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FIRST
SECTION
CASE OF DZHAVADOV v. RUSSIA
(Application
no. 30160/04)
JUDGMENT
STRASBOURG
27
September 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision
In the case of Dzhavadov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 6 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30160/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Valeriy Mamedovich
Dzhavadov (“the applicant”), on 21 June 2004.
- The
applicant was represented by Ms M. Ledovskikh, a lawyer practising in
Voronezh. The Russian Government (“the Government”) were
represented by Mr P. Laptev, Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant alleged that the Russian authorities had refused to
register his newspaper under the title Letters to the President,
thereby preventing him from publishing it.
- On
1 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Belgorod.
- On
23 October 2002 the applicant filed an application with the Ministry
for the Press, Television and Radio Broadcasting and Mass
Communications (hereafter “the Ministry”), for
registration of a newspaper entitled Letters to the President
(Письма
Президенту).
- By
letter of 23 January 2003, the deputy head of the Ministry's
Department for Registration and Licensing informed the applicant
that, judging by its title, the newspaper could be perceived as an
official bulletin published by a competent State authority. As that
was likely to mislead potential readers, the applicant was advised to
“obtain the approval of the competent authorities”.
- The
applicant replied to the deputy head and to the Minister, insisting
that either the newspaper be registered or an official refusal be
issued.
- On
3 July 2003 the applicant challenged the Ministry's failure to act
before the Tverskoy District Court of Moscow. He claimed that he had
satisfied the legal requirement to be the founder of a newspaper and
that the Ministry's procrastination was unlawful.
- On
9 July 2003 the applicant received the Ministry's official refusal to
register the newspaper, based on two grounds. First, it was said that
the information in the application was “inconsistent with the
real state of affairs” (сведения,
не
соответствующие
действительности)
because the newspaper purported to cover a broader range of subjects
than its title suggested. Second, the Ministry considered that only
the Administration of the President of the Russian Federation could
consent to the publication of letters to the President or be a
founder of a newspaper with such a title.
- On
15 July 2003 the applicant amended his claim, seeking to have the
Ministry's refusal overturned.
- On
3 September 2003 the Tverskoy District Court of Moscow upheld the
refusal on the following grounds:
“... The court considers it possible to agree with
the argument [of the Ministry] that the title of a newspaper denotes
its specialisation which [in this case] could be perceived by the
readership as an official publication founded by a competent State
body ... which prepares the President's direct answers to incoming
letters from citizens.
The court considers that the above fact may give rise to
incompatibility of the actual specialisation of the publication under
the title Letters to the President with the current
legislation. In this connection the court concludes that the
Ministry's argument as regards the specialisation of the newspaper in
question is a sufficient ground to refuse its registration ... under
section 13(1)(2) of the Mass Media Act, which does not violate [the
applicant's] rights to found a newspaper and to choose its title ...”
- On
22 December 2003 the Moscow City Court upheld the judgment of the
district court, endorsing the above reasoning. The court also held:
“...the [first-instance] court rightly concluded
that [the applicant] had failed to comply with the time-limit for
bringing court proceedings without a valid excuse. Having received on
23 January 2003 the refusal to register his newspaper, he lodged his
claim before a court only on 3 July 2003 ...
The expiry of the three-month time-limit for lodging
such claim is an independent reason for rejecting the applicant's
claims (Article 256 § 2 of the Code of Civil Procedure).”
II. RELEVANT DOMESTIC LAW
A. The Mass Media Act (no. 2124-I of 27 December 1991)
- A
newspaper may be founded by an adult who has not been convicted or
declared legally incapable (section 7). The editor's office may
begin functioning upon registration of a newspaper; an application
for registration is to be examined within one month of being lodged
(section 8).
- An
application for registration must specify, in particular, the title
of the newspaper and an approximate list of subjects and/or
specialisation (section 10(2) and (7)).
- Registration
may only be refused on the following grounds: (1) the application is
lodged by an individual who cannot be a founder; (2) the information
in the application is “inconsistent with the real state of
affairs”; (3) the title, range of subjects and/or
specialisation represent an abuse of the freedom of mass media as
defined in section 4; (4) if an existing newspaper with the same
title has been registered earlier (section 13).
- Section
4 prohibits using the mass media for the commission of criminal
offences, the disclosure of State secrets or protected information,
for extremist activities, or for the dissemination of pornography or
the promotion of violence and cruelty.
B. The Code of Civil Procedure
- An
individual may bring a complaint within three months of the date when
he or she became aware of a violation of his or her rights or
freedoms (Article 256 § 1). The court must examine the reasons
for any failure to comply with the three-month period and may reject
the complaint on that ground (Article 256 § 2).
