Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
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The European Court of Human Rights found that the detention and conviction of three members of the punk band “Pussy Riot” for a controversial public performance in a cathedral, as well as the banning of the distribution of videos of their performances on the internet, amounted to a violation of the right to freedom of expression. The members of the band performed the song “Punk Prayer – Virgin Mary, Drive Putin Away” from the altar of Moscow’s Christ the Saviour Cathedral in protest against the political situation in Russia and comments that had been made by the Russian Orthodox Church following widespread protests over the presidential elections in December 2011. The Russian courts convicted three members of the group for incitement to religious hatred or enmity, deemed the performance to be “extremist”, and banned access to video recordings of the performance on the internet. The European Court found all these measures to be disproportionate and unnecessary in a democratic society. The European Court found that the performance contributed to a debate of public interest, and it criticized the domestic courts for not providing relevant and sufficient reasons for their finding that the conduct amounted to incitement. The European Court also condemned the process adopted by the domestic courts in order to label the video of the performance as “extremist”.
The case concerned Mariya Alekhina, Nadezhda Tolokonnikpva, and Yakaterina Samutesvich, three members of the Russian feminist punk band “Pussy Riot”. The group was known for their impromptu performances of their songs in various public areas, such as subway stations, the roof of trams, on top of booths and in shop windows. For these performances they would be dressed in brightly colored balaclavas and dresses. Their actions were a response to the ongoing political process in Russia. For instance, they protested against the Russian Orthodox Church’s highly critical response to large-scale protests in Russian cities following the election of December 2011. They also protested against the participation of Vladimir Putin in the elections of March 2012.
On February 21, 2012, following a series of performances in the Russian capital, five members of the band 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 their disapproval of the political situation in Russia at the time and of Patriarch Kirill, leader of the Russian Orthodox Church, who had criticized the protests following the December 2011 election. No service was taking place, but some people were inside the cathedral, including journalists and the media (who were invited by the band for publicity). The performance only lasted slightly over a minute because cathedral guards quickly forced the band out. A video recording of the performance was made and uploaded to their website and to YouTube. One and a half million viewers watched it in the ten days following publication.
Criminal proceedings against the members of “Pussy Riot”
On February 24, 2012, following several complaints, the police instituted criminal proceedings against the members of “Pussy Riot”. Cathedral staff members and guards, when questioned, stated that their religious feelings had been offended by the incident and they could identify three of the band members as they had taken off their balaclavas during the performance. On March 3, 2012, the three members were arrested and charged with the aggravated offence of “hooliganism motivated by religious hatred”. They were remanded in custody and they remained in pre-trial detention for just over five months.
In the meantime, investigators ordered expert opinions to determine (i) whether the video-recording of “Punk Prayer – Virgin Mary, Drive Putin Away” was motivated by religious hatred, (ii) whether the performance of the song at the cathedral could, therefore, amount to incitement of religious hatred, and (iii) whether it had been an attack on the religious feelings of Orthodox believers. In the first two reports, commissioned by a State expert bureau, five experts answered in the negative to those questions. A third expert opinion, which was subsequently requested by the investigators from directly appointed individual experts, produced an entirely different response. It concluded that the performance and video had been motivated by religious hatred, in particular hatred and enmity towards Orthodox believers, and that it had insulted the religious feelings of such believers. On August 17, 2012, the Khamavnicheckiy District Court found the three members guilty of “hooliganism for reasons of religious hatred and enmity” and for “reasons of hatred towards a particular social group” under Article 213 § 2 of the Russian Criminal Code. The court found that they had committed the crime in a group, acting with premeditation and in concert, and sentenced each of them to two years in prison. The District Court further held that their actions had been offensive and insulting, referring to their brightly colored clothes and balaclavas, their waving their arms and kicking their legs around, and their obscene language. The District Court relied on several witnesses, the video recording, and the expert report that had stated that the performance was dictated by religious hatred. The District Court rejected the “Pussy Riot” members’ argument that their performance had been politically, and not religiously, motivated.
