CASE OF MAGYAR KÉTFARKÚ KUTYA PÁRT v. HUNGARY

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression;Freedom to impart information;Freedom to receive information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant political party has its registered seat in Budapest.

On 2 October 2016 a referendum related to the European Union’s migrant relocation plan was held in Hungary. The referendum was initiated by the Government and posed the following question: “Do you want the European Union to be entitled to order the mandatory settlement of non-Hungarian citizens in Hungary without Parliament’s consent?”

In the course of the campaign several opposition parties called on voters to boycott the referendum or to cast invalid ballots that would not count in the final tally but could still be interpreted as rejecting the idea of the referendum. On 29 September 2016 the applicant political party made available a mobile telephone application to voters (“the cast-an-invalid-vote app”) where they could upload, and share with the public, photographs taken of their ballots. It also enabled voters to comment on the reasons for how they cast their ballot. The posting and sharing of photographs were anonymous. The application was reported in major online journals.

On 29 September 2016 a private individual lodged a complaint with the National Election Commission (Nemzeti Választási Bizottság) about the application.

In a decision of 30 September 2016 the National Election Commission found that the application infringed the principles of fairness of elections, voting secrecy, and the proper exercise of rights (rendeltetésszerű joggyakorlás), and ordered the applicant organisation to refrain from further breaches of section 2(1)(a) and (e) of Act no. XXXVI of 2013 on Electoral Procedure and Article 2(1) of the Fundamental Law. Relying on a previous resolution issued in 2014, it held that voters could not treat ballot papers as their own [property], and therefore could neither take them out of the voting booths nor take a photograph of them. It held that taking photographs of ballot papers could lead to electoral fraud. Furthermore, although the principle of secrecy did not create any obligation on the voters’ side, it nevertheless did not entitle them to abuse their situation, bearing in mind that voting secrecy could only be maintained with their cooperation. The Commission concluded that the phone application was capable of discrediting the work of election bodies and tallying systems in the eyes of the public.

The applicant sought judicial review of this decision before the Kúria.

By a judgment of 10 October 2016 the Kúria upheld the Commission’s decision as to its finding regarding the infringement of the principle of the proper exercise of rights. The Kúria held that the purpose of the ballots had been to enable voters to express their opinion on the referendum question, and that taking photographs of ballots and subsequently publishing them had not been in line with this purpose. A ban on photographs and on publication had not infringed voters’ freedom of expression, since they had been free to express their opinions by casting their ballots and to share with others how they had voted. The Kúria overturned the remainder of the Commission’s decision on the infringement of the secrecy of the electoral process and on the discrediting of the work of the electoral bodies. It found that there was no regulation prohibiting voters from taking photographs of their ballot papers in the voters’ booths and that their identity could not have been revealed through the mobile telephone application.

Meanwhile, on 3 October 2016 the same private individual lodged a new complaint with the National Election Commission, in the light of the fact that the applicant political party had activated the “cast-an-invalid-vote app” on 2 October, the day of the referendum. The complainant maintained that by operating the mobile telephone application and by encouraging voters to make use of it, the applicant political party had infringed the principles governing the bona fide and proper exercise of rights, and also the principles of fairness and secrecy of elections.

In a decision of 7 October 2016 the National Election Commission reiterated its previous finding that taking photographs of ballot papers had infringed the principle of the secrecy of voters’ ballots, the fairness of elections, and the proper exercise of rights, and fined the political party 832,500 Hungarian forints (HUF – approximately 2,700 euros (EUR)). The Commission supplemented its previous reasoning by noting that the mobile telephone application calling on voters to cast an invalid ballot could have influenced voters and had thus constituted unlawful campaigning.

The applicant political party sought judicial review of this decision as well.

By a decision of 18 October 2016 the Kúria upheld the Commission’s decision as to the finding of an infringement of the principle of the proper exercise of rights. It explained that the purpose of the ballot papers had been for voters to express their opinion on the referendum question, and any other use of them had constituted a violation of the principle of the proper exercise of rights. The Kúria overturned the remainder of the Commission’s decision as to a violation of the fairness and voting secrecy and the principle of the bona fide exercise of rights. It reiterated its previous finding that the identity of the individual voters had not been revealed, and emphasised that the conduct of the applicant political party had had no impact on the fairness of the referendum. It reduced the fine to HUF 100,000 (approximately EUR 330).

The applicant organisation lodged a constitutional complaint against the decisions of both 10 and 18 October 2016. In both complaints the applicant requested the Constitutional Court to “establish that the Kúria’s decision infringed its right recognised in Article IX (1) of the Fundamental Law”. It argued that “under Article 27 of the Act on the Constitutional Court an organisation personally concerned by an unconstitutional judicial decision, after having exhausted all other remedies, may lodge a complaint with the Constitutional Court if the decision on the merits infringed its right ensured by the Constitution. The decision of the Kúria declared the applicant’s conduct unlawful and obliged it to pay a fine, it was the applicant who lodged the petition for review with the Kúria, thus it was individually concerned in the present case...By making the mobile phone application available the applicant reacted to the spreading of social media communication. Citizens regularly share events, thoughts and opinions on internet websites through photos taken with their mobile phones. In the context of elections, this led to the fact that all over the world, voters take photos of their ballot papers and share it through social media. By developing the mobile phone application the applicant wanted to enable voters to share photos of ballot papers (or in case of those who absented from the referendum photos of the activities undertaken instead of voting) and other messages in an anonymous way and exercise their right to freedom of expression in a way that the content of the vote could not be linked to the voter. ...In the applicant’s view the impugned decision, its legal interpretation and the consequences applied by the Kúria infringe its right under Article IX (1) of the Fundamental Law. The conduct of voters taking photos of ballot papers and sharing it with others is an expression of an opinion in public matters and constitutes a conduct falling under the freedom of expression of opinions, and in particular, the most protected aspect of it, a discussion on matters of public interest. Thus, the applicant’s activity, providing a forum for voters to express an opinion is also protected by the Article IX (1) of the Fundamental Law...In the applicant’s opinion, the decision of the the Kúria, by invoking voters’ right to freedom of expression, restrained in fact, the applicant’s own conduct of exercising its right to freedom of expression without any constitutional reason.” The applicant further submitted that, as established by the Kúria, the mobile phone application had not infringed the secrecy and fairness of the voting procedure and it had also not been capable of doing so, since the content of the ballot papers could not be linked to the voters. Thus, it argued that these aims could not serve as a legitimate basis for restricting the right to freedom of expression. In any event, even if the application could have infringed the secrecy of voting, the ban on the application had been disproportionate.

The Constitutional Court declared the complaints inadmissible on 24 October 2016, with identical reasoning, on the grounds that the cases did not concern the applicant organisation’s right to freedom of expression. It reiterated the Kúria’s finding that although the case related to the freedom of expression of voters, this had not been infringed by the decision of the Election Commission, which had only found that the method used – that is to say uploading photographs to a mobile application – had not been in compliance with the obligation to exercise voting rights in accordance with their purpose. In the Constitutional Court’s view the applicant political party had merely provided a forum for voters to share photographs of their ballot papers or their intention to abstain from voting, it had did not itself expressed an opinion. Since the applicant political party had only complained about the restriction of voters’ right to freedom of expression, it had not been personally concerned by the decision of the Kúria.


Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed a deed of acknowledgement of debt before a notary. Under the terms of the deed the applicant declared that he had borrowed 100,000 United States dollars (USD) from F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The document also contained choice of law and jurisdiction clauses according to which it was to be governed “in all respects” by Cypriot law and the Cypriot courts were to have non-exclusive jurisdiction to hear any disputes arising out of it.

In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court (Επαρχιακό Δικαστήριο Λεμεσού, Cyprus), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the debt together with interest.

In an order of 27 June 2003 the District Court summoned the applicant to appear before it. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country, requiring him to appear within thirty days from the date of service. In that connection the claimant company’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and that a summons could be served on him at that address. The applicant, for his part, contended that it had been objectively impossible for him to receive the summons at that address, which was simply the address at which he had signed the loan contract and the deed of acknowledgement of debt in 1999 and was not his home or business premises.

On 7 October 2003 the Limassol District Court ordered that the applicant be summoned at the above-mentioned address. It summoned him to appear or to come forward within thirty days of receiving the summons, failing which all future announcements concerning the case would be posted on the court’s noticeboard. An affidavit produced by an employee of the firm of lawyers representing F.H. Ltd. showed that, in accordance with the court order, the summons was sent by recorded delivery on 16 November 2003 to the address in G. Street in Riga. It also showed that the legal firm had received a post office slip confirming that the letter had been received by the applicant on 18 November 2003 (the Latvian national holiday and therefore a non-working day in Latvia). The applicant claimed never to have received the summons.

As the applicant did not appear, the Limassol District Court, ruling in his absence on 24 May 2004, ordered him to pay the claimant USD 100,000 or the equivalent in Cypriot pounds (CYP), plus interest at an annual rate of 10% of the aforementioned amount from 30 June 1999 until payment of the debt. The applicant was also ordered to pay costs and expenses in a gross amount of CYP 699.50, plus interest at an annual rate of 8%. According to the judgment, which was finalised on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment itself made no reference to the fact that it was final or to the available remedies.

