PUSSY RIOT

On 21^st February 2012 at a time when Russia was in the midst of a bitterly fought Presidential election campaign five young women who are members of a group or collective that calls itself Pussy Riot performed what has been called a “punk prayer” in the area near the Altar of the Cathedral of Christ the Saviour in central Moscow.  A film was made of the performance presumably by other members of the group and has been uploaded onto YouTube where it can still be seen.  As was the case with the group’s other performances the five young women were dressed in brightly coloured clothes and balaclavas concealing their faces but with their arms and shoulders bare.  The film of the performance shows that during the performance some of the women kicked their legs into the air in a revealing way.

Most accounts of the performance claim that the “punk prayer” was a prayer to the Virgin Mary “to take Putin away”.  This has however been disputed at the current trial of three of the women involved with suggestions from some of the witnesses that the comments about Putin were added later to the film that has appeared on YouTube.  It is not disputed that the “punk prayer”, accompanied to riotous music and dance, was filled with expletives and profanities and used grossly scatological language.  Nor is it disputed that its last section was an obscene parody of the Christian liturgical hymn the Sanctus, substituting the word “shit” for the word “holy”, or that the “punk prayer” criticised the leader of the Russian Orthodox Church, the Patriarch of Moscow and All Russia, whom it called a “bitch” (Russian suka).

Following the “punk prayer” the young women were escorted from the Cathedral and went into hiding.  On 3^rd March 2012 two young women, Maria Alyokhina and Nadezhda Tolokonnikova, were arrested by the Russian authorities and charged with the offence of hooliganism contrary to Article 213 of the Criminal Code of the Russian Federation.  On 16^th March 2012 a third woman Yekaterina Samutsevitch was also arrested and charged.  The identities and whereabouts of the two other women who participated in the “punk prayer” remain unknown.  The trial of the three women was originally expected to take place in April 2012 but as a result of complicated legal manoeuvres, which I shall discuss in detail, it did not in fact begin until 30^th July 2012.

The case has attracted massive publicity both in Russia and internationally.  The women’s cause has been embraced by the leaders of Russia’s protest movement, letters have been written in their support by assorted Russian intellectuals, angry letters have been written to various western newspapers some signed by prominent members of the western pop music establishment such as Jarvis Crocker and Pete Townsend, western pop artists such as Red Hot Chili Peppers and Sting have expressed their support during concerts in Russia and Amnesty International has declared the three women prisoners of conscience.

The women’s case has also been taken up enthusiastically by some (though not all) of the western press.  Editorials in their support have appeared in The Times, the Financial Times and the Guardian.  The Guardian published two editorials on its website on successive days accompanied by a seemingly unending stream of articles about the women and their case, which have appeared in quick succession one after the other on the days immediately prior to and following the start of the trial.

Supporters of the women generally interpret the case as a politically motivated prosecution ordered by Putin and the Russian government as part of a crackdown on the protest movement.  The Guardian has referred to their trial as a “show trial”.  Doubts have been expressed about whether a crime was committed at all.  Amnesty International has claimed that the women are being prosecuted “merely for holding a gig in a Church”.  Many others have pointed to the absence of damage to persons or property.

The prosecution has been called disproportionate with the sentence of seven years imprisonment that the women supposedly face described as excessive.  The detention of the women in pre trial custody and the repeated refusal of the Court to grant bail during the five months between the arrest and trial has been called oppressive.  Emphasis has been given to the way this has separated two of the women from their children.  The refusal of the Court to grant applications made by the lawyers of the women is said to prove the Court’s bias whilst the outcome of the trial is said to be a foregone conclusion and the whole trial and legal process has been called a travesty.

The case is also said to show the growing power of the Russian Orthodox Church and its sinister alliance with Putin and the Russian government.  The Church has been criticised for its refusal to forgive the women.  The Patriarch has been criticised for his supposed criticism of members of the Russian Orthodox Church who have called for clemency for the women.  The wording of the indictment setting out the charge with its references to the Cathedral of Christ the Saviour as a holy place and to the women’s action as a violation of “ancient Christian sacraments” is said to be inappropriate in a secular state and to show the extent to which the boundary between Church and State in Russia has become blurred.

Every one of these propositions is false or open to serious challenge.  If subjected to careful examination as I propose to do in this article this fact becomes clear.

The Law

 The women are charged for the offence of hooliganism under Article 213 of the Criminal Code of the Russian Federation.  This reads as follows:

“Hooliganism

 1. Hooliganism, that is a gross violation of the public order manifested in patent contempt of society and attended by the use of weapons or articles used as weapons shall be punishable by compulsory works for a term of 180 to 240 hours, or by corrective labour for a term of one to two years, or by deprivation of liberty for a term of up to five years.

2. The same deed committed by a group of persons in a preliminary conspiracy, or by an organised group, or connected with resistance to a representative of authority to any other person who fulfils the duty of protecting the public order or who suppresses the violation of the public order shall be punishable by deprivation of liberty for a term of up to seven years”.

(Translation Legislationline) (Italics added)

Though the charge against the women is one of hooliganism contrary to Section 213 of the Criminal Code of the Russian Federation, the offence in this case is aggravated under Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association of the Russian Federation, which prohibits actions that are insulting to the religious feelings of believers especially when these take place “immediately adjacent to objects of religious veneration”.  The relevant sections read as follows:

“Actions hindering the realisation of the right to freedom of conscience and freedom of creed, including actions entailing coercion of an individual, calculated insults of the feelings of citizens in connection with their attitudes toward religion, the destruction of property, and threats of such actions, are forbidden and are to be prosecuted by law.  The conducting of public activities and distribution of texts and images insulting the religious feelings of citizens immediately adjacent to objects of religious veneration is forbidden.”

Criminal liability for actions done contrary to Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association of the Russian Federation is provided under Article 26

“Violation of the law of the Russian Federation on freedom of conscience and on  religious associations involves criminal, administrative and other liability in accordance with the laws of the Russian Federation”.

