Contemporary Problems of Social Work
Information support of elections as guarantee of implementation of the active suffrage of citizens of the Russian Federation
Автор/Author: Reut D.A.
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In jurisprudence the essence of information support of elections as guarantees of implementation of the active suffrage, a guarantee of participation of citizens of the Russian Federation in elections as one of forms of direct implementation of democracy is insufficiently fully opened now. The right and distribution of information can't be absolute, nothing the caused value. Only at observance of the restrictions dictated by the constitutional principles of the democratic state, the sovereignty and democracy defined, set by the law, information will be the legal tool providing such necessary lines of electoral process as freedom and sensibleness of a choice, equality on participation in elections and publicity, and in a result and legitimacy of the elected power.
Life of modern Russian society is inconceivable without elections. Elections are held annually. Elections are held on different systems: majority, proportional, mixed. Elections are held as in the uniform voting day (the second Sunday of September), and in any other day off if elections are held ahead of schedule. Choose candidates of representative bodies of various level, mayors of the cities and governors. Elections in public authorities of 85 subjects of the Russian Federation and in local governments of municipalities which in Russia more than twenty two thousand are held. Elections of federal public authorities are held not so often, but with much bigger scope and a resonance in all regions and in the country in general: the closest elections of deputies of the State Duma of Federal Assembly of Russia will take place in December, 2016, an election of the president of the Russian Federation – in March, 2018.
During election campaign, and sometimes in addition and till its beginning the most real information squall, falls of data on the events connected with elections falls upon the heads of voters. Both positive, and negative information on candidates or political parties (electoral associations) prevails, thus, in different forms.
In such volume of data it is hard for professional journalists and experts to be guided even in the field of public relations. As a result to choose from uncountable number of messages on air of television and radio, a huge number of publications in newspapers and magazines, publications on the Internet in general and on social networks in particular, to estimate colourful slogans and beautiful words on propaganda leaflets and banners and it is necessary to give on the basis of such assessment the preferences to this or that participant of pre-election race to the main person on elections – to the voter.
Meanwhile, technologies are done not stand still. Social networks develop, possibilities of the Internet develop, the stable growth of constant users of a network is observed. So, from 2003 for 2014 the number of constant Internet users in Russia grew by 7,5 times. Information published on the Internet receives wide public publicity, trust level to it grows, more than a half of Russians and more than three quarters of users of a network speak about it.
There was a situation when the existing relations don't keep within the operating legal framework. And this tendency only amplifies from elections to elections. In relation to mass media the legislator takes steps to the solution of this problem. So, the law provided such type of mass media as the network edition on which action of the Law of the Russian Federation "About mass media" extends. But further it the legislator promoted.
Information plays the special, in many respects defining role the period of preparation and elections and applicable to these relations there is a set of questions in the context of the aforesaid.
For the answer to these questions it is necessary to define first of all value and the purpose of distribution and obtaining information in constitutional and legal aspect of elections as one of forms of the highest direct expression of the power of the people.
Basic rights on distribution and obtaining information and on participation in administration of the state by means of elections found reflection in acts of international law. Their contents makes the right for freedom of thought, the right freely to adhere to the opinions, the right to freedom of expression, the right freely to look for, receive and distribute various information in all possible forms; the right to take part in administration of state affairs through the elected representatives, the right to choose and be elected.
For the considered subject important also fixing in acts of international law of the basic principles of elections: free elections, a general equal electoral right, freedom of will on elections, obligation and reasonable frequency of elections.
Thus follows from the considered acts of international law that use of the above rights isn't absolute, nothing the caused principle. Use of the right imposes special responsibility and assumes execution of the duties connected with this right. The priority principle of respect of the rights of other persons, a priority of the public relations on protection of state security, a public order and moral is established.
In relation to electoral process in the Russian Federation also that norms of international law allow introduction of restrictions of the above rights on political activity of foreigners is important.