On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa, Latvia) seeking recognition and enforcement of the judgment of 24 May 2004. In its request the company also sought to have a protective measure applied. It stated that the applicant was the owner of real property in Garkalne (a district of Riga) which, according to the land register, was already mortgaged to a bank. Accordingly, fearing that the applicant might seek to evade enforcement of the judgment, it asked the District Court to place a charge on the property and record it in the land register. Lastly, it requested that the applicant be ordered to pay the costs. In its request the company gave as the applicant’s place of residence an address in Č. Street in Riga which differed from the address previously notified to the Cypriot court.

On 28 April 2005 the Latgale District Court adjourned examination of the company’s request, pointing to a series of substantive defects which the company was given one month to correct. In particular, the court noted that the company had omitted to explain why it had referred to the address in Č. Street, when the applicant’s presumed address, as it had featured hitherto in the case, was in G. Street.

On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that according to the data taken from the register of residents (Iedzīvotāju reģistrs), the address in Č. Street was the applicant’s officially declared home address. As to the address in G. Street, the company’s representatives had assumed it to be the applicant’s actual residence.

In an order of 31 May 2005 the Latgale District Court ruled that the corrigendum submitted by F.H. Ltd. was insufficient to remedy all the defects in its request. The court declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court (Rīgas apgabaltiesa), which set aside the impugned order on 23 January 2006 and remitted the case to the District Court, instructing it to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005.

In an order of 27 February 2006 issued without the parties being present, the Latgale District Court allowed F.H. Ltd.’s request in full. It ordered the recognition and enforcement of the Limassol District Court’s judgment of 24 May 2004 and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality. The applicant was also ordered to pay the costs.

It was not until 16 June 2006 that the applicant learnt – by chance, according to his account – of the existence of both the Cypriot court judgment of 24 May 2004 and the Latvian court order of 27 February 2006. He did not attempt to challenge the Cypriot judgment before the Cypriot courts. However, he lodged a so-called ancillary appeal (blakus sūdzība) against the above-mentioned order with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. In that connection the applicant observed that there was nothing in the case file to indicate that he had been summoned to appear at the hearing of 27 February 2006 or that he had been notified of the order issued that day. Accordingly, the thirty-day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had become aware of the order in question.

In an order of 13 July 2006 the Latgale District Court granted the applicant’s request and extended the time-limit for lodging an appeal. It noted, inter alia, as follows:

“... It is clear from the court order of 27 February 2006 that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties, on the basis of the documents furnished by the claimant [F.H. Ltd.]. At the same time the order states that it is open to the applicant to appeal against it within thirty days from the date of receipt of the copy [of that order], in accordance with section 641(2) of the Civil Procedure Law.

The court considers the circumstances to which the applicant, P. Avotiņš, refers, to be established, namely the fact that he did not receive the order ... of 27 February 2006 until 16 June 2006, this being attested to by the reference in the list of consultations [appended to the case file], and by the fact that the order, served [on the applicant] by the court, was returned on 10 April 2006... It is apparent from the documents appended to the appeal that the applicant has not lived at his declared address in [Č.] Street since 1 May 2004; this confirms ... the statement made by his representative at the hearing, according to which the applicant no longer lives at the above-mentioned address.

Accordingly, the thirty-day period should ... run from the date on which the applicant received the order in question...

At the same time, the court does not accept the view of the representative of [F.H. Ltd.] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his home address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact of not complying with the legislation on registration of residence is not sufficient to justify the potential consequences if the court were to refuse to allow the applicant to exercise the fundamental rights guaranteed by the State as regards access to the courts and judicial protection, including the right to appeal against a decision. ...”

In his grounds of appeal before the Riga Regional Court the applicant argued that the recognition and enforcement of the Cypriot judgment in Latvia was in breach of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and and commercial matters (known as the “Brussels I Regulation”, hereafter “the Regulation”) and of the relevant provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard.

First, the applicant observed that in accordance with Article 34(2) of the Regulation (corresponding in substance to section 637(2), third subparagraph, of the Latvian Civil Procedure Law), a judgment given in default in another Member State could not be recognised if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. In the applicant’s view, those provisions had been breached in his case. The applicant maintained that both the Cypriot lawyers who had represented the claimant company in the Limassol District Court and the Latvian lawyers who had represented it in the Latvian courts had been perfectly aware of his business address in Riga. He observed in that connection that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office; as to the Latvian lawyers, he had met them in person. Therefore, they must all have been aware of his business address. Furthermore, the summons could have been sent to the applicant’s home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and his property there was entered under his name in the land register, which the lawyers could have consulted. However, instead of having the summons sent to one of those addresses, which were known and accessible, the lawyers had given the courts an address where it was objectively impossible to reach him.

Second, the applicant observed that, under the terms of Article 38(1) of the Regulation and section 637(2), second sub-paragraph, of the Latvian Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the Member State requested. In the instant case, there had been a threefold breach of those requirements. Firstly, the requesting party had only submitted the text of the Cypriot court judgment to the Latvian court, and not the certificate required in accordance with Annex V to the Regulation. In that connection the applicant acknowledged that under Article 55(1) of the Regulation the court in which enforcement was sought could, in some circumstances, exempt the requesting party from the obligation to produce a certificate; however, in the present case, the Latgale District Court had omitted to explain whether and for what reason it considered that the requesting party could be exempted from that obligation. Secondly, the Cypriot judgment itself had contained no reference to its entry into force or possible remedies. Lastly, in order to be enforced in accordance with the Regulation, a judgment had to be enforceable in the country of origin; however, none of the documents produced by the company demonstrated that the judgment of 24 May 2004 was enforceable in Cyprus. The applicant therefore concluded that the judgment could under no circumstances be recognised and enforced in Latvia.

In a judgment of 2 October 2006 the Regional Court allowed the applicant’s appeal on the merits, quashed the impugned order and rejected the request for recognition and enforcement of the Cypriot judgment.

F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it at a hearing on 31 January 2007. At the start of the hearing the appellant company submitted copies of several documents to the Senate, including the certificate provided for by Article 54 of the Regulation and by Annex V thereto, dated 18 January 2007 and signed by an acting judge of the Limassol District Court. According to the certificate, the document instituting the proceedings had been served on the applicant on 27 November 2003. The last part of the certificate, intended for the name of the person against whom the judgment was enforceable, had been left blank. When asked to comment on these documents, the applicant’s lawyer argued that they were clearly insufficient to render the judgment enforceable.

In a final judgment of 31 January 2007 the Senate quashed and annulled the Regional Court judgment of 2 October 2006 and allowed F.H. Ltd.’s claims. It ordered the recognition and enforcement of the Cypriot judgment and the entry in the land register of a charge on the applicant’s property in Garkalne. The relevant extracts from the judgment read as follows:

“ ... It is clear from the documents in the case file that the Limassol District Court judgment was made final. This is confirmed by the explanations provided by both parties at the Regional Court hearing on 2 October 2006, according to which no appeal had been lodged against the judgment, and by the certificate issued on 18 January 2007... As [the applicant] did not appeal against the judgment, his lawyer’s submissions to the effect that [he] was not duly notified of the examination of the case by a foreign court are of no importance.

Having regard to the foregoing, the Senate accepts that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 should be recognised and enforced in Latvia.

Article 36 of the Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance; in accordance with section 644(1) of the Civil Procedure Law, once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by the same Law. ...”

On the basis of the Senate judgment the Latgale District Court issued a writ of execution (izpildu raksts) on 14 February 2007. The applicant complied immediately with the terms of the writ and paid the bailiff employed by the claimant company a total of 90,244.62 Latvian lati (LVL, approximately 129,000 euros (EUR)), comprising LVL 84,366.04 for the principal debt and LVL 5,878.58 in enforcement costs. He then requested that the charge on his property in Garkalne be lifted. In two orders dated 24 January 2008 the judge with responsibility for land registers (Zemesgrāmatu nodaļas tiesnesis) refused the request. The applicant lodged an appeal on points of law with the Senate of the Supreme Court which, in an order of 14 May 2008, lifted the charge on the property.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1971 and lives in Mondsee.

On 3 October 2000 the Vienna public prosecutor’s office (Staatsanwaltschaft – hereinafter, “the prosecutor’s office”) requested the Vienna Regional Criminal Court (Landesgericht für Strafsachen – hereinafter, “the Regional Court”) to institute criminal proceedings against the applicant. The prosecutor’s office sought to obtain information about the outcome of criminal proceedings against the applicant in the United States, where he had been charged with aggravated fraud in his function as director of the M. investment fund and the M. capital management company. Among the injured parties there were also Austrian banks. The criminal proceedings against the applicant in Austria were suspended in accordance with Article 412 of the Code of Criminal Proceedings (hereinafter, the “CCP”) pending the outcome of the proceedings in the United States.