(All translations by Kenston Institute) (Italics added)

There is nothing unusual or exceptional about these provisions.  They are fully in line with international practice.  In Britain Section 5(1) of the Public Order Act 1986 makes it a criminal offence for a person to use “threatening, abusive or insulting words or behaviour or to display any writing, sign or other visible representation which is threatening, abusive or insulting” to another person.  Section 4A of the Public Order Act 1986 creates a further offence where the “threatening, abusive or insulting words or behaviour” was intentional.  Section 4 of the Public Order Act 1986 creates a further offence where the “threatening, abusive or insulting words or behaviour” give rise to a fear of violence.  All these offences are aggravated under Section 31 of the Crime and Disorder Act 1998 where the offender “at the time of committing the offence, or immediately before or after doing so” …”demonstrates towards the victim of the offence hostility based on the victim’s membership or presumed membership of a racial or religious group or the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group”.  (see also Section 28 of the Crime and Disorder Act 1998) (Italics added).  Penalties for these offences can range from fines to terms of imprisonment ranging from two years up to fourteen years (double that allowed by the Russian law) where there has been damage to property.

There is therefore nothing unusual or oppressive about these Russian laws.  These are public order offences of the sort that exist in all countries.  The Russian laws are more lenient than similar laws concerning public order in many countries.  In France it is a crime punishable by imprisonment of up to one year to sunbathe nude or topless in Paris on the banks of the Seine or to wear a swimming costume in a Paris park even on a hot day.

http://www.telegraph.co.uk/news/worldnews/europe/france/9444209/Parisians-warned-that-naked-sunbathers-will-be-jailed.html

In Poland merely speaking blasphemous words in public attracts a sentence of up to two years.

http://en.wikipedia.org/wiki/Doda_(singer)#Blasphemy_charges

A major point of criticism has been the possible sentence of seven years, which is said to be disproportionate.  This criticism is part of a tendency to trivialise the offence.  As I shall show the offence is in fact more serious than those who make this criticism perhaps understand.  The criticism is anyway wrong.  As the wording of Article 213 paragraph 2 makes clear the sentence of seven years is the maximum sentence allowed by law for an offence under the Article.   The Russian Court is not obliged to impose it just as a British Court is not in all cases obliged to impose the maximum fourteen year sentence for offences committed under Section 31 of the Crime and Disorder Act 1998 where there has been property damage.  The latest information from the trial is that the prosecution has asked for a sentence of three years rather than seven.

The Defendants

According to Nadezhda Tolokonnikova, one of the three defendants in the case, Pussy Riot was established in October 2011.  It describes itself as a collective or group.  Membership is fluid and according to different accounts may be ten, thirteen or fifteen members.  Tolokonnikova and western and some Russian commentary have described Pussy Riot as a “feminist punk collective” or “feminist punk band”.

http://dangerousminds.net/comments/free_pussy_riot_a_statement_by_nadya_tolokonnikova

In an interview apparently given before the “punk prayer” members of Pussy Riot also described themselves as “punk band” and claimed inspiration from western groups like Angelic Upstarts, Cockney Rejects, Sham 69, Era and The 4-Skins and especially the American rock band Bikini Kill and the American Riot grrl movement of the 1990s.

http://www.vice.com/read/A-Russian-Pussy-Riot

As with everything else about this case the reality is a great deal more complicated.

Any discussion of Pussy Riot must address the group’s connection to the performance art group or collective known as Voina (“War”), which has been in existence since at least 2008.  A statement has appeared on the internet (since deleted), which denies that Nadezhda Tolokonnikova was ever a member of Voina and which accuses her of trying to take Voina over.  In their interview members of Pussy Riot have also given the impression that they are distinct from Voina though they strongly endorse what they say was Voina’s earlier “more radical” phase.

http://www.vice.com/read/A-Russian-Pussy-Riot

Tolokonnikova is however either married to or in a relationship with one of the leading members of Voina and has been active in several of Voina’s activities.  So has Maria Alyokhina, one of the other two women defendants in the Pussy Riot case.  The overlap between the two groups is so great that I feel justified in treating the two groups as in essence one and the same.

Since its formation in presumably 2008 Voina has staged in public a succession of extreme actions described as performance art.  These have included the painting of a male phallus on a St. Petersburg Bridge, the staging of a public orgy at the Timiryazev Museum in Moscow involving nudity and (apparently) full penetrative sex (Tolokonnikova was a participant though heavily pregnant), the throwing of live cats at the staff of a McDonald’s restaurant in Moscow, the overturning of police cars apparently on one occasion with a policeman inside, the firebombing of property with petrol bombs, the staged hanging of an immigrant and a homosexual in a supermarket, the projection of a skull and crossbones onto the building housing the Russian government, the spilling of large live cockroaches onto the stomach of a pregnant member of the group (Tolokonnikova again) and the theft of a frozen chicken from a supermarket, which was stuffed up the vagina of one of the women members (apparently Maria Alyokhina, Tolokonnikova apparently was also present). The group routinely films or photographs its activities, which it uploads onto the internet. I attach links, which come with a strong health warning.

http://plucer.livejournal.com/266853.html#comments

http://plucer.livejournal.com/55710.html

http://nataly-lenskaya.livejournal.com/348825.html

http://blog.kp.ru/users/markusan/post226185220/

Since its formation in September or October 2011 Pussy Riot has for its part staged impromptu performances in the metro, on the roof of a trolley bus, on the roof of a detention centre, in clothing stores, during a fashion show and in Red Square.  All these performances, even those taking place outdoors during the Russian winter, have been undertaken with the group wearing its trademark balaclavas and skimpy bright dresses.  None of the performances were announced in advance or were agreed with the organisers or owners of the events or venues where they were held.

http://english.ruvr.ru/photoalbum/83508901/83508904/

Tolokonnikova has recently said that Pussy Riot has never intended to show disrespect to any viewers or witnesses of its performances.

http://dangerousminds.net/comments/free_pussy_riot_a_statement_by_nadya_tolokonnikova

However all the performances to date including the one in the Cathedral of Christ the Saviour have used strong and profane language, which have included swear words and obscenities.

