issued by the Registrar of the Court

ECHR 257 (2012)

19.06.2012

TV coverage during 2003 parliamentary elections provided

Russian opposition sufficient public visibility

In today’s Chamber judgment in the case of Communist Party of Russia and Others

v. Russia (application no. 29400/05), which is not final¹, the European Court of Human

Rights held, unanimously, that there had been:

no violation of Article 13 (right to an effective remedy) of the European

Convention on Human Rights; and,

no violation of Article 3 of Protocol No 1 (right to free elections) to the

Convention.

The case concerned the complaints by Russian political opposition parties and politicians

that the 2003 parliamentary elections had not been free as a result of unequal media

coverage of the electoral campaign by the five major TV companies.

The Court found that laws and procedures existing at the relevant time guaranteed the

opposition minimum access to TV as well as well as provided for the neutrality of the

State-controlled media. While equality in TV coverage had not in reality been achieved

during the 2003 elections, that had not been sufficient to find that the elections were not

“free” within the meaning of the Convention.

A Factsheet on the Right to Free Elections, which comprises selected Court’s case-law

and pending cases, can be found on this link.

Principal facts

The applicants are two political parties registered in Russia, namely the “Communist

Party of Russia” and the Russian democratic party “Yabloko”, and six Russian nationals,

Sergey Ivanenko, Yevgeniy Kiselyev, Dmitriy Muratov, Vladimir Ryzhkov, Vadim

Solovyev and Irina Khakamada. The applicants participated in the December 2003

Parliamentary elections as candidates; the individual applicants also participated as

voters. All of them were in opposition to the government. The pro-government forces

during those elections were represented essentially by the “United Russia” party.

All major television companies in Russia covered the elections in question. Among them

were the five main nationwide broadcasting companies, three of which were directly

controlled by the State. The remaining two TV channels were affiliated with the State

indirectly.

During the electoral campaign all candidate parties received the same amount of free

air-time on national and regional TV, namely seven and a half hours for electoral

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

campaigning (direct political advertisement). The time schedule for distribution of free

air-time was allocated following the drawing of lots. All political parties used the free air-

time provided to them by the broadcasting companies.

In addition, all parties could buy some air-time for political campaigning. The

“Communist Party” did not use that opportunity, while “Yabloko” bought time from

“Channel One” to show two video clips each lasting one minute.

Besides direct political advertisement, TV companies provided media coverage of both

the elections as well as its candidates. The applicants claimed that media coverage of the

December 2003 electoral campaign was unfair to opposition parties and candidates and

that the TV channels effectively campaigned for the ruling party under the pretext of

media coverage. The applicants submitted in particular that while United Russia had 642

minutes of coverage during that campaign, the “Communist Party” had 316 minutes and

“Yabloko” 197 minutes. The applicants also argued that information broadcast during

that campaign had not been neutral, and that the “Communist Party”’s coverage had

almost exclusively been negative. They submitted data on media coverage which showed

bias of TV companies in favour of “United Russia”.

The OSCE (Organisation for Security and Co-operation in Europe) criticised the 2003

parliamentary elections for unequal access of the candidates to the media, and so did a

Moscow-based research affiliate of Transparency International (an international non-

governmental organisation) in 2004.

The then deputy chairperson of “Yabloko” complained to the Central Electoral

Commission (CEC) about unfair media coverage of the 2003 campaign. The CEC

chairperson replied in September 2003, acknowledging that several TV broadcasts and

press reports contained elements of unlawful electoral campaigning against “Yabloko”.

Subsequently, some of the other applicants complained to various public authorities,

including CEC, the prosecution service and the CEC Working Group on Information

Disputes (Working Group), about the media coverage of the 2003 elections. The Working

Group concluded that some of the five major broadcasters had displayed a tendency

towards deliberate and systematic neutral or positive coverage of “United Russia” while

providing mainly negative coverage of the “Communist Party” activities. In November

2003, CEC wrote to four of the major broadcasters signalling their observations and

asking the State broadcasting companies to comply with the relevant legislation as

interpreted by the Constitutional Court.

In the December 2003 elections the “United Russia” party obtained a majority of the

votes (over 37 %) and formed the biggest group in Parliament (224 seats). The

Communist Party obtained 52 seats, thus forming the second biggest group in the

Duma. “Yabloko” did not get any seats in Parliament. Mr Ryzhkov was elected as an

individual member of Parliament, while Mr Ivanenko and Ms Khakamada were not

elected.

In 2004 the applicants complained to the Supreme Court asking it to invalidate the

December 2003 parliamentary election results. They produced a large amount of

material (reports, transcripts of TV programmes etc.) in support of their claim that TV

media coverage had been biased. The Supreme Court, sitting as a first instance court,

dismissed their claim in December 2004 finding that no violation of the electoral law

capable of undermining the genuine will of voters had occurred. In particular, it observed

that it was difficult to distinguish “positive” media coverage, that Russian electoral law

did not limit the number of election-related events during campaigns, that in addition to

the TV coverage there had been other mass media coverage of the 2003 Parliamentary

election, that voters had received information from other sources, and that there was no

direct correlation between the amount of TV media coverage and the number of votes a

party would receive. The Supreme Court also recalled the Constitutional Court’s finding

of October 2003 that media coverage without a special intention to persuade the voters

in favour or against a party or a candidate was not electoral campaigning. In all, the

Supreme Court examined evidence submitted by the applicants which amounted to 14

days of transcripts of election-related news and TV programmes.

