Russia committed multiple violations of the European Convention owing to Pussy Riot punk band convictions and imprisonment
JUDGMENT
Mariya Alekhina and othersv. Russia 17.07.2018 (no. 38004/12)
SUMMARY
The case Mariya Alekhina and Others v. Russia (application no. 38004/12) concerned the conviction and imprisonment of three members of the Pussy Riot punk band for attempting to perform one of their protest songs in a Moscow cathedral in 2012. The courts ruled in particular that their performance had been offensive and banned access to video recordings they had subsequently downloaded onto the Internet because they were “extremist”.
The European Court of Human Rights held: by six votes to one, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights because of the overcrowded conditions of the band members’ transportation to and from the courtroom to attend hearings on their cases and because they had had to suffer the humiliation of being permanently exposed in a glass dock during their hearings, surrounded by armed police officers and a guard dog, despite no evident security risk; unanimously, that there had been a violation of Article 5 § 3 (right to liberty and security) of the European Convention because the domestic courts had only given stereotyped reasons for keeping them in detention pending trial for five months;
unanimously, that there had been a violation of Article 6 § 1 (c) (right to a fair trial / right to legal assistance of own choosing) because the courtroom security arrangements, namely the glass dock and heavy security, had prevented the band members from communicating with their lawyers without being overheard during their one-month trial; by six votes to one, that there had been a violation of Article 10 (freedom of expression) because of the three band members’ conviction and prison sentences. The Court accepted that a reaction to breaching the rules of conduct in a place of religious worship might have been warranted. However, it found that sentencing them to imprisonment for simply having worn brightly coloured clothes, waved their arms and kicked their legs around and used strong language, without analysing the lyrics of their song or the context of their performance, had been exceptionally severe;
and, unanimously, that there had been a further violation of Article 10 because of the ban on access to their video recordings on the Internet. The domestic courts had not justified why the ban had been necessary. They had merely endorsed the overall findings of a linguistic expert report without making their own analysis.
PROVISIONS
Article 3
Article 5 § 3
Article 6 § 1
Article 6 § 3 (c)
Article 10
PRINCIPAL FACTS
The applicants, Mariya Alekhina, Nadezhda Tolokonnikova, and Yekaterina Samutsevich, are Russian
nationals who were born in 1988, 1989, and 1982 respectively and live in Moscow. They are
members of the Russian feminist punk band, Pussy Riot, who give impromptu performances of their
songs in various public areas dressed in brightly coloured balaclavas and dresses.
On 21 February 2012, following a series of performances in the Russian capital, they attempted to
perform one of their songs, “Punk Prayer – Virgin Mary, Drive Putin Away”, from the altar of
Moscow’s Christ the Saviour Cathedral. The performance 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 video footage of their attempted performance to their website and to YouTube.
It was seen one and a half million times in the following ten days.
The applicants were arrested shortly after the performance for “hooliganism motivated by religious
hatred” and remanded in custody, essentially on account of the gravity of the charge against them.
They remained in pre-trial detention on the same grounds for just over five months before being
convicted as charged in August 2012. The trial court found that their actions 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 the applicants’ arguments
that their performance had been politically and not religiously motivated. All their appeals against
this decision were unsuccessful.
They were sentenced to two years’ imprisonment, subsequently reduced by one month.
Ms Alekhina and Ms Tolokonnikova served approximately one year and nine months of their
sentence before being amnestied, while Ms Samutsevich served about seven months before her
sentence was suspended.
In November 2012 the domestic courts also ruled that the video-recordings of the performances
available on the Internet were “extremist” and banned access to them. This decision was based on a
report by linguistic experts from the Russian Institute for Cultural Research which considered that
the videos were of an extremist nature. None of the applicants participated in those proceedings.
Ms Alekhina and Ms Tolokonnikova were not informed of the proceedings and Ms Samutsevich’s
application to join them was dismissed at two levels of jurisdiction.
THE DECISION OF THE COURT
Article 3 (conditions of transport to and from hearings and at trial)
The Court noted that it had already found a violation of Article 3 in a number of other cases because
of cramped conditions of transportation to and from court hearings. The Russian Government had
not provided the Court with any fact or argument to persuade it to reach a different conclusion in
the applicants’ case. The Court thus concluded that the cramped conditions, at times involving the
applicants being transported in compartments measuring as low as 0.37 sq m., twice a day over a
period of one month, had amounted to inhuman and degrading treatment, in violation of Article 3.
As concerned the glass docks in which the applicants had been kept during their trial, the Court
noted that they were not as harsh as metal cages and were used in other member States, usually for
high-security hearings. However, in the photographs of the trial submitted by the applicants, all the
armed police officers and court ushers, except one, surrounding the dock had been facing the
applicants.