On appeal, the Moscow City Court upheld the first-instance judgment in relation to Ms. Alekhina and Ms. Tolokonnikova. In relation to Ms. Samutsevich, the City Court amended the first-instance judgment, suspended her sentence, gave her two-year probation, and released her in the courtroom. She had already served seven months by the time her sentence was suspended. Ms. Alekhina and Ms. Tolokonnikova served approximately one year and nine months of their sentence before they received an amnesty.
On February 8, 2013, the Ombudsman applied to the Presidium of the Moscow City Court for supervisory review of the conviction. He argued, in particular, that the three members’ actions had not amounted to hooliganism as they could not be regarded as inciting hatred or enmity. Breaches of the normal functioning of places of worship, insults to religious feelings, or the profanation of religious objects were administrative offences punishable under Article 5.26 of the Code of Administrative Offences. On March 15, 2013, Judge B. of the Moscow City Court refused to institute supervisory review proceedings. On November 8, 2013, the Ombudsman submitted an application for supervisory review to the Supreme Court. As well as the arguments set out in the previous application, the Ombudsman added that public criticism of officials, including heads of State, the government and the heads of religious communities, was a way of exercising the constitutional right to freedom of speech.
On December 10, 2014, the Supreme Court instituted supervisory review proceedings following the appeals of the three members of “Pussy Riot”. On April 4, 2014, the Presidium of the Moscow City Court, to which the case had been transferred, reviewed the case. It upheld the findings that the members’ actions had amounted to incitement to religious hatred or enmity and dismissed the arguments concerning breaches of criminal procedure at the trial. At the same time, it removed the reference to “hatred towards a particular social group” from the judgment as it had not been established which social group had been concerned. It reduced each member’s sentence to one year and eleven months in prison.
Proceedings concerning declaration of video-recordings as “extremist”
The group uploaded a video of their performances of “Punk Prayer – Virgin Mary, Drive Putin Away” at the Epiphany Cathedral in Yelokhovo and at Christ the Saviour Cathedral to their website. It was also republished by many websites.
On September 26, 2012, following a complaint by a State Duma member, Zamoskvoretskiy Inter-District Prosecutor applied to the Zamoskvoretskiy District Court of Moscow for a declaration that the Internet pages hosting the videos, as well as text and photos, were “extremist”. In November 2012, the Zamoskvoretskiy District Court 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. The court held, in particular, that “free 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.” [para. 76] None of the group 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.
Claim to the European Court of Human Rights
The three members of “Pussy Riot” brought their case to the European Court of Human Rights, claiming that a number of their rights had been violated, including their right to freedom of expression. In relation to their right to freedom of expression, they complained that their detention and conviction for the performance amounted to a gross, unjustifiable and disproportionate interference. Moreover, they complained that the Russian courts had violated their freedom of expression by declaring that the video materials available on the Internet were “extremist” and by placing a ban on access to that material. They argued, among other things, that they had chosen Christ the Saviour Cathedral for their performance because the Patriarch of the Russian Orthodox Church had used that venue for a political speech. The Alliance Defending Freedom (ADF), Amnesty International, Human Rights Watch and Article 19 intervened as third parties in the case.
The European Court of Human Rights (Court) considered the prosecution of those members involved in the performance separately from the claim that rights had been violated by the banning of the video of the performance.
Criminal prosecution following the performance
The Court began by considering whether the public performance, for which the three members of “Pussy Riot” were prosecuted, was covered by the notion of “expression” under Article 10 of the European Convention on Human Rights (Convention). The Court first noted that it had examined various forms of expression to which Article 10 of the Convention applied, including 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.” [para. 203] The Court reasoned that creating, performing and distributing works of art contributed to the exchange of ideas and opinion, which was essential in a democratic society. The Court also noted that opinions could be expressed through conduct. In the present case, the Court noted that “Pussy Riot” was a punk band that had attempted to perform their song “Punk Prayer- Virgin Mary, Drive Putin Away” from the altar of Moscow’s Christ the Saviour Cathedral in response to the ongoing political situation in the country. Furthermore, they had invited journalists and the media in order to garner publicity for the event. In the Court’s view, this action constituted a mix of conduct and verbal expression that amounted to a form of artistic and political expression protected by Article 10 of the Convention. [para. 206]
The Court went on to find that the criminal proceedings brought against the three members on account of their actions, which resulted in prison sentences being imposed, amounted to an interference with their right to freedom of expression. It was left for the Court to establish whether this interference was “prescribed by law”, in pursuit of a legitimate aim, and “necessary in a democratic society” according to Article 10 of the Convention.
