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Information Disputes Relating to Election Campaigning via the Mass Media: The Experience of the Judicial Chamber in the 1999 Election Campaign V.Monakhov.
The results of the 1999 parliamentary elections will continue to be hotly debated for many months by different «audiences»; from that domestic civic center, the kitchen, to the topmost seats of power.
Nevertheless, with their official results made public, the recently held elections have now acquired the status of a legal fact. With the usual hassles and squabbles, our elected deputies of the State Duma have eventually set about tackling their principal job, i.e. law-making. Meanwhile, we, the electorate, have swiftly, without even pausing for breath, found ourselves amidst the race unfolding to elect the President of the Russian Federation. Now, what is it that we can borrow confidently from «that election» and apply in «this campaign»? What particular experiences? What useful strategies? What is it that we would only be happy to leave behind for good, like some awful nightmare? I suggest that we should go ahead and address these and other related questions against the backdrop of the most common information disputes adjudicated by the Judicial Chamber in the course of, and following, the 1999 parliamentary election campaign.
Role and functions of the Judicial Chamber in the electoral process
In the first place, I would like to remind the reader that the specialized information-focused judicial body - the Judicial Chamber for Information Disputes under the President of the Russian Federation - has, from the point of view of its background, a direct, fundamental link with issues of campaigning via the mass media in the course of the past elections and referendum. The Judicial Chamber for information disputes, just like Hesiod's Aphrodite, emerged from the frothy waves of campaigning battles fought in the new Russia's first parliamentary elections and constitutional referendum in late 1993. Back then the Judicial Chamber was known under its «maiden» name, as the Arbitration Court on Information Matters - an ad-hoc public-and-state body (established exclusively for the period of elections) that had proven itself quite successfully as a non-partisan, independent and fair judge operating in the campaign-related information arena for all participants of the then turbulent (suffice it to recall the still lingering drama of the September-October 1993 events in Moscow) electoral process. Unlike Aphrodite, the Judicial Chamber did not emerge from the foamy waves fully unadorned. This government body's legal «attire», confirming its status, functions and powers, continues to be provided by the Regulations on the Judicial Chamber approved by the January 31, 1994 Decree of the President of the Russian Federation (No. 228).
Thus, the Judicial Chamber for Information Disputes has been active in the information arena for over six years now. Over the years, it has been through the severe test of disparate election campaigns.
Those include two federal-level parliamentary campaigns (the 1993 and 1995 Duma elections), one Presidential campaign (1996) and countless electoral races held by numerous Subjects of the Russian Federation. In all, the Chamber's experiences in the area of tackling information disputes relating to campaigning via the mass media is quite impressive.
Today the Judicial Chamber is an authoritative (both domestically and internationally) quasi-judicial institution, performing in our uneasy transitional days the crucial social function of an agent of positive influence: both ethical-and-legal (in terms of substance) and state-and-public (in terms of structure). This influence affects the overall state of play both in Russia's government and public information arena, particularly in the area of exercising the right to election campaigning through the mass media.
Now, what are the components of this influence? Those are the Chamber's status, functions and competence defined by the aforementioned Regulations on the Judicial Chamber for Information Disputes. Notably, the status of «a state body under the President of the Russian Federation» (to emphasize, «a state body under the President» rather than a structural element of the Presidential Administration) makes, for one, government agencies and their officials (targeted by the given Chamber ruling) obligated to report on the ruling's implementation within two weeks (see Clause 2 of the Regulations).
Under Clause 13 of the Regulations, other government agencies and organizations shall report to the Judicial Chamber on «the results of considering the materials on the violations of rights and freedoms (including electoral rights) in the area of mass media operations within one month«.
The Judicial Chamber performs its functions independently, external interference by any party being ruled out (see Clause 3 of the Regulations).
Quite a few of the Chamber's functions appear to be directly related to election campaigning through the use of the mass media.
In particular, those specific functions include:
- helping to assure non-partisan and truthful media coverage of the matters bearing on the public interests;
- assuring the principle of parity in the area of mass media engagements;
- helping to apply the principle of political pluralism through television and radio news and political talk shows;
- issuing guidance on correcting misjudgments in the area of media reporting on the matters of public interest.
And finally, a word about the Chamber's competence component. Competence is most generally outlined by Clause 8 of the Regulations. Under the provisions of this Clause, the Judicial Chamber shall adjudicate on «the disputes and other cases that involve the mass media».
Apart from the relevant Russian legislation, the legal base for tackling such disputes is formed by «the universally accepted principles and rules of international law and requirements of the Russian Federation's international treaties» as well as by the standards of journalistic ethics.
Separating the powers of courts and the Judicial Chamber
A crucial element of the competence component relates to the issue of separating the powers of general jurisdiction courts, on the one hand, and the Judicial Chamber for Information Disputes, on the other. The two jurisdictions have been defined in very general terms, with the Chamber's competence (under Clause 8 of the Regulations) covering disputes and other cases in the area of mass media engagements, «except for the matters formally referred to in the jurisdiction of courts of the Russian Federation». As a matter of fact, the problem of separating the powers of judicial entities is not that simple and requires some attention. To clarify things, here is one specific point.