That contradicted the Government’s argument that the dock had been used to prevent
any attempt by the public, which was aggressive during the hearing, from disrupting the
proceedings. In the Court’s view, the security measures had therefore been aimed at closely
watching the applicants rather than monitoring the courtroom, which must have made them feel
intimidated and anxious. Moreover, they had been exposed to the full view of the public and the
national and international media who were closely following the trial. The Court therefore
concluded that the conditions in the courtroom had been degrading, a further violation of Article 3.
Article 5 § 3 (detention pending trial)
As in many other applications already brought before it against Russia, the Court found that the
domestic courts had extended the applicants’ detention by relying essentially on the gravity of the
charges, without addressing their specific situation or considering alternative measures. The
applicants’ detention for over five months had not therefore been sufficiently justified, in violation
of Article 5 § 3.
Article 6 §§ 1 and 3 (c) (hampering of communication with lawyers)
The Court stressed that an accused’s right to communicate with his or her lawyer without being
overheard was one of the basic requirements of a fair trial in a democratic society.
Although mindful of security issues in a large-scale or sensitive case, the Court found that the
courtroom arrangements in the applicants’ case had been more a matter of routine rather than
because of any specific security risk. Indeed, the trial court had not seemed to recognise the impact
that such arrangements had had on the applicants’ defence rights and nothing had been done to
compensate for them. The applicants’ right to participate effectively and to receive legal assistance had therefore been restricted for the duration of the trial, that is over one month, without good
reason. The fairness of the trial had therefore been adversely affected, in breach of Article 6 §§ 1
and 3 (c).
Given that finding, the Court did not consider it necessary to address the remainder of the
applicants’ complaints under Article 6 §§ 1 and 3 (d).
Article 10 (applicants’ criminal prosecution and banning of their video-recordings)
The Court accepted that a reaction to the applicants’ performance on account of their breaching the
rules of conduct in a place of religious worship might have been warranted.
However, the domestic courts had failed to justify why it had been necessary to convict and
sentence the applicants to terms of imprisonment. In particular, the courts had not at all examined
the lyrics of the song “Punk Prayer – Virgin Mary, Drive Putin Away”, basing the applicants’
conviction primarily on their conduct, namely the clothes and balaclavas they had worn, the way
they had moved their bodies and their strong language, without analysing in any way the context of
their performance. Nor had the courts examined whether the applicants’ conduct could be
interpreted as a call for violence or as a justification of violence, hatred or intolerance, which would
have been the only acceptable reason, according to international standards, for restricting the
applicants’ right to freedom of expression in the form of a criminal sanction.
Moreover, the performance had not disrupted any religious services, caused injury to anyone inside
the cathedral or damaged church property. The applicants’ conviction and prison sentences had
therefore been exceptionally severe in relation to their conduct and must have had a deterrent
effect on the exercise of their freedom of expression.
The Court therefore concluded that the applicants’ convictions and sentences had not been
“necessary in a democratic society”, in violation of Article 10.
Similarly, the domestic courts had failed to justify banning access to the applicants’ video-recordings
on the Internet. Merely endorsing the linguistic experts’ conclusions, the courts had made no
attempt to conduct their own analysis of the videos in question. They had not specified which parts
of the videos had been problematic, and had only referred to the overall findings of the expert
report. Moreover, the report had gone far beyond language issues and had provided, in essence, a
legal classification of the videos. Such a situation was unacceptable as all legal matters should beresolved exclusively by the courts.
Furthermore, the applicants had not been able to contest the findings of the report because they
had not been given the possibility to participate in the proceedings. That shortcoming had been
because the relevant domestic law used to ban access to the video-recordings, namely the
Suppression of Extremism Act, did not provide for concerned parties to participate in proceedings. In
the Court’s view, a domestic court could never be in a position to properly justify interfering with the
right to freedom of expression without some form of judicial review, based on a weighing up of the
public authority’s arguments against those of the interest party.
Therefore, finding the applicants’ video-recordings “extremist” and banning access to them on the
Internet, had not met a “pressing social need” and had not been “necessary in a democratic society”,
in violation of Article 10 in respect of Ms Alekhina and Ms Tolokonnikova.
Article 41 (just satisfaction)
In respect of non-pecuniary damage, the Court held that Russia was to pay 16,000 euros (EUR) each
to Ms Alekhina and Ms Tolokonnikova and EUR 5,000 to Ms Samutsevich. It also awarded EUR
11,760 in respect of costs and expenses(echrcaselaw.com editing).
