaigning by candidates and citizens sought to ensure transparency in elections, the equality of candidates before the law, irrespective of financial resources, and to prevent abuses. The lack of any specific regulation of campaigning by citizens against all registered candidates could be interpreted as an absolute ban on such campaigning. In particular, the legislature had not provided for regulation as regards incurring expenses for such campaigning. The situation therefore amounted to an unjustified restriction of freedom of expression and freedom to disseminate information by pre-election campaigning and was not in compliance with the requirement of foreseeability. The Constitutional Court instructed the federal legislature to take immediate measures to remedy the situation. 62 .     In 2005 and 2006 the federal legislature amended the legislation so that calls to vote against all candidates were removed from the definition of “pre-election campaigning”. 63 .     By Ruling no.   7-P of 16   June 2006 the Constitutional Court   examined and declared compatible with the Constitution various provisions of   the Electoral Rights Act (in particular, section 54 (see paragraph 59 above) and the provisions concerning the financing of pre-election campaigning through election funds) in so far as they prevented citizens who were not themselves candidates or representatives of candidates or electoral groups from engaging in pre-election campaigning for or against a candidate or list of candidates, and thereby incurring expenses outside of election funds. The Constitutional Court’s findings are as follows: (a)     Having regard to the need to ensure the free expression of the opinion of 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 the flow of information, including rules for election campaigning and its funding. (b)     To reconcile the exercise of electoral rights, freedom of expression and freedom of mass information, the federal legislature had   discretion to choose the appropriate methods and means that took account of the historical conditions prevailing at a particular stage of the country’s development. To reconcile any conflict between these competing rights and freedoms, the legislature had to maintain the balance of constitutional values and not put in place disproportionate restrictions that would not be necessary in a democratic society and would impinge upon the very essence of the protected rights. (c)     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 voting. 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 free. (d)     The legislature had to ensure the adequate exercise of the right of citizens to receive and impart information about elections. Under the Electoral Rights Act, the flow of information was ensured by the provision of information about candidates, dates and the procedure for carrying out electoral activities, as well as by election campaigning aimed at inducing voters to vote for or against a candidate. (e)     Candidates were allowed to put in place campaign funds and spend such funds on campaigning, and could have broadcast time and access to print media, both paid and free of charge. Other citizens were allowed to engage in pre-election campaigning without incurring expenses by organising public gatherings or in other ways. They could also make contributions to campaign   funds within the limits prescribed by law. (f)     At that stage of Russia’s development, the need to ensure transparency in the financing of elections required   reinforced safeguards. Therefore, also taking into account the   realistic   possibility   of control over the financing of elections,   the applicable regulatory framework 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 to Ruling no. 7-P. He stated that the applicable legislation had, in substance, created an absolute impossibility for the majority of voters who had no connection with election funds to impart their opinions about candidates to other voters, thereby impinging upon expressions relating to political speech. Judge   Kononov stated that political discussion was not a dispute about objective facts. Opinions and comments, by their nature, contained value judgments and the potential to induce a choice or preference. Moreover, it was frequently difficult to determine the exact intention behind an utterance. Exclusion of value judgments from the notion of “information”, their arbitrary classification as “campaigning” and the removal from ordinary citizens of   the opportunity to express their attitude toward a candidate and his or her policy choices therefore significantly impinged upon the constitutional rights set out in Article   29 of the Constitution. 64 .     In Decision no. 1665-O of 28 June 2018 the Constitutional Court stated that the approach stated in its ruling of 16 June 2006 was applicable to presidential elections. 65 .     Sitting as a review court in an administrative-offence case related to the above-mention decision, the Supreme Court considered that the act of wearing, during a public event, a t-shirt bearing a text relating to a person standing as a candidate in an ongoing presidential election had amounted to “campaign material” disseminated in breach of section 55 of the Presidential Elections Act, which contained various requirements similar to those relating to State Duma elections (Decision no. 67-АD18-19 of 25   October 2018). Administrative escorting and arrest 66.     For a summary of the applicable legislation, see Tsvetkova and Others v. Russia (nos. 54381/08 and 5 others, §§ 60-75, 10 April 2018), and Butkevich v. Russia (no. 5865/07, §§ 33-36, 13 February 2018). 67 .     In Ruling no. 2 of 10 February 2009 the Plenum of the Supreme Court (paragraph 7) stated that the procedure under Chapter 25 of the Code of Civil Procedure (“the CCP”) was not applicable to challenges against actions, omissions or decisions for which the CAO did not provide for a review procedure and which, being intrinsically linked to a given case of administrative-offence charges, were not amenable to a separate review. The above statement was relevant for evidence in cases such as the record of certain measures taken, for instance a record of administrative escorting or record of administrative arrest. In such circumstances, arguments relating to the inadmissibility of a piece of evidence or a measure could be presented during examination of the administrative-offence case or on appeal against a decision in such a case. However, where CAO proceedings were discontinued, any actions taken during such proceedings could then be challenged under Chapter 25 of the CCP, if such actions impinged upon the person’s rights or freedoms, created obstacles to their being exercised or unlawfully imposed liability. Other relevant material 68 .     Opinion   no.   190/2002 (CDL-AD(2002)023rev2-cor) adopted by the European Commission for Democracy through Law (Venice Commission)contains the “Code of Good Practice in Electoral Matters, Guidelines and Explanatory Report”, which treats abstention as a potential political choice. 69 .     In June 2018 the Office for Democratic Institutions and Human Rights issued the Final Report of the ODIHR Election Observation Mission regarding the Russian presidential election on 18 March 2018. The relevant parts read as follows: “Overall, the process of handling election complaints lacked transparency. Out of a multitude of petitions, the CEC [Central Election Commission] deemed 420 to constitute complaints, but only considered 2 in public sessions and subsequently published those decisions. The CEC informed the ODIHR EOM that it considered the remaining complaints to be beyond its competence, as they mostly related to the misuse of administrative resources, directing them to other state authorities. Over 160 complaints were filed with Subject Election Commissions (SECs), mostly concerning campaign materials, including distribution of leaflets calling for an election boycott. The SECs ruled in a consistently restrictive manner and considered that the distribution of such materials violated the law. ... While candidates could generally campaign freely, the law obliges them to notify local authorities about their planned campaign events in advance. Some were offered alternative and in their view less attractive locations and time slots for their meetings with voters – several also faced difficulties renting private venues for their events. Cases of harassment of campaign workers, including by police, were reported to ODIHR EOM observers. In addition, activists affiliated with Alexei Navalny, who was not registered as candidate and both questioned the legitimacy of the election and called for a boycott, faced num