European Court of Human Rights finds Russia breached human rights of Pussy Riot members
Case of Mariya Alekhina and Others v Russia (ECHR, Third Section, Application no. 38004/12, 17 July 2018)
Summary
The European Court of Human Rights has found that Russia breached human rights conventions in the prosecution and imprisonment of feminist protest band Pussy Riot. The Court found that Russia’s treatment of the band members following their performances in Orthodox Christian cathedrals amounted to inhumane and degrading treatment, and further that the state denied the applicants their right to liberty and security, a fair trial, access to legal assistance and right to freedom of expression. The decision is a significant warning to governments globally to respect the rights of political protesters.
Facts
The three applicants were arrested after uploading their performances of "Punk Prayer – Virgin Mary, Drive Putin Away" to their website and charged and convicted of hooliganism motivated by religious hatred towards Orthodox Christians. Domestic courts rejected the applicants' arguments that their performance had been politically motivated. They received sentences of two years’ imprisonment.
The Prosecutor General also made an application to the local court for a declaration that the videos were "extremist", and sought to limit access to the videos by installing a filter to block the IP addresses of relevant websites. The third applicant applied to the court to join the proceedings as an interested party, but this application was rejected. Subsequently, domestic courts held that the material was extremist, and an order banning access to the website was made.
The applicants brought complaints that:
the conditions of their remand and trial breached the prohibition against torture or inhuman or degrading treatment or punishment;
they had been denied the right to a fair trial;
the severe prison sentences were disproportionate and therefore a breach of their right to freedom of expression; and
the deeming of a video of their performance as "extremist" and restricting online access to it breached their right to freedom of expression.
In relation to the denial of the right to a fair trial and the conditions of the court hearings, the applicants complained that in particular:
they were held in an enclosed dock with glass walls and a tight-fitting door;
there was always high security around the dock, which at times included seven armed police officers and a guard dog;
the police officers and court ushers surrounded the dock, either behind or close to the defence lawyers' desk, which made confidential communication between the applicants and their lawyers very difficult or impossible; and
the van in which the applicants were transported was overcrowded, hot, and with inadequate ventilation.
Decision
The Court held that there had been breaches of the Convention in relation to all of the above claims.
Applicants' treatment during remand and trial
The Court found a number of breaches of the Convention relating to the applicants' treatment during remand and trial.
Firstly, the decision to remand the applicants was deficient, with the Court noting that a failure to address the specific facts or consider alternative preventative measures to extending the applicants' imprisonment breached the right to trial within a reasonable time or to be released pending trial (Article 5 § 3).
Secondly, the conditions of the applicants' transport to and from the courtroom, and the high security at trial, constituted a breach of the prohibition on torture or inhuman or degrading treatment or punishment (Article 3).
Thirdly, the placement of armed police and ushers between the applicants and their lawyers was a breach of the applicants' right to a fair trial (Article 6). The applicants’ right to defend themselves effectively had been circumvented given that they were unable to communicate freely and privately with their lawyers during the trial.
The Court noted that it is incumbent on the domestic courts to choose the most appropriate security arrangement for a given case, taking into account the interests of administration of justice, the appearance of proceedings as fair, and the presumption of innocence. However, domestic courts must at the same time secure the rights of the accused to participate effectively in the proceedings and to receive practical and effective legal assistance.
2. Prosecution of the applicants for their performance
The Court held that the applicants' prosecution for their performance contravened their right to freedom of expression under Article 10.
The relevant test as to whether interference with the right to freedom of expression is permissible under the Convention is whether the interference:
is "prescribed by law";
pursues one or more of the legitimate aims set out in Article 10; and
is "necessary in a democratic society" (ie, proportionate to the aim pursued).
The Court considered the submissions of the Government, applicants, and a number of intervening parties. It noted that the right to freedom of expression protected under the Convention extends to information or ideas which shock or disturb, and protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. There is very little scope under the Convention for restrictions on political speech or debate on questions of public interest.
The Court considered that there had been interference in accordance with the law and in pursuance with legitimate aims (protecting the rights of others). The Court then set out the following factors which should be considered when determining whether interference with freedom of speech is proportionate:
whether the interference corresponds to a "pressing social need", including whether the statements were made against a tense political or social background;
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;
the manner in which statements were made, and their capacity to lead to harm; and
the nature and severity of the penalty imposed, noting that criminal sanctions should be reserved for where there has been incitement to hatred or a violence element.
The Court noted that it is the interplay between the various factors involved which will ultimately determine whether the interference is proportionate, and the Court's approach is "highly context-specific".
On the facts, the Court found that the content of the speech which was interfered with was a matter of public interest, being the political situation in Russia and the stance of an Orthodox Patriarch and other clerks towards street protests. It noted that there was no automatic right to enter private, or even some public, properties, to express oneself, however any punishment for such unauthorised entry and/or expression must be proportionate. The Court emphasised that peaceful and non-violent forms of expression should not be made subject to imposition of a custodial sentence.
Ultimately, the failure of domestic courts to undertake an analysis of the lyrics of the song meant that there was nothing in its analysis which would allow a description of the applicants' conduct as incitement to religious hatred. The criminal sanctions imposed on the applicants were therefore disproportionate.
3. Declaration that the video recording was "extremist" and banning public access
The Court found that the declaration that the video recording was "extremist" and the ban on access was in contravention of Article 10 of the Convention.
The Court left the question open as to whether the interference with freedom of expression was "in accordance with law". It noted that it is important for anti-extremism laws to be formulated with sufficient precision to enable people to regulate their conduct, and that Russia had been criticised by the Venice Commission regarding the definitions of "extremist" activities being too broad, lack clarity, and may open the way to different interpretations. It was suggested that "extremism" offences should include a violence element in order to avoid the potential for arbitrariness and abuse.
In determining that the interference was not proportionate, the Court was critical of the domestic court's failure to independently analyse the video materials. In addition, the inability of the applicants to participate in the proceedings was fatal to Russia's submissions, as the Court held that proceedings in which the law did not allow the participation of the applicants, thereby depriving them of any possibility to contest the allegations, cannot be compatible with Article 10.
Commentary
The Court’s decision provides useful guidance as to how the balance is to be struck between the legitimate regulatory aim of respecting the rules of conduct in a place of worship, and upholding the right to freedom of expression required to foster a healthy civil society. This case was a clear instance where the State got that balance wrong: prison sentences for non-violent political protest is an extreme and clear form of State oppression.
It is also an informative case regarding the treatment and trials of political dissidents. State intimidation is a common tactic used to discourage further criticism of the government.
These lessons regarding freedom of expression are highly relevant to Australia in light of the amendments to the Commonwealth Criminal Code, which criminalises reporting on international matters that harms Australia’s international reputation. These amendments are potentially incompatible with the implied freedom of political communication.
The full text of the ECHR's decision can be found here.
Thea Philip is a Graduate at Ashurst.