"Yakutsk Evening": a selection of court documents

We are publishing a selection of arbitration court decisions in the case of the Yakutsk Vecherniy newspaper, which tried to challenge the anti-extremist warning.

The texts of court decisions are reproduced according to the official publication on the website of the Supreme Arbitration Court. Of them. For ethical reasons, personal data has been removed.

• Decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated July 3, 2009
• Resolution of the Fourth Arbitration Court of Appeal dated August 31, 2009
• Decree of the Federal Arbitration Court of the East Siberian District of December 7, 2009

** ARBITRATION COURT OF THE REPUBLIC OF SAKHA (YAKUTIA)

IN THE NAME OF THE RUSSIAN FEDERATION

SOLUTION**

Yakutsk

Case No. А58-3258/2009

July 03, 2009

The operative part of the decision was announced on June 23, 2009. The full text of the decision was made on July 03, 2009.

The Arbitration Court of the Republic of Sakha (Yakutia) , composed of Judge Ustinova A.N., having considered in open court the case on the application of the Limited Liability Company "Vesti" to the Office of the Federal Service for Supervision of Communications and Mass Communications in the Republic of Sakha (Yakutia) on invalidating the warning dated 11.02.2009. No. 07-08 / 36-01 with the participation of a third party who does not declare independent claims regarding the subject of the dispute on the side of the applicant, the editorial office of the Yakutsk Vecherniy newspaper, drawing up a protocol in accordance with Part 3 of Art. 155 Arbitration Procedure Code of the Russian Federation, with the participation of representatives: LLC - Mironova L.The. by proxy dated 22.06.2009, Management - Kirillova O.V. by power of attorney dated May 27, 2009. No. 24, 3rd person Obedina V.V. and about. editor-in-chief by order of December 30, 2008. No. 95, installed :

Vesti Limited Liability Company - further, the Company applied to the Office of the Federal Service for Supervision of Communications and Mass Communications in the Republic of Sakha (Yakutia) - further, the Office with a statement on recognizing the warning dated 11.02.2009 as illegal. No. 07-08/36-01 issued in respect of the Company as the founder of the Yakutsk Vecherniy newspaper.

In support of the statement, the Company refers to the fact that the founder, in accordance with Article 18 of the Law of the Russian Federation "On the Mass Media", is not entitled to interfere in the creative activities of the media and is liable only for claims and lawsuits related to the statement of the founder himself; the fact of publishing a controversial article (an interview of the journalist E. Kiseleva with the poet Sofron Osipov "Why I was known as a brawler" in the newspaper "Yakutsk Vecherniy" (No. 4 (746) dated 01/30/2009) at the request or statement of the founder of the media was not confirmed by the materials of the case; Society cannot be held responsible for the activities of the media on the fact of violations of articles 4, 19, 26, 51 of the Law of the Russian Federation "On the Mass Media", there is no causal relationship between the expression of the will of the Company and the appearance of this article.

The interested person - the Department submitted a response to the Company's statement (case sheets 28 - 29), an addition to the response (case sheets 61 - 63), in which the Department does not agree with the Company's requirement on the following grounds: The Department is vested with the authority to issue a warning on the facts of violation of the legislation of the Russian Federation by the mass media registered by the Office; The Administration as a registering body, by virtue of the requirements of Article 16 of the Law of the Russian Federation "On the Mass Media", has the right to issue a written warning about violations of Article 4 of the said law to the founder and (or) editorial board (editor-in-chief) of the media; by virtue of the requirements of Article 18 of the Mass Media Law, the founder is not entitled to interfere in the activities of the media, except as provided by this law, the editorial charter; in accordance with Article 18 of the Mass Media Law, the founder approves the editorial charter, a copy of the editorial charter is sent to the registering authority no later than three months from the date of the first publication (broadcast) of this mass media, the registration file of the Yakutsk Vecherniy newspaper contains the editorial charter newspaper, adopted at the general meeting of the team of journalists on 01.09.1999. and approved by the General Director of the Company - the founder of the newspaper on 09/02/1999; it follows from the content of the specified statute that the founder of the newspaper is vested with the authority to manage the editorial office, to impose disciplinary measures both on the editor-in-chief of the newspaper and on staff members of the editorial office; currently, the current legislation does not establish a mechanism for preparing, issuing and issuing a written warning to the media in case of violation of Article 4 of the Law of the Russian Federation "On the Mass Media" and the Federal Law "On Counteracting Extremist Activity"; in issuing a written warning to the founder of the Yakutsk Vecherniy newspaper Vesti LLC, the Administration was guided by Article 16 of the Law of the Russian Federation "On Mass Media" and the Charter of the editorial office of the Yakutsk Vecherniy newspaper dated 09/02/1999, which defines the powers of the founder.

The company submitted additions to the application (case files 71 - 72, 80) - a written warning is of a coercive-disciplinary nature, however, the current legislation does not contain provisions regulating the possibility of issuing a measure of a coercive-disciplinary nature through and on the basis of recommendatory decisions of various public bodies and advice; 1999 editorial charter is unreliable; the text of the warning refers to a journalist, editor-in-chief, editorial office of the newspaper, but the warning was issued to a completely different person, whose attitude to the controversial publication has not been confirmed by anyone or anything; the warning issued by the Office is a measure of state coercion, illegally imposes on the Company the obligation to take disciplinary measures against persons endowed with a special status of a journalist, which contradicts the statute of the media editorial office and the text of the warning was posted on the official website of the Office and received wide publicity, causing damage to the reputation of the Company; reference to Article 16 of the Law of the Russian Federation "On the Mass Media" is untenable, since the warning to the founder of the media as an independent type of liability is not directly provided for by the current legislation, the founder's fault in the release of the controversial publication was not confirmed, the founder in accordance with the Charter of the Mass Media and Article 18 of the Law of the Russian Federation O SMI is deprived of the opportunity to interfere in the creative activities of the newspaper's editorial office; the fact that the controversial publication was recognized as extremist material was not confirmed; The Law of the Russian Federation "On Mass Media" does not establish an independent type of liability in the form of issuing a written warning to the founder of the media editorial office, however, Article 16 of the Law stipulates the possibility of issuing a written warning to the founder in case the editorial office violates the requirements of Article 4 of the Law; in conjunction with part 3 of article 16 and part 2 of article 18 of the Law, the legislator considers the legal justification for the founder’s liability, the fact that the controversial publication was placed at the request of the founder has not been proven by the Office, therefore, there are no legal grounds for holding the Company liable.