Following the applicants’ appeal, the Supreme Court, sitting as a court of appeal,

dismissed their claim accepting the reasoning of the first-instance bench.

Complaints, procedure and composition of the Court

Relying on Article 3 of Protocol No 1 to the Convention, as well as on Articles 13, 6 § 1

(right to a fair trial) and 14 (prohibition of discrimination), the applicants complained

that the media coverage of the 2003 Parliamentary election had been biased to the

detriment of the opposition parties and candidates.

The application was lodged with the European Court of Human Rights on 1 August 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

Nina Vajić (Croatia), President,

Anatoly Kovler (Russia),

Elisabeth Steiner (Austria),

Khanlar Hajiyev (Azerbaijan),

Mirjana Lazarova Trajkovska (“the Former Yugoslav Republic of Macedonia”),

Linos-Alexandre Sicilianos (Greece),

Erik Møse (Norway),

and also Søren Nielsen, Section Registrar.

Decision of the Court

Admissibility

The Court found it necessary to examine at the same time the questions of admissibility

of the complaints and their substance.

Right to an effective remedy (Article 13)

The Court accepted that the remedies which existed during the election campaign to

complain about the bias of TV companies could have been insufficient. However, the

applicants had had the possibility of requesting invalidation of the results after the

elections, which they had used. The Supreme Court had had the powers to annul election

results; it had examined the applicants’ claims and delivered a reasoned judgment. The

independence of the Supreme Court had not been questioned, and the Court did not

consider that its impartiality was an issue. The fact that the Supreme Court had

examined only part of the TV transcripts produced by the applicants (“the sampling

method”) did not make that remedy ineffective. Furthermore, the Court did not find any

procedural flaws before the Supreme Court which would have made them ineffective. It

therefore concluded that the proceedings before the Supreme Court had to be

considered an effective remedy in accordance with the Convention.

Accordingly, there had been no violation of Article 13.

Right to free election (Article 3 of Protocol No 1)

The Court observed that the right to free elections was a fundamental principle of any

effective democracy. It was particularly important in the period preceding an election

that opinions and information of all kinds were permitted to circulate freely.

That said, the Court observed that there were many ways of organising and running

electoral systems, and Article 3 of Protocol No 1 had not been conceived as a code on

electoral matters. Thus, States enjoyed considerable discretion to adopt rules on

parliamentary elections in accordance with their specific historical or political factors.

It had been undisputed that the applicable Russian law had guaranteed neutrality of the

broadcasting companies making no distinction between pro-governmental and opposition

parties. The applicants had claimed, however, that the law had not been complied with

in practice. In particular, they argued that the TV coverage had been mostly hostile to

opposition parties and candidates, that United Russia had influenced the TV companies

so as to obtain favourable reporting, and that biased media coverage on TV had critically

affected public opinion and therefore the election had not been free.

The Court first addressed the applicants’ claim that the TV companies had been

manipulated by the government. It examined the findings of the Supreme Court in that

respect and concluded that they had been not been irrational. Thus, the applicants had

not presented any direct proof that there had been abuse by the Government of their

dominant position in the TV companies concerned. The TV journalists themselves had

not complained of undue pressure by the Government or their superiors during the

elections. Indeed, formally speaking, the journalists covering elections had been

independent and, under Article 10 of the Convention, had had wide discretion to

comment on political events. The Court accepted, referring to the Supreme Court’s

findings, as well as to the opinions of the OSCE and the CEC Working Group, that media

coverage had been unfavourable to the opposition. It noted, however, that in the

circumstances it was difficult to distinguish between Government-induced propaganda

and genuine political journalism or routine reporting on the activities of State officials.

The Court also agreed with the Supreme Court that it was very difficult, if not

impossible, to determine a causal link between “excessive” political publicity and the

number of votes obtained by a party or a candidate. The Court emphasised once again

its subsidiary role in assessing primary evidence and concluded that it did not have

sufficient reasons to discard the Supreme Court’s findings. It concluded that the

applicants’ allegation of political manipulation was not sufficiently proven.

Furthermore, it concluded that Russia had complied with its obligation to act in order to

ensure that elections were free both in procedural as well as in substantive terms. More

specifically, the applicants’ complaint about unequal media coverage had been examined

by an independent judicial body providing procedural guarantees and had resulted in a

reasoned judgment. Also, opposition parties had been able to convey their message on

TV by using the free and paid airtime provided without distinction to them and to the

other political forces. The OSCE reports had confirmed that while the main country-wide

State broadcasters had displayed favouritism towards United Russia, voters who sought

information had been able to obtain it from other available sources. Finally, the Court

recalled that imposing prior restraints on free speech of the journalists had to be

avoided, especially in the sphere of political debate. The Court stressed that the Russian

legislation proclaimed the vprinciples of neutrality and editorial independence of public

media and prohibited journalists from taking part in political campaigning, and the

applicants did not produce sufficient evidence that those principles were not complied

with in practice.

The Court concluded that Russia had taken measures which guaranteed some visibility of

opposition parties on Russian TV and ensured editorial independence and neutrality of

the media. While equality among all political forces during those elections might not

have been achieved, the State, in the light of its broad discretion to decide (wide margin

of appreciation) on such matters, had not failed to meet its obligation to ensure free

elections.

There had therefore been no violation of Article 3 of Protocol No 1.