In an editorial that appeared on 29^th July 2012 in the Observer and on the Guardian’s website reference was made to the “lightness and gaiety” of the group “who dress in bright colours and tights and mocking balaclavas” and “whose protest is not made of slogans and placards but is crafted from art, dance and performance”. In the light of the activities in which they have been involved it is unlikely the members of either Pussy Riot or Voina (to which Tolokonnikova and Alyokhina at least also belong or have belonged) would recognise themselves in this description.

http://www.guardian.co.uk/commentisfree/2012/jul/29/observer-editorial-russia-putin-pussy-riot

The common feature in all of these actions whether of Voina or of Pussy Riot is illegality.  In their interview Pussy Riot has openly admitted that all its actions have been illegal and that illegality is an essential part of their actions.  That some of the illegal activities engaged in both by Voina and Pussy Riot involve committing criminal offences is not disputed.

http://www.vice.com/read/A-Russian-Pussy-Riot

Moreover there appears to be a trend towards escalation with instances of criminal damage (the overturning of the police car and the cases of firebombing), violent assault (against the policeman in the overturned police car and the staff at the McDonalds restaurant) and animal cruelty (against the cats thrown at the staff in the restaurant).  In relation to the incident involving the cats I wonder whether some of the supporters of Pussy Riot in Britain and America such as Sting, Pete Townsend and Jarvis Crocker would feel quite the same way about the group if they knew about it.

The other feature of many of these actions is their grossly sexual and obscene nature.  Indeed sexual obscenity seems to be an obsession.  Both Voina and Pussy Riot have openly admitted to using sexual obscenity as a weapon (indeed obscenity is part of Pussy Riot’s name)

http://www.vice.com/read/A-Russian-Pussy-Riot

http://en.free-voina.org/

What tends to be overlooked in the mass of commentary about Voina and Pussy Riot is that their actions take place in public places within the possible sight or hearing of children.  This was true of the phallus painted on the bridge, the orgy in the museum and the theft of the frozen chicken in the supermarket.  Film of the last event shows a young child present though he may have been brought there by one of the group’s members.  Pussy Riot’s performances also frequently take place in public spaces such as the metro, supermarkets, clothing stores, on top of a trolley bus and in Red Square.  The coarse and profane language Pussy Riot always use could therefore also have been heard by children and given the busy nature of some of these places surely was.  Again I wonder whether some of Pussy Riot’s western supporters are aware of this or would feel quite the same way about Pussy Riot if they knew about it.

By contrast some of the claims made about Pussy Riot by their supporters are actually surprisingly difficult to verify.

Pussy Riot has been called and calls itself a punk band.

http://www.vice.com/read/A-Russian-Pussy-Riot

The turn to musical performance is however actually a very late development beginning only at the end of September or the beginning of October 2011.

Whatever else Pussy Riot is its members are not conventional entertainers.  The group has a fluid membership, has apparently never released a song and does not appear to have a song catalogue.  Songs appear to be made up or adapted for each performance which take place without public announcement. Prior to the action in the Cathedral of Christ the Saviour none of the group’s performances took place in pre booked venues and I know of none that have since.  Needless to say tickets were not sold prior to each performance.

Despite claims by its members and its supporters, though the group has made feminist statements there does not seem to be much that is feminist about the performances themselves.  The sexual actions performed in public by Tolokonnikova and Alyokhina and endorsed by Pussy Riot in their interview do not represent conventional feminism. Tolokonnikova has released a manifesto that makes various feminist criticisms of the Russian Orthodox Church and of the Patriarch but the criticisms are ideological and theoretical as are the feminist comments made by Pussy Riot in their interview.  Neither Tolokonnikova nor Pussy Riot as a whole have shown any interest in the many practical issues Russian women face in their everyday lives ranging from domestic violence to gender stereotyping in the statements they have released which I have read and nor do I see anything remotely feminist in any of their performances.

http://freepussyriot.org/content/manifesto-n-tolokonnikova-05042012

http://www.vice.com/read/A-Russian-Pussy-Riot

Pussy Riot is often described as an anti Putin protest group.  The editorial in the Observer and the Guardian’s website of 29^th July 2012 sees Pussy Riot as mounting a “…challenge to Putin – the most overtly macho leader in world politics”, a comment which I find comes close to discovering Pussy Riot’s feminism purely in the group’s opposition to Putin.

http://www.guardian.co.uk/commentisfree/2012/jul/29/observer-editorial-russia-putin-pussy-riot.

There is no doubt of the group’s extreme hostility to Putin or that the group engages in political protest and that Putin is the focus of this protest.

http://www.vice.com/read/A-Russian-Pussy-Riot

However focusing on Pussy Riot’s hostility to Putin overlooks the extent to which both Pussy Riot and Voina target not just Putin but authority generally and also private property.  Voina’s targets have included the police (on numerous occasions as shown by the overturning of the police cars), Medvedev (the orgy at the museum specifically endorsed by Pussy Riot in their interview was held under the slogan “Fuck the heir, huggy bear” – a play on Medvedev’s name, (“medved” being bear in Russian)), McDonald’s (the incident involving the cats) and supermarkets (the theft of the frozen chicken).  Pussy Riot has targeted supermarkets, clothing stores, a fashion show and (as we shall see) the Church and its Patriarch.  Pussy Riot’s hostility to the police is also very obvious in their interview.

