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§ 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation

Being of any election campaign is formation and expression of will of voters. S.A.Avakjan notices, that «public opinion freedom on elections is especially brightly shown at promotion of candidates and lists of candidates, in pre-election campaign, including oral and written its forms...

Is key display of a democratic society, individual and collective freedom of the person and the citizen, the precondition of the peace permission of political and social conflicts». [136 [137]

As follows from a legal position of the Constitutional Court of the Russian Federation, expressed the Decision from November, 14th, 2005 № 10-P, citizens of the Russian Federation are considered as the specific subject of a supply with information of elections as cannot be considered only as object of a supply with information of elections, - in the course of elections they have the right to carry out the activity directed on active upholding of the pre-election position and declination in compliance with it of other voters to voting for or against of concrete candidates or to expression of an uncooperative altitude to all candidates participating in elections.

Also the Constitutional Court of the Russian Federation allocates also features of legal regulation of the propaganda spent by such subjects of a supply with information of elections as candidates and selective associations as they, including independently define the maintenance, forms and methods of the propaganda, independently spend her. Expenses on pre-election campaign carrying out are carried out exclusively at the expense of corresponding selective funds in a statutory order. The duty of creation of selective funds for election campaign financing is assigned only to candidates and selective associations.

Being based on such legal position of the Constitutional Court of the Russian Federation, A.V.Buhantsova divides subjects of propaganda activity into the general and special. To the special carries candidates and selective associations by that criterion, that they form special selective funds for propaganda payment, have the right to access to mass-media at propaganda carrying out, including is gratuitous, it guarantees the right to campaign any lawful methods and forms, there is a presumption of responsibility for the propaganda. And such sight is represented justified.

Pre-election campaign, according to subitem 4 of item 2 of the Law on the basic guarantees, is the activity which is carried out in election campaign and having for an object to induce or inducing voters to voting for the candidate, candidates, the list, lists of candidates or against it (them).

In the scientific literature pre-election campaign is defined differently.

V.V. Ignatenko defining propaganda as the independent form of a supply with information of elections, supposes possibility of its consideration in several aspects: 1) as subinstitute of the legal institution of a supply with information of the elections, representing the body of laws, regulating an order of propaganda activity in election campaign; 2) as a separate stage of selective process; 3) as a specific version of an information work of separate subjects of the selective

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Process.

I.V.Zaharov and A.N.Kokotov notice, that pre-election campaign can be considered as: legal activity; the special right of voters, candidates and selective associations; an independent stage of selective process; the legal institution.

[138 [139]

L.T.Agleeva informing "and" pre-election campaign »defines propaganda as subinstitute of institute of a supply with information of elections as it« allows to reflect more precisely interrelation of such categories present at the legislation, as «a supply with information of elections",". [140]

O.E.Shishkin interpreting the maintenance of the right to pre-election campaign discriminates: 1) the right to participate in election campaign of candidates or selective associations; 2) the right to extend the information on candidates and selective associations and (or) to express opinions on them outside the limits of their election campaigns [141]. At the same time last thesis is disputable and not based on norms of the current legislation. First, propaganda on the distribution period coincides with election campaign of the candidate. In - the second, propaganda has the purpose to induce voters to make concrete will, that is outside of election campaign of the candidate propaganda is not meaningful.

The led scientific approaches to propaganda definition reflect its intrinsic characteristics as formulated in item 2 of item 48 of the Law on the basic guarantees possible forms of pre-election campaign, are represented both as distribution of the information and as activity.

Marking value of a supply with information of elections for maintenance free will of citizens, the legislator establishes an accurate mode of distribution of the information concerning elections. Considering, that propaganda has the purpose to have certain influence on will of voters, the legislator limits its distribution on subject structure, the period of distribution and the maintenance.

The legislative formulation of concept of pre-election campaign of item 2 of item 48 of the Law on the basic guarantees in many respects narrows possibility of its interpretation as estimated legal category at the expense of the instruction of item 1 of the item

48 Laws on the basic guarantees, establishing, that citizens of the Russian Federation, have the right in forms supposed by the law and lawful methods to spend public associations pre-election campaign. To exclude misuse of right, item 4 of item 48 of the Law on the basic guarantees prezjumiruet responsibility of the candidate for discrepancy of propaganda under legislative requirements.

Thus, definition of possible forms, methods and pre-election campaign restrictions represent essential value for an estimation of that, how much legal regulations of the given element of a supply with information of elections is ought.

