CONCURRING OPINION OF JUDGE PAVLI

1. The present judgment is the fourth one since 2017 in which the Court has found a violation of Article 10 of the Convention in connection with the highly regulated Russian legal framework governing electoral speech. Whereas the first three cases involved generalised restrictions placed, respectively, on the print media, online media and election watchdog organisations [1] , today’s judgment involves a categorical ban on dissemination of “campaign materials” by ordinary citizens in the months prior to a legislative or presidential election. These latter restrictions are the most far ‑ reaching: in the name of ensuring “the free expression of the opinion of the people in the choice of the legislature” or the head of State, the Russian Federation has effectively outlawed the public expression of electoral opinions and preferences by ordinary people in the crucial pre-election period.

The Chamber has held that the specific interferences with the four applicants’ freedom of expression were not necessary in a democratic society, but accepts that they pursued the legitimate aim of protecting “the rights of others” under the second paragraph of Article 10 of the Convention (see paragraphs 113-15 of the judgment). In my view, the extreme and unjustified nature of the restrictions on campaigning by ordinary citizens renders them incapable of promoting any legitimate aims consistent with Article 10. The case of the second applicant is especially telling: the national courts found that it was an administrative offence for him to display on his car window a handmade sign that was critical of the governing party! The very fact that domestic law-enforcement took the trouble to prosecute the second applicant for that “offence” speaks eloquently about the zeal with which the relevant provisions appear to be enforced in the Russian Federation.

2. Before turning to the matter of legitimate aims, some clarifications are in order as to the precise nature of the statutory provisions at stake. The first, second and fourth applicants were fined for failing to comply with the “notification” requirements related to the distribution of “campaign materials” by individuals. This is, however, a misleading euphemism: what national law requires is not merely notification, which itself could be considered a burdensome measure. In fact, it goes much further: any and all electoral messaging by citizens – defined as “printed, audiovisual or any other [campaigning] material designed for mass distribution” – is lawful only if it has been commissioned and paid for by the electoral fund of an official party or candidate . Furthermore, it must be submitted in advance to be approved by election management bodies (see paragraph 43 of the judgment).

What counts as material “designed for mass distribution” is also subject to expansive interpretation by the domestic courts, including the federal Supreme Court. This could presumably apply to (stationary) yard signs and clearly does apply to any messages posted on moving personal vehicles, signs held at a rally or even T-shirts worn by people participating in public events (see paragraph 65 of the judgment). In other words, individuals may engage in public electoral messaging only and exclusively as proxies for the parties and their candidates. This is a stunning legislative straitjacket that is without precedent not only in our case-law, but most likely in the entire European democratic area.

The national Constitutional Court has sought to attenuate somewhat the nature of the ban by interpreting the relevant provisions as applicable to public campaigning by individuals that involves any form or amount of personal spending . However, that interpretation has not trickled down to the ordinary courts: there is no indication that any of the courts that tried the present applicants, within a timeframe of several years apart, considered whether they incurred any spending for their campaigning materials, or whether any exceptions applied to the categorical ban by statute. In any event, the Chamber, relying inter alia on Bowman v. the United Kingdom (19 February 1998, Reports of Judgments and Decisions 1998-I), which found against a ban on electoral spending of more than five British pounds, was not persuaded that the alternative of zero-expense speech can be considered proportionate during an election period.

3. The nature and extent of this specific prohibition raises, in my view, a question that precedes the proportionality analysis, namely: can such a ban be considered to pursue any legitimate aims within the meaning of Article 10 § 2?

The respondent Government have invoked the broad margin of appreciation to which they are entitled in regulating electoral matters, and the need to ensure fair treatment of parties and candidates competing in an election, including through transparency of spending. And yet they provided no details as to the legislative considerations that led to such a radical solution to the problem of financial fairness in elections, or as to whether other, less restrictive alternatives were considered and, if so, the grounds on which they were found to be inadequate.

Russian legislation imposes financial limits both on the overall spending by parties or candidates and on individual donations to their campaigns during any given electoral period (see paragraphs 50-51 of the judgment). It is conceivable that – if we are to rely on the more nuanced interpretation by the Constitutional Court – restrictions on autonomous individual spending in support of the same campaigns could serve to avoid the circumventing of the statutory limits on contributions. However, it is perfectly possible to impose transparency and oversight requirements on any (significant) amounts of individual spending without banning them entirely. After all, the caps on private donations under Russian law are quite high, allowing citizens to contribute thousands of euros to partisan campaign funds – but none whatsoever to individual messaging that may be seen as favourable to certain parties or candidates. As such, the categorial ban is not rationally connected to the supposed goal of ensuring financial fair play in elections.

