Translated material
Presidium of the Supreme Arbitration Court of Russia on anti-extremist warnings from the media
*We are publishing the texts of two decisions of the Presidium of the Supreme Arbitration Court in the case of the URA.RU news agency , which, we recall, received anti-extremist warnings from Roskomnadzor for the aggressive statements of readers on its forum.
The first decision (No. 7440/09) deals with the issue of violation of uniformity in the interpretation and application by arbitration courts of two laws - "On counteracting extremist activity" and "On the mass media".
Secondly (No. 7029/09) - the issue of violation of uniformity in the interpretation and application of only the law "On Counteracting Extremist Activities".
However, both statements are unambiguous:
challenging anti-extremist warnings issued by the media are not subject to arbitration courts, but must be considered in courts of general jurisdiction.
Thus, the decisions of the Presidium of the Supreme Arbitration Court, many years after the entry into force of anti-extremist legislation, finally determined the procedure for challenging such warnings, which until that time had been determined quite arbitrarily.
The texts of the rulings are reproduced from automated copies published on the official website of the Supreme Arbitration Court of Russia.*
THE HIGHEST ARBITRATION COURT OF THE RUSSIAN FEDERATION
RESOLUTION
Presidium of the Supreme Arbitration Court
Russian Federation
No. 7440/09
Moscow
October 6, 2009
Presidium of the Supreme Arbitration Court of the Russian Federation composed of:
presiding - Chairman of the Supreme Arbitration
of the Court of the Russian Federation Ivanova A.A.;
members of the Presidium: Andreeva T.K., Valyavina E.Yu., Vitryansky V.V., Vyshnyak N.G., Goryacheva Yu.Yu., Zavyalova T.V., Ivannikova N.P., Isaycheva V.N. , Kozlova O.A., Pershutova A.G., Sarbasha S.V., Slesareva V.L., Chistyakova A.I., Yukhneya M.F. -
considered the application of Ura.ru Limited Liability Company for a supervisory review of the decision of the Arbitration Court of the City of Moscow dated October 30, 2008 in case No. A40-58314 / 08-92-500, the decision of the Ninth Arbitration Court of Appeal dated Arbitration Court of the Moscow District dated April 27, 2009 in the same case.
The meeting was attended by representatives of:
from the limited liability company "Ura.ru" - Belyansky A.V., Panova O.R.;
from the Federal Service for Supervision in the Sphere of Communications, Information Technology and Mass Communications - Mazhinskaya N.G.
After hearing and discussing the report of Judge AI Chistyakov, as well as the explanations of the representatives of the persons involved in the case, the Presidium established the following.
Ura.ru Limited Liability Company (city of Yekaterinburg) (hereinafter referred to as the company) applied to the Moscow Arbitration Court with an application to invalidate the warning of the Federal Service for Supervision of Communications and Mass Media (hereinafter referred to as the administrative body) dated 15.08.2008 No. 15/792 issued in relation to the editorial office of the URA.Ru news agency (hereinafter referred to as the editorial board) and its founder - the company - on the inadmissibility of actions to distribute materials containing signs of extremism.
By the decision of the Arbitration Court of the City of Moscow dated October 30, 2008, the stated claim was denied.
By the decision of the Ninth Arbitration Court of Appeal dated January 14, 2009, the decision of the court of first instance was upheld.
The Federal Arbitration Court of the Moscow District, by its decision of April 27, 2009, upheld the decision of the court of first instance and the decision of the court of appeal.
In an application filed with the Supreme Arbitration Court of the Russian Federation for the review of these judicial acts by way of supervision, the company asks them to be canceled, referring to a violation of uniformity in the interpretation and application by arbitration courts of Federal Law No. 114-FZ of July 25, 2002 "On countering extremist activity" (hereinafter referred to as the Law on Combating Extremism) and Federal Law No. 2124-1 of December 27, 1991 "On Mass Media" (hereinafter referred to as the Law on Mass Media).
In response to the application, the administrative body asks that the said judicial acts be left unchanged as they comply with the current legislation.
Having checked the validity of the arguments set forth in the application, the response to it and the speeches of the representatives of the persons participating in the case present at the meeting, the Presidium considers that the contested judicial acts are subject to cancellation, the case - to be sent for a new consideration on the following grounds.
The administrative body checked the compliance of the editorial office with the legislation in the field of mass media and mass communications, as a result of which it was established that the editorial office disseminated on the Internet (at http://www.ura.ru/forum/thread/33817) materials of an aggressive nature, containing public calls for active action, violence and physical destruction of groups of persons serving in law enforcement agencies.
Having come to the conclusion that the material posted on the Internet on the editorial website is of an extremist nature, the administrative body issued, as required by Article 8 of the Law on Combating Extremism, a warning against the editorial office and its founder about the inadmissibility of distributing materials with signs of extremism.
The company, believing that this warning does not meet the requirements of the Mass Media Law, violates its rights and interests, based on Article 198 of the Arbitration Procedure Code of the Russian Federation, appealed against it as a non-normative legal act to the arbitration court.
The Court of First Instance considered the dispute on the merits and denied the company's application.
