Communicated on 11 June 2020 Published on 29 June 2020

THIRD SECTION

Application no. 82875/17 RODP YABLOKO against Russia lodged on 25 November 2017

STATEMENT OF FACTS

The applicant is Novgorod Regional Division of the Yabloko Russian United Democratic Party, a political party registered under the laws of the Russian Federation (“the applicant party”). The applicant party is represented before the Court by Ms K. Mikhaylova , a lawyer practising in St Petersburg.

The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 15 June 2016 the Novgorod Regional Duma (the constituency ’ s legislature) announced its decision to hold elections to the Regional Duma and scheduled them for 18 September 2016. The applicant party submitted a list of candidates to participate in the forthcoming elections.

According to several agreements signed by the applicant party and the regional agency of information communications (the agency) and the regional post office, the applicant party ’ s advertising materials were to be (1) broadcast on the regional TV and radio channels, (2) published in a number of regional newspapers and (3) distributed by the post office in the region.

On 6 September 2016 the agency refused to publish the applicant party ’ s materials in regional newspapers stating as follows:

“According to Section 9 of the [applicant party ’ s] programme, [the applicant party intends] to make the governor ’ s team resign and to form a responsible and professional government. [Section 9] is not in compliance with [the provisions] of the Federal Law On fundamental guarantees for rights of the nationals of the Russian Federation to participate in elections and referenda.

You are hereby requested to submit materials that will not violate the [applicable] legislation ... by 4.30 p.m. on 6 September 2016.”

On 7 September 2016 the regional post office refused to distribute the applicant party ’ s advertising materials. The post office ’ s deputy director indicated that the applicant party had failed to provide any proof that (1) the election commissions had received a copy of those materials; (2) that a person whose image was used in the materials had consented to such publication.

On 13 September 2016 the regional TV station refused to broadcast the applicant party ’ s audio advertising materials which contained the proposal to make the governor resign and to form a new responsible and professional government. The applicant party was asked to submit the revised material by 11 a.m. on 14 September 2016.

As a result of the refusals, the applicant party ’ s campaign publications were distributed only in the capital of the region, and the assigned TV air ‑ time was reduced by 25 %; there was no access to airtime during the week preceding the elections and there were no campaign publications in the local newspapers distributed in eight districts, including Novgorod.

On 15 September 2016 the local TV channel broadcast an interview with the former member of the applicant party G. During the show, both the presenter and G. made negative comments about the applicant party. In particular, they referred to the applicant party ’ s members as losers and turncoats.

On 18 September 2016 the elections to the Regional Duma were held. The electoral threshold was 5 %. The elections ’ results were as follows:

Party

Number of votes in favour of the party

% of the vote

United Russia

78,282

38.92

Communist Party

39,268

19.53

LDPR

34,782

17.29

Fair and Just Russia

32,399

16.11

Applicant party

9,716

4.83

The appeals against the refusals lodged by the applicant party with the regional election commissions were to no avail.

On an unspecified date the applicant party lodged a complaint with the Novgorod Regional Court seeking the annulment of the elections ’ results. The applicant party challenged the lawfulness of the refusals to broadcast and to distribute its campaign materials. It further complained about the TV campaigning against its candidates and the election commission ’ s failure to address its complaints about unlawful refusals.

On 27 December 2016 the Regional Court dismissed the applicant party ’ s complaint in full. The court noted that the agency ’ s refusal to publish the applicant party ’ s campaign advertising materials had not been absolute and that the applicant party could have modified the text of the materials as per the agency ’ s instructions. The court further noted that, as per applicable legislation, the regional legislature did not have the power to make the governor resign. The court considered that the relevant text of the applicant party ’ s advertising had contained information that had been untrue and misleading and that such publication, if permitted, would have amounted to an abuse. As to the TV interview with D., the court discerned no violation of the elections laws, given that the show had been aired during the period when such actions had been permissible. As to the remaining TV shows, the court refused to construe them as campaigning. The court concluded that it did not discern any facts, as alleged by the applicant party, that would have thwarted the true will of the voters, and refused to annul the elections ’ results.

On 25 May 2017 the Supreme Court of the Russian Federation upheld the judgment of 27 December 2016 on appeal.

COMPLAINTS

The applicant party complains under Article 10 of the Convention and Article 3 of Protocol No. 1 to the Convention about the authorities ’ failure to provide it with access to media during the run-up to the elections to the Novgorod Regional Duma in 2016.

QUESTIONS TO THE PARTIES

1. As regards the authorities ’ failure to provide the applicant party with access to media in the run-up to the elections to the Novgorod Regional Duma in 2016, has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention (compare VgT Verein gegen Tierfabriken v. Switzerland , no. 24699/94, §§ 48-79, ECHR 2001 ‑ VI) ?

2. Has the applicant party ’ s right to free elections, guaranteed by Article 3 of Protocol No. 1 to the Convention, been violated as a result of the refusal of access to the media in the run-up to the elections to the Novgorod Regional Duma in 2016? Did it have any influence on their results at those elections? Had the statutory framework then in force in the field of access to the media and media coverage of the electoral campaign, as well as its practical implementation, ensured free expression of the opinion of the people?

3. Did the process of examination by the domestic authorities of the applicant party ’ s complaints offer sufficient safeguards against arbitrariness? Did such examination comply with the requirements of Article 3 of Protocol No. 1 to the Convention?