It is relevant to compare this legal framework with the United Kingdom’s statutory restrictions as reviewed by the Court in the Bowman case (in which, to recall, the Court nevertheless found a violation of Article 10) [2] . The British restrictions, as in force in 1992, applied only to individual spending (above five pounds) seeking to promote or oppose a specific candidate within a specific constituency; they did not affect in any way the ability of individuals, organised groups or the media to promote the general interests of a political party or movement, or any given political or social causes (see Bowman , cited above, § 22). In contrast, the relevant Russian restrictions on individuals apply to any campaign materials that include an “expression of preference” or that may lead voters to create “a positive or negative attitude” about not only individual candidates, but also entire lists of candidates and political parties or movements (see paragraph 57 of the judgment). One direct result of this over-broad definition of “campaigning” is that voters and other actors are not able to critique openly the record of the incumbent governing majority or of any incumbent president who may be seeking re-election.

A comparison of the individual circumstances is also revealing as regards the severity of the restrictions and the zero-tolerance approach to their enforcement in the Russian context. Ms Bowman had been prosecuted, as executive director of an anti-abortion society, for having distributed one and a half million leaflets throughout the United Kingdom about the abortion voting record of named candidates running in given constituencies. In the present cases, Mr Teslenko was charged with having printed and posted on his block of flats a grand total of eight leaflets critical of the governing party; while Mr Lyutarevich was charged for putting a sign with a similar message on the rear window of his car. Mr Dyachkov and Mr Nigmatullin distributed leaflets calling on voters to boycott a presidential election, whose fairness they considered to have been compromised. In none of the cases did the “campaign materials” refer to any individual candidate.

4. Finally, the restrictions on individual speakers must be seen in the wider Russian context of election-related restrictions on virtually all other independent voices, as documented in our recent case-law. The media and other non-governmental watchdogs are under similar prohibitions from publishing any content that might be seen as supporting or opposing a party or candidate during the designated campaign period. Their freedom of opinion or affiliation is effectively suspended for the duration of the official campaign – they can only convey the views and activities of electoral subjects (see Orlovskaya Iskra v. Russia, and OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia , both cited above) [3] . As a result, individual voters have no alternative channels by which to seek to influence their fellow citizens, not even indirectly (compare Bowman , cited above, § 46).

The net result of this regulatory framework is a system whereby national elections can be contested in the public domain only by recognised political actors, everyone else being consigned to the role of largely silent spectator – much like a song contest held behind closed doors, with the public watching (and voting) on television. But a national election is not merely about choosing names on a ballot, in the privacy of the voting booth; that act would be much devalued without open competition between ideas, visions and debates about the role of actors and forces whose names may not even appear on the ballot paper.

It is true that neither the drafters of the Convention, nor the Court’s jurisprudence have given us a working definition of the “democratic society” in whose function the legitimacy and necessity of interferences with the core political rights protected by the Convention are to be judged (though it is certainly possible to glean a composite view from the case-law as a whole). That said, the democratic society envisaged by Article 10 and its sister provisions cannot, in my view, be one in which individual voters – and the rest of civil society – are treated as mere tools in the service of political parties’ discourse. Or one in which it is illegal to carry a political message on the T-shirt you are wearing to a campaign rally.

APPENDIX

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

49588/12

Teslenko v. Russia

15/07/2012

Andrey Yuryevich TESLENKO 1981 Hudson, USA Russian

Aleksey Vladimirovich GLUKHOV

65395/12

Lyutarevich v. Russia

08/10/2012

Valeriy Nikolayevich LYUTAREVICH 1958 Rodniki, Russia Russian

Konstantin Ilyich TEREKHOV

49351/18

Dyachkov v. Russia

10/10/2018

Nikolay Yuryevich DYACHKOV 1991 Ivanovo, Russia Russian

Ivan Yuryevich ZHDANOV

50424/18

Nigmatullin v. Russia

23/10/2018

Bulat Nurlanovich NIGMATULLIN 1987 Gloucester, UK Russian

MEMORIAL HUMAN RIGHTS CENTRE (Denis Viktorovich SHEDOV and others)

[1] See, respectively, Orlovskaya Iskra v. Russia (no. 42911/08, 21 February 2017); OOO Informatsionnoye Agentstvo Tambov-Inform v. Russia (no. 43351/12, 18 May 2021 ); and Assotsiatsiya NGO Golos and Others v. Russia (no. 41055/12, 16 November 2021).

[2] The Grand Chamber concluded that the relevant legislative provision “operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information with a view to influencing the voters of [a given parliamentary constituency] in favour of an anti-abortion candidate” (see Bowman , cited above, § 47).

[3] See also Yartseva v. Russia (Committee) (no. 19273/08, 25 February 2020, §§ 18 and 29), involving a journalist convicted of an administrative offence because her media articles were classified as unlawful non-monetary contributions to an electoral campaign.