Whether the interference was “prescribed by law” and was in pursuit of a legitimate aim
The Court did not deem it necessary to reach any general conclusion as to whether the legal basis for the criminal proceedings, Article 213 of the Criminal Code, met the quality of law requirements for the interference to be “prescribed by law”. As to the legitimate aim being pursued, the Court reasoned that the interference could be seen as having pursued the legitimate aim of protecting the rights of others since the performance took place in a church.
Whether the interference was “necessary in a democratic society”
When considering whether the interference was necessary in a democratic society, the Court had to determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities were “relevant and sufficient”. The Court noted that in cases such as the present one, where a prison sentence has been imposed for non-violent conduct, a particular scrutiny was required.
In the present case, the members of “Pussy Riot” sought to draw public attention to their disapproval of the political situation in Russia, including the response to recent protests following the presidential election. The Court noted that these were topics of public interest and the members’ actions had contributed to public debate. The Court reiterated that there was little scope under Article 10 of the Convention for restrictions on such speech. The Court went on to note that “it has been the Court’s consistent approach to require very strong reasons for justifying restrictions on political debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned.” [para. 212]
On the other hand, the Court further noted that Article 10 of the Convention did not require the automatic creation of rights of entry to private property, or even to all publicly-owned property. Even in places that enjoy free entrance, holding an artistic performance or giving political speech might require, depending on the nature and function of the place, respect for certain prescribed rules of conduct. In the present case, where the performance took place in a cathedral, the members’ conduct might have had to comply with the rules of conduct in a place of religious worship. Therefore, in principle, the imposition of a sanction might be justified in order to protect the rights of others. In this case, the Court noted that the members had not interrupted any religious service, the performance did not result in any injures to people inside the cathedral, and they did not cause any damage to church property. Therefore, the Court found the punishment imposed to be too severe relative to the actions in question.
As to whether the domestic courts had put forward “relevant and sufficient reasons” to justify the interference, the Court first noted that the members were convicted for their conduct and there was no examination of the lyrics of the song “Punk Prayer- Virgin Mary, Drive Putin Away”. The Court recalled that it had already established that some factors might justify some form of interference in relation to statements alleged to have stirred up or justified violence, hatred or intolerance, namely when statements were made against a tense political or social background or were seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance. In assessing the existence of such speech, the Court was particularly sensitive to sweeping statements attacking entire ethnic, religious or other groups or casting them in a negative light. Furthermore, the Court paid particular attention to the manner in which statements were made, and their capacity – direct or indirect- to lead to harmful consequences. In short, the Court adopted a context-specific approach when determining whether statements were capable of stirring up violence, hatred or intolerance.
Turning to the facts of the present case, the Court observed that the members were convicted of “hooliganism motivated by religious hatred” due to their clothes, body movements and strong language. The Court acknowledged that the conduct in question could have been found to be offensive by a number of people because it took place in a cathedral. Nonetheless, it was “unable to discern any element in the domestic courts’ analysis which would allow a description of the [members’] conduct as incitement or religious hatred”. [para. 225] The domestic courts did not examine whether the actions in question could have led to harmful consequences. [para. 226] Furthermore, the Court noted that the members’ actions neither contained elements of violence, nor stirred up or justified violence, hatred or intolerance of believers. The Court concluded that peaceful and non-violent forms of expression should not be made subject to the threat of imposition of custodial sentences since this would have a chilling effect on freedom of expression. The Court concluded that “certain reactions to the [members’] 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. However, the domestic courts failed to adduce ‘relevant and sufficient’ reasons to justify the criminal conviction and prison sentence imposed on the [members] and the sanctions were not proportionate to the legitimate aim pursued.” [para. 228]
Taking all of the above into account, the Court held that the sanctions applied had been “exceptionally serious” and, therefore, the interference was not “necessary in a democratic society”. There had consequently been a violation of Article 10 of the Convention.