Pursuant to Clause 2 Article 79 of the Federal Law «On Electing the President of the Russian Federation» of December 31, 1999 (No.228), «the rulings and actions (inaction) on the part of the bodies of state authority, bodies of local government, public associations and officials found to be violating the electoral rights of citizens of the Russian Federation can be appealed in a court of law. The word «can« in this particular case in no way means that a legal case can only and exclusively be considered by «a court of law». Under Clause 2 Article 45 of the Constitution of the Russian Federation, «every citizen has the right to defend his/her rights and freedoms through the use of all vehicles that are not barred by the law».
Hence, any participant in the election of the President of the Russian Federation, who happens to be considering what means to choose in order to defend his/her electoral rights and freedoms (either a strictly judicial or quasi-judicial approach, say, through turning to the Judicial Chamber), shall first have to define criteria for choosing particular means.
Should the criteria be, for one, the severity of legal action against the offender, the plaintiff's preference should definitely be in favor of a court of law. Obviously, it is precisely a court of law that is authorized to pass an appropriate sentence to punish an official found to have used the mass media access benefits in violation of the requirements under Article 35 of the Federal Law «On Electing the President of the Russian Federation».
As far as the Judicial Chamber goes, it has no authority to have anyone thrown into some information jail. However, it does have the authority to pass explicit and sound legal judgments on a range of specific cases. To provide one example, the Chamber can make its professional assessments on the cases of preferential (as compared with opportunities enjoyed by other candidates) access to the mass media or cases when such preferential access has been assured through mediation of some office holders pursuing their own campaign goals. It can also assess other cases of abusing the right to conduct election campaign activities via the mass media.
The general competence provision recorded in the Regulations (see Clause 9) is to consider the disputes resulting from violating the principle of parity in the area of mass media operations, particularly disputes produced by infractions of the safeguards enabling all running candidates to have equal access to the mass media (see Clause 3 Article 8 of the Federal Law «On Electing the President of the Russian Federation»).
By the way, turning initially to the Judicial Chamber in no way rules out the possibility of commencing a suit through a court of law. What is more, «armed» with the Chamber's expert opinion, the plaintiff has a better chance of securing a tough ruling passed by a court of law of the Russian Federation in order to punish the party found guilty of breaching the electoral legislation rules.
Cases considered by the Judicial Chamber in the course of the 1999 State Duma election campaign
These sorts of disputes may be categorized by different criteria. Arguably, given the circumstances at hand, it is most beneficial to use «the dispute subject matter» criterion. To put it more plainly, one should answer the principal categorization query: what is at stake in this particular dispute? Under this measure, first to crop up in the days of the 1999 parliamentary campaign were disputes over the nature of materials released by the mass media. The problem would then be whether the materials in question should be classified as campaign propaganda or regular material?
Described below are some «subject-matter-related» cases that can be summed under the title: campaign propaganda or not?
In October 1999, the Judicial Chamber received a letter from S. V. Bolshakov, member of the Central Election Commission of the Russian Federation, asking for an expert opinion on whether the identified pieces carried by the September 28, 1999 issue of the «Vladimirskie Vedomosti» daily, amounted to violation of the requirements of the standing Russian electoral legislation and laws on the mass media.
The Judicial Chamber experts examined the substance of the supplied materials headlined «Making the right choice comes above all» and «Those abroad will `help' us out».
The catchy title «Making the right choice comes above all» belonged, in fact, to a report on the visit to Vladimir oblast of G. N. Seleznev, the speaker of the State Duma of the Federal Assembly of the Russian Federation. In particular, the report held the following remark made by G. N. Seleznev at a news conference and meeting with electorate:
«The real force capable of countering the ongoing lawlessness in the country and steering Russia out of the deadlock is represented by the `For Victory' electoral bloc. It includes the more progressive and outward-looking political parties and public figures backed by the broad masses of the people that hold various political views and convictions, come from a variety of social groups but are driven by the same patriotic sentiments, love for their Motherland and readiness to sacrifice all they possess in order to restore the nation's former might, regain lost social security standards and establish law and order throughout the land».
And then the quote went on: «The people will not be fooled yet another time despite the desperate efforts undertaken by the «democrats», huge resources expended for propaganda purposes and dirty electoral technologies applied in the process!»
While examining fragments of the article, the Chamber's experts proceeded from the definition of «campaign propaganda» as an activity pursued by citizens of the Russian Federation, registered candidates, electoral associations, electoral associations and public associations aimed at urging or encouraging voters to come to the polls and either support that or another candidate (list of candidates) or vote against those indicated (see Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum»).
Checked against this rule, G. N. Seleznev's remarks along with the article's headline «Making the right choice comes above all» were passed by the Judicial Chamber as an encouragement to come to the polls and vote for the electoral bloc «For Victory».
Considering that the material was released September 28,1999, which was before the official launch of campaigning in the election of deputies to the State Duma (the time limits having to be fixed in keeping with the provisions of Clause 1 Article 53 of the Federal Law «On the Election of Deputies to the State Duma of the Federal Assembly of the Russian Federation»), the Judicial Chamber concluded that the given newspaper article was released in violation of the standing Russian legislation on the time limits for election campaigning activities.