On 27 November 2000 the applicant was convicted of bond fraud by the New York Southern District Court in the United States. However, he subsequently absconded and did not appear at the court hearing in which his sentence was to be determined. On 1 March 2002 the United States issued an arrest warrant against the applicant.

On 29 May 2002 the Regional Court opened a judicial investigation (Voruntersuchung) against the applicant and issued an arrest warrant.

On 6 July 2007 the applicant was arrested in Austria on the basis of the arrest warrant of 29 May 2002 (see paragraph 7 above) and subsequently placed in pre-trial detention.

On 23 July, 17 August and 24 September 2007 the applicant filed complaints against the continuation of the pre-trial detention. While the first two complaints were withdrawn by the applicant, the third was dismissed by the Vienna Court of Appeal (Oberlandesgericht) on 5 November 2007. The applicant unsuccessfully requested his release also on 28 January, 8 May and 12 August 2008. The applicant’s complaints against the continuation of his pre-trial detention lodged on 7 February, 27 May and on 27 August 2008 were dismissed by the Vienna Court of Appeal on 27 March, 24 June and 23 September 2008.

On 25 October 2007 the applicant submitted a statement of facts to the authorities, presenting his view of the situation.

On 16 November 2007, 21 April and 15 July 2008 the applicant applied to be granted access to his case-file. On an unspecified date the Regional Court dismissed his requests.

On 27 December 2007 the case file was transferred to the prosecutor’s office for further investigation.

On 10, 29 and 30 January 2008 the applicant filed submissions with the Regional Court. Among other things, he declared that he was willing to give a statement concerning the accusations against him. On 26 March 2008 the Regional Court rejected his requests on formal grounds.

On 14 April 2008 the applicant lodged a complaint relating to his fundamental rights (Grundrechtsbeschwerde) with the Supreme Court (Oberster Gerichtshof), which was dismissed on 19 June 2008.

On 1 May 2008 the applicant lodged an objection because of alleged violations of his rights (Einspruch wegen Rechtsverletzung) and again applied to be granted access to his case-file. On 8 July 2008 the Regional Court dismissed the objection.

On 21 July, 29 August and 1 September 2008 the applicant lodged further objections because of alleged violations of his rights. On 16 October 2008 the Regional Court dismissed all of them. The applicant appealed against this decision.

On 30 December 2008 the Vienna Court of Appeal dismissed the objection of 1 September 2008, but granted the two objections of 21 July and 29 August 2008, holding that the refusal to grant the applicant access to his case file and to provide him with copies thereof constituted a violation of his rights.

On 27 August 2008 the applicant filed another complaint against the continuation of his pre-trial detention. On 23 September 2008 the Vienna Court of Appeal dismissed this complaint.

On 23 September 2008 the prosecutor’s office informed the applicant about the intended appointment of expert S.J.

On 29 September 2008 the applicant objected to this appointment, stating that S.J. would not have the necessary knowledge to deal with the case and could possibly be biased as she was cooperating with the companies involved in the alleged fraud.

On 6 October 2008 the expert S.-J. was nonetheless appointed to provide an opinion relating to the applicant’s businesses.

On 9 October 2008 the applicant lodged another complaint relating to his fundamental rights with the Supreme Court. On 4 November 2008 his complaint was dismissed by the Supreme Court.

On 21 October 2008 he unsuccessfully lodged another request to be released. On 6 April 2009 the applicant again requested his release from pre-trial detention.

On 24 April 2009 the applicant was released from pre-trial detention. He alleged that he had not even once been questioned in relation to the accusations against him during the entire time he spent in pre-trial detention, even though he had tried to contribute to the clarification of the facts by submitting statements as well as requests for the taking of evidence.

On 13 September 2009 the applicant lodged another objection because of an alleged violation of his rights, arguing that the expert S.-J. had close connections with potential victims and was therefore biased. On 19 January 2010 the Regional Court granted this objection.

On 8 September 2010 the applicant filed an application for the discontinuation of the criminal proceedings against him. He argued that he had already been tried and sentenced in the United States for the same offences. Moreover, according to the laws in force at the time and place of the commission of the offences, the latter had become time-barred. On 7 October 2010 the Regional Court dismissed the application. On 14 March 2011 the Vienna Court of Appeal dismissed the applicant’s appeal, holding that even though it was difficult to clarify the facts of the case after more than ten years, the applicant had significantly contributed to the length of the investigations by having absconded.

On 7 April 2011 a new expert, W.-A., was appointed to provide an opinion. The applicant again objected to the expert and complained about the length of the pre-trial investigations. On 11 May 2011 the Regional Court granted the objection concerning the expert, but dismissed the applicant’s complaint concerning the length of the proceedings, holding that it had been proportionate to the complexity of the case. Further, it held that the main reason for their length was that the applicant had filed a large number of objections and appeals. Hence, the duration of the proceedings was not in violation of Article 6 of the Convention.

On 16 August 2011 the prosecutor’s office informed the applicant that it intended to appoint a new expert, B. The applicant objected, alleging that B. had close relations with investors who could potentially have sustained damages because of his activities. On 25 October 2011 B. was nonetheless appointed by the prosecutor’s office and given a deadline of nine months to provide the opinion. The applicant’s objection was dismissed by the Regional Court on 5 December 2011. On 16 April 2012 the Vienna Court of Appeal rejected the applicant’s appeal as being lodged out of time.

On 14 August 2013 the applicant lodged an objection because of an alleged violation of his rights, repeating his arguments that the expert B. was not impartial. He further argued that B. had significantly exceeded the time-limit for providing his opinion. On 26 December 2013 the Regional Court granted the objection, holding that the prosecutor’s office had not adequately reacted to the exceeding of the time-limit by the expert, who should have been discharged as a consequence. It therefore found that the applicant’s right to have the proceedings conducted within a reasonable time was violated.

On 4 March 2014 the expert B. was discharged and on 5 May 2014 another expert, M., was appointed.

On 9 October 2016 the prosecutor’s office submitted an indictment against the applicant on suspicion of embezzlement and aggravated fraud on a commercial basis. On an unspecified date, the applicant’s appeal against the indictment was rejected by the Vienna Court of Appeal. Therefore, it has become legally binding.

At the date of the latest information available to the Court (15 November 2016), the criminal proceedings against the applicant were still pending at first instance.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1968 and lives in Apeldoorn.

In a judgment of 29 October 2008, the Zutphen Regional Court (rechtbank) convicted the applicant of the transportation of 2,800 grams of heroin and of seven counts of people trafficking (mensensmokkel) as defined in Article 197a of the Criminal Code (Wetboek van Strafrecht), committed jointly with other perpetrators. It sentenced him to a partially suspended term of 40 months’ imprisonment.

Both the applicant and the prosecution appealed against the Regional Court’s judgment.

On 19 July 2011 the Arnhem Court of Appeal (gerechtshof) gave its judgment, upholding the conviction for the offence of transporting heroin and also of four counts of people trafficking, and acquitting him on the three other counts. It sentenced him to 40 months’ imprisonment less the time spent in pre-trial detention. Based on the evidence submitted, the Court of Appeal found established that the applicant and his co-perpetrators had, for purposes of financial gain, between 10 November 2006 and 17 January 2007 facilitated the unauthorised residence of a total of 20 Iraqi migrants in the Netherlands, Germany and Denmark.

The applicant lodged an appeal in cassation (cassatie), the scope of which is limited to procedural conformity and points of law, with the Supreme Court (Hoge Raad). In his written grounds of appeal of 8 August 2013, the applicant raised, inter alia, a complaint regarding the four counts of people trafficking of which he had been convicted by the Court of Appeal. The applicant contended that the Court of Appeal had convicted him of facilitation of unauthorised “residence”, as defined in Article 197a § 2 of the Criminal Code, whereas the evidence relied on by the Court of Appeal to uphold that conviction did not prove that the Iraqi migrants had had “residence” in the Netherlands, Germany or Denmark. Instead, the evidence demonstrated that the applicant had organised and financed the Iraqi migrants’ transportation to Denmark via the Netherlands and Germany, which had been intercepted on each occasion in Germany. As the migrants’ stay in the Netherlands and Germany had only been brief and transitory, and given that they had never even entered Denmark, there was, according to the applicant, no proof of “residence” in those countries. In that regard, the applicant referred to European Union law, namely Council Directive 2002/90/EG of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (hereinafter “the Directive”) and Council Framework Decision 2002/946/JBZ of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (hereinafter “the Framework Decision”). Submitting that Article 197a of the Criminal Code had been amended in order to implement the Directive, the applicant argued that the notion of the facilitation of unauthorised “residence” within the meaning of Article 197a § 2 should be understood as entailing a long-term stay, to be distinguished from “transit” or “entry” as defined in the first paragraph of Article 197a, which had been added to Article 197a when the Directive was implemented. The applicant’s grounds of appeal in cassation did not include a request that the Supreme Court put a question to the CJEU for the purpose of obtaining a preliminary ruling.

