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While Russia became a member of the Council of Europe in 1996 and ratified the European Convention on Human Rights this year, it does not mean, at least for now, that legislation of the Council has any impact on mass communication regulation there. The decisions of the European Court of Human Rights are insignificant, if not irrelevant, for the Russian judiciary. In fact, at a recent media law conference, sponsored by the Moscow Media Law and Policy Center together with the School of Journalism of the Moscow State University, a judge of the Russian Supreme Court pointed out that the Court would never apply itself or recommend to the general courts to apply European legislation unless the parliament makes relevant and specific changes in the national law. All that takes place despite the fact that the Constitution sets the precedence of the international treaties ratified by the Russian Federation over the national law. Since the Constitution is the law of direct action we only have to wait and see what happens if someone challenges the national law in a court of justice. Coming closer to the subject of my presentation, I should mention that Russian federal legislation on mass media is very democratic and at the same time liberal in its nature. Some Western authors have even noted that the Russian Mass Media Act of 1991 gives journalists the rights unheard of in the Western societies. The peculiar fact, though, is that, in addition to federal laws and decrees, there is an array of local legislation that governs the press in Russia. All eighty-nine “subjects of the Federation”—that is, provinces, national republics, and cities of Moscow and St. Petersburg—have a constitutional right to issue laws regulating different spheres under their jurisdiction. How comes that the mass media is under their domain? The current Constitution of the Russian Federation, hastily drafted and approved by a “popular polling” in December 1993, was basically intended to fix the intentions of the Presidential Administration to gain extremely wide powers following the abolishment of the Supreme Soviet (the parliament) in late September of the same year. Therefore, there are lapses in those parts of its text that do not necessarily have to do with power distribution in Russia. Division of authority between the federal and regional governments over the media is one such problem. Articles 72, 73, and 74 of the Constitution set lists of issues that come under jurisdiction of the federal authorities, regional authorities, and those under common competence of the two. Brian Wilson, British MP from Scotland, complained that broadcasting in Scotland is strictly under the competence of London. I have a complaint of a different nature: none of the three articles of the Russian Constitution mentions the mass media. This provides a certain leeway for different opinions on regulation possibilities for the regional and federal legislatures. Article 72 puts under exclusive federal regulation defense of the basic human rights and freedoms, including the right to seek, obtain, produce, and distribute information, as well as the so-called “federal information” (it is not at all clear what could be “non-federal information”) and “federal communication.” On the other hand, Article 73 states that issues of “education” (vospitanie) and “culture” are under the joint regulation of the national and regional authorities. So where exactly go the mass media? We can find a precedent—though of a limited nature due to the statuary nature of the Russian legal system—in the case law. Constitutional Court of Russia has heard a case based on two appeals on the constitutionality of the Federal Statute “On Advertising” (adopted in 1995). One appeal stated that regulation of advertising is part of the regulation of culture and should therefore be under the common jurisdiction of the Federation and its “subjects.” Another said that, since advertising (like mass media for that matter) is not mentioned in the Constitution, it should be strictly under the jurisdiction of the regional authorities. The Court decision stated that, whenever advertising law regulates issues of business, competition, and the right to access commercial information, it is under federal legislation alone. In regard to other issues in the sphere, subjects of the Federation are free to introduce acts of their own. We might presume then that this decision of the Constitutional Court applies to the mass media in general—but we cannot be sure. If we are right, then certain issues listed in the Constitution as exclusively under federal regulation apply to the media field. Those issues are: scope of the citizens’ right to obtain information, legal status of organizations (e.g., news organizations of the federal media), federal taxation, criminal liability for violations in the mass media sphere. Under joint jurisdiction then come issues of protection of the citizens’ right to obtain information, issues other than federal taxation, registration and licensing, and administrative control of mass media and of relations with the state authorities and self-government bodies. In fact, this is not just my opinion, it is also a status quo, though a shaky one, that exists today. Joint jurisdiction means that regional governments can adopt statutes, acts, or other regulations in the same spheres as those of federal legislation, but such acts shall not contradict federal legislation. In this regard come the following basic questions that remain practically unresolved. 