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V.N. Monakhov. The Judicial Chamber's Role in the Origination, Development, and Implementation of the Right to Campaign in Elections Via the Mass Media
Have you ever thought how law, in general, and election law, in particular, is born?
I believe this mysterious creation of law is somehow akin to the enigmatic birth of Poetry.
Do you recall Akhmatova's lines?
«If you but knew from what horrendous garbage
My poems grow, oblivious of shame ...»
The Letter and Spirit of new Russia's election law, which it so badly needs for its Renaissance, not unlike the poetic word, are born from sundry «construction materials». This process is not confined to the premises of the State Duma of the Federal Assembly of the Russian Federation where election laws are passed. Neither is it confined to the classic courtrooms, starting from a district court all the way to the Supreme Court of the Russian Federation. Finally, nor is it restricted to conference rooms of respective election commissions.
Sometimes, rather high-grade materials for origination and development of election law and, in particular, the election campaign rights as construed by Article 8 of the Federal Law No. 121-FZ «On Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» dated June 24, 1999 (hereinafter - the Federal Law «On Election of Deputies...») may be found in the case files of certain information disputes that arise ever so often in almost every election campaign in recent memory.
Status and Functions of the Judicial Chamber
In this legal context, a special government authority under the President of the Russian Federation, the Judicial Chamber for Information Disputes, which operates on the basis of its Regulations approved by Decree No. 2281 dated January 31, 1994, acts as a kind of midwife who assists in bringing forth and developing the rules of the Russian election law. That, too, is a key part of such a law, i.e. determination of lawful forms and methods of election campaigning via the media.
Obviously significant, and perhaps even defining is the fact that the Judicial Chamber first appeared, like Hesiod's Aphrodite, from the tidal surf of the 1993 winter elections to the Russian Parliament. Still bearing its 'maiden' name, the Court of Information Arbitration, it was the key forum for reviewing election-related information disputes, an institutional manifestation of the concept of political fairness in the electoral process, and a symbol of legal avant-gardism in the Russian information dimension.2
Today, the Judicial Chamber for Information Disputes constitutes Russia's one and only institutional and legal quasi-judicial institution, which rather efficiently performs its function as an agent of ethical and legal influence on the general information environment and, in particular, on implementation of the right to election campaigning via mass media. Thus, on June 19, 1999, at a solemn ceremony were attended by journalists, the Judicial Chamber was awarded the traditional Honorary Prize 'For Outstanding Contribution to Development of Russian Media Law' founded by the Law and Mass Media Center.
How is this influence achieved? First and foremost, it is the Chamber's status, functions, and jurisdiction laid down in the above-mentioned Regulation of the Judicial Chamber for Information Disputes. Its status as a «government authority under the President of the Russian Federation» (importantly, «under the President», rather that merely a function of his Administration) obliges other government bodies and their officials to whom any particular ruling of the Judicial Chamber is addressed to report compliance with such ruling to the Chamber within two weeks (Clause 10 of the Regulation).
Other agencies and organizations, in accordance with Clause 13 of the Regulation, advise the Judicial Chamber of «their findings arising from review of any materials alleging infringements of rights and freedoms (including those of an electoral nature) in mass media within one month».
The Judicial Chamber performs its functions independently, and no one may interfere with its operations (Clause 3 of the Regulation).
Many of its functions directly relate to the conduct of election campaigns in the media.
In particular:
- assuring impartiality and credibility of media reports that affect public interests;
- assuring that the principle of equal rights is observed in mass media;
- promoting the idea of political pluralism in newscasts and political broadcasts;
- instructing any relevant media to correct factual errors in media reports that affect public interests.
Finally, there is the jurisdictional component of the Judicial Chamber's influence. Its general bounds are outlined in Clause 8 of the Regulation. Accordingly, the Judicial Chamber has jurisdiction over «disputes and other cases arising in the mass media domain».
In addition to the rules of the Russian legislation, the regulatory framework for trying such disputes includes the requirements of «generally accepted principles and rules of international law and international treaties of the Russian Federation», as well as any requirements of journalistic ethics pertaining to mass media.
