KHODORKOVSKY – THE END OF THE AFFAIR?

Putin’s decision to grant the imprisoned oligarch Mikhail Khodorkovsky’s request for a pardon has come as a shock.  Some especially amongst Putin’s critics in the west and in Russia itself have seen the move as a political masterstroke.  A great many others especially in Russia have responded with anger and a sense of betrayal.  The purpose of this post is to discuss whether either response is appropriate.

Khodorkovsky was formerly and notoriously Russia’s richest man.  In 2003 he was peremptorily arrested and shortly after was put on trial with his partner Platon Lebedev for massive tax evasion.  This, the first Khodorkovsky trial, ended in Khodorkovsky’s and Lebedev’s conviction.   The assets of Khodorkovsky’s company, Yukos, were seized and have now been absorbed by Rosneft, an oil company in which the Russian state has a significant stake and which is headed by Igor Sechin, a former high ranking official of the Russian government.  Subsequently Khodorkovsky and Lebedev were tried for a second time on charges of embezzlement and received a second conviction.  The sentences in the two cases are concurrent and initially totalled 14 years but have been reduced on appeal to just over 10 years.  Prior to his unexpected release in December 2013 Khodorkovsky and his partner Lebedev were due to be released in August 2014.

Western opinion of Khodorkovsky has not always been favourable.  The character of the villainous Russian oil oligarch Yuri Gretkov in the film the Bourne Supremacy appears to be at least in part based on him.  The effect of Khodorkovsky’s arrest, prosecution and trial however instantly transformed him for many people in the west (including western governments) and for some people in Russia into a victim of political repression and a democratic martyr.  I have previously commented on the reflex response in the west in any conflict between the Russian government and a businessman – especially one like Khodorkovsky who had gone out of his way to cultivate western connections – to side against the Russian government and with the businessman.

It needs to be said clearly that any notion of Khodorkovsky as a victim of political repression or as a democratic martyr is entirely false.  The European Court of Human Rights has not yet considered the proceedings that led to Khodorkovsky’s second conviction for embezzlement.  However it has considered in detail the circumstances of the first case and has repeatedly said in a succession of Judgments that Khodorkovsky is indeed guilty of massive tax evasion just as the Russian authorities say he is and that there was no political motive behind the prosecution brought against him outside the facts of the case itself.

It is deeply frustrating that western commentary has chosen almost entirely to ignore these Judgments, which so completely contradict the common western narrative of Khodorkovsky’s case.  On the rare occasions when these Judgments are mentioned all the emphasis is given to secondary findings of (sometimes serious) procedural faults  rather than to the overall finding that he is indeed guilty as charged.

The European Court of Human Rights has not yet had an opportunity to consider the findings of embezzlement made against Khodorkovsky in the second case.  Until that happens it is premature to make any definite statements.  However it should be said clearly that even if the European Court of Human Rights were to exonerate Khodorkovsky entirely of this charge in the light of its previous findings that he is guilty of massive tax evasion he would still not be an innocent man.  Moreover two claims repeatedly made about this case are certainly false.  Firstly, it is simply not true that the second case is a re trial of the first case given that the charge in the first case was tax evasion and the charge in the second case was embezzlement and fraud.  Secondly, it is wrong to say that the charge in the second case somehow contradicts the verdict in the first case because Khodorkovsky and Yukos supposedly cannot be liable to pay tax on money and property they have stolen. In all jurisdictions I know including that of the United States profits and income obtained through fraud and embezzlement are taxable in exactly the same way as profits and income obtained by legitimate means.

In recent months there have been rumours of a possible third case against Khodorkovsky.  Very little about this case is known save that the economist Guriev is apparently a witness and that he fled to France to avoid testifying in it.  Definite confirmation of the existence of this third case only came a few days ago in Putin’s marathon end of year press conference when he said this case is doubtful and problematic.

Beyond these three cases (the third of which has not been tried) there has been a swirl of stories linking Khodorkovsky to money laundering, various murders and contract killings and the like.  Weight to these stories has been given by none other than Putin himself who in various press conferences and interviews has referred to precisely such behaviour by individuals and agencies working for Yukos.  These stories have never been substantiated against Khodorkovsky himself (though they may have been the basis of the plot in the Bourne Supremacy) and it seems that some of the key witnesses have fled to Israel rendering any investigation of these claims impossible.  In the absence of such an investigation little weight should be placed on these stories.

In light of Khodorkovsky’s unquestioned guilt of the charge of tax evasion and of the other Judgments and allegations made against him the campaign waged in the west on his behalf has been grotesque to the point of absurdity.  Russia is endlessly criticised for its lack of respect for the rule of law and its “legal nihilism”.  This criticism has gone hand in hand with a campaign for the unconditional release of a man the European Court of Human Rights says is guilty of massive tax evasion.  It is impossible to see how such a campaign can support the rule of law in Russia as opposed to undermining it.

The Russian authorities have consistently refused up to now all demands for Khodorkovsky’s release.  Over time interest in his case has faded.  Whilst it would be untrue to say that Khodorkovsky has been entirely forgotten most of the demands for his release have long since acquired a ritual character.  There was no evidence of any very strong pressure on Russia concerning him immediately prior to his release.

Three explanations for his release are commonly made (1) that it is a public relations move prior to the Sochi Olympics (2) that it is connected to a recent general amnesty and (3) that he was released to avoid any further extension of the US government’s Magnitsky list.  None seem very convincing.  Briefly:

(1) there is no evidence of anyone planning to stay away from the Sochi Olympics  because Khodorkovsky was in prison or of his continued stay in prison having any negative impact on the Sochi Olympics.  Interest in Khodorkovsky had faded to such an extent that his continued imprisonment in presentational terms had ceased to matter;

(2) the general amnesty did not apply to Khodorkovsky and both Khodorkovsky and the government have made no reference to it in relation to the decision to release him; and

(3) the Russian government has taken a very strong line towards the Magnitsky list and is extremely unlikely to say the least to have wanted to show weakness by releasing Khodorkovsky in response to any threats to extend it if only because any such show of weakness would be bound to lead to more demands for more concessions backed by more threats to extend the list if those concessions were not made.  It is inconceivable that the Russian authorities would not be aware of this and would submit to this blackmail.  In fact what we know about the circumstances of Khodorkovsky’s release points to the involvement of the government of Germany and not to that of the United States.

What did then result in Khodorkovsky being released?

The short answer is that Khodorkovsky did in November what he had previously consistently said he would not do, which is apply for a pardon.  Khodorkovsky has previously consistently refused to apply for a pardon because he has always protested his innocence and has always denied the legitimacy of the charges and proceedings that have been brought against him.

Khodorkovsky has now given a press conference and an interview for New Times in which he has tried to explain why he applied for a pardon when he had previously consistently said he would not do so.  Here are the relevant comments as provided by Voice of Russia:

http://voiceofrussia.com/news/2013_12_22/Khodorkovsky-didnt-admit-crimes-in-pardon-plea-5666/

Khodorkovsky says that he never ruled out applying for a pardon.  He says that a request for a pardon is simply a one line request for clemency and does not in and of itself imply an admission of guilt.  He explains his previous reasons for refusing to apply for a pardon and his decision to apply for a pardon now with these very remarkable words:

“My lawyers conveyed to me that a decision on pardoning may be made.  And that the confession of guilt is not put forward as a condition for my release.  That was a key issue since Medvedev’s times.  It was absolutely not critical for me to appeal for pardon.  The trial was a frame up and everyone realised it perfectly well.  To write one false paper (this clearly refers to a pardon request containing a confession of guilt – AM) in reply to another false paper (the verdict in the second Yukos case – AM) – I would not feel any moral discomfort in relation to that.  And there was only one problem that was not false in this false paper (the pardon request containing a confession of guilt- AM) – the confession of guilt.  Because as soon as I write that I recognise my guilt, plenty of people whom I respect will themselves be in a very difficult situation.  Actually any person who used to work for Yukos would become vulnerable”.

What this intricate language says is that Khodorkovsky would have had no compunction openly confessing his guilt in a request for a pardon if that had got him released because as the entirety of the proceedings against him was fraudulent the confession would also have been fraudulent.   Khodorkovsky says the reason he didn’t make such a confession was not because he is innocent and did not want to lend credence to the proceedings brought against him but because of the effect his confession would have had on other people.

The first point to say about this is that this is not the impression of his reasons for not applying for a pardon that Khodorkovsky has given in the past.  Up to now Khodorkovsky has given the consistent impression that he was not prepared to seek a pardon because he did not want to confess his guilt as he is innocent.  What he is now saying is that he would have signed a confession of guilt if this has got him released and that the only reason he did not do so is not because he is innocent but because of the effect this might have had on other people.

The second point is that it is difficult to see this as anything other than an acknowledgement that the pardon request he has now signed is an admission of guilt, which is what the Russian government says it is.

Paragraph 89(c) of the Russian Constitution does not require a prisoner to apply for a pardon in order for one to be granted.  It is either practice or secondary law that a convict must request a pardon before one is granted.  As the government has again made clear in connection with the pardon request Khodorkovsky has made, this is because a request for a pardon is a request for clemency by a convict who has been convicted of a crime.  The state therefore treats it as an admission by the convict of his guilt for the crime for which he seeks pardon.

It is difficult to see Khodorkovsky’s previous refusal to apply for a pardon – even one that contained no confession of guilt – as anything other than an acceptance of this logic.  Perhaps Medvedev or Putin would have rejected such a request but it would surely have greatly increased the pressure on them to release him, which was already great.  Given that Khodorkovsky now says that he would have had no qualms signing a pardon request containing a confession of guilt but for its effect on other people there is no reason on his own logic why he could not have signed a pardon request that did not contain a confession if he genuinely thought that no such confession would be implied by his doing so.

As it happens I am far from sure that Medvedev and Putin would have rejected a pardon request that did not contain a confession if Khodorkovsky had made one.  All I understood them to say was that they would consider a request for a pardon if Khodorkovsky made one.  Up to now he never did.

I have to say that Khodorkovsky’s complicated reasoning looks to me like a carefully crafted explanation of why he requested a pardon when he had previously said he would not do so.  Whether it impresses his supporters I do not know.  I doubt it will impress the European Court of Human Rights especially if it decides that the embezzlement proceedings were not fraudulent as he says.  Rather I think the European Court of Human Rights will be more interested in his actually quite extraordinary admission that he would have been prepared to sign a confession of guilt in order to obtain his release had this not had consequences for other people.

As to why Khodorkovsky applied for a pardon now when he had previously consistently refused to do so and when he was due to be released in 8 months anyway despite knowing that the government would be bound to treat his request for a pardon as an admission of guilt, I do not know.  The comments Khodorkovsky made in his interview with New Times and in his press conference today (22nd December 2013) leave me none the wiser.  It is possible that the Germans who seem to have brokered the deal have given assurances that he will stay away from Russia, not interfere in its politics and not pursue further litigation in connection to Yukos.  Khodorkovsky has specifically ruled out legal action to recover Yukos’s assets and has also said that he will not involve himself in Russian politics.

If there has been such a deal it is not clear what the Russians have given in return bearing in mind that Khodorkovsky was due to be released in 8 months anyway.  My best guess is that they agreed to drop the pending third case against him.  If so then given how problematic and politically embarrassing that case almost certainly is the Russians have got a good deal.

I appreciate that many people in Russia are upset and angry about this decision.  Following Berezovsky’s suicide Khodorkovsky is left as the single most iconic figure amongst the oligarchs who plundered Russia in the 1990s.  His imprisonment was for many Russians an indication that at least some justice had been done for what happened.  Certainly there can be few people in Russia (other than Khodorkovsky’s small group of admirers) who seriously think the 10 years he has spent in prison is remotely proportionate to the harm he has done.  Letting him go must seem to many a betrayal.

The practical reality is however that Khodorkovsky was due to be released in August 2014 anyway.  Keeping him in prison beyond that date would have required the Russian authorities to prosecute the third case against him, which Putin says is highly problematic.  If this case is as problematic as Putin says then this case might have ended in an acquittal, which would have been humiliating and politically extremely damaging.  At the very least it would have led to a storm of further criticism, which Russia hardly needs now.  Khodorkovsky has been in prison for 10 years following his conviction on tax evasion charges of which the European Court of Human Rights says he is guilty.  His business has been destroyed and most of his wealth has been confiscated.  He no longer represents the danger that he did when he was arrested in 2003 and prosecuting him on problematic charges in order to keep him in prison when he is due to be released soon anyway is counterproductive and serves no useful purpose.  Releasing him 8 months early by granting his request for a pardon and treating that as the admission of guilt that in spite of his explanations it arguably is draws a line under the affair.

THE LAVROV KERRY AGREEMENT

The blogger who I know as the Vineyard of the Saker (“Saker”) has written three posts on the subject of the Lavrov Kerry agreement of 14th September 2013, which has resolved the immediate Syrian crisis.  Though I have great respect for this blogger whose views on the Syrian crisis have been very close to my own, I think he has misjudged the nature of the agreement that Lavrov and Kerry have reached.  I wish to show that his fears concerning the agreement are baseless.

My intention was to post my response on his blog but unfortunately the length of my response makes that impossible.  What I propose to do therefore is write my response here and post a link to his blog.

Here are his three posts on the subject of the Lavrov Kerry agreement I take issue with:

http://vineyardsaker.blogspot.co.uk/2013/09/lavrov-blunders-in-geneva-and-accepts.html

http://vineyardsaker.blogspot.co.uk/2013/09/the-us-russia-agreement-on-syrias.html

http://vineyardsaker.blogspot.co.uk/2013/09/i-want-to-begin-this-post-by-sincerely.html

The second of these posts sets out the text of the agreement itself with the parts of the agreement Saker is concerned with highlighted.

Before discussing the agreement there are two important points to make:

1. Saker is absolutely right to doubt the good faith of those in the US administration whose objective from the start of this crisis has been regime change.  The regime change agenda has not gone away.  On the contrary its recent defeat is widely (and wrongly) seen as a humiliation of the United States by much of the US political class.  Unfortunately that all but guarantees that they will now work overtime to try to reverse it.  There is no room for complacency.  A battle has been won but the war is far from over.  We have fierce battles ahead.

2. It is essential to understand Russia’s position, which has been consistent throughout this crisis.  This is to defend international law and the primacy of the Security Council and of the United Nations in securing world peace and to resist the extremely dangerous doctrine that has been gaining ground in the United States, Britain and to a lesser extent in France, which says that the governments of those countries have the right to intervene unilaterally to overthrow governments of which they disapprove and which they say misbehave.   I discussed this all in detail in the following article I wrote for my own blog.

http://mercouris.wordpress.com/2012/06/22/russia-and-syria/

Putin’s own comments discussed this further in his now famous article in the New York Times.

http://www.nytimes.com/2013/09/12/opinion/putin-plea-for-caution-from-russia-on-syria.html?_r=0

Lastly I would also refer to certain of comments discussing this very issue in a recent Crosstalk debate in which I appeared on RT TV, which as always was expertly handled by Peter Lavelle.

http://www.youtube.com/watch?v=N2ELt1RERTc

Turning now to yesterday’s agreement, Sergei Lavrov who negotiated the agreement is if he is nothing else an exceptionally experienced and professional diplomat.  He is not the sort of person to make unforced errors especially when he is negotiating from a position of advantage.  That in itself and Syria’s support for the agreement announced today (Syria has hailed the agreement as a “victory”) is in itself a good reason tor think that the terms of the agreement are in Russia’s and Syria’s interests.

Turning to the agreement I will now address the specific points in it that concern Saker:

1. Saker is worried that the agreement requires Syria to grant the inspectors “unfettered access”.  He presumably fears that this will set the stage for provocations such as took place with the inspection team sent to Iraq in the 1990s and which were subsequently used as grounds to claim that the Iraqi government was not cooperating with the inspection team.

The part of the agreement that refers to “unfettered access” is an unavoidable part of an agreement of this sort.  The inspectors have to have unfettered access if they are to do their work properly.  If Russia were to seek to deny the inspectors unfettered access the US would quite rightly say that Russia was not negotiating in good faith.  At that point the US would on past experience have simply walked away from the whole negotiation.  Obama would in that case have been in a much stronger position to argue for a military strike than he was before the negotiation took place since he would have been in a position to say quite rightly that Russia’s stance had exposed the whole negotiation as a sham.

Saker’s concern about “unfettered access” is really a concern about the impartiality of the inspectors.  That is a fully legitimate concern of which more below.

2. Saker is worried that the agreement will be set out in a Security Council Resolution.  He has previously and correctly argued that since Syria is joining the Chemical Weapons Convention such a Resolution is not legally needed.

In fact the decision to proceed by way of a Security Council Resolution reflects the Russian position not the US position in this crisis. It is Russia which throughout this crisis has insisted that it is the Security Council and the Security Council alone which is authorised to decide whether military action should or should not be taken against Syria.  It is Russia which has insisted that it is the Security Council alone that is entitled to judge whether or not Syria is in breach of its treaty obligations.  It is the United States, which by contrast has insisted and which continues to insist on its unfettered right to act unilaterally without reference to the Security Council in any circumstance where it judges it appropriate.

By ensuring that the agreement is set out in a Resolution of the Security Council Russia has ensured that the agreement becomes the property of the Security Council and is subject to the supervision of the Security Council.  That means that if there are any breaches of the agreement they must be referred to the Security Council, which Russia says can alone decide what to do.  By contrast if there was no reference in the agreement to the Security Council and no Resolution by the Security Council setting out the agreement then this would simply be an agreement between Russia and the United States.  The United States would in that case in conformity with its unilateralist doctrine consider itself free to decide without reference to the Security Council whether the agreement had been violated or not.  Knowing what we do about the eagerness of some people in the United States to launch an attack on Syria it is a foregone conclusion in that case that at some point in the future someone in the United States would argue that the agreement had been violated and would press for an attack without any reference being made to the Security Council.  Were that to happen it is more likely than not that an attack would take place.

3. Saker is concerned that the agreement says that in the event of breaches of the agreement the Security Council might take action under Chapter VII.

After the Libyan experience I understand Saker’s concerns about Security Council Resolutions that mention Chapter VII.  However, the text of the agreement shows that it has been carefully drafted with precisely such concerns in mind.

The reference to possible measures by the Security Council under Chapter VII follows directly from Putin’s comments in his interview with the Associated Press that I discussed in my previous post.

http://mercouris.wordpress.com/2013/09/04/putins-interview-with-associated-press-on-the-syria-crisis/

Putin said in that interview that Russia might in appropriate circumstances agree that the Security Council might authorise military action against Syria under Chapter VII.  As I explained in my previous post those comments were misinterpreted as an indication that Putin’s opposition to military action against Syria was softening.  In reality what Putin was doing was avoiding the trap Jacques Chirac fell into in the run up to the attack on Iraq in 2003.  As I have previously said, on the eve of that attack Chirac made certain comments that were misrepresented by the US and British governments as indicating that France would veto Security Council authorisation of military action against Iraq in any circumstances whatsoever.  The US and British governments on that basis were able to claim that there was no point in discussing the matter further in the Security Council because Chirac’s “intransigence” had already ruled the option of military action out supposedly making any further discussion pointless.

Having insisted on the sole authority of the Security Council to decide what happens in the event that the terms of the agreement are violated Russia cannot afford to appear to foreclose the Security Council’s options in advance by denying the possibility of action under Chapter VII.  Were it to do so the United States would again say that there was no point in leaving the decision to the Security Council since Russian “intransigence” had made that pointless.  The agreement has to refer to possible action under Chapter VII if it is to stick.

What Russia has however managed to do is to take out of the agreement any reference to military action or sanctions (as opposed to “measures”) under Chapter VII.  Russia has made it clear both in the body of the agreement and in the comments Lavrov made in his press conference yesterday that Russia expects (and is in a position to insist) that any action under Chapter VII does not initially take the form of military action or sanctions.

This is an important victory for Russian diplomacy.  It means that in the event of violations Russia can point to the agreement when it insists on a graduated response allowing time for diplomacy to work.

4. Having set out in the agreement what would happen in the event that there are violations of its terms the Russians have also managed to keep open the question of who might be responsible for such violations.  This is what has resulted in the paragraph that most worries Saker.   The exact wording of the paragraph is as follows.

“….in the event of non compliance, including unauthorised transfer, or any use of chemical weapons by anyone, the Security Council should impose measures under Chapter VII of the UN Charter”.

(Highlights and Italics added)

The US and its allies have been insisting throughout the crisis that the only party that has used chemical weapons in Syria is the Syrian government.  Russia has strongly disputed this claim.  The wording of the paragraph and the agreement as a whole reflects Russia’s position.  Nowhere in the agreement does the agreement identify the Syrian government as the perpetrator of any chemical attacks.  The wording of the paragraph is intended to leave open the possibility that chemical attacks, both those that have already happened and any which might happen in the future, might be the work of the rebels and not of the Syrian government.