The institute of free elections is carried by the constitution of the Russian Federation to founded the constitutional system, free elections – one of forms of the highest direct expression of the power of the multinational people of Russia as carrier of the sovereignty assuming supremacy, independence and independence of the government, completeness of legislative, executive and judicial authority of the state on its territories and independence in the international communication. The constitutional rights carried to bases of legal status of the person and citizen on freedom of thought and the word, on receiving and distribution of information, the right to choose and be elected in public authorities and local governments are guaranteed.
The legal nature of the constitution as Basic law consists in its constituent character, in special nature of its norms – as norms principles, norms definitions, in its quality as fundamental principles, primary character [6, p. 10, 67].
Thus, proceeding from an essence of a subject of legal regulation, the constitution is extremely laconic also further development of sense of the principles enshrined in it, including – by improvement of the legislative base having the constitution as the basis it is supposed. The constitution defines contents of the current legislation [12, p. 114]. Thus, constituent character of the basic law encourages lawmaking, but in certain borders of the principles proclaimed the constitution. The constitution establishes an order for legal system [12, p. 250].
In this regard scientists mark out the following regularity. Efficiency and durability of the adopted law directly depends on abilities of the legislator to expect the future [17, p. 64], and the standard and legal behavior is understood as behavior programmable [11, p. 19].
Today a situation such is that the regulations regulating such institute of a constitutional right as an electoral system are exposed to changes constantly, generally – annually after each federal election campaign or election campaigns of regional level. So, from the moment of adoption of the Federal law "About the main guarantees of electoral rights and the rights for participation in a referendum of citizens of the Russian Federation" (further – the Federal law No. 67-FZ) changes were made to it 81 times. From them 11 times were exposed to editing of norm, the regulating order of information support of elections and referenda.
Bewilderment is caused also by change of the direction of legal regulation. So, article 3 Federal the law from 20.12.2002g. No. 175-FZ (an edition of 25.07.2006) "About elections of deputies of the State Duma of Federal Assembly of Russia" provided election of deputies on the mixed, proportional and majority system. Article 3 of the Federal law of 18.05.2005 No. 51-FZ (an edition of 02.04.2014, with amendment of 16.12.2014) "About elections of deputies of the State Duma of Federal Assembly of Russia" established an order of election of deputies only on proportional system. And, at last, the Federal law of 22.02.2014 N 20-FZ (an edition of 24.11.2014) "About elections of deputies of the State Duma of Federal Assembly of Russia" (article 3) returned the mixed, proportional and majority system of election of deputies.
The sad conclusion follows from the aforesaid: to expect the future in development of the public relations connected with election of public authorities and local governments, the legislator can't expect needs of society for effective legal instruments (guarantees) of implementation of electoral rights yet. The adopted laws have no scientific justification. Laws are adopted not for realization of the constitutional installations and tasks, not in the context of the program of development of society and the state put in the constitution, but used as the lever of momentary influence for the purpose of receiving short-term result in interests of separate political forces. Moreover, in the scientific environment opinions that such legal regulation leads actually to alienation from the constitutional institutes of the power of separate segments of the population are expressed and this process comes nearer to a critical mark [7, p. 234]. In a contradiction with essence of democracy as realization of will of the majority on condition of observance of the rights of minority actually economically safe minority, possessing imperious tools, establishes an order, proceeding from the interests. Thus most of the population is discharged of the power by the legal ways consisting in increase of legislative requirements to democratic procedures [12, p. 311]. For this reason the legislation on elections is so unstable.
Thus, the legislator never denied the leading role of mass media and information. The ordinary phrase is known: "Who possesses information, that owns the world". The conclusion follows from this statement that the one who owns mass media, owns public consciousness. Important how information will be presented.
Mass media control all spheres of activity of society: separate elements are allocated, they are given the increased importance, thus due to increase of value of one idea another depreciates [9, p. 58]. Mass media are the strongest tool in the course of formation of public opinion [16, p. 7]. The public opinion, in turn, regulates behavior of certain people and social groups, acts as the regulator of the public relations [15, p. 82-83].
