By Dirk Voorhoof, Human Rights Centre, Ghent University and Legal Human Academy

In its judgment of 17 July 2018 the ECtHR has found various violations of the rights of the members of the feminist punk band Pussy Riot. The ECtHR found violations under Article 3 (prohibition of inhuman or degrading treatment), Article 5 § 3 (right to liberty and security) and 6 §§ 1 and 3 (c) ECHR (right to fair trial), in relation to the conditions of their transportation and detention in the courthouse, their pre-trial detention, the treatment during the court hearings (being exposed to public view in a glass dock surrounded by armed police), and restrictions to legal assistance. Most importantly the ECtHR found the criminal prosecution and prison sentence of the Pussy Riot members a breach of their freedom of expression under Article 10 ECHR. It also found that their right to freedom of expression has been violated on account of declaring the Pussy Riot video material available on the Internet as extremist and banning it. This blog focusses on the applicants’ rights under Article 10 ECHR.

Pussy Riot’s performance in a cathedral, posted on You Tube

The three applicants are members of the Russian punk band, Pussy Riot: Ms Mariya Vladimirovna Alekhina, Ms Nadezhda Andreyevna Tolokonnikova and Ms Yekaterina Stanislavovna Samutsevich. The group carried out a series of impromptu performances of their songs Release the Cobblestones, Kropotkin Vodka, Death to Prison, Freedom to Protest and Putin Wet Himself in various public areas in Moscow, such as a subway station, the roof of a tram, on top of a booth and in a shop window. According to Pussy Riot, their actions and performances were a response to the ongoing political process in Russia. They argued that 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”.

Before the Strasbourg Court the three members of Pussy Riot complained about their conviction and imprisonment for attempting to perform one of their protest songs in a Moscow cathedral in January 2012. The performance in the cathedral was meant to express disapproval of the political situation in Russia at the time and of Patriarch Kirill, leader of the Russian Orthodox Church, who had strongly criticised the large-scale street protests across the country against the recently held parliamentary elections and the approaching presidential election. No service was taking place, but some people were inside the cathedral, including journalists and the media invited by the band for publicity. The performance only lasted slightly over a minute because cathedral guards quickly forced the band out. The band uploaded the video footage of their attempted performance to their website and to YouTube. The three Pussy Riot members were arrested shortly after the performance for “hooliganism motivated by religious hatred” and were held in custody and pre-trial detention for just over five months before being convicted as charged. The trial court found that the Pussy Riot action had been offensive and insulting, referring to their brightly coloured clothes and balaclavas, their waving their arms and kicking their legs around and their obscene language. The court rejected Pussy Riot’s arguments that their performance had been politically and not religiously motivated, and they were sentenced to one year and eleven months imprisonment for hooliganism motivated by religious hatred and enmity, committed in a group acting with premeditation and in concert, under Article 213 § 2 of the Criminal Code. All appeals against this decision failed. The domestic courts also ruled that the performance had been offensive and banned access to the “extremist” video recordings Pussy Riot had subsequently uploaded onto the Internet. The first and second applicants served approximately one year and nine months in prison before being amnestied, while the third applicant served approximately seven months imprisonment before her sentence was suspended.

The Court: mix of conduct and verbal expression

In June 2012 the three Pussy Riot members lodged an application with the ECtHR against the Russian Federation. Their submissions were supported by various third party interveners, such as the Alliance Defending Freedom (ADF), Amnesty International, Human Rights Watch and Article 19, all arguing that the Russian authorities had acted in breach with the applicants’ rights under Article 10 ECHR.

With regard to the punk band’s right to freedom of expression the ECtHR reiterates that it includes freedom of artistic expression which affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds, such an exchange of ideas by those who create and perform art being essential for a democratic society. The ECtHR also clarified that opinions or artistic works, apart from being capable of being expressed through the media, can also be expressed through conduct. For example, the public display of several items of dirty clothing near the Hungarian Parliament, representing the “dirty laundry of the nation”, has been qualified as a form of protected political expression (see Tatár and Fáber v. Hungary). Likewise, pouring paint on statues of Ataturk has been considered as an expressive act performed as a protest against the Turkish political regime at the time (see Murat Vural v. Turkey).

The Court considers:

“In the case at hand, the applicants, members of a punk band, attempted to perform their song Punk Prayer – Virgin Mary, Drive Putin Away from the altar of Moscow’s Christ the Saviour Cathedral as a response to the ongoing political process in Russia (..). They invited journalists and the media to the performance to gain publicity. For the Court, that action, described by the applicants as a “performance”, constitutes a mix of conduct and verbal expression and amounts to a form of artistic and political expression covered by Article 10 (§§ 205-206).