Having achieved this and in order to ensure balance (something which was previously completely lacking in all the draft Resolutions the US and its allies have presented to the Security Council throughout the Syrian crisis and which was also lacking in Resolutions 1970 and 1973 which were passed during the Libyan crisis) the agreement makes clear that in the event of violations of the agreement by any party the Security Council will take action.  I should say at this point that it is clear from the wording of the paragraph and from the agreement as a whole that it is the Security Council and not any other party acting unilaterally, which will decide what sort of action to take.  I say this because much of Saker’s objection to this paragraph appears to come from a groundless fear of the contrary and a belief, that is not supported by anything in this paragraph, that it makes possible unilateral action without the authority of the Security Council.

This part of the agreement is of course a natural result of Russia’s insistence that the agreement should leave open the question of who in Syria is responsible for any chemical attacks that have occurred or that will occur.  Having vested the Security Council with the power to act in the event of any violations of the agreement the agreement confirms that the Security Council may exercise this power against whoever violates the terms of the agreement.  That means either the Syrian government or the rebels.  The paragraph renders the agreement neutral and balanced something which as I said no previous Resolution proposed by the United States or its allies over the course of the Libyan and Syrian crises has done.

It will be for Russia to ensure that in the event of false flag operations the Security Council is not stampeded into authorising action on false premises in the way that it was stampeded into authorising such action against the Libyan government in 2011.  With inspectors on the ground in Syria reporting to the Security Council false flag operations ought to be more difficult and easier to expose.

5. Which brings me to what is actually the heart of the agreement and the part of the agreement which I suspect took the most time to agree.  This is the lengthy technical section that deals with the composition and control of the inspection team that will be sent to Syria to enforce the agreement.

What went catastrophically wrong in Iraq in the 1990s is that an enfeebled Russia ceded control of the inspection team in Iraq to the US government.  The result was that Richard Butler the head of the inspection team was reporting and taking instructions from the US State Department instead of the UN Secretariat.  I can remember him actually doing this in 1998 on the eve of Operation Desert Fox when he actually met with US officials before he met with anyone from the UN Secretariat.

If the same thing happens in Syria then the agreement is in serious trouble for all its other safeguards. Precisely so that does not happen the agreement goes into great detail about the composition, responsibility and accountability of the inspection team making it clear that it is a joint enterprise of the United States and Russia.

In other words Russia is going to be actively involved in the work of the inspection team.  Indeed I suspect that a significant proportion of the inspectors will be Russian.  Russia will have a say on how the inspectors carry out their work and through its position as a permanent member of the Security Council (the body the agreement says has the final authority) will jointly receive their reports and will be party to any decisions taken about how to respond to them.

Overall in my opinion this is the best possible agreement that could have been obtained in the circumstances and represents a triumph for Russian diplomacy and a victory for international law.  Assad for his part has been forced to give up his chemical arsenal and to allow inspectors into the country.  Saker has himself explained why possession of chemical weapons is not in Syria’s interests whilst I would argue that having impartial inspectors in the country able to report on what is actually happening there as opposed to relying on what are often mendacious reports from the Syrian rebels is strongly in the Syrian government’s interests.  It is worth at this point pointing out that on the two previous occasions when inspectors/observers were in the country over the course of this crisis – as a result of the Arab League peace plan and following Kofi Annan’s peace plan – it was the Syria government’s enemies who on both occasions successfully insisted that they should be pulled out.

I would add in passing that one further important gain for Assad from this agreement is that the agreement implicitly recognises the government he heads as the legitimate government of Syria.  I say this because at various times various persons including various western officials as well as officials of the Arab League have cast doubt on his legitimacy.

The US is now party to an agreement that requires it to accept the authority of the Security Council and which contains safeguards so that the inspection team created by agreement is not manipulated.  That does not mean that the Syrian crisis is over or that an attack on Syria will not take place.  Despite all the safeguards there may still be attempts to manipulate the inspection team as happened with the one in Iraq.  It will be for Russia and its ally China to make sure that doesn’t happen.

The US for its part must know by now that it stands little chance of bullying Russia (and by extension the Security Council) into authorising an unwarranted military attack on Syria.  However it continues to make clear that it still considers itself entitled to act unilaterally.   It is for persons like Saker and others who think like him to mobilise politically to ensure that public opposition to an attack that takes place without authorisation from the Security Council is so strong that it doesn’t happen.  The way to do that is through the sort of work Saker is doing on his blog.  By binding the US to act within international law and by upholding the authority of the United Nations and of the Security Council this agreement has made that task easier.

17th August 2013

Here is Saker’s response to my comment with much of which I agree.

http://vineyardsaker.blogspot.co.uk/2013/09/the-recent-kerry-lavrov-agreement.html

Here is my response.

Dear Saker,

There is so much in what you say that I completely agree with.  The difference between us is actually very small. You are quite right in questioning the total bad faith of some people within the US government.  You are also absolutely right in saying that they will try to spin any agreement to mean what they say even if doing so goes against the plain meaning of the words.  Indeed they are trying to do that very thing now as they claim that the agreement requires a Chapter VII Resolution when of course it does no such thing.  They are also busy spinning yesterday’s report of the UN inspectors to say that it “conclusively proves” that the Assad regime carried out the gas attack on 21st August 2013 when the report itself is careful to do no such thing.  Here by the way is the report.

http://www.un.org/disarmament/content/slideshow/Secretary_General_Report_of_CW_Investigation.pdf

I would by the way add that there is nothing new in this.  If you go back to the 1988 Geneva Accords agreed prior to the Soviet pull out from Afghanistan you will find that the US again did the same thing.

The Russians for their part can have absolutely no illusions about this.  Remember they have had more history of trying to negotiate with the US than anyone else.

However the point always to remember is that the US is in a position to attack Syria at any time.  The question is whether this agreement makes such an attack easier or more difficult to justify given that the only real constraint on the US is US public opinion,  The short answer in my opinion is that it unequivocally makes it much more difficult.

The US public has shown that it does not want to become involved in a war in Syria.  Setting up a process for Syria’s chemical disarmament removes the one pretext for such a war that the hardliners had latched onto.  Putting in place in Syria an inspection team that will be partly under Russian control and which will include Russian personnel makes it more difficult for this process to be manipulated and easier to ensure that this process is carried out properly.

Having said that there is absolutely no room for complacency.  We are going to have a battle over the next few days over the text of the Security Council Resolution.  There will be a struggle over the composition and control of the inspection team itself and of its work.  More weapons will be sent to the rebels and attempts will be made to make conditions for the team more difficult to justify pulling it out.

The battle will be fought diplomatically (by Russia and China) and politically by people like us.  This is far from over yet.

By the way don’t underestimate yourself or the importance of what you do.

THE MOSCOW MAYORAL ELECTION

Here for anyone interested are my views on the Moscow mayoral election.  I have posted up essentially the same comments on Kremlin Stooge and on the Russia Debate.  I basically made the same points in the debate on RT earlier today upon which I appeared with Dmitri Babich, with whose views incidentally I find myself in wholehearted agreement.

The final result was that Sobyanin got 51.3% and Navalny 27.2%, so there’s no first  round.  Navalny’s total is slightly below what most of the exit polls gave him except bizarrely the exit poll by Golos, which I believe gave him 26%.

Here are my comments:

1. The turnout at 33% was way below expectations.  Before anyone starts criticising the  polling agencies, Levada gave Navalny 10% of its total respondents, VTsIOM 11% of its total respondents and Ipsos 13% of its total respondents.  Navalny’s final result was around 9% of the total Moscow electorate.  This is actually in line with or slightly below the figures the polling agencies were giving him.  The fact that his final figure was slightly below his polling figures is as one would expect since even amongst the most motivated body of voters there will always be some who fail to turn up and vote on election day.  What the result nonetheless shows is that Navalny’s supporters were highly motivated and came out to vote for him in a way that no other group of voters did for any other candidate.  The reason Navalny’s percentage of the vote was so much higher than anyone expected is because his voters were more motivated than the others, which had a big impact in an election with a low turnout.  The forecasts the polling agencies were giving for the final result were based on an expected 50% turnout.  It’s clear that it was disproportionately Sobyanin’s supporters who remained at home whilst it was Navalny’s supporters who turned up.  Had more of Sobyanin’s voters turned up bringing turnout up to the expected range of 50% Navalny’s final vote would have been in the region of 18-20% that most of the opinion pollsters were giving him before the vote.

2. The reason so many of Sobyanin’s supporters remained at home is because of Sobyanin’s lack of skill as an electoral candidate, which meant that his supporters were simply not motivated enough to come out to vote for him in their full numbers.  I have discussed Sobyanin’s limitations as a candidate previously during the election on the Russia Debate and Kremlin Stooge.  Sobyanin’s problem is that he is a functionary not a politician.  Since he is not a politician in this election he barely campaigned at all.  Bluntly I don’t think he knows how to. Certainly he has entirely failed to create the sort of formidable political machine that Luzhkov his predecessor did.  As far as I can see the only things Sobyanin actually did during the election was intervene repeatedly to keep Navalny in it.  That of course automatically negated any criticisms of Navalny he might have made. Why take seriously such criticisms if the person making them repeatedly goes out of his way to help the person he is criticising?  On election day Putin said that cities should be run not by politicians but by apolitical technicians.  That’s all very well but elections are politics and politics needs politicians.  If Putin thinks cities should be run by technical specialists then he should simply appoint them and not expect them to run for office or stand for election.

3. That Navalny failed to force a run off in this situation despite the low turnout and despite Sobyanin’s limitations as a candidate confirms that the liberals in Moscow inhabit a political ghetto.  Yavlinsky in the Presidential election of 2000 and Prokhorov in the Presidential election of 2013 both got the votes of around 12% of Moscow’s registered electorate.  Navalny got less than this in an election where his support was mobilised and that of his opponents wasn’t. An indicator of the problem liberal candidates face even in Moscow is that probably because he is a liberal Navalny consistently got the most negative responses of any candidate in the election, even more than the LPDR candidate Degtyarev who came across to me as an intelligent clown. In the discussion programme on RT I have just appeared on, Dmitri Babich put Moscow’s liberal electorate at 15-20%.  Based on actual votes it is rather less than this, probably in a range of 12-15%.  The fact that it makes more noise and is more motivated than the remaining 85-90% of the Moscow electorate should not mislead as to its size and electoral limitations.

4. This means that no effective challenge to this result or colour revolution in Moscow will take place.  Quite apart from the fact that this was a conspicuously clean election as almost everyone apart from Navalny admits, with the support of just 9% of  the Moscow electorate (around 630,000 votes) Navalny simply lacks the numbers for that.  Navalny may be able to bring out a couple of thousand supporters but the core of any protests will probably remain the 20,000 or so who form Moscow’s regular protest community.  Navalny is nonetheless obliged to challenge the result not because it is politically sensible for him to do so (it isn’t) but because a failure to do so would dismay his supporters.  A failure to challenge the result would be tantamount to admitting that he has the support of only 9% of Moscow’s electorate.  That might suffice for a conventional politician but for the Messianic figure that Navalny sets out to be that simply will not do.

5. I doubt this result is anywhere near good enough to enable Navalny to force the authorities to modify the Judgment or the sentence in the KirovLes case.  As I said in my long post on the subject, I believe Navalny was properly convicted after a fair trial which the authorities were extremely careful to conduct by the book.  I don’t think they will now intervene in a way that would jeopardise all that by appearing to confirm that his was a politically motivated case after all.  On the basis of this result I don’t think they will feel under any real pressure to do so.

6. Further afield, I don’t think the Roizman result in Yekaterinburg has any wider political significance despite such claims made about it in the Guardian today.  I have always spoken against restoring direct elections for mayors and governors in Russia.  I think doing so was a regressive step rushed out as a panicked and unnecessary response to the 2011 protests by Medvedev who like Sobyanin is also less a politician than a functionary.  The low turnout even in Moscow (the most politicised city in the country) shows how little actual demand for such direct elections there really is.  I have always felt that the combination of low turnouts typical in regional elections everywhere together with a poorly developed party system risked throwing up eccentrics and mavericks that Russia can ill afford whilst draining political and electoral energy out of local councils, which in a well functioning parliamentary system should work as the building blocks and training areas for political parties.  I am afraid the result in Yekaterinburg is just what I feared  Having said this I don’t see Roizman in far away Yekaterinburg as any sort of threat or challenge to Putin or the government even if he wants to be, which I am sure he doesn’t.  As for Roizman’s political and economic views, I doubt he has any and to the extent he does I doubt they were the reasons anyone voted for him.

7. Lastly, for Russia, these elections have been a good thing.  They refute the claim that Putin has “lost” Moscow.  On the contrary in a conspicuously clean election against the best candidate the liberal opposition has to offer in what is by a long distance Russia’s most politically liberal city, Putin’s candidate won in the first round despite his all too obvious limitations.  At the same time the fact that in Moscow and elsewhere there have been properly contested and conspicuously clean and fair elections ought to refute the claim that Russia is any kind of dictatorship or sham democracy.

AN ATTACK ON SYRIA IS AGGRESSION – PUTIN’S INTERVIEW WITH ASSOCIATED PRESS

Normally I would not make a single interview the subject of a post.  I am going to do so in relation to the interview Putin gave to the Associated Press today because I think it is an important interview in itself in the context of the Syrian crisis and because it is not being reported correctly.

The interview has been reported as signalling a weakening of Russia’s stance on Syria and as containing a hint that Russia might be preparing to back down and to agree to military action against Syria provided this is done with the agreement of the UN Security Council.  This is a misrepresentation of the interview.  Here is what Putin actually said:

“AP: What would Russia’s position be if you became convinced that it was by the government of Syria, would you agree to military action?

Putin: I do not exclude this, but I would like to draw your attention to one absolutely key aspect.  In line with international law, only the UN Security Council could sanction the use of force against a sovereign state.  Any other pretext or method which might be used to justify the use of force against an independent sovereign state is inadmissible and can only be interpreted as an act of aggression.”

These words show that Putin was simply being careful to avoid the trap the French President Jacques Chirac fell into at the time of the Iraq  crisis in 2003.  In the run up to the Iraq war and whilst discussions on a possible Security Council Resolution authorising an attack on Iraq were still underway, Chirac appeared to say that France would vote against such a Resolution under any circumstances.  This allowed the British government to claim that there was no point in going to the Security Council to seek a second Resolution because the French would veto it anyway regardless of what the facts were.

In reality Chirac’s words were misrepresented but the damage was done and Blair and his supporters were able to misuse Chirac’s words to get their way in the British parliamentary debate held on the eve of the attack on Iraq.

Of far more importance than Putin’s words about a hypothetical Security Council authorisation of military action against Syria was his careful use of the word “aggression” to define an attack on Syria that is not authorised by the UN Security Council.

“Aggression” is an international crime.  The Nuremberg Tribunal said this explicitly when it defined Crimes against Peace:

“(I) Planning, preparation, initiation or waging a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (I)”.

Moreover in the famous words of Robert H. Jackson, the chief US prosecution of the Nuremberg Tribunal

“To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing from other war crimes in that it contains within itself the accumulated evil of the whole”.

Putin is not merely the President of Russia and a politician who choses his words carefully.  It often gets forgotten that he is also a trained lawyer.  By using the word “aggression” to describe an attack on Syria without authorisation from the UN Security Council he undoubtedly means what he says.  Since that is precisely what is being proposed what Putin has just made clear is that in Russia’s view it is the US and its allies who are currently posing the threat to peace by their conduct of the Syrian crisis.  In passing I would add that this is also the view of the Vatican and of parts at least of the UN Secretariat.

Putin has also gave in the interview a broad hint that in the event of such an “aggression” Russia would unfreeze deliveries of S300 missiles to Syria in order to help Syria defend itself.  Though Putin obviously did not say so, it is likely that delivery of S300 missiles would be only part of the military assistance Russia would provide Syria in the event of an attack.  In other words the pending US attack on Syria is going to intensify Russian military deliveries and support for Syria.

On the broader issue of Russia’s stance in the Syrian crisis and in the light of repeated comments from Patrick Armstrong and me to the effect that Syria is not Russia’s ally and that Russia is not defending Syria’s government but international law, here is what Putin said:

Putin: We aren’t defending the government.  We are defending something completely different.  We are defending the contemporary order of the world.  We are defending the modern international order.  We are defending the discussion of the possible use of force exclusively within the confines of international order and international rules and international law.  That’s what we are defending.  These values are absolute.  When issues related to the use of force are solved outside the UN and the UN Security Council, the danger arises that such illegitimate decisions could be made against anyone under any pretext…..”

Putin went on in the interview to discuss how precisely such a pretext was used to justify the attack Iraq.

As I have said previously (see my previous comment http://mercouris.wordpress.com/2012/06/22/russia-and-syria/) given how often Putin and Medvedev and Lavrov have explained Russia’s stance in the Syrian crisis, it really is astonishing that so many people including it seems from recent news reports Prince Bandar and the Saudis still refuse or are unable to understand it.

Lastly, Putin also confirmed what I and others (see my previous comment http://mercouris.wordpress.com/2013/08/28/syria-an-illegal-attack-intended-to-prevent-a-un-investigation/) have been saying all along, that the proper way forward is for there to be a full investigation of the incident on 21st August 2013 near Damascus by the UN investigators who can then provide details of their findings to the Security Council, which will then decide what to do.  As Putin made clear the interview and as should by now be obvious, “intelligence assessments” based on secret and unexplained methodologies, which contain no evidence but which are built almost wholly on inference, are no substitute for a proper impartial and independent investigation carried out by trained and professional investigators on the spot.

Putin’s specific words were as follows:

Putin: We will be convinced by a deep and specific probe containing evidence that would be obvious and prove clearly what means were used by whom.  After that, we will be ready to take the most resolute and serious action”.

Elsewhere in the interview he made it clear that he expected this investigation to be carried out by the UN inspectors currently working in the country.

Russia and China have now both called for such an investigation.  The point has often been made that the UN inspectors at present are merely authorised to establish whether chemical weapons have been used, not who used them.  Earlier comments by the Russian foreign minister Sergei Lavrov have confirmed that those responsible for limiting the remit of the UN investigators in this way are not the Russians and the Chinese but the western powers.  From Putin’s latest comments it is now absolutely clear that those who are preventing an impartial and independent investigation from taking place to ascertain what really happened and who was responsible are not Russia and China or indeed the government of Syria but the three western powers on the UN Security Council: the US, Britain and France.  If the western powers really want to find out what happened near Damascus on 21st August 2013 and to find out who was responsible, they would authorise the impartial and independent UN investigation to which Russia and China both agree and which is therefore on offer.  It is extremely worrying to say the least that they do not.  In the meantime it is essential to say that the reason such an independent investigation of the incident is not happening is not because of Russian “obstruction” or Russian or Syrian “intransigence” or because the UN Security Council is “paralysed” but because the western powers don’t want it.  It is unfortunately also clear that the reason they want to attack Syria instead is not because they want to “punish” Syria for its use of chemical weapons but because they do not want an impartial and independent investigation of the incident on 21st August 2013 to take place and are using military action or the threat of military action to prevent it from taking place and so that they can instead impose on everyone else their own version of what happened.

Lastly I am sorry to say that this interview serves as a further example of poor news management or even news manipulation.

The full text of Putin’s interview was briefly available in an easily accessible form on the Associated Press’s website, which is how I was able to make the above notes.  After a short time it appears to have been deleted.  I have made many efforts to find it but cannot do so, which is why I cannot provide a link to it.

In place of the actual text of the interview, Associated Press now provides “summaries” of the interview, which report the interview in accordance with Associated Press’s own assumptions.  It is these “summaries” rather than the interview itself, which are now being used by the rest of the media for their reports of the interview.  These reports in turn add a further layer of interpretation to what Putin said.  The result is that we get further and further away from what Putin actually said.  This in turn leads to the absurd situation we saw this morning of the British government “welcoming” signs that Putin’s “support for Assad” is “weakening” and that Russia “may be willing” to “support military action via the Security Council”, when none of this in fact is true.