The courts of appeal and cassation agreed with the conclusions of the court of first instance.
Meanwhile, the conclusions of the courts are based on an incorrect interpretation of the law.
By virtue of paragraph 2 of Article 29 of the Arbitration Procedure Code of the Russian Federation, arbitration courts have jurisdiction over economic disputes arising from administrative and other public legal relations and other cases related to the implementation of entrepreneurial and other economic activities by organizations and citizens.
It follows from the materials of the case that the administrative body issued a disputed warning against the editorial office and its founder (company) in connection with the violation of the law on countering extremist activity.
The warning is aimed at suppressing and preventing extremist activity and the dissemination of information (materials) of an extremist nature, that is, actions performed without regard to entrepreneurial or other economic activity, and therefore not related to the categories of offenses in this area.
In accordance with Part 3 of Article 198 of the Arbitration Procedure Code of the Russian Federation, applications for invalidating non-normative legal acts, decisions and actions (inaction) are considered illegal in an arbitration court, if their consideration in accordance with federal law is not within the competence of other courts.
As follows from the provisions of the Mass Media Law and the Law on Combating Extremism, consideration of cases related to the dissemination of extremist materials through the media and the implementation of extremist activities is not referred to the jurisdiction of the arbitration court.
Under these circumstances, the contested judicial acts violate the uniformity in the interpretation and application of the rules of law by arbitration courts, therefore, in accordance with paragraph 1 of Article 304 of the Arbitration Procedure Code of the Russian Federation, they are subject to cancellation.
Meanwhile, according to the established practice of the European Court of Human Rights, the opportunity to initiate civil proceedings is one of the aspects of the right to a court, provided for in paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It follows from the explanations of the representative of the company that the company applied to the Kirovsky District Court of the city of Yekaterinburg with an application to appeal the warning of the administrative body, but the court refused to accept the application due to the lack of jurisdiction of the case to a court of general jurisdiction.
Since it is clear from the case file that this issue was not investigated by the arbitration court, the case is subject to redirection for a new trial.
During a new consideration of the case, in order to determine the competence of the arbitration court in this case and in order to ensure the applicant's right to judicial protection, the court should find out whether the company filed an application to challenge the said warning to a court of general jurisdiction, whether it exercised the rights provided for by the Civil Procedure Code of the Russian Federation under appeal against the judicial act on the refusal to accept the application, whether it has lost the opportunity to consider the case in a court of general jurisdiction.
If these conditions are not met, the case is not subject to consideration in the arbitration court on the merits of the stated requirements.
Considering the foregoing and guided by Article 303, Clause 2 of Part 1 of Article 305, Article 306 of the Arbitration Procedure Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation
RESOLVED:
the decision of the Arbitration Court of the City of Moscow dated October 30, 2008 in case No. A40-58314 / 08-92-500, the decision of the Ninth Arbitration Court of Appeal dated January 14, 2009 and the decision of the Federal Arbitration Court of the Moscow District dated April 27, 2009 in the same case, cancel.
Send the case for a new trial to the Moscow Arbitration Court.
presiding A.A. Ivanov
THE HIGHEST ARBITRATION COURT OF THE RUSSIAN FEDERATION
RESOLUTION
Presidium of the Supreme Arbitration Court
Russian Federation
No. 7029/09
Moscow
October 6, 2009
Presidium of the Supreme Arbitration Court of the Russian Federation composed of:
presiding - Chairman of the Supreme Arbitration Court of the Russian Federation Ivanov A.A.;
members of the Presidium: Andreeva T.K., Valyavina E.Yu., Vitryansky V.V., Vyshnyak N.G., Goryacheva Yu.Yu., Zavyalova T.V., Ivannikova N.P., Isaycheva V.N. , Kozlova O.A., Pershutova A.G., Sarbasha S.V., Slesareva V.L., Chistyakova A.I., Yukhneya M.F. -
considered the application of Ura.ru Limited Liability Company for a supervisory review of the decision of the Arbitration Court of the City of Moscow dated October 30, 2008 in case No. A40-55996 / 08-72-529, the decision of the Ninth Arbitration Court of Appeal dated Arbitration Court of the Moscow District dated April 27, 2009 in the same case.
The meeting was attended by representatives of:
from the limited liability company "Ura.ru" - Belyansky A.V., Panova O.R.;
from the Federal Service for Supervision in the Sphere of Communications, Information Technology and Mass Communications - Mazhinskaya N.G.
After hearing and discussing the report of Judge AI Chistyakov, as well as the explanations of the representatives of the persons involved in the case, the Presidium established the following.
Ura.ru Limited Liability Company (city of Yekaterinburg) (hereinafter referred to as the company) applied to the Arbitration Court of the city of Moscow with an application to invalidate the warning of the Federal Service for Supervision of Communications and Mass Media (hereinafter referred to as the administrative body) dated 07.07.2008 No. 1/47 issued in relation to the editorial office of the URA.Ru news agency (hereinafter referred to as the editorial board) and its founder - the company - on the inadmissibility of actions to distribute materials containing signs of extremism.