While looking into the subject matter of the article «Those abroad will `help' us out» carried by the same issue of the «Vladimirskie Vedomosti» daily, the Judicial Chamber experts observed that the material contained no direct calls to come out in support of those or other candidates (lists of candidates) running for seats in the State Duma. To emphasize once again, under the relevant provisions of the Russian electoral legislation the notion of «campaign propaganda» implies a range of activities that go beyond the bounds of direct calls on the electorate and include, for one, activities designed to encourage voters to cast their votes either in support of those or other candidates (lists of candidates) or against them.
The article «Those abroad will `help' us out», introduced with a caption explaining the purpose of B. Nemtsov's visit to the local capital (preparing for the upcoming elections), was written to impart facts and offer a train of logic that in effect maneuvered the reader towards a totally negative perception of B. Nemtsov and his movement. The fact of this material being carried next to the report on G. Seleznev's visit to the city left little doubt both as to the newspaper's preferences and what forces that mass media vehicle had been pushing for.
In its expert opinion «On the nature of materials carried by the September 28,1999 issue of the «Vladimirskie Vedomosti» daily of October 21, 1999 (No.9/54) the Chamber concluded that the material «Those abroad will `help' us out» had the features of campaign propaganda while the fact of its being released on the given date (September 28, 1999) amounted to breaching the provisions of Clause 1 Article 53 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
Checking the article «Those abroad will `help' us out» for compliance with the requirements of Article 51 of the Federal Law «On the Mass Media», the Judicial Chamber determined that in this particular case the author had not actually breached the Article's rule barring a reporter from abusing his/her right in order to slander a person for his political affiliation.
In early November 1999, the Judicial Chamber considered another petition from S. V. Bolshakov, member of the Central Election Commission of the Russian Federation, relating to the problem of assessing the «campaign propaganda content» of some mass media reports. This time, the Chamber's experts were engaged to check and see if the materials carried by the special October 1999 issue of the «Krasnoyarskie Profsoyuzi» newspaper contained any infractions of the requirements of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
After the Chamber's experts had examined the contents of the submitted materials «Stability sought by all...» and «'Fatherland's' manifesto», they arrived at the following decision:
The piece headlined «Stability sought by all....» contains isolated remarks from a presentation made by E. Primakov, one of the leaders of the «Fatherland - All Russia» electoral bloc, at the bloc's founding conference.
However, the story's logic pushes the reader towards forming a wholly favorable perception of the «Fatherland - All Russia» electoral bloc. In particular, the newspaper carries the following remark by E. Primakov: «I am positive that once we achieve a solid status in the State Duma, our bloc will be in a position to interface democracy with order.» And then, the story carries another remark by E. Primakov: «Should our bloc secure a prominent position in the State Duma, we will know how to achieve our objectives without running any risks or resorting to any confrontation. At the same time, we will make the people respect us».
In checking the aforementioned fragments and the article as a whole, the Judicial Chamber (just like in the case with the «Vladimirskie Vedomosti» newspaper) took guidance from the «campaign propaganda» definition recorded in Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum».
Based on the criteria contained in the given legal provision, the fact that «Krasnoyarskie Profsoyuzi» carried such remarks by E. Primakov was classified by the Judicial Chamber as using the mass media for the purpose of urging the electorate to vote in support of the «Fatherland - All Russia» electoral bloc in the upcoming Duma elections.
As it went on to assess the «Fatherland's» manifesto» article carried by the same issue of «Krasnoyarskie Profsoyuzi», the Judicial Chamber found that, just like in the case of the «Stability sought by all...» material, the story contained no direct calls to vote for those or other candidates (lists of candidates) nominated to run for seats in the State Duma. However, given that under the current Russian electoral legislation the notion of «campaign propaganda» implies a broader range of campaigning activities than just direct calls to support the given candidates, the Judicial Chamber proceeded to look into the essence of the article rather than merely examine it for the presence or absence of formal indicators of non-compliance.
With this approach being duly applied, it was determined that the «Fatherland's manifesto» article basically contained a campaign policy platform reflecting the key tenets pursued by the «Fatherland» public association, which later joined forces with the «All Russia» movement to form the «Fatherland - All Russia» electoral bloc running for seats in the State Duma. The «Manifesto» called on Russians to join the colors of «Fatherland» (»a multiethnic community open to all those wishing well for themselves and the country»), claimed that the movement would aspire to assure prosperity for Russia and her people, and stated that «Fatherland» would achieve complete security both for the nation and its individual citizens, etc.
Proceeding from the aforesaid, the Judicial Chamber determined that the «Fatherland's manifesto» article included elements of campaign propaganda coming within the definition under Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum».
Given the fact that these materials had been carried by the «Krasnoyarskie Profsoyuzi» newspaper before the election campaign was formally launched, as prescribed by Clause 1 Article 53 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», the Judicial Chamber held the decision by the editors of the «Krasnoyarskie Profsoyuzi» newspaper to carry the material to be an infraction of the Russian electoral legislation requirement governing the questions of election campaign timelines.
