PARTLY DISSENTING OPINION OF JUDGE ELÓSEGUI

1. I agree with the majority that in the present case there has been a violation of Articles 5 § 3, 6 § 1 and 6 § 3, as well as a violation of Article 10 of the Convention on account of the fact that the video material available on the Internet was declared extremist and was banned.

2. However, I dissent with regard to the finding of a violation of Article 3 of the Convention on account of the special control measures adopted during the trial, and the finding of a violation of Article 10 on account of the applicants ’ criminal prosecution and punishment. As I will explain, I share the opinion that the applicants ’ conduct should not have been classified as criminal. But I consider that the Court should have emphasised that these facts could have been punished by means of an administrative or civil sanction.

3. Starting with the analysis of the violation of Article 3 of the Convention, I dissent from the conclusions of the majority in paragraphs 145, 148, 149 and 150. The applicants complain that during the trial their public image was tarnished and they felt humiliated. On this point the judgment states as follows (paragraph 149):

“The Court notes that the applicants ’ trial was closely followed by national and international media and they were permanently exposed to public view in a glass dock that was surrounded by armed police, with a guard dog next to it.”

4. According to the judgment in Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 111, ECHR 2012, one criterion by which to measure the interference with the right to private life is the previous conduct of the applicants in relation to the media. In the present case the applicants performed inside a church, inviting several media outlets to attend their performance. At several other previous events, the applicants had expressly sought publicity. The previous conduct of the applicants at several events had sought to interfere with private property, museums and shops in a disruptive manner. It was foreseeable that the applicants would take the opportunity of disturbing the court hearing if they were given the possibility. Hence, the authorities were fulfilling their legal obligations by taking special control measures during the proceedings in the courtroom, including the presence of a glass dock and of armed police.

5. As regards the feelings of humiliation, it is beyond dispute that this is a subjective concept which is undetermined from a legal point of view. However, the Court has used criteria such as previous behaviour, context and the applicants ’ circumstances to assess these feelings. In the present case the applicants exposed themselves voluntarily to publicity and even posted images on the Internet showing their faces and their naked bodies in public places.

6. In consequence, I subscribe to the statement of the judgment in paragraph 148, according to which:

“The Court considers this to constitute sufficient evidence of the fact that they were closely watching the applicants rather than monitoring the courtroom.”

However, I do not arrive at the same conclusion, because the special kind of control of the courtroom was justified and proportionate to the risk of disturbance posed by the applicants. Thus, I do not consider that there has been a violation of Article 3 of the Convention.

7. The next major analysis in my dissenting opinion is rela ted to the limits of Article 10 § 2 of the Convention, which provides:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

As I have said above, I share the majority opinion that the applicants ’ conduct should not have been classified as criminal. But I consider that the Court should have emphasised that these facts could have been punished by means of an administrative or civil sanction. In sum, I do not share completely the conclusion of paragraph 230, which states that there has been a violation of Article 10 of the Convention, because, in my view, Article 10 does not protect the invasion of churches and other religious buildings and property. In fact, as Judge Pinto de Albuquerque stated in his concurring opinion in Krupko and Others v. Russia , no. 26587/07 , 2 6 June 2014, § 12:

“... the State has a positive obligation to protect believers ’ freedom of assembly, namely by ensuring that they and their places of worship are fully respected by State and non-State actors and when attacks against them occur, to investigate and punish them.”

8. In my view, the Court should have added to the sentence in paragraph 207 (“ Having regard to the foregoing, the Court considers that criminal proceedings against the applicants on account of the above actions, which resulted in a prison sentence, amounted to a disproportionate interference with their right to freedom of expression ”) some words to the effect that it might have been proportionate in the circumstances of the present case to apply an administrative or civil sanction to the applicants, taking into account the fact that they had invaded a church and that Christians have the right to worship freely without fear of obscene, hostile or even violent protest taking place within the church [1] .

9. Freedom of expression allows for political criticism, but it does not protect, as stated in paragraph 177 of the majority judgment:

“... expressions that are gratuitously offensive to others and thus an infringement of their rights and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.”

According to the principle of proportionality, the aim of the applicants (to express their political criticism) does not justify the means that they used. The means used by the applicants to express their political beliefs were clearly disproportionate.

