DISSENTING OPINION OF JUDGE DEDOV

I completely agree with the analysis provided in the judgment and accepted by the majority, but, unfortunately, I cannot find any reasons to vote for a violation of Article 10 of the Convention in the present case. The fact is that the impugned articles disseminated information damaging to personal reputation, good name and dignity without a reliable factual background. In the context of the freedom of expression, the judgment, therefore, is based on the distinction between the defamation and the distortion of the competition among candidates during the electoral process (see § 132 of the judgment). On the contrary, I believe that there are key elements (respect of dignity and ethics of responsible journalism) applicable to both situations.

According to the international material presented in the judgement, there are general principles governing the role of the press during the elections. It is confirmed that the open debate of ideas is vital in a democratic system, freedom of press is vital to express opinions on candidate ’ s programmes and to criticise public powers (Venice Commission, see § 54 of the judgment); there is an obligation on mass media coverage of electoral campaigns that is fair, balanced and impartial (Committee of Ministers, see § 52 of the judgment); it is incumbent on the press to impart information and ideas on subjects of public interest (see § 107 of the judgment).

Indeed, the majority recognised that it remains the case that “ both during and outwith an election period , the print media ’ s activity is subject to the requirement to act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” (see § 131 of the judgment). It means that the responsible journalism is subject to certain boundaries and self-restraints (which also apply to all the other branches of power), and during the elections the media should be even more cautious because of the special role they play in society.

The legitimate aim is very important in order to understand this point. The voters expect to receive the impartial and comprehensive information necessary to make their decision in favour of a political party or a candidate. The information includes, in particular, the programmes, views and actions of political parties and candidates standing for election. The press should not confine itself to imparting such information in its efforts to organise an open debate on public issues which are vital for the social progress and further development of society.

Public debate, as a part of the decision-making process, is a cornerstone of any democratic society. Public debate enables ordinary people to participate in the political process. It is not destructive for the election (decision-making) process, provided the discussion and analysis of programmes and views lead to a better understanding of the political actions which the voters could accept as necessary and preferable. To achieve this legitimate aim, a motivated opinion (negative or positive) should be expressed. If the interference with the freedom of expression had been exercised in relation to a fair and open debate as described above, I would vote for a violation of Article 10 without any hesitation, and I would agree, in concrete circumstances, that the Russian law lacks the legal certainty.

However, the press should not unduly influence the voters ’ decision on who is the more reliable candidate. It is for the public, not for the journalist, to decide who deserves to be a member of parliament or even a member of a political party (as in the present case). The worst-case scenario is when the journalist expresses an unsubstantiated value-judgment which diminishes the dignity of the candidate, as happened in the present case. Abuse of a personal nature, in my view, is always unacceptable as it distorts the fairness of the election process and unduly influences the choice between candidates. As a result of such press actions, respect for candidates as members of society is liable to be replaced by hatred, and systemic analysis by hate speech. Finally, it impedes social progress.

The Court ’ s case-law (cited in the judgment) includes very good examples of a fair and open debate on a subject of public interest (humanism) which, to my regret, did not attract great interest. In the case of Animal Defenders International , the applicant organisation raised the issue of ill-treatment of animals. The Bowman case concerned the preferences of candidates in relation to the problem of abortion. In both cases the public had received the impartial information required for making a free choice during the elections. Surprisingly, the Court came to opposite conclusions in the two cases, and the judges of the Court were divided in their opinions.

Therefore, the case-law of the Court is still not established. Obviously, it is difficult to strike a balance between freedom of expression and the public function of the press. In my view, the financing element should be disregarded if the publication contains truthful, fair and objective information in the public interest, based, for example, on universal human values. Unfortunately, in Animal Defenders International the Court came to the opposite conclusion.

The present case is different: the impugned articles attacked the candidate ’ s personality, his good name, his reputation and his dignity. They did not concern the political party ’ s programme or the candidate ’ s personal views on any subject of public interest. Indeed, the press has the right to criticize power, but even public officials are human beings and, in the name of fundamental rights and freedoms, their dignity should be equally protected. I must say that personal attacks are very painful, and the dignity of any person should be respected in a democratic society. Therefore, the proposal made in the judgment that the candidate could defend his good name in court is not sufficient to regulate the freedom of the press during election periods. As usually happens with the abuse of freedom of the press, the impugned publications were not intended to impart any “information or ideas” of value to the public debate.

Finally, the circumstances of the present case do not provide the Court with an opportunity to analyse the quality of the law, including the restrictions imposed on the press with regard to pre-election campaigning. In the main argument (see § 132 of the judgment) the majority criticises the domestic legislation as not pursuing the declared legitimate aim (“the focus of the domestic legislation was not on the falsity or truth of the content ... but on the presence of the special goal pursued”). Although the Court referred to the Russian Constitutional Court ’ s interpretation of the legitimate aim (see § 104 of the judgment), the Court did not, in fact, take it into account. Furthermore, it was incumbent on the Court to accept that the publications were not fair and objective.

At least the national authorities ’ decisions were compatible with the general requirements of fairness and impartiality of the press. The Electoral Committee stressed that the impugned articles had not been intended to inform the voters about the electoral campaign, but concentrated exclusively on creating a negative image of a candidate and a political party for the purposes of unduly influencing the public to vote against them (see § 11 of the judgment).