At the hearing on June 11, 2009 The department filed a petition (case file 81) in accordance with Article 161 of the Arbitration Procedure Code of the Russian Federation on the falsification of evidence - the Charter of the editorial office of the mass media of the newspaper "Yakutsk Vecherniy" dated 03.04.2001. (case file 21 - 24).

The court, in the manner prescribed by Article 161 of the Arbitration Procedure Code of the Russian Federation, allowed the application of the Office (minutes of the court session dated 06/11/2009 - case file 88, minutes of the court session dated 06/23/2009), to verify the validity of the statement about the falsification of evidence by the court ruling court dated June 11, 2009. a third party was involved, not declaring independent claims regarding the subject of the dispute, on the side of the applicant - the editorial office of the mass media newspaper "Yakutsk Vecherniy".

And about. editor-in-chief of the mass media of the newspaper "Yakutsk Vecherniy" at the court session on 23.06.2009. provided a written explanation of the address mismatch.

The applicant, Vesti LLC, also submitted a written explanation of the Department's statement about the falsification of evidence (submitted to the court on 22.06.2009).

The court, taking into account the submitted written explanations, the submission by the applicant to the court of the original Charter of the mass media of the newspaper "Yakutsk Vecherny" dated 03.04.2001, identical with the copy attached to the case file (case files 21 - 24), rejected the application of the Office (minutes of the court session dated June 23, 2009).

The court established the circumstances of the case.

The newspaper "Yakutsk Vecherniy" was registered on September 15, 1994. (case sheet 70), due to the change in the composition of the founders and the organizational and legal form of the founder, it was re-registered, a certificate of registration of the mass media PI No. 19-0290 of 03.04.2001 was issued. (case sheet 20), the founder of the newspaper's media is the Limited Liability Company "Vesti", the newspaper has a charter for the editorial office of the media, adopted at the general meeting of the team of journalists on April 3, 2001, approved by the general director of the Limited Liability Company "Vesti" (l. d. 21 - 24).

Leading Specialist-Expert of the Office E.E. Sivtseva, addressed to the head of the Department, a memorandum was submitted on the permission to conduct an unscheduled inspection of the editorial office of the newspaper for compliance with the legislation of the Russian Federation on the media (case file 64).

Head of the Department on 02.02.2009 Order No. 20 was issued on the conduct of state control and supervision in relation to the media editorial office of the Yakutsk Vecherniy newspaper (case sheets 65 - 66).

The representative of the Company received a notice dated 02.02.2009. about carrying out a planned control measure in relation to the newspaper "Yakutsk Vecherniy" (case file 67).

Based on the results of the inspection, an act of an unscheduled inspection to monitor compliance with the legislation of the Russian Federation in the field of mass media was drawn up by the editors of the newspaper "Yakutsk Vecherniy" dated 11.02.2009. (case sheet 56 - 58), in which it is established that the content of the material is an interview of the journalist Elena Kiseleva with the poet Sofron Osipov "Why I was known as a brawler", published in the newspaper "Yakutsk Vecherniy" (No. 4 (746) dated 30.01. 2009) there are signs of insult, humiliation of the national dignity of representatives of the Russian nationality living on the territory of the republic, this material contains statements about the superiority of one nation due to the depravity of another, expressed in the dissemination of incorrect fabrications and information about their history, culture, psychological makeup, violated article 4 of the Law of the Russian Federation No. 2124-1 of December 27, 1991 "On the Mass Media", the responsibility lies with the editorial office of the newspaper "Yakutsk Vecherniy".

As part of the audit, Acting The editor-in-chief of the media of the newspaper "Yakutsk Vecherniy" gave an explanation dated 03.02.2009. (case sheet 59).

The department issued a warning to the founder of the newspaper "Yakutsk Vecherny" registration certificate PI No. 19-0290 dated 03.04.2001. (ld 5 - 6).

As follows from the content of the warning, it was issued by the Department following the results of mass media monitoring - the Department saw in the article - an interview of journalist E. Kiseleva with the poet S. Osipov "Why I was known as a brawler" (newspaper "Yakutsk Vecherniy" No. 4 (746) dated 30.01 .2009) signs of insult, humiliation of the national dignity of representatives of the Russian nationality living on the territory of the republic, according to the Office, the article contains statements about the superiority of one nation due to the depravity of another, expressed in the dissemination of incorrect fabrications and information about their history, culture, psychological warehouse, the publication in its content violates articles 4, 19, 26, 51 of the Law of the Russian Federation No. 2124-1 dated 12/27/1991. "On the Mass Media", the Department believes that the journalist violated the requirements of Part 2 of Article 51 of the Law of the Russian Federation "On the Mass Media", the editor-in-chief, in accordance with Article 19 of the Law of the Russian Federation "On the Mass Media", is responsible for fulfilling the requirements for the activities of the media by the above Law and others legislative acts of the Russian Federation, the appearance of an article in the newspaper indicates a weakening of control on the part of the editor-in-chief when obtaining permission to disseminate information for publication (Article 26 of the Law "On Mass Media"), the editorial office of the newspaper, distributing such publications through the media, contributes to inciting and manifesting interethnic discord, can contribute to the emergence of offenses based on interethnic hostility, which can be a destabilizing factor in a multinational republic.