10. In paragraph 225 of the judgment, the majority should have taken into account the fact that Article 10 of the Convention does not protect a right to insult or to humiliate individuals. This obligation is a direct obligation for the State, but also an indirect obligation for all individuals according to the doctrine of the “horizontal effect” of fundamental rights ( Drittwirkung ), which is also applicable to Convention rights. Freedom of expression does not protect deliberate calumny or a discourse with the aim of provoking discrimination (see Jersild v. Denmark , 23 September 1994, Series A no. 298, and Gündüz v. Turkey , no. 35071/97, ECHR 2003 ‑ XI). Even value judgments of an offensive nature require a minimum of factual basis, otherwise they are considered excessive (see Paturel v. France , 54968/00, § 36, 22 December 2005) [2] .

11. According to the Explanatory Memorandum to ECRI General Policy Recommendation No. 15 on Combating Hate Speech, the criteria by which to identify hate speech include the following:

“ ... (c) the nature and strength of the language used (such as whether it is provocative and direct, involves the use of misinformation, negative stereotyping and stigmatisation or otherwise capable of inciting acts of violence, intimidation, hostility or discrimination) ...”

In the present case the Court accepted that, since the conduct in question took place in a cathedral, it could have been found offensive by a number of people. In my opinion, having regard to the international standards (including ECRI standards), the applicants ’ conduct cannot be seen as incitement to religious hatred, but it can be seen as “provocative” and directly involving “negative stereotyping” of Christian Orthodox believers. This is enough to harm the dignity of Orthodox believers by despising and insulting them as well as treating them as inferiors [3] .

12. I agree with the conclusion of the majority in paragraph 227:

“The Court finds that the applicants ’ actions neither contained elements of violence, nor stirred up or justified violence, hatred or intolerance of believers ... ”

This is well-established case law, which the Court also invoked in the case of Stomakhin v. Russia (no. 52273/07, § 90, 9 May 2018):

“In its assessment of the interference with freedom of expression in cases concerning expressions alleged to stir up or justify violence, hatred or intolerance, the Court takes into account a number of factors ... the context in which the impugned statements were published, their nature and wording, their potential to lead to harmful consequences and the reason adduced by Russian courts to justify the interference in question.”

However, I consider it necessary to emphasise that the conduct and the content of the song could have justified an administrative sanction or a finding of civil liability instead of a criminal penalty. According to the Explanatory Memorandum to ECRI General Policy Recommendation No. 15, mentioned above, the criminal law may be used only when no other, less restrictive measure would be effective, namely when speech is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it.

13. My conclusions are reinforced by the following two criteria set out in ECRI ’ s Explanatory Memorandum (cited above, § 16):

“... (e) the medium used (whether or not it is capable of immediately bringing about a response from the audience such as at a ‘ live ’ event); and (f) the nature of the audience (whether or not this had the means and inclination or susceptibility to engage in acts of violence, intimidation, hostility or discrimination) ... ”

In the circumstances of this case, it could be concluded that the applicants ’ actions had a large audience via the Internet because they recorded their performance and made it available on a digital platform. As stated in paragraph 16:

“A video containing footage of the band ’ s performances of the song, both at the Epiphany Cathedral in Yelokhovo and at Christ the Saviour Cathedral, was uploaded to YouTube.”

The applicants also invited journalists to be present (see paragraph 13 of the judgment). All these circumstances warrant characterisation as unlawful conduct under civil or administrative law (see paragraph 89 of the judgment concerning the relevant Russian administrative law, namely Article 5.26 of the Code of Administrative Offences, as in force until 29 June 2013).

14. My conclusions are also strengthened by the Report of the United Nations High Commissioner for Human Rights on the prohibition of incitement to national, racial or religious hatred, which includes the Rabat Action Plan [4] . It recommends that a clear distinction be made between:

“(a) forms of expression that should constitute a criminal offence; (b) forms of expression that are not criminally punishable, but may justify a civil suit; and (c) forms of expression that do not give rise to criminal or civil sanctions, but still raise concerns in terms of tolerance, civility and respect for the convictions of others. [5] ”

In this sense, a test has been prepared consisting of six parts, in order to define a threshold that makes it possible to establish adequately what types of expression constitute a criminal offence: the context, the speaker, the speaker ’ s intention, the content and form of the speech act, its scope and magnitude, and the possibility of damage occurring as well as its imminence [6] .

15. I can agree with the majority finding in paragraph 228:

“The Court therefore concludes that certain sanctions for 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 (see paragraph 214 above).”