http://www.vice.com/read/A-Russian-Pussy-Riot

Members of Voina and Pussy Riot have at various times sought to explain their ideology though not always in a fully consistent way.  In May 2012 following her arrest Tolokonnikova published a manifesto which with its references to Feuerbach and Marx appears to confirm her as an atheist and ultra leftist.

http://freepussyriot.org/content/manifesto-n-tolokonnikova-05042012

As for Voina, comments by its members and references in the group’s literature to earlier generations of Russian revolutionaries and intellectuals such as Chernyshevsky, Tolstoy, the Decembrists and Malevich, as well as claims that members of Voina live without money and the general thrust of Voina’s actions also seem to identify the group with the extreme Left.  The following link provides access to articles written by members of Voina in which they try to explain their ideas.  The first article, which refers to an event in Poland, seems to connect the group to the world of international anarchism.

http://en.free-voina.org/

The explanations given by Voina for its actions in these articles including its bizarre sexual displays and the violence and illegality of its actions appear to place Voina squarely (though perhaps unknowingly) within the anarchist traditions of “Illegalism” and of “The Propaganda of the Deed”.  “Illegalism” involves the deliberate embrace by an anarchist of a criminal lifestyle.  “The Propaganda of the Deed” involves taking (often violent) action as a means to awaken political consciousness.  For those interested in learning more about these doctrines here are links to the relevant Wikipedia articles.

http://en.wikipedia.org/wiki/Illegalism

http://en.wikipedia.org/wiki/Propaganda_of_the_deed

Whilst Pussy Riot has never given such a detailed explanation of its actions its members have also admitted the illegal nature of their actions and also appear to speak of these actions in a way that suggests that they are intended to awaken political consciousness.  They also specifically endorse what they say was the “more radical” phase of Voina’s activities.

http://www.vice.com/read/A-Russian-Pussy-Riot

The extent to which either group really has a coherent ideology or follows a coherent course of political action is open to question.  What is surely not open to question in the light of what both groups say about themselves is that their members are not simple artists or punk rockers.  Possibly punk was adopted in September or October 2011 because of punk’s former associations in Britain where it originated with political anarchism as for example in the case of the British punk rock group the Sex Pistols of the 1970s.  However even the Sex Pistols were first and foremost professional artists and entertainers in a way that the members of Pussy Riot are not.

It follows that Pussy Riot is not merely an anti Putin protest group even if it was indeed set up as its members say in reaction to Putin’s declaration on 26^th September 2011 that he intended to seek re election for the Presidency.

http://www.vice.com/read/A-Russian-Pussy-Riot

A fairer description would be that Pussy Riot or at least its core members are militant political activists with ultra Leftist and possibly anarchist views who immediately following Putin’s announcement of his decision to seek re election turned to punk as a vehicle for political protest.  In so far as Putin is a special focus of hostility it is because he happens at present to be the leader of the Russian state.  Based on the group’s previous actions and things its members have said if Putin were replaced by someone else that person would become the next target.

The Offence

The “punk prayer” has been described as a political protest song provoked by the decision of the Patriarch to support Putin’s election to the Presidency.  As well as calling the Patriarch a “bitch”(suka) it apparently accused him of believing in Putin rather than God.  The editorial that appeared in the Observer and on the Guardian’s website on 29^th July 2012 referred to the “punk prayer” as “a religious hymn laced with an anti-Putin lyric” and this has been the line taken by most of the western media, by parts of the Russian opposition, by Amnesty International and following the start of the trial by the women themselves.

http://dangerousminds.net/comments/free_pussy_riot_a_statement_by_nadya_tolokonnikova

At this point it needs to be said clearly that the Patriarch was acting entirely within his rights to give Putin his support.  There is no democratic, constitutional or legal principle that prohibits a religious leader from taking a stand on a political matter.  The Catholic Church in post war Europe set up Christian Democrat parties and in Italy and elsewhere regularly and openly campaigned for their election.  In Poland and Ireland the Catholic Church still has an active political role.  In the United States religious leaders openly campaign on political questions, support particular candidates in elections (including Presidential elections) and are regular visitors to the White House.  In Britain the Church of England used to be known as “the Tory party at prayer”.  Though this is no longer the case British clergymen have taken stands on issues ranging from nuclear disarmament, apartheid, the 1984 miners’ strike, the war in Iraq and the Occupy Movement.

Critics who find something outrageous about the Patriarch’s support for Putin should ask themselves whether they would feel similarly outraged if instead of supporting Putin the Patriarch had opposed him.  If the answer is no (as I suspect is the case in the overwhelming majority of cases) then the validity of the criticism of the Patriarch for his support for Putin disappears.

Supporters of the women claim that they are being prosecuted for undertaking a political protest.  The editorial that appeared in the Observer and on the Guardian’s website on 29^th July 2012 casually condemns the trial as a “show trial” (a particularly inflammatory comment given the history of show trials in Russia during the Stalinist era).  This of course  implies that there is no substance to the case and that the women are simply being tried for voicing criticism of Putin.  The claim that the women are being prosecuted simply for exercising their right of free speech and of political protest and for criticising Putin also forms the basis of Amnesty International’s decision to give the women “prisoner of conscience” status.

http://www2.amnesty.org.uk/blogs/sms-action-network/pussy-riot?utm_source=aiuk&utm_medium=Homepage&utm_campaign=IAR&utm_content=pussyriot_main

Before dealing with the substance of this allegation I feel I must point out that it faces what appears to me to be an insuperable difficulty, which is that it appears that all of Pussy Riot’s protest songs and actions to date have apparently involved bitter criticism of Putin.  None of these actions before the “punk prayer” provoked the sort of charges that are now being made in connection with the “punk prayer”.  If the women from Pussy Riot are being prosecuted merely because the “punk prayer” was a protest against Putin then it is difficult to understand why this should be so and why the women and the other members of the group were not prosecuted following their earlier protests.