 The criminal conviction and prison sentence

There is no discussion that the criminal proceedings against the applicants, which resulted in prison sentences, amounted to an interference with their right to freedom of expression. Given that the applicants’ performance took place in a cathedral, which is a place of religious worship, the ECtHR considers that the interference at issue can be seen as having pursued the legitimate aim of protecting the rights of others, while it leaves the question open we as to whether the interference was “prescribed by law”.

In its assessment of the necessity in a democratic society of the interferences at issue, the ECtHR emphasises that Pussy Riot’s actions contributed to the debate about the political situation in Russia and the exercise of parliamentary and presidential powers. The ECtHR  reiterates that there is little scope under Article 10 § 2 ECHR for restrictions on political speech or debates on questions of public interest, and very strong reasons are required for justifying such restrictions. On the other hand, Article 10 ECHR does not bestow any freedom of forum for the exercise of that right and does not create an automatic right of entry to private or publicly owned property. Holding an artistic performance or giving a political speech in a type of property to which the public enjoys free entry may, depending on the nature and function of the place, require respect for certain prescribed rules of conduct. As the Pussy Riot performance took place in a cathedral, it can be considered as having violated the accepted rules of conduct in a place of religious worship, which eventually could justify the imposition of certain sanctions, in order to protect the rights of others. However, the applicants were charged with a criminal offence and sentenced to one year and eleven months in prison.

The Court notes

“that the applicants’ actions did not disrupt any religious services, nor did they cause any injures to people inside the cathedral or any damage to church property. In those circumstances the Court finds that the punishment imposed on the applicants was very severe in relation to the actions in question. It will further examine whether the domestic courts put forward “relevant and sufficient” reasons to justify it” (§ 215).

The ECtHR reiterates that it has had regard to several factors in a number of cases concerning statements, verbal or non-verbal, alleged to have stirred up or justified violence, hatred or intolerance where it was called upon to decide whether the interferences with the exercise of the right to freedom of expression of the authors of such statements had been “necessary in a democratic society” in the light of the general principles formulated in its case-law.  One of them has been whether the statements were made against a tense political or social background; the presence of such a background has generally led the Court to accept that some form of interference with such statements was justified. Another factor has been whether the statements, fairly construed and seen in their immediate or wider context, could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance. In assessing that point, the Court has been particularly sensitive towards sweeping statements attacking entire ethnic, religious or other groups or casting them in a negative light. Another relevant factor is the manner in which statements are made, and their capacity – direct or indirect – to lead to harmful consequences. In the paras. 218-220 the ECtHR gives an instructive overview of its case law applying the criteria and factors just mentioned.  The ECtHR emphasises that it is

“the interplay between the various factors involved rather than any one of them taken in isolation that determined the outcome of the case. The Court’s approach to that type of case can thus be described as highly context-specific” (§ 221).

The ECtHR next observes that it is unable to discern any element in the domestic courts’ analysis which would allow a description of the applicants’ conduct as incitement to (religious) hatred. The ECtHR finds that the Pussy Riot performance neither contained elements of violence, nor stirred up or justified violence, hatred or intolerance of believers, and it reiterates that, in principle, peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence:

“(..) in the case at hand the applicants were convicted of hooliganism motivated by religious hatred on account of the clothes and balaclavas they wore, their bodily movements and strong language. The Court accepts that as the conduct in question took place in a cathedral it could have been found offensive by a number of people, which might include churchgoers, however, having regard to its case-law and the above-mentioned international standards for the protection of freedom of expression, it is unable to discern any element in the domestic courts’ analysis which would allow a description of the applicants’ conduct as incitement to religious hatred (..). The domestic courts did not examine whether the applicants’ actions could be interpreted as a call for violence or as a justification of violence, hatred or intolerance. Nor did they examine whether the actions in question could have led to harmful consequences” (§§ 225-226).

The ECtHR agrees that certain reactions to the applicants’ actions might have been warranted by the demands of protecting the rights of others on account of the breach of the rules of conduct in a religious institution, but it comes to the conclusion that the domestic courts failed to adduce “relevant and sufficient” reasons to justify the criminal conviction and prison sentence imposed on the applicants, while the sanctions were not proportionate to the legitimate aim pursued. Referring to international standards, including UN Human Rights Committee’s General Comment No. 34, Article 19: Freedoms of Opinion and Expression, of 12 September 2011, the ECtHR recalls that interference with freedom of expression in the form of criminal sanctions may have a chilling effect on the exercise of that freedom, which is an element to be taken into account when assessing the proportionality of the interference in question.