Forms of the pre-election campaign which is carried out in election campaign, are listed in item 2 of item 48 of the Law on the basic guarantees as:

Appeals to vote for the candidate, candidates, the list, lists of candidates, or against it (them);

Preference expression to any candidate, selective association, in particular instructions on for what candidate, for what list of candidates, for what selective association will vote the voter (except for a publication case (promulgation) results of poll according to point 2 of article 46 of the Law);

The description of possible consequences in case this or that candidate will be selected or will not be selected, this or that list of candidates will be admitted or will not be admitted to distribution of deputy mandates;

Information distribution in which data on any candidate (any candidates) obviously prevail, selective association in a combination to positive or negative comments;

Distribution of the information on the activity of the candidate which has been not connected with its professional work or execution by it of the office (official) duties;

The activity promoting creation of the positive or negative relation of voters to the candidate, the selective association which has proposed the candidate, the list of candidates.

Thus according to item 2.1 of item 48 of the Law on the basic guarantees the actions made at realisation by representatives of the organisations, mass media carrying out release, professional work and specified in the subparagraph "and", admit pre-election campaign in case these actions are made to induce on purpose voters to vote for the candidate, candidates, the list, lists of candidates or against it (them), and the actions specified in subparagraphs - "e", - in case these actions are made with such purpose repeatedly.

Apparently, the list of forms of pre-election campaign has exhaustive character, unlike its methods.

So, pre-election campaign methods it agree item 3 of item 48 of the Law on the basic guarantees are defined as possibility of its carrying out:

On channels of the organisations of tele-radio broadcasting and in periodic printing editions;

By means of carrying out of propaganda public actions;

By means of release and distribution of printing, audiovisual and other propaganda materials;

Other methods not forbidden by the law.

In our opinion, the legislator was accurately defined with forms of pre-election campaign and has left opened the list of methods of its carrying out for balance maintenance between guarantees competing sometimes: on the one hand, guarantees of free will of citizens and equalities of candidates, with another, - guarantees of freedom of mass-media, the rights to the information and freedom of opinions.

The establishment of forms of pre-election campaign allows to differentiate it with informing. Thus it is necessary to consider and presence of the propaganda purpose, accent on which it is made with reference to mass-media.

In recommendations of 2011 of the Central Electoral Committee of the Russian Federation for electoral commissions of subjects of the Russian Federation under the prevention and suppression of infringements in sphere of manufacturing and distribution of propaganda materials in election campaigns, other infringements in sphere of a supply with information of elections presence in materials and messages a tele-and radio programs, periodic printing editions of appeals from representatives of the organisation which are carrying out release of mass-media is specified, that, to vote for the candidate, candidates, the list, lists of candidates or against it (them) is, as a rule, the basis for ascertaining by electoral commission of the fact of presence of the special propaganda purpose at the specified subjects and drawing up of reports about administrative

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The offences provided by articles 5.5 and 5.11 KoAP Russian Federation.

Concerning indirect propaganda - subitem - "e" item 2 of item 48 of the Law on the basic guarantees - in recommendations it is established, that istrebuemaja item 2.1 of item 48 of the Law on the basic guarantees neodnokratnost at formation of structure of an offence specifies in the propaganda purpose in actions of representatives of the organisations which are carrying out release of mass-media.

A.A.Makartsev considers, that neodnokratnost «will not be adjusted with the purpose of administrative punishment fixed in item 3.1 KoAP the Russian Federation and

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Directed on the prevention of fulfilment of new offences »in this connection suggests to optimise responsibility mechanisms in the suffrage, having refused such qualifying sign of [142 [143] offences provided by item 5.5 KoAP the Russian Federation, as

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neodnokratnost.

However abolition of a qualifying sign, on the contrary, will make inconvenient an establishment of the subjective party of an offence - the propaganda purpose as forms of indirect propaganda are estimated categories. It, in turn, will just weaken the attraction mechanism to administrative responsibility for infringements of rules of carrying out of pre-election campaign.

The open list of methods of carrying out of pre-election campaign should be considered as a guarantee on distribution of the information on elections. So, candidates, selective associations and other persons spending pre-election campaign, have possibility in the best way to inform to voters the necessary information, considering its is qualitative-quantitative characteristics, expenses for distribution, features of perception electorate. However with a view of hindrance to abusing such guarantees the legislator limits

Possibility of carrying out of pre-election campaign on the period

Distributions, to subject structure and the maintenance.