An accurate summary of Putin’s words would be as follows:

(1) the perpetrators of the incident near Damascus and the very nature of the incident are unknown.  The incident should be thoroughly and impartially investigated by the UN inspectors to determine the truth.  The various “intelligence assessments” published by the governments of the US, Britain and France are evidentially worthless since they are built on inference and do not provide the evidence on which they are based;

(2) no action should be taken before the investigation is completed and the investigators have reported their findings and conclusions to the UN Security Council.  The only body authorised to act on the basis of those findings and conclusions is the UN Security Council;

(3) any action taken in the absence of authorisation by the UN Security Council is illegal and constitutes “aggression” and would therefore be a war crime and a Crime against Peace;

(4) in the event of such “aggression” Russia will act in accordance with its international duties and obligations and its security interests.  This may include stepping up arms supplies and conceivably other support to Syria to enable Syria to defend itself.

Postscript: Thanks to the efforts of Mark Chapman and the person I know as Peter I can now provide a link to the complete transcript of Putin’s interview with Associated Press.

http://www.bigstory.ap.org/article/aps-interview-president-vladimir-putin

Apparently the transcript was shifted to a section of Associated Press’s website marked “Big Story”.  I have been struggling today with internet connection problems, which have included accessing websites, and this may be why I struggled to find the transcript.

 

 

SYRIA – AN ILLEGAL ATTACK INTENDED TO PREVENT A UN INVESTIGATION

No one should be under any illusions that the attack on Syria which will take place shortly is illegal and is intended to prevent an impartial investigation by the UN inspectors of what actually happened near Damascus.  In the light of the forthcoming attack on Syria and in view of the forthcoming meeting of the Security Council later today (Wednesday 28th August 2013) and of the parliamentary debate in Britain tomorrow (Thursday 29th August 2013) I have decided to post a number of comments I have made on various threads discussing this crisis on the Russia Debate and on Kremlin Stooge that explain this and which set out my views.  I have also published a comment by Anatoly Karlin to which I have responded.

Friday 24th August 2013

The reality is that (NB: contrary at that time to claims by the US government and western media reports – AM) Russia has asked the Syrian government to allow an inspection of the area where the attack was committed and the Syrian government according to the Russian Foreign Ministry and from the tone of the reports carried by Syrian government’s news agency Sana seems to have agreed to this.

http://rt.com/news/syria-chemical-attack-cooperation-841/

http://sana.sy/eng/22/2013/08/23/498754.htm

A point that western media demands for the Syrian government to “allow” the UN inspectors into the area of the gas attack wilfully ignore is that the area where the attack seems to have taken place is rebel controlled.  It is therefore the rebels not the government who control access to it.  The onus should therefore be on them and not just the government to allow the UN inspectors in.

I do not know who carried out these attacks but as many have pointed out if it was the Syrian government then the timing – a year apparently to the day after Obama’s “red lines” speech and just after the UN inspectors arrived in Damascus – would in that case be incredibly stupid to the point of being bizarre.  As has also been correctly pointed out, an attack of this sort now when the government seems to be winning on the battlefield also appears to make little sense.  By contrast one can see why the rebels at a time when they are coming under pressure might want to stage an incident of this sort that they can blame on the government.  I would add that they might also feel a need to shift the spotlight back on them and away from what has been happening in Egypt.

What many people don’t of course know is that if one follows the accounts of the Syrian conflict provided by Sana then one would know that the Syrian government has been alleging incidents of use of chemical weapons by the rebels practically every week for the last few months.  Obviously I have no idea how true these claims are.  However I do find it depressing that the government’s claims of use of chemical weapons by the rebels get no attention whilst rebel claims (such as this one) get saturation coverage.  There is no reason to give greater credence to any side in this war but there is at least some corroboration of rebel use of chemical weapons: not just the famous comments of Carla del Ponte but also an incident when some rebels were discovered in Turkey in possession of a sarin gas canister a few months ago.  News of that incident was suppressed even though it was accompanied by stories that a gas attack on a Turkish town that would be blamed on the Syrian government was planned.

It also puzzles me why western commentators like Shashank Joshi (NB: In this article in the Daily Telegraph http://www.telegraph.co.uk/news/worldnews/middleeast/syria/10259931/Its-hell-in-Syria-but-Uncle-Sam-isnt-going-to-come-riding-to-the-rescue.html – AM) seem so unwilling to accept that the Syrian rebels are capable of carrying out false flag operations even when these kill their own people.  This is after all a rebel movement amongst whose commanders is a cannibal who still commands his unit and who has come in for barely any criticism from the rebel leadership even after his activities were broadcast in a film shown internationally, which uses suicide bombers and whose members cheerfully behead children if they discover them committing blasphemy.  Given how utterly ruthless this movement is why assume they would stop at false flag operations involving sarin gas?

Given that the US and its allies have been “demanding” that Syria allow the UN inspectors into the area of the alleged gas attack (something which as I have said Syria has always said it would do) one might presume that they would welcome the announcement yesterday of an agreement between the Syrian authorities and the UN inspectors for the UN inspectors to inspect the area of the gas attack.  Nothing of the sort.  Instead the ether last night and this morning is full of statements about how this is “too little and too late” and how a strike can now be made against Syria with UN Security Council authorisation and how such a strike will now happen within the next 2 weeks.

My conclusions?  Far from being happy that the UN inspectors are going to visit the area in Syria of the alleged gas attack, the US and its allies are alarmed about it precisely because Syria’s consent to such an inspection most likely means that the Syrian authorities were NOT responsible for the gas attack.  The very last thing the US and its allies want in this situation is for the US inspectors to turn round and say that it was the rebels who were responsible for the gas attack.  The result is that having called for the UN inspectors to visit the scene the US and its allies are now determined to prevent a proper investigation at all costs (no investigation of a crime scene can be completed within 2 weeks.  Any investigators knows that is impossible).  That is why plans for an attack are being brought forward and declarations are being made by people like Hague that the agreement of the Security Council is not needed before such an attack takes place.

Does this remind anyone of Iraq and of Hans Blix and the UN inspectors begging to be given more time?  Truly history sometimes repeats itself and not always as farce but sometimes as still greater tragedy.

PS: One thing I would say is that Ban Kyi Moon has rushed out a very strong statement this morning calling for the inspection to do its work without delay and without obstruction.  The British media spin is that this is a criticism of the Syrian government.  To me it reads more like criticism of the US and its allies.  Ban Kyi Moon has been a loyal servant of the US up to now.  Could this be the moment he has found his dignity?

PPS: It is very striking that one key US ally, Germany, is staying aloof from all the war talk.  It is becoming a consistent pattern that Germany under any government is increasingly distancing itself from US policy and is quietly aligning with Russia and China on major international issues.

Sunday 25th August 2013

Amid all the fire and thunder of war preparations the Syrian government and the UN inspectors have now agreed the terms of the UN inspection of the site of the alleged gas attack.

http://sana.sy/eng/21/2013/08/25/499082.htm

What needs to be made clear is that as I said in the comment I posted on Friday 23rd August 2013 the Syrian authorities agreed to allow the inspectors access to the area several days ago. Demands that the Syrian authorities allow such access, which have been noisy on the ether over the last few days, are therefore completely misplaced. The reason the inspectors have not visited the site is because the area is rebel controlled and it is the rebels who therefore control access to it. I gather that the UN inspectors have themselves been unwilling to enter an area that is under rebel control and the sight of fighting and where they may be unsafe.  What the agreement announced today suggests is that they have now been provided with the safeguards they feel they need.

All of this fuss over the UN inspection gives anyone with any memory of the Iraq conflict a dreary sense of deja vu. Then as now the US and its allies were shrill in their demands that the regime “cooperate” with the UN inspectors. Then as now the US and its allies nonetheless forthrightly anticipated what the UN inspectors would say before the UN inspectors had any chance to do their work. Then as one suspects now the failure of the UN inspectors to come up with any “evidence” implicating the regime in WMD activity was construed not as a sign that the regime was not undertaking WMD activity but instead as “proof” that the regime was “not cooperating” with the UN inspectors.

In the case of Iraq when it was all over it turned out that the regime had been cooperating with the UN inspectors after all and that its protestations that it was not engaged in WMD activity were true. One wonders what will now happen in Syria?

Sunday 25th August 2013

The latest news from Syria is that “unidentified snipers” opened fire on the convoy carrying the UN inspectors to the area where the gas attack is supposed to have happened.  The convoy had to turn back to the safety of the government’s lines.  Apparently a further attempt will be made to reach the area later today.

Though no one is saying so, this was clearly an attempt to prevent the UN inspectors from doing their work.  Since it was the government that arranged to send the UN inspectors to the area the snipers were almost certainly rebels.  That is exactly as one would expect.  The Syrian government’s agreement to cooperate in full with the UN inspectors has caused panic amongst the rebels and their western and Arab backers because they know or guess that a proper, impartial investigation is likely to prove that what happened was indeed a false flag event staged by the rebels themselves.  Thus everything is now being done to obstruct the UN inspectors so as to prevent an investigation from taking place whilst ridiculing the investigation (eg. by saying that the UN inspectors will be unable to say who carried out the attack – why not?- or that the crime scene has been “degraded by artillery fire” – really?) before it’s even started.  This of course is the same investigation by the UN inspectors that the US and its allies pretended they were calling for.

As I think is fairly obvious, what the Syrian government’s agreement to cooperate with the UN inspectors has done, is actually hasten western preparations to attack Syria, this being ultimately the only way to prevent the UN inspectors from their doing their work.

Monday 27th August 2013

Before we discuss the implications of the attack that is now surely coming, it seems to me that it is important to clarify what is happening.

As I said in my comment on the specific thread about the alleged Syrian gas attack, it is simply untrue that the Syrian government refused the UN inspectors access to the site of the alleged gas attack.  The area in question is controlled by the Syrian rebels and it is they and they alone who can grant or deny access to it.  What has triggered the war talk of the last two days is (1) the discovery by the Syrian army of physical evidence that appears to link the gas attack to Saudi Arabia and the rebels and (2) the agreement on Saturday between the UN inspectors and the Syrian government for a full inspection and investigation of the relevant area to determine what actually happened.

In other words the purpose of the coming attack is not to punish or deter the Syrian authorities from using chemical weapons.  It is to prevent a proper investigation by the UN inspectors that might find out what did actually happen.

That this is so is confirmed by the events of the last few days.  When news of the attack first appeared Obama gave an interview to CNN in which he appeared to say that there would have to be an investigation of what happened.  The US supported a decision by the UN Security Council that supported the Secretary General’s decision to carry out an investigation of the incident to obtain “clarity” about what happened.  Concurrently Lavrov and Kerry both released a joint statement saying that there needed to be an “impartial investigation” to determine what happened.  Contrast that with Kerry’s statement of yesterday in which, just as the investigation is about to start, he declares that it is “undisputable” that there was a chemical attack and that the Syrian authorities were behind it.  What is the point of the UN and the US calling for an investigation if the US government has already declared in advance what the “truth” is?  The UN inspectors might just as well pack their bags and go home.

What has clearly happened is that the US initially called for an investigation because it assumed that the Syrian authorities were responsible for the gas attack.  The US accordingly assumed that either the UN investigation would confirm this or that the Syrian authorities to conceal their guilt would prevent the investigation from taking place.  When it became clear that the Syrian authorities on the contrary were willing to cooperate with the investigation and when evidence started to come to light that if there was a gas attack it was most likely the rebels who were responsible, the priority abruptly shifted to stopping the investigation at all costs.  That is why Kerry has declared the Syrian authorities’ guilt “undisputable”, why the US has cancelled its meeting to discuss Syria with the Russians and why an attack will now take place.

For the rest, let us also be clear that the attack that is now coming is a gross violation of international law.   That this is so is clearly confirmed by the wording of the UN Charter.  Article 2(4) of the UN Charter says

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”.

Article 39 of the UN Charter further says

“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

Article 51 of the UN Charter further says

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.  Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the prese nt Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

In other words the only body competent in international law to authorise military action is the UN Security Council except for the purpose of self defence.  The so called “Responsibility to Protect” doctrine does not affect or limit the UN Security Council’s exclusive right to authorise the use of force in any way.  Rather it simply set out certain criteria and procedures that need to be followed before the UN Security Council may authorise military intervention in the internal affairs of a Member State.

Not only will the pending attack be made without the authority of the UN Security Council, which renders it illegal under international law, but in this case the violation of international law and of the prerogatives of the UN Security Council is especially gross because the UN Security Council is already involved, having called just 5 days ago for “clarity” on this question by supporting the UN Secretary General’s intention to undertake an investigation, which is now underway.  The attack is therefore being prepared in order to subvert a purpose authorised by the UN Security Council, namely to obtain “clarity” about what actually happened through an impartial investigation of the incident by the UN Secretary General’s inspectors.

Tuesday 28th August 2013

Anatoly Karlin said: According to this article, it really was the Syrian Arab Army that launched the chemical weapons attack. The information is based on an American interception of a panicked call from a Baath bureaucrat to the officer in charge of the CW batallion purportedly responsible.

If true, this changes things substantially. If it really was the SAA that was responsible, then public opposition in the West to a strike against Syria would not be so overwhelming than if it were unclear or a false flag (done either with or without the connivance of the US/UK/France). The Iraq comparisons would likewise fall away.

That said, it is rather sad that just as Assad was about to win he will be dealt a major setback, thus necessitating a further few months of fighting than would have otherwise been the case – assuming that it’s a limited strike, that doesn’t overspill into an outright drive for regime change on the Libya model.

My response:

If it does turn out that the Syrian army was indeed responsible for the gas attack then I agree.  I would also add that the stupidity of this would be extraordinary.

However, I would again add a word of caution.  If this telephone intercept is the only evidence that the Syrian army was responsible for the attack, then it is interesting that the US intelligence agencies that are undoubtedly responsible for planting this story have not yet told us what was actually said.  All we are told is that on the day of the attack a panicked official in the Defence Ministry telephoned a Syrian army officer to question him about what happened.  This might show:

1. That there was a planned use of chemical weapons, which however went horribly wrong thus eliciting the enquiries from the Defence Ministry official.  If so then the international consequences would be as you say; or

2. That chemical weapons were used but without the authorisation of the civilian leadership.  If so this would be important information and might actually sway opinion against an attack here in Britain; or

3. It might be that someone in the Defence Ministry was worried that there had been an unauthorised use of chemical weapons and urgently telephoned to find out what was happening and to ensure that this was not the case.  If so, then that is not inconsistent with subsequent enquiries ascertaining that this was a false flag incident.  Bear in mind that in that case an inquiry of some sort by the Syrian authorities on the day of the incident to find out in the aftermath of the attack what had happened is bound to have taken place.  This telephone call might just be part of that.

The other point to make is that this information has undoubtedly been shared with two people who have not been convinced by it.  They are

1. Ban Kyi Moon.  It is really very interesting that for the first time in his tenure as Secretary General Ban Kyi Moon has stood up to the Americans.  He came under intense pressure from the Americans over the weekend to withdraw the inspectors but categorically refused to do so.  He came under more pressure from them yesterday to do the same thing.  Yesterday Carney the White House spokesman said that since Syrian government complicity in the gas attack was “undeniable” an investigation of the incident by the UN inspectors had become “redundant”.  It is a virtual certainty that over the course of their discussions with Ban Kyi Moon the US will have told him about the telephone call which they say makes the case against the Syrian authorities “undeniable”.  Notwithstanding these comments and this information a clearly furious Ban Kyi Moon has issued a further statement today making it clear that he is not going to withdraw the UN inspectors and that the UN Security Council cannot be by passed but must be involved.  Incidentally as a result of Ban Kyi Moon’s comments I understand that a meeting of the UN Security Council to discuss the crisis will take place later today.

2. Ed Miliband, the leader of the Labour opposition here in Britain.  He had a meeting with Cameron last night in advance of the parliamentary debate tomorrow at which Cameron tried to obtain his support.  Again it is a certainty that over the course of their discussions Cameron would have shown Miliband such intelligence information as exists and that would have been bound to include the telephone call.  There are provisions for this in the British system whereby ministers can exchange information with senior opposition leaders under what are known as “Privy Council rules”, and this would be certain to have happened in this case.  Miliband was however obviously unimpressed by this information because he made it clear this morning that he wants the UN inspectors to be given time to finish their work.

My own guess is that the US did think when they intercepted the call on Wednesday that they had got themselves the “smoking gun”.  That is why they were happy up till Saturday to demand an investigation by the UN inspectors.  They naturally anticipated that because the Syrian authorities were responsible for the attack they would either obstruct the investigation or would be found out by the investigation.  When on Saturday the Syrian authorities on the contrary agreed to the investigation doubts set in, which is why we have seen such furious attempts to stop the investigation from taking place.

The way to establish the truth in this case is to let the UN investigation take its course.  If necessary the remit of the UN investigators can be extended either by the Security Council or by Ban Kyi Moon himself.  What is wholly wrong is for one party in this matter to try to impose its version of the truth on all others before the investigation has taken place and to use or threaten force in order to do that.  That is clearly both legally and ethically wrong.  If it turns out following a full and proper investigation that the Syrian authorities are indeed the guilty party then they will have to bear the consequences.  Until then unilateral action is both illegal and unwarranted.

PS: Since writing the above, I have learnt from the British media that all this intelligence including importantly this intercepted telephone conversation comes from Israel.  Obviously the mere fact that intelligence originates with Israel doesn’t mean it is untrue.  However given that the Israelis undoubtedly have an interest in this conflict the fact that they are the source of this information means that it must be treated with caution.  As I said, the only party competent to carry out a proper impartial enquiry are the UN inspectors and they must be given time to carry out their work.

29th August 2013

The British government has now released a letter from the head of the Joint Intelligence Committee setting out what it says is the assessment of its intelligence agencies in relation to the alleged chemical attack near Damascus last Wednesday.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235094/Jp_115_JD_PM_Syria_Reported_Chemical_Weapon_Use_with_annex.pdf

This appears to be based on little more than YouTube videos that were uploaded by the Syrian opposition.  We are told that there is classified evidence that supports the conclusions of the assessment but of course we are not told what that is.  Presumably it is the evidence from the Israeli intelligence sources that were discussed previously.

On the strength of this “evidence” (such as it is) the British intelligence agencies can do not better than say that it is “highly likely” that the Syrian authorities were responsible for the alleged gas attack near Damascus last Wednesday.  “Highly likely” is quite different from “undeniable”, which was the word used by Secretary of State Kerry on Monday.  It means that the issue is open to doubt, which is a further reason to wait the outcome of the inquiry that is being undertaken by the UN inspectors, which is the only inquiry that is in a position to determine the truth.

The British government has also published a summary of what it says is the legal advice the Attorney General has provided that says that it is entitled to take military action without the authorisation of the UN Security Council.  Supposedly this is provided for by the “Responsibility to Protect” doctrine.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/235098/Chemical-weapon-use-by-Syrian-regime-UK-government-legal-position.pdf

The summary refers to no authority or precedent for this proposition.  This legal advice is wrong.  That is not only my opinion.  It is also the opinion of the UN Secretary General and of various foreign governments including most outspokenly the government of Russia.

The “Responsibility to Protect” doctrine was established by a UN conference in 2005 to set out certain situation where the international community might intervene in the internal affairs of a UN Member State.  However it is quite clear in international law that the only body competent to authorise such action in those circumstances is the UN Security Council or, when the UN Security Council is deadlocked, the UN General Assembly under the “Uniting for Peace” mechanism.  The “Responsbility to Protect” doctrine is most definitely not a device to circumvent the UN Security Council or the UN General Assembly so that certain powerful states can take unilateral military action without properr authorisation.  It is extremely worrying that the British government is now trying to argue that it is.  If the British government truly believes the international community has a responsibility to act in Syria under the “Responsibility to Protect” doctrine but is being prevented from doing so because of deadlock in the UN Security Council, it should demand a meeting of the UN General Assembly.  That it is not doing so is the clearest possible sign that the British government knows that contrary to what it says there is no majority in the UN General Assembly for military action against Syria but rather overwhelming support for a proper investigation of the incident by the UN inspectors presently in the Syria.

Lastly, I would like to deal with a question many have asked, which is if the UN inspectors conclude that a gas attack took place and after their remit is extended determine who was responsible what should happen next?  The short answer is that a deliberate gas attack on a populated centre is a war crime.  The correct procedure is for the UN inspectors to report their findings to the UN Security Council, which in turn can refer the case to the International Criminal Court.  The International Criminal Court would then investigate further and indict those it considered prima facie responsible.  Though the persons so indicted might resist arrest, past experience shows that eventually such indictments are effective.

It is an unfortunate consequence of the way in which international law has become polluted in recent years that even the mechanisms of the International Criminal Court have been misused for partisan purposes so their impartial execution can no longer be relied on.  However if the question is what should be done legally in this situation, that is the answer.