The ECtHR concludes:

“In view of the above, and bearing in mind the exceptional seriousness of the sanctions involved, the Court finds that the interference in question was not necessary in a democratic society. There has therefore been a violation of Article 10 of the Convention” (§§ 229-230).

The banning of the video

With regard the findings that the Pussy Riot video materials available on the Internet were “extremist” and by placing a ban on access to that material, the ECtHR finds that the domestic court made no attempt to conduct its own analysis of the video materials in question, solely relying on a report by linguistic experts, without specifying which particular elements of the videos were problematic so as to bring them within the scope of the provisions of the Suppression of Extremism Act. These are the lyrics of the song at issue, reproduced in English in annex to the Court’s judgment:

Putin Wet Himself

A group of insurgents moves toward the Kremlin
Windows shatter at FSB headquarters
Bitches piss themselves behind red walls
Pussy Riot is here to abort the system
An attack at dawn? Don’t mind if I do
When we are whipped for our freedom
The Mother of God will learn how to fight
Mary Magdalene the feminist will join the demonstration.

Riot in Russia – the charm of protest
Riot in Russia – Putin wet himself
Riot in Russia – we exist
Riot in Russia – riot, riot

Take to the streets
Occupy Red Square.
Show them your freedom
A citizen’s anger

The ECtHR is also of the opinion that a domestic court can never be in a position to provide “relevant and sufficient” reasons for an interference with the rights guaranteed by Article 10 ECHR 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. However, in the proceedings which led to the finding that the applicants’ activity and materials were “extremist”, the domestic law did not allow Pussy Riot’s participation, thereby depriving them of any possibility to contest the allegations made by the public authority. There is no doubt that this kind of state action curtailing the right to freedom of expression is incompatible with Article 10 ECHR. The ECtHR comes to the conclusion that declaring Pussy Riot’s online video materials “extremist” and placing a ban on access to them did not meet a “pressing social need” and was disproportionate to the legitimate aim invoked. The interference was thus not “necessary in a democratic society” and therefore violated Article 10 ECHR.

Comments

The judgment in the Pussy Riot is well elaborated, clearly motivated and even very instructive by referring extensively to the Court’s earlier case law on the right to peaceful protest. It applies the standards and criteria developed in other recent cases, especially in cases in which the ECtHR found that the Russian authorities had interfered with the right to protest in a way that violated Article 10 and/or Article 11 ECHR, such as e.g. in Taranenko v. Russia, Primov v. Russia, Nemtsov v. Russia and Frumkin v. Russia (see also our blog on Novikova v. Russia). The judgment guarantees firmly the protection of performing art or expressive conduct that amounts to a form of artistic and political speech or as symbolic expression of dissatisfaction and protest (see also Stern Taulats and Roura Capellera v. Spain). It also confirms that there should not be an overbroad suppression of “extremist” opinions (see our blog on Stomakhin v. Russia).

Most importantly the judgment confirms that criminal prosecution and imprisonment for non-violent speech may have a chilling effect and amount as such to a disproportionate interference of the right to freedom of expression in a democracy. The ECtHR considers indeed “that according to international standards for the protection of freedom of expression, restrictions on such freedom in the form of criminal sanctions are only acceptable in cases of incitement to hatred” (§ 223). It reiterates that, in principle, ”peaceful and non-violent forms of expression should not be made subject to the threat of imposition of a custodial sentence (..), and that interference with freedom of expression in the form of criminal sanctions may have a chilling effect on the exercise of that freedom, which is an element to be taken into account when assessing the proportionality of the interference in question” (§ 227). This approach by the ECtHR in the Pussy Riot case contrasts sharply with the finding earlier this year by the ECtHR in Sinkova v. Ukraine. In that case, the ECtHR found that the criminal conviction, the pre-trial detention and the (suspended) prison sentence for a non-violent performance art protest at a war memorial did not violate Article 10 ECHR. In the light of the judgment in the Pussy Riot case it becomes even more deplorable that the panel of the ECtHR recently dismissed the request for a referral (- supported by the Human Rights Centre of Ghent University -), of this case to its Grand Chamber (see our blog on Sinkova v. Ukraine).