CEDH · CASELAW;CLIN;ENG — 13 septembre 2022

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Russia - 15758/13 Judgment 13.9.2022 [Section III] Article 10 Article 10-1 Freedom of expression No relevant and sufficient reasons provided by domestic authorities for removing election observer from polling station: violation Facts – The applicant was an election observer appointed by a political party to observe Russian legislative elections at a precinct polling station in Moscow. On polling day, the precinct electoral commission of that polling station (“the PEC”) issued a decision setting out rules restricting the filming of officials and of the events there. The applicant filmed the poll and was filming the vote counting when the PEC noted that he had repeatedly breached the rules. It prepared two formal records and subsequently ordered a police officer to remove the applicant from the station for his misconduct. The applicant alleged that he had been removed for filming grave procedural violations by the PEC’s members and that the PEC had also ordered the remaining observers to be removed thereafter.   The applicant brought an unsuccessful court action challenging the lawfulness of his removal from the station. He appealed without success.    Law – Article 10: (a) Applicability – The applicant had gathered information by overseeing the election in his capacity as an election observer appointed by a political party to convey that information to the public. It had been an essential part of his duties which had served the important public interest in free and transparent elections. Given the fundamental importance of such elections in any democratic society and the essential role of political parties in the electoral process, the Court considered that the applicant had exercised his freedom of expression as a “public watchdog” in a democratic society and that Article 10 protection therefore applied to his activity, which was of similar importance to that of the press. (b) Merits – There had been an interference through the applicant’s removal from the polling station, which had prevented him from carrying out his function as an election observer. The Court did not need to determine whether the interference had been prescribed by law, since, even assuming that it had pursued the legitimate aims of preventing disorder and protecting the rights of others, it had not been “necessary in a democratic society”, as shown below. Given the importance of the applicant’s role as election observer in enhancing the democratic electoral process and promoting human rights protection, his status had conferred on him enhanced protection under Article 10, which was essential for the effective performance of his task of purveyor of information and public watchdog. That protection was not absolute, however, and could not exempt election observers from such “duties and responsibilities” as may follow from Article 10   § 2. The Court therefore had to examine whether the reasons adduced by the authorities had been “relevant and sufficient” to justify the applicant’s removal from the polling station: - The PEC’s decision had not contained even basic details of the applicant’s misconduct. Although there were objective difficulties on account of the PEC drafting its decision on the spot, that could not exempt them from describing the factual circumstances of the decision taken. Such a description was required for maintaining a clear audit trail, which was an important guarantee against arbitrariness and a necessary precondition for the thorough examination of the case; - The domestic courts had not made good the lack of factual details. In particular, it had not been shown in what way that applicant had obstructed the PEC’s work. They had also not assessed the degree to which the alleged misconduct had obstructed the process, whether any disruption had been sufficiently serious to justify an observer’s removal, or whether it would have been possible, for example, to simply bar the applicant from filming. Accordingly, no “relevant and sufficient” reasons for the application of the impugned measures had been put forward by the authorities. Conclusion : violation (six votes to one). Article 41: EUR 2,000 in respect of non-pecuniary damage. (See also Pentikäinen v. Finland [GC], 11882/10, 20 October 2015, Legal Summary ; Magyar Helsinki Bizottság v. Hungary [GC], 18030/11, 8   November 2016, Legal Summary ; Szurovecz v. Hungary , 15428/16, 8 October 2019, Legal Summary ; Mándli and Others v. Hungary , 63164/16, 26 May 2020, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes