In a Chamber judgment of June 19, 2012, the ECHR held in Communist Party of Russia and Others v. Russia (Application No. 29400/05) that there had been no violation of Article 13 of the European Convention on Human Rights (right to an effective remedy) and no violation of Article 3 of Protocol No. 1 (right to free elections) to the Convention.
The case was initiated by Russian political opposition parties and politicians who complained that, because of unequal media coverage by the five major nationwide television companies in Russia, the 2003 parliamentary elections had not been free.
The Court found that the laws and procedures existing in Russia during the relevant time guaranteed the opposition free minimum access to television and provided for the neutrality of state-controlled media. Although television coverage had not been equal during the 2003 elections, that fact was not sufficient to find that the elections were not “free” within the meaning of the Convention.
Background
The case was brought by two political parties registered under Russian law, namely, the “Communist Party of the Russian Federation” and the Russian Democratic Party "Yabloko," and six individuals: Sergey Ivanenko, Yevgeniy Kiselyev, Dmitriy Muratov, Vladimir Ryzhkov, Vadim Solovyev, and Irina Khakamada. The applicants participated in the December 2003 Parliamentary elections as opposition candidates, and the individual applicants also participated as voters.
The individual applicants were represented before the Court by politician and former world chess champion Gary Kasparov. The Russian Government was represented by G. Matyushkin, the Representative of the Russian Federation at the ECHR.
All major television companies in Russia (including the five main nationwide broadcasters: Channel One, TV Centre, VGTRK, NTV, and REN TV) covered the elections. Three of the five main nationwide broadcasting companies were directly controlled by the State. The other two were affiliated with the State indirectly.
During the campaign, all candidate parties received the same amount of free airtime on national and regional television. Furthermore, all parties could purchase a certain amount of airtime for political campaigning. The Communist Party did not purchase airtime. Yabloko bought time on “Channel One” to show two one-minute video clips. All parties bought space in the federal print media.
Television companies also provided media coverage of the elections. The applicants claimed that the media coverage of the December 2003 electoral campaign was unfair to opposition parties and candidates and that the television channels campaigned for the ruling party, United Russia, under the pretext of media coverage.
The applicants submitted that United Russia received more coverage than the opposition parties and that the information broadcast during the campaign had not been neutral. The applicants also asserted that most coverage of the Communist Party had been negative. They submitted data on media coverage which showed bias of television companies in favor of United Russia.
The applicants also referred to tacit campaigning by high-level officials, including then-President Putin.
On September 10, 2003, Mr. Mitrokhin, then deputy chairperson of Yabloko, wrote a complaint to the Central Electoral Commission (CEC) about unfair media coverage of the 2003 campaign. The CEC chairman replied on September 29, 2003, acknowledging that several television broadcasts and press reports contained elements of unlawful campaigning against Yabloko.
Some of the applicants lodged complaints with the CEC, the CEC Working Group on Information Disputes, and the prosecuting authorities about the television coverage of the 2003 campaign.
On October 31, 2003, the Working Group issued a report noting that VGTRK “had displayed a tendency towards deliberate and systematic dissemination of neutral or positive, or even complimentary, information about the events related to the activities of the United Russia party, while providing mainly negative coverage of the activities of the Communist Party”. It also found that “Channel One displayed a tendency towards deliberate and systematic dissemination of neutral or positive information about the events related to the activities of United Russia, while providing mainly negative coverage - or news items accompanied by negative comments - of the activities of the Communist Party”. The Working Group called on Channel One and VGTRK to comply with the Duma Elections Act.
The CEC asked the Ministry of Mass Media to monitor the content of major information programs on the five nationwide television channels.
In the December 2003 elections, United Russia obtained a majority of the votes and formed the biggest group in Parliament (224 seats). The Communist Party obtained 52 seats, and Yabloko did not obtain any seats. Applicant Mr. Ryzhkov was elected as an individual member of Parliament. Applicants Mr. Ivanenko and Ms. Khakamada were not elected.
On September 28, 2004, the applicants lodged a complaint with the Supreme Court to invalidate the December 2003 parliamentary election results, which had been certified by the CEC. The CEC was the defendant in those proceedings. The applicants submitted voluminous transcripts and video recordings, among other materials, in support of their claim that television coverage had been biased. The case was tried by Justice Zaytsev, sitting in single-judge formation. The applicants lodge several procedural motions. The applicants claim that the court denied nearly all of those motions without good reason or in breach of procedural rules. The government denied those assertions. The applicants challenged the judge on four occasions, but he refused to withdraw from the case.