- If
the complaint is rejected owing to failure to comply with the
time-limit for lodging the complaint before a court without a valid
reason, the court's reasoning must be limited to the indication of
the circumstances confirming the above (Article 198 § 4).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the refusal to register his newspaper under
the title Letters to the President had violated his freedom of
expression under Article 10 of the Convention, which reads as
follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others ...”
A. Admissibility
1. Government's objection as to the date of
introduction of the application
- The Government submitted that there was no proof that
this application had been introduced on 21 June 2004, the date
indicated by the applicant on his application form. They contended
that it should be considered as having been lodged on 13 August 2004,
which was the date of its receipt by the Court's Registry. Thus, it
was introduced more than six months after the date of the final
decision in the applicant's case dated 22 December 2003.
- The applicant submitted a copy of dispatch and
delivery receipts indicating 21 June 2004 as the date when the
application form had been sent to the Court.
- The
Court finds on the basis of the documentary evidence produced by the
applicant that the date of introduction had indeed been 21 June 2004,
as indicated in the application form. As the final domestic decision
had been issued on 22 December 2003, the applicant lodged the
application within six months of it. The Government's objection must
therefore be dismissed.
2. Government's objection as to the non-exhaustion of
domestic remedies
- The
Government pointed out that the Tverskoy District Court of Moscow
decided that the applicant's claims had been submitted out of time.
By failing to comply with the statutory time-limit, the applicant had
deprived the domestic courts of an opportunity to examine the
substance of his claims.
- The
applicant explained that he had lodged a civil action challenging the
Ministry's failure to issue a formal decision on the registration of
the newspaper. However, he had amended his claims once the formal
refusal had been issued. Therefore, he could not be said to have
failed to comply with the statutory time-limit. The substance of his
claims was examined in detail by the courts at two instances.
- The
Court observes that both the District and City Courts took cognisance
of the merits of the applicant's claims and rejected them as
unfounded. Their reasoning was not confined to the compatibility of
the applicant's complaint with the formal requirements (see
paragraph 20 above). The Court reiterates that
non-exhaustion of domestic remedies cannot be held against the
applicant if, in spite of the latter's failure to observe the forms
prescribed by law, the competent authority has nevertheless examined
the substance of the claim (see Skałka v. Poland (dec.),
no. 43425/98, 3 October 2002; Metropolitan Church of
Bessarabia and Others v. Moldova (dec.), no. 45701/99,
7 June 2001, and Edelmayer v. Austria (dec.),
no. 33979/96, 21 March 2000). The Court finds that since
the domestic courts have examined the substance of the applicant's
complaint, he cannot be said to have failed to exhaust domestic
remedies. It follows that the application cannot be declared
inadmissible for non-exhaustion of domestic remedies.
3. The Court's decision on the admissibility of the
application
- The
Court finds that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
- The
Government accepted that the refusal to register the applicant's
newspaper under the title Letters to the President amounted to
an interference with his freedom of expression under Article 10 §
1 of the Convention. However, they contended that such title wrongly
suggested that the newspaper was affiliated to the Administration of
the President of the Russian Federation, the authority competent to
deal with petitions from citizens. In addition to being misleading,
the title did not reflect the newspaper's specialisation. They argued
that the refusal to register the newspaper under such title aimed to
protect the reputation or rights of others, namely those of the
President and his Administration, and the rights of the population at
large. In particular, such a refusal aimed to secure the public's
right to receive replies to their petitions from the competent public
authority. The applicant should have sought permission to use the
reference to the President in the title of the newspaper. The
Government conceded that the above matters were not regulated by the
Mass Media Act but referred, by analogy, to the legislation on trade
marks. They concluded that the applicant was, in any event, free to
publish a newspaper under another title.
- The
applicant contended, first of all, that the refusal to register the
newspaper under the suggested title amounted to an interference with
his freedom to impart information and ideas. Such interference was
not “prescribed by law” since the national law, including
the Mass Media Act, did not permit refusal of registration for the
reasons referred to by the Government. A newspaper title could not
reasonably be defined as “true” or “false”,
or be otherwise consistent with “the real state of affairs”.
Furthermore, Russian law contained no clear requirement for strict
coherence between the title of a newspaper and its specialisation.
The applicant further argued that, even if it had been lawful, the
refusal of registration was not “necessary in a democratic
society”.
2. General principles
- The
Court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual's self-fulfilment
(see Lingens v. Austria, judgment of 8 July 1986,
Series A no. 103, p. 26, § 41). Article 10
protects not only the substance of information and ideas but also the
means of their dissemination since any restriction on the means
necessarily interferes with the right to receive and impart
information (see Öztürk v. Turkey [GC],
no. 22479/93, § 49, ECHR 1999 VI).