Regarding the period of distribution of pre-election campaign, the norm of item 49 of the Law on the basic guarantees establishes, that the propaganda period begins from the date of promotion of the candidate, the list of candidates (on channels of the organisations of tele-radio broadcasting and in periodic printing editions begins 28 days prior to ballot day) and stops in a zero of hours on local time one days prior to ballot day. That is from the moment of occurrence of possibility of the subject of selective process to realise the passive suffrage to it also possibility to use any methods of carrying out of propaganda, except for named in subitem "and" item 3 of item 48 of the Law on the basic guarantees is given. [144]

Such exception is necessary for maintenance of equality of candidates and the organisation of work of mass-media in elections. Undoubtedly, that proceeding from availability as for candidates, selective associations, and for voters, the most effective method of carrying out of pre-election campaign is use of an aether of the organisations of tele-radio broadcasting and the printing area of the organisations of periodic printing editions. However the organizational questions arising at mass-media which are obliged in statutory cases to give and free a broadcasting time, the printing area, cannot be solved at the first requirement of the interested person. Thereupon the resulted legislative exception is expedient for the organisation of a supply with information of elections as a whole.

As to pre-election campaign restrictions on subject structure following subjects of law cannot spend pre-election campaign:

1) the state bodies, local governments;

2) the persons displacing the state or elective municipal posts, the state and municipal employees, the persons who are members of controls of the organisations irrespective of a pattern of ownership (in the organisations which supreme body of management is the meeting, - members of the bodies presiding activity of these organisations), except for political parties, at execution by them official or official duties, and (or) with use of advantages official or the official position. Thus exceptions are constituted by the persons displacing the state or elective municipal posts if they are registered as candidates or on elective offices;

3) military units, military establishments and the organisations;

4) the charitable and religious organisations founded by them of the organisation, and also members and participants of religious associations at fulfilment of ceremonies and ceremonies;

5) electoral commissions, members of electoral commissions with the right to vote;

6) foreign subjects (except for a case if on the basis of international treaties of the Russian Federation and in an order, statutory, the foreign subjects constantly living in territory of corresponding municipal union, have the right to select and be the elite in local governments to participate in other selective actions on the specified elections, on the same conditions, as citizens of the Russian Federation), stateless persons, foreign legal bodies;

7) the international organisations and the international social movements;

8) representatives of the organisations which are carrying out release of mass media, at realisation of professional work by them;

9) persons, in which relation the decree in spent election campaign an established fact of infringement of the restrictions provided by item 1 of item 56 of the Law on the basic guarantees.

Besides, item 6 of item 48 of the Law on the basic guarantees forbids to involve in pre-election campaign of the persons who have not reached on ballot day age of 18 years, including to use images and statements of such persons in propaganda materials, except for a case if the image of the candidate with the children who have not reached 18 years (subitem "d" item 48 item 9) is used.

From the point of view of practice ESPCH restriction on carrying out by citizens of the propaganda demanding financial expenses is disputable. In the decision on business Bouman against Incorporated Kingdom (Bowman v.

The United Kingdom) from February, 19th, 1998, [145] Court recognised the applicant as a victim of infringement from the authorities of positions of item 10 EKPCH, having specified in item 42 of the reasoning of the decision that free elections and a freedom of speech, in particular political debate freedom, form a basis of any democratic system. Both rights are interconnected and harden each other: for example, as marked Court in the past, the freedom of speech serves one of necessary conditions for «maintenance of free expression of opinions of the people at legislature election». For this reason it is especially important, that any information and opinions could circulate freely during the period previous elections. Meanwhile, recognising, that guarantees of item 10 EKPCH and the item 3 Additional reports № 1 to EKPCH are competing, Court at an estimation of legitimacy of the established restrictions on distribution of the information of propaganda character, taking into account a harmony principle has disagreed that «necessity to limit expenses of the applicant on distribution of the information of propaganda character by five English pounds is caused by the lawful purpose to provide equality of candidates, especially in the light of that fact, that no restrictions prevented to support to a press or against the concrete candidate or political party, and supporters of candidates could place advertising at national or regional level, though and provided that it should not promote improvement or deterioration of selective prospects of the certain candidate in concrete election district».

The return position is presented in the Decision of the Constitutional Court of the Russian Federation from June, 16th, 2006 № 7-П, [146] which are recognised not contradicting the Constitution of the Russian Federation the interconnected positions of item 5 of item 48, item 51, item 52 item 6, items 1, 2, 3, 5 and 6 items 54, item 58, item 5 of item 59 of the Law on the basic guarantees in that part, in what they do not suppose pre-election campaign carrying out for or against the candidate (candidates, the list, lists of candidates) the citizens who are not candidates, their representatives, representatives of selective association, the methods demanding financial expenses, carried out besides selective funds. The court motivated such conclusion with that restriction coming under to check is directed on maintenance of equality of candidates and protection of the rights and freedom of other persons, including voters, and pursues achievement of the lawful aim - to guarantee formation of national representation as in the Russian Federation as a democratic lawful state with the republican form of government the deputy, other elective official represents not separate voters or their association, and all elective body.