As any reader of the Russian press knows the reality is that the Russian press and internet are densely crowded with criticisms of Putin.  Many of these are extremely abusive.  None has ever provoked charges of the sort now made against the women.

Following the parliamentary elections of December 2011 Russia experienced a flurry of political protests which attracted massive international attention.  The common theme of these protests was extreme hostility to Putin.  No participant in these protests has faced the sort of charges the women face.

Given that this is so attempts to argue that the women are simply being prosecuted for voicing criticisms of Putin seem to me unsustainable.  All that such claims do is draw attention away from the crime of which the women actually are accused.

In an earlier article on Amnesty International’s website (which has now been deleted) the women’s action is defended as an exercise of the right of free speech with reference made to the famous words of the European Court of Human Rights in its Judgment in the case of Handyside v. United Kingdom (5493/72 paragraph 49) that

“…Freedom of expression…is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”.

This shows a misunderstanding of the nature of the right of free speech and of the Judgment in the case of Handyside v United Kingdom. 

The right of free speech is set out in Article 10 of the European Convention on Human Rights, which reads:

“1. Everyone has the right of freedom of expression.  The right shall include freedom to hold opinions and to receive and impact information and ideas without interference by public authority and regardless of frontiers.  The article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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

(Italics added)

The right of free speech is not unlimited.  States can and do impose restrictions on the exercise of this right.  They are actually required to do so if this is “necessary in a democratic society”.

The Judgment in the case of Handyside v. United Kingdom explained that unless the restrictions were “necessary in a democratic society”, that is unless they were made “…in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” they could be illegal however shocking or upsetting any words or actions they sought to prohibit might be.  This however was simply intended as a clarification explaining that the prohibition of words or actions by a state would not be legal if it was not “necessary in a democratic society”.  What is always overlooked in discussions of the Judgment in Handyside v. United Kingdom is that in that case the European Court of Human Rights decided that the restrictions imposed by the United Kingdom (to suppress a sexually explicit book directed at teenagers) were intended to protect “health or morals” and were “necessary in a democratic society” and therefore legal.

The provisions in Articles 213 of the Criminal Code of the Russian Federation and Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association under which the women are being charged are fully in line with international practice.  To the extent that they are intended to prevent “disorder or crime” and to protect “health or morals” they are clearly “necessary in a democratic society”.  If the law in these Articles is applied correctly there is no reason to see in the Pussy Riot case an attack on free speech.  To argue that it does before the Court has even delivered its Judgment cannot be justified on legal or ethical grounds and is simply wrong.

Critics of the prosecution and the women themselves now claim the “punk prayer” as a protest against Putin was not intended to offend the feelings of Russian Orthodox believers.

http://dangerousminds.net/comments/free_pussy_riot_a_statement_by_nadya_tolokonnikova

This claims tends to overlook the fact that this would still not excuse or justify the “punk prayer” if it did in fact offend the feelings of Russian Orthodox Christians.

This has been a major issue at the trial.  The prosecution has produced a string of Russian Orthodox Christian witnesses who have testified to the fact that the “punk prayer” did offend their feelings.  Article 213 of the Criminal Code of the Russian Federation as interpreted by Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association makes it quite clear that a crime is committed regardless of whether an intention to offend the feelings of Russian Orthodox Christians exists or not though the crime would obviously be more serious if the offence caused was intentional.  The evidence of their injured feelings the Russian Orthodox Christian witnesses have given at the trial is therefore fully relevant in the case.  The Russian Orthodox Christian witnesses do not deserve the sarcasm and ridicule to which they have been subjected by the defence and by some of the women’s supporters in the Russian and international press.

The “punk prayer” was an obscene parody of the act of Christian worship carried out using excremental language in Russian Orthodoxy’s most important Church in an area just before the sanctuary which contains the Altar access to which is prohibited to all except members of the priesthood. The “punk prayer” contained abuse of the Patriarch, the leader of the Russian Church, calling him a “bitch” (suka) and accusing him of believing in Putin rather than God.  The “punk prayer” was carefully planned, the location having obviously been chosen in advance for maximum effect and the form of the “punk prayer” adapted to mimic the order of the Christian service starting with the making of the sign of the cross followed by an obscene prayer to the Virgin (the Theotokos) and ending with a scatological parody of the Sanctus.  The “punk prayer” was performed by three young women dressed in skimpy and brightly coloured clothing with bare arms the wearing of which is prohibited in a Russian Orthodox Christian Church and was accompanied by dance and music of a sort also prohibited in a Russian Orthodox Christian Church.  The “punk prayer” used offensive and coarse language of a sort that is also prohibited in a Russian Orthodox Church and which Russian Orthodox Christians would be expected to find grossly disrespectful in a house of God.  The whole performance was filmed presumably by other members of the group and the film possibly with words added was then uploaded onto YouTube.

I do not want to pre judge the outcome of the trial but I have to say that it seems to me that any attempt to argue that the action did not and was not intended to cause offence to Russian Orthodox Christians is going to face severe difficulties.  Tolokonnikova has not made matters easier for herself or for the other women by publishing in May her manifesto which levels further criticisms of the Patriarch (whom it accuses of having been a KGB agent) and of the Church hierarchy generally and which by its various references to Marx and Feuerbach makes fairly clear her own atheistic beliefs.

http://freepussyriot.org/content/manifesto-n-tolokonnikova-05042012

Moreover there is no doubt that the persons involved in the “punk prayer” were aware that they were committing an illegal act.  The five women were disguised concealing their identities by wearing balaclavas and immediately went into hiding following the action.  Illegality is anyway as we have seen an essential element of their activities.

For what it’s worth my opinion is that the holding of the “punk prayer” in an area of the Church close to the Altar looks like it was deliberately done to flout the provisions of Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association, which prohibits such activities near to objects of religious veneration.

