Постановление Европейского суда по правам человека от 21.10.2010 «Дело Салиев (Saliyev) против России» [англ.]

article. Therefore, the withdrawal can be characterised as an "interference" with the applicant's rights under Article 10 of the Convention. The Court has to ascertain now whether that interference was by the State or by a private actor.

2. Whether the interference was by a State authority

(a) Who ordered the withdrawal?
62. The parties disagreed as to who had ordered the withdrawal. According to the Government, the withdrawal was ordered by Mr Svistunov, the editor-in-chief. The applicant alleged that the withdrawal had been ordered by Rospechat, the distribution agency. His assertion was corroborated by Mr Svistunov's letter of 11 November 2001 to the head of the trade union of the hydroelectric power plant, by his submissions to the Magadan Town Court of 7 April 2003 and, to a certain extent, by his own submissions to the Court. On the other hand, the Government's account was confirmed by the testimony of the head of Rospechat given on 30 January 2003 and by Mr Svistunov's own testimony given to the investigator on 31 January 2003, as well as by the findings of the domestic courts which established that the withdrawal had been on the newspaper's own initiative.
63. The Court notes that Mr Svistunov's own account was rather inconsistent throughout the domestic proceedings, whereas another direct witness, namely the head of Rospechat, consistently testified that it had been Mr Svistunov's decision to withdraw the newspapers. There is no proof, besides the applicant's words, that the withdrawal request signed by Mr Svistunov had been backdated. The content of Mr Svistunov's letter to the trade union could be explained by his desire to exonerate himself from responsibility for a situation which he apparently regarded as anomalous and which led to his resignation. In sum, the evidence produced by the applicant is insufficient to make the Court depart from the findings of the domestic courts in this respect. The Court concludes that the withdrawal of the newspapers was ordered by the editor-in-chief of Vecherniy Magadan.
(b) Did Mr Svistunov represent the municipality?
64. The Court notes that it is unclear whether and to what extent the municipal newspaper or its organs can be equated with the municipality. The Court points out that in Radio France and Others v. France ((dec.), No. 53984/00, ECHR 2003-X (extracts); see also {Osterreichischer} Rundfunk v. Austria, No. 35841/02, §§ 46 et seq., 7 December 2006), the Court defined the applicable criteria as follows:
"In order to determine whether any given legal person other than a territorial authority falls within the category [of "governmental organisations"], account must be taken of its legal status and, where appropriate, the rights that status gives it, the nature of the activity it carries out and the context in which it is carried out, and the degree of its independence from the political authorities."
65. In the case at hand, the newspaper was incorporated as a separate legal entity and, in theory, its editorial board enjoyed a certain degree of freedom in deciding what to publish. This is to some extent confirmed by the fact that the applicant's article had been admitted for publication. Furthermore, the charter of the newspaper proclaimed that the municipality could not oblige the newspaper to publish particular material (other than legislative acts or official notifications).
66. However, the newspaper was set up to provide a public service (informing the population about official and other events in the town) in the form of a "municipal institution". All of its real property and equipment belonged to the municipality. The editor-in-chief was appointed and paid by the municipality. Although in theory the newspaper was allowed to have independent sources of income (from advertising, for instance), they were of m

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