Russia: Prison sentences for Pussy Riot violate freedom of expression

The conviction and two-year prison sentences given on 17 August 2012 to three members of the feminist punk group Pussy Riot, Nadezhda Tolokonnikova, Maria Alekhina and Yekaterina Samutsevich violate their right to freedom of expression.

On the 21 Feburary 2012, members of a collective known as Pussy Riot, entered the Cathedral of Christ the Saviour, a Russian orthodox church in Moscow. Wearing brightly coloured clothes and balaclavas in their trademark style, the Pussy Riot members bowed down on the altar before they started singing a song praying to the Virgin Mary to drive Russia's President Putin away. Cathedral security guards ended the performance 40 seconds after it started. 

In March 2012, three members of Pussy Riot Nadezhda Tolokonnikova, 23, Maria Alekhina, 24, and Yekaterina Samutsevich, 29, were arrested and charged with hooliganism. Russian law considers hooliganism as crime against public security and order. On 17 August 2012, Khamovnichesky District Court in Moscow found them guilty of 'hooliganism motivated by religious hatred' and sentenced them to two years in a penal colony. 

ARTICLE 19 believes that Khamovnichesky District Court did not respect international standards when drawing the line between freedom of expression and protection of the public order and rights of others.

State obligations to respect freedom of expression

The action of Pussy Riot was an exercise in their right to freedom of expression. International law protects any form of expression which can be communicated, including information and ideas which are deemed to be provocative and offensive to some people. International and domestic courts have recognised that the right to freedom of expression extends to symbolic speech or expressive conduct such as flag burning, collections of signatures calling for resignation of government members, distribution of leaflets, and display of banners.

The right to freedom of expression constitutes a primary and basic element of the public order of a democratic society. Still, public order considerations justify restrictions to freedom of expression. International law requires that any restriction be proportionate and necessary in a democratic society. In addition, the authorities should provide evidence that the expression in question is likely to cause public disorder or produce lawless action. 

Recourse to criminal law was unjustified

The right to freedom of expression of the members of Pussy Riot was restricted by their arrest and subsequent criminal conviction. The restriction was unnecessary because the nature of the action does not justify recourse to criminal law. Although sometimes protesters intentionally violate public order laws so as to draw up public attention – for example, trespassing on private property or blocking highways – the Pussy Riot members did not violate any law to hold their action. The cathedral was open to the public, and in particular, to public prayer and therefore expression. 

Neither did the Pussy Riot members act violently or aggressively during their action; after 40 seconds of performance, they did not struggle when being removed from the cathedral. 

The Khamovnichesky District Court also failed to recognise that the Pussy Riot action is a form of political expression and examine it with a higher scrutiny as to how political debate in Russia might be adversely affected if restrictions were applied. According to the European Court of Human Rights, freedom of political debate is at the very core of the concept of a democratic society. 

The Pussy Riot members aimed at raising a public debate on the issues concerning the present political situation of Russia and the relations between the state and the church. This is a topic of great public interest. However, due to the deterioration of media freedom and freedom of assembly in Russia in recent years, it has become difficult and dangerous to discuss this issue in the media or at public assemblies, as well as similar topics of public concern.

The court failed to recognise that churches, like public institutions, should be tolerant to criticism. Moreover, the Orthodox Church was not prevented by the Pussy Riot's action from expressing its opinion about it, including criticising it or distancing itself from it.

Furthermore, praying and individual or collective worship is the primary purpose of churches. There is no proscribed form of prayer that individuals should abide to, and should be no proscription on the message within that prayer too.  

The Pussy Riot members did not act violently or aggressively during their protest action. Although this action disturbed some people, the disturbance caused by the action was minor, lasting only 40 seconds. The action was loud and disturbed the persons who were praying at the time, but the public nuisance was little, as the action of the Pussy Riot members was put to an end almost immediately.

ARTICLE 19 believes that the authorities should have resorted to less drastic measures to respond to the minor disturbance caused by the action. We note that the European Court of Human Rights has stated that in a democratic society governments should not resort to criminal proceedings particularly where other means are available for replying to unjustified attacks and criticism of adversaries. In this case it was possible to seek to impose a small administrative fine on the Pussy Riot members for the alleged public disturbance. 

ARTICLE 19 also believes the act of the Pussy Riot members was not "motivated by religious hatred," but its purpose was a political action. The law enforcement authorities in such cases bear the burden of proving that the act had such motivations, which was not apparent in this case.   

It is also possible that the Orthodox Church and some Christians might have been offended by the Pussy Riot act. However, under international and regional standards, individuals should be allowed to criticise - even harshly and unreasonably - religious institutions, provided such criticism does not amount to inciting hatred against individuals or groups, again not evident in this case.[1] 

ARTICLE 19 reiterates that the purpose of the Pussy Riot action was to criticise the political situation in Russia and to call for removal of Putin from the presidency. There are no indications that they have been motivated by religious hatred, although it has been asserted that Pussy Riot also wished to criticise the close relationship between the Orthodox Church and the government. Even if the act may have been perceived by some individuals as hurting their religious feelings, the motivation of religious hatred should be proven. Without evidence as to the existence of this element of the crime, the action should not be regarded as a criminal offence. 