- The
exercise of the freedoms enshrined in paragraph 1 of Article 10,
including the freedom to impart information, may be subject to
certain “formalities” or “conditions” (see
Karademirci and Others v. Turkey, nos. 37096/97 and
37101/97, § 40, ECHR 2005 I). Although Article 10 does
not in terms prohibit the imposition of prior restraints on
publications, the relevant law must provide a clear indication of the
circumstances when such restraints are permissible, especially when
they are to block publication of a periodical completely (see
Gawęda v. Poland, no. 26229/95, § 40,
ECHR 2002 II). The dangers inherent in prior restraints call for
the most careful scrutiny (see Observer and Guardian v. the
United Kingdom, judgment of 26 November 1991, Series A
no. 216, p. 30, § 60).
3. Application of these principles to the instant case
- The
Court notes the parties' agreement that the refusal to register the
newspaper under the suggested title constituted an “interference”
with the applicant's freedom of expression as protected by Article 10
§ 1. Such an interference gives rise to a breach of Article 10
unless it can be shown that it was “prescribed by law”,
pursued one or more of the legitimate aims set out in paragraph 2 and
was “necessary in a democratic society” to achieve such
aims.
- It
must first be ascertained whether the interference complained of was
“prescribed by law”.
- The
Court observes that one of the requirements flowing from the
expression “prescribed by law” is the foreseeability of
the measure concerned. A norm cannot be regarded as a “law”
unless it is formulated with sufficient precision to enable the
person to regulate his conduct: he must be able – if need be
with appropriate advice – to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given
action may entail (see, among others, Rekvényi v. Hungary
[GC], no. 25390/94, § 34, ECHR 1999 III; Goussev
and Marenk v. Finland, no. 35083/97, § 53, 17
January 2006; and Štefanec v. the Czech Republic,
no. 75615/01, § 44, 18 July 2006).
- The
degree of precision depends, to a considerable extent, on the content
of the instrument at issue, the field it is designed to cover, and
the number and status of those to whom it is addressed (see Groppera
Radio AG and Others v. Switzerland, judgment of 28 March
1990, Series A no. 173, p. 26, § 68). A law which confers a
discretion is not, in itself, inconsistent with the “prescribed
by law” requirement, provided that the scope of the discretion
and manner of its exercise are indicated with sufficient clarity to
give adequate protection against arbitrariness (see Goodwin v. the
United Kingdom, judgment of 27 March 1996, Reports of
Judgments and Decisions 1996 II, pp. 496-97, § 31).
- In
the present case, the registration of newspapers was governed by the
Mass Media Act. The domestic courts cited section 13 of that Act as
the legal basis for upholding the refusal to register the applicant's
newspaper. That provision requires that the information in the
application be consistent with “the real state of affairs”.
The courts found that the refusal of registration had been justified
because the proposed title suggested that the newspaper was
affiliated to the Administration of the Russian President, which was
not true, and also because the newspaper purported to cover a broader
range of subjects than its title suggested.
- A
similar situation has already been examined by the Court in the
Gawęda case, in which it held that requiring the title of
a magazine to embody truthful information is inappropriate from the
standpoint of freedom of the press. The title of a periodical is not
a statement as such, since its function is essentially to identify
the given periodical on the press market for its actual and
prospective readers (see Gawęda, cited above, § 43).
- Furthermore,
the Court has stressed that the requirement that the title of a
newspaper reflect the “real state of affairs” should be
based on a legislative provision which clearly authorised it. In the
Gawęda case the Court found a violation of Article 10 of
the Convention because the interpretation given by the courts
introduced new criteria, which could not be foreseen on the basis of
the text specifying situations in which the registration of a title
could be refused (ibid.).
- A
similar situation obtains in the present case. The domestic courts
inferred from the phrase “the real state of affairs”
employed in section 13 of the Mass Media Act a discretion in favour
of the registering authority to refuse registration where it
considered that the title of a publication did not satisfy the test
of truthfulness or conveyed a misleading impression. The Court
considers that that extensive interpretation was not founded on any
legal provision which clearly authorised it and was not reasonably
foreseeable for the applicant. Therefore, the manner in which the
“formalities” for registration were interpreted and
applied to the applicant's exercise of his freedom of expression did
not meet the “quality of law” standard under the
Convention. In these circumstances, the Court finds that the
interference with the applicant's rights was not “prescribed by
law” within the meaning of Article 10 § 2 of the
Convention. Accordingly, it is not necessary to examine whether the
other requirements laid down in paragraph 2 of Article 10 of the
Convention have been met.
- There
has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the amount claimed excessive and that the
finding of a violation of Article 10 would constitute sufficient just
satisfaction in the present case.
- The
Court finds that the applicant suffered non-pecuniary damage, which
would not be adequately compensated by the finding of a violation
alone. However, the amount claimed by the applicant appears to be
excessive. Making its assessment on an equitable basis, it awards the
applicant EUR 1,500, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and the Court. Accordingly, the Court does
not award anything under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