In the scientific literature the opinion on disproportion of such restriction is expressed. O.E.Shishkin necessity to admit to citizens proves pre-election campaign carrying out for the candidate (selective association) at the expense of own means, provided that the legislator

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Should define the size of admissible expenses.

Such offer contradicts a position expressed in the Decision of the Constitutional Court of the Russian Federation on June, 16th, 2006 № 7-П, and cannot be legislatively realised.

Under the maintenance pre-election campaign also is limited. As a whole restrictions are established item 56 of the Law on the basic guarantees as interdictions for abusing freedom of the mass information and for interface of propaganda with payoff of voters. It with all evidence is directed on maintenance of free will of citizens. Also restriction on use by the registered candidates and selective associations of a broadcasting time on [147] channels of the organisations which are carrying out telecasting, given by it for placing of propaganda materials is established, with a view of:

Distributions of appeals to vote against the candidate, candidates, the list of candidates, lists of candidates;

Descriptions of possible negative consequences in case this or that candidate will be selected, this or that list of candidates will be admitted to distribution of deputy mandates;

Information distributions in which data obviously prevail

About any candidate (any candidates), selective

Association in a combination to negative comments;

Distributions of the information promoting creation

The negative relation of voters to the candidate, the selective association which has proposed the candidate, the list of candidates.

That is the interdiction for carrying out of the propaganda containing the negative information on this or that candidate, selective association is established. In the scientific literature the opinion is presented that such «additional restriction of realisation of"negative"propaganda (i.e. propagandas against candidates (lists of candidates)) on TV is

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Excessive ».

In support of such opinion it is necessary to notice, that «negative propaganda» can contain the proved criticism to the opponent and to show awareness criticising rather its business qualities and possibilities, especially, if the opponent already carries out imperious powers. Moreover, the criticism of politicians in mass-media will be adjusted with positions of the Declaration on political debate freedom in mass-media from 12.02.2004, [148 [149] in which item 3 is fixed, that «politicians have decided to secure with public trust and agree to become object of public political debate so, a society can carry out behind them the strict control and vigorous, rigid criticise in mass-media how they carried out or carry out the duties». As well practice of use of a broadcasting time at carrying out of joint propaganda actions shows, that discussion frequently has accusatory character. Thus, «negative propaganda» on air is claimed, not breaking principles of elections and thereupon unreasonably limited. Thus it is necessary to consider, that «negative propaganda» can and should exclude data of offensive and slanderous character. It is the general restriction of the right on information distribution on purpose to provide advantage of the person.

On conditions of distribution of propaganda on channels of the organisations of tele-radio broadcasting also it is possible to spend following differentiation. The special provisions defining conditions of carrying out of pre-election campaign on channels of such organisations contain in item 50 and item 51 of the Law on the basic guarantees.

Proceeding their analysis of the given norms, the tele-radio broadcasting organisations, competent to give a broadcasting time for propaganda carrying out, it is possible to divide on two groups depending on degree objazyvanija in broadcasting time granting: obliged and not obliged. As well the given broadcasting time can be divided on two categories: paid and free.

The obliged group concern state and municipal the organisations of tele-radio broadcasting which under certain conditions should give a free aether to the registered candidates, to selective associations.

Not state organisations of tele-radio broadcasting concern not obliged group. According to item 7 of item 50 of the Law on the basic guarantees it guarantees the right to granting of a broadcasting time for propaganda carrying out. Non-presentation in the notification procedure defined by the law on conditions of payment of a broadcasting time is considered refusal of its granting.

Thus the organisations of tele-radio broadcasting irrespective of a pattern of ownership, should publish not later than in 30 days from the date of official publication (publication) of the decision on calling an election of a condition of granting, including payment, a broadcasting time, and also to notify corresponding electoral commission on such conditions during the named period. Concerning not state organisations tele-radio broadcasting is established additional about their registration not less than for one year prior to the beginning of election campaign. It is an additional guarantee from abusing freedom of mass-media as interferes with establishment of mass-media exclusively under the elective purposes of concrete candidates and selective associations.

However irrespective of an order of granting of a broadcasting time for propaganda carrying out, item 50 of the Law on the basic guarantees establishes the general for all organisations of tele-radio broadcasting principles and restrictions. In turn, conditions of granting of a broadcasting time should be equal for everything, that completely korrespondiruet to the instruction of item 39 of the Law on the basic guarantees, fixing a principle of equality of candidates.