30th August 2013

The US government has now released its own intelligence assessment of the chemical weapons attack.

http://www.whitehouse.gov/the-press-office/2013/08/30/government-assessment-syrian-government-s-use-chemical-weapons-august-21

I find it scarcely more impressive than the British assessment, which failed to persuade the British Parliament yesterday.  Some of the information it refers to is ambiguous to say the least.  For example it refers to a Syrian military unit involved in chemical warfare being deployed in the area and gas masks being passed around.  That is interesting but inconclusive and might suggest that the Syrian military feared a chemical weapons attack rather than planned one.  Though the assessment says the Syrian opposition has not used chemical weapons, as I have previously discussed there is evidence to the contrary.

Ultimately it appears that the case against the Syrian government turns almost entirely on the intercepted telephone call between the senior Syrian military official and the Syrian officer, which I discussed previously.  Significantly the intelligence assessment does not provide a transcript of what was said.  We cannot therefore say how accurate the assessment’s description of the conversation is.  Moreover, as is well known, telephone conversations overheard by outsiders can often be misunderstood.

Overall this assessment seems a very weak basis upon which to launch an attack even if such an attack was legal, which it is not.  On Monday 26th August 2013 Kerry said that the Syrian authorities’ responsibility for the attack was “undeniable”.  That is clearly wrong and the intelligence assessment concedes that it is merely “highly probable” not “confirmed”.  In other words there is doubt, given which there is no reason to rush into action before an impartial investigation is carried out by the UN inspectors on the ground.

Monday 2nd September 2013

 

The French government is the latest to release its intelligence assessment.

http://www.gouvernement.fr/sites/default/files/fichiers_joints/syrie_synthese_nationale_de_renseignement_declassifie_02_09_2013.pdf

Essentially, what it says is

(1) the Syrian government has chemical weapons;

(2) the Syrian government is known to have used chemical weapons previously in April;

(3) the rebels lack the capability to carry out the kind of chemical weapons attack that happened in Damascus on 21st August 2013;

(4) therefore the attack on 21st August 2013 must have been the work of the Syrian government.

This is a chain of inference not evidence.  In fact I would go further and say that this is a case of piling one non sequitur upon another with the danger that the whole structure falls apart if any part of the chain is broken.  That is by no means impossible.  We know for example that there is fierce controversy about who actually was responsible for the chemical attack in April.  Moreover there is circumstantial evidence that the Syrian rebels do have chemical weapons and have used them.  Moreover as Yalensis on Kremlin Stooge has correctly pointed out, if amateur terrorists were able to launch a sarin attack on the Tokyo suburb that suggests that the capability for carrying out the sort of attack we saw near Damascus is not beyond that of a well armed rebel movement that gets help from countries like Saudi Arabia.

Let me say it again, I do not know what happened near Damascus on 21st August 2013.  However it seems to me that the problem western governments (including I suspect some people within their intelligence services) do not understand is that after the repeated intelligence failures of recent years eg. the genocide in Kosovo that never happened, the weapons of mass destruction in Iraq which never existed, the Russian “aggression” on Georgia which turned out to be a Georgian attack, the massacres in Libya which never took place and the Iranian nuclear bomb which is always some years in the future, in the absence of concrete evidence no one trusts these “intelligence assessments” any more.

What needs to happen in this case is for there to be an impartial, independent investigation of what actually took place by the UN inspectors Syria has allowed into the country and who are therefore in a position to do this on the spot.  Their remit should be extended to allow such an investigation.  China today said it supported such an investigation and I have no doubt Russia does too.  In the absence of such an investigation all these “intelligence assessments” convince no one (I suspect not even those who want an attack) and are seen essentially as the propaganda that they are.

ALEKSEI NAVALNY – AN EXAMINATION OF HIS TRIAL AND CONVICTION

On 8th December 2008 following a private meeting the Russian President Dmitri Medvedev nominated Nikita Belykh, a well known Russian liberal politician and former leader of the Russian liberal party the Union of Right Forces for the post of Governor of the Kirov Region in central Russia.  Belykh’s subsequent appointment set in train a sequence of events which on 18th July 2013 led to the conviction by the Kirov Regional Court of Aleksei Navalny, the well known Russian opposition politician and blogger, for conspiracy to commit embezzlement contrary to Article 160 of the Criminal Code of the Russian Federation.

Navalny’s conviction and his sentence of 5 years imprisonment, has provoked angry reactions.  In Moscow several thousand of his supporters protested near the Kremlin.  Scattered protests also took place in some other Russian cities.  The United States government has expressed its “disappointment” with the verdict.  The European Union has said the case highlights concerns about the rule of law in Russia.  The rapporteurs of the Parliamentary Assembly of the Council of Europe have condemned his 5 year sentence as disproportionate and have claimed that his prosecution is political.

Media comment at least in Britain has been equally harsh.  In an editorial suggestively titled “misrule of law” published on 11th July 2013, a week before the verdict, the Guardian claimed that Navalny’s prosecution was a device to silence a prominent critic of the Russian government saying that “….it goes without saying that the charges are bogus”.

http://www.guardian.co.uk/commentisfree/2013/jul/11/russia-navalny-misrule-law-editorial?INTCMP=SRCH

Similar comments have appeared in the Times and in the Financial Times.

Navalny himself has claimed that the prosecution against him is politically motivated.  He has claimed that the prosecution against him betrays a fundamental ignorance of how business is conducted in a free market economy.  He has also claimed that the prosecution is entirely based on the evidence of three persons who have a personal grudge against him and whose evidence is unreliable.

Navalny’s criticisms have been taken up by others.  The charge against him is said to make no sense.  Yegvenya Albats, the editor of the Russian liberal magazine New Times, says his conviction spells the end of capitalism in Russia.  It is repeatedly pointed out that the case against Navalny was investigated previously but was then dropped.  That it was later resurrected is seen as proof that it is without merit and that the motive behind it is political.

It has also been pointed out that the case against Navalny was only resurrected by the Russian Investigative Committee at the personal insistence of Bastrykhin its chief whom Navalny has accused of illegally owning property in the Czech Republic.  Navalny’s prosecution is said to Bastrykhin’s revenge.

Support for these claims is said to be provided by certain comments made shortly before the trial by Vladimir Markin the spokesman of the Investigative Committee.

The purpose of this essay is to examine in detail the facts of the case and the conduct of the trial to determine whether any of these claims and criticisms are true.

Background

The Kirov Region is situated in central Russia along the river Vyatka.  It is one of the poorer regions of Russia.  The capital Kirov, like the Region, has retained the name it was given in the 1930s by the Soviet government commemorating the murdered Soviet politician Sergei Kirov.  Its pre revolutionary name was Vyatka.

Wikipedia lists timber as one of the main industries of the city of Kirov.  In 2008 at the time of Belykh’s appointment the timber industry in the Kirov Region was concentrated in a publicly owned enterprise known as KirovLes whose director was Vyacheslav Opalev.  KirovLes’s owner was the state property fund of the Kirov Region.  Its manager was a certain Arzamatsev.  I am not sure whether Arzamatsev was a local civil servant or a career official or whether he was also appointed to his post by Belykh.

KirovLes’s financial health at the time of Belykh’s appointment is the subject of dispute.  Belykh and Navalny claim its financial situation was bad and that it was heading for bankruptcy.  Karnaukhov, a local official with knowledge of KirovLes, argues its financial condition was sound.  I think far too much time and effort has been devoted to this question, which is of no importance.

KirovLes is an amalgam enterprise and collective.  It possessed a distinct legal personality and was vertically structured with Opalev as director in charge of the whole.  However it functioned as a federation of local collectives or enterprises (“levkhozy” – henceforth referred to as “filials”) under Opalev’s overall control but nonetheless allowed considerable operational autonomy and able to contract directly with customers.

Belykh brought with him to the Kirov Region a group of his own advisers.  The best known was probably Maria Gaidar, the daughter of Yegor Gaidar who as Acting Prime Minister of Russia in the early 1990s was responsible for Russia’s transition to capitalism.  Maria Gaidar had condemned Belykh’s appointment as “selling his soul to the Devil”.  Obviously she quickly changed her mind.  In July 2009 she was formally appointed Deputy Governor of the Kirov Region.

Others brought by Belykh to the Kirov Region to act as advisers included an individual known as Votnikov and Navalny himself.

The precise status of Belykh’s advisers was clarified by Belykh himself, by his deputy Sherchkov and by Maria Gaidar over the course of Navalny’s trial.  The advisers were unpaid and worked on a voluntary (“pro bono”) basis.  Their role was advisory.  They were not authorised to make executive or management decisions.  Navalny as adviser did not have his own office.  Most of his meetings were held in Sherchkov’s office.  At some point Navalny was offered a paid post with the Kirov Regional Government but turned it down.

Navalny’s status as an adviser to Belykh is clear but I cannot say the same for his remit (ie what he was supposed to do) about which I continue to be confused.  I do not know whether Belykh ever gave Navalny a document setting out his duties and the tasks he has been assigned.  Perhaps he did but as I have never heard of such a document being produced at the trial perhaps not.  It seems Navalny was given some sort of general brief to review and “analyse” conditions in the local timber industry and other industries and “to propose solutions”.  As will become clear Navalny interpreted this vague remit as a licence to meddle in the most detailed decisions, which fell completely outside his competence as an unpaid adviser.  If Navalny behaved like a loose cannon and if subsequent events bear a passing resemblance to a tale from Gogol much of the blame rests with Belykh for his failure to supervise Navalny and his other subordinates properly.

Whatever the precise nature of Navalny’s remit it is clear that it concerned KirovLes.  It is also clear that KirovLes over time became one of his main if not his main concern.  At the time Navalny was a relatively young man in his early thirties.  Nothing about his past up to that point marks him out as a person obviously competent to analyse the timber industry in the Kirov Region or “to propose solutions” for its problems.  Navalny had trained as a lawyer and had dabbled in various business ventures.  However he had no senior or professional management or consultancy experience or expertise.  Certainly he had no experience of the timber industry.  Navalny had however achieved a certain prominence in Russian liberal politics.  He seems to have made the acquaintance of some well known liberal politicians and personalities possibly including the former world chess champion Gary Kasparov, the economist Sergei Guriev and Belykh himself.  It seems likely that his appointment (like that of Maria Gaidar) was the result of his political connections.

Whatever the reasons for his appointment Navalny’s conduct in his post suggests someone either indifferent to his assigned task or seriously out of his depth.  I have seen no evidence that he made a serious effort to study KirovLes and its problems.  He did meet with Opalev but there is nothing to suggest that he acquainted himself with KirovLes’s staff or its business to any great extent.  It turned out during the trial that most of KirovLes’s senior managers or at least the managers of the filials either could not remember him or were unacquainted with him.  There were some suggestions during the trial that KirovLes’s problems were due to uneconomic rents it was receiving from its forests.  If so there is nothing I have heard to suggest that Navalny was interested in this problem or offered any solutions for it.  At a much later date he did try to get Deloitte to undertake an audit but the circumstances in which this happened are heavily bound up with his case and are not in his favour.  I have heard nothing to suggest that he proposed anything remotely resembling a fully researched and properly costed business plan for KirovLes or that he ever presented such a plan to Opalev or Arzamatsev or Sherchkov or Belykh or that he ever set out in detail on paper any of his ideas.  I have seen it suggested that there was a plan to break up KirovLes, which Belykh might have supported.  If such a plan existed it has never so far as I know been made public.

The Prosecution Case

The prosecution case is that Navalny did not carry out his remit, such as it was, but that together with an associate of his called Pyotr Ofitserov that he organised a conspiracy with Opalev to acquire KirovLes’s timber at 7% below its true price for resale for their mutual profit mainly to KirovLes’s own customers.  The timber was formally acquired by Ofitserov’s company the Vyatka Timber Company (henceforth referred to by its Russian initials “VLK”), which in turn sold the timber at its true price to its own customers most of whom had previously been KirovLes’s customers.

Opalev by his own account initially opposed this arrangement but was eventually brought round by a mixture of threats and offers to share in the expected profits.  In order to put the arrangement into effect Opalev issued an order to the filials that VLK was to be given a first or exclusive or preferential (it is unclear to me which) right to buy timber from KirovLes at a price below its true price.

Opalev’s stepdaughter Maria Bura was given a post within VLK at the same time as she continued to work for KirovLes despite the obvious conflict of interest, presumably as a gesture of goodwill to Opalev and possibly so she could protect his interests inside VLK and provide VLK with some much needed expertise of the timber industry.

It is important to say however that neither Navalny nor Opalev ever formally owned shares or held any formal position in VLK.

The venture only survived for about four months.  Despite Opalev’s order it was unpopular with the filials, who appear to have largely disregarded it.  Notwithstanding the low price it paid for the timber VLK failed to trade at a profit.  An audit commissioned by Arzamatsev, the head of the Kirov Region’s property fund, reported that the arrangement was harmful to KirovLes.

Navalny attempted to defend the arrangement.  He sought to discredit the audit by attempting without success to bring in Deloitte to carry out another audit.  He also sought to dismiss Bastrygina, an executive in KirovLes’s accounts department who was involved in the audit.  He briefly engineered Opalev’s dismissal with whom he had by this time seriously fallen out.

Navalny’s efforts in the end proved unavailing.  As more and more questions piled up he suddenly fled the Kirov Region for Moscow leaving behind him a pile of unanswered questions and Ofitserov high and dry.  I believe he never returned to the Kirov Region until his trial.

The Charge – Embezzlement contrary to Article 160 Russian Criminal Code

Assuming the prosecution’s account to be true do these facts describe a crime?

The prosecution charged Ofitserov with embezzlement of 16 million roubles (approximately $500,000) worth of timber bought by VLK from KirovLes at a discounted price and resold by VLK at a market price mainly to KirovLes’s own customers.  The charge against Navalny was that he conspired with Ofitserov and Opalev to carry out this embezzlement.  Opalev himself pleaded guilty and testified against Navalny and Ofitserov, being the prosecution’s star witness at the trial.

Article 160 of the Russian Criminal Code defines embezzlement as

“…..the stealing of other people’s property entrusted to the convicted person”.

(Italics added)

There are therefore two elements:

(1)   There must be a theft of property;

(2)   The property stolen must have been entrusted to the thief.

Theft is defined as follows by Article 158 of the Russian Criminal Code

“…..the secret larceny of other people’s property”

(Italics added)

Larceny is defined elsewhere in Article 158 as

“…..the unlawful, uncompensated seizure and/or the appropriation of other peoples’ property, committed with a mercenary purpose by a guilty person or by other persons, which has injured the owner or any other proprietor of this property.”

(Italics added).

The following elements must therefore be present:

(1)   An uncompensated seizure and/or an appropriation of property;

(2)   Belonging to another;

(3)   Which is unlawful;

(4)   Is carried out with the intention of financial gain
(“a mercenary purpose”); and

(5)   Which causes injury to the true owner or proprietor of the property.

This may be compared with the British definition of theft set out in Section 1(1) of the Theft Act 1968

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly”.

It is clear that despite the differences in legal and political culture the definitions of theft in Russia and Britain have many similarities.

Article 158 requires an “uncompensated seizure” and/or an “appropriation”.  The Theft Act 1968 merely requires an “appropriation”.  British law defines “appropriation” as an assumption of the rights of the owner of the property, specifically

“any assumption of the rights an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping it or dealing with it as owner”.

 (Theft Act 1968 Section 3(1))

(Italics added).

It is clear from the British definition of “appropriation” that future dealing in the property including its sale by the thief is an assumption of the rights of an owner over the property and is therefore an appropriation within the definition of appropriation provided by the Theft Act 1968.

I do not possess a legal definition of the Russian word in Article 158, which is translated in the translation of Article 158 I have used by the English word “appropriation”.  However the legal translation agency that has provided this translation of Article 158 has used the English word “appropriation” to translate the equivalent Russian word in the context of a legal definition of theft.  This is certainly intentional.  It is therefore likely that the Russian word translated by the English word “appropriation” has the same or at least a similar meaning in this context to the English word “appropriation”, which has been used to translate it.

Both Article 158 and the Theft Act 1968 require that the property appropriated must belong to another.  The Theft Act 1968 requires that the thief must intend to deprive the owner permanently of the property.  Article 158 does not say this though it might be inferred from its language.  This is not a relevant question in Navalny’s case and I will not discuss it further.

The Theft Act 1968 requires dishonesty on the part of the thief.  Article 158 says that the appropriation must be “unlawful”.  Article 158 also refers to “the guilty person”, which may indicate that theft under Article 158 also requires dishonesty.  I shall presume it does.

Article 158 requires that the thief must have a “mercenary intention” ie. an intention to profit financially from the theft.  This differs from the position in the Theft Act 1968 where there need be no such intention

“it is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit”.

(Theft Act 1968 Section 1(2))

Article 158 requires that the owner suffers an injury as a result of the theft.  I am not sure whether “injury” means financial loss but I shall assume it does.  This is not an issue in Navalny’s cases.  The Theft Act 1968 makes no such provision.  What it does say is that the fact the thief intends to compensate the owner does not prevent the appropriation from being dishonest

“A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.”

(Theft Act 1968 Section 2(2))

How do these definitions square with the facts in the case against Navalny as the prosecution describe them?

Timber belonging to KirovLes to the value of 16 million roubles was acquired by VLK.  VLK treated the timber as its own by selling the timber to its customers most of whom had previously been KirovLes’s customers.  There was therefore an acquisition by VLK of KirovLes’s property.

Was this acquisition “unlawful” and/or “dishonest”?  The prosecution say VLK acquired the timber for less than its value because Opalev, KirovLes’s director, after being threatened and bribed by Navalny and Ofitserov, entered into a corrupt arrangement to transfer KirovLes’s timber to VLK for less than its true price.  If so then this was certainly “unlawful” and “dishonest”.

Did the timber still belong to KirovLes after VLK acquired it?  A corrupt transfer of timber for less than its true value made “unlawfully” and “dishonestly” as part of a corrupt arrangement agreed in secret by three individuals would not transfer ownership of the timber from KirovLes to VLK.  The timber would still be KirovLes’s property.  Since VLK sold the timber to third parties after it acquired it there was clearly an assumption by VLK of the rights of the owner over the timber and an intention to deprive KirovLes permanently of the timber.

At this point all the elements for theft required by the Theft Act 1968 are present.  In Britain the facts set out in the prosecution’s case amount to theft.

Article 158 adds two further elements.  The thief or thieves must have “a mercenary intention” (ie. an intention to make a financial gain from the theft) and the owner (in this case KirovLes) must suffer injury.

The prosecution say Navalny, Ofitserov and Opalev did intend to profit from the theft.  As to the injury suffered by KirovLes, the prosecution refer to the financial loss KirovLes suffered from being deprived of 16 million roubles worth of timber for less than its true value.

In conclusion if the prosecution’s account of the case is true all the elements of theft are present whether British or Russian law is applied.

The charge against Navalny was not theft under Article 158 but conspiracy with Ofitserov and Opalev to commit embezzlement of KirovLes’s timber under Article 160.  The charge against Ofitserov was embezzlement of KirovLes’s timber under Article 160.  The difference in the way Navalny and Ofitserov were charged is due to the fact that Ofitserov was the owner of VLK, the company which actually acquired the timber, whilst Navalny had no share or formal role in VLK.

In Britain the common law offence of embezzlement has been absorbed into the offence of theft.  In Britain this would be a simple case of theft.  Since the three persons involved (Navalny, Ofitserov and Opalev) acted together there would be no need to complicate the case by introducing the issue of conspiracy.   Navalny and Ofitserov would be charged with theft.

Russian law still distinguishes between embezzlement and theft.  I am not familiar with Russian jurisprudence on the subject of embezzlement.  On a simple reading of Article 160 it is however clear both elements required by Article 160 are present.  There was a theft as defined by Article 158.  The property stolen was at various times in the trust of Opalev and Ofitserov, two of the persons involved.

In fact there have been multiple breaches of trust.  Opalev as KirovLes’s director was in a direct position of trust both as regards KirovLes and as regards its timber.  Navalny was in a special position of trust as an adviser to Belykh who was supposed to analyse KirovLes and provide solutions to its problems.  Ofitserov had an intimate connection to KirovLes that went beyond that of a mere customer.  Both Navalny and Ofitserov knowingly acted in a way that caused Opalev to breach the trust he owed KirovLes by knowingly disposing of its timber in his charge in a way that fulfils the definition of theft.  Since there was no lawful transfer of property in the timber to VLK, the timber remained KirovLes’s property even after it was acquired by VLK.  Ofitserov by disposing of the timber through his company VLK was unlawfully appropriating timber that was not his or VLK’s and which was therefore in his trust.  Navalny conspired with both Opalev and Ofitserov to steal the timber in ways that caused them to breach their trust.  It is clear that all the elements required for embezzlement as set out in Article 160 are present.