The operative part of the warning states that the Office, guided by clause 9.4. Regulations on the Administration of 08.08.2008, articles 4, 16 of the Law of the Russian Federation "On the Mass Media", warns of the inadmissibility of future violations of the requirements of the legislation on the media by the editors of the Yakutsk Vecherniy newspaper, in the event of repeated violations by the editors of the requirements of Article 4 of the legislation within 12 months of the Russian Federation on the Media The Department will take measures up to the termination of the activities of the media in court (Article 16 of the Law of the Russian Federation "On the Mass Media"), the Department proposes to take disciplinary measures against persons who allowed the article "Why I was known as a brawler" to appear in the newspaper, on time By March 25, it is necessary to submit information on the elimination of violations of the media legislation.

Having studied the materials of the case, having considered the arguments of the Society, the objections of the Administration, the court comes to the following conclusions.

In accordance with Article 13 of the Civil Code of the Russian Federation, a non-normative act of a state body or local self-government body, and in cases provided for by law, also a normative act that does not comply with the law and violates the civil rights and legally protected interests of a citizen or legal entity, may be declared invalid by a court .

In accordance with Part 1 of Article 198 of the Arbitration Procedure Code of the Russian Federation, citizens, organizations and other persons have the right to apply to an arbitration court with an application for invalidating non-normative legal acts, illegal decisions and actions (inaction) of state bodies, local government bodies, other bodies, officials persons, if they believe that the disputed non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of entrepreneurial and other economic activities, illegally impose any obligations on them, create other obstacles to the implementation of entrepreneurial and other economic activities.

In accordance with the provisions of parts 4, 5 of Article 200 of the Arbitration Procedure Code of the Russian Federation, when considering cases on contesting non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, officials, the arbitration court in a court session checks the contested act or its individual provisions, contested decisions and actions (omissions) and establishes their compliance with the law or other regulatory legal act, establishes the authority of the body or person that adopted the contested act, decision or committed the contested actions (omissions), and also establishes whether they violate contested act, decision and actions (inaction) the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities. The obligation to prove the compliance of the disputed non-normative legal act with the law or other regulatory legal act, the legality of the contested decision, the contested actions (inaction), as well as the circumstances that served as the basis for the adoption of the contested act, decision, contested actions (inaction), shall be assigned to the body or a person who has adopted an act, decision or action (inaction).

In accordance with the Regulations on the Office of the Federal Service for Supervision of Communications and Mass Media in the Republic of Sakha (Yakutia) (case 35 - 45), the Office is a state body that exercises control and supervision functions in the field of information technology, communications (in including postal), mass communications and mass media (including electronic), the functions of control and supervision over the compliance of the processing of personal data with the requirements of the legislation of the Russian Federation in the field of personal data.

According to paragraph 8 of the Regulations, the Department organizes and exercises, in the prescribed manner, state control and supervision over the activities of legal entities, individual entrepreneurs and individuals in the established field of activity, including compliance with the legislation of the Russian Federation in the field of mass media, mass communications, television broadcasting, radio broadcasting .

In accordance with clause 9 of the Regulations, in order to exercise its powers, the Department has the right, among other things, to issue warnings on violations of the legislation of the Russian Federation to the mass media registered by the Department.

Taking into account the above paragraphs of the Regulations on the Office of the Federal Service for Supervision in the Sphere of Communications and Mass Media in the Republic of Sakha (Yakutia), the court concludes that the disputed warning was issued by the Office within its powers.

Meanwhile, the court considers that the disputed warning does not comply with the provisions of the Law of the Russian Federation "On the Mass Media" and violates the rights and legitimate interests of the Company.

Article 18 of the Law of the Russian Federation "On the Mass Media" defines the status of the founder of the mass media - the founder approves the editorial charter and (or) concludes an agreement with the editorial office of the mass media (editor-in-chief); the founder has the right to oblige the editorial office to place free of charge and within the specified period a message or material on his behalf (application of the founder), for claims and lawsuits related to the application of the founder, the founder is liable; the founder is not entitled to interfere in the activities of the mass media, except for the cases provided for by this Law, the charter of the editorial office, the agreement between the founder and the editorial office (editor-in-chief).

It follows from the materials of the case that the Charter of the editorial office of the newspaper "Yakutsk Vecherniy" dated 03.04.2001. (ld 21 - 24) it is provided that the founder has the right to oblige the editorial office, and the latter is obliged to include in the newspaper free of charge and within the specified period the information, advertising or messages that are transmitted to it by the founder, while the amount of information, advertising or messages is established founder in agreement with the editor-in-chief; does not have the right to interfere in the creative activities of the editorial office, approves the editorial charter, appoints and dismisses the editor-in-chief (clause 4.1); the activities of the editorial office are managed by the editor-in-chief, who is appointed by the founder, appoints the staff members of the editorial office, and also dismisses them from their positions in accordance with the current legislation, incentive measures and disciplinary measures may be applied to the staff members of the editorial office by the editor-in-chief on the grounds provided for by law (p. .6.2).

Thus, the court considers that neither the Law of the Russian Federation "On Mass Media" nor the Charter of the editorial office provides for the possibility of interference by the founder in the creative activities of the editorial office, the founder of the newspaper is not vested with the authority to manage the editorial office, to impose disciplinary measures, both on the editor-in-chief and on full-time editorial staff.

The Department's reference to the fact that a written warning to the founder of the newspaper - the Company was issued in accordance with Article 16 of the Law "On Mass Media", is rejected by the court on the following grounds.