Precisely on the basis of this argument I maintain that, although the domestic courts failed to adduce relevant and sufficient reasons to justify the criminal conviction and prison sentence imposed on the applicants, the latter ’ s conduct goes beyond the scope of Article 10. In consequence, this conduct could have been punished by means of administrative or civil sanctions. Although “ in the concrete case the criminal conviction and prison sentence imposed were not proportionate to the legitimate aim pursued ”, this is not a reason to consider that the applicant ’ s conduct deserves protection under Article 10 [7] .

16. In conclusion, I do not agree that there has been a violation of Article 10 of the Convention, because Article 10 does not protect conduct consisting of invading churches and other religious buildings or property for political purposes, nor does it protect conduct comprising intimidation and hostility against Christian Orthodox believers.

APPENDIX

Release the Cobblestones

“Egyptian air is good for your lungs

Turn Red Square into Tahrir

Spend the day with wild strong women

Look for a wrench on your balcony, release the cobblestones

It ’ s never too late to become a mistress

Batons at the ready, screaming louder and louder

Warm up your arm and leg muscles

The cop is licking you between your legs

Toilet bowls have been polished, chicks are in plainclothes

Zizek ’ s ghosts have been flushed down the drain

Khimki forest has been cleaned up, Chirikova got a ‘ no pass ’ to vote,

Feminists are sent on maternity leave.”

Kropotkin Vodka

“Occupy the city with a frying pan

Go out with a vacuum, get off on it

Police battalions seduce virgins

Naked cops rejoice at the new reforms.”

Death to Prison, Freedom to Protest

“The joyful science of occupying squares

The will to power, without these damn leaders

Direct action - the future of mankind!

LGBT, feminists, defend the nation!

Death to prison, freedom to protest

Make the cops serve freedom.

Protests bring on good weather

Occupy the square, carry out a peaceful takeover

Take away the guns from all the cops

Death to prison, freedom to protest

Fill the city, all the squares and streets.

There are many in Russia, put aside oysters

Open all the doors, take off the epaulettes

Taste the smell of freedom together with us

Death to prison, freedom to protest.”

Putin Wet Himself

“A group of insurgents moves toward the Kremlin

Windows shatter at FSB headquarters

Bitches piss themselves behind red walls

Pussy Riot is here to abort the system

An attack at dawn? Don ’ t mind if I do

When we are whipped for our freedom

The Mother of God will learn how to fight

Mary Magdalene the feminist will join the demonstration.

Riot in Russia – the charm of protest

Riot in Russia - Putin wet himself

Riot in Russia - we exist

Riot in Russia - riot, riot

Take to the streets

Occupy Red Square.

Show them your freedom

A citizen ’ s anger

Dissatisfied with the culture of male hysteria

Gangster management devours the brain

Orthodox religion is a hard penis

Patients get a prescription of conformity

The regime is going to censor the dream

The time has come for a subversive clash

The pack of bitches from the sexist regime

Begs forgiveness from the phalanx of feminists

Riot in Russia – the charm of protest

Riot in Russia - Putin wet himself

Riot in Russia - we exist

Riot in Russia - riot, riot

Take to the streets

Occupy Red Square.

Show them your freedom

A citizen ’ s rage.”

[1] United Nations General Asse m bly Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, A/RES/36/55, 25 November 1981 (the 1981 UNGA Declaration), Article 6 (a); General Assembly Resolution 55/97, A/RES//55/97, 1 March 2001, paragraph 8.

[2] See also Voorhoof, Dirk , “The European Convention on Human Rights: The Rights to Freedom of Expression and Information restricted by Duties and Responsibilities in a Democratic Societ y ”, available at https//biblio.urgent.be, on the subject of defamation without sufficient factual bas i s, p. 20.

[3] It is not a justification for invoking the principle of protection of critical ideas which offend, shock or disturb. See the Council of Europe ’s Compilation of Council of Europe Standards relating to the principles of freedom of thought, conscience and religion and links to other human rights, Strasbourg, Council of Europe, 2015, pp. 103-105.

[4] Report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, which includes the Rabat P lan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes an incitement to discrimination, hostility or violence, 5 October 2012 .

[5] Ibid., § 12.

[6] The Rabat P lan of Action, § 29.

[7] Tulkens, F., “When to say is to do. Freedom of expression and hate speech in the case - law of European Court of Human Rights”, European Court of Human Rights – European Judicial Training Network. Seminar on Human Rights for European Judicial Trainers, St rasbourg, 9 October 2012, pp. 1-15 .