Delineation of Jurisdiction Between Courts and the Judicial Chamber
The issue of jurisdictional delineation between the traditional courts and the Judicial Chamber for Information Disputes constitutes a vital part of the jurisdictional component. The regulatory manifestation of respective bounds of such jurisdictions is rather cursory, since, under Clause 8 of the Regulation, the Judicial Chamber's jurisdiction covers disputes and other cases in the mass media domain «except those that the law of the land refers to jurisdiction of the courts of the Russian Federation». In reality, the jurisdictional delineation is not that simple, as it calls for extensive «cool ponderings of mind». I would illustrate it with a specific example.
Under Clause 2, Article 90 of the Federal Law «On Election of Deputies...», «any decision and action (inaction) of government authorities, bodies of local self-government, public associations, and officials..., violating electoral rights of any citizens of the Russian Federation may be appealed in court«. In this case, «may» does not exclusively and necessarily mean «in court». Under Part 2, Article 45 of the Russian Constitution, «anyone is entitled to defend his or her rights and freedoms in any way, unless prohibited by law».
Therefore, any participant of the electoral process pondering over which method to choose for protecting his or her electoral rights - a court of law or a quasi-judiciary institution, such as the Judicial Chamber - should select this or that paramount criterion that would define his or her choice.
In case such a criterion, for instance, involves tough enforcement measures against the offender, the applicant should go straight to a court of law. Indeed, only a court of law may impose some statutory legal liability on, say, a certain official unlawfully enjoying priority access to mass media in violation of Article 41 of the Federal Law «On Election of Deputies...».
Needless to say, the Judicial Chamber cannot put any one in an information prison. However, it can provide a qualified and legally meaningful assessment of particular facts regarding an allegedly unlawful use of mass media by this or that official.
Such a right is conferred on us by the general jurisdictional rule of our Regulation (Clause 9) calling for review of any disputes that arise from violation of the equality principle in the mass media domain, and its particular incarnation pertaining to disputes over violation of guarantees with regard to equal media access for all candidates, as laid down in Clause 3, Article 8 of the Federal Law «On Election of Deputies...».
It should be noticed that an initial motion in the Judicial Chamber does not at all exclude a subsequent court motion. Moreover, fully «armed» with expert findings, the applicant would have a greater chance of success in pressing for tougher legal penalties for violators of electoral legislation in traditional courts.
Selected Disputes Tried by the Chamber
This was exactly the formula adopted by Mr. A.V. Shishlov, Deputy of the State Duma of the Federal Assembly of the Russian Federation who asked the Judicial Chamber to review a number of printed materials of the Yuri Boldyrev Bloc, a public political movement, which several St. Petersburg publications carried during the 1998-1999 winter election of deputies to the St. Petersburg Legislative Assembly. Mr. A.V. Shishlov requested a ruling on whether such materials represented «printed campaign materials», and in case the materials were ruled as such, he requested the Judicial Chamber to give its view on whether the dissemination of such materials violated any legal requirements governing election campaigning during the said elections, and if such violation did in fact occur, how could it influence the results of such elections?
On review of the submitted print materials and pursuant to Clause 21 of the Regulation, the Judicial Chamber issued a special expert opinion on this case.3 As we drafted it and assessed whether the text in the St. Petersburg press provided to us represented election campaign materials, we ran into a somewhat tricky situation. On the one hand, the materials contained no direct appeals to vote for or against particular candidates running for the St. Petersburg Legislative Assembly. Moreover, a rather voluminous publication in the St. Petersburg Vedomosti of December 12, 1998 carried a typical «explanatory» headline «Yuri Boldyrev: Informing, Not Campaigning».
Meanwhile, in the course of such «informing», Yuri Boldyrev dwelt in rather great detail on the election program of the Yuri Boldyrev Bloc, using phrases like «our would-be deputies whom you would elect« and describing a mechanism enabling him to «focus the resources of our 24 candidates so that the bloc's leader may address the public and clarify the substance of our ideas».
Turning to review the rules that determined the legal status of «campaign» materials during the 1998-1999 winter elections to the St. Petersburg Legislative Assembly, we could not help but notice that those rules assumed a broader criterion as regards 'campaign nature' of this or that material rather than merely the presence or absence of direct appeals therein.