In accordance with Article 16 of the Law of the Russian Federation "On the Mass Media", the activities of a mass media outlet may be terminated or suspended only by decision of the founder or by a court in civil proceedings at the suit of the registering authority. The founder has the right to terminate or suspend the activities of the mass media only in cases and in the manner provided for by the editorial charter or the agreement between the founder and the editorial office (editor-in-chief).

The grounds for the court to terminate the activities of a media outlet are repeated violations by the editorial office of the requirements of Article 4 of this Law within twelve months, in respect of which the registering body issued written warnings to the founder and (or) editorial office (editor-in-chief), as well as failure to comply with a court order to suspend the activities of the media. mass media.

The activities of a mass media outlet may also be terminated in the manner and on the grounds provided for by the Federal Law "On Counteracting Extremist Activity".

Article 4 of the Law "On Mass Media" provides that it is not allowed to use the mass media for the purpose of committing criminal acts, for disclosing information constituting a state or other secret specially protected by law, for disseminating materials containing public calls to carry out terrorist activities or publicly justifying terrorism, other extremist materials, as well as materials promoting pornography, a cult of violence and cruelty.

The current legislation does not establish a mechanism for the preparation, execution and issuance of a written warning to the media in case of violation of Article 4 of the Law of the Russian Federation "On the Mass Media" and the Federal Law "On Counteracting Extremist Activity".

A written warning to the founder of the mass media as an independent type of liability is not directly provided for by the current legislation; The Administration, as a state body that issued the disputed non-normative legal act, has not proved the founder's guilt in the publication of the disputed publication; founder in accordance with Art. 18 of the Law of the Russian Federation "On the Mass Media" and the Charter of the editorial office of the newspaper's media, is deprived of the opportunity to interfere in the creative activities of the newspaper's editorial office.

The Court considers that the possibility of issuing a written warning to the founder, provided for by Article 16 of the Law of the Russian Federation "On the Mass Media", is interconnected with the provision of Article 18 of this Law, which provides for the possibility for the founder to oblige the editorial office to place, free of charge and within the specified period, a message or material on his behalf (the founder's statement).

The materials of the case are not supported by the materials of the case, and the Office, during the consideration of this case on the merits, did not provide evidence that the controversial publication, which was the basis for holding the founder liable in the form of a written warning, was posted at the request of the founder of the media outlet of the Yakutsk Vecherniy newspaper - the Company.

In addition, it follows from the materials of the case (content of the contested warning) that the journalist violated the requirements of Part 2 of Article 51 of the Law of the Russian Federation "On Mass Media", the editor-in-chief loosened control when issuing permission to disseminate information for publication (Article 26 of the Law "On Mass Media" ), the editorial office of the newspaper contributes to the incitement and manifestation of interethnic hatred, which can contribute to the emergence of offenses based on interethnic hostility and be a destabilizing factor in a multinational republic.

The management in the motivational part of the warning did not indicate any violations by the founder, committed by him when publishing the controversial article.

Meanwhile, the operative part of the warning states that the Department warns of the inadmissibility of future violations of the requirements of the media legislation by the editors of the Yakutsk Vecherniy newspaper, in the event that the editorial office repeatedly violates the requirements of Article 4 of the RF legislation on the media within 12 months, the Department will take measures up to until the termination of the activities of the media in court (Article 16 of the Law of the Russian Federation "On the Mass Media"), the Department proposes to take disciplinary measures against persons who allowed the publication of the article "Why I was known as a brawler" in the newspaper, by March 25 it is necessary to provide information on the elimination committed violations of media legislation.

From the content of the resolutive part of the warning it is impossible to establish in respect of which subject the said act was issued, that the warning was issued in relation to the founder of the newspaper - LLC "Vesti" can only be established from the content of the title of the warning and references of the Office to Article 16 of the Law of the Russian Federation "On Mass Media".

Thus, the court considers that the disputed warning was issued to the founder of the Yakutsk Vecherniy newspaper, Vesti LLC, in respect of which the Office did not establish violations of the current media legislation.

In addition, the court considers that the disputed warning cannot be knowingly executed by the founder, taking into account the provisions of the Law of the Russian Federation "On the Mass Media" and the Charter of the Mass Media of the newspaper "Yakutsk Vecherniy" dated 03.04.2001.

Based on the circumstances of the case and substantive law, the court concludes that the Company's claim is fully satisfied.

In accordance with Part 1 of Article 110 of the Arbitration Procedure Code of the Russian Federation, the court costs incurred by the persons participating in the case, in favor of whom the judicial act is to be adopted, are recovered by the arbitration court from the outside.

According to paragraph 5 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated 13.03.2007. 117 "On Certain Issues in the Practice of Applying Chapter 25.3 of the Tax Code of the Russian Federation", if the applicant's claim for the invalidation of a non-normative legal act, decision, illegal actions (inaction) of a state body (local government body) is satisfied, the general procedure for the distribution of court costs and the state fee paid by the applicant is collected in his favor directly from the state body (local self-government body) as a party to the case.

In view of the foregoing, the court concludes that the court costs for the payment of the state fee in the amount of 2,000 rubles have been recovered from the Office in favor of the applicant.

** Guided by articles 110, 167-170, 176, 201 of the Arbitration Procedure Code of the Russian Federation, the court

DECIDED :**

Warning of the Office of the Federal Service for Supervision of Communications and Mass Communications in the Republic of Sakha (Yakutia) to the founder of the newspaper "Yakutsk Vecherniy" Limited Liability Company "Vesti" dated 11.02.2009. No. 07-08 / 36-01, issued in the city of Yakutsk, checked for compliance with the provisions of the Law of the Russian Federation "On the Mass Media", is declared illegal.

To oblige the Department of the Federal Service for Supervision of Communications and Mass Communications in the Republic of Sakha (Yakutia) to eliminate the committed violations of the rights and legitimate interests of Vesti Limited Liability Company.

