Information Note on the Court’s case-law 220
July 2018
Mariya Alekhina and Others v. Russia - 38004/12
Judgment 17.7.2018 [Section III]
Article 10
Article 10-1
Freedom of expression
Conviction and prison term for performing political song in cathedral and ban on performance video-recordings online: violations
Facts – The three applicants are members of a Russian feminist punk band, Pussy Riot. The group carried out impromptu performances of their songs which contained lyrics criticising the political process in Russia. The group performed in disguise, with its members wearing brightly coloured balaclavas and dresses, in various public places selected to enhance their message.
On 21 February 2012 five members of the band, including the three applicants, attempted to perform Punk Prayer – Virgin Mary, Drive Putin Away from the altar of Moscow’s Christ the Saviour Cathedral. No service was taking place, although a number of persons were inside the Cathedral. The band had invited journalists and media to the performance to gain publicity. The attempt was unsuccessful as cathedral guards quickly forced the band out, with the performance lasting slightly over a minute. A video of the performance was uploaded to YouTube.
Subsequently, the applicants were remanded in custody, convicted of hooliganism motivated by religious hatred and sentenced to two years imprisonment. In addition, a court ruled that videos of the band performances on were extremist within the meaning of the Suppression of Extremism Act and ordered that access to that material be limited by a filter on the website’s IP address.
Law – Article 10
(a) Criminal prosecution for the performance of 21 February 2012 – The applicants’ “performance” constituted a mix of conduct and verbal expression and amounted to a form of artistic and political expression covered by Article 10 of the Convention. The subsequent criminal proceedings, which resulted in a prison sentence, amounted to an interference with their right to freedom of expression. The interference pursued the legitimate aim of protecting the rights of others. The question as to whether it was “prescribed by law” was left open. Regarding the necessity of the interference, the applicants had wished to draw the attention of their fellow citizens and the Russian Orthodox Church to their disapproval of the political situation in Russia and the stance of Patriarch Kirill and some other clerics towards street protests in a number of Russian cities, which had been caused by recent parliamentary elections and the approaching presidential election. The applicants’ actions addressed those topics of public interest and contributed to the debate about the political situation in Russia and the exercise of parliamentary and presidential powers.
The applicants’ performance could be considered as having violated the accepted rules of conduct in a place of religious worship. Therefore, the imposition of certain sanctions might in principle be justified by the demands of protecting the rights of others. However, the applicants had been charged with a criminal offence and sentenced to one year and eleven months in prison. The first and second applicants had served approximately one year and nine months of that term before being amnestied while the third applicant had served approximately seven months before her sentence had been suspended. The applicants’ actions had not disrupted any religious services, nor had they caused any injuries to people inside the cathedral or any damage to church property. In those circumstances the punishment imposed on the applicants had been very severe in relation to the actions in question.
It was significant that the courts had not examined the lyrics of the song Punk Prayer – Virgin Mary, Drive Putin Away performed by the applicants, but based the conviction primarily on the applicants’ particular conduct. The applicants had been convicted of hooliganism motivated by religious hatred on account of the clothes and balaclavas they had worn, their bodily movements and strong language. As the conduct in question had taken place in a cathedral it could have been found offensive by a number of people, which might include churchgoers. However, the Court was unable to discern any element in the domestic courts’ analysis which would allow a description of the applicants’ conduct as incitement to religious hatred. In particular, the domestic courts had stated that the applicants’ manner of dress and behaviour had not respected the canons of the Orthodox Church, which might have appeared unacceptable to certain people, but no analysis had been made of the context of their performance. The domestic courts had not examined whether the applicants’ actions could be interpreted as a call for violence or as a justification of violence, hatred or intolerance. Nor had they examined whether the actions in question could have led to harmful consequences.
The applicants’ actions neither contained elements of violence, nor stirred up or justified violence, hatred or intolerance of believers. Although 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, the domestic courts had failed to adduce “relevant and sufficient” reasons to justify the criminal conviction and prison sentence imposed on the applicants and the sanctions had not been proportionate to the legitimate aim pursued. In view of the above, and bearing in mind the exceptional seriousness of the sanctions involved, the interference in question had not been necessary in a democratic society.
Conclusion: violation (six votes to one).
(b) Ban on access to video-recordings of the applicants’ performances online – Declaring the video-recordings of the applicants’ performances available on the Internet as “extremist” and banning them amounted to “interference” with the applicants’ right to freedom of expression, with the Suppression of Extremism Act constituting the statutory basis for the interference at issue. The interference pursued the legitimate aim of protecting the morals and rights of others. The Court decided to leave open the question as to whether the interference was “prescribed by law”. Assessing whether the interference was necessary in a democratic society, firstly, it was evident from the court’s decision that the crucial legal findings as to the extremist nature of the video material had been made by linguistic experts, and not by that court. The expert report had not been assessed and the linguistic experts’ conclusions had merely been endorsed. The Court found that situation unacceptable and stressed that all legal matters had to be resolved exclusively by the courts. Secondly, the court had made no attempt to conduct its own analysis of the video materials in question. It had not specified which particular elements of the videos were problematic or quoted the relevant parts of the expert report, referring only briefly to its overall findings. The virtual absence of reasoning made it impossible for the Court to grasp the rationale behind the interference. The Court was not satisfied that the court had applied standards which were in conformity with the principles embodied in Article 10 or based itself on an acceptable assessment of the relevant facts. They had thus failed to provide “relevant and sufficient” reasons for the interference in question.
Furthermore, the applicants had been unable to participate in the proceedings, as the domestic law did not provide for concerned parties to participate in proceedings under the Suppression of Extremism Act. In the Court’s view, in such proceedings a domestic court could never be in a position to provide “relevant and sufficient” reasons for an interference with the rights guaranteed by Article 10 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. Therefore, the impugned proceedings could not be found compatible with Article 10. Declaring that the applicants’ video materials available on the Internet were extremist and placing a ban on access to them had not met a “pressing social need” and had been disproportionate to the legitimate aim invoked.
Conclusion: violation (unanimously).
The Court also found a violation of Article 3 in respect of the conditions of the applicants’ transport to and from the trial hearings and the conditions in the courtroom (the applicants’ confinement in a glass dock); a violation of Article 5 § 3 concerning the extension of the applicants’ detention; and a violation Article 6 §§ 1 and 3 (c) in relation to the courtroom arrangements that had restricted the applicants’ rights to participate effectively in the trial court proceedings and to receive practical and effective legal assistance.
Article 41: EUR 16,000 to the first and second applicant each in respect of non-pecuniary damage and EUR 5,000 to the third applicant in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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