November 04, 2010
This post has been written by Laurens Lavrysen, one of our colleagues at the Human Rights Centre.
On 21 October the European Court of Human Rights delivered the judgment Saliyev v. Russia. The case concerned an article in a municipal newspaper about the acquisition of shares in a local energy producing company – at that time part of a State holding. In that article the applicant, the president of a Russian NGO, alleged that the purchase was a crooked deal and that a high-level official was behind the transaction. About half of the copies of the newspaper were sent to subscribers and to libraries, the other half were given to a distributing company. However, the same day the distributing company withdrew these copies from the newsstands and later they were destroyed. Apparently this was done at request of the editor-in-chief of the newspaper out of fear of possible sanctions related to the content of the applicant’s article. Saliyev complained that the withdrawal violated his freedom of expression. The Strasbourg Court agreed that there was a violation of art. 10 ECHR, the reasoning behind that conclusion was however of a very poor nature. Let’s have a closer look.
First of all, the Court had to decide whether the withdrawal interfered with the applicant’s freedom of expression. If the editor had refused the article in the first place, this would have been a matter of the “right of access to the press”, which enjoys only “minimal, if any, protection under the Convention”. The article was however “already in the public domain”, the Court stated that “for the purposes of Article 10, after publication of the article, any decision limiting the circulation of the applicant’s article should be regarded as an interference with his freedom of expression, notwithstanding the fact that it was taken by the editor-in-chief of the newspaper.” The Court also noted that “the newspapers were withdrawn because of the content of the applicant’s article.” Accordingly the Court concluded that there has been an interference with art. 10.
Next, the Court had to assure whether the interference could be attributed to the Russian State. The withdrawal was ordered by the editor-in-chief of the municipal newspaper. The criteria to determine to what extent the municipal newspaper could be equated to the municipality, were the ones developed in the admissibility decision Radio France and Others v. France (2003). “In order to determine whether any given legal person other than a territorial authority falls within the category of ‘governmental organisations’, account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities.”
The newspaper was incorporated as a separate legal entity and, in theory, the editorial board enjoyed a freedom in deciding what to publish and the municipality could not oblige the newspaper to publish particular material. The newspaper was however set up to provide a public service in the form of a municipal institution, its real property and equipment belonged to the municipality, the editor-in-chief was appointed and paid by the municipality, the municipality’s funding was the newspaper’s main source of income and the municipality had the right to set certain “strategic” targets. According to the Court, the editor had a dual role: on the one hand he was a professional journalist and on the other hand he was required to ensure the loyalty of his newspaper to the municipality. The Court concluded that the decision to withdraw the newspapers could be characterized as an act of policy-driven censorship and that he had implemented the general policy line of the municipality and had acted as its agent.
The Court accepted that the interference was prescribed by law and that it pursued a legitimate aim, but criticized the decisions by the domestic courts, who treated the situation “as just another purely business case, possibly coming within the ambit of Article 1 of Protocol no. 1 of the Convention, but not of Article 10 thereof.” Because the domestic courts “failed to examine the reasons for the withdrawal of the copies and to balance the applicant’s freedom of expression under Article 10 of the Convention against any other interests that may have been at stake”, “the decision-making process in this case was deficient from the standpoint of Article 10.” Moreover, the critical views expressed in the article were reasonably supported by facts which had never been challenged. The Court therefore concluded that the interference was not proportionate, in violation of art. 10.
I disagree with this judgment on two points. First of all, the distinction made between this situation and the apparently unprotected “right of access to the press” is quite artificial. Of course there is an interference with the freedom of expression when the government decides that the issue of a newspaper should be withdrawn. This case however concerned a withdrawal on the initiative of the editor of the newspaper itself. I don’t see why this should be a human rights issue any more than that denying somebody access to the press is. An editor can refuse the publication of an article without interfering with art. 10, the same should apply to the withdrawal on his initiative afterwards. The fact that an article is “already in the public domain” is not a sufficient justification to distinguish both situations.
Secondly, the Court too easily attributed the interference to the Russian State. It’s true that there existed strong institutional and economic links between the newspaper and the municipality. The most important factor, whether or not the editor enjoyed operational autonomy, was however not duly taken into account. The charter of the newspaper encompassed sufficient guarantees of independent operational management. Therefore it doesn’t seem logical that the Court concluded that the editor “implemented the general policy line of the municipality and acted as its agent.” In my opinion, the only correct result of the Radio France and Others v. France test would have been that the “interference” could not be attributed to a state authority. As long as operational independence is secured and no reasons are adduced to assume that a particular decision was not taken in full autonomy, there is not much reason to treat the editor of a municipally owned newspaper in this regard any differently than the editor of a private newspaper.
So what should have been the outcome of this case? When you take a closer look at the facts, a certain element appears to be quite suspicious. The editor of the newspaper initially gave the permission to publish the article, but changed his mind afterwards. Only three days after the withdrawal the editor resigned because he “was unable to perform his duties in a fully professional manner.” In my opinion, you can deduce from this fact the presumption that there actually has been pressure by the authorities to withdraw the newspapers. Not the withdrawal itself, but the pressure that caused it should have been regarded as an interference with the applicant’s freedom of expression. No strong reasons were adduced to conclude that this interference was proportionate, there was therefore a violation of art. 10.
The Court however did not make any reference to these circumstances while assessing the accountability of the Russian State. Neither Russia’s bad reputation concerning press freedom nor the probably correct outcome of the case could be regarded as an excuse for the Court to make such a sloppy motivation.