Collect from the Office of the Federal Service for Supervision of Communications and Mass Communications in the Republic of Sakha (Yakutia) (Yakutsk, Kurashova St., 22) in favor of Vesti Limited Liability Company (Yakutsk, B. Chizhik St., 33/2;

Issue a writ of execution after the entry into force of the decision.

The decision of the court can be appealed within a month to the Fourth Arbitration Court of Appeal.

The decision can be appealed within two months from the date of entry into force of the contested decision in the Federal Arbitration Court of the East Siberian District.

The decision may be reviewed by way of supervision in the Supreme Arbitration Court of the Russian Federation within three months from the date of entry into force of the last judicial act adopted in this case, if other available possibilities for verifying the legality of the specified act in a judicial procedure have been exhausted.

Judge A.N. Ustinov

FOURTH ARBITRATION COURT OF APPEALS

672000, Chita, st. Lenina 100b

tel. (3022) 35-96-26, tel./fax (3022) 35-70-85

E-mail: info@4aas.arbitr.ru http://4 aas.arbitr.ru

RESOLUTION

Chita

Case No. А58-3258/2009

August 31, 2009

The operative part of the resolution was announced on August 25, 2009.

The full text of the resolution was made on August 31, 2009.

Fourth Arbitration Court of Appeal, composed of

presiding judge Yachmenev G.G.,

judges Dorzhieva E.P., Zheltoukhova E.V.,

while maintaining the minutes of the court session by the secretary of the court session Pavlova E.A., considered in open court the appeal of the Office of the Federal Service for Supervision in the Sphere of Mass Communications in the Republic of Sakha (Yakutia) against the decision of the Arbitration Court of the Republic of Sakha (Yakutia) that has not entered into legal force dated July 3, 2009 in case No. A58-3258 / 2009 upon the application of the Limited Liability Company "Vesti" to the Office of the Federal Service for Supervision of Communications and Mass Communications in the Republic of Sakha (Yakutia) to invalidate the warning dated February 11, 2009 No. 07-08/36-01

with the participation of a third party who does not declare independent claims regarding the subject of the dispute - the editorial office of the newspaper "Yakutsk Vecherniy"

(Court of First Instance: Ustinova A.N.)

with the participation in the court session of representatives:

from LLC "Vesti": none (notified);

from the Office of Roskomnadzor: Koryakina M.P., Leading Specialist-Expert of the Department

administrative-financial and legal department, <***>, power of attorney dated July 2, 2009 No. 26;

from the editorial office of the newspaper "Yakutsk Vecherniy": was not (notified)

and installed:

Vesti Limited Liability Company (hereinafter referred to as the Company) applied to the Arbitration Court of the Republic of Sakha (Yakutia) with a statement to the Office of the Federal Service for Supervision of Communications and Mass Media in the Republic of Sakha (Yakutia) (hereinafter referred to as the Roskomnadzor Directorate) to declare it illegal warnings dated February 11, 2009 No. 07-08/36-01.

By the decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated July 3, 2009, the stated requirements were satisfied. The court of first instance came to the conclusion that the challenged warning did not meet the requirements of the Law of the Russian Federation of December 27, 1991 No. 2124-1 "On the Mass Media" and violated the rights and legitimate interests of the Company.

Disagreeing with the decision of the court of first instance, the Office of Roskomnadzor appealed against it on appeal. The applicant of the appeal raises the issue of canceling the decision of the court of first instance, referring to the fact that a warning is a measure of preventive influence on an already revealed fact and can be sent to the founder of the newspaper, who, along with the editor-in-chief, bears the burden of responsibility for the observance by the editorial office of the current legislation. At the same time, the warning does not oblige the founder of the newspaper to interfere in the creative activities of journalists by editing articles. The applicant of the appeal also notes that the rights and legitimate interests of the Company in the field of entrepreneurial and other economic activities are not violated by the challenged warning. The Company's argument about the alleged damage to its reputation does not indicate a violation of rights in the field of entrepreneurial and economic activity.

At the same time, the Office of Roskomnadzor filed a petition for procedural succession due to the fact that after the decision of the court of first instance, the Office of the Federal Service for Communications and Mass Communications in the Republic of Sakha (Yakutia) was transformed into the Office of the Federal Service for Supervision in the Sphere of Communications, Information Technology and mass communications in the Republic of Sakha (Yakutia). In confirmation of this circumstance, the applicant of the appeal submitted a copy of the Regulations on the Office of the Federal Service for Supervision of Communications, Information Technology and Mass Communications in the Republic of Sakha (Yakutia), approved by the order of Roskomnadzor dated May 22, 2009 No. 142, and a certificate of entry in the Unified state register of legal entities No. 001770363.

According to part 1 of Article 48 of the Arbitration Procedure Code of the Russian Federation, in cases of withdrawal of one of the parties in a disputed legal relationship or established by a judicial act of an arbitration court (reorganization of a legal entity, assignment of a claim, transfer of debt, death of a citizen and other cases of change of persons in obligations), the arbitration court makes a replacement this party as its legal successor and indicates this in a judicial act. Succession is possible at any stage of the arbitration process.

In view of the foregoing, and also taking into account Decree of the Government of the Russian Federation of March 16, 2009 No. 228 "On the Federal Service for Supervision in the Sphere of Communications, Information Technology and Mass Communications", the Court of Appeal replaced the Office of the Federal Service for Supervision in the Sphere of Communications and Mass Media in the Republic of Sakha (Yakutia) to the Office of the Federal Service for Supervision of Communications, Information Technology and Mass Communications in the Republic of Sakha (Yakutia).

In responses to the appeal, the Society and the editors of the Yakutsk Vecherniy newspaper agree with the decision of the court of first instance and ask that it be left unchanged.