The Supreme Court dismissed the claim in December 2004, finding that no violation of the electoral law capable of undermining the genuine will of the voters had occurred. The Supreme Court noted that Russian electoral law did not limit the number of election-related events during campaigns, that there had been other mass media coverage of the 2003 Parliamentary election in addition to the television coverage, and that there was no direct correlation between the amount of television coverage and the number of votes a party received.
The applicants appealed. They complained that the court of the first instance only examined around five percent of the transcripts and less than 1.5 percent of the video recordings. They argued that this violated the principle of direct examination of evidence. The Supreme Court, sitting as a court of appeal, dismissed their claim
Relying on Article 3 of Protocol No. 1 to the Convention and Articles 13, 6 § 1 (right to a fair trial) and 14 (prohibition of discrimination) of the Convention, the applicants complained that the television media coverage of the 2003 Parliamentary election had been biased against opposition parties and candidates; that, as opposition candidates, they had been discriminated against and did not have effective remedies; and that their complaints had been examined in proceedings that had not been “fair” within the meaning of the Convention. The application was lodged with the ECHR on August 1, 2005. The Court decided to rule on admissibility and merits of the application at the same time.
The Law
Article 3 of Protocol 1 to the Convention reads: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
Article 13 of the Convention states: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”Decision
Article 13 (Right to an effective remedy)
The Court stated that it was “not convinced that the remedies used by the applicants during the electoral campaign were sufficient to address” a problem of the magnitude complained of by the applicants. However, the applicants attempted to have the results of the elections invalidated, and it was within the power of the Supreme Court to annul the results if it had detected serious breaches of electoral law. The Government demonstrated that such a remedy had been successfully used at least once. Therefore, at least in theory, applicants had access to a legal remedy capable of satisfying their claim.
Applicants argued that, although they had made use of the remedy, it had proved ineffective because examination of their complaints was procedurally flawed. The Court noted that “not every procedural shortcoming results in the ‘ineffectiveness’ of the remedy in question.”
The applicants’ allegations were reviewed by the Supreme Court at two levels of jurisdiction. The Supreme Court had full jurisdiction and was entitled to invalidate the results of the election. The independence of the Supreme Court was not called into question, and the Court did not consider the Supreme Court's impartiality to be an issue. The fact that the Supreme Court examined only a sample of the materials submitted by the applicants did not make the remedy ineffective. The Supreme Court heard the applicants and delivered a reasoned judgment. Therefore, the Court concluded that the proceedings before the Supreme Court were an effective remedy in accordance with Article 13. Consequently, Article 13 was not breached.
Article 3 of Protocol No 1 (Right to free election)
The applicants did not deny that Russian law guaranteed neutrality of the broadcasting companies; rather, they claimed that the law was not complied with in practice. Specifically, they claimed that television coverage on the five main channels had been largely hostile to opposition parties and candidates, that executive authorities and/or United Russia had influenced the television companies to promote United Russia, and that biased television coverage had affected public opinion to such an extent that the elections were not “free” within the meaning of Article 3.
The Court concluded that the Supreme Court’s findings on the issue of government manipulation of the television companies had not been irrational. The applicants did not present direct proof of Government manipulation of the television companies involved. Under Article 10 of the Convention, journalists and news editors enjoy a wide discretion with respect to comments on political matters. The Court stated that the applicants did not explain how, based on the available information, Government-induced propaganda could be distinguished from genuine political journalism or routine reporting on activities of State officials. The Court concluded that it did not have sufficient evidence to discard the Supreme Court’s findings and that the applicants’ allegations of abuse by the Government were not sufficiently proven.
The Court concluded that the system of electoral appeals in place in the present case was sufficient to comply with the State’s positive procedural obligation. It noted that the applicants’ complaint about unequal media coverage was examined by an independent body in a procedure that afforded basic procedural guarantees and that a reasoned judgment was given. The State was under a duty to intervene to open up the media to different viewpoints. In this case, candidates were provided with free and paid airtime without regard to political affiliation. Furthermore, although the main nationwide broadcasters had favored United Russia, voters who sought information could obtain it from various sources. The Court stated that the applicants did not sufficiently substantiate their claims that the principles of neutrality and editorial independence of public media had not been complied with in practice.
The Court concluded that the Government had taken action to guarantee some visibility of opposition parties and candidates on Russian television and secure editorial independence and neutrality of the media. Although the arrangements probably did not secure de facto equality among political competitors on television media, the State, in view of its broad discretion in under Article 3 of Protocol 1, had not failed to meet its obligations to such an extent that it violated that provision.
The Court declared that the other complaints in the application were inadmissible.
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