Any discussion of the potential offence caused to Russian Orthodox Christians also needs to take into account the historical background.  The action took place in a country where within recent memory the Russian Orthodox Church was subjected to fierce persecution, where Churches were desecrated and destroyed and priests murdered and imprisoned by the thousand, where Christian symbols and relics were destroyed and where there was systematic discrimination against religious believers who were denied access to senior positions in the country’s government or bodies of power.  The action took place in a Cathedral that was demolished in 1931 by the Soviet government over the course of the same persecution and whose reconstruction was authorised by the Soviet government in 1990 (the last year of its existence) as an act of national repentance and reconciliation.  The funds for the rebuilding of the Cathedral came from private donations provided by millions of Russian Orthodox Christians who made these donations at a time of severe economic crisis when many of them would have been experiencing great personal hardship.

To suppose in the light of this history that an action like the “punk prayer” in the very same Cathedral would not cause alarm and offence to Russian Orthodox Christians seems to me incredible to say the least.

British commentary about the case has shown an extraordinary insensitivity to this question of the offence caused to the feelings of Russian Orthodox Christians by the “punk prayer” and to the historical background.    Much British commentary about the case (for example that appearing on the Comment is Free section of the Guardian website) seems to be informed by the anti clerical and even anti Christian and anti religious “secularist” bias currently fashionable in some sections of British society.  Such comments are doubly misinformed in that they make cultural assumptions that simply do not apply to a case in a country with a completely different history and ignore the extent to which the “punk prayer” in the Cathedral of Christ the Saviour in Moscow would provoke similar charges were it to happen in Britain under the provisions of Sections 4 and 5 of the Public Order Act 1986 and Sections 28 and 31 of the Crime and Disorder Act 1998 which I discussed above.

Article 213 paragraph 1 defines hooliganism as “gross violation of the public order manifested in patent contempt of society”.  Again without wishing to pre judge the outcome of the case I personally find it difficult to see that the “punk prayer” was anything else.  Article 213 paragraph 1 refers to the action being “attended by the use of weapons or articles used as weapons”. I am not familiar with Russian case law or legal practice so I do not know whether the use of weapons or “articles used as weapons” is an essential element of the offence of hooliganism set out in Article 213.  The wording of Article 213 seems to imply that it is though there is also the possibility of faulty translation.  Whether guitars and acoustic equipment of the sort used by the women during the “punk prayer” might be considered “articles used as weapons” again I do not know.  These seem to me valid points that ought to be part of the defence in a properly conducted trial.  I do not know whether the defence has in fact made these points.

Nor does there seem to me to be an arguable defence to the elements of the offence set out in Article 213 paragraph 2.  There is no doubt that the offence was planned “in a preliminary conspiracy” and was carried out by “an organised group”.  The women were escorted from the Cathedral by the Cathedral guards who would certainly be “representatives of authority” or “persons fulfilling the duty of protecting the public order” or “of suppressing the violation of the public order”.  I do not know if the women offered any resistance.  This also could be a legitimate area of dispute between the prosecution and the defence in a properly conducted trial.

As for Article 3 paragraph 6 of the Law on Freedom of Conscience, Religious and Religious Association, as I have said the performance of the “punk prayer” in an area immediately in front of the sanctuary that contains the Altar seems to me to have been specifically intended to flout the wording of the Article.  Whether that was the intention or not that surely was the effect.

Comparisons that have been made in Britain with the prosecution in 1969 of members of the Rolling Stones on charges of cannabis possession, which provoked the famous Times editorial about “not breaking a butterfly on a wheel”, are obviously wrong.  Quite apart from whether in the light of the group’s activities it is appropriate to describe Pussy Riot as harmless “butterflies”, there is simply no comparison between a prosecution brought over the possession of a small amount of cannabis for personal use and the grossly provocative act performed by Pussy Riot in the Cathedral of Christ the Saviour on 21^st February 2012.

As for the claim by Amnesty International that the women are being prosecuted simply “for performing a gig in a Church”, that is not merely wrong but is actually absurd.

http://www2.amnesty.org.uk/blogs/sms-action-network/pussy-riot?utm_source=aiuk&utm_medium=Homepage&utm_campaign=IAR&utm_content=pussy_sms_nib

The Conduct of the Case

Since Tolokonnikova and Alyokhina were both arrested on 3^rd March 2012 the conduct of the case by the prosecution and the Court has come in for severe criticism both in Russia and in the west.

The focus of much of the criticism has been the Court’s refusal to grant the women bail before the trial.  Much has been made of the fact that both Tolokonnikova and Alyokhina are women with young children.  The refusal of the Court to grant bail is said to be unreasonable and to have separated the children from their mothers.  It has also been said that the decision to keep the women in detention is disproportionate to the crime committed.

In my opinion there was no chance the Court would grant bail and the Court was right to refuse it.  Immediately following the “punk prayer” the women went into hiding.  During the “punk prayer” they disguised themselves with balaclavas so as to conceal their identities.  Two of the women involved have to this day never been identified and remain in hiding.  Following their arrest Tolokonnikova and Alyokhina initially denied they were members of Pussy Riot and went briefly on a hunger strike.   Tolokonnikova only admitted that she had been one of the women who had participated in the “punk prayer” at the pre trial hearing on 20^th June 2012.  Alyokhina and Samutsevitch continued to insist that the charges against them had no basis.  The final admission that all three women were members of Pussy Riot and had taken part in the “punk prayer” only came at the start of the trial.

Pussy Riot has explained the practice of wearing balaclavas during performances in an interview Amnesty International has published on its website

“…..Pussy Riot has to keep expanding.  That’s one of the reasons we choose to always wear balaclavas – new members can join the bunch and it really does not matter who takes part in the next act – there can be three of us or eight of us, like in our last gig on the Red Square, or even fifteen, Pussy Riot is a pulsating and growing body”.

http://www.vice.com/read/A-Russian-Pussy-Riot

Members of Pussy Riot therefore keep their identities secret even from each other, a fact admitted by Tolokonnikova during the trial where she said that she only knew the two other women who had taken part in the “punk prayer” and who are still in hiding by their nicknames.