By the decision of the Arbitration Court of the City of Moscow dated October 30, 2008, the stated claim was denied.
By the decision of the Ninth Arbitration Court of Appeal dated January 19, 2009, the decision of the court of first instance was upheld.
The Federal Arbitration Court of the Moscow District, by its decision of April 27, 2009, upheld the decision of the court of first instance and the decision of the court of appeal.
In an application filed with the Supreme Arbitration Court of the Russian Federation for the review of these judicial acts by way of supervision, the company asks them to be canceled, referring to a violation of uniformity in the interpretation and application by arbitration courts of Article 8 of Federal Law No. 114-FZ dated 25.07. activities" (hereinafter referred to as the Law on Combating Extremism).
In response to the application, the administrative body asks that the said judicial acts be left unchanged as they comply with the current legislation.
Having checked the validity of the arguments set forth in the application, the response to it and the speeches of the representatives of the persons participating in the case present at the meeting, the Presidium considers that the contested judicial acts are subject to cancellation, the case - to be sent for a new consideration on the following grounds.
The administrative body checked the compliance of the editorial office with the legislation in the field of mass media and mass communications, as a result of which it was established that the editorial office disseminated on the Internet (at http://www.ura.ru/forum/thread/29988) materials of an aggressive nature, containing public calls for active action, violence and physical destruction of groups of people on a national basis, inciting national hatred.
Having come to the conclusion that the material posted on the Internet on the website of the editorial office is of an extremist nature, the administrative body issued, as required by Article 8 of the Law on Combating Extremism, a warning against the editorial office and its founder about the inadmissibility of distributing materials with signs of extremism.
The Company, believing that this warning does not comply with the requirements of the Federal Law of December 27, 1991 No. 2124-1 "On the Mass Media" (hereinafter referred to as the Mass Media Law), violates its rights and interests, based on Article 198 of the Arbitration Procedure Code of the Russian Federation, challenged it as a non-normative legal act in the arbitration court.
The Court of First Instance considered the dispute on the merits and denied the company's application.
The courts of appeal and cassation agreed with the conclusions of the court of first instance.
Meanwhile, the conclusions of the courts are based on an incorrect interpretation of the law.
By virtue of paragraph 2 of Article 29 of the Arbitration Procedure Code of the Russian Federation, arbitration courts have jurisdiction over economic disputes arising from administrative and other public legal relations and other cases related to the implementation of entrepreneurial and other economic activities by organizations and citizens.
It follows from the materials of the case that the administrative body issued a disputed warning against the editorial office and its founder (company) in connection with the violation of the law on countering extremist activity.
The warning is aimed at suppressing and preventing extremist activity and the dissemination of information (materials) of an extremist nature, that is, actions performed without regard to entrepreneurial or other economic activity, and therefore not related to the categories of offenses in this area.
In accordance with Part 3 of Article 198 of the Arbitration Procedure Code of the Russian Federation, applications for invalidating non-normative legal acts, decisions and actions (inaction) are considered illegal in an arbitration court, if their consideration in accordance with federal law is not within the competence of other courts.
As follows from the provisions of the Mass Media Law and the Law on Combating Extremism, consideration of cases related to the dissemination of extremist materials through the media and the implementation of extremist activities is not referred to the jurisdiction of the arbitration court.
Under these circumstances, the contested judicial acts violate the uniformity in the interpretation and application of the rules of law by arbitration courts, therefore, in accordance with paragraph 1 of Article 304 of the Arbitration Procedure Code of the Russian Federation, they are subject to cancellation.
Meanwhile, according to the established practice of the European Court of Human Rights, the opportunity to initiate civil proceedings is one of the aspects of the right to a court, provided for in paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
It follows from the explanations of the representative of the company that the company applied to the Kirovsky District Court of the city of Yekaterinburg with an application to appeal the warning of the administrative body, but the court refused to accept the application due to the lack of jurisdiction of the case to a court of general jurisdiction.
Since it is clear from the case file that this issue was not investigated by the arbitration court, the case is subject to redirection for a new trial.
During a new consideration of the case, in order to determine the competence of the arbitration court in this case and in order to ensure the applicant's right to judicial protection, the court should find out whether the company filed an application to challenge the said warning to a court of general jurisdiction, whether it exercised the rights provided for by the Civil Procedure Code of the Russian Federation under appeal against the judicial act on the refusal to accept the application, whether it has lost the opportunity to consider the case in a court of general jurisdiction.
If these conditions are not met, the case is not subject to consideration in the arbitration court on the merits of the stated requirements.
Considering the foregoing and guided by Article 303, Clause 2 of Part 1 of Article 305, Article 306 of the Arbitration Procedure Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation
RESOLVED:
the decision of the Arbitration Court of the City of Moscow dated October 30, 2008 in case No. A40-55996 / 08-72-529, the decision of the Ninth Arbitration Court of Appeal dated January 19, 2009 and the decision of the Federal Arbitration Court of the Moscow District dated April 27, 2009 in the same case, cancel.
Send the case for a new trial to the Moscow Arbitration Court.
presiding A.A. Ivanov
Official website of the EAC of Russia.