In the same category is the November 25, 1999 expert opinion (No.13/58) «On the nature of the material «Local GKChP plotters» carried by the October 27, 1999 issue of the «Moskovsky Komsomolets» daily». In this particular case, the Judicial Chamber issued its expert opinion on the request from O. K. Zaostrozhnaya, secretary of the Central Election Commission of the Russian Federation, who wanted to know «if the 'Local GKChP plotters' piece by M. Deutsch contained any indications of campaign propaganda falling within the relevant provisions under Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
Having studied and assessed that rather lengthy article, the Judicial Chamber came to the following conclusion. The main character of M. Deutsch's story is V. Starodubtsev, governor of Tula oblast. The reporter sets out to research the governor's engagements aimed at getting the Lenin livestock-breeding collective farm (Novomoskovsky region, Tula oblast) outfitted to produce pure alcohol. The reader is then informed of a suit filed against V. Starodubtsev on evidence of tax dodging related to that newly established business. The article describes numerous cases of the governor's incompetent management on the regional level and even goes as far as alleging that V.Starodubtsev might be involved in the deaths of some of his opponents. This essentially makes the core of M. Deutsch' story, the introductory and concluding paragraphs containing the «campaign propaganda» refrain: «Given all this knowledge, V. Starodubtsev remains as No.3 on the federal list of candidates from the KPRF electoral association. Right next to Comrades Ziuganov and Seleznev».
The Judicial Chamber determined that the article contained the elements of campaign propaganda within the provisions of Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
Within this category of cases relating to the examination of a broad variety of print media materials «either for the presence or absence of campaign propaganda content», the Judicial Chamber also perused assorted materials released by the domestic broadcast media vehicles. In particular, while writing the expert opinion of November 3, 1999 (No. 11/56) «On compliance of some materials released by domestic broadcast media vehicles in August-September 1999 with the requirements of the standing electoral legislation of the Russian Federation» in response to the application by O. K. Zaostrozhnaya, secretary of the Central Election Commission of the Russian Federation, the Judicial Chamber experts were able to view the video of a concert held in the city of Cheliabinsk as part of the «Right Cause» association's «You are right» action and aired August 18, 1999 on one of the channels operated by the VGTRK.8 The concert in its own right was positively held to be a propaganda action in support of the «Right Cause» association. That was obvious from a conspicuous display of the «Right Cause's» logo, B. Nemtsov's (one of the association's leaders) explanations of the «Right Cause's» policy goals and the spectators being repeatedly enticed to focus on the «Right cause» leaders who were attending the concert.
At the same time, the Judicial Chamber's experts took notice of the fact that the «Right Cause» is not listed as an electoral association running for deputy seats in the 1999 State Duma elections. Admittedly, some of the «Right Cause» leaders were on the list registered by the «Union of Right Forces» electoral bloc. Indeed, there were some common points (personalities, agenda points) between the «Right Cause» and the «Union of Right Forces». Notwithstanding, there was no legal succession between the two. Hence, there were no legal grounds for the Chamber's experts to conclude that the concert was a campaigning action in support of the «Union of Right Forces» when that action featured slogans, signs and leaders of a different political association, i.e. the «Right Cause».
Under the existing electoral legislation of the Russian Federation, the term «campaign propaganda» is defined as campaigning either «for» or «against». The «for« campaigning, for one, has its own «reefs» that the Y.Luzhkov-E. Primakov campaigning boat ran up against, springing a leak in the days of the December 1999 parliamentary elections, particularly in the «TV-Center» television campaigning. But the «reefs» in the «for« campaign mostly had to do with political or conceptual expedience, taste, decency, moderation etc.
Engaging in «for« campaigning, it is rather hard to collide directly with the rules of electoral or other legislation. One would really have to work on it, as it were...
But things are radically different in the case of «against« campaigning activities, which contains risks of breaching a range of substantive legal rules imposed both by the Russian electoral legislation and the Federal Law «On the Mass Media».
A typical example is an editorial headlined «Y. Luzhkov: «Helping them set up shop in this land of wealth» published in the October 8, 1999 issue of the «Kazachyi Vesti» newspaper (No. 40-44), the material becoming the target of the Judicial Chamber's expert opinion, issued on November 30, 1999 (No.14/59). Having considered the case, the Judicial Chamber arrived at the following determination.
The «Kazachyi Vesti» editorial was written to give a picture of Moscow's current social and economic situation and of various aspects of the actions by the Moscow government and Y.M. Luzhkov (the mayor of Moscow).
The article's authors unequivocally characterize the state of affairs in Russia's capital city as extremely hostile to its residents (»helplessness and spinelessness of the city that is being humiliated, robbed and tortured, and where the specters of greed, profiteering, egotism and commercialism prevail»).
The article keeps searching for the enemy guilty of Moscow's woes, basing this search mainly upon the ethnicity issue.
The article, in particular, claims that «any and all outlanders feel free to do as they please in Moscow, which can never be said of ethnic Russians». The material goes on to say that «a major role in corrupting the metropolitan city's population has been played by Jews who are flocking the city», and then - «the proportion of ethnic Russians has plummeted on account of large numbers of outlanders coming to settle in the city».
Simultaneously with creating enemy images for Muscovites (»Outlanders», «Jews», «Southerners»), the article is found to be consistently intent on building an image of the Russian capital city's dweller as denigrated, robbed and suppressed by the local authorities. The material's authors, in particular, claim that «Moscow's fickle residents, degraded by the corrupt internationalist-intellectuals, keep degenerating and losing their mental capacities», that «the local philistines can hardly think of grumbling at the authorities on account of being too downtrodden by the never-ending hardships», and that «even those who are still capable of standing up to their bullies are too discouraged by the lack of any good prospect».