Custodial sentences were disproportionate to the damage to public order and rights of others

The imposition of two-year prison sentences was under international law unjustified interference in the Pussy Riot members' right to freedom of expression. According to the European Court of Human Rights, prison sanctions for expression are justified only in exceptional cases where other fundamental rights have been seriously impaired, as, for example, in the cases of hate speech or incitement to violence. As already noted, the action of Pussy Riot was not violent and did not seriously harm public order or other fundamental rights.

ARTICLE 19 recalls that similar non-violent provocative public actions take place across the world. The persons involved are not regarded as hooligans and do not receive prison sentences. For example:

• In April 1998, Peter Tatchell – a campaigner for LGBT rights in the UK – interrupted the Archbishop of Canterbury's sermon in Canterbury Cathedral – the highest office in the Church of England bar the Queen - to protest against the church's stance on gay rights. Tatchell was sentenced to pay a fine of £18.60 (USD 30).[2]
• In May 2005, pro-hunting campaigners were convicted of offences under the Public Order Act. They had entered the Commons Chamber of the British Parliament during a debate on the hunting bill dressed in boiler suits and posing as builders. One campaigner said "the whole reason we went there was to make our voices heard." The men were discharged from any punishment subject that they fulfil conditions imposed by the court and were ordered to pay £350 (USD 550) costs.[3]
• In April 2012, four members of the Ukrainian women's rights movement FEMEN barricaded themselves into the bell tower of Saint Sofia Cathedral and protested topless against a draft anti-abortion law submitted to the Ukrainian parliament. The activists were arrested and charged with administrative offences for which the punishment is community service, administrative arrest of up to 15 days and fines.[4]
• In May 2012, fourteen protesters against coal exports were arrested in White Rock, Canada, as they threatened to block the railway route. All protesters received fines.[5]
• In 2012, three members of a climate action group staged a protest at Aberdeen airport that resulted in its temporary closure. The protesters were found guilty of a breach of the peace and were sentenced to fines of between £300 and £700 (USD 470-1100) each.[6]

The Russian authorities should have resorted to similar non-criminal and less intrusive sanctions in this case.

The Pussy Riot action in the context of the recent clampdown on freedom of assembly and free expression in Russia

The prosecution and trial of Pussy Riot members has to be seen in the context of the deteriorating freedom of expression situation in Russia as well as the growing restrictions on the right to peaceful assembly in the country.

In June 2012, two months after he was inaugurated into his third presidential term, President Putin signed the Law on Meetings, Rallies, Demonstrations, Processions and Pickets, together with amendments to the Code of Administrative Offences. This new law provides for excessive administrative fines of up to RUB 300,000 (USD 9,300) - 120 times previous maximum fine - and includes vague terminology such as 'mass simultaneous stay or movement', ostensibly in an attempt to incorporate new forms of protest, such as flash mobs or mass-protest walks. It also stipulates that "members of the public event," shall not "hide their faces with masks." An analysis of the then draft law that was presented to President Putin on 7 June by the Presidential Council for Civil Society and Human Rights, indicated serious flaws but was ignored.

The Law appears to be targeted at stopping those involved in protests and demonstrations, like the ones that marred Putin's last six months as prime minister. There are currently a dozen protesters under arrest for taking part in an anti-Putin rally on 6 May 2012, charged with 'calling for mass disorder' and assaulting police officers. If convicted they could be sentenced to up to 10 years in prison.

In July 2012, three other bills were proposed, approved by the Russian State Duma, and signed into law by President Putin with unprecedented speed, the purpose of all of which appears to be protecting the authorities from any form of critical expression. On 21 July 2012, Putin authorised a law, which will brand any Russian non-governmental organisation which receives funding from abroad as a 'foreign agent', and requires them to register with the Ministry of Justice and to comply with an increased level of regulation. A week later, on 30 July, Putin signed the law that will create a blacklist of websites, opening the gateway to internet censorship, and another law that will increase the criminal penalties for defamation, including up to 5 years in prison.

Recommendations

ARTICLE 19 calls on the Russian law enforcement authorities to:

• Immediately release the three Pussy Riot members and drop all charges against them
• Ensure that the enforcement bodies, prosecutors and courts fully respect international standards on the right to freedom of expression and implement them in their decisions
• Revoke recent legislation which will seriously restrict Russians' right to freedom of expression and freedom of information, and the right to peaceful assembly.

ARTICLE 19 calls on other states and international organisations to recognise the Pussy Riot members as political prisoners and call for their immediate release.