Given statements such as this and given that hooliganism is a crime which carries a possible sentence of imprisonment, that the charge was made against women who concealed their identities, went into hiding, refused to cooperate with the police, the prosecution or the Court and who are members of a group which habitually carries out illegal acts (including in the case of the two women who are known to be or to have been members of Voina acts of violence against the police) it was simply impossible for the Court to grant bail.  The prosecution was surely right to claim that if released on bail the women might go back into hiding and might commit further criminal acts.  The Court may also have been concerned that if released the women might flee abroad or escape to a foreign embassy and claim political asylum.  Amnesty International has awarded the women “prisoner of conscience” status and an article by the Russian opposition journalist Konstantin von Eggert says that he has been told by a Danish diplomat that a grant of political asylum would be “automatic” if they were to escape abroad.

http://en.rian.ru/columnists/20120803/174952417.html

Much Russian and international criticism of the case has focused on the delay in bringing the case to trial.  This overlooks the fact that the major fault for the delay in bringing the case to trial lies with the defence.

Following their arrest Tolokonnikova and Alyokhina denied they were members of Pussy Riot and went on hunger strike.  They and Samutsevich then refused to admit they were present in the Cathedral when the “punk prayer” took place.  They persisted in this refusal until Tolokonnikova’s admission at the pre trial hearing on 20^th June 2012.  Only at the start of the trial on 30^th July 2012 did all the three women finally admit their membership of Pussy Riot and their participation in the “punk prayer”.

In the meantime the defence throughout the pre trial period failed to provide a clear statement of its case.  Instead it made repeated applications for bail, which were bound to fail, sought repeated adjournments because of its inability to prepare its case and made repeated and hopeless applications for the calling of witnesses such as Putin and the Patriarch who have no direct connection to the events in the Cathedral on 21^st February 2012.

The attempts to call Putin and the Patriarch as witnesses were part of the defence’s attempt to expose the prosecution against the women as politically motivated.  These attempts  face the insurmountable difficulty that there is no evidence to support them.  In the absence of such evidence there are no grounds to call Putin or the Patriarch as witnesses.  Neither Putin nor the Patriarch were present in the Cathedral when the “punk prayer” took place.  Neither Putin nor the Patriarch were therefore in any sense witnesses to the “punk prayer”.  No evidence has ever been produced that either Putin or the Patriarch ordered the prosecution.  Reference has been made to a comment by Putin’s spokesman Dmitri Peskov shortly after the “punk prayer” that Putin was “disgusted” by the “punk prayer” whilst the Patriarch has been criticised for his comments that the “punk prayer” was “blasphemous” and for his supposed criticisms of Russian Orthodox Christians who have called on the Russian Orthodox Church to forgive the women.  These statements are merely statements of opinion.  In no sense can they be considered orders to the prosecution to bring the case.

The wording of the indictment or charge sheet against the women with its references to the “punk prayer” as intended “to devalue church traditions and dogmas”, “to diminish the creed of believers”, “to show (the women’s) hatred of Christianity” and “to encroach upon the singularity of religion” has been said to show an unhealthy attachment between Church and State with the implication that it also shows that the Patriarch and the Russian Orthodox Church are somehow behind the prosecution.  See for example the following comments about the indictment in the Russian liberal news website Gazeta.ru                                

http://en.gazeta.ru/news/2012/07/19/a_4686637.shtml

In my opinion the criticisms of Putin and of the Patriarch and of the wording of the indictment betray a simple inability to face the fact that a crime was indisputably committed. There may be legitimate doubts about the seriousness of the crime and there may be possible lines of defence some of which (and some of the problems of which) I have touched on.   That a crime was however committed there is surely no doubt.  Given that a crime was committed the Russian police and judiciary were under a duty to investigate and prosecute it as would the police and judiciary in any other country if such a crime were committed there.  Since the Russian police and judiciary were under duty to investigate and prosecute the crime there is no reason to look for an order from either Putin or the Patriarch to explain the prosecution.  Since a crime is a State and police matter any statement of forgiveness by the Patriarch cannot affect it and cannot and should not prevent its investigation and prosecution.  The demand that the Patriarch “forgive” the three women and that he is acting contrary to Christian doctrine by not doing so is therefore completely beside the point.

It also betrays a fundamental ignorance of Christian theology.  As Father Vsevolod Chaplin, the spokesman of the Russian Orthodox Church, has carefully explained, without confession and repentance, of which at present there is no sign, there can be no forgiveness.

http://en.rian.ru/analysis/20120725/174760458.html

As for the wording of the indictment I have not seen the full document, which is apparently very long.  Such of it as I have seen seems to me be nothing more than the usual attempt of such documents in stilted legal language to set out the nature of the crime alleged.  This is an offence under Article 213 of the Criminal Code of the Russian Federation and of Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association.  There are points in the indictment to which the defence can legitimately take issue (such as whether the injury to the feelings of Russian Orthodox Christians were intentional) but given the nature of the “punk prayer”, which I discussed above, I do not see based on what I have seen of the indictment that it is inappropriate or wrongly set out.

The chaotic conduct of the case by the defence has spilled over into the trial itself.  It seems the trial only took place when it did because the Court and the prosecution finally lost patience with the defence’s refusal to set out its case and simply fixed the date for the trial.  This appears to have had the desired effect since on the first day of the trial the three women clarified their position by finally making a full admission both of their membership of Pussy Riot and of their participation in the “punk prayer”.  They however denied any intention to offend the feelings of Russian Orthodox Christians and said they were sorry if any such offence was caused.  They justified the “punk prayer” as a protest against Putin and admitted that an offence had been committed but said that this was one which should be punished by administrative penalties and not by imprisonment.  On that basis they pleaded not guilty to the charge of hooliganism.