Concerning a role of institute of information support of elections in democracy implementation, in general, and about a place of mass media in electoral process, in particular, we note the following.
Information support of elections is complex institute of electoral laws of the Russian Federation and includes two subinstitutes: informing voters and pre-election campaign [10, p. 10]. Maximum efficiency of legal regulation is reached by action of institute as sets of the related constitutional precepts of law regulating one group of the public relations [6, p. 13]. The above-named provisions of the Constitution of the Russian Federation and international law, the norms containing in Chapter VII "Guarantee of the rights of citizens for receiving and distribution of information on elections and referenda" of the Federal law No. 67-FZ and a number of the laws regulating an order of elections of various level and types are the cornerstone of institute of information support of elections: federal laws "About an election of the president of the Russian Federation", "About elections of deputies of the State Duma of Federal Assembly of Russia", the laws of subjects of the Russian Federation regulating an order of elections to public authorities of subjects of the Russian Federation and in local governments (for example, the Law of the Moscow region "About elections of the Governor of the Moscow region", the Law of Altai Republic "About elections of deputies of Altai Republic", the Law of the Republic of Tyva "About elections of deputies of a representative body of municipality, the elected official of local government in the Republic of Tyva", etc.) . The important place at institute of information support of elections is taken by the laws which aren't carried directly to electoral laws, but nevertheless containing the norms regulating the considered legal relationship: The law of the Russian Federation "About mass media", federal laws "About political parties", "About public associations", "About information, information technologies and about information security", "About meetings, demonstrations, processions", "About counteraction of extremist activity" and others.
At institute of information support of elections one feature is important: the tone is set here by the Federal law No. 67-FZ, it is "frame", defining features of the right regulation of these legal relationship, laws and other normative legal acts shouldn't it contradict.
From the name of this Federal law – "About the main guarantees of electoral rights and the rights for participation in a referendum of citizens of the Russian Federation", accepted in development of the above-named provisions of the Constitution of the Russian Federation having constituent value and establishing an order in legal system follows that a main goal of legal regulation of the law is creation and realization of legal mechanisms, procedures of direct implementation of democracy in the form of the free elections based on general equal and a direct suffrage at ballot, the procedures providing legitimacy of the elected power, and also implementation of the basic principle of democracy in its legal sense – the principle of realization of will of the majority at the account and protection of the rights of minority which aren't allowing an exception of the last of political process.
In this context information support of elections should be considered as a guarantee of realization of the right of citizens for participation in elections as one of forms of direct implementation of democracy as a guarantee of that elections will carry out the appointment – to be also procedure and at the same time result of will of the people and to have the character determined by the Basic law that is will correspond to the above criteria. This position is corresponded also by a position of the European Court of Human Rights noting that the freedom of speech is necessary a condition of ensuring free expression of opinions of the people when electing authorities.
In interpretation of the word "guarantee" Ojegov's and Ushakov’s dictionaries give identical concept: the guarantee, bail in something, providing. Dahl's dictionary supplements to it: the bezopaska, an obezopaska, a bezopasenye to secure, secure , obviously, placing emphasis on function of a guarantee in the form of safety.
Thus, information support of elections is not simply a guarantee of implementation of electoral rights of citizens, but also, in a broad sense, the mechanism involved in process of ensuring the constitutional safety which is the main idea of the constitutional doctrine as sets of scientific views on branch of a constitutional right [12, p. 253]. The constitution acts as a security measure of national security from the inefficient government [12, p. 255]. So, follows from the maintenance of a number of articles of the Constitution of the Russian Federation and the Federal law No. 67-FZ that elections to public authorities and local governments are obligatory and periodic. The specified regulations established deadlines to which public authorities and local governments can be elected. Performance of the constitutional principle of responsibility of authorities before the people in the form of removability of the elected representatives of the people when elected officials, the deputies who didn't justify trust of voters during execution of the powers are re-elected on the following next main elections is guaranteed. Without appropriate information support this legal mechanism can't work properly.