The banning of the video-recordings of the performances
The Court first noted that the video in question contained recordings of Pussy Riot’s performances, were owned by the group, and were posted on internet pages managed by the group. Moreover, it was not disputed between the parties that the banning of the videos had amounted to an “interference” with the right to freedom of expression. The Court then had to assess whether the requirements of Article 10 of the Conventions had been satisfied for the interference to be justified under that provision.
Whether the interference was “prescribed by law” and was in pursuit of a legitimate aim
The Court found a statutory basis to the declaration that the videos were “extremist” (sections 1, 12 and 13 of the Suppression of Extremism Act). However, as with the law underpinning the criminal proceedings against the members, the Court decided to leave the question open as to whether these statutory provisions met the quality of law required for the interference to be deemed “prescribed by law”. As to the legitimate aim being pursued, the Court had little difficulty in holding that the interference sought to protect the morals and rights of others.
Whether the interference was “necessary in a democratic society”
The Court reiterated that there was little scope under Article 10 of the Convention for restrictions on political speech or on debate of questions of public interest. In particular, “where 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, even on the basis of the aims set out in Article 10 § 2.” [para. 260] As for the case at hand, the Court criticized the Zamoskvoretskiy District Court for merely endorsing a linguistic experts’ report when reaching its decision. In the Court’s view, “the relevant expert examination clearly went far beyond resolving merely language issues, such as, for instance, defining the meaning of particular words and expressions, and provided, in essence, a legal qualification of the video materials. The Court finds that situation unacceptable and stresses that all legal matters must be resolved exclusively by the courts.” [para. 262] It followed from this that the domestic court had failed to conduct its own analysis of the video materials in question. Moreover, the domestic court did not quote the relevant parts of the experts’ report. The Court found this to amount to a lack of reasoning and, therefore, the domestic court had failed to provide “relevant and sufficient” reasons for the interference in question.
On a procedural note, the Court also criticized the domestic law on the basis that it prevented the members of “Pussy Riot” from participating in the judicial proceedings that considered whether the videos were to be deemed “extremist”. The Court held that this deprived them of any possibility to contest the allegations made by the public authority that brought the proceedings before the courts. This was not compatible with Article 10 of the Convention.
In light of the foregoing, the domestic courts’ declaration that the video materials available on the internet were “extremist” and the ban that was subsequently imposed did not meet a “pressing social need” and was disproportionate to the legitimate aim invoked. The Court unanimously concluded that the interference with the right to freedom of expression was not “necessary in a democratic society” and there had been a violation of Article 10 of the Convention.
Dissenting opinion of Judge Elósegui
The dissenting opinion disagreed with the majority’s finding that the criminal proceedings violated Article 10 of the Convention. Judge Elósegui opined that the Court should have put greater emphasis on the fact that the conduct at issue could have been punished by means of an administrative or civil sanction. She took particular issue with the means of expression adopted by the members in this case. She reasoned that although the members’ conduct could not be classified as incitement to religious hatred, it could be seen as “provocative” and directly involving “negative stereotyping” of Christian Orthodox believers. In her mind, this was enough to harm the dignity of Orthodox believers by insulting them and treating them as inferiors. Therefore, in Judge Elósegui’s view, Article 10 of the Convention did not protect the activities in the present case.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands expression since the Court showed a strong commitment to protecting performance art and expressive conduct, even when it takes place in private or publicly-owned property. The decision also confirmed the principles previously stated in Stomakhin v. Russia that there should not be an overbroad suppression of “extremist” opinions, this is particularly pertinent in the Russian context where extremist and terrorism-related legislation is often relied on to target legitimate political or religious expression. Also of particular note was the Court’s reiteration of the principle that criminal prosecution and imprisonment for non-violent speech can have a chilling effect on freedom of expression.
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Case significance refers to how influential the case is and how its significance changes over time.
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