1. What happens if the regional laws contradict Russian law adopted before the Constitution, that is not “Federal statutes” but “statutes of the Federation,” or even still effective USSR statutes? A 1968 decree on the procedures to review petitions of citizens could serve as an example. In most cases, the local authorities ignore such laws with a silent approval of the federal government. 2. Can regional governments adopt their own acts while there is no federal legislation in the joint jurisdiction field? That is, can they adopt laws before the federal authorities do? For example, there is an array of local statutes that regulate broadcasting or issues of obscenity adopted in the last several years, but there are no statutes of the federal parliament on these matters. Local authorities naturally answer positively when and if such a question confronts them. In addition, the regional governments “widen” their scope of legal activity in the process of negotiating treaties on delegations of powers, which the Federation concludes with its most ambitious “subjects.” In such cases, the treaties, while repeating the constitutional provisions on areas of exclusive competence of the federal government, favor the regions in explaining the “gray areas” of the Constitution. Thus, the local authorities get official federal approval of their ambitions to rule the mass media. Why do the local authorities strive to get more power here? One explanation lies in the basic drive—especially of the former autonomous republics, such as Tatarstan and Bashkiria—to more independence from Moscow. Another has to do with the principal motivation behind media legislation in Russia, or even in the former Soviet Union in general. As was rightfully pointed out by Professor Monroe Price in his book entitled “Television: the Public Sphere and National Identity,”1 the media regulation, broadcasting regulation in particular, in Russia is an effort within a society to maintain or adjust a cartel—not just a cartel of businesses but one involving a dominant mix of political views and cultural attitudes. This legislation has served to strengthen national identity of Russia, as opposed to Ukraine or Belarus. While Price referred to the media legislation of the newly independent states, the same motive and model can be applied to the regulation in the “stateless nations” such as mentioned above. The liberties that were provided to the regional governments started with the famous phrase that Boris Yeltsin used to address them at the peak of his confrontation with the USSR president in 1991 (“Take as much sovereignty as you can swallow!”) and were reinforced in the 1993 constitutional right to adopt local constitutions and statutes which he, to put it cynically, served to them in exchange for the loyalty during his stand-off with the abolished parliament. Thus regional laws too have been important to strengthen these mini-national identities and “mini-cartels” that serve as pillars of the existing power structures, more often than not uncontrollable by the federal authorities. At the same time, regulation of the mass media in the regions is not so much about cultural peculiarities of the Ossetians or Yakuts, or how media should follow local traditions or religions. It is rather drafted and adopted to show to the journalists who are the real masters in their lands, who can give favors and impose penalties. It is no surprise in this context that, for example, out of nine regional constitutions adopted by the “stateless nations” that generally repeat all the typical nice words on the freedom of speech and expression after the federal Constitution, only three prohibit censorship.2 At least four subjects of the Federation have adopted their own mass media statutes. To a very large extent, those acts mechanically repeat the Russian mass media statute of 1991, which puts under doubt the whole legal rationale of such lawmaking. Interestingly enough, the local statutes repeat many of the commonly recognized flaws and internal contradictions of the federal act. For example, like the federal statute, they mix in one article criminal liability of a citizen who abuses law with the use of mass media and administrative responsibility of editorial offices. They also leave open the gaps that have been noted in the federal statute in the last seven years. A number of new restrictions are introduced in the regional statutes on mass media. For example, at least four statutes prohibit creation and distribution within the territory of the particular subjects of the Federation of any mass media established by the entities, address of which happens to be outside the boundaries of the particular region without a prior permission of the local authorities. Others demand a special accreditation of journalists from the outside regions if they want to have the same status as the local ones or requires permissions from the correspondents’ bureaus of “outside” media. We cannot but note that all these contradict Article XIX of the Universal