Point 10 of article 48 of the Federal law No. 67-FZ provided an obligation of the political party which proposed the registered candidates, the registered lists of candidates to publish an election program about one voting day. Responsibility for non-performance of this norm isn't provided by the current legislation. On federal elections this duty, is generally carried out that can't be told about elections of regional and local level.
Publication of an election program, as well as its representation in election commission together with the documents necessary for promotion of the candidate, the list of candidates, has to be obligatory for all candidates, proposed directly, regardless of the subject of promotion (self-promotion, promotion an electoral association), and also for the electoral associations (political parties, public associations, having the right to take part in elections) which proposed lists candidates. Also legislative fixing of concept of an election program is necessary.
Liability for failure to provide and unpublishing of the above program in the form of refusal in registration, cancellation of registration of the candidate, the list of candidates has to be at the same time imposed.
The right of voters for obtaining information on elections means the right to know, what actions assumes to take, what ways of development of society, a solution of actual social problems are offered by the candidate in case of his election. Not incidentally as one of the main objectives of information support of elections the Federal law No. 67-FZ calls conscious will of voters. People have to understand and realize not only for whom they vote, but also in what way of development of society, perhaps, will be chosen for the next years. The constitutional principle of democracy recognizes that on elections not thoughtless, but politically conscious voter [19, p. 85].
Logical addition to this duty of candidates will be the duty for the acting people's deputies intending to seek the reelection, to publish the report on performance of the election program declared on the previous elections prior to election campaign. Even in case the data containing in such report aren't true, such circumstance already in itself will serve as criterion of an assessment of activity of the candidate from voters. Thus performance of this duty won't be in a conflict with the ban on publication of reports on the done work during election campaign established by the subparagraph "z" point 5 of article 40 of the Federal law No. 67-FZ as it will be carried out prior to election campaign.
Imposing of this duty on the elected official seeking reelection won't mean creation for such candidate of the additional conditions of promotion breaking the principle of equal participation in elections enshrined in article 3 of the Federal law No. 67-FZ. On the constitutional legal status elected officials represent interests the people and it is certainly connected with certain standards of behavior and imposes the duties corresponding to such status. The politicians seeking to secure with public opinion thereby agree to become object of public political debate and criticism in mass media. The state officials can be criticized in mass media how they fulfill the duties as it is necessary for ensuring public and responsible execution of the powers by them.
In the scientific environment the opinion, was expressed on that that, without resorting to the selective technologies often having destructive character it is possible to achieve a victory on elections only if the politician or political party understand problems and moods of voters and can offer such program for which the majority [5, p. 5].
The similar mechanism worked fully in the Soviet Union and completely acquitted itself, without allowing people's deputies to come off interests of voters. Candidates gave orders of voters, that is requests, wishes and requirements for development of the respective territory to Council which deputies they then became. And for performance of this order before voters the Council of deputies in general and each deputy before voters of the district bore responsibility. The duty to report to voters was provided at the legislative level. Thus, compulsory procedures concerning orders of voters supplemented elections as a form of direct implementation of democracy. For lack of these procedures modern elections turned in idle time "means of giving of voices for parties or for specific candidates" [1, p. 7].
A number of scientific works is devoted to other problem connected with a ratio among themselves of subinstitutes of pre-election campaign and informing voters [2, 4, 10, 20]. The specified works are united by the general idea – need legislatively to separate the concepts "informing voters" and "pre-election campaign". Both that, and another together make information support of elections and promote conscious will of citizens, publicity of elections.
Thus the purposes of information impact on voters at these two components the different. So, according to articles 2, 48 of the Federal law No. 67-FZ the purpose of pre-election campaign – to induce voters to vote for the candidate, candidates, the list, lists of candidates or against it (them). Points the Constitutional Court of the Russian Federation to existence of such purpose in quality of a distinctive sign of pre-election campaign. The purpose of informing is bringing to data of voters of objective and fullest information on election campaign [10, p. 87].
It is obvious that legal tools, so different in the contents and the purposes, demand also establishment concerning each of them of the particular legal regime connected with imposing at the legislative level of certain restrictions that only partly finds the reflection in the current legislation.