The material provides a graphic picture not only of the «enemy« image but also of an integrated «enemy's patron« image. The authors argue that it is precisely the authorities of Moscow that are seeking to «squeeze out of Moscow for good the few ethnic Russians that are still found to be there», and that they are doing their utmost to «win the respect of the outlanders bossing the show in Moscow».
The authors of the piece try to whip up a negative perception of Moscow authorities with Y. M. Luzhkov and his administration being accused of cynicism and impunity. The newspaper's editorial observes that «Moscow's rulers led by the city mayor are not yet fearful of their future inasmuch as the local law-enforcement agencies are wholly engaged to assure their security».
Of note in connection with this is the article's treatment of the crime scene in Moscow. The authors, for example, argue that the «Caucasus criminal gangs act with the knowledge and connivance of the city authorities that apparently are never left unremunerated». The authors proceed to prattle on even about international affairs. In particular, they quite groundlessly suggest that the operations of Caucasus crime gangs are «coordinated by Baku via its embassy officials in Moscow». Understandably, these sorts of accusations in no way contribute to promoting neighborly relations between the two friendly nations. On the contrary, they only serve to sow the seeds of enmity and intolerance.
The article's concluding segment provides a clear instance of xenophobia where the authors provide a list of «The 1999 Moscow Administration led by Y. Luzhkov», identifying persons on that list by their non-Russian ethnicity. In this article's context, that list could very easily be read as both a collective and individually identifiable image of the culprits responsible for Moscow's calamity, i.e., as the enemy image built to show its anti-Russian identity.
Hence, the article «Y.Luzhkov: «Helping them set up shop in this land of wealth» carried by the «Kazachyi Vesti» newspaper clearly contains unsubstantiated assertions where the interests of Moscow dwellers are pitted against those of the city authorities and the interests of ethnic Russians are set against those of non-ethnic Russians, where some social and ethnic groups are portrayed to be dominant with respect to other groups and interests, where the ethnic identity factor is particularly emphasized either to create a negative perception of that or another personality or ethnic community, or fuel intolerance towards non-ethnic Russian dwellers of Moscow.
Given these facts, the Judicial Chamber arrived at the following conclusion.
The editorial article «Y. Luzhkov: «Helping them set up shop in this land of wealth» carried by the October 8, 1999 issue of the «Kazachyi Vesti» newspaper (No.40-44) contains elements violating the requirements of Article 4 of the Federal Law «On the Mass Media», the specific infraction being the use of the mass media for the purpose of stirring up ethnic hatred and social intolerance.
Moreover, this article also contains elements of campaign propaganda coming within the meaning of the provisions under Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum», of the requirements under Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», and can be judged as using the mass media for the purpose of urging voters to come out against Y. Luzhkov - one of the leaders of the «Fatherland - All Russia» electoral bloc and a candidate running for a State Duma deputy seat.
Also falling within the category of risks of abusing the right to engage in the «against« campaign propaganda activities is the case of the «Communists, workers of Russia - for the Soviet Union» electoral bloc who in late November 1999 submitted their campaigning material for a free publication in the «Rossiyskaya Gazeta» newspaper. Having examined that communist propaganda piece, the «Rossiyskaya Gazeta» editors got suspicious and dispatched the material to the Central Election Commission of the Russian Federation (CEC RF) who, for its part, forwarded the propaganda commercial to the Judicial Chamber, requesting «to check the material for the presence of elements that can foment social enmity and intolerance».
Upon investigation, the Judicial Camber issued the December 24, 1999 expert opinion (No. 19/64) «On the nature of the campaign propaganda material written by the «Communists, workers of Russia - for the Soviet Union» electoral bloc». The Judicial Chamber's determination was as follows.
The given campaign propaganda material contains a list of the leaders of the «Communists, workers of Russia - for the Soviet Union» electoral bloc; the bloc's political platform; a photo collage with the «Aurora» battleship placed against the backdrop of the Kremlin to illustrate a poem.
The electoral bloc's political program is aimed at «getting the spoils plundered by the democrats restored to working people». This statement, as a matter of fact, alleges that the working people have been robbed, and robbed by the democrats at that.
Inasmuch as a broad variety of interest groups and strata in current Russian society are associating themselves with the democratic process and democrats, the «Communists, workers of Russia - for the Soviet Union» electoral bloc by this token accuse them all of robbery.
The campaign propaganda piece explicitly lays out how the electoral bloc plans to implement the restoration of «the spoils from the democrats over to the working people». The catchphrase «It is time `Aurora' reloads its guns!» actually amounts to a militaristic call to arms in order to achieve the goals proclaimed by the electoral bloc. Notably, the material's wording is most explicit about the pressing need for forceful action (»It's time `Aurora' reloads its guns!»).
The Judicial Chamber determined that the negative perception of the democratic process and democrats was particularly marked by the material being written in rhymed verse (»Great ideals discarded by a greedy gang, and the nation plundered for profit»). The call «It's time `Aurora' reloads its guns» is also prominently displayed by the rhyme.
Having assessed the contents of the submitted campaign propaganda piece designed by the «Communists, workers of Russia - for the Soviet Union» electoral bloc, the Judicial Chamber experts concluded that its release through the agency of the «Rossiyskaya Gazeta» newspaper could amount to violating the provision under Clause 1 Article 60 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» that «prohibits any campaign propaganda stirring social hatred and enmity».
