Regional Russian Media Regulations
Global Campaign for Free Expression
London, August 2001
This memorandum analyses the following Russian regional media regulations for compliance with international standards on the right to freedom of expression:
The first three of these documents deal with the accreditation of journalists to report on the proceedings at regional legislative or executive bodies. The Belgorod Administration Head Ruling and the Tambov Region Administration Decree seek to impose further control over the editorial boards of local and regional newspapers. The Ryazan City Council ruling bans the sale of newspapers and other print periodicals near state-run newspaper kiosks, and the Decree by the Governor of the Kursk Region limits access to official financial information in the Kursk Region.
This memorandum will first briefly outline international standards on freedom of expression. It then discusses the above regulations in detail, analysing each against international legal standards.
The Russian Federation is a party to the International Covenant on Civil and Political Rights (ICCPR)1 and on 5 May 1998 ratified the European Convention on Human Right (ECHR). 2 Article 19 of the ICCPR and Article 10 of the ECHR protect freedom of expression in similar terms. Article 10(1) of the ECHR states:
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.
International bodies and courts have made it very clear that freedom of expression and information is one of the most important human rights. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which states: 3
Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.
The overriding importance of international human rights guarantees is formally recognised in the Russian Constitution. Article 15(4) of the Constitution states:
The commonly recognised principles and norms of the international law and the international treaties of the Russian Federation are a component part of its legal system. If an international treaty of the Russian Federation stipulates other rules than those stipulated by the law, the rules of the international treaty apply.
Thus, where Russian federal or regional law clashes with provisions of international human rights law, the latter takes precedence. As well as recognising the overriding character of international human rights law, the Constitution itself also protects human rights.4 Freedom of expression is explicitly protected in Article 29 which states:
1. Everyone shall have the right to freedom of thought and speech.
4. Everyone shall have the right to seek, get, transfer, produce and disseminate information by any lawful means. The list of information constituting the state secret shall be established by the federal law.
5. The freedom of the mass media shall be guaranteed. Censorship shall be prohibited.
As the UN General Assembly Resolution already noted in 1946, freedom of expression, including freedom of information, is both fundamentally important in its own right and is also key to the fulfilment of all other rights. It is only in societies where the free flow of information and ideas is permitted that democracy can flourish. In addition, freedom of expression is essential if violations of human rights are to be exposed and challenged. The press plays a crucial role in promoting the free flow of information and ideas.
The particular importance in a democratic society of freedom of expression has been stressed many times by international human rights courts. For example, the European Court of Human Rights has stated, in a quotation which now features in almost all its cases involving freedom of expression:
[F]reedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.5
This has been affirmed by both the UN Human Rights Committee and the Inter American Court of Human Rights which stated:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. ... [I]t can be said that a society that is not well informed is not a society that is truly free.6
International law does permit some restrictions on the right to freedom of expression and information in order to protect various private and public interests. The parameters of such restrictions are provided for in both Article 19 of the ICCPR and Article 10 of the ECHR. Article 10(2) of the ECHR states:
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, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.
Thus, a restriction on the right to freedom of expression must meet a strict three part test. This test, which has been confirmed by both the Human Rights Committee7 and the European Court of Human Rights,8 requires that any restriction must be provided by law, be for the purpose of safeguarding a legitimate interest, and be ‘necessary’ to secure this interest.
The first condition, that any restrictions should be ‘provided by law’, is not satisfied merely by setting out the restriction in domestic law. Legislation must itself be in accordance with human rights principles set out in the ICCPR.9 The European Court of Human Rights, in its jurisprudence on the similarly worded ECHR provisions on freedom of expression,10 has developed two fundamental requirements:
First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen 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.11
The second condition requires that legislative measures restricting free expression must truly pursue one of the aims listed in Paragraph 3, namely the rights or reputations of others or the protection of national security, public order (‘ordre public’) or of public health or morals.
The third condition means that even measures which seek to protect a legitimate interest must meet the requisite standard established by the term "necessary". The European Court of Human Rights has established that this is a very strict test:
‘[The adjective ‘necessary’] is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable”. [It] implies the existence of a “pressing social need”.12
Furthermore, any restriction must restrict freedom of expression as little as possible.13 The measures adopted must be carefully designed to achieve the objective in question, and they should not be arbitrary, unfair or based on irrational considerations.14 Vague or broadly defined restrictions, even if they satisfy the “provided by law” criterion, are unacceptable because they go beyond what is strictly required to protect the legitimate interest.
Finally, the right to freedom of expression not only imposes on the State a negative obligation to abstain from interfering with rights. Under international law, the State also has to take positive measures to ensure that rights, including freedom of expression, are respected. Article 1 of the ICCPR places an obligation on States to “adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant.”15 The European Court of Human Rights has explicitly recognised the need for positive measures to give effect to rights, stating: “Genuine effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection even in the sphere of relations between individuals.”16
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