Thus, under Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» as applicable to the election in question, election campaigning constituted «the activities of any citizens of the Russian Federation with regard to preparation and dissemination of any information intended to induce voters to vote for or against this or that candidate (list of candidates)».
In accordance with the above legislative criterion, the Judicial Chamber ruled some print materials presented to us (though far from all the materials submitted by the claimant) to be election campaign items intended to induce voters to vote for the candidates of the Yuri Boldyrev Bloc and against the Yabloko candidates.
Since this «information» with heavy campaign undertones mostly came from Yuri Boldyrev (as commonly known, he is deputy chairman of the Accounting Chamber of the Russian Federation), it constituted a violation of yet another legal rule of the Federal Law «On Basic Guarantees of Electoral Rights of Citizens of the Russian Federation» set forth in Clause 4, Article 23 of the Law, namely a restriction barring «officials of government authorities» from participation in election campaigns.
Regarding the third question posed to the Judicial Chamber, as to how such a violation could affect the final results of the election, the Judicial Chamber, without assessing the extent of such influence, ruled its existence an amply proven and real fact.
In view of some of the new elements appearing in Russian electoral legislation in 1999, which call for greater transparency of candidates vis-à-vis their voters (in particular, as regards their conflicts with the law), some preventive aspects of interest may be found in a rather old ruling of the Judicial Chamber dating back to November 30, 1995, the time of previous elections to the State Duma. This ruling dealt with a complaint by Mr. S.N. Terekhov, a candidate of the Power to the People electoral association, who ran for the State Duma, with regard to a publication titled «Parade of Dons» carried by the Moskovsky Komsomolets daily.
The facts of the case are simple. On November 27, 1995, during the campaign for the State Duma elections, the newspaper, under a telling headline «Parade of Dons», published a list of candidates from various electoral blocs who, as the newspaper alleged, «were at some point convicted of various crimes by courts of law and served time in correctional facilities». Among others, the paper listed the full name of Mr. S.N. Terekhov, indicating his affiliation with the Power to the People electoral bloc. The subsequent Judicial Chamber hearings established that Mr. S.N. Terekhov had never been convicted by a court of law and had served no time in a correctional facility.
Using the actual fact of Terekhov's criminal indictment (for the well-known autumn events of 1993) and his subsequent pardon in this way was factually incorrect. Legally it means dissemination of untrue information about a candidate running for the State Duma, with all the conclusions arising from such an assessment.
Typically, as noted by the Judicial Chamber, the key reason for such an offence was the legal illiteracy of a certain journalist of the Moskovsky Komsomolets who had prepared the article in question.
By its ruling, the Judicial Chamber formally acknowledged that the information, which the Moskovsky Komsomolets daily published with regard to Mr. S.N. Terekhov, a State Duma candidate of the Power to the People electoral bloc, and which affected public interests, was untrue.
To remedy the damage, the Judicial Chamber suggested that the Moskovsky Komsomolets editors quickly refute any untrue information as regards Mr. S.N. Terekhov in coming issues. In addition, a decision was made to publish the ruling in the Rossiyskaya Gazeta, the official government daily.
Since a substantial amount of so-called 'sensitive' data and information to be submitted by candidates to deputy seats in accordance with the latest electoral legislation is about to gain currency in the electoral process, the problem of retaining its accuracy and credibility in the media grows visibly more urgent.
The above negative example concerning the 1995 «Parade of Dons» publication by the Moskovsky Komsomolets should provide a useful lesson wise participants in the electoral process in 1999 and in 2000 alike.
In the context of the forthcoming «big» elections, everyone has heard of the problem concerning not-so-clean (»gray») and «dirty» election techniques. The Judicial Chamber also has to deal with such cases. In fact, the Judicial Chamber has come across such «unclean» electoral techniques before. Suffice it to recall some «risqué» doggerels by Mr. Borovoy, which we had to preview at the request of some TV networks during the previous parliamentary elections. Still, some of these techniques are truly novel and rather interesting.
They include a dispute regarding the nature of some commercial videos titled «Time to Think about People», which were shown in March and April of 1998 on some TV channels of the Sverdlovsk Oblast. At that time, the region was in the midst of an election campaign for the Sverdlovsk Oblast Legislative Assembly.