In the course of its operations to investigate assorted campaign propaganda activities during the 1999 parliamentary elections, the Judicial Chamber could boast of a good number of cases when submitted materials did not receive the «thumbs down» sign. A large volume of applications were generally given positive responses because no violations of either ethical standards or legal rules were unearthed. Coming within this category of cases is a graphic example of an «effigy of power» being put to the flame in the city of Nizhny Novgorod. The case is described by the Judicial Chamber's expert opinion of December 30, 1999 (No.20/65) «On the nature of the reports released by the NNTV, Seti NN and Volga television organizations to cover the election campaign rally conducted November 13, 1999 by S. V. Voronov registered to run for a State Duma deputy seat in the Semenovsky electoral district (No.121)». Essentially, the case comes down to the following.
The Judicial Chamber was provided by the election commission of Nizhny Novgorod oblast with the video materials covering the November 13,1999 campaign rally arranged by S. V. Voronov running for the State Duma in the Semenovsky electoral district (No.121). Given that the rally, which turned into a high-profile event, was broadly covered by the local broadcast media, the Nizhny Novgorod oblast Election Commission requested the Judicial Chamber to assess the subject matter contained in the video materials and issue an expert opinion focussing upon the following two questions.
1) Do the activities of S.V. Voronov, registered as a candidate running for a State Duma deputy seat, shown in the given video materials, contain any elements of campaign propaganda intended to foment social enmity and hatred?
2) Do the activities pursued by S.V. Voronov, registered to run for a State Duma deputy seat, contain any indications of campaign propaganda amounting to a breach of the Russian legislation on the protection of intellectual property?
Having investigated the submitted video materials and covering documents, the Judicial Chamber arrived at the following determination.
The video materials, submitted by the Nizhny Novgorod election commission and aired by the NNTV, Seti NN and Volga television companies, have been produced to cover the election campaign rally arranged by S. V. Voronov, registered as a candidate running for a State Duma deputy seat, with one of the rally's functions including the burning of an «effigy of power» that according to the function designers impersonated the bureaucrat failing to deliver on his promises.
The Judicial Chamber's competence does not cover the task of determining whether such election campaign functions as rallies and public meetings comply with the relevant electoral legislation.
At the same time, the Judicial Chamber deemed it necessary to point out that the coverage of the event by the NNTV, Seti NN and Volga television companies was accurate and contained no elements of campaign propaganda intended to stir up social hatred and enmity.
As far as assertions about the likely violation of intellectual property rights (the right to reproduce images) go, as can be seen from the video materials, the effigy was not positively identified as any particular person by the spectators present at the event. As an aside, though, we can say that many spectators seemed to associate the effigy with I. Skliarov - the governor of Nizhny Novgorod oblast.
Overall, the Judicial Chamber concluded that the Duma candidate S.V.Voronov's activities, covered by the submitted video materials, do not amount to a violation of the campaign propaganda provisions within the existing Russian electoral legislation.
It is common knowledge that the major campaign battles of the 1999 parliamentary race were fought not through the print media but exclusively through the medium of television. Naturally, this could not but have been reflected in the Judicial Chamber's activities. And it was.
In early December 1999, the Judicial Chamber received an application from O. K. Zaostrozhnaya - member of the Central Election Commission of the Russian Federation (CEC RF). Accompanying the application were two video cassettes with several hours of taped news and current affairs programming broadcast in November 1999 by ORT and TV-Center television companies. The CEC RF secretary turned to the Chamber's experts with just one very specific question: do the video materials contain any elements of election campaign propaganda as defined by the provisions of Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation?
To respond to the query, the Chamber's experts spent many hours watching the submitted video materials and debating their legal and ethical content. What it boiled down to, one can see in the Judicial Chamber's expert opinion of December 3, 1999 (No.15/60) «On the Elements of the Election Campaign Propaganda Found in the News and Current Affairs Programs Broadcast in November 1999 by ORT and TV-Center TV Companies and Submitted on Tape for Assessment«. Basically, the determination comes down to the following.
November 10, 1999, coming «live» on the TV-Center company's news program was journalist D. Kiselev interviewing A. Kokoshin, member of the «Fatherland» association's political council registered to run for a State Duma deputy seat and entered on the Moscow segment of the «Fatherland - All Russia» electoral bloc's federal list.
In this interview A. Kokoshin presented the key points of the economic program promoted by the «Fatherland» association - one of the components of the «Fatherland - All Russia» electoral bloc.
The party affiliation of A. Kokoshin and the fact that the presented economic program belonged to the «Fatherland - All Russia» electoral bloc as a whole, was made clear by D. Kiselev in the following words: «This evening we have been hosting A. Kokoshin, who along with the «Fatherland - All Russia» bloc, advances an economic program designed to take one step back before moving two strides ahead».
In the course of their dialogue, the journalist and the politician avoided the explicit invocation to vote for the federal list of candidates put together by the «Fatherland - All Russia» electoral bloc.