Declaration, Article X of the European Convention, and the Russian Constitution. In addition to the regional mass media statutes, local regulation of the mass media consists of the groups of acts that regulate the following areas: additional subsidies to the local media—relief from local taxes; regulation of licenses’ allocation for the local broadcasters; regulation of access to information and accreditation of journalists; and regulation of obscenity, pornography, and erotic publications and programs. It is hard to object to the first out of the four groups of acts. Since federal legislation provides federal benefits for the media, why regional legislation cannot do the same at its own level? At least, we can say that if uniform relief is introduced, this only helps to develop and strengthen local media. In the passing, it can be observed that the intensive lawmaking activity of the post-communist era can also be explained by a competition between the executive and legislative branches of the government over the influence of the press. The President and the parliament of Russia have been at odds or even in the state of open hostilities since early 1992. By providing different favors to the journalists, one or the other has tried to prove their status as the guarantor of the freedom of press and speech in Russia, the protector of the press from hardships of the transitional market economy. These are definitely attempts to lure the press on its side in the political duel. Incidentally, almost none of the numerous decrees and laws that provide the press with tax relief, reduced tariffs, and state subsidies work in full. The reason lies in the fact that the executive is never in a hurry to execute what the legislature adopts, and the parliament—with an almost single lever on economy at hand, the budget approval—does not allocate funds for the programs envisioned by the executive power alone. A similar trend is evident in the provinces where regional governors typically compete with local legislatures. While the three remaining groups are a result of the absence of federal law on the subjects, we can only hope that, when such pending laws are finally adopted by the national legislature, the probable contradictions between the two sets of acts will be removed. It is also important to say
that the legal grammar of the existing regional law is far from being perfect.
Let us take, for example, the last group of regional statutes, those on
indecency and obscenity. Some of them permit sexual programming on
terrestrial TV only after 11 p.m. or midnight local time but do not state
till what time the permission lasts. Till 22:59? One of the
statutes permits sale of pornographic magazines “away from streets with
crowded pedestrian traffic.” What does that mean from a legal point
of view: “sell them in the woods”?
Legally there are two ways. The first way is when a federal authority, be it the office of the Prosecutor General or that of the Minister of Justice, complain to the regional legislature on the existing contradictions, requesting them to amend certain pieces of regional legislation. The federal authorities have tried to do that with regard to the elections regulations but basically failed to achieve a positive result: local legislators disregarded these appeals. The federal authorities cannot really enforce a change in local laws. The second way is through the court system. If, for example, a local legislation violates someone’s rights, that person can petition the courts to have them restored, at least to the extension provided by the federal law. While the local courts being dependent of the local government will probably turn down such a petition, that alone can serve as grounds to appeal to the federal courts up to the Supreme Court or the Constitutional Court. We still have to wait until Russian citizens or media outlets find enough efforts, time, and resources to go along that long road, which basically will satisfy the plaintiff alone, since the precedent will not necessarily bind other courts. So, what we see today in the provinces of Russia is a Balkanization of media legislation, open or potential contradictions between federal and regional statutes with no clear way to resolve them under the current political climate. The violations of journalists’ rights, restrictions of the freedoms of the speech and the press are more common the further you go from Moscow. Boundaries are becoming frontiers. Loyalty to regional czars are crucial for a career or even a life in journalism. While the national media are rather freely accessed to in the regions, a reason for this is their relatively scarce coverage of the local affairs. At the local level, the media, at least the traditional ones (terrestrial broadcasting and daily press), are under the legal means of control and sometimes of oppression. We might witness a fresh circle of creating new independent states in the familiar territory—a multiple birth of nations—which, like in 1991, does not necessarily bring new freedoms to the public. I believe that all this cannot be but a reason for concern for the international community. Andrei Richter
Notes: * This Essay is presented at the 21st Scientific Conference of
the IAMCR at Glasgow on July 28, 1998.
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