About the place and time of the court session, the Society and the editorial office of the newspaper "Yakutsk Vecherniy" were duly notified in the manner prescribed by Chapter 12 of the Arbitration Procedure Code of the Russian Federation, which is confirmed by postal notices No. However, the presence of their representatives at the hearing was not ensured. In accordance with Part 2 of Article 200 of the Arbitration Procedure Code of the Russian Federation, the failure to appear of the persons participating in the case, duly notified of the place and time of the court session, is not an obstacle to the consideration of the case on the merits.

The Fourth Arbitration Court of Appeal, having considered the case in accordance with Chapter 34 of the Arbitration Procedure Code of the Russian Federation, having analyzed the arguments of the appeal and the responses to it, having listened to the representative of the Roskomnadzor Department, having studied the case materials, having checked the correctness of the application by the court of first instance of the norms of substantive and procedural law, came to the following conclusions.

According to paragraph 1.2 of the Charter of the editorial office of the Yakutsk Vecherny newspaper, the Company is the founder of the Yakutsk Vecherniy newspaper (case sheets 21-24).

In issue 4 (746) of the Yakutsk Vecherniy newspaper dated January 30, 2009, an interview with the poet Sofron Osipov "Why I was known as a brawler" was published.

On the basis of the order of the Office of Roskomnadzor dated February 2, 2009 No. 20 (case sheet 55-56), an unscheduled measure was taken in relation to the editorial office of the Yakutsk Vecherniy newspaper to monitor compliance with the requirements of the legislation of the Russian Federation on the mass media, as a result of which an Act was drawn up unscheduled inspection dated February 11, 2009 (case files 46-48).

During the audit, it was found that the content of the material - an interview of journalist Elena Kiseleva with the poet Sofron Osipov "Why I was known as a brawler" - shows signs of insult, humiliation of the national dignity of representatives of the Russian nation living on the territory of the Republic of Sakha (Yakutia). This material contains statements about the superiority of one nation due to the depravity of another, expressed in the dissemination of incorrect fabrications and information about their history, culture, psychological makeup, which is a violation of the requirements of Article 4 of the Law of the Russian Federation "On the Mass Media".

On February 11, 2009, the Company, as the founder of the editorial office of the Yakutsk Vecherny newspaper, was issued a warning No. information by the editors of the Yakutsk Vecherniy newspaper and that in the event of a repeated violation within 12 months by the editorial office of the Yakutsk Vecherniy newspaper of the requirements of Article 4 of the Law of the Russian Federation "On the Mass Media", measures will be taken up to the termination of the activities of the mass media in court . At the same time, the Company was proposed to take disciplinary measures against persons who allowed the publication of the article “Why I was known as a brawler” in the Yakutsk Vecherniy newspaper, and it was also ordered to provide information on the elimination of violations of the legislation on the mass media by March 25, 2009.

Satisfying the requirements of the Society to recognize the said warning as unlawful, the court of first instance did not take into account the following.

On the basis of paragraph 1 of Article 61 of the Law "On the Mass Media", a refusal to register a mass media outlet, a violation by the registering body of the procedure and deadlines for registration, and other unlawful actions of the registering body may be appealed to the court in accordance with the civil procedural legislation.

Clause 8.2.1 of the Regulations on the Office of the Federal Service for Supervision of Communications, Information Technology and Mass Communications in the Republic of Sakha (Yakutia), approved by Roskomnadzor Order No. 142 dated 05.22. for distribution mainly on the territory of the subject of the Russian Federation, the territory of the municipality.

A similar provision was contained earlier (at the time the controversial warning was issued) in paragraph 8.2.1 of the Regulations on the Office of the Federal Service for Supervision of Communications and Mass Media in the Republic of Sakha (Yakutia), approved by order of Roskomnadzor dated August 8, 2008 No. 118 (l. d. 29).

Thus, the Roskomnadzor Department for regional and local mass media is a registering body and, by virtue of the direct indication of paragraph 1 of Article 61 of the Law "On the Mass Media", its decisions and actions can be appealed in a court of general jurisdiction in the manner prescribed by Chapter 25 of the Civil Procedure Code of the Russian Federation.

In addition, the court of first instance did not take into account that, in accordance with paragraph 2 of Article 29 of the Arbitration Procedure Code of the Russian Federation, arbitration courts consider, in administrative proceedings, economic disputes arising from administrative and other legal relations related to the implementation of entrepreneurial and other economic activities by organizations and citizens, including including contesting non-normative legal acts of state authorities of the Russian Federation, decisions and actions (inaction) of state bodies affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities.

In accordance with Part 1 of Article 198 of the Arbitration Procedure Code of the Russian Federation, citizens, organizations and other persons have the right to apply to an arbitration court with an application for invalidating non-normative legal acts, illegal decisions and actions (inaction) of state bodies, local government bodies, other bodies, officials persons, if they believe that the disputed non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of entrepreneurial and other economic activities, illegally impose any obligations on them, create other obstacles to the implementation of entrepreneurial and other economic activities.

Paragraph 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009 No. 2 "On the practice of consideration by courts of cases on challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal employees" states that to decisions include acts of state authorities, local governments, their officials, state, municipal employees and persons equivalent to them, adopted individually or collectively, containing an imperious expression of will that gives rise to legal consequences for specific citizens and organizations.

In view of the foregoing, in the opinion of the court of appeal, a legal act of an individual nature (non-normative legal act) subject to appeal (dispute) in an arbitration court is understood to be an act establishing, changing or revoking the rights and obligations of specific persons in the field of entrepreneurial or other economic activity .

It does not follow from the content of the warning dated February 11, 2009 No. 07-08 / 36-01 that it establishes, changes or cancels the rights and obligations of the Company in the field of entrepreneurial activity and, therefore, this warning in itself does not violate the legal rights and interests of the Company in the field of entrepreneurial activity.

