38
ORLOVSKAYA ISKRA v. RUSSIA JUDGMENT
119. At this juncture the Court finds it necessary to deal with the
Government’s submission before the Court that may be understood as
suggesting that the applicant organisation was an affiliated partisan mass
media outlet that published a periodical whose stance was invariably
prejudiced against the United Russia Party, and that the impugned articles
were “campaigning material” commissioned by Mr Stroyev’s opponents,
meaning the Communist Party or its regional branch.
120. While taking note of the applicant’s Articles of incorporation (see
paragraph 6 above), the Court is not satisfied that there is enough to
substantiate that the editorial decisions were in fact taken by the Communist
Party or its local branch (compare Saliyev v. Russia, no. 35016/03, §§ 52-53
and 62-70, 21 October 2010). It has not been substantiated that the
impugned publications were (paid-for) political advertisements, rather than
“ordinary” journalistic work. There is no proof that any related arguments
were raised and examined in the domestic proceedings, in particular in
relation to ascertaining the presence of a campaign aim or other essential
elements of the offence. It follows from the available material that the
applicant organisation clearly specified on the front page of the periodical
its formal affiliation to a political party (the Communist Party) and also
clearly declared its readiness to publish material on the part of any political
party, electoral bloc or candidate in a specific election. While it is true that it
declared that the fees it announced would not “apply to the newspaper’s
founder”, as a matter of fact, the same fee was charged to the Communist
Party. Nothing in the domestic proceedings or before the Court discloses
that the impugned articles were among those mentioned in the contract
between the application organisation and the local branch of the Communist
Party.
121. The Court has no reason to consider that any candidates or political
parties were at the origin of the impugned articles (see, by comparison,
Andrushko, cited above, § 45, where a candidate published a leaflet
concerning another candidate). Therefore, the Court concludes that the
publication of the impugned articles by the applicant organisation
constituted a fully-fledged exercise of its own freedom of expression,
namely the choice to publish the articles, thus imparting information to the
readers and potential voters (see Długołęcki v. Poland, no. 23806/03, § 42,
24 February 2009).
122. Bearing in mind the approach outlined in Animal Defenders
International, cited above, §§ 106-11, the Court will consider whether the
above regulatory framework and the effects it entailed in the present case
were in conformity with the Convention (see also Gorzelik and Others,
cited above, § 67).
123. The Court has had the benefit of reading the Russian Constitutional
Court rulings of 30 October 2003 and 16 June 2006, its decision of
25 December 2008 on the applicant organisation’s application, and a