European Court finds Russia violated free speech rights of members of Pussy Riot
Mariya Alekhina and Others v Russia, Application No. 38004/12
Date of judgment: 17 July 2018
Court: European Court of Human Rights, Third Section
On 17 July 2018, the European Court of Human Rights (ECtHR) held that Russia had violated the right to freedom of expression of members of the band, Pussy Riot, in terms of article 10 of the European Convention on Human Rights (European Convention). The members of Pussy Riot had been arrested and detained for performing songs that were critical of the government in various public spaces, including the Christ the Saviour Cathedral in Moscow. The District Court in Moscow had also declared certain video material published by the applicants on the internet to be extremist and had ordered it to be banned.
Background to the case
The applicants are members of the Russian feminist punk band, Pussy Riot. The group carried out a series of impromptu performances of their songs in various public areas in Moscow, protesting the ongoing political process in Russia, the critical opinion which representatives of the Russian Orthodox Church had expressed about large-scale street protests against the results of the 2011 parliamentary elections, and the participation of Vladimir Putin in the upcoming presidential election. According to the applicants, their songs contained “clear and strongly worded political messages critical of the government and expressing support for feminism, the rights of minorities and the ongoing political protests”.
On several occasions between October 2011 and January 2012, following public performances, the applicants were arrested under fined under Article 20.2 of the Code for Administrative Offences for organising and holding an unauthorised assembly. Furthermore, on 21 February 2012, the applicants and other members of the band attempted to perform a song called ‘Punk prayer – Virgin Mary, drive Putin away’ on the altar of the Christ the Saviour Cathedral in Moscow. The performance lasted approximately one minute before security guards forced the band out.
On 21 February 2012, a complaint was lodged at a district police station in Moscow, claiming that there had been a violation of public order by a group of unidentified individuals at the Christ the Saviour Cathedral, and that this had insulted the feelings of members of the church. A subsequent complaint described the applicants’ conduct as disorderly, extremist and insulting to Orthodox churchgoers and the Russian Orthodox Church. When interviewed by the police, cathedral staff members indicated that their religious feelings had been offended.
On 24 February 2012, the police instituted criminal proceedings, and charged the applicants with the aggravated offence of hooliganism motivated by religious hatred. The applicants were placed in custody subject to detention orders issued by the District Court from mid-March 2012.
Previous decisions of the domestic courts
Criminal prosecution of the applicants
On 17 August 2012, the District Court found the three applicants guilty under Article 213§2 of the Russian Criminal Code of hooliganism for reasons of religious hatred. It found that they had committed the crime in a group, acting with premeditation and in concert, and sentenced each of them to two years’ imprisonment. Furthermore, it held that the applicants’ choice of venue and apparent disregard for the Cathedral’s rules had demonstrated their enmity towards the feelings of Orthodox believers, and that the religious feelings of those present in the Cathedral had therefore been offended. The District Court rejected the applicants’ arguments that their performance had been politically, rather than religiously, motivated.
On 10 October 2012, the Moscow City Court upheld the judgment of the District Court in respect of the first two applicants, but suspended the sentence in respect of the third applicant. On 23 December 2013, the applicants were granted amnesty.
Filtering of internet content
In a separate decision, the District Court also ruled that video content on the Pussy Riot website was extremist – namely the video-recordings of their performances of Riot in Russia, Putin Wet Himself; Kropotkin Vodka; Death to Prison, Freedom to Protest; Release the Cobblestones and Punk Prayer: Virgin Mary, Drive Putin Away – and ordered that access to that material be limited by a filter on the website’s IP address. In this regard, relying on the Suppression of Extremism Act and the Federal Law on Information, Information Technologies and the Protection of Information, the District Court concluded that:
[F]ree access to video materials of an extremist nature may contribute to the incitement of hatred and enmity on national and religious grounds, and violates the rights of a specific group of individuals – the consumers of information services in the Russian Federation. The court accepts the prosecutor’s argument that the dissemination of material of an extremist nature disrupts social stability and creates a threat of damage to the life, health and dignity of individuals, to the personal security of an unidentified group of individuals and disrupts the basis of the constitutional order of the State. Accordingly, the aforementioned activities are against the public interests of the Russian Federation.
Judgment of the ECtHR regarding freedom of expression
Criminal prosecution of the applicants
Before the ECtHR, the applicants argued that the institution of criminal proceedings against them, entailing their detention and conviction, for their performance in February 2012 had amounted to a gross, unjustifiable and disproportionate interference with their freedom of expression contained in article 10 of the Convention. At the outset, the ECtHR reiterated its jurisprudence that the right to freedom of expression is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb, as this is what is demanded by pluralism, tolerance and broadmindedness in a democratic society. The ECtHR noted further that the right to freedom of expression protects both the substance of the ideas and information expressed, as well as the form in which they are conveyed.
The judgment of the ECtHR focused on whether the limitation of the right to freedom of expression was necessary in a democratic society, which required a determination of whether the interference was proportionate to the legitimate aim pursed and whether the reasons adduced by the national authorities were relevant and sufficient. The ECtHR accepted that the matters dealt with by Pussy Riot were ones of public interest, and contributed to the debate on the political situation in Russia.
In the present case, the ECtHR held that although the performance taking place at the Christ the Saviour Cathedral can be considered as having violated the accepted rules of conduct in a place of religious worship, the punishment imposed on the applicants was very severe in relation to the actions in question. Moreover, while the ECtHR accepted that as the conduct in question took place in the Cathedral it could have been found offensive by a number of people, including churchgoers, it nevertheless held that there was no basis to conclude that the applicants’ conduct amounted to incitement to religious hatred, or that any harmful consequences had ensued.
Accordingly, the ECtHR held that the applicants had suffered a violation of their rights under article 10 of the Convention.
Filtering of internet content
The applicants further argued that the Russian courts had violated their right to freedom of expression by declaring that the video materials available on the internet were extremist and ordering that a ban be placed on access to that material. Again, the judgment of the ECtHR focused on whether the limitation of the right to freedom of expression was necessary in a democratic society. The ECtHR noted that there is little scope under article 10(2) of the Convention for restrictions on political speech or on debate of questions of public interest. As the ECtHR stated, “[w]here the views expressed do not comprise incitements to violence – in other words, unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporter’s goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons – Contracting States must not restrict the right of the general public to be informed of them”.
The ECtHR noted that the decision of the District Court was deficient for a number of reasons, including that it did not conduct its own analysis of the video materials in question, and it had refused to allow the applicants to participate in the proceedings. In the ECtHR’s view, a domestic court can never be in a position to provide relevant and sufficient reasons for an interference with rights without some form of judicial review based on a weighing up of the arguments put forward by the public authority against those of the interested party. In the present case, the ECtHR concluded that the declaration by the District Court that the applicants’ video materials were extremist and placing a ban on access to them did not meet a “pressing social need”. Accordingly, the ECtHR held that this was disproportionate to the aim invoked, and the interference was not necessary in a democratic society.
The full judgment is accessible here.
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