Despite an accurate regulation of an order of granting of a paid broadcasting time on channels state, municipal, and also not state organisations of tele-radio broadcasting, a free broadcasting time on channels of the state and municipal organisations of tele-radio broadcasting, the Law on the basic guarantees does not mention a question on possibility of granting of a free broadcasting time for pre-election campaign carrying out on channels of not state organisations of tele-radio broadcasting. There is a legal uncertainty concerning possibility of candidates and selective associations to use such aether, and also concerning possibility of not state organisations of tele-radio broadcasting it to give. If these possibilities to exclude the propaganda placed gratuitously on air of not state organisations of tele-radio broadcasting will be recognised by illegal. Candidates and selective associations will face a problem of excess of means selective as broadcasting time cost can be estimated, especially, if the organisation declared quotations on grantings of a paid aether. It, in turn, is the basis for cancellation of registration of candidates, lists of candidates, and also for contest of the decision of electoral commission about results of corresponding elections (items 7 and 8 items 76, item 2 of item 77 of the Law on the basic guarantees).

Not state organisations of tele-radio broadcasting also can be subjected sanctions. For distribution of propaganda materials without the advance payment at the expense of means of corresponding selective fund administrative responsibility (item 5.12 KoAP the Russian Federation) is provided. Numerous infringements can entail and more serious consequences. According to item 16.1 of the Law of the Russian Federation from December, 27th, 1991 № 2124-1 «About mass media» [150] (further - the Law on mass-media) release of mass-media can be suspended till the moment of the termination of voting on elections and in case repeated voting is taken, - till the moment of the termination of repeated voting.

It is necessary to notice, that the attraction prospect to the meant responsibility is smallest. For candidates and selective associations excess of means of selective fund can constitute maximum permissible. For imposing of administrative responsibility the tele-radio broadcasting organisation it agree item 2.1 of item 48 of the Law on the basic guarantees in its actions it is necessary to establish not only aim to induce voters to vote for the candidate, candidates, the list, lists of candidates or against it (them), but at indirect propaganda and neodnokratnost such actions. To suspend release of mass-media also it is improbable, as legal proceedings can not keep within the short period of election campaign.

Despite problems arising in practice in work of the mass-media shining elections to overestimate their value it is difficult. On last, presented on an official site of the Central Electoral Committee of the Russian Federation to data on distribution of the free broadcasting time allocated with the regional state organisations of tele-radio broadcasting to selective associations on elections of deputies of legislative (representative) public authorities of subjects of the Russian Federation on March, 13th, 2011, in each of eleven subjects (Republic Adygea, Republic Dagestan, Republic Komi, the Kaliningrad area, etc.) a free aether was meted not less, than between four selective associations, and general time of an aether in election campaign constituted from 272 till 1680 minutes. [151] these data certainly testify to a demand of such method of carrying out of propaganda.

Thus, to define legal possibility of use of a free broadcasting time for propaganda carrying out on channels of the organisations of tele-radio broadcasting it is extremely important. And as item 29 of the Constitution of the Russian Federation and the Law on mass-media guarantees the uniform status of the organisations which are carrying out release of mass-media, it is impossible to limit the rights of the organisations of tele-radio broadcasting to distribution of the information in dependence of a pattern of ownership.

As it is seen from the above-stated analysis of the legal instructions, special restrictions of the right of use by candidates, selective associations of a free broadcasting time on channels of not state organisations of tele-radio broadcasting by the federal legislation it is not provided.

Obliging instructions concerning the state and municipal organisations of tele-radio broadcasting are caused by that during elections interest of millions voters is realised, and also the public interest, and the state is obliged to provide selective process at the expense of all resources available at its order. Thereupon it is impossible to consider positions of item 51 of the Law on the basic guarantees as limiting guarantees on granting and use of a free broadcasting time on channels of not state organisations of tele-radio broadcasting.

Taking into account that elections infringe on interests of millions citizens of our state, uncertainty of legal regulation of selective process should be absent. It is necessary to exclude situations when actions of participants of selective process can formally constitute infringements of the legislation on elections, however responsibility measures to such infringers cannot be applied actually, and actions cannot limit suffrages of citizens.

Thus, comes under to addition of item 8 of item 51 of the Law on the basic guarantees regarding the certificate of the right of not state organisations of tele-radio broadcasting to give a free broadcasting time for pre-election campaign carrying out: «the Free broadcasting time on channels of such organisations is given according to the registered candidates, the selective associations which have registered lists of candidates, on equal terms (duration of the given broadcasting time, time of broadcast and other conditions)».