Thus, the warning of the Office of Roskomnadzor dated February 11, 2009 No. 07-08 / 36-01 does not apply to non-normative legal acts, the appeal of which is provided for by Articles 29 and 198 of the Arbitration Procedure Code of the Russian Federation.

According to subparagraph 1 of paragraph 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation, the arbitration court terminates the proceedings if it determines that the case is not subject to consideration in the arbitration court.

In paragraph 31 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in an arbitration court of appeal", it is explained that if there are grounds for terminating the proceedings under Article 150 of the Arbitration of the procedural code of the Russian Federation, the court of appeal, with reference to paragraph 3 of Article 269 of this Code, terminates the proceedings on the case, provided that these grounds arose before the decision of the court of first instance. In other cases, the proceedings on appeal are subject to termination.

In the case under consideration, the case of contesting the warning No. 07-08/36-01 dated February 11, 2009, by virtue of the direct indication of paragraph 1 of Article 61 of the Law "On the Mass Media", was not initially subject to consideration in the arbitration court.

Taking into account the foregoing, the court of appeal concludes that it is necessary to cancel the decision of the court of first instance and terminate the proceedings (paragraph 3 of Article 269 of the Arbitration Procedure Code of the Russian Federation).

In accordance with part 3 of article 271 of the Arbitration Procedure Code of the Russian Federation, the decision of the arbitration court of the appellate instance indicates the distribution of court costs between the parties, including court costs incurred in connection with the filing of an appeal.

On the basis of subparagraph 3 of paragraph 1 of Article 333.40 of the Tax Code of the Russian Federation, in the event of termination of proceedings in the case by an arbitration court, the paid state fee is subject to partial or full refund.

Paragraph 32 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 28, 2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation in the consideration of cases in the arbitration court of appeal" states that when terminating the proceedings, the court of appeal, with reference to Part 1 Article 151 of the Arbitration Procedure Code of the Russian Federation and subparagraph 3 of paragraph 1 of Article 333.40 of the Tax Code of the Russian Federation decides on the return of the amount of the state fee paid both when filing an appeal and when considering a case by a court of first instance.

By payment order dated May 6, 2009 No. 42 (case sheet 7), the Company paid the state fee for the consideration of the case in the court of first instance. In connection with the termination of proceedings on the case, the paid state fee is subject to return to the Company.

Having considered the appeal against the decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated July 3, 2009 in case No. A58-3258 / 2009, which has not entered into legal force, the Fourth Arbitration Court of Appeal, guided by Articles 150, 258, 268-271 of the Arbitration Procedure Code of the Russian Federation ,

RESOLVED:

The decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated July 3, 2009 in case No. A58-3258/2009 is cancelled.

Stop the proceedings.

Return to the Limited Liability Company "Vesti" from the federal budget the state fee in the amount of 2000 rubles, issuing a certificate.

The decision of the court of appeal comes into force from the date of its adoption and can be appealed within two months in cassation to the Federal Arbitration Court of the East Siberian District.

presiding judge G.T. Yachmenev

Judges

E.P. Dorjiev

E.V. Zheltoukhov

FEDERAL ARBITRATION COURT OF THE EAST SIBERIAN DISTRICT

664011 Irkutsk, st. Dzerzhinsky, 36A

phone/fax (3952) 20-96-75, 56-44-66 www.fasvso.arbitr.ru e-mail: info@fasvso.arbitr.ru

**ORDINATION

Irkutsk

No. A58-3258/2009

December 7, 2009**

Federal Arbitration Court of the East Siberian District, consisting of:

presiding Pushchina L.Yu.,

judges: Gumenyuk T.A., Chuprova A.I.,

with the participation in the court session of the representative of the Office of the Federal Service for Supervision of Communications, Information Technology and Mass Communications in the Republic of Sakha (Yakutia) Olga Valentinovna Kirillova (power of attorney dated November 25, 2009 No. 30),

having considered in court the cassation complaint of the limited liability company "Vesti" against the decision of the Fourth Arbitration Court of Appeal dated August 31, 2009 in case No. A58-3258 / 2009 (court of first instance: Ustinova A.N.; court of appeal: Yachmenev G. G., Dorzhiev E.P., Zheltoukhov E.V.),

installed:

Vesti Limited Liability Company (hereinafter referred to as Vesti LLC, the company) filed an application with the Arbitration Court of the Republic of Sakha (Yakutia) to invalidate the warning of the Office of the Federal Service for Supervision of Communications and Mass Media in the Republic of Sakha (Yakutia) ( hereinafter referred to as management) dated February 11, 2009 No. 07-08 / 36-01.

By the decision of the Arbitration Court of the Republic of Sakha (Yakutia) dated July 3, 2009, the stated requirements were satisfied.

By the decision of the Fourth Arbitration Court of Appeal of August 31, 2009, the court decision of July 3, 2009 was canceled. The proceedings have been terminated.

Disagreeing with the decision of the appellate instance, the company appealed to the Federal Arbitration Court of the East Siberian District with a cassation appeal, in which it asks to cancel it due to the incorrect application of substantive and procedural law, to adopt a new judicial act in the case.

The persons participating in the case were duly notified of the time and place of the consideration of the cassation appeal (postal notices No. 11458, No. 11459), but the company did not send its representative to the court session.

At the hearing, the representative of the department stated objections to the arguments of the cassation appeal.

The Federal Arbitration Court of the East Siberian District, in accordance with Article 163 of the Arbitration Procedure Code of the Russian Federation, adjourned the court session from December 3, 2009 to 10:40 on December 7, 2009, of which a public notice was made.

The persons participating in the case did not appear at the hearing after the break.

The cassation appeal is considered in the manner prescribed by Chapter 35 of the Arbitration Procedure Code of the Russian Federation.