For about six months prior to this, many mass media of the Sverdlovsk Oblast and the city of Yekaterinburg (TV, radio, print media, and billboards) had been aggressively and successfully implementing a project in the nature of social advertising titled «No One But Us».
There were images of nice common people: a policeman, his wife, a student family, senior citizens and war veterans. Here is one typical example: late at night, a woman at her baby's bedside is waiting for her husband to come home from work. She is worried, since he is a policeman, and you never know what may happen. Finally, in he comes, alive and well. She offers him some food and they talk it out: what kind of life is it, and who can make it better? All the ads repeat a simple idea: the kind of life we lead in our city, village or district is up to us alone. No one but us can fix it.
This was a very fine, good, and wise example of social advertising. Over the six months of its presentation, it found its way into the flesh and blood of the Sverdlovsk Oblast and Yekaterinburg City residents. There would have been no problem whatsoever, except that once the election was called, all the characters whom the residents had grown to like in those ads suddenly, to a man, turned out to support a certain political force running in the elections to the Sverdlovsk Oblast Legislative Assembly.
We believe this was not a bad new technique. Reviewing its legitimacy, the Judicial Chamber stated that «the actions of the Our Home - Our City electoral association that, in its election campaign, used some plots, images, and other themes from a social advertising project titled «No One But Us», which had previously been carried out with financial support from the Our Home - Our City public movement, comprised no violation of the federal election legislation».
This example of a novel campaign approach from the Urals was viewed in a positive light. I would refer to it as an example of Russian doll advertising: inside social ads one finds political advertising or the other way round.
Now to a new type of campaign we consider negative. The location is no longer the Urals, but St. Petersburg, Russia's northern capital. The time is January 1999. The situation is similar - the Legislative Assembly elections. Before the second round of these elections, on the campaign suspension day (when campaign ads are prohibited), Channel 5 of St. Petersburg TV carried a film titled «Conspiracy». Apparently, its content had no direct relevance to the election in question. Yet since St. Petersburg is known as a traditional Yabloko power base and since it was that very political faction that scored substantial vote gains in the first round of the election, the underlying idea behind the airing of this basically anti-Yabloko show became immediately clear.
With regard to this TV program, the Judicial Chamber received a complaint from Mr. P.B. Shelisch, Deputy of the State Duma, and from Mr. A.A. Veshnyakov, then Secretary and currently Chairman of the Central Election Commission.
The applicants asked us to answer several questions, i.e. they wanted us to prepare expert opinions on those questions. First, did the show «Conspiracy» have the nature of election campaign material? Second, if so, did its airing violate any requirements of the legislation? Third and finally, could such a violation have affected the second round outcome of the elections to the St. Petersburg Legislative Assembly?
In considering whether the TV film «Conspiracy» constituted an election campaign material, the Judicial Chamber, similar to the situation involving the Yuri Boldyrev Bloc, noted the absence of direct appeals to vote or not to vote for this or that Legislative Assembly candidate.
However, the election legislation operating in St. Petersburg at that time understood election campaigning to be as a wider range of actions, beyond direct appeals. These included any actions inducing the voters to vote for or against this or that candidate (list of candidates).
Having repeatedly viewed the «Conspiracy» film, we clearly understood the logical and emotional sequence built by the producers of the video material. We concluded that, in fact, this sequence worked to project Mr. Yavlinsky and his movement in a purely negative light, as enemy collaborators and partners in some conspiracy staged by shady global forces whose goals were obviously detrimental to the public.
Therefore we concluded that the «Conspiracy» film contained signs of election campaign materials intended to induce St. Petersburg voters to vote against the representatives of certain political forces, in particular, against the candidates fielded by the Yabloko electoral association.
Once the film was found to constitute election campaign materials, its airing within 24 hours of election day represented a direct violation of certain rules of both the election legislation of the Russian Federation and the local legislation of St. Petersburg.
The following is the most recent example of our response to election disputes. It deals with the highly important and little understood issue of establishing which broadcasters and/or print media offices should, in the election campaign period, operate within a special public law mode as regards their participation in such an election campaign. The statutory wording of this definition is given in Clause 1, Article 39 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» and Clause 1, Article 55 of the Federal Law «On Election of Deputies...». However, the wording of this definition itself has given dispute.