The analysis of a legal regulation of an order of granting of a free aether for propaganda carrying out on channels of the state and municipal organisations of tele-radio broadcasting allows to draw a conclusion on presence of actual restriction of the right of citizens on distribution and reception of the information in election campaigns. According to item 1 of item 51 of the Law on the basic guarantees the all-Russian and regional state organisations of tele-radio broadcasting are obliged to give a free broadcasting time to the registered candidates, selective associations for pre-election campaign carrying out on elections in federal public authorities, the regional state organisations of tele-radio broadcasting - on elections in public authorities of subjects of the Russian Federation, and the municipal organisations of tele-radio broadcasting - on elections in local governments.

That is at carrying out of regional or municipal elections in absence in corresponding territories of the regional state or municipal organisations of tele-radio broadcasting of the obliged subject on granting of a free aether simply is not present. Differently, use named in subitem "and" item 3 of item 48 of the Law on the basic guarantees of such method of carrying out of propaganda as propaganda on channels of the organisations of tele-radio broadcasting becomes inconvenient and even impossible if other organisations of tele-radio broadcasting do not realise the right to granting of a paid aether to corresponding elections.

It is possible to conclude, that the legislator, underlining value of mass-media in formation of selective preferences of citizens, under certain circumstances excludes their role and participation in selective process at propaganda carrying out.

At the same time in some developed democratic states participation of mass-media in propaganda process does not carry absolute value, and the principle of equality of candidates not everywhere is guaranteed at propaganda carrying out in mass-media. M.A.Andrianov being engaged in research konstitutsionno - legal regulation of participation of foreign mass-media in pre-election campaign, comes to conclusion that in the legislation Connected

States of America and Germany the principle of equal access of candidates and political parties to free to a broadcasting time and the printing area is not to the full realised. Namely, in these states broadcasting time volumes (Germany) is given or to the discretion of mass-media (USA), or taking into account results of previous elections. [152 [153]

Thus, with a view of realisation of principles of a supply with information of elections, free will of citizens it is expedient to expand guarantees of granting of a free broadcasting time on elections in the Russian Federation.

It is necessary to start with the following. First, according to position ch. 3 items 3 of the Constitution of the Russian Federation free elections along with a referendum are the higher direct expression of the power of the people. For realisation of such form of democracy level of spent elections of value has no. Secondly, the TV is the most preferable and effective means of distribution of the information on elections, including propaganda character. S.R.Usmanov within the limits of research of value of pre-election campaign on federal elections of 2007-2008 concludes about unconditional influence of pre-election campaign on political preferences of the Russian voters. So, 81 % of respondents have specified in TV as on the most significant source of the information in election campaign. Thirdly, not in all subjects of the Russian Federation there are the municipal and regional mass-media, obliged to give a broadcasting time on municipal and regional elections.

V.V. Viskulova for increase of level of guarantees of a supply with information of elections suggests to provide the following in norm of the federal act: « In case at elections to public authorities of the subject of the Russian Federation, local governments the regional state, municipal organisations of tele-radio broadcasting and regional state, municipal periodic printing editions are absent, by the law of the subject of the Russian Federation guarantees to the registered candidates, the selective associations which have registered lists of candidates, on gratuitous carrying out of pre-election campaign on the channel not less than one not state organisation of the tele-radio broadcasting, carrying out an announcement, not less than in one not state periodic printing edition extended to territories of election district should be provided. In this case expenses of not state organisations of tele-radio broadcasting and editions of not state periodic printing editions, connected with granting of a free broadcasting time and the free printing area for pre-election campaign carrying out, are compensated to these organisations and editions at the expense of the means allocated for carrying out of corresponding elections. The given rule can not be applied in

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Rural settlements ».

Other variant of expansion of guarantees of granting of a free broadcasting time on elections is possible also. It can act both as alternative and as additional to the offered V.V. Viskulovoj.

In the Law on the basic guarantees the norm of the following maintenance comes under to inclusion: «In case at elections to local governments in territory of corresponding municipal union there are no municipal organisations of tele-radio broadcasting, the regional state organisations of tele-radio broadcasting are obliged to give a free broadcasting time to the registered candidates, selective associations for pre-election campaign carrying out on elections in local governments. [154]

In a case when at elections to public authorities of subjects of the Russian Federation in territory of the corresponding subject there are no regional state organisations of tele-radio broadcasting, the all-Russian state organisations of tele-radio broadcasting are obliged to give a free broadcasting time to the registered candidates, selective associations for pre-election campaign carrying out on elections in public authorities of subjects of the Russian Federation ».