Had this stance been taken at the outset of the case the case would surely by now have ended.  I cannot see why an agreement could not have been reached whereby the three women pleaded guilty to a lesser charge and made a full apology to the Russian Orthodox Church in return for a more lenient sentence.  Given the nature of what was done it is perhaps unlikely that the women would have escaped without a prison sentence but the Russian authorities have shown remarkable forbearance in the face of Pussy Riot’s and Voina’s previous activities (greater one suspects than would have been the case in most western countries) and it is surely likely that any prison term that was agreed would have been short in which case given that the women  have already been in prison for five months it is likely that they would by now be free.

I would offer for the purpose of comparison the example of the Polish pop singer Dorota Rabczewska (“Doda”).  Unlike Pussy Riot, Doda is a professional and indeed massively popular artist and entertainer.  She also happens to be one who has in my opinion shown a much more sustained and practical interest in feminist questions than have Pussy Riot.  Thus in the video of Kolejny raz she addressed the problems of young women forced into prostitution.  In the video of Katharsis she dealt with the problem of domestic violence.  In the video of Nie daj sie she dealt with the questions of gender stereotyping and sexual harassment.  Nor has Doda been afraid to challenge Poland’s powerful Catholic Church.  In the video of Kolejny raz she acts the part of a prostitute who is murdered by a serial killer who is a practising Catholic and who makes the sign of the cross over her grave whilst one interpretation of the lyrics of Nie daj sie is that they deny the existence of God.  

In May 2010 Doda was charged under Poland’s blasphemy laws for saying in a television interview that she had more belief in dinosaurs than the Bible because the Bible “was written by potheads and drunks”.  The offence carries in Poland a maximum sentence of two years’ imprisonment.  In contrast to Pussy Riot Doda made no attempt to politicise her case or to ignore or evade the charges brought against her.  She immediately offered a full apology and at the beginning of this year quietly settled the case by paying a $1,450 fine.  Unlike Pussy Riot and their supporters she made no attempt to mobilise international opinion behind her.  Nor did her case become a cause celebre in Poland.

Pussy Riot’s offence is by any measure far more serious than Doda’s.  However had the same sensible approach been taken it should surely have been possible to resolve the case in a way that drew a line under the whole affair.  Unfortunately not only has Pussy Riot’s defence failed to take this sensible approach but it has instead persisted with the same self destructive tactics in the trial that it adopted at the start of the case and in the pre trial hearings.

Reports of the trial describe a theatre of the absurd.  Six attempts were made over the course of five days (one by the prosecution, five by the defence) to force the judge to resign on various grounds including bias.  There has been harassment and mockery of prosecution witnesses and demands for the calling as defence witnesses of persons such as the well known Russian opposition leader and blogger Aleksei Navalny who have no conceivable connection to the case.  There has been open texting and tweeting of messages on mobile phones in the Court room whilst proceedings are underway.  Ambulances and doctors have been called following claims that the women were ill or were being mistreated or were even being tortured, which claims were proved when the doctors came to be untrue.  The hearing has also been interrupted by bomb threats and protests and there have been constant and unjustified demands from the defence for further adjournments.

At no point does there seem to have been the slightest genuine recognition on the part of the defence that a crime was committed or that the best interests of the women would be served by an honest recognition of this fact and by an attempt to cooperate with the prosecution and the Court to find a solution that best serves the women’s interests.  The entire defence strategy seems to have been to try to discredit the Court on the assumption that the prosecution is political and the trial a show trial.   Any defence strategy that rests entirely on an assumption, which is unsupported by evidence, is going to fail and I expect that to be the case in this case.

I should also say that I think it is inconceivable that tactics of the sort used by the defence in this case would be tolerated in the courts of any western country.  If such attempts were made I am sure they would result in orders by the Court sacking the defence’s lawyers and in charges for contempt of court.

The likely result of this defence strategy is that it can only have increased the prospects for a lengthy prison sentence.  If this is the outcome then the blame lies squarely with the defence.  One has to wonder about the motives of a defence conducted in this self destructive way.  If as seems likely its purpose is to score political points against the Russian government (and the defence lawyers seem to be committed members of the Russian opposition) then the interests of the three women have been sacrificed to that objective.  As militant political activists perhaps the women understand and support this.  If they do not then one has to deplore the cynicism of what has been done.

Summary

 As long term readers of this blog will be aware, I have been concerned for some time with the misreporting and interference in the west with Russian cases.  The Pussy Riot case is another example.  There is in fact no great legal or political issue or principle involved in this case.  Every society has to face occasional challenges to public order and that is all ultimately that the Pussy Riot case is about.  It is not the malevolent prosecution by a corrupt dictatorship of harmless artists or political dissidents.  Treating it as if it was not only completely misrepresents the case but has also seriously damaged the prospects of the three young women involved avoiding a lengthy  prison sentence.  To the extent that this is the case the fault lies not with Putin, the Russian state, the Russian Courts, the Russian Orthodox Church or the Russian police but with the women’s supporters both in Russia and the west.

(This post could not have been written without the help and encouragement of Anatoly Karlin and Mark Sleboda who have provided me with links that I have used.  I would also thank the blogger who I know as Moscow Exile for information about some of the events in the trial.  It goes without saying that any errors of fact and all statements of opinion in this post are my own).

POSTSCRIPT: Since writing the above I have been provided by Anatoly Karlin with a better and more literal and possibly more up to date translation of Article 213 of the Criminal Code of the Russian Federation from which it is clear that possession of weapons or articles that may be used as weapons is not an essential element for the offence of hooliganism to be made out.  The women are not therefore in a position to defend themselves against a charge under Article 213 on the basis that they did not have weapons or articles that might be used as weapons in their possession.  This is consistent with what I have heard about the case in which no such defence seems to have been made.