In his advisory opinion of 10 December 2013, the Advocate General (advocaat-generaal) to the Supreme Court expressed his view that the applicant’s appeal should be dismissed with the exception of the first of the grounds of the appeal, which pertained to the length of the proceedings: the duration of the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, for which a reduction of sentence was to be applied. With regard to the applicant’s complaint that the evidence did not show that there had been any “residence” of the migrants in the countries at issue, the Advocate General was of the opinion that Article 197a § 2 of the Criminal Code called for a broad interpretation of “residence”, as had been the case prior to the implementation of the Directive and the Framework Decision. Since that implementation was intended to broaden the scope of Article 197a of the Criminal Code, the second paragraph of that provision retained its broad meaning of “residence”, thereby encompassing “transit”. The separate penalisation in the first paragraph of Article 197a of the facilitation of unauthorised “transit and entry” did not change the broad scope of paragraph 2. The Advocate General thus concluded that the applicant’s complaint in this matter should be dismissed.

On 24 December 2013, the applicant submitted written comments in reply to the Advocate General’s advisory opinion (a so-called “Borgers letter”) in which he made a tentative request for questions to be referred to the CJEU for a preliminary ruling about the interpretation of “residence”, “entry” and “transit” within the context of the Directive and whether the Directive contained minimum rules or constituted a general framework of terms, if the Supreme Court were to concur with the Advocate General.

On 4 March 2014 the Supreme Court gave its judgment, which read:

“[the applicant’s counsel] have submitted written grounds of appeal. That document is annexed to this judgment, of which it is a component part.

The Advocate General [...] has advised that the impugned judgment be quashed − but only as regards the prison sentence imposed, reducing it due to the violation of the right to adjudication within a reasonable time − and that the remainder of the appeal be dismissed.

Counsel [for the applicant] have submitted a written reply.”

The Supreme Court went on to hold that the applicant’s complaint that the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention was well-founded and that the sentence imposed on the applicant should be reduced as a consequence thereof. The Supreme Court further considered:

“4. Assessment of the remaining grievances

The grievances cannot lead to cassation [of the impugned judgment] (de middelen kunnen niet to cassatie leiden). Based on section 81 (1) of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie), this requires no further reasoning as the grievances do not give rise to the need for a determination of legal issues in the interests of legal uniformity or legal development.”

The Supreme Court thus quashed the Court of Appeal’s judgment as regards the imposed sentence, reduced the sentence to 34 months’ imprisonment, and dismissed the remainder of the grounds of appeal. No further appeal lay against the Supreme Court’s judgment.


CASE OF VASILEVSKIY AND BOGDANOV v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

Mr Vasilevskiy was born in 1973 and lives in Blagoveshchensk.

Mr Vasilevskiy stayed in detention for longer that he should have because the sentencing courts did not count the time he had spent in pre-trial detention towards the overall duration of his sentence, in breach of the applicable domestic provisions. In response to Mr Vasilevskiy’s repeated complaints, on 7 May 2007 the Belogorskiy District Court in the Amur Region corrected the error and acknowledged that his sentence had expired on 26 February 2006. Mr Vasilevskiy was released on 13 June 2007. He sought compensation for 472 days during which he had been wrongfully detained.

On 13 December 2013 the Blagoveshchensk Town Court in the Amur Region awarded him 150,000 Russian roubles (RUB – 3,320 euros (EUR) at the then-applicable exchange rate) in respect of non-pecuniary damage. Mr Vasilevskiy lodged an appeal, submitting in particular that that sum was substantially lower than that which the Court would have awarded in a similar case.

On 28 February 2014 the Amur Regional Court dismissed his appeal. As regards the level of compensation, it held that the Town Court had “had regard to the case-law of the European Court but had correctly determined the amount of compensation in respect of non-pecuniary damage in the light of the requirements of Russian law”.

Mr Bogdanov was born in 1981 and lives in the Novgorod Region.

On 30 March 2007 Mr Bogdanov was convicted of supplying drugs on four separate occasions in 2006 and sentenced to twelve years’ imprisonment. On 20 March 2013 the Supreme Court of the Russian Federation acknowledged, referring to the Court’s case-law under Article 6 of the Convention, that the police had incited Mr Bogdanov to commit the last three of the four offences. It declared that part of evidence inadmissible, voided his conviction in that part, reduced his sentence to six years’ imprisonment and ordered his immediate release.

By that time, Mr Bogdanov had spent 119 days in custody over and above the adjusted six-year sentence. He sought to recover damages in respect of his wrongful imprisonment.

On 13 March 2014 the Valdayskiy District Court in the Novgorod Region awarded him RUB 80,000 (EUR 1,576). However, on 9 July 2014 the Novgorod Regional Court reduced the award to RUB 15,000 (EUR 324), referring to the “circumstances in which the criminal proceedings had been instituted” and the “category of offence that Mr Bogdanov had been charged with”. On 30 September 2014 the Regional Court rejected a cassation appeal lodged by Mr Bogdanov.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Civil proceedings;Right to a fair trial;Article 6-1 - Reasonable time)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In application no. 9783/09, the applicant also raised other complaints under the provisions of the Convention.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The first applicant was born in 1971 and lives in Formigine (Italy). The second and third applicants were born in 2003 and 2004 respectively and apparently live with their mother in Budakeszi (Hungary) or somewhere nearby.

In June 2004 the first applicant’s then wife, whom he had married in 2002 and who is the mother of the second and third applicants, took the second and third applicants from Italy, where the family was living, to Hungary.

In August 2004 the first applicant travelled to Hungary. The family was supposed to return to Italy but the first applicant’s wife refused to leave and the first applicant returned to Italy alone.

In December 2004 the first applicant joined his family in Hungary for the Christmas holidays and his wife again refused to return to Italy with him and kept the children with her.

In February 2005 the first applicant wrote to his wife requesting that she return to Italy with their daughters.

On 3 March 2005 the first applicant asked the Italian Ministry of Justice to initiate proceedings for the return of the children to Italy. On 23 March 2005 he also instigated proceedings before the Court of Modena (Italy) for separation from his wife and the return of his daughters to Italy.

On 25 April 2005 his wife started parallel divorce proceedings before the Buda Surroundings District Court.

On 2 May 2012, the applicants lodged a complaint before the European Commission alleging a violation of Article 11 of the Council Regulation (EC) no. 2201 of 2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters of Parental Responsibility (“the EU Regulation on Recognition of Judgments”), which is still pending.

In 2011 the marriage between the first applicant and his ex-wife was annulled (see paragraph 26 below). As at the date of introduction of the present application, the first applicant had been unable to see his daughters since 2005.

On 25 August 2005 the Pest Central District Court found that the first applicant’s ex-wife was keeping the children in Hungary illegally, in violation of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). However, it considered that given their young age, the children needed to be cared for by their mother and therefore refused to order their return to Italy.

On 9 November 2005 the Budapest Regional Court quashed the decision of the Pest Central District Court and ordered that the children be returned to Italy by 10 December 2005 at the latest, but this failed to happen.

An enforcement order was issued against the first applicant’s ex-wife by the Buda Surroundings District Court on 26 April 2006 and upheld by the Pest County Regional Court on 5 September 2006. The decision was not enforced.

On 5 February 2007 the Buda Surroundings District Court ordered the enforcement of the decision of 9 November 2005, this time with the assistance of the police. Again, the decision was not enforced.

On 21 July 2010, following the issue of a European arrest warrant by the Italian authorities, the first applicant’s ex-wife was arrested by the Hungarian police but was released shortly thereafter with no progress having been made regarding a possible return of the second and third applicants to Italy.

On 14 October 2011, she was sentenced in absentia by the Buda Surroundings District Court to a 200-day fine for illegally changing the custody of a minor.

On 8 November 2012 the headmaster of Széchenyi István Primary School, located in Budakeszi, initiated proceedings before the Budakeszi district guardianship authority to bring the second and third applicants under its protection.

On an unspecified date, the first applicant and his ex-wife reached an agreement pursuant to which the second and third applicants would remain with their mother in Hungary but would be able to visit the first applicant in Italy several times per year. In the light of that agreement, on 19 February 2013 the first applicant requested the suspension of the enforcement proceedings against his ex-wife, and the Buda Surroundings District Court duly suspended the proceedings until 19 August 2013.

On 16 August 2013, the first applicant withdrew his enforcement request.

Following a proposal drafted by the competent Social and Child Welfare Service (HÍD Szociális és Gyermekjóléti Szolgálat) ‒ which was of the view that the children were no longer in danger ‒ the Buda Surroundings District Court discontinued the enforcement proceedings.

On 28 November 2005, the Court of Modena granted exclusive custody of the children to the first applicant.

On 15 December 2005, the first applicant pressed criminal charges against his ex-wife for child abduction.

On an unknown date the Criminal Court of Modena sentenced the ex-wife to 18 months’ imprisonment, suspended.

The marriage between the first applicant and his ex-wife was annulled by the ecclesiastical tribunal of the Umbria region, whose decision was granted exequatur by the Court of Appeal of Bologna on 18 July 2011.