At the same time in the absence of municipal and regional mass-media to call nation-wide mass-media to give a broadcasting time on municipal elections it is inexpedient because of technical complexity and set in parallel spent on territory of the Russian Federation of municipal elections in uniform ballot day.

Also at elections to public authorities of subjects of the Russian Federation is inexpedient to oblige the municipal organisations of tele-radio broadcasting to give a free broadcasting time. The limited zone of broadcast of the municipal organisations of tele-radio broadcasting, cannot provide observance of a principle of equality of candidates and selective associations, and also will lay down in unequal conditions of a supply with information of voters.

Difficulties in practice arise and with interpretation of concepts the state and municipal organisations of tele-radio broadcasting, the state and municipal periodic printing editions that follows from the decision of Petrozavodsk city court from September, 04th, 2012 on business № 2-5621/22-2012. [155] In the given decision the court has made an estimation of two periodic printing editions about their reference to a category of municipal periodic printing editions. Namely, the court has come to conclusion, that newspapers "T" and "P" are municipal periodic

Printing editions as their editions «are not legal bodies, have no own property, are a part (structural divisions) legal person who have created them of Open Company" Å-ß "who, in turn, in the charter capital has the municipal property at a rate of 19,76 %, being a part of property of the Society and which founder is the Administration of Petrozavodsk city district, taking into consideration, that a principal view of activity of Open Company" Пс ", including the edition of newspapers, magazines and other mass-media is...».

The author believes such conclusions of court based on incorrect interpretation of norms of the substantive law, mixture of concepts the founder of edition, the founder of the legal person and the publisher of mass-media.

In item 3 of item 47 of the Law on the basic guarantees it is defined, that municipal periodic printing editions are understood as periodic printing editions, founders (souchrediteljami) which or founders (souchrediteljami) which editions at date of official publication (publication) of the decision on calling an election are local governments and the municipal organisations and (or) municipal support in the form of grants and (or) subventions on their functioning at the expense of means of the local budget appeared which for a year previous day of official publication (publication) of the decision on calling an election, and (or) in authorised (skladochnom) which capital at date of official publication (publication) of the decision on calling an election there is a share (contribution) of municipal union (municipal unions).

Thus the legislator does not do any distinction between the editions founded as independent legal bodies, or as structural divisions of their founders.

In turn, item 19 of the Law on mass-media establishes, that edition can not be founded as the independent legal person. According to item 19 of the given law the edition charter is approved by the founder who has the right, but not the duty to represent itself as edition, the publisher, the distributor, the proprietor of property of edition. Apparently from the circumstances established on business, edition of newspapers "T" and "P" Open Company "Å-ß" which is not only their founder, but also the publisher have been founded. As edition as it could be from the point of view of Law item 19 «About mass-media», the founder does not act. Thus, conclusions of court that the Administration of Petrozavodsk city district is souchreditelem editions are not proved.

This quarrel at law has meant one more problem: in a situation when the decision, action, electoral commission inactivity mentions the rights of such subjects of informing as the organisations of mass-media, the last have no possibility of their appeal by rules of chapter 26 GPK the Russian Federation. That is dispute cannot be qualified as selective.

In the considered dispute the statement moved the founder of newspapers "T" and "P" as chapter 25 GPK the Russian Federation. It has caused objections from the electoral commission believing, that its actions can appeal strictly as chapter 26 GPK against the Russian Federation and only listed in item 10 of item 75 of the Law on the basic guarantees, ch. 1 items 259 GPK the Russian Federation: voters, candidates and their authorised representatives, selective associations and their authorised representatives, political parties and their regional branches, other public associations, observers, the public prosecutor.

Such arguments have been denied by court, and business has been considered in essence. However here it is necessary to notice, that the permission of such dispute mentions suffrages of citizens as requirements have been directed on clearing of periodic printing editions of obligations on granting of the printing area for a supply with information of elections.

It is necessary to notice, that as the interested person (respondent) on affairs about contest of the list of the state and municipal mass-media on some assumption the corresponding electoral commission acts.

On the one hand, item 20 of the Law on the basic guarantees assigns to duty electoral commissions on the organisation of elections and their supply with information. In turn, item 13 of named article does obligatory decisions and certificates of the electoral commissions accepted within the limits of their powers, for all without an exception of subjects of law.