The international law, the Constitution of the Russian Federation allow possibilities of establishment of restrictions of the rights and freedoms if it is caused by need of protection of the rights and legitimate interests of other persons. According to the European Court of Human Rights the restrictions of the right for a freedom of speech during elections aiming to provide free expression of opinions of the people when electing legislature are allowed. Such restrictions are proved by a priority of public interests over personal [3, p. 5-8], and also a combination in elections as one of forms of direct democracy of a personal interest of each specific voter who is expressed in participation in administration of the state, and the public interest which is expressed in objective results of elections and formation on this basis of bodies of the public power.
In the context of the aforesaid at the beginning of article about variety of ways of information impact on consciousness of voters (including – through numerous mass media) it is necessary to divide legislatively information streams, having allocated, actually, informing and pre-election campaign. Only in that case information support of elections will promote sensibleness of will of voters. Especially as experience such regulation is. So, by article 46 of the Federal law No. 67-FZ publication of results of polls within five days about one day and in the voting day is forbidden. Similar it has to be established concerning all possible ways of pre-election campaign and the propaganda period for candidates, electoral associations: the beginning – from the moment of promotion, the termination – in five days prior to the voting day. Thus terms of implementation of the informing meaning distribution reliable, objective and neutral concerning preferences to participants of elections of information aren't limited.
Based on the legal criteria of differentiation of the concepts "informing voters" and "pre-election campaign" developed by science, such approach will allow to divide the above information streams, to avoid mixture of official information messages (and it, first of all, the message of the election commissions and executive authorities obliged to carry out informing voters) and propaganda materials. Under such circumstances actions of candidates, the political parties which are deliberately masking the pre-election campaign under official information messages of election commissions, public authorities [21, 22, 24] lose meaning. Similar legal regulation is much more effective, than idle time will lock: it is better to create a situation when to the subject of legal relationship it becomes unprofitable to break the law, than to be limited only to a ban and then to punish violators. As practice, on elections where as in a known saying about love and war, all means are good, possibility of attraction to legal responsibility stops nobody shows. It is confirmed also by the situation existing now: in the right the tendency to refusal of not always objective use of a ban [8, p. 2].
At such approach to legal regulation two forms of information support of elections won't disturb each other and will carry out fully the main objective – contribution to conscious will of voters. Such regulation is directed on the coordinated implementation of informing voters and pre-election campaign each of these forms of information support of elections wasn't used to the detriment of another, didn't interfere with its implementation.
And, at last, a problem which each elections "puts on ears" both the public, and law enforcement agencies, and system of election commissions: use of a cyberspace on elections.
It is noted that in the legislation there is no uniform approach to regulation of legal relationship in a cyberspace, but thus the term at all its convention is even more often mentioned in legal literature [18, p. 115; 13, p. 248].
Earlier the idea of application of the special legal regime concerning distribution of information on elections concerning the Internet resources registered as mass media [10, p. 96].
Today the Law of the Russian Federation "About mass media", having provided a new type of mass media – the network edition, doesn't establish obligation of registration as mass media of the site in the information and telecommunication Internet network, such registration is carried out voluntary.
It is advisable to extend the above legal regime as well to the sites in the Internet, pages on social networks which aren't registered as mass media.
Follows from the rules fixed in the legislation that pre-election campaign has to be paid only from means of the corresponding election fund and be carried out at obligatory performance of a number of conditions and observance of a number of restrictions. Violation of the specified rules conducts to violation of the principle of equality and competitiveness of candidates on elections and, finally, leads to violation of the rights of voters. Taking into account it, in case of a violation of the law about an order of distribution of information on elections in a cyberspace an adequate measure of restoration of a law and order will be blocking of an appropriate resource about one voting day on elections inclusive. Such blocking can be carried out by Roskomnadzor according to the indication of the relevant election commission. It is legislatively necessary to fix that the relevant decision has to be made on the basis of the technique developed Russian CEC and proceeding from the maintenance of spread information and volume of audience, taking into account all circumstances of the arisen conflict.