On 4 October 2011, following an appeal by the prosecutor, the Court of Appeal of Bologna sentenced the applicant’s ex-wife to 18 months’ imprisonment, suspended.

The first applicant’s ex-wife appealed against her conviction before the Italian Court of Cassation. One month before the hearing the first applicant withdrew his criminal suit in the hope of appeasing the situation and allowing his ex-wife to travel freely to Italy with their two daughters.

On 30 November 2012 the Court of Cassation quashed the judgment of the Court of Appeal of Bologna in the light of the first applicant’s decision to withdraw his criminal suit.


CASE OF MARIYA ALEKHINA AND OTHERS v. RUSSIA

Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

The first applicant, Ms Mariya Vladimirovna Alekhina, was born in 1988. The second applicant, Ms Nadezhda Andreyevna Tolokonnikova, was born in 1989. The third applicant, Ms Yekaterina Stanislavovna Samutsevich, was born in 1982. The applicants live in Moscow.

The three applicants are members of a Russian feminist punk band, Pussy Riot. The applicants founded Pussy Riot in late 2011. The group carried out a series of impromptu performances of their songs Release the Cobblestones, Kropotkin Vodka, Death to Prison, Freedom to Protest and Putin Wet Himself in various public areas in Moscow, such as a subway station, the roof of a tram, on top of a booth and in a shop window.

According to the applicants, their actions were a response to the ongoing political process in Russia and the highly critical opinion which representatives of the Russian Orthodox Church, including its leader Patriarch Kirill, had expressed about large-scale street protests in Moscow and many other Russian cities against the results of the parliamentary elections of December 2011. They were also protesting against the participation of Vladimir Putin in the presidential election that was due in early March 2012.

The applicants argued that their songs contained “clear and strongly worded political messages critical of the government and expressing support for feminism, the rights of minorities and the ongoing political protests”. The group performed in disguise, with its members wearing brightly coloured balaclavas and dresses, in various public places selected to enhance their message.

Following a performance of Release the Cobblestones in October 2011, several Pussy Riot members, including the second and third applicants, were arrested and fined under Article 20.2 of the Code of Administrative Offences for organising and holding an unauthorised assembly. On 14 December 2011 three members of the group performed on the roof of a building at temporary detention facility no. 1 in Moscow. The performance was allegedly held in support of protesters who had been arrested and placed in that facility for taking part in street protests in Moscow on 5 December 2011. The band performed Death to Prison, Freedom to Protest and hung a banner saying “Freedom to Protest” on it from the roof of the building. No attempt to arrest the band was made. A video of the performance was published on the Internet.

On 20 January 2012 eight members of the band held a performance entitled Riot in Russia at Moscow’s Red Square. The group sang a song called Putin Wet Himself. All eight members of the band were arrested and fined under Article 20.2 of the Code of Administrative Offences, the same as before.

In response to the public support and endorsement provided by Patriarch Kirill to Mr Putin, members of Pussy Riot wrote a protest song called Punk Prayer – Virgin Mary, Drive Putin Away. A translation of the lyrics is as follows:

“Virgin Mary, Mother of God, drive Putin away

Drive Putin away, drive Putin away

Black robe, golden epaulettes

Parishioners crawl to bow

The phantom of liberty is in heaven

Gay pride sent to Siberia in chains

The head of the KGB, their chief saint,

Leads protesters to prison under escort

So as not to offend His Holiness

Women must give birth and love

Shit, shit, holy shit!

Shit, shit, holy shit!

Virgin Mary, Mother of God, become a feminist

Become a feminist, become a feminist

The Church’s praise of rotten dictators

The cross-bearer procession of black limousines

A teacher-preacher will meet you at school

Go to class - bring him cash!

Patriarch Gundyaev believes in Putin

Bitch, better believe in God instead

The girdle of the Virgin can’t replace rallies

Mary, Mother of God, is with us in protest!

Virgin Mary, Mother of God, drive Putin away

Drive Putin away, drive Putin away.”

On 18 February 2012 a performance of the song was carried out at the Epiphany Cathedral in the district of Yelokhovo in Moscow. The applicants and two other members of the band wearing brightly coloured balaclavas and dresses entered the cathedral, set up an amplifier, a microphone and a lamp for better lighting and performed the song while dancing. The performance was recorded on video. No complaint to the police was made in relation to that performance.

On 21 February 2012 five members of the band, including the three applicants, attempted to perform Punk Prayer – Virgin Mary, Drive Putin Away from the altar of Moscow’s Christ the Saviour Cathedral. No service was taking place, although a number of persons were inside the Cathedral. The band had invited journalists and media to the performance to gain publicity. The attempt was unsuccessful as cathedral guards quickly forced the band out, with the performance only lasting slightly over a minute.

The events unfolded as follows. The five members of the band, dressed in overcoats and carrying bags or backpacks, stepped over a low railing and ran up to the podium in front of the altar (the soleas). After reaching the steps, the band removed their coats, showing their characteristic brightly coloured dresses underneath. They also put on coloured balaclavas. They placed their bags on the floor and started taking things out of them. At that moment the video recorded someone calling out for security and a security guard then ran up the steps to the band. The band member dressed in white, the third applicant, pulled a guitar from her bag and tried to put the strap over her shoulder. Another guard ran up to the second applicant and started pulling her away. Moments later the band started singing the song without any musical accompaniment. The guard let go of the second applicant and grabbed the third applicant by the arm, including her guitar, at the same time calling on his radio for help. The radio fell out of his hand but he did not let go of the third applicant and pushed her down the steps. While the third applicant was being pushed away by the guard, three of the other band members continued singing and dancing without music. Words such as “holy shit”, “congregation” and “in heaven” were audible on the video recording. At the same time the second applicant was trying to set up a microphone and a music player. She managed to turn the player on and music started playing. A uniformed security guard grabbed the player and took it away. At the same time four band members, including the first two applicants, continued singing and dancing on the podium, kicking their legs in the air and throwing their arms around. Two cathedral employees grabbed the first applicant and another band member dressed in pink. She ran away from the security guard, while the second applicant kneeled down and started making the sign of the cross and praying. The band continued singing, kneeled down and started crossing themselves and praying.

Cathedral staff members escorted the band away from the altar. The video-recording showed that the last band member left the altar one minute and thirty-five seconds after the beginning of the performance. The guards accompanied the band to the exit of the cathedral, making no attempt to stop them or the journalists from leaving.

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.

On 21 February 2012 a deputy director general of private security company Kolokol-A, Mr O., complained to the head of the Khamovniki district police in Moscow of “a violation of public order” by a group of unidentified people in Christ the Saviour Cathedral. Mr O. stated that at 11.20 a.m. that day unidentified individuals had screamed and danced on “the premises of the cathedral”, thus “insulting the feelings of members of the church”. The individuals had not responded to reprimands by churchgoers, clergymen or guards.

A similar complaint was lodged three days later by the acting director of the Christ the Saviour Cathedral Fund, Mr P. He called the applicants’ conduct disorderly, extremist and insulting to Orthodox churchgoers and the Russian Orthodox Church. Mr P. also stated that the band’s actions had been aimed at stirring up religious intolerance and hatred. Printouts of photographs of the band’s performances and the full lyrics of Punk Prayer – Virgin Mary, Drive Putin Away, downloaded from the group’s website, were attached to the complaint.

On 24 February 2012 the police instituted criminal proceedings. Cathedral staff members and guards were questioned. They stated that their religious feelings had been offended by the incident and that they could identify three of the band members as they had taken off their balaclavas during the performance.

On 3 March 2012 the second applicant was arrested. The first applicant was apprehended the following day. They were charged with the aggravated offence of hooliganism motivated by religious hatred.

The third applicant was also stopped by the police in the street and taken in for questioning on 3 March 2012. She had no identification documents and did not provide her real name, instead identifying herself as Ms Irina Vladimirovna Loktina. Her mobile telephone and a computer flash drive were seized and she was released after the interview.

On 5 March 2012 the Taganskiy District Court of Moscow issued separate detention orders to remand the first two applicants in custody until 24 April 2012. In terms of the circumstances precluding the application of a less stringent measure to the applicants, the court cited the gravity of the charges, the severity of the penalty they faced, the “cynicism and insolence of the crime” the applicants were charged with, their choice not to live at their places of permanent residence, their lack of permanent “legal” sources of income, the first applicant’s failure to care for her child and the second applicant’s right to move to and reside in Canada. It also cited the fact that certain members of Pussy Riot were still unidentified or on the run.

The detention orders became final on 14 March 2012, when the Moscow City Court upheld them on appeal, fully endorsing the District Court’s reasoning.

The third applicant was placed in custody on 16 March 2012 by the Taganskiy District Court after finally being identified by the police and charged with the same criminal offence as the first two applicants. The District Court found that the risks of the third applicant absconding, reoffending and perverting the course of justice warranted her detention. Those risks were linked by the court to the following considerations: the gravity of the charges, the severity of the penalty she faced, her unwillingness to identify other members of the band, her lack of a permanent legal source of income, and her use of an assumed identity while communicating with the police on previous occasions. The decision was upheld on appeal by the Moscow City Court on 28 March 2012.

