Removal of a journalist from a polling station for videotaping the election process! Violation of freedom of expression
JUDGMENT
Kuzmin v. Russia 10.01.2023 (app. no. 33513/13)
SUMMARY
The applicant was commissioned to photograph and film the 2012 presidential election in Pushkido, Moscow Oblast. On 4 March 2012, the applicant arrived at polling station 2314 in Pushkino and began filming from the entrance. The head of the precinct electoral commission (“PEC”) ordered him to stop filming and be removed from the polling station.
The court cited a 2011 Central Election Commission directive that journalists could only film from a specially designated venue and ruled that “… Having begun filming at the polling station, the applicant failed to present a document confirming his powers.” Thus, he considered his removal legal.
The Court held that the applicant’s removal from the polling station prevented him from exercising his journalistic duties, namely to acquire first-hand direct knowledge of the electoral process at the local electoral commission and the events that took place at the polling station, and to transmit this information. However, this had a legal basis and pursued the legitimate objectives of Article 10 § 2 of the Convention.
But the courts did not take into account the importance of the public interest in transparent elections and the journalist’s function as a public watchdog, both in the interest of the public and in the interest of the political party. Nor did they consider whether the local electoral commission could apply less restrictive measures to the applicant.
The Court considered that the national courts did not provide relevant and sufficient grounds to justify the applicant’s removal from the polling station and, therefore, found a violation of freedom of expression (Article 10) and awarded the applicant EUR 7 500 for non-pecuniary damage.
PROVISION
Article 10
PRINCIPAL FACTS
On 14 February 2012, the newspaper Yabloko Rossii – the press outlet of the Yabloko political party – issued the applicant with a journalistic card. He was assigned to photograph and film the 2012 presidential election in Pushkido, Moscow Oblast. It was to report on the electoral process, the counting of votes and the presentation of the results.
On 4 March 2012, the applicant arrived at polling station 2314 in Pushkino and began filming from the entrance. The head of the precinct electoral commission (“PEC”) ordered him to stop filming. The applicant showed his press card to prove that he had the right to do so, but the head of the PEC still ordered a police officer to remove him from the polling station.
About two hours later, the PEC forwarded to the applicant the written removal order. It said: “The 2314 election commission decided to remove him because he had violated a decision taken by the Central Election Commission [“CEC”] during the election. Filming without notice to the head of the PEC and visiting the room with a camera is not allowed.”
On July 17, 2012, the Pushkinskiy District Court of Moscow rejected the journalist’s appeal and declared his removal from the polling station legal on the grounds of violation of federal electoral law. The court referred to the current legal provisions that defined the media representative as a person who has a valid journalistic identity card and which established the right of media representatives to attend polling stations and record the electoral process through photographs and videos. It held as follows:
“The analysis of the above legal norms allows to conclude that, in order to exercise the … rights granted to representatives of the media during elections, … One must provide the corresponding documents confirming his powers as a media representative. The court found that the applicant began filming immediately after entering the premises of the polling station. At the same time, the applicant submitted observations suggesting future falsifications involving third parties. Before he began filming, the applicant did not provide the head of the PEC with the documents confirming his legitimacy as a media representative.”
The court cited a further directive from the Central Election Commission of 2011, according to which journalists could only film from a specially designated area, and ruled that «… having begun to film at the polling station, the applicant failed to present a document confirming his powers and also violated the rules of presence of the media during the voting, that is, he was filming from a place not designated for these purposes.” Therefore, the court considered it lawful to remove the applicant from the polling station.
On 23 October 2012, the Moscow District Court upheld the above decision on appeal, adopting the reasoning of the court of first instance. In particular, it noted that PEC 2314 of 4 March 2012 decided to exclude the applicant from the polling station because he “violated the decision taken by the CEC during the elections by prohibiting filming without notice to the head of the PEC and walking around the hall”.
The court referred to the Presidential Election Act, which reiterates the right of media representatives to attend polling stations and to photograph and videotape the electoral process. He noted that a journalist cannot interfere in the electoral process and, in order to exercise his rights as guaranteed by the aforementioned provision, he must have “in his documents, confirming his status (journalistic card) and complying with his journalistic duties …”.
THE DECISION OF THE COURT…
A. Whether there was an intervention
The applicant’s removal from the polling station prevented him from exercising his journalistic duties, namely to acquire first-hand direct knowledge of the electoral process at the local electoral commission and the events that took place at the polling station and to transmit this information (see mutatis mutandis, Mándli et al. §§ 45-46). Consequently, there has been an interference with the applicant’s rights enshrined in Article 10 of the Convention.
B. The reasons for the intervention
The Court found that the intervention had a legal basis and pursued the legitimate objectives of Article 10 § 2 of the Convention.
The criterion of ‘necessity in a democratic society’ requires the Court to ascertain whether the alleged interference responded to a pressing social need. Contracting States have a certain margin of discretion in assessing the existence of such a need, but this is consistent with European supervision, including both legislation and decisions implementing it, including those issued by independent courts. In particular, it is necessary to ascertain whether the reasons put forward by the national authorities to justify the interference with the right were relevant and sufficient and whether the measure adopted was proportionate to the legitimate objectives pursued. In so doing, the Court seeks to ensure that the national authorities, on the basis of an acceptable assessment of the relevant facts, applied standards which were in accordance with the principles set out in Article 10 of the Convention.
Moreover, free elections and freedom of expression, in particular freedom of political debate, together form the foundation of any democratic regime. The two rights are intertwined and work to reinforce each other: for example, freedom of expression is one of the “conditions” necessary to “ensure the free expression of the opinion of the people at the choice of the legislator.” In certain cases, the rights deriving from Article 10 of the Convention and Article 3 of the First Protocol may conflict and it may be considered necessary, in the period before or during elections, to place certain restrictions, of a type that would not normally be acceptable, on freedom of expression; in order to ensure the “free expression of the opinion of the people at the choice of the legislator”. In order to strike a balance between the rights deriving from Article 10 of the Convention and Article 3 of the First Additional Protocol, the Contracting States have a margin of discretion, as they generally do with regard to their electoral systems.
In the present case, the national courts found the relevant facts, reiterated the applicable legal provisions and concluded that the applicant’s actions infringed the requirements laid down in those provisions. However, apart from the formal legality of the measure at issue, the reasoning of the national courts did not concern the question of its necessity or proportionality. The courts did not take into account the importance of the public interest in transparent elections and the journalistic function of the public watchdog, both in the interest of the public and in the interest of the political party, whose newspaper had commissioned the applicant to cover the presidential elections. The courts did not assess whether and how the applicant’s actions had interfered with the electoral process or the work of the local electoral commission or other protected interests. The courts also did not consider whether the local electoral commission could apply less restrictive measures to the applicant, for example, by warning him and/or suggesting movement to the place entrusted to journalists and/or restricting the recording of video without his removal from the polling station.
On the basis of the above, the Court considered that the national courts did not provide relevant and sufficient grounds to justify the applicant’s removal from the polling station and, therefore, did not apply standards that were in accordance with the principles deriving from Article 10 of the Convention.
Consequently, it found a violation of freedom of expression (Article 10 of the Convention).
Just satisfaction (article 41)
The Court held that Russia was to pay the applicant EUR 7.500 for non-pecuniary damage.