The above approach will allow to solve also other actual problem of information support of elections: performance of the provisions of the law forbidding to carry out pre-election campaign to foreign citizens. Such ban is based on norms of international law and aimed at providing the constitutional principles of the sovereignty and democracy, constitutional safety. It is noted that the relations in a cyberspace have cross-border character, very often at them there is a foreign element [18, p. 117].
Follows from constitutional and legal sense of institute of information support of elections that it is not only a guarantee of free and conscious will of voters on elections, but also an indispensable condition without which direct implementation of democracy is impossible. In essence, lawfully collected and a lawful way spread information on elections not only provides realization of the principles of sensibleness of will and publicity, but also acts as a measure of prevention, prevention of violations of electoral laws.
The institute of information support of elections can act as the above guarantee only at observance of the certain conditions, the principles and tasks dictated by the Constitution of the Russian Federation. As Yu.I. Skuratov, "Notes at all importance of such socio-political phenomena and the corresponding values as the power, human rights, the republic as the form of government, federalism, the sovereignty, democracy, they have tool character and are urged to provide the solution of problems of more general, deep property – providing conditions for worthy human life, reproduction and continuation of the human race, preservation and development of the country – Russia – as unique phenomenon of a world civilization …. From here it is quite natural that the highest criterion of efficiency of legal means is their social value, usefulness for society." [14, p. 13, 14].
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 Federal'nyj zakon ot 19.06.2004 N 54-FZ (red. ot 04.10.2014) "O sobranijah, mitingah, demonstracijah, shestvijah i piketirovanijah" // IPS Konsul'tanPljus.
 Federal'nyj zakon ot 25.07.2002 N 114-FZ (red. ot 31.12.2014) "O protivodejstvii jekstremistskoj dejatel'nosti" // IPS Konsul'tanPljus.
 Reshenie ESPCh po delu Mat'e-Mojen i Klerfejt protiv Bel'gii ot 2 marta 1987 g. // IPS Konsul'tanPljus.
 Deklaracija o svobode politicheskoj diskussii v SMI. Prinjata 12.02.2004 na 872-m zasedanii Komiteta Ministrov Soveta Evropy. St. st. 3, 4 // http://www.coe.int/t/dghl/standardsetting/media/doc/translations/russian/Dec(2004)PoliticalDebate_ru.pdf.
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 Konstitucija Rossijskoj Federacii. ch. 3 st. 55 // SPS Konsul'tantPljus.
 Postanovlenie Evropejskogo suda po pravam cheloveka ot 19.02.1998 "Bouman (Bowman) protiv Soedinennogo Korolevstva" // IPS Konsul'tanPljus.
 Postanovlenie Konstitucionnogo Suda RF ot 15.04.2014g. № 11-P «Po delu o proverke konstitucionnosti punkta 1 stat'i 65 Federal'nogo zakona «Ob osnovnyh garantijah izbiratel'nyh prav i prava na uchastie v referendume grazhdan Rossijskoj Federacii» v svjazi s zaprosom Zakonodatel'nogo Sobranija Vladimirskoj oblasti» // IPS Konsul'tantPljus.
 Postanovlenie Konstitucionnogo Suda RF ot 11.06.2003 N 10-P "Po delu o proverke konstitucionnosti Federal'nogo konstitucionnogo zakona "O vnesenii izmenenija i dopolnenija v Federal'nyj konstitucionnyj zakon "O referendume Rossijskoj Federacii" // IPS Konsul'tantPljus.
 Postanovlenie Pravitel'stva RF ot 16.03.2009 N 228 (red. ot 27.12.2014) "O Federal'noj sluzhbe po nadzoru v sfere svjazi, informacionnyh tehnologij i massovyh kommunikacij" // IPS Konsul'tantPljus.
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 Konvencija o zashhite prav cheloveka i osnovnyh svobod, st. 16 (ETS № 5, Rim, 04.11.1950), st. 10 // IPS Konsul'tantPljus.