Thus the Judicial Chamber received a petition from Mr. S.V. Bolshakov, a member of the Central Election Commission of the Russian Federation, requesting a legal opinion on the actions of the executive management of the State Radio and TV Company (GTRK) of the Republic of Adygea, who refused to provide air time to candidates running for the office of the head of administration of Krasnogvardeysky District, Republic of Adygea during the elections to that office held on June 6, 1999.
The arguments for such a refusal were as follows. The State Radio and TV Company of the Republic of Adygea, a federal state enterprise, is a VGTRK subsidiary. Since VGTRK is founded by federal-level government authorities, while the State Radio and TV Company (GTRK) of the Republic of Adygea has no government authorities of the Republic of Adygea among its founders, then, in the opinion of Mr. A.T. Kerashev, the Chairman of the Republic's GTRK, this TV company is not covered by the said public law mode of participating in an election campaign as a broadcast organization «given the level of elections held in the Krasnogvardeysky District». The Judicial Chamber rejected such arguments.
First, neither the currently operative version of Clause 1, Article 39 of the Federal Law «On Basic Guarantees ...», nor the version governing the June 6, 1999 elections to the office of the head of administration of Krasnogvardeysky District, Republic of Adygea (in accordance with Article 2 of the Federal Law No. 55-FZ of March 30, 1999 «On Amending and Supplementing the Federal Law «On Basic Guarantees ...», the newly amended version of Clause 1, Article 39 of the said Federal Law comes into effect only with regard to any elections to be voted after July 6, 1999) provide for such a criterion as «the level of elections held». Clause 1, Article 39 of the Federal Law «On Basic Guarantees ...», which defines the operational scope of the Federal Law, clearly includes «elections to government authorities of any Subjects of the Russian Federation, as envisaged by constitutions of such Subjects of the Russian Federation... and voted by direct popular ballot».
Under Article 92 of the Constitution of the Republic of Adygea, local government authorities within the Republic of Adygea operate in its districts and any towns that report directly to the Republic's government.
Under Clause 1, Article 95 of the Constitution of the Republic of Adygea, «the local administration is an executive body», while Under Clause 3, Article 95 of the Constitution of the Republic of Adygea, «the head of the district administration is elected by the popular ballot».
Moreover, under Clause 1, Article 40 of the Republic of Adygea Law «On Elections of Head of City or District Administration», the candidates running for head of district administration are entitled to air time on any channel of the Republic's State TV and Radio Company that broadcasts TV and radio in the respective constituency.
Within this context, the Judicial Chamber has ruled that the refusal by GTRK of the Republic of Adygea to provide free air time to candidates running for head of administration of the Krasnogvardeysky District, Republic of Adygea was unlawful.
In my opinion, the Judicial Chamber's role in origination, development, and implementation of the right to campaign in an election via the mass media should boil down to a simple and understandable task (unfortunately, it is simple and understandable in its language only, rather than in its implementation). Its general thrust is as follows.
All of us: law-makers, judges of common courts, election commissioners, members of the Judicial Chamber for Information Disputes, etc., are facing the mammoth job of building an efficient system for review of information-related disputes as a key component in implementing the right of the Russian Federation citizens and political public associations «to conduct election campaigns in forms permitted by law and with lawful means» via the mass media. Meanwhile, it is only possible to build such a system using two well-connected legal vessels - those of electoral information law-making and electoral information law enforcement.
This system will only become a reality if, when making new laws, our parliament members pay close attention to the judicial and quasi-judicial practice of solving information-related disputes about election campaigning in the mass media.
V.N. Monakhov,
member of the Judicial Chamber
for Information Disputes
under the Russian President,
Ph.D. (Law), Reader
1 See: Collected Acts of the President and the Government of the Russian Federation. 1994, No.6, p.434.
2 See: A.B. Vengerov, Legal Avant-gardism in the Information Dimension of Democratic Russia, in «Court of Information Arbitration and the First Free Elections». Moscow, Yuridicheskaya Literatura, 1994, pp. 32-39.
3 The Expert Opinion and other documents of the Chamber referred to in this article are enclosed in the Appendix to this reference book.
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