By three separate detention orders issued on 19 April 2012 the Taganskiy District Court further extended the applicants’ detention until 24 June 2012. Citing the grounds it had used to substantiate the need for the applicants’ placement in custody, the District Court concluded that no new circumstances warranting their release had come to light. It also noted the first applicant’s blanket refusal to confess to the offence with which she had been charged or to any other act prohibited by the Russian Criminal Code. It also stated that the applicants’ arrests had only been possible due to searches conducted by the Russian police as it had not been possible to find them at their places of permanent residence.

On 20 June 2012 the Taganskiy District Court once again extended the applicants’ detention, citing the same reasons as in the previous detention orders. On 9 July 2012 the Moscow City Court agreed that it was necessary to continue holding the applicants in custody.

In a pre-trial hearing on 20 July 2012 the Khamovnicheskiy District Court of Moscow allowed an application by a prosecutor for a further extension of the applicants’ detention, finding that the circumstances which had initially called for their being held on remand had not changed. The applicants were to remain in custody until 12 January 2013. The District Court dismissed the arguments the applicants put forward pertaining to their family situation (the first two applicants had young children), the fragile health of the second applicant, the fact that the three applicants had registered their places of residence in Moscow and that the criminal proceedings against them were already at a very advanced stage. The court also refused to accept personal written sureties given by fifty-seven individuals, including famous Russian actors, writers, film producers, journalists, businessmen, singers and politicians.

On 22 August 2012 the Moscow City Court upheld the detention order of 20 July 2012, considering it lawful and well-founded.

In the meantime, investigators ordered expert opinions to determine whether the video-recording including the performance of Punk Prayer – Virgin Mary, Drive Putin Away downloaded from the Internet was motivated by religious hatred, whether the performance of the song at the cathedral could therefore amount to incitement of religious hatred, and whether it had been an attack on the religious feelings of Orthodox believers. In the first two reports, commissioned by a State expert bureau and issued on 2 April and 14 May 2012 respectively, five experts answered in the negative to those questions. In particular, the experts concluded that the applicants’ actions on 21 February 2012 at Christ the Saviour Cathedral had not contained any signs of a call or an intention to incite religious hatred or enmity. The experts concluded that the applicants had not been violent or aggressive, had not called for violence in respect of any social or religious group and had not targeted or insulted any religious group.

A third expert opinion subsequently requested by the investigators from directly appointed individual experts produced an entirely different response. In a report issued on 23 May 2012 three experts – a professor from the Gorky Institute of World Literature, a professor at the Moscow City Psychological Pedagogical University, and the President of a regional NGO, the Institute of State Confessional Relations and Law – concluded that the performance and video had been motivated by religious hatred, in particular hatred and enmity towards Orthodox believers, and had insulted the religious feelings of such believers.

On 20 July 2012 the three applicants were committed to stand trial before the Khamovnicheskiy District Court. The trial was closely followed by national and international media.

The trial court dismissed numerous complaints by the applicants related to the negative impact of security measures in place at the courthouse on their right to communicate freely with counsel and to prepare their defence. In particular, in applications to the trial court of 23 July 2012 for time for a confidential meeting with their lawyers, they stated that confidential communication was impossible because of the presence of police officers and court ushers around the dock. The applicants raised the issue again in a similar application on 24 July 2012, which was repeated at a hearing on 30 July 2012.

The applicants provided the following description of the hearings. Throughout the trial they were held in an enclosed dock with glass walls and a tight-fitting door, which was commonly known as an “aquarium”. There was insufficient ventilation inside the glass dock and it was hard to breathe, given the high summer temperatures. A desk for the applicants’ lawyers was installed in front of the dock. There was always high security around the dock, which at times included seven armed police officers and a guard dog. Colour photographs of the courtroom submitted by the applicants show police officers and court ushers surrounding the dock, either behind or close to the defence lawyers’ desk. Some photographs show female police officers positioned between the lawyers’ desk and the glass dock containing the applicants. The applicants had to use a small window measuring 15 x 60 cm to communicate with their lawyers, which they had to bend down to use as it was only a metre off the ground. The applicants had to take turns to speak to their lawyers as the window was too small for all three to use it simultaneously. According to the applicants, confidential communication with their defence team was impossible as a police officer always stood nearby monitoring their conversations and any documents which were passed between them. Furthermore, a dog was present in the courtroom, which was at times particularly disturbing as it had barked during the hearings and behaved restlessly.

According to the applicants, it was virtually impossible to communicate with their lawyers outside the courtroom as they were taken back to the detention facility at night, when it was too late to be allowed visitors.

The lawyers applied several times to the District Court for permission to hold confidential meetings with the applicants. The lawyers and applicants also sought an adjournment of the hearings to give the defence an opportunity to consult their clients in private, either in the courthouse or in the detention facility, but those requests were fruitless.

Similarly, the court dismissed applications to call the experts who had issued the three expert reports or to call additional experts, including art historians and specialists in the fields of contemporary art and religious studies, who could have provided opinions on the nature of the performance on 21 February 2012. The defence’s challenges to the third expert report issued on 23 May 2012 were also unsuccessful.

According to the applicants, when there were hearings they were transported from the detention facility to court in a prison van: they were usually transported in a small vehicle when being taken to the courthouse in the morning and in a bigger one when being taken back to the detention facility in the evening. The bigger van consisted of two long sections so men and women could be transported separately. The vans had two or three compartments separated by metal partitions, each designed to accommodate one inmate. The common area of the vans was equipped with benches, while the roof was so low detainees could not stand up. The space in the common compartment of the smaller van was no more than 2 sq. m and was designed for four people, while the space in the bigger van was approximately 5 sq. m.

According to the applicants, they were transported in single-person compartments to their custody hearings and in common compartments later on. Most of the time the vans were overcrowded, with detainees sitting directly against each other, with squashed up legs and shoulders. The bigger vans transported between thirty and forty detainees, making a number of stops at various Moscow facilities to pick up detainees. The vans were sometimes so full that there was no place to sit. Smoking was not prohibited but many detainees did do so. The second and third applicant had severe headaches as a result of the conditions of transport.

The temperature in Moscow at the time of the trial was as high as 30oC, while inside the vans it reached 40oC. The natural ventilation in the single-person compartments was insufficient and the system of forced ventilation was rarely switched on. When it was switched on, it was only for a very short time because of the noise it made and so it was hardly ever used. A fan was switched on during the summer but did not make the conditions of the cramped space any more bearable.

The journey to the courthouse usually took two to three hours, but could sometimes last as long as five hours. Detainees were not allowed to use the toilet unless the police van drove past the Moscow City Court, where inmates were allowed to relieve themselves.

On the days of court hearings the applicants were woken up at 5 or 6 a.m. to carry out the necessary procedures for leaving the facility and were only taken back to the detention facility late at night. The applicants missed mealtimes at the detention facility because of such early departures and late returns.

On leaving the detention facility in the morning they received a lunch box containing four packets of dry biscuits (for a total of eight each), two packets of dry cereal, one packet of dry soup and two tea bags. However, it was impossible to use the soup and tea bags as hot water was only made available to them five minutes before they were taken out of their cells to the courtroom, which was not enough time to eat.

The applicants were forbidden to have drinking water with them during the hearings: requests for short breaks to drink some water and use the toilet were regularly refused, which caused them physical suffering.

On 1 August 2012 an ambulance was called twice to the court because the applicants became dizzy and had headaches owing to a lack of food, water, rest and sleep. They were both times found fit for trial.

The Government provided the following information concerning the vehicles in which the applicants had been transported to and from the courthouse:

It appears from the information provided by the Government that between 20 July and 17 August 2012 the applicants were transported between Moscow’s SIZO-6 remand prison and the Khamovnicheskiy District Court twice a day for fifteen days. The trips lasted between thirtyfive minutes and one hour and twenty minutes. The trips back from the court lasted between twenty minutes and four hours and twenty minutes.

According to the Government, the daytime temperature in Moscow in July and August 2012 only reached 30oC on 7 August 2012 and that, furthermore, the mornings and evenings, when the applicants were transported, were cooler than the temperature at midday. All the vehicles underwent a technical check and were cleaned before departure. They were also disinfected once a week. The passenger compartment had natural ventilation through windows and ventilation panes. The vehicles were also equipped with a system of forced ventilation. The passenger compartment had artificial lighting in the roof. The Government provided photographs of the vehicles and extracts from the vehicle logs to corroborate their assertion that the number of passengers never exceeded the upper limit on places given in the table in paragraph 44 above. People transported in such vehicles could use toilets in courthouses that were on the vehicles’ route.