However, having perused the contents of the program (propaganda, remarks to expound the forwarded economic program) and the techniques used to entice television viewers to form a positive perception of A. Kokoshin (registered to run for a State Duma seat and entered on the Moscow segment of the federal list promoted by the «Fatherland - All Russia electoral bloc»), the Judicial Chamber's experts confirmed the presence of elements of election campaign propaganda in support of the «Fatherland - All Russia» electoral bloc within the meaning of Article 2 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 Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
On November 11, 1999, ORT company's «Vremya» program aired «live» M. Leontyev's comment on the economic program advanced by the «Fatherland» association.
The contents of the comment and phraseology used (»grind», «demagoguery», «off the mark») enabled the Chamber's experts to confirm the presence of elements of election campaign propaganda against the «Fatherland - All Russia» electoral bloc within the meaning of Article 2 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 Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation».
On November 14, 1999, television host S. Dorenko in his Sunday program continued his efforts to create a negative public image of E. Primakov and Y. Luzhkov - leaders of the «Fatherland - All Russia» electoral bloc.
In particular, the position of E. Primakov and Y. Luzhkov on Federal authorities' actions in Chechnya was portrayed by S. Dorenko as a betrayal of Russia's interests, with the train of logic running as follows.
Firstly, neither Y.Luzhkov nor E. Primakov dared to censure the President of Ingushetia R. Aushev for calling on the Federal leadership to cease military operations in Chechnya. Secondly, the leaders of the «Fatherland - All Russia» electoral bloc allegedly have been encouraging the West to put pressure on Russia with the aim of terminating the land war in Chechnya, and given that the West has been supportive of the terrorists, E. Primakov and Y. Luzhkov have likewise appeared to be backing the terrorists.
Reporting on the murder of the «Radisson-Slavianskaya» hotel's managing director (a US citizen), S. Dorenko spoke of Y. Luzhkov and N. Kovalev (both registered candidates running for the State Duma) as accomplices in the crime as if their involvement had already been confirmed.
Assessing S. Dorenko's reports on the leaders of the «Fatherland - All Russia» electoral bloc E. Primakov and Y. Luzhkov aired on ORT television in the past two months, the Judicial Chamber deemed it essential to point out the following.
The proportion of airtime devoted to this topic, the predominance of negative judgments and the derogatory tone are clearly indicative of S. Dorenko's engagement in election campaign propaganda against the «Fatherland - All Russia» electoral bloc's leaders.
While making an overall assessment of the video materials submitted by the CEC RF, the Judicial Chamber pointed out the absence of any direct calls to vote either for or against any candidates (lists of candidates) for the State Duma of the Federal Assembly of the Russian Federation.
However, proceeding from the definition of «campaign propaganda» in Article 2 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 Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», the Judicial Chamber concluded that the video materials contained elements of election campaign propaganda within the provisions of the existing Russian electoral legislation.
Problems to be tackled
Among these problems, the first place undoubtedly belongs to the problem of conflict between the current electoral legislation and the Federal Law «On the Mass Media». Actually, the issue is not so much the conflict of laws as the conflict of their interpretations. Interpretation of the actual content of different legal norms (electoral law and the law on mass media) that both govern the multifaceted phenomenon of campaigning via the mass media. Institutionally, the actors involved in this conflict are the CEC RF and the Ministry of the Press. What are their basic positions?
The CEC RF, operating within its jurisdiction, recorded under Point «e» Clause 1 Article 24 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», adopted the August 13, 1999 document «Clarification of certain aspects of pre-electoral campaign propaganda activities in the electoral campaign period for the election of Deputies to the State Duma of the Federal Assembly of the Russian Federation in its third convocation» published in «Rossiyskaya Gazeta» a week later. Clause 9 of the document determined that, proceeding from the meaning of Articles 8, 52, 55-57 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», «...campaigning through the mass media (via the channels of television and radio organizations and through the print media) can only be conducted by registered candidates and electoral blocs who registered federal lists of candidates, and exclusively at the expense of their electoral fund». The CEC RF emphasized that no other participants in the electoral process «have the right to engage in election campaigning via the mass media».
The Ministry of the Press did not publish any official documents in connection with this, as far as I know, but the Minister himself and his Deputies have voiced their position in numerous print and broadcast interviews throughout October - November 1999. The position was simple: literal implementation of the provisions of Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», as demanded by the Central Election Commission, would actually amount to a moratorium on the freedom of the press in Russia, which the Ministry of the Press, naturally, cannot agree to.
The ministry even released a statement to the effect that it would initiate an application by the Government of the Russian Federation to the Constitutional Court of Russia in order to check whether the provisions under Article 8 of the given Federal Law comply with the constitutional rule under Article 29 of the Constitution of the Russian Federation, which guarantees the citizens of Russia freedom of speech.
However no such application, to our knowledge, has been forwarded. Instead, on October 29, 1999, the CEC RF filed with the Ministry of the Press a document entitled «On restraining unlawful election campaigning practices and bringing legal action against ORT television and its officials».
Proceeding from the provisions of Clause 7 Article 60 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation», the CEC RF suggested that the Ministry of the Press should «take measures to restrain the unlawful propaganda practices by the ORT broadcasting organization, relating to the production and broadcast of the weekly current affairs program «S. Dorenko's Own Program», and to bring legal action against the aforementioned organization and appropriate individuals in accordance with the current legislation of the Russian Federation».