Having checked, within the limits established by Article 286 of the Arbitration Procedure Code of the Russian Federation, the compliance of the conclusions contained in the contested judicial act with the evidence available in the case file, the correctness of the application by the Fourth Arbitration Court of Appeal of the norms of substantive law and compliance with the norms of procedural law, the Federal Arbitration Court of the East Siberian District comes to the following conclusions.

As follows from the materials of the case, in issue 4 (746) of the newspaper "Yakutsk Vecherniy" dated January 30, 2009, an interview with the poet Sofron Osipov "Why I was known as a brawler" was published.

On February 2, 2009, an unscheduled event was held in relation to the editorial office of the Yakutsk Vecherniy newspaper to control compliance with the requirements of the legislation of the Russian Federation on the mass media.

During the audit, it was found that the content of the material - the interview of the journalist Elena Kiseleva with the poet Sofron Osipov "Why I was known as a brawler" shows signs of insult, humiliation of the national dignity of the representatives of the Russian nation living on the territory of the Republic of Sakha (Yakutia). This material contains statements about the superiority of one nation due to the strength of another, expressed in the dissemination of incorrect fabrications and information about their history, culture, psychological makeup, which is a violation of the requirements of Article 4 of the Law of the Russian Federation of December 27, 1991 No. 2124-1 "On the mass media information" (hereinafter referred to as the Mass Media Law)

Based on the results of the audit, an act dated 11.02.2009 was drawn up.

On February 11, 2009, the company was issued a warning No. 07-08/36-01 about the inadmissibility of violations of the requirements of the legislation on the mass media, with the provision of information on the elimination of the violations of this legislation by March 25, 2009.

This circumstance was the basis for the company's appeal to the arbitration court with a statement.

Satisfying the stated requirements, the court of first instance proceeded from the fact that the challenged warning does not comply with the requirements of the Mass Media Law and violates the rights and legitimate interests of society.

The court of appeal, canceling the court decision and terminating the proceedings, proceeded from the fact that the warning does not violate the legitimate rights and interests of society in the field of entrepreneurial activity, in connection with which the case is in accordance with subparagraph 1 of paragraph 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation not subject to arbitration.

By virtue of the provisions of part 1 of article 27 of the Arbitration Procedure Code of the Russian Federation, the arbitration court has jurisdiction over cases of economic disputes and other cases related to the implementation of entrepreneurial and other economic activities.

Clause 2 of Article 29 of the Arbitration Procedure Code of the Russian Federation provides for the jurisdiction of the arbitration court of cases on contesting non-normative legal acts of state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation, local authorities, other bodies and actions (inaction) of state bodies, local authorities, other bodies and officials affecting the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities.

In accordance with Article 198 of the Arbitration Procedure Code of the Russian Federation, citizens, organizations and other persons have the right to apply to the arbitration court with an application for invalidation of non-normative legal acts, illegal decisions and actions (inaction) of state bodies, local governments, other bodies, officials, if they believe that the disputed non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of entrepreneurial and other economic activities, illegally impose any duties on them, create other obstacles for the implementation of entrepreneurial and other economic activities.

A non-normative legal act is an act issued in accordance with the established procedure by an authorized body of state power, a body of local self-government or an official, establishing or revoking civil rights and obligations for specific persons, which, as a rule, has a one-time (single) application.

Reversing the decision of the court of first instance, the court of appeal concluded that warning No. 07-08/36-01 dated February 11, 2009 does not apply to non-normative legal acts, the appeal of which is provided for by Articles 29 and 198 of the Arbitration Procedure Code of the Russian Federation.

As can be seen from the materials of the case, the challenged order No. 07-08/36-01 of February 11, 2009 does not establish, change or abolish civil rights and obligations and does not give rise to any consequences for specific persons, that is, it is not a non-normative legal an act, not a decision, not an action, since it is of a preventive nature.

Disputing the warning issued by the department, the company, in violation of the requirements of Article 198 of the Arbitration Procedure Code of the Russian Federation, did not provide evidence that this warning creates obstacles for it in carrying out entrepreneurial and other economic activities.

Thus, the warning dated February 11, 2009 No. 07-08/36-01 is not that non-normative legal act, the possibility of challenging which is provided for by Chapter 24 of the Arbitration Procedure Code of the Russian Federation.

Therefore, in this case, the case of contesting the warning No. 07-08/36-01 of February 11, 2009, in accordance with paragraph 1 of Article 61 of the Mass Media Law, was not subject to consideration in the arbitration court.

Under such circumstances, the court of appeal lawfully terminated the proceedings on the basis of paragraph 1 of part 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation, establishing that the case was not subject to consideration in the arbitration court.

The court's conclusions are based on a comprehensive and complete study and assessment of the evidence available in the case in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation.

The arguments of the applicant of the cassation appeal are essentially aimed at reassessing the evidence, the court of cassation is not endowed with such powers by virtue of Article 286 of the Arbitration Procedure Code of the Russian Federation.

Under such conditions, the Federal Arbitration Court of the East Siberian District does not find the grounds provided for in Article 288 of the Arbitration Procedure Code of the Russian Federation for the cancellation of a judicial act, in connection with which the decision of the Fourth Arbitration Court of Appeal, by virtue of paragraph 1 of part 1 of Article 287 of the Arbitration Procedure Code of the Russian Federation, cannot be canceled subject to.

Guided by articles 274, 286-289 of the Arbitration Procedure Code of the Russian Federation, the Federal Arbitration Court of the East Siberian District

RESOLVED:

The decision of the Fourth Arbitration Court of Appeal dated August 31, 2009 in case No. А58-3258/2009 is left unchanged, the cassation appeal is not satisfied.

The decision comes into force from the day of its adoption.

presiding L.Yew. Pushchino

Judges:

AND. Humenyuk

A.I. Chuprov

Official website of the EAC of Russia

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