The Government submitted that the area at the Khamovnicheskiy District Court where the applicants had been held before the hearings and during breaks consisted of six cells equipped with benches and forced ventilation. A kettle had also been available to them. The Government provided reports by the officers on duty at the Khamovnicheskiy District Court on the dates of the applicants’ hearings to corroborate their statement that the applicants had always been provided with a lunch box and boiling water when being transported to court.

On 17 August 2012 the Khamovnicheskiy District Court found the three applicants guilty under Article 213 § 2 of the Russian Criminal Code of hooliganism for reasons of religious hatred and enmity and for reasons of hatred towards a particular social group. It found that they had committed the crime in a group, acting with premeditation and in concert, and sentenced each of them to two years’ imprisonment. The trial court held that the applicants’ choice of venue and their apparent disregard for the cathedral’s rules of conduct had demonstrated their enmity towards the feelings of Orthodox believers, and that the religious feelings of those present in the cathedral had therefore been offended. While also taking into account the video-recording of the song Punk Prayer – Virgin Mary, Drive Putin Away, the District Court rejected the applicants’ arguments that their performance had been politically rather than religiously motivated. It stated that the applicants had not made any political statements during their performance on 21 February 2012.

The District Court based its findings on the testimony of a number of witnesses, including the cathedral employees and churchgoers present during the performance on 21 February 2012 and others who, while not witnesses to the actual performance, had watched the video of Punk Prayer – Virgin Mary, Drive Putin Away on the Internet or had been present at the applicants’ performance at the Epiphany Cathedral in Yelokhovo (see paragraph 12 above). The witnesses provided a description of the events on 21 February 2012 or of the video and attested to having been insulted by the applicants’ actions. In addition, the District Court referred to statements by representatives of various religions about the insulting nature of the applicants’ performance.

The District Court also relied on the expert report issued on 23 May 2012, rejecting the first two expert reports for the following reasons:

“...in light of the provisions of Article 282 of the Russian Criminal Code – incitement to hatred, enmity or disparagement, as can be seen from the questions put [to the experts] and the answers given by them.

Moreover, the expert opinions do not fulfil the requirements of Articles 201 and 204 of the Russian Code of Criminal Procedure. The reports lack any reference to the methods used during the examinations. The experts also exceeded the limits of the questions put before them; they gave answers to questions which were not mentioned in the [investigators’] decisions ordering the expert examinations. The reports do not provide a linguistic and psychological analysis of the lyrics of the song performed in Christ the Saviour Cathedral, and the experts did not carry out a sentiment analysis and psychological assessment of the song’s lyrics in relation to the place where the crime had been committed (an Orthodox church). [The experts] examined the lyrics of the song selectively. Given the lack of a linguistic and psychological analysis of the lyrics of the song performed in Christ the Saviour Cathedral, the experts made an unfounded and poorly reasoned conclusion, which runs counter to the testimony of the eyewitnesses, the victims of the crime, who expressed an extremely negative view of the events in Christ the Saviour Cathedral and of the video-recording.”

On the other hand, the District Court found the expert report of 23 May 2012 to be “detailed, well founded and scientifically reasoned”. The experts’ conclusions were seen by the court as substantiated and not open to dispute, given that the information received from the experts corresponded to the information received from other sources, such as the victims and the witness statements. The court also stressed that it would not call the experts or authorise an additional expert examination as it had no doubts about the conclusions made in the report in question.

The District Court’s main reasons for finding that the applicants had committed hooliganism motivated by religious hatred were as follows:

“The court cannot accept the defence’s argument that the defendants’ actions were not motivated by religious hatred and enmity or hatred against a social group.

The court finds that the defendants’ actions were motivated by religious hatred for the following reasons.

The defendants present themselves as supporters of feminism, a movement for equality between women and men.

At the present time people belonging to the feminist movement fight for equality of the sexes in political, family and sexual relations. Belonging to the feminist movement is not unlawful and is not a criminal offence in the Russian Federation. A number of religions, such as the Orthodox Church, Catholicism and Islam, have a religious, dogmatic basis incompatible with the ideas of feminism. And while feminism is not a religious theory, its adherents interfere with various areas of social relations such as morality, rules of decency, family relations, sexual relations, including those of a non-traditional nature, which were historically constructed on the basis of religious views.

In the modern world, relations between nations and nationalities and between different religions must be built on the principles of mutual respect and equality. The idea that one is superior and the others inferior, that a different ideology, social group or religion are unacceptable, gives grounds for mutual enmity, hatred and personal conflicts.

The defendants’ hatred and enmity were demonstrated in the court hearings, as was seen from their reactions, emotions and responses in the course of the examination of the victims and witnesses.

It can be seen from the statements of the victims, witnesses, defendants and the material evidence that Pussy Riot’s performances are carried out by way of a sudden appearance by the group [in public places] with the band dressed in brightly coloured clothes and wearing balaclavas to cover [their] faces. Members of the group make brusque movements with their heads, arms and legs, accompanying them with obscene language and other words of an insulting nature. That behaviour does not respect the canons of the Orthodox Church, irrespective of whether it takes place in a cathedral or outside its walls. Representatives of other religions and people who do not consider themselves believers also find such behaviour unacceptable. Pussy Riot’s ‘performances’ outside religious buildings, although containing signs of clear disrespect for society motivated by religious hatred and enmity and hatred of a specific social group, are not associated with a specific object and therefore amount to a violation of moral standards or an offence. However, placing such a performance within an Orthodox cathedral changes the object of the crime. It represents in that case a mixture of relations between people, rules of conduct established by legal acts, morality, customs, traditions which guarantee a socially tranquil environment and the protection of individuals in various spheres of their lives, as well as the proper functioning of the State and public institutions. Violating the internal regulations of Christ the Saviour Cathedral was merely a way of showing disrespect for society, motivated by religious hatred and enmity and hatred towards a social group.

The court concludes that [the applicants’] actions ... offend and insult the feelings of a large group of people in the present case in view of their connection with religion, [their actions] incite feelings of hatred and enmity and therefore violate the constitutional basis of the State.

[The applicants’] intention to incite religious hatred and enmity and hatred towards a specific social group in view of its connection with religion, in public, is confirmed by the following facts.

A so-called ‘punk prayer’ was carried out in a public place – Christ the Saviour Cathedral. [The applicants] knowingly envisaged a negative response to that performance on the part of society as they had prepared bright, open dresses and balaclavas in advance and on 21 February 2012 publicly and in an organised group carried out their actions, which were motivated by religious hatred and enmity and hatred towards a social group in view of its connection with religion.

Given the particular circumstances of the criminal offence, its nature, the division of the roles, the actions of the accomplices, the time, place and method of committing the offence of hooliganism, that is to say a gross violation of public order committed by a group of people acting in premeditated fashion and in concert, and which demonstrated an explicit lack of respect for society motivated by religious hatred and enmity and hatred towards a social group, the court is convinced that [the applicants] were correctly charged with the [offence] and that their guilt in committing [it] has been proven during the trial.

[The applicants’] actions are an obvious and gross violation of generally accepted standards and rules of conduct, given the content of their actions and the place where they were carried out. The defendants violated the generally accepted rules and standards of conduct accepted as the basis of public order in Christ the Saviour Cathedral. The use of offensive language in public in the vicinity of Orthodox icons and objects of worship can only be characterised as a violation of public order, given the place where those actions were carried out. In fact, there was mockery and humiliation of the people present in the Cathedral, a violation of social tranquillity, unauthorised and wilful entry into the cathedral’s ambon and soleas, accompanied by intentional, stubborn and a lengthy period of disobedience to the reprimands and orders of the guards and churchgoers.

The court dismisses [the applicants’] arguments that they had no intention to incite religious hatred or enmity or to offend the dignity of a group of people because of their religious beliefs, as those arguments were refuted by the evidence in the case. ...

Although the members of Pussy Riot cite political motives for their actions, arguing that they have a positive attitude to the Orthodox religion and that their performance was directed against the uniting of Church and State, their words are refuted by their actions, lyrics and articles found [in the course of the investigation].

The defendants’ arguments that their actions in the cathedral were not motivated by hatred or enmity towards Orthodox churchgoers and Christianity, but were governed by political considerations, are also unsubstantiated because, as can be seen from the victims’ statements, no political claims were made and no names of political leaders were mentioned during the defendants’ acts of disorder in the Cathedral.”

Citing the results of psychological expert examinations commissioned by investigators, the District Court noted that the three applicants suffered from mixed personality disorders, which did not affect their understanding of the criminal nature of the act they had carried out in the cathedral and did not call for psychiatric treatment. The psychiatric diagnosis was made on the basis of the applicants’ active social position, their reliance on their personal experience when taking decisions, their determination to defend social values, the “peculiarity” of their interests, their stubbornness in defending their opinion, their confidence and their disregard for social rules and standards.

As regards the punishment to be imposed on the applicants, the District Court ruled as follows:

“Taking into account the gravity and social danger of the offence, the circumstances in which it was committed, the object and reasons for committing the offence, and [the applicants’] attitude towards their acts, the court believes that the goals of punishment, such as the restoration of social justice, the correction of people who have been convicted and the prevention of the commission of new offences, can only be achieved by sentencing them to prison and their serving the sentence ...”