On the other hand, item 7 of item 47 of the Law on the basic guarantees establishes, that the list of the state and municipal periodic printing editions which are obliged to give the printing area for pre-election campaign carrying out, is published organizujushchej elections by the commission on representation of the enforcement authority authorised on realisation of functions on registration of mass media. That is electoral commissions do not define the status of such editions, however the list directed

With electoral commissions in the corresponding organisations of mass-media, attracts for the last legal consequences. Thereupon the presentation of requirements to electoral commission is proved and proves to be true the developed judiciary practice on similar affairs, but considered as selective disputes. [156 [157]

Today there is a research, proving a position that the organisations letting out mass-media possess the selective legal personality. R.T.Biktagirov as a substantiation of the legal personality of such organisations refers that they enter legal relations with participants of selective process and bear legal responsibility for wrongful acts in connection with their participation in election campaign. However it is standard is not fixed. Meanwhile complexities in definition of appropriate remedial registration of dispute with participation of mass-media in election campaign take away enough time for discussions of participants of process that should reduce guarantees of mass-media as participants of selective process.

It is possible to draw following conclusions.

Propaganda as the form of a supply with information of elections is differentiated from informing on the subjective and objective party: has the purpose to induce voters to vote definitely and the life of the doubtful can. Taking into account such intrinsic characteristics propaganda comes under to restrictions under the form, a circle of persons, the period and distribution conditions, on the maintenance. The purpose of restrictions is lawful: propaganda should provide free will of citizens, that is should act as a guarantee of realisation of suffrages of citizens in the Russian Federation.

At the same time not it is possible to consider all restrictions proved under the form. So, restrictions on distribution by citizens of the propaganda demanding financial expenses should consider the possible sum of the minimum expenses. It will be adjusted with tokovaniem ESPCH maintenances of the right to the information in elections and expands guarantees of realisation of suffrages of citizens.

The interdiction for distribution of negative propaganda on air unreasonably limits the rights of citizens to distribution and propaganda reception, belittles guarantees of suffrages of citizens: interferes with formation of public opinion and as consequence free will of citizens. Such interdiction is not justified also by any socially significant purpose as negative character of propaganda quite keeps within the general restrictions on information distributions: can not mention advantage of the person, can not kindle national hatred and enmity etc. Thus, the interdiction for distribution of negative propaganda on air should be excluded from the current legislation.

For increase of level of legal guarantees of realisation of suffrages, including the legal status of mass-media regarding the right certificate is required to define the rights to distribution and propaganda reception more accurately to give an aether for propaganda carrying out on a gratuitous basis with observance of a principle of equality of candidates. Also it is expedient to expand a circle of the organisations of the mass-media, obliged to give a free aether, the printing area on elections.

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A source: UHANOVA Anna Pavlovna. THE SUPPLY WITH INFORMATION OF ELECTIONS AS THE GUARANTEE OF REALIZATION OF SUFFRAGES OF CITIZENS IN The RUSSIAN FEDERATION. The DISSERTATION on competition of a scientific degree of the master of laws. Petrozavodsk 2015. 2015

More on topic § 2. Pre-election campaign as a guarantee of realisation of suffrages of citizens in the Russian Federation:

  1. § 1. Informing of voters as a realisation guarantee Suffrages of citizens in the Russian Federation
  2. § 3. Konstitutsionno-legal responsibility of candidates for Infringements of an order of carrying out of pre-election campaign as a guarantee of the rights of citizens on reception of the information on elections
  3. 2. Features of the legislation of subjects of the Russian Federation which is in limits of Southern federal district, about pre-election campaign and practice of its realisation.
  4. the Chapter II. The maintenance legal podinstituta - pre-election campaign and practice of realisation of its norms in the subjects of the Russian Federation who are in limits of Southern federal district
  5. 1. The Teoretiko-legal characteristic of pre-election campaign and its value in election campaign.
  6. § 4. Restriction of the constitutional freedom of speech during pre-election campaign. The role of a network the Internet in realisation of a freedom of speech during this period
  7. UHANOVA Anna Pavlovna. THE SUPPLY WITH INFORMATION OF ELECTIONS AS THE GUARANTEE OF REALIZATION OF SUFFRAGES OF CITIZENS IN The RUSSIAN FEDERATION. The DISSERTATION on competition of a scientific degree of the master of laws. Petrozavodsk 2015, 2015
  8. § 2. The international standards of suffrages as an element of warranting of suffrages of citizens in the Russian Federation
  9. § 2. Kinds of infringements of the legislation on intellectual property in pre-election campaign
  10. Chudov Paul Sergeevich. Konstitutsionno-legal regulation of pre-election campaign in the subjects of the Russian Federation who are in limits Southern federal district. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2005, 2005
  11. 2. Formation of standard regulation of pre-election campaign in Russia.