That document provoked a fresh wave of attacks on the CEC RF for its policies, led by the ministry's champions of free press in Russia. The November 3, 1999 issue of «Vremya MN» newspaper, for one, carried the following eloquent quote from an interview with M. Lesin - Minister of the Press: «I would rather be demoted as a Minister than have my Ministry go down in history as a suppressor of the free press».
The tug-of-war had nearly come to a stalemate. High-level government officials were in heated debate over the matter. S. Dorenko, while being «stripped» by the Grand Jury of the Union of Journalists of Russia of the lofty title of journalist, continued his weekly current affairs program. Indignant viewers complained to various «authorities.» Journalists almost unanimously censured their colleague for his style, bad manners and the content of «Dorenko's own» TV compositions. Everyone had something to say, but nothing changed.
However, all things have a beginning and an end. Eventually, the problem with S. Dorenko was resolved somehow, with a major contribution being made by the December 3, 1999 expert opinion (No.15/60) issued by the Judicial Chamber in response to the application filed by O. K. Zaostrozhnaya - a CEC RF member.
Nevertheless, the problem of interpreting the legal rules governing election campaign propaganda practices persists. The goal pursued by the CEC RF's interpretation of those legal requirements appears quite clear and noble. Put another way, it boils down to the CEC RF seeking to assure, in terms of discipline and finances, «equal access to the mass media», as stipulated by Clause 3 Article 37 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum», for all relevant subjects, the registered candidates enjoying top priority.
The question, however, is whether we would be throwing the baby out with the bathwater : if such an interpretation of the election laws was thrown out, it might radically affect active participation in free election campaigning (guaranteed by the very same legal provisions) by people other than those registered to run by election commissions.
Therefore, the legal stance assumed on the matter by the Judicial Chamber and reflected in the December 7, 1999 statement (No.2/12) «On certain aspects of the legal and ethical standards of election campaigning to be observed by the campaign participants» has greater potential than that used in the past State Duma elections. It can serve as a solid foundation for further integrated efforts to find the right solution to this complicated problem.
Briefly, this legal stance may be broken down into the following points.
- The big question in all elections is who to vote for? How free and informed the electorate's search for an answer to this question will be depends very much on the mass media - the principal means used by citizens of the Russian Federation, political associations and other parties in the electoral process to exercise their right to election campaigning.
- Such major political events as parliamentary or Presidential elections must be accompanied by broad public debates, a comparison of views, ideas and political positions of campaign participants.
- Journalists and editors of mass media arrange, and often participate in, such public debates, which is, of course, in good order. And the fact that this sort of journalism may contain elements of campaign propaganda within the provisions of Article 2 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum», of Article 8 of the Federal Law «On the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation» or Article 8 of the Federal Law «On Electing the President of the Russian Federation», according to the Judicial Chamber, does not and should not serve as legal grounds for banning this kind of activity.
- According to electoral legislation, campaigning is a special informational and legal regime established by the state that enables registered campaign participants to access the mass media within fixed timelines, in order to inform the electorate of the principal points of their political platforms. This is what the principle of equal access to the media means. This also explains why the campaigning activities pursued by such parties in the electoral process as registered candidates etc., are regulated through the application of a range of legal procedures (drawing lots to allocate free and paid airtime and print space, special payment procedures for placing campaign propaganda materials, accountability requirements, etc).
- Essentially, the equal media access rule for registered candidates under Clause 3 Article 37 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» means that each of them has the right to receive the same amount of print space or airtime on equal terms (payments, timing, etc.) within the law-established quotas.
- Clause 5 Article 37 of the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum» holds a closed list of office holders, institutions and organizations barred from engaging in election campaigning activities. The list includes neither reporters nor mass media organizations. Obviously, if law-makers had regarded them as «inappropriate agents of electoral propaganda», they would have been entered on that list. Hence, the view that any media report, column or editorial containing elements of campaigning amounts to unlawful campaign propaganda because it is issued by an «inappropriate agent of electoral propaganda», has no legal grounds, and results from an overly formal and superficial interpretation of the law.
- Assessing media reports in the course of election campaigning, one should be governed by other, more subtle and substantive, criteria. Media materials should primarily be checked to see whether they fully comply with legal requirements stipulated by the civil and criminal codes of the Russian Federation, the Federal Law «On the Mass Media», and electoral legislation. Cases of non-compliance might include: the repeated and intentional dissemination of false information; distortion of information representing public interests; defamation of a candidate's honor, dignity and business reputation; discrimination based on ethnicity, sex, occupation etc.; slander and insults.
- Many aspects of election coverage in the media should be evaluated not only in legal terms but also from the standpoint of professional journalistic ethics. Thus, the Charter of Russian Television and Radio Broadcasters adopted in 1999, forbids media campaigns aimed at discrediting persons or organizations; and obligates broadcasters to air their criticisms and responses to those criticisms together and in the same format. The Declaration of Russian journalists in support of free and fair elections in 1999 proclaims the same principles.
- To sum up, I would like to emphasize my main idea: only the reasonable application of legal rules and ethical standards by all participants in the electoral process will produce the much desired political and informational campaigning culture.
Viktor Monakhov,
Vice Chairman, Judicial Chamber for Information Disputes
under the President of the Russian Federation
8 The State-owned TV and Radio Company.
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