The two-year prison sentence was to be calculated from the date of arrest of each of the applicants, that is from 3, 4 and 15 March 2012 respectively.

On 28 August 2012 the applicants’ lawyers lodged an appeal on behalf of the three applicants and on 30 August 2012 the first applicant submitted an additional statement to her appeal. She stated, in particular, that throughout the trial she and the other accused had not been able to have confidential consultations with their lawyers.

On 10 October 2012, the Moscow City Court decided on the appeals by upholding the judgment of 17 August 2012 as far as it concerned the first two applicants, but amended it in respect of the third applicant. Given the third applicant’s “role in the criminal offence [and] her attitude towards the events [of 21 February 2012]”, the City Court suspended her sentence, gave her two years’ probation and released her in the courtroom. The Moscow City Court did not address the issue of confidential consultations between the applicants and their lawyers.

On 23 December 2013 the first and second applicants were released from serving their sentence under a general amnesty issued by the Duma on 18 December 2013, the Amnesty on the Twentieth Anniversary of the Adoption of the Constitution of the Russian Federation.

On 9 January 2014 the third applicant was also amnestied.

On 8 February 2013 the Ombudsman, on behalf of the second applicant, applied to the Presidium of the Moscow City Court for supervisory review of the conviction. He argued, in particular, that the applicants’ 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 15 March 2013 Judge B. of the Moscow City Court refused to institute supervisory review proceedings.

In a letter of 28 May 2013 the President of the Moscow City Court refused to review the decision of 15 March 2013.

On 8 November 2013 the Ombudsman submitted an application for supervisory review to the Supreme Court. As well as the arguments set out in the previous application, he 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 unspecified date the first and second applicants’ representatives also applied for supervisory review to the Supreme Court on their behalf. They argued, inter alia, that the applicants’ actions had amounted to political criticism, not incitement to hatred or enmity on religious grounds or towards any social group. Furthermore, they pointed to a number of alleged breaches of criminal procedure in the course of the trial.

On 10 December 2014 the Supreme Court instituted supervisory review proceedings upon the above applications.

On unspecified date the third applicant also applied for supervisory review of her conviction.

On 17 December 2014 the Supreme Court instituted supervisory review proceedings upon her application.

On an unspecified date the case was transferred to the Presidium of the Moscow City Court for supervisory review.

On 4 April 2014 the Presidium of the Moscow City Court reviewed the case. It upheld the findings that the applicants’ 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 applicant’s sentence to one year and eleven months’ imprisonment.

The group uploaded a video of their performance of Punk Prayer – Virgin Mary, Drive Putin Away at the Epiphany Cathedral in Yelokhovo and at Christ the Saviour Cathedral to their website http://pussy-riot.livejournal.com. It was also republished by many websites.

On 26 September 2012 a State Duma member, Mr S., asked the Prosecutor General of the Russian Federation to study the video of the group’s performance, to stop its dissemination and to ban the websites which had published it.

As a result of that assessment, on 2 November 2012 the Zamoskvoretskiy Inter-District Prosecutor applied to the Zamoskvoretskiy District Court of Moscow for a declaration that the Internet pages http://www.pussy-riot.livejournal.com/8459.html, http://www.pussy-riot.livejournal.com/5164.html, http://www.pussy-riot.livejournal.com/5763.html and http://pussy-riot.livejournal.com/5497.html were extremist. They contained text posted by Pussy Riot, photographs and videos of their performances, including videos for Riot in Russia, Putin Wet Himself; Kropotkin Vodka; Death to Prison, Freedom to Protest; Release the Cobblestones and Punk Prayer – Virgin Mary, Drive Putin Away (see paragraph 11 above and Appendix for lyrics). The prosecutor also sought to limit access to the material in question by installing a filter to block the IP addresses of websites where the recordings had been published.

After learning of the prosecutor’s application through the media, the third applicant lodged an application with the District Court on 12 November 2012, seeking to join the proceedings as an interested party. She argued that her rights as a member of Pussy Riot would be affected by any court decision in the case.

On 20 November 2012 the Zamoskvoretskiy District Court dismissed her application, finding as follows:

“ Having considered [the third applicant’s] argument that a decision issued in response to the prosecutor’s request could affect [her] rights and obligations, the court finds this argument unsubstantiated because the judgment of 17 August 2012 issued by the Khamovnicheskiy District Court in respect of the third applicant became final on 10 October 2012; [she] was found guilty by that judgment under Article 213 § 2 of the Russian Criminal Code of hooliganism committed in a group acting in premeditated fashion and in concert. That judgment can be appealed against by way of supervisory review in entirely different proceedings.

[The third applicant’s] argument that charges related to a criminal offence under Article 282 § 2 (c) of the Russian Criminal Code were severed from [the first] criminal case cannot, in the court’s opinion, show that [her] rights and obligations would be influenced by the court’s decision issued in respect of the prosecutor’s request because there is no evidence that [she] took any part in disseminating the materials published on the Internet sites identified by the prosecutor [.] [T]here is no evidence that [she] owns those websites either.

Therefore the court concludes that an eventual decision on the prosecutor’s request for the materials to be declared extremist will not affect [the third applicant’s] rights and obligations; and therefore there are no grounds for her to join the proceedings as an interested party.”

On 28 November 2012 the third applicant appealed against that decision.

On 29 November 2012 the Zamoskvoretskiy District Court ruled that video content on http://pussy-riot.livejournal.com was extremist, namely the video-recordings of their performances of Riot in Russia, Putin Wet Himself; Kropotkin Vodka; Death to Prison, Freedom to Protest; Release the Cobblestones and Punk Prayer – Virgin Mary, Drive Putin Away. It also ordered that access to that material be limited by a filter on the website’s IP address. Relying on sections 1, 12 and 13 of the Suppression of Extremism Act and section 10(1) and (6) of the Federal Law on Information, Information Technologies and the Protection of Information, the court gave the reasons for its decision and stated as follows:

“According to section 1 of [the Suppression of Extremism Act], extremist activity is deemed to be constituted by, inter alia, the stirring up of social, racial, ethnic or religious discord; propaganda about the exceptional nature, superiority or deficiency of persons on the basis of their social, racial, ethnic, religious or linguistic affiliation or attitude to religion; violations of human and civil rights and freedoms and lawful interests in connection with a person’s social, racial, ethnic, religious or linguistic affiliation or attitude to religion; public appeals to carry out the above-mentioned acts or the mass dissemination of knowingly extremist material, and likewise the production or storage thereof with the aim of mass dissemination.

Results from monitoring the Internet and of a psychological linguistic expert examination performed by experts from the Federal Scientific Research University’s ‘Russian Institute for Cultural Research’ state that the Internet sites http://www.pussy-riot.livejournal.com/8459.html, http://www.pussy-riot.livejournal.com/5164.html, http://www.pussy-riot.livejournal.com/5763.html and http://pussy-riot.livejournal.com/5497.html contain video materials of an extremist nature.

That conclusion is confirmed by report no. 55/13 of 26 March 2012 on the results of the psychological linguistic expert examination performed by experts from the Federal Scientific Research University’s ‘Russian Institute for Cultural Research’.

The court concludes 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.

The court accepts the prosecutor’s argument that the dissemination of material of an extremist nature disrupts social stability and creates a threat of damage to the life, health and dignity of individuals, to the personal security of an unidentified group of individuals and disrupts the basis of the constitutional order of the State. Accordingly, the aforementioned activities are against the public interests of the Russian Federation.

Taking the above-mentioned circumstances into account, the court finds that the prosecutor’s application is substantiated and should be allowed in full.”

The third applicant appealed against the decision of 29 November 2012.

On 14 December 2012 the Zamoskvoretskiy District Court rejected the third applicant’s appeal against the decision of 20 November 2012 on the grounds that the Code of Civil Procedure did not provide for a possibility to appeal against a decision to deny an application to participate in proceedings.

On 30 January 2013 the Moscow City Court dismissed an appeal by the third applicant against the decision of 14 December 2012. It found that under the Code of Civil procedure no appeal lay against a court decision on an application to join proceedings as an interested party. It noted, furthermore, that the applicant would be able to restate her arguments in her appeal against the decision on the merits of the case.

On the same date the Moscow City Court left the third applicant’s appeal against the decision of 29 November 2012 without examination. The appellate court stated, inter alia:

“... the subject in question was the extremist nature of the information placed in the Internet sources indicated by the prosecutor and the necessity to limit access to them[.] [A]t the same time, the question of [the third applicant’s] rights and obligations was not examined, the impugned decision did not limit her rights, and she was not a party to the proceedings begun upon the prosecutor’s application.

Taking into account the foregoing, [the third applicant’s] allegations contained in her appeal statement concerning alleged breaches of procedural rules on account of the failure to allow her to participate in proceedings which violated her rights and legal interests are unfounded and are based on an incorrect interpretation of the rules of procedural law.

Therefore ... [the third applicant] has no right to appeal against the above decision.”