The facts the prosecution allege do therefore describe a crime.  That crime would in Britain be theft as defined by Section 1(1) of the Theft Act 1968.  In Russia the crime is embezzlement as defined by Article 160 of the Criminal Code of the Russian Federation.  Claims the case against Navalny makes no sense are obviously wrong.

Objections to the Charge

There are two objections to the charge of embezzlement under Article 160 both of which have been extensively discussed on the internet though less so in the trial itself.  These are

(1)   that a charge of embezzlement of 16 million roubles worth of timber makes no sense when KirovLes’s alleged loss was just 3 million roubles, this being the difference between the amount VLK paid KirovLes for the timber (13 million roubles) and the amount for which VLK sold the timber mostly to KirovLes’s own customers (16 million roubles); and

(2)   the somewhat related claim that this was a case where the charge should have been for property damage caused by deceit or abuse of trust under Article 165 of the Criminal Code of the Russian Federation, this being a significantly less serious offence than the offence of embezzlement under Article 160.  Again this tends to be argued on the basis of the limited extent of the actual loss suffered by KirovLes.

(1)   3 million or 16 million roubles?

Wisely, rather than engage in a discussion of principles, the prosecution simply answered this objection by referring to a Judgment of the Supreme Court of the Russian Federation that dealt with questions of the theft of state property and which made clear that in all cases pertaining to the theft of state property the measure to be used for the theft is the total value of the property stolen irrespective of whether any lesser amount of compensation has been purportedly paid for it.

The Judgment is binding on inferior courts including the one that tried Navalny.  For the purpose of the case it resolves the question.  Since KirovLes was a publicly owned company there is no doubt the Judgment of the Supreme Court of the Russian Federation applies to the case.

The Supreme Court Judgment states the obvious.  Navalny and Ofitserov were prosecuted for the theft of timber from KirovLes.  The figure of 16 million roubles is simply the value of the timber they stole.  This figure should not be confused with the completely different figure, which is the value of the injury this caused KirovLes.  It is immaterial to the value of the timber stolen that VLK paid a sum to KirovLes for the timber, which was actually less than what the timber was worth.  What that does is determine the value of the injury to KirovLes the theft of the timber caused.  To argue for the prosecution of a thief on the basis of the value of the loss the theft has caused as opposed to the value of the goods stolen is to say that a jewel thief should not be prosecuted for the value of the stolen jewels because the jewels were insured and the owner has been compensated by the insurers for the theft and is also relieved of the future burden of paying premiums.

(2)   Article 160 or Article 165?

The offence created by Article 165 of the Criminal Code of the Russian Criminal Code reads:

“Infliction of property damage on its owner or on any other property holder by deceit or breach of trust, in the absence of the elements of stealing”.

(Italics added)

The wording of the offence set out in Article 165 says the offence arises “in the absence of the elements of stealing”.  “The elements of stealing” are all present in Navalny’s case (see above).  Subtracting the facts from the case that create “the elements of stealing” (the unlawful appropriation of timber belonging to KirovLes) takes away those facts that create the wrongdoing.  The presence of the words “in the absence of stealing” mean that Article 165 has no application to Navalny’s case.

Article 165 is one of the Articles in Chapter 21 of the Criminal Code of the Russian Federation, which concern Crimes against Property.  Articles 158 to 162 and Article 164 in Chapter 21 all concern offences of stealing.  Article 163 covers extortion, Articles 167 and 168 offences involving destruction of property and Article 166 the unlawful occupancy of a motor vehicle without the purpose of stealing.  It is clear that Article 165 falls within the Articles in this Chapter that are not concerned with offences of stealing.  Since it is precisely theft which is the essence of the offence in Navalny’s case Article 165 has no application to it even if the words “the absence of the elements of stealing” were not present.

Article 165 says the offence involved is one of property damage caused by deceit and/or abuse of trust.  Property damage should be distinguished from Economic Activity the crimes concerning which are listed under Chapter 22 of the Criminal Code.  Article 165 might conceivably cover a person who has borrowed a friend’s car and who driving it recklessly crashes and damages it.  However, more prosaically, Article 165 may be intended to deal with the fiddles, fake expenses claims and other types of loss and property damage commonplace within companies and organisations.  Regardless of whether this is so or not Article 165 has no application to Navalny’s case and there are no grounds to say that the charge under Article 160 was not correctly made out and should have been brought under Article 165 instead.

Prosecution’s Evidence

The prosecution’s case against Navalny and Ofitserov is based on the following evidence:

(1)   The evidence of Opalev;

(2)   The evidence of other witnesses;

(3)   The relationship between Navalny and Ofitserov as confirmed by taped telephone conversations and emails between them;

(4)   The actual dealings between KirovLes and VLK.

(1)   Opalev’s Evidence

In an outburst during the trial Navalny said the “whole case” against him came down to the testimony of just three witnesses: Opalev, Bastrygina and Bura.  That is an exaggeration.  However of the importance of Opalev’s evidence there is no doubt.

Opalev is one of the three individuals who the prosecution say was part of the conspiracy to embezzle KirovLes’s timber.  As KirovLes’s director he was arguably the key figure in the conspiracy.  Without his involvement the embezzlement could not have happened.  Opalev’s evidence confirming the existence of the conspiracy and providing details of the embezzlement effectively substantiates the prosecution case. Any attempt to argue for Navalny’s or Ofitserov’s innocence must do so by discrediting Opalev as a witness.

Navalny has attempted to discredit Opalev as a witness by claiming that Opalev bears him a grudge because he sought to get Opalev sacked from his post as director of KirovLes and did in fact briefly succeed in doing so.

Opalev may indeed bear Navalny a grudge.  However for this grudge to explain his evidence it must be a grudge so powerful that it has led Opalev to plead guilty to a charge of embezzlement of which if his evidence is untrue he must be innocent, which comes with a four year suspended sentence with all that means for Opalev’s reputation and future career, so that he can go to Court and falsely claim Navalny conspired with him to steal timber from his own company.  Nothing I have heard about Opalev suggests such a fanatical personality.  Accounts I have heard of his demeanour at the trial suggest on the contrary a broken and defeated man.

Of course there are some who go further and believe Opalev was either pressured or put up to it by the authorities as part of a plot against Navalny.  No evidence for that came to light in the trial.  Opalev was subjected to a tough cross examination by Navalny himself.  If Opalev really was acting out a grudge or if he really had been put up to it or pressured into it by the authorities that fact would surely have slipped out.  As it was, though Opalev came across at times as vague and confused, which is not surprising given what he has been through, in the end he stood by the essentials of his story and said nothing that might suggest either that he had made the whole story up to act out a grudge or that he was pressured or put up to do it by someone else.

It has been said that Opalev when giving evidence at times contradicted himself.  None of the alleged contradictions however undermine his basic story.  It is only in fiction that witnesses recall deeply distressing events that happened years before with perfect recall.  When this appears to happen in real life more often than not it is a sign that the witness’s evidence has been rehearsed and that the witness is lying.

It is for the Judge to assess the reliability of a witness.  The Judge in this case assessed Opalev’s evidence as reliable.  He said there was nothing to suggest that Opalev was not telling the truth.  I see no reason to question that assessment.

(2)   Other Witnesses

The evidence of the other witnesses added little and I will not devote much time to it.

Bura and Bastrygina, the two other witnesses Navalny had in mind along with Opalev when he said the case against him was based on the evidence of just three people, were not members of the alleged conspiracy and could say nothing about it.  Bura, Opalev’s stepdaughter, unsurprisingly gave evidence in line with her stepfather’s.  However she was hardly in a position to know very much about what had gone on in private between Opalev, Navalny and Ofitserov though she did provide some corroboration for Opalev’s account of the sale of timber to VLK and its subsequent resale by VLK.

In the absence of Arzamatsev , who is on the run from the police on an unrelated charge, Bastrygina gave evidence about the audit Arzamatsev commissioned, which exposed the loss KirovLes suffered from the arrangement with VLK.  Navalny is particularly hostile to Bastrygina (as he was at the time of the audit) and believes that she too bears him a grudge.  He subjected Bastrygina to a day of exceptionally tough cross examination, on more than one occasion bringing her close to tears.  However she stood by her story, which is the same story she told four years ago at the time the audit took place.

Navalny also ascertained under cross examination that many of the directors of the filials and KirovLes’s and VLK’s customers had either no or only the vaguest memory of him and of the events that took place.  As these events happened four years ago that is unsurprising.  These witnesses had their faulty memories refreshed or supplemented by their witness statements.

Belykh along with Sherchkov and Maria Gaidar – the latter giving evidence for the defence –  provided clarification of Navalny’s status as an unpaid adviser.  Belykh as Governor said that he had been provided with no information that Navalny’s activities had done the Kirov Region any economic damage but admitted that this was a matter for the state property fund and that he had no informed knowledge of the matter.  These elliptical not to say evasive comments were seized on by Navalny’s supporters as somehow supporting Navalny though in truth they do nothing of the sort.

Votnikov, another of Belykh’s advisers, gave evidence that seemed to be mainly about Opalev’s inability to adapt to changes in market conditions despite his undoubted abilities as a production manager.  I cannot see the relevance of this evidence.  However it turned out that Votnikov is serving a prison sentence for taking a bribe from Opalev.  I am told this bribe was a form of protection money Votnikov extorted from Opalev in return for Votnikov protecting Opalev from Navalny.  If this is true then it may provide some corroboration for Opalev’s story and shows the pressure he was coming under from Navalny.  However I am not sure it is true and it does not prove the case against Navalny even if it is true.  On the contrary it might show that Opalev needed protection from Navalny because he had something to hide from Navalny and was up to paying bribes to hide it.  I know next to nothing about this case and I will not comment about it further.

Overall apart from further confirming the chaotic state of the administration of the Kirov Region on Belykh’s watch with Votnikov in prison, Arzamatsev on the run and Opalev with a four year suspended sentence to add to the case against Navalny and Ofitserov, I do not think the evidence of these witnesses adds very much.  To the extent that it does anything this evidence tends to corroborate Opalev’s story.  Accounts I have heard of the final Judgment suggest that whilst the Judge carefully went through this evidence as he is required to do he gave little weight to it except in so far as it corroborates the other evidence in the case.

(3)   The Relationship between Navalny and Ofitserov

Navalny and Ofitserov insist that they each came to the Kirov Region independently of each other.  Ofitserov’s account is that he was moved to do so on hearing a broadcast by Belykh calling on people of goodwill to come to the Kirov Region to help turn it round.  When he arrived he found Navalny there.

This may seem unlikely but it is not impossible.  Belykh’s appointment as Governor of the Kirov Region was unexpected and did cause something of a stir in Russian liberal circles.  Ofitserov is a liberal having previously been like Navalny a member of Yabloko, Russia’s largest liberal party.  It is not impossible that he was seized by the enthusiasm of the moment.  I do not know to what extent if any Navalny and Ofitserov were acquainted with each other before they came to the Kirov Region.  Even if they did know each other the world of Russian liberal politics is small so it is not impossible that any two prominent Russian liberals drawn to the same place would already know each other.

However from this point on Navalny’s and Ofitserov’s account descends from the merely unlikely to the increasingly improbable and eventually to the completely incredible.

Navalny and Ofitserov both insist that Navalny played no role in introducing Ofitserov to Opalev and in setting up the arrangement with VLK.  Supposedly Ofitserov and Opalev came together and set up the whole arrangement by themselves without Navalny being involved.

This of course contradicts what Opalev says, which is that it was Navalny who engineered the whole thing. The Judge preferred Opalev’s account and it is not difficult to see why.

Navalny’s and Ofitserov’s account fails to explain why Opalev, someone whom Votnikov has described as an experienced enterprise director, should agree without prompting to enter into an arrangement with Ofitserov, an individual with whom he was entirely unacquainted, who had no previous background or history in the timber trade and who if he did ever provide Opalev with a properly drafted and costed business plan (something I have never heard that he did) was a most unlikely candidate to carry it out.

The timber trade operates on tight margins with high running costs.  It is not a business for the inexperienced or the fainthearted.  Opalev of all people would have known this.  That makes his agreement to enter into an arrangement with Ofitserov incomprehensible unless he felt obliged or was bribed to do it.  In the event and predictably, despite Opalev’s placing Bura his stepdaughter inside VLK, possibly in order to provide VLK with someone with some knowledge of the timber industry, the arrangement was a complete failure even on its own terms.  KirovLes lost on the timber acquired by VLK and VLK was unable to trade at a profit despite acquiring the timber at less than its true price.

If Navalny really was as uninvolved in setting up the arrangement between Ofitserov and Opalev and KirovLes and VLK as he and Ofitserov say then it is difficult to understand why he defended Ofitserov and the arrangement with such vehemence when it came under criticism following Arzamatsev’s audit.  Taped telephone conversations and records of emails between Navalny and Ofitserov show Navalny campaigning for the dismissal of Opalev and Bastrygina, seeking to bring in Deloitte to discredit Arzamatsev’s audit and eventually fleeing to Moscow when questions about his own role started to be asked.

These telephone conversations and emails between Navalny and Ofitserov also show the extraordinary extent of the collusion between the two.  In those emails and conversations Navalny discusses in extraordinary detail conversations he has with Belykh, Sherchkov and others in a way that is surely incompatible with Navalny’s position as Belykh’s adviser.  He discusses his plans to dismiss Opalev and Bastrygina and for the appointment of Ofitserov to a consultative post in the local timber industry. He asks for and receives from Ofitserov information about VLK and its business.  In the coarsest language he abuses and makes threats (eg. “bitch” – with specific reference to Bastrygina, “sack them”, “crush them” etc) about various persons such as Bastrygina who he comes into conflict with.

The talk is all of intrigues and conspiracies and stratagems though in fairness to Navalny and as he has himself pointed out only a selection of his telephone conversations and emails from the period have been produced and the others may show him in a better light.  Regardless Navalny and Ofitserov certainly do not come across in these conversations and emails as two persons working independently of each other.

What the telephone conversations and emails also show is that it was Navalny who of the two was the one in the position of leadership.  It is Navalny who comes up with ideas, who demands and provides information and who gives instructions.  Ofitserov’s role is mainly passive/receptive.  On one occasion Navalny instructs Ofitserov to buy a new mobile phone to prevent their conversations from being taped and to encrypt his emails.  Instead of questioning these unusual (and incriminating) instructions Ofitserov simply carries them out.

Navalny has never provided a straightforward explanation for these emails and telephone conversations.  The only explanation I have heard is a totally fantastic one: that he was using Ofitserov as some sort of spy or informer to discover what was really going on inside KirovLes.  If this is Navalny’s explanation then I would first say that like Navalny’s other claims that Opalev and Bastrygina testified against him because they bear him a grudge, it is very much in character and reflects Navalny’s need always to represent himself as a hero battling a host of enemies, and secondly, that as an explanation it is completely fantastic.  Suffice to say there is no conceivable reason why Navalny would need a spy or informer to carry out his tasks as Belykh’s adviser.  Nor is there any obvious reason why that person should be Ofitserov.  I have heard of no evidence that Navalny ever put such a bizarre proposal to Belykh and Sherchkov, his superiors, who would presumably have had to authorise it.

In any trial the Judge at the end of the day has to decide who is telling the truth.  Given the failure of Navalny and Ofitserov to provide a simple account of their connection to each other and of Ofitserov’s dealings with Opalev it is in no way surprising that the Judge decided in the end to believe Opalev rather than Navalny and Ofitserov and to conclude that the two were acting in concert with each other.  Given the facts and what the telephone conversations and emails show what would have been surprising is if he had done otherwise.

(4)   Course of Dealings between KirovLes and VLK

Ultimately the strongest corroboration of Opalev’s evidence is the actual course of dealings between KirovLes and VLK.  It is irrefutable that VLK paid a lower price for the timber it acquired from KirovLes and that it sold the timber at a higher price to its customers most of whom had previously been KirovLes’s customers.  It is also irrefutable that Opalev made the order to the filials giving VLK some sort of advantageous position even if the extent to which this order was obeyed and its precise meaning may be open to question.

The evidence that the lower price paid by VLK to KirovLes was a price below the proper market price is provided by

(1)   The evidence of Opalev, who actually set the price and who says it was 7% below the market price and that he set this price as a result of the corrupt arrangement he agreed with Ofitserov and Navalny;

(2)   The evidence of the higher price paid for the timber by VLK’s customers, most of whom had previously been KirovLes’s customers;

(3)   The fact that the lower price paid by VLK was noticed and questioned at the time by Arzamatsev and Bastrygina and the auditors commissioned by Arzamatsev all of whom said KirovLes’s arrangement with VLK was harmful to KirovLes.

It has never been clear to me what Navalny’s and Ofitserov’s response to all this evidence is and whether they admit or deny that VLK acquired the timber at a reduced price.  The whole arrangement between KirovLes and VLK only makes sense if VLK acquired the timber at a reduced price.  However towards the end of the trial the defence lawyers sought to adduce expert evidence that the price paid by VLK for the timber was the same or even higher than the price of other timber KirovLes sold to other customers at the same time.  This suggests that Navalny and Ofitserov claim that VLK paid KirovLes a proper price for the timber and not a reduced price.

The obvious objection to this argument is that what is at issue in this case is not the price of timber sold by KirovLes to other customers but the price of the timber acquired by VLK.  The true or market price for any product is decided through a free commercial bargain agreed by the parties at arm’s length.  The corrupt arrangement Opalev describes is most definitely not a free commercial bargain agreed at arm’s length.  VLK’s sale of the timber to former customers of KirovLes at a high price for which it had previously paid KirovLes a low price appears to corroborate what Opalev says and is a good reason to doubt that VLK acquired the timber from KirovLes at a proper price arrived at through a free commercial bargain agreed at arm’s length.

Arguing that VLK paid KirovLes a proper price for the timber is ultimately incompatible with the existence of the 7% discount Opalev alleges.  Whether the discount existed or not is in the end a question of fact.  The weight of the evidence including Opalev’s evidence, his order to the filials, Arzamatsev’s audit, Bastrygina’s evidence and above all the difference in prices paid by and to VLK, points strongly to its existence.

A complication is that Navalny and Ofitserov or at least their lawyers made arguments that at times appeared to admit the existence of the discount.  For example during closing speeches one of the defence lawyers described VLK as “effectively” KirovLes’s “sales and marketing department” something which the lawyer also said “was very necessary”.  This admits a relationship between KirovLes and VLK different from that between a simple buyer and seller.  If so then it is difficult to see how the price paid by VLK could have been a market price in which case given the difference in prices paid and received by VLK the existence of the discount becomes unarguable.

It has been suggested that certain commercial cases brought by KirovLes against VLK in the Russian commercial or arbitrazh courts somehow show that the relationship between the two companies was a normal commercial relationship.  I know nothing about these cases.  However a civil claim would not normally extinguish a criminal liability and I do not see why the mere fact of these cases proves that the two companies were in a normal commercial relationship.  The mere fact that KirovLes sued VLK does not show that Navalny, Opalev and Ofitserov did not steal KirovLes’s timber using VLK as their vehicle.

The Judge in the end decided that the difference in the prices paid to KirovLes by VLK and the prices paid to VLK by its customers corroborate Opalev’s claim that the lower prices paid to KirovLes by VLK were the result of the corrupt arrangement Opalev says he agreed with Ofitserov and Navalny.  In light of the facts it is difficult to see how the Judge could have come to any other view.

Injury to KirovLes

The definition of theft in Article 158 requires that there should be injury to the owner of the stolen property.  Whilst the Theft Act 1968 does not expressly require this I doubt the British authorities would prosecute a theft of this sort if the owner had not suffered harm.

At its simplest the injury KirovLes suffered was the financial loss it suffered because VLK paid less than the proper price for the timber, which KirovLes would have been paid if it had sold the timber through a proper commercial arm’s length contract on the free market.  KirovLes’s loss was therefore the difference between the proper price of the timber and the price it was paid by VLK.  This difference is said to be 3 million roubles.

The prosecution arrived at what it says is the proper price for the timber by looking at the price VLK was paid for the timber when it sold the timber to its customers most of whom had previously been KirovLes’s customers.  If KirovLes had sold the same timber to these customers (as it did before the arrangement with VLK) this is the price they would have paid KirovLes.  As I understand it this price was determined by a price formula previously agreed between the customers and Opalev.

I understand that Russian law requires that expert opinion be provided to confirm the proper market price.  I presume that it was and that it confirmed that the market price for the timber was the price paid to VLK by the customers.

