ORLOVSKAYA ISKRA v. RUSSIA JUDGMENT
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provisions of the Electoral Rights Act of 2002 were aimed at transparency
of elections, including campaign finances, as well as at enforcing the voters’
right to impartial, truthful and balanced information via mass media outlets
and the formation of their informed choices in an election. The Court will
take it into account as a legitimate aim.
105. The Court will next examine whether the restrictions in question
were “necessary” in the pursuit of that aim.
(d) Necessary in a democratic society
(i) General principles
106. The general principles concerning the question whether an
interference with freedom of expression is “necessary in a democratic
society” are well established in the Court’s case-law and have been
summarised as follows (see Animal Defenders International, cited above,
§ 100, with further references):
“(i) 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. Subject to paragraph 2 of Article 10, it is applicable not
only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or disturb. Such are
the demands of pluralism, tolerance and broadmindedness without which there is no
‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions,
which ... must, however, be construed strictly, and the need for any restrictions must
be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the
existence of a ‘pressing social need’. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court. The Court is therefore empowered to give
the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression
as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the
place of the competent national authorities but rather to review under Article 10 the
decisions they delivered pursuant to their power of appreciation. This does not mean
that the supervision is limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what the Court has to do is to
look at the interference complained of in the light of the case as a whole and
determine whether it was ‘proportionate to the legitimate aim pursued’ and whether
the reasons adduced by the national authorities to justify it are ‘relevant and
sufficient’... In doing so, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied in Article
10 and, moreover, that they relied on an acceptable assessment of the relevant facts
...”
107. The breadth of the margin of appreciation to be afforded to
domestic authorities depends on a number of factors, such as the type of the
expression at issue. There is little scope under Article 10 § 2 for restrictions