This approach is fully in line with British practice.  See Luxmoore-May & Anr v Messenger May Baverstock [1990] 1 WLR 1009

“The measure of damage in this case is, I conclude, the different between what the foxhounds (NB: paintings by the artist George Stubbs) in fact realised consequent on the defendants’ breach of contract and what was their true market value at the time.  What better guide could there be to that value than the price at which these paintings happened to be knocked down at Sotheby’s so shortly afterwards?  The price which the international art market was willing to pay was surely prima facie the best evidence of the foxhounds’ value”.

            (Italics added)

Navalny and Ofitserov dispute this approach.  So far as I can understand it their argument is twofold:

(1)   That VLK did pay KirovLes a proper price for the timber.  This is said to be confirmed by the expert evidence they attempted to introduce, which I have previously touched on, which apparently shows that other customers were paying KirovLes even lower prices for timber than VLK was; and

(2)   That VLK was providing KirovLes with value over and above the price it paid for the timber by acting “in effect” as KirovLes’s sales and marketing department.

(1)   Proper price paid by VLK for the timber?

Though the Judge read through the expert evidence provided by Navalny and Ofitserov concerning the low prices other customers paid KirovLes for its timber to their great dismay he refused in the end to admit this expert evidence as evidence in the case.  At Navalny’s and Ofitserov’s insistence he provided a Judgment setting out his reasons.

I have not read this Judgment.  From what I have heard of it this Judgment sets out the obvious objection to the relevance of this evidence: the issue in this case is the price of the timber acquired by VLK not the general or average price of timber sold by KirovLes at any one time or the price KirovLes was paid for completely different timber sold under completely different contracts to other customers in circumstances that are unknown.  Navalny’s and Ofitserov’s evidence does not touch on the price of the timber acquired by VLK and does not refute the way the price of that timber is calculated by reference to the price paid to VLK for this timber by VLK’s customers most of whom had previously been KirovLes’s customers.

The Judge was therefore in my opinion entirely correct to exclude this evidence.   I have no doubt a British Judge in the same position would either have done the same thing or would at the end of the case have said that the evidence did not disprove or affect the prosecution’s case.

The one thing I would say about this argument is that Navalny himself has come to believe it.  Reports from the trial speak of his shock when the Judge excluded the evidence.  This is confirmed by comments he made later on his blog.

Indeed Navalny seems to have already persuaded himself of this argument when the injury the arrangement with VLK was causing KirovLes was first exposed at the time of  Arzamatsev’s audit.  Navalny’s campaign to defend the arrangement and discredit the audit was based on this argument.  There is a tape of a telephone conversation he had with Ofitserov in which he anxiously questions Ofitserov about prices as he searches for evidence to support this argument.  His attempts to get Deloitte to conduct a second audit appear to have been based on this argument.  He seems to have convinced himself that Deloitte would also find that because KirovLes sold other timber for lower prices than those paid by VLK Deloitte would report that KirovLes had suffered no harm from the arrangement with VLK.  That the purpose of Navalny’s call to Deloitte was to exonerate Ofitserov and himself rather than discover the truth is shown by the record of his telephone conversation with Deloitte.  The record shows that he never told Deloitte that there had already been an audit and that the reason he wanted Deloitte to carry out an audit was because he did not agree with the first audit and wanted to discredit it.  The telephone conversation shows Navalny devious and manipulative at a moment when he most needed to appear honest and straightforward.

The fact that Navalny has persuaded himself of the truth of an argument which he appears to have thought would result in his acquittal does not make the argument any less wrong.  The argument is wrong regardless of whether Navalny himself believes it.

(2)   “in effect KirovLes’s sales and marketing department”

Somewhat inconsistently with the claim that VLK paid KirovLes a proper price for the timber is the claim also made specifically in closing speeches by one of the defence lawyers that VLK was providing KirovLes with value over and above the price it was paying for the timber by acting “in effect” as KirovLes’s sales and marketing department.

The best that can be said about this argument is that if that was the intention then this was not the right way to do it.  Though Navalny is a lawyer and Ofitserov is a businessman and though both claim to be experts in the way modern business is conducted it seems to have been lost on both of them that if VLK really was taking over the part of KirovLes’s business that was concerned with sales and marketing then this would have amounted to a transfer of an undertaking from KirovLes to VLK.

There is no evidence that any consideration for this transfer (if such it was) was ever given or that it was ever discussed or seriously thought about.  At best there seems to have been some vague idea that at some point in the future the arrangement would benefit KirovLes by drastically increasing sales to new customers who Ofitserov and VLK with their supposedly superior marketing skills would discover.  The reality is that in the four months that the arrangement was in existence Ofitserov and VLK only found a small number of new customers, the great majority of VLK’s customers remaining at all times the same customers who had previously bought timber directly from KirovLes.

Ultimately what is being suggested is that KirovLes agreed to provide VLK with an unsecured, indefinite and never formally acknowledged loan in the form of a discounted price for its timber in return for possible benefits at some indeterminate future time conditional upon VLK’s own trading success.  It is simply not credible that Opalev, an experienced enterprise director, would have willingly agreed to such an eccentric not to say quixotic arrangement especially with someone like Ofitserov who was previously unknown to him unless he was either pressured or bribed into it as he says and it must be doubtful that he would have had the right or authority to agree to it if he did.

In summary neither argument that Navalny and Ofitserov and their lawyers have made to deny the injury done to KirovLes is at all convincing.  The Judge was entirely right to reject both arguments.  That the arrangement with VLK did KirovLes injury is on the facts simply irrefutable.  Not surprisingly as the injury became increasingly obvious Arzamatsev as head of the state property fund and Bastrygina as the relevant executive within KirovLes stepped in to stop it.  That the loss suffered by KirovLes is limited to 3 million roubles is the result of their actions and is not something Navalny and Ofitserov should be given credit for.

I will briefly touch on the question of KirovLes’s financial condition, since this has been the subject of much discussion.  Briefly I do not know how strong KirovLes’s position was when Navalny and Ofitserov arrived on the scene.  However even if KirovLes’s situation was financially precarious that in no way changes the fact that Navalny and Ofitserov caused it injury.  It simply does not matter whether the victim of a theft is financially healthy or not.  A poor person can suffer harm just as a rich person can.

The whole subject has been confused by irrelevant speculation about whether Navalny’s and Ofitserov’s activities caused KirovLes’s eventual bankruptcy.  On the face of it given the limited scale of the loss that seems unlikely.  However it is a question which is totally irrelevant to the case.  Personally I can think of nothing more destabilising to an organisation in an already precarious condition than to have its experienced director removed in disgrace as a result of his involvement in a financial scandal.  To the extent that KirovLes was a major employer in the Kirov Region the lack of visible support for Navalny from the people of the Kirov Region during his trial perhaps tells its own story.  However it is not a factor in the case.

Before proceeding further it is worth pointing out that if Navalny and Ofitserov were being tried in Britain on the same facts all the elements in Section 1(1) of the Theft Act 1968 would at this point be present.  Article 158 however requires that the thief must have “a mercenary intention” and it is that which I will now consider.

“Mercenary Intention”

Article 158 does not require that the thief actually gain financially from the theft merely that he have an intention to do so.  None of the three persons involved (Navalny, Opalev and Ofitserov) benefitted financially from the theft.  The reason is that despite acquiring KirovLes’s timber for less than its true value VLK did not trade at a profit.  Since VLK did not make a profit there was no profit to distribute to the three and no financial gain to be made.

Did Navalny and Ofitserov intend to gain financially from the theft?

As to Ofitserov there is no doubt.  Ofitserov was the owner of VLK.  As the owner of VLK he obviously intended to profit from his business.

As for Navalny he was never an owner or part owner of VLK and never held a post in that company.  The only evidence he intended to gain financially from the theft comes from Opalev.  Opalev’s evidence on this issue has however no independent corroboration. For that reason this has always seemed to me the weakest point in the prosecution’s case.   Though the prosecution was able to produce tape recordings of telephone conversations between Navalny and Ofitserov and copies of emails that passed between them there is no record in any of them of Navalny so much as hinting that he intended to profit personally from the arrangement between VLK and KirovLes.

The only facts that may suggest that Navalny did intend to profit personally from the arrangement are (1) Navalny’s decision to refuse an offer of a paid post with the Kirov Regional government, which may suggest he was expecting money from VLK and did not wish to be placed in a conflict of interest when this happened and (2) a fraught email exchange between Belykh and Navalny some time after these events in which Belykh facetiously calls Navalny “a timber tycoon”, which suggests that Belykh at the time believed that Navalny had intended to profit personally from the arrangement.  Both points are so weak the prosecution wisely did not use them though both facts would have been known to the Judge from considering the rest of the evidence.

The Judge nonetheless accepted Opalev’s evidence on this issue.  Given that he preferred Opalev’s evidence to Navalny’s on every other issue this is unsurprising.  The Judge was entitled to accept Opalev’s evidence, which is consistently corroborated on other issues, and to reject Navalny’s, which is regularly shown to be either unconvincing or simply wrong.

Speaking personally, I would have been prepared to give Navalny the benefit of the doubt on this question and decide that he was involved in setting up the arrangement between Opalev and Ofitserov (as he clearly was) for altruistic reasons, out of some misguided belief that it might genuinely benefit KirovLes, were it not for the rest of his conduct in the case.  His passionate defence of the arrangement both at the time and later and the content of his conversations with Ofitserov speak of someone with a personal stake in the arrangement going well beyond what one would reasonably expect from someone who had set it up for purely disinterested or altruistic reasons whilst it is difficult to understand why he would say so many things in his defence that are either simply wrong or untrue if his motives were innocent.

Summary

Having examined the evidence in the case, it is clear that it does substantiate the charges brought against Navalny and Ofitserov.  The Judge accepted the prosecution’s evidence and I can see no reason why he should not have done so.  It appears that the charges were properly made out and there is no reason to think that the verdict is not correct.

Fair Trial?

The trial was conducted with all the bullying and disrespect for the Judge I have come to recognise as routine in cases of this sort in Russia.

Prior to the commencement of the case the Judge was threatened with lustration.  He had to face repeated accusations throughout the trial of bias and demands that he recuse himself.  It was also made clear to him that if he decided against Navalny a complaint would be made against him to the European Court of Human Rights.  Navalny chose to ignore the Judge’s order to attend Court on a particular date, choosing instead to meet with the Investigative Committee to discuss a different case and to attend a political meeting, despite being previously told by the Judge that the Court would take steps to resolve any problems with the Investigative Committee caused by his non attendance at the meeting.  Navalny then publicly accused the Judge of complicity with the Investigative Committee in a plot against him.  He also publicly accused the Judge of economic illiteracy when the Judge rejected the evidence of his experts on timber prices.  The trial ended with a political speech from Navalny criticising Russia’s political and legal system, which had put him on trial, and making a thinly veiled call for revolution whilst largely failing to address the substance of the case against him.  The best that can be said of this behaviour is that it never descended to the level of outright farce as was the case in the Pussy Riot case.

Was the trial however actually unfair?

Article 6 of the European Convention of Human Rights of which Russia is a signatory says the following:

“1.       In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly by the press and public may be excluded from all or part of part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2.         Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.         Everyone charged with a criminal offence has the following minimum rights

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Article 7 of the European Convention of Human Rights also says

“1.       No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.  Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2.         This article shall not prejudice the trial and punishment of any person for any act or omission, which at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations”

Navalny was tried before a properly constituted court of law on a charge under Article 160 for an offence of embezzlement which is the same or very similar to offences universal to all criminal jurisdictions and specifically in the case of Britain to a charge of theft contrary to Section 1(1) of the Theft Act 1968.  There was substantial evidence to support the charge.

The media fully reported the trial.  The trial was filmed and the film was shown on the internet. The public were admitted to the Court room including some of Navalny’s supporters who appeared sporting T shirts emblazoned with the words “Putin is a thief” (something which would certainly not be tolerated in a British court room).  Navalny publicly commented on the trial at length whilst it was still underway writing about it on his own blog and sending out tweets via his mobile phone including in direct disobedience of the Judge’s order whilst the final Judgment was being read out.

Navalny was free on bail both before and during the trial.  He was represented by lawyers of his choice.  Both he and his lawyers were provided with full details of the case before the trial.  There is nothing to suggest any lack of preparation on their part.  He was given complete freedom to question and cross examine the prosecution’s witnesses, choosing to do so himself whilst wisely leaving legal argument to his lawyers.  He was allowed to call his own witnesses and did so.  The Judge did refuse to admit his expert evidence on timber prices but gave a reasoned Judgment explaining his reasons for this and as I have said he was fully justified in doing so.  The Judge also disallowed some of his other witnesses on grounds their evidence had no relevance or repeated what had already been said.  The Judge has the right to do this and there is nothing to suggest this weakened Navalny’s defence.  The trial was held no more than a few months after the charge was brought and the sentence handed down after the verdict is within the range provided by Article 160.

The only issue is the independence and impartiality of the Judge.

The Judge, Sergei Blinov, is a local Judge appointed in the proper way who tried a case in his district, which is where the alleged crime was committed.  There is nothing about the way the Judge was chosen to try the case to suggest he was not independent or was unfit to try the case.  As a local Judge in the district where the alleged crime was committed he was the obvious person to try it.

Blinov is said to be very prosecution minded and to have delivered guilty verdicts in the 130 or 150 cases (accounts differ) previous to Navalny’s that came before him.  However I have read nothing anywhere to suggest these convictions were wrong.  Besides the proper measure of the Judge’s impartiality in the case is his conduct of the case not his conduct of other cases about which nothing is known.

As to the Judge’s conduct of the case, he did occasionally reject defence applications but there is no reason to construe bias from this.  On several occasions when he did this he retired to his chambers to consider the defence’s application and then delivered a reasoned Judgment setting out in full his reasons for doing so.  On those occasions when I know something of his decisions they seemed to me to be correct.

I have already discussed the Judge’s decision to exclude Navalny’s expert evidence on timber prices and why I think it was correct.  The Judge allowed prosecution witnesses whose memory was faulty to have their memory refreshed or substituted from their written statements but I have never heard that the witnesses denied the truth of those statements and this is in line with international practice.  The witnesses for whom this was done anyway tended to be the less important ones.  The Judge also excluded other witnesses who Navalny wished to call for reasons I have already discussed.  As I have said he was entitled to do this and there is nothing to suggest that Navalny was disadvantaged by his doing so.  The Judge admitted evidence from witnesses whose statements gave the wrong address.  As the Judge surely correctly said there was no reason to exclude this evidence since there was no doubt about the existence of these witnesses.  The Judge admitted as evidence the tape records of Navalny’s telephone conversations with Ofitserov and the emails that passed between the two.  There is no doubt about the authenticity of these telephone records and emails (Navalny does not dispute them) or of their relevance to the case.  The admissibility of such evidence differs from country to country and is a question of Russian law.  I have no reason to think the Judge’s decision was wrong.  The Judge refused Navalny’s request that every tape record of his telephone conversations with Ofitserov be produced on the grounds this would exculpate him.  So far as I know Navalny never said precisely what was in these conversations that would exculpate him making this look like a fishing expedition in which case the Judge was right to refuse this request.

In summary I simply cannot see anything about the Judge’s conduct of the trial that would call into question his impartiality in the case.  On the contrary he seems to me to have bent over backwards to accommodate Navalny.  He did not for example cut short or interfere with Navalny’s lengthy and brutal cross examination of Bastrygina even though from accounts I have heard of it much of this cross examination was of doubtful relevance whilst it became increasingly circular as it went on with Navalny asking Bastrygina questions that went over ground that had already been covered.

The one curiosity about this case is that on the one occasion when the Judge is known to have made a mistake the action to correct that mistake was taken not by the defence but by the prosecution.  This happened after the verdict when the Judge mistakenly placed Navalny and Ofitserov in custody when they were still entitled to bail.  Though this is a breach of the Russian Code of Criminal Procedure and though this fact was pointed out to the defence lawyers by a lawyer who had been following the case they failed or refused to appeal it.  It was left to the prosecution to do so and to correct the Judge’s mistake (one which is apparently often made).

In conclusion there is absolutely nothing about this case that obviously stands out as suggesting that the Judge was not independent or impartial.  I am not an expert in Russian criminal procedure so I cannot definitely say none of his decisions were wrong.  If some of them were they will no doubt be set aside on appeal.  However there is nothing about the conduct of this case that renders this trial obviously unfair.  On the contrary everything  suggests a fair trial and I am sure the European Court of Human Rights will take the same view.

Disproportionate Sentence?

The rapporteurs of the Parliamentary Assembly of the Council of Europe have reported that even on the assumption that Navalny “made a mistake” the sentence he received was disproportionate.

The rapporteurs of the Parliamentary Assembly of the Council of Europe have also said that the charges against Navalny were unsubstantiated, which is obviously wrong.  Are they right to say however that his sentence is disproportionate?

If the rapporteurs of the Parliamentary Assembly of the Council of Europe believe that a 5 year prison sentence for a first time offender who pleaded not guilty for the offence of embezzling property worth $500,000, which is the crime for which Navalny was convicted, is disproportionate then they should explain this to the British authorities.  British sentencing policy as set out by the Sentencing Guidelines Council is that for a theft of an amount exceeded £125,000 (as in this case) or for more than £20,000 but involving a breach of trust of a high degree (as also in this case) the range of sentences for a first time offender who has pleaded not guilty is 2 to 6 years in prison, with the starting point being 3 years.

http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/theft_breach_of_trust/

This is exactly in line with the 4 and 5 year sentences imposed respectively on Ofitserov and Navalny.

It has been said that Navalny’s theft was on a relatively small scale and that others who have stolen far more than him have been able either to walk free or have received a lesser sentence.  Markin the spokesman of the Investigative Committee has come close to admitting as much.  It is in fact a commonplace that, as the philosophers say, the law is like a spider’s web, better at catching small flies than big ones.  However that is not a reason for giving relatively small time operators like Navalny a free pass.  Were that to happen the web would be catching no flies at all.

It is anyway a mistake to minimise the crime for which Navalny has been convicted.  This was a crime involving the theft of state property engineered by someone (Navalny) who as an unpaid adviser of the Kirov Regional government was in a particular position of trust.  It involved a high degree of deception and was carried out with the purpose of financial gain.  Navalny and Ofitserov both pleaded not guilty and Navalny especially conducted an exceptionally aggressive defence that continues to this day.  This involves attempts to discredit individuals such as Bastrygina who Navalny previously wanted to dismiss when she acted to stop him.

I do not believe that for this offence and on these facts Navalny would receive in Britain a sentence very different from the one he received in Russia.  I do not think this sentence is disproportionate on these facts and I am sure the European Court of Human Rights if asked will say the same thing.

Politically Motivated Prosecution?

The most common criticism of the case is that it is a selective and politically motivated prosecution intended to punish and silence Navalny for his opposition and anti corruption activities.

The relevant provision is Article 18 of the European Convention of Human Rights:

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”.

(Italics added)

Thousands of prosecutions on theft charges happen in Russia every year.  One cannot say that this is a selective prosecution because one of the defendants happens to be Aleksei Navalny.  The European Court of Human Rights has repeatedly said that the whole structure of the European Convention of Human Rights rests on the general assumption that public authorities in member states including Russia act in good faith.  A mere suspicion that the authorities use their powers for ulterior purposes is not sufficient to prove a violation of Article 18.  A very exacting standard of proof is applied.

This was a prosecution for a theft offence that was substantiated by a large body of evidence.  That in itself makes it very unlikely that the European Court of Human Rights will construe a political motive to this prosecution without clear evidence this was the case.  What evidence is there that this was the case?

Apart from a general assumption that any prosecution in Russia of an opposition activist is politically motivated the evidence cited in this case is as follows:

(1)   That the case against Navalny had been previously investigated but no charges were brought;

(2)   That the case against Navalny was only resurrected following the intervention of Bastrykhin the head of the Investigative Committee who at the time was engaged in a public war of words with Navalny;

(3)   Certain comments made shortly before the start of the trial by Vladimir Markin the spokesman of the Investigative Committee;

(4)   That the sentence handed down to Navalny and Ofitserov is much harsher than is normal in Russia for the sort of offence for which they were convicted;

(5)   The legal manoeuvres following Navalny’s conviction whereby he was first detained and then immediately released following the appeal of the prosecution.

As will become clear in my opinion none of this evidence such as it is comes close to passing the very high threshold set by the European Court of Human Rights, which is required to prove that a prosecution is politically motivated.

(1)   Previous Failure to Prosecute Navalny

I do not know why the previous investigations into Navalny’s crime did not result in a decision to prosecute him.  An obvious reason is that the evidence in the case only emerged slowly.  Though the fact the local police were taping his telephone calls shows that someone in 2009 had already alerted them to Navalny’s activities I understand it was only in 2012 that Opalev finally admitted to his role in the conspiracy and agreed to testify against Ofitserov and Navalny.  I do not know when the police got hold of Navalny’s emails with Ofitserov and Belykh but the fact that some of them were leaked in 2012 by a Russian hacker who calls himself Hell suggests that it may not have been before then.  In addition those emails contain a message to Navalny from Belykh in which Belykh tells Navalny that Belykh is finding it increasingly difficult to shield Navalny from the police.  That might suggest that Belykh had been exerting himself on Navalny’s behalf and played a role in getting the earlier investigations stopped.  As Governor of the Kirov Region Belykh might have been in a position to do this.  Belykh would have compelling reasons to do this given the poor light the case casts on his administration of the Kirov Region.

Another possible explanation for the delay in bringing the case is that the case only really got off the ground following the formation of Russia’s new elite law enforcement agency, the Investigative Committee in 2011.  It is entirely understandable why overworked and under resourced provincial police agencies might be wary of starting a prosecution against a well known public figure such as Navalny.  Markin, the spokesman of the Investigative Committee, has again all but said as much, confirming that the Investigative Committee effectively kick started the case, which up to then had like many other similar cases been languishing at the back of the queue.

In the end though the question of why no prosecution was brought earlier simply does not matter.  The proper test for this case is not how it compares with earlier investigations that failed.  Many crimes are investigated more than once and over a protracted period before a successful prosecution is brought.  This is especially so in a case like this where the defendants engage in a conspiracy, which by definition means that many of their actions are carried out in secret.  The proper test for this case is how it was conducted.  This was a prosecution that ended in a successful conviction following a trial that has every appearance of being fair.  Given that this is so there are no grounds to suspect anything sinister simply because earlier investigations ended in failure.

Postscript: The person I know as Peter has provided information on the Comments Thread to this article that explains the failure of the first investigation.  The first investigation was made under Article 165.  This presumably accounts for the continued belief held by some that the prosecution should have been brought under Article 165 instead of Article 160.  As discussed Article 165 has no application to this case.  This explains why the first investigation failed and in May 2011 was brought to an end.  When the case was reinvestigated under the proper Article, which is Article 160, the evidence fell into place allowing charges to be brought the following year.

(2)   Intervention by Bastrykhin

A film made in 2012 shows Bastrykhin the head of the Investigative Committee castigating his investigators for their repeated failure to pursue the investigation against Navalny.  The film was made for broadcast on national television and was broadcast on the same day or shortly after.  Bastrykhin’s intervention was public.  This shows he thought he was entitled to make it and did not think he was doing anything wrong.

Bastrykhin is right.  He did not do anything wrong by acting as he did.  Whilst it is true Bastrykhin has engaged in a public war of words with Navalny and that Navalny has floated allegations (denied by Bastrykhin) that Bastrykhin illegally owns property in the Czech Republic, Bastrykhin is at the end of the day the head of a law enforcement agency.  Investigating crime is his job.  Ordering his subordinates to investigate a crime Navalny committed was him simply doing his job.

The only point that can legitimately be made is that there is some question as to whether given the relatively small scale of the theft an agency like the Investigative Committee was the appropriate agency to investigate it.  Markin, the spokesman of the Investigative Committee, has said the reason the Investigative Committee became involved was because Navalny’s public prominence made the case in law enforcement terms something of a hot potato so that it needed an agency like the Investigative Committee to undertake it in order to ensure it was handled properly.  Behind this comment is surely awareness that because of Navalny’s involvement the case would eventually be referred to the European Court of Human Rights.  This is a statement of the obvious and I see no reason why the European Court of Human Rights should not accept it.

(3)   Markin’s Comments

Shortly before the start of the trial Vladimir Markin the spokesman of the Investigative Committee as well as explaining the reason for the Investigative Committee’s involvement in the case, made the following comments which have received extensive coverage and which have been reported as all but admitting a political motive to Navalny’s prosecution:

“If a person tries with all his strength to attract attention, or if I can put it, teases authorities – “look at me, I’m so good compared to everyone else” – well, then interest in his past grows and the process of exposing him naturally speeds up.”

This comment in no sense implies a political motive to Navalny’s prosecution.  All the comment says is that someone like Navalny who achieves fame by presenting himself as purer than everyone else (as Navalny does through his anti corruption activity) invites questions about his past.  If such a person has damaging secrets buried in his past such conduct will bring them to the surface.

This is a simple statement of the obvious familiar to anyone in the US or Britain who wishes to campaign for political office and who has something in their past they want to hide.  These words simply do not bear the sinister interpretation that has been placed on them.  Again I have no doubt the European Court of Human Rights will take the same view.

(4)   Harsher Sentence than usual for this Offence

It seems that fewer than 1% of cases brought under Article 160 in Russia end with a sentence of 5 years imprisonment such as the one that was handed down to Navalny.  It has been suggested that this shows that the heavy sentence imposed on Navalny in this case was intended to punish him and that this in turn shows that behind the case was a political motive.

This argument has to assume that the Judge in the case was not independent but was acting under instructions when he handed down his sentence.  As previously discussed there is nothing to suggest that.

Navalny’s 5 year sentence is within the range of sentences provided for by Article 160.  It is also fully in line with the sort of sentence that would be handed down to someone convicted for this sort of offence but who had pleaded not guilty in Britain.

There are simply no grounds to say this sentence is unduly harsh or that it is intended as some sort of punishment for Navalny’s political acts.  Nor is it appropriate to compare the sentence handed down to Navalny with the sentences handed down in the majority of cases where offenders are convicted under Article 160.  It is a mistake to minimise the crime committed in this case.  It is surely a much more serious crime than the great majority of crimes committed by offenders who are convicted for offences under Article 160.  It is also very unlikely that the great majority of offenders prosecuted under Article 160 defend the case in the same aggressive way Navalny has done.  That in itself explains why Navalny has received a longer sentence.  This is especially so if, as is surely the case, the great majority of offenders prosecuted under Article 160 plead guilty.

Since the sentence handed down to Navalny is within the range provided by Article 160 and is in line with international practice there are no grounds to seeing it as evidence for a political motive to this prosecution.  I am sure this will be the view of the European Court of Human Rights.

(5)   Detention and Release following Verdict

Immediately following the pronouncement of the verdict Navalny was taken into custody as would certainly be the case in Britain.  Within hours he was released following a successful appeal against this decision brought by the prosecution.  The prosecution argued successfully in the appeal that there were no grounds to place Navalny in detention pending his appeal when he had previously abided by the terms of his bail.

The sudden release of Navalny at the instigation of the prosecution triggered a storm of speculation imputing various political motives to this act.  It was suggested that Navalny might have been released to pacify crowds that had gathered near the Kremlin and who were demanding his release.  The crowds however were relatively small (estimates vary between 2,500 to 10,000) making that explanation unlikely.  A popular alternative explanation was that Navalny was released on the insistence of Sobyanin, the acting Mayor of Moscow, who wants Navalny to stand in the forthcoming mayoral election in Moscow in which Navalny is a candidate.

The simple reality is that Navalny was released because that is what the law requires.  Russia’s Code of Criminal Procedure says a defendant should not be denied bail where there is no reason to do so.  This is the case even where the defendant has been convicted for the sort of offence for which Navalny has been convicted provided he is appealing the verdict.  Navalny is appealing the verdict and has abided by the terms of his bail so there were no legal grounds to detain him.  Placing Navalny in custody was a mistake (though one which apparently is often made) and his release therefore simply corrected a mistake.

In my opinion the European Court of Human Rights is involved in these events though not because there was a political role to Navalny’s prosecution or because his release is a sign of the involvement of the political leadership in his case.  Rather it is simply a reflection of the great care that is being taken over his case.  There is a long history of complainants bringing cases against Russia to the European Court of Human Rights, which they lose on the substantive issues but in which they score wins on lesser procedural points.  Defendants in such cases have been known to spin these wins on procedural points as victories in the case even though they have actually lost on the substance.

A media operation of precisely this sort is unfolding as I write.   In the latest in its long line of Judgments the European Court of Human Rights has again ruled that there was no political motive behind the prosecution of the imprisoned Russian oligarch Mikhail Khodorkovsky and that the Judge in his case was independent and impartial so that Khodorkovsky’s trial was basically fair.  The European Court of Human Rights did however find that there were some procedural violations in the way Khodorkovsky’s case and his trial was conducted for which however the Court’s criticisms were directed at the police and at the prosecution and not at the Judge.  That the European Court of Human Rights does not think these procedural violations ultimately affected the decision in the case is shown by the fact that it only awarded Khodorkovsky 10,000 euros for these violations and refused to award any compensation to Lebedev, Khodorkovsky’s co defendant, at all.  The fact that the European Court of Human Rights has however said that there were procedural violations by the prosecution in the trial has enabled Khodorkovsky and his lawyers and media advisers to claim quite wrongly that the European Court of Human Rights has found his trial unfair and to spin a defeat into a victory.

The Russian authorities have become very sensitive to this problem.  In a case like Navalny’s, which is almost certain to be referred to the European Court of Human Rights, they acted to prevent the same thing happening again.  This to my mind provides a complete explanation for what happened.

Regardless of whether this was the case or not, the European Court of Human Rights will obviously not treat action taken to correct a judicial error as evidence of a political motive behind Navalny’s prosecution.

In summary, none of the evidence that supposedly shows that there was a political motive behind Navalny’s prosecution is remotely convincing or comes close to passing the very high threshold required by the European Court of Human Rights.  For that reason I am sure any application to the European Court of Human Rights made on that basis will fail.

Before leaving the discussion of this question, there are two further points I want to make.

It has been said that imprisoning Navalny is a serious mistake that will transform a failed opposition leader into a political martyr.

It is undoubtedly the case that before this case was brought that Navalny’s star was fading.  He had proved a divisive and ineffectual leader of the opposition Coordinating Council.  He appears to be widely disliked by other leaders of the radical liberal opposition.  The veteran Russian liberal opposition leader Boris Nemtsov repeatedly damns him with faint praise and did so again following the verdict.  Prokhorov the Russian billionaire oligarch who ran Putin second in Moscow during the Presidential election of 2012 has conspicuously refused to support him in the Moscow mayoral election.  The protest movement that began in Moscow following the parliamentary elections in December 2011 of which Navalny has effectively made himself leader is on the wane.  Opinion polls show that the more Russians come to know Navalny the greater the percentage of Russians who mistrust and dislike him.  Given his arrogance and his unpopular views on many issues that is unsurprising.  Navalny’s opinion poll rating before the verdict in the Moscow mayoral election was just 4%.  He was only able to register as a candidate for the election because Sobyanin, the acting Mayor, ordered councillors from United Russia, the government party, which Navalny had previously called “the party of crooks and scoundrels”, to support his registration.

All of this to my mind provides compelling grounds to doubt a political motive to this case.  Navalny was no conceivable threat to Putin or the government before the case was brought.  Jailing him deprives the opposition of an unpopular and incompetent leader whilst giving Navalny an opportunity to pose as a martyr.  Jailing Navalny simply because he is an outspoken opponent of the government makes no political sense and is simply stupid.  Given the international ramifications of this case if Russia really is a country were prosecutions are decided by the country’s political leadership then it is inconceivable that Putin himself would not be involved.  The suggestion I sometimes come across that Bastrykhin and the Investigative Committee have become a law unto themselves and have slipped beyond Putin’s control is completely absurd.  In his time Putin has been called many things but there are very few people indeed who call him stupid.  The fact that Putin has no conceivable interest in having Navalny jailed and derives no benefit from doing it is an overwhelmingly strong reason to doubt that he or the government or the country’s political leadership have anything to do with the case.

Lastly, though it is a subject that is outside the scope of this essay, I would simply offer my opinion that the political impact of this case has been overstated.  Opinion polls show that there has indeed been a small surge of support for Navalny in Moscow (from 4% to 9%).  I expect this to fade as even those Muscovites sympathetic to him consider the implications of voting for someone as Mayor who they know is going to prison.  Campaigns against miscarriages of justice only gain traction where there actually is a miscarriage of justice.  Since there has been no miscarriage of justice in this case public interest in this case (never strong) over time will fade away.  The latest opinion poll already appears to show this happening with growing readiness amongst Russians to accept the verdict in the case

http://en.rian.ru/russia/20130726/182437185/More-Russians-See-Navalny-Trial-as-Apolitical–Poll.html

Farther afield, interest in the case in the west has been limited with far less interest in the case than that accorded to the cases of Khodorkovsky, Magnitsky or Pussy Riot.  Quite simply Navalny has been too obviously a failure politically to attract much interest or sympathy.  Doubtless his imprisonment will be added to the long list of “crimes” of which the Russian authorities routinely stand accused but merely to say that is to show how little genuine interest in his case there really is.

As for the radical liberal opposition to Putin, they now have another martyr to add to their list, which however is already full to the brim with various equally dubious and unlikely individuals who like Navalny are deeply unattractive to the great majority of Russians if only because of their criminal records.  A radical change in political strategy is urgently needed as the complete failure of the radical opposition’s project shows.  Dropping their blind support for characters like Khodorkovsky, Navalny, Pussy Riot and (when he comes up for trial) Udaltsov is an imperative political necessity.  Getting a proper leader is now the priority and would be a good start.

Conclusion

The purpose of this essay was to examine Navalny’s case to see whether the many criticisms made of it are right.  Having examined both the law and the evidence in detail and having also looked at the conduct of the trial it is impossible for me to see that they are.  Navalny was properly convicted following a fair trial for a recognised criminal offence.  I am sure the outcome would have been the same if this case had been prosecuted in Britain.  Had it been prosecuted in Britain I am also sure it would have attracted none of the interest this case has attracted because it was brought in Russia.

There is no reason to suspect a political motive behind this case.  It is in almost every respect a commonplace case of white collar theft.  Vladimir Markin, the spokesman of the Investigative Committee, has again basically said as much.  It is the sort of case that happens in all countries at most times.  The case’s only unusual feature is that Aleksei Navalny is involved in it as one of the defendants.

There will now be an appeal.   It may be that over the course of that appeal more or different facts will come to light or more errors by the Judge will be discovered, which might cause the appeal court to set the verdict aside.  I have to say I think that very unlikely.  Beyond that there will no doubt be a complaint to the European Court of Human Rights.  Given the backlog of cases in that Court unless steps are taken to give Navalny’s case priority (for which I can see no reason) the likelihood is the European Court of Human Rights will not rule on the complaint before Navalny is released even if he serves his full sentence.  When that does happen for the reasons I have said I expect his complaint to fail.

As for Navalny himself, unless he manages to pull off a totally unexpected upset in the Moscow mayoral election that forces the authorities to take the extraordinary step of overturning the verdict in his case, which I have to say I also think extremely unlikely, he must now prepare himself for a long spell in prison.  He has the option of changing his plea and of seeking early release or of applying to Putin for a pardon but I suspect that his vanity and his need to avoid disappointing his supporters will prevent him taking it.  He can always in the meantime hope that something unexpected like a successful appeal, an upset victory in the European Court of Human Rights or a political revolution in Russia will set him free.  Until one of these unlikely events happens he remains guilty as charged.

Acknowledgements:

Navalny’s trial has gone almost entirely unreported in the west or in the Russian English language media.  Even RAPSI, Russia’s legal news agency, stopped reporting it in English.  This reflects the incredibly tedious nature of the case and the slight interest in it.  That has however made life hard for an analyst who does not speak Russian.  I therefore have to thank the person I know as Yalensis who has provided regular updates and commentaries on the case which I have followed and myself commented on.  Without those updates and commentaries this essay could not have been written.  These updates and commentaries can all be found on the blogsite Kremlin Stooge.  I want to thank Mark Chapman, the host of Kremlin Stooge, for making that all possible.

I also wish to thank Jon Hellevig, Dmitri Babich, Yalensis (again) and the person I know as Peter for providing translations of the various Articles in the Russian Criminal Code I have discussed and for providing clarification of the legal manoeuvres that caused Navalny’s unexpected release following the verdict.  I should say that I have nonetheless continued to use translations of the relevant sections of Articles 158, 160 and 165 of the Russian Criminal Code drawn from the following website http://www.russian-criminal-code.com/

Though the translations provided by this website of the Articles of the Russian Criminal Code date from 2000 the definitions of the offences set out in these Articles are unchanged.  I have preferred to use these translations of the definitions of the offences set out in these Articles since the website was made for use by lawyers and therefore translates Russian legal terms by their English equivalents.

Lastly, I would like to thank Anatoly Karlin.  His view of the case is very different from mine but his interpretation of it has offered insights that have caused me to make some of the points I have made.  Indeed at times this essay is practically a debate with him.

It goes without saying that all the opinions in this essay and any errors in it are my own.

Postscript:  A link to my interview on 18th July 2013 with RT TV on the Navalny case following his conviction https://www.dropbox.com/s/ggugxezs3xwdc53/Alexander_Mercouris.asf

MARGARET THATCHER – THE OVERRATED STATESWOMAN

The news of Margaret Thatcher’s death has provoked the predictable ocean of commentary so I may as well express my own view of her.

My own view of Thatcher, which was formed whilst she was Prime Minister and which has never changed, is that she was in person a much overrated figure.  Her opinions remained those of the 1940s (the decade she reached adulthood) and she never transcended or evolved beyond them.  Thus she was always strongly antagonistic to Labour and the unions, reflecting the intense Conservative middle class resentment of Labour’s victory in 1945.  She was basically hostile to the National Health Service, not from any well developed ideological reasons but because Labour created it. It began to be seriously neglected whilst she was Prime Minister and has never fully recovered.

Thatcher remained strongly attached to Friedrich Hayek, who she would have known as a prominent right wing anti Labour publicist in the 1940s, and who was an otherwise largely forgotten figure until shortly before she became Conservative leader.  However in my opinion she never had the fundamentalist free market views on economic questions that people attribute to her.  Her government’s economic policies were a mixture of improvisations (for example the privatisations that got underway in the mid 1980s) or made up by others (for example the disastrous monetarist experiment of the early 1980s, whose real author seems to have been Keith Joseph).  As she showed by her refusal to privatise the Post Office or to abolish tax relief on mortgage interest, Thatcher at no time let her notional commitment to free market economic ideas threaten the interests of her middle class supporters.

She was a good politician.  She possessed in abundance the personal charm that is indispensable for a successful career in politics, though it was used to manipulate those around her rather than being projected to the nation as a whole.  Above all though she was extremely careful to look after the interests of her core middle class constituency whose prejudices she shared and articulated.  Only towards the end as she began to lose her touch did she start to infringe on its economic interests, for example by the introduction of the poll tax, in a way that brought her crashing down.  However it is important to say that the secret of Thatcher’s political success was the failure of her opponents rather than her actions.  Though never popular she had the extreme good fortune to be Conservative Prime Minister at a time when the Labour Party was going through an acrimonious split, which made it unelectable.  That more than anything else accounts for her election wins in 1983 and 1987.

Thatcher’s opinions on international questions were also shaped by her experiences of the 1940s.  Thus she despised the French who capitulated to the Germans, liked the Greeks who stood up to them, supported the Israelis, who represented the nation the Germans persecuted (she also had an unusually large number of Jews in her Cabinet), was in love with the US, which came to Britain’s rescue and despite her occasional anti Communist rhodomontades actually liked the Russians rather a lot (Russia was the first country she visited as Prime Minister when she annoyed the Americans by stopping off at Moscow airport to meet the Soviet Prime Minister Aleksei Kosygin on her way to a G7 summit).   By contrast her hostility to Germany (the wartime enemy) never faded.  Her sympathy for the apartheid regime in South Africa, which is today notorious, was also a function of opinions shaped by the 1940s.  Though she was no racist the white South Africans were always for Thatcher allies who fought alongside Britain in the Second World War and who could not therefore be abandoned.

She was no intellectual despite what people say.  Both her speeches and her memoirs (the latter of course heavily ghost written) are banal.  Other than the odd sound bite (many of which originated with her speechwriters and which are anyway often wrongly remembered) no one today reads a Thatcher speech.  I remember how disappointed I was when I did.  Thatcherism as an intellectual system, to the extent that it existed at all, was in my opinion more the creation of people like Nigel Lawson and John Redwood and of some of the others who worked for her than it was her own.

She was a remote figure and I doubt that she knew much of what was going on or would have liked it much if she did.  I doubt for example that she would have approved of the flamboyant and amoral lifestyles or practices of some of her supporters in the City of London, which were so much at variance with the austere conduct of her father  that she was brought up with.

She was fortunate (if that is the right word) in being the object of a very un British personality cult orchestrated by her media advisers and Rupert Murdoch that created an image of her that she struggled to live up to.  Thus she worked excessively long hours, got by with far too little sleep and (as became known only much later) drank altogether too much.  I suspect that alcohol fuelled some of her more emotional performances in the House of Commons, which remain in the memory.  The struggle to sustain her image also made her very nervous and insecure.  This surely is the main reason why she rarely travelled outside Westminster.  It was also what was surely behind her fraught relations with some of her ministers, which led to constant plotting against them on her part and by her supporters, in a way that was big news and which seemed very shocking at the time but which is largely forgotten today.

It is largely however through the confected image of her personality cult that people remember Thatcher today.  Paradoxically, this image was reproduced even by her critics, for example by the satirical television programme Spitting Image, in a way that undoubtedly helped her politically.

She was hardworking and was within certain limitations a competent though hardly an outstanding administrator.  Though the business of government was never as dysfunctional as it became under Blair, as an administrator she was definitely inferior to her two predecessors, Wilson and Callaghan.  Again the record of this is largely forgotten, with the “banana skins”, the bungled introduction of the national schools’ curriculum and various other administrative failures making waves at the time but having vanished now down a memory hole.  Similarly, though she dominated parliamentary debates and Prime Minister’s Questions, the same had been equally true before of Wilson and Callaghan in a way that today is also forgotten.

In saying all of this I do not deny the tremendous importance of what happened both in Britain and elsewhere in the 1980s.   The point I am trying to make is that it is important to reduce Thatcher herself to her true dimensions.  That way the changes that happened in the 1980s can be better understood and her contribution, such as it was, better appreciated.

BEREZOVSKY

The Commercial Court in London on Friday gave its verdict in a case brought by the fugitive Russian oligarch Boris Berezovsky against the Russian billionaire businessman Roman Abramovich.  The full Judgment has not yet been delivered.  The Judge has however provided a summary of the Judgment:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/berezovsky-abramovich-summary.pdf

The case

I do not propose to discuss the case itself.  The case was simple and the Judgment explains it.  Berezovsky claimed Abramovich owned or acquired interests in various companies on trust for Berezovsky who was the true owner of these interests. No issues of law were involved.  It was for Berezovsky to prove the truth of what he said.  Berezovsky had no evidence but his uncorroborated word.  The Judge did not believe him.  The Judgment is based entirely on fact.  An appeal is therefore hopeless.

Reports in Britain speak of the case providing an insight into Russia.  The case does say a lot about Russia though mainly about the Russia of the 1990s.   The case however says a lot more about Britain.  It is that I want to discuss.

The Judge’s assessment of Berezovsky

The case was one for Berezovsky to prove.  The Judge could have confined herself to saying that he had failed to prove it.  The Judge went much further.  I will set out what she said about Berezovsky in full:

“…..I found Mr. Berezovsky an unimpressive, and inherently unreliable, witness, who regarded truth as a transitory, flexible concept, which could be moulded to suit his current purposes.  At times the evidence which he gave was deliberately dishonest; sometimes he was clearly making his evidence up as he went along in response to the perceived difficulty in answering the questions in a manner consistent with his case; at other times, I gained the impression that he was not necessarily being deliberately dishonest, but had deluded himself into believing his own version of events.  On occasions he tried to avoid answering questions by making long and irrelevant speeches, or by professing to have forgotten facts which he had been happy to record in his pleadings or witness statements.  He embroidered or supplemented statements in his witness statements, or directly contradicted them.  He departed from his own previous oral evidence, sometimes within minutes of having given it.  When the evidence presented problems, Mr. Berezovsky simply changed his case so as to distance himself from statements and in witness statements which he had signed or approved, blaming the “interpretation” of his lawyers, as if this somehow diminished his pleadings and witness statements.  His “I blame my lawyers” excuse was not convincing.”    

In a case Berezovsky brought in order to make himself and his associates lots of  money the Judge says he went to Court and lied on oath.  The Judge says he is “inherently unreliable”, regards truth “as a transitory, flexible concept, which (can) be moulded to suit his current purposes” and can delude himself “into believing his own version of events” even when this is obviously untrue.  In effect the Judge says that nothing Berezovsky says whether inside or outside a Court room can be assumed to be true.

The only other time I have heard a British Judge speak about a party to a case in this way the Judge confiscated his papers and sent them to the Director of Public Prosecutions to assess whether criminal charges should be brought in view of the attempt to mislead the Court.  That did not happen in that case and will not happen in this case.  However it gives some idea of how severe the Judge’s comments about Berezovsky were.

Berezovsky’s reputation

The Judge’s comments will come as no surprise to anyone in Russia.  Berezovsky’s reputation there is toxic and has been so for a long time.  Even the most militant sections of the anti Putin opposition keep a wide distance from him.  When a photograph appeared a few months ago in a provincial Russian newspaper purportedly showing Berezovsky in the company of Alexei Navalny the Russian opposition activist and blogger Navalny went to great lengths to expose the photograph as a fake.

In Britain it has been an entirely different matter.  Here Berezovsky has had no shortage of believers.  To an extent I think few people even in Russia realise it is Berezovsky and his publicity machine that is the source of many of the critical stories that appear in the British press about Russia and which have formed the British view of Russia.  To understand the extent to which this is so a number of examples of such stories will suffice:

FSB Berezovsky “Murder Plot”

Berezovsky alleged in the autumn of 1998 that the FSB planned to kill him.  He staged a press conference in Moscow in which several masked men appeared who he claimed were FSB agents opposed to the plot.  The starring role in the press conference was played by Litvinenko who did not wear a mask and who was at this time an FSB agent but who had already been moonlighting for Berezovsky for some time and who subsequently became full time Berezovsky’s employee.

The British media has accepted the truth of this plot.  The former BBC reporter Martin Sixsmith in a book he wrote about the Litvinenko affair actually claims to have deduced the identities of several of the masked FSB agents who attended the press conference.  The plot is often cited in connection with the Moscow apartment bombings and the Litvinenko affair as evidence of the murderous character of the FSB.

A number of vague comments by certain former members of the FSB are sometimes cited as corroborating the existence of this plot though on examination they are pure hearsay and do no such thing.  The evidence for the existence of the plot actually originates entirely with Berezovsky himself or with Litvinenko who already at this time appears to have been closely associated with Berezovsky and who subsequently became Berezovsky’s employee.  The only evidence the masked men who attended the Moscow press conference were FSB agents is that Berezovsky and Litvinenko say they were.  Since Berezovsky’s evidence is “inherently unreliable” and since for Berezovsky the truth “is a transitory, flexible, concept” which can be “moulded to suit his current purposes” there is no reason to accept his or Litvinenko’s word for it that there was a plot by the FSB to kill Berezovsky or to believe that the masked men who attended the Moscow press conference were FSB agents.  It is just as likely they were actors put up to do it by Berezovsky himself.

Moscow apartment bombings

Over the course of the summer of 1999 a series of bomb attacks were carried out against a number of apartment buildings in Moscow.  The Russian authorities have accused jihadi rebels from the northern Caucasus of carrying out the bombings.  At the time the leaders of the jihadi rebels including their most famous fighter Shamil Basayev openly admitted jihadi involvement in the bombings.  Subsequently the Russian authorities identified the actual persons they say carried out the bombings.  Most were killed in the fighting in the northern Caucasus.  A number have been captured and were tried and imprisoned for the crime.

Notwithstanding the overwhelming evidence that jihadi terrorists were behind the apartment bombings the myth has persisted that they were the work of the Russian authorities.  Since the bomb attacks according to this theory were the work of the FSB, supposedly the lineal successor of the former Soviet KGB in which Putin once served and of which Putin had until just a few months before been the head, it is assumed he was involved.  Whenever the subject of the apartment bombings comes up the British media invariably implies that there are doubts about who was responsible and several British journalists have at various times hinted that Putin was involved.  Putin’s most recent biographer, Masha Gessen, says she believes Putin was involved.

I had occasion to research the Moscow apartment bombings seven years ago.  I quickly concluded that neither Putin nor the FSB nor any other branch of the Russian government were involved and that the bombings were the work of jihadi terrorists just as the Russian authorities say they were.

More to the point it became obvious to me that even if Berezovsky was not the actual originator of the myth that the Russian authorities were behind the apartment bombings he was the person who was largely responsible for keeping the myth alive.  Witness after witness to the supposed involvement of the Russian authorities in the bombings turned out either to have connections to Berezovsky or to people connected to Berezovsky who could be plausibly described as members of his network. Always and invariably the trail led back to Berezovsky.  Even witnesses who initially seemed to be genuinely independent proved to have had been in contact with Berezovsky or his agents.

I remember being impressed at the time by the amount of energy and resources Berezovsky had invested in the affair.  The most detailed account of the Russian authorities’ supposed involvement in the bombings was a book co authored by Litvinenko who was at the time Berezovsky’s employee.  The book was worthless as evidence as shown by the fact that around half the interviews in it were anonymous.  It remains however the often unacknowledged source for many of the details that regularly appear in the western press about the affair.

Berezovsky Putin’s patron?

Berezovsky has repeatedly claimed that Putin was originally his protégé and that it was he who recommended Putin to Yeltsin first to head the FSB and then for the post of Prime Minister and eventual successor.  If one is to believe Berezovsky it is Berezovsky who is responsible for Putin’s rise to power.

This story is universally believed I believe even in Russia itself.  It has become the accepted narrative of Putin’s rise to power.  Corroboration is sometimes said to be provided by records that supposedly show an unusually large number of meetings between Berezovsky and Putin.  It is of course also the case that Berezovsky’s television and radio stations and newspapers strongly supported Putin in the December 1999 parliamentary elections and in the March 2000 Presidential elections.  Not only is it widely assumed that Putin was originally Berezovsky’s protégé but the speed with which Putin turned against Berezovsky once he became President is regularly cited at least in Britain as evidence for Putin’s ruthless and treacherous personality.

It has always puzzled me that this claim is so widely believed.  The only evidence for it ultimately comes from Berezovsky himself.  All the accounts one reads of Berezovsky’s meetings with Yeltsin in which he is supposed to have recommended Putin to Yeltsin and of Berezovsky’s actions on Putin’s behalf appear to originate with Berezovsky.

In the recent case the Judge had to decide whether to believe Berezovsky’s account of meetings Berezovsky claims to have had with Abramovich.  The Judge decided that Berezovsky’s account of these meetings was false.  If Berezovsky’s account of these meetings with Abramovich is false why suppose his account of his meetings with Yeltsin is true?

The difficulty in believing that Putin was Berezovsky’s protege is that in the autumn of 1998 when Berezovsky claims he was lobbying Yeltsin on Putin’s behalf Berezovsky claimed the FSB was planning to kill him (see above).   Putin at that time was the head of the FSB.  In other words, if one is to believe Berezovsky, he was lobbying for the promotion of the man who headed the organisation that was trying to kill him.

The claim Putin was Berezovsky’s protégé looks to me like another example of Berezovsky’s grandiosity (very obvious during the trial) and his propensity, mentioned by the Judge, “to make things up as he goes along” and to change and contradict his own story when it suits him.

As for the numerous meetings between Putin and Berezovsky these do not prove that Putin was Berezovsky’s protégé.  What they show (if they really happened) is Berezovsky’s importance at the time in the dysfunctional Russian power structure and the need for even senior officials like Putin to pay him court.  As to Berezovsky’s support for Putin in the parliamentary and Presidential elections of 1999 and 2000, it tends to get forgotten that the alternatives to Putin in those elections were Primakov and Zyuganov both of whom were Berezovsky’s sworn enemies.  Indeed Primakov is supposed to have wanted to have Berezovsky arrested.  What choice did Berezovsky therefore have?

Berezovsky champion of the free press?

Berezovsky has represented his falling out with Putin as a consequence of a power grab by Putin who supposedly wanted to take Russia in a more authoritarian and anti democratic direction to which Berezovsky as a democrat was naturally opposed.   Putin supposedly also wanted to gain control of the Russian media, which was at this time largely divided between Berezovsky and his former associate and erstwhile rival Guzinsky.  According to Berezovsky it was this that made Putin turn against him causing Berezovsky and Guzinsky to flee into exile.  Putin’s “seizure” of the Russian media from Berezovsky and Guzinsky is according to this narrative, which is universally believed in Britain, a key event in the consolidation of Putin’s power.

To assess the truth of this claim it is necessary to consider the Judge’s assessment of the other party to the case, Roman Abramovich.  Since the case could have been decided purely on the Judge’s assessment of Berezovsky’s truthfulness or otherwise the Judge did not need to assess Abramovich’s honesty and truthfulness as a witness.  The Judge nonetheless did so and here is what she said:

“….Mr. Abramovich gave careful and thoughtful answers, which were focused on the specific issues about which he was being questioned.  At all times, he was concerned to ensure that he understood the precise question, and the precise premise underlying, the question which he was being asked.  He was meticulous in making sure that, despite the difficulties of the translation process, he understood the sense of the questions which was being put to him.  To a certain extent that difference, no doubt, reflected the different personalities of the two men, for which I gave every allowance possible to Mr. Berezovsky.  But it also reflected Mr. Abramovich’s responsible approach to giving answers which he could honestly support.

…..

In conclusion I found Mr. Abramovich to be a truthful, and on the whole reliable, witness.”

In his evidence at the trial Abramovich, who the Judge says is a “truthful, and on the whole reliable, witness” said that Berezovsky in the 1990s ran what was to all intents and purposes a gigantic protection and extortion racket which obliged people like Abramovich to pay him enormous sums of money in return for protection.  Abramovich also said that Berezovsky’s demands were backed by the threat of Berezovsky’s widely believed connections to Chechen terrorists and gangsters.  According to Abramovich Berezovsky used the enormous sums of money people like Abramovich paid him to live a lifestyle that would have embarrassed a Roman emperor.

The Judge said in her Judgment that there was more to the relationship between Berezovsky and Abramovich than had come out in Court.  Nonetheless she called Abramovich a “truthful, and on the whole reliable, witness”.  Abramovich’s description of Berezovsky’s conduct in the 1990s was part of his evidence in the case and was an essential part of his defence so when the Judge said that he is a “truthful, and on the whole reliable, witness” she was saying she believed him.

Is an individual who extorts billions of dollars through a protection racket a fit and proper person to run national television stations and newspapers?  The short answer is no.  Abramovich, who the Judge says is “a truthful, and on the whole reliable, witness”, says that that is exactly the sort of person Berezovsky was.  Seen in this light Putin’s actions to relieve Berezovsky of control of his television stations and newspapers was not a sinister authoritarian power grab but a public service.

Sibneft

Berezovsky has claimed ever since he left Russia in 2000 that he was threatened by Putin and by the Russian government into transferring his interest in the Russian oil company Sibneft to Abramovich.

This claim has been universally believed in Britain.  The Financial Times in a somewhat plaintive article published following the Judgment says the forced transfer of Berezovsky’s interest in Sibneft to Abramovich is part of the accepted narrative of events in Russia after Putin came to power.  The incident is routinely cited as evidence for the disregard of private property rights and legal processes in Russia and of Putin’s personal involvement in such matters and of his brutal methods.

There is no need in relation to the Sibneft affair to draw any inferences from the Judge’s assessment of Berezovsky’s personality since the Sibneft affair was actually part of the case Berezovsky brought against Abramovich which the Judge had to decide.  Her decision is that Berezovsky’s account is untrue.  The Judge said that Putin and the Russian government never threatened Berezovsky to force Berezovsky to transfer his interest in Sibneft to Abramovich.  A British Judge heard what Berezovsky and Abramovich had to say and decided that a key part of the accepted narrative of recent Russian history as believed in Britain is false.

Litvinenko

In 2006 the former FSB agent Litvinenko died in London in murky circumstances.  The British authorities claim he was poisoned with polonium and have named a former KGB officer Andrei Lugovoi as his killer.  The British authorities have not however as of the time of writing released the autopsy report and the circumstances of Litvinenko’s death are currently under investigation by a British Coroner.

What gets overlooked in British accounts of the Litvinenko affair is that all the main individuals involved in the affair, Litvinenko, Lugovoi and Goldfarb are connected to Berezovsky.  At the time of his death Litvinenko was living in a house owned by Berezovsky and had been associated with Berezovsky since at least 1994 though shortly before his death he had stopped actually working for Berezovsky.  Goldfarb who orchestrated the blizzard of publicity around the case following Litvinenko’s death and who produced what he claims is a deathbed declaration of Litvinenko’s which accuses Putin of his murder is a long time associate of Berezovsky’s who heads a New York based charity founded and funded by Berezovsky.  Lugovoi once provided security services for Berezovsky’s television and radio company.

Over the course of the police investigation into Litvinenko’s death polonium traces were found in buildings occupied by businesses belonging to Berezovsky.  Notwithstanding this and notwithstanding Berezovsky’s known connections with the most important persons involved in the case the British authorities refused a Russian request for Russian investigators to interview him about it.

What the publicity campaign orchestrated by Goldfarb following Litvinenko’s death succeeded in doing, whether intentionally or otherwise, was to divert attention away from Berezovsky towards Putin who unlike Berezovsky has had no known connection to any of the persons involved in the case and who is unlikely to have met any of them.

Eventually Berezovsky himself joined in.  A book that subsequently appeared about the Litvinenko affair written by the former BBC Moscow correspondent Martin Sixsmith draws heavily on interviews with Berezovsky.

Sixsmith’s book is a testament to the boundless credulity of western journalists and their unshakable faith in Putin’s wickedness and in the wickedness of the Russian government.  It refers to Berezovsky as the leader of the Russian opposition, which is absurd, and as Putin’s greatest enemy, which is also absurd.  It accepts a building Sixsmith was driven past in Moscow as an FSB secret poisons laboratory on the word of the driver though since Litvinenko is supposed to have been poisoned not with some secret poison but with polonium the relevance of this to Litvinenko’s death is not obvious.  It treats a comment by a Russian prosecutor that the Russian authorities had no reason to kill Litvinenko as an admission that the Russian authorities kill people when they have reason to.  It contains other similar speculations and non sequiturs too numerous to count. 

With a very few honourable exceptions (Mary Dejevsky in the Independent being a case in point) the rest of the British press has followed suit.  Both the Times and the Guardian shortly after Litvinenko’s death published editorials that stated baldly that Litvinenko had been murdered in London by the FSB.  This also seems to have been the operating assumption of the police when they investigated Litvinenko’s death.  It continues to be what most people think about the case including one person who has posted a comment on my blog.

I do not know who killed Litvinenko or how he was murdered or even whether he was murdered at all.  I do however wonder whether the British media and the British police would have been quite so willing to assume that Putin and the FSB murdered him if they knew that the person who has been the most enthusiastic proponent of this theory is someone for whom truth is “a transitory, flexible concept”, which can be “moulded” to suit “whatever his current purposes are”.

Berezovsky protected by Britain

Despite his appalling reputation in Russia the British authorities not only granted Berezovsky political asylum, a doubtful but defendable decision, but inexcusably have also given him British travel documents under the name “Platon Elenin”.  These mean that when Berezovsky travels abroad with these documents he does so with the British government’s protection.

This person to whom Britain has given travel documents has been exposed by a British Judge in a British Court as a dishonest person who regards truth as a “transitory, flexible concept” which he seeks to mould “to suit his current purposes”.  He is also someone who is prepared to go to Court and lie on oath in a case he has brought which has cost British taxpayers millions of pounds and in which his objective was to make for himself and his associates lots of money.

This is a person who though living in Britain and in possession of British travel documents the Judge says remains resident in Russia for tax purposes, which must mean he only pays a limited amount of tax in Britain.  How much tax does he pay in Russia?

This same person to whom Britain has given travel documents has been described by the other party to the case (someone who the Judge said was a “truthful, and on the whole reliable, witness”) as running in Russia a gigantic protection racket for his own private gain.

Some years ago the British government refused the Egyptian businessman Mohammed Al Fayed British citizenship notwithstanding that unlike Berezovsky Mohammed Al Fayed was resident in this country and owned major businesses here such as Harrods and Turnbull & Asser which provided employment to thousands of British workers and which paid substantial amounts of money to the British state in tax.  I never heard anyone say things about Mohammed Al Fayed that come anywhere close to some of the things that were said about Berezovsky in the Commercial Court.

Stories have circulated about Berezovsky for years so the British authorities when they gave Berezovsky British travel documents could not have been unaware of the things that have been said about him.   In 2000 a book about Berezovsky came out which was written by the American investigative journalist Paul Klebnikov, who was subsequently killed.  This book gave a detailed and extraordinary account of Berezovsky’s career until then.  It also named him “the godfather of the Kremlin”.  The British authorities cannot therefore say that they had no warning about the person they were giving travel documents to when they gave them to him.  In the light of this and in the light of what the Judge and Abramovich have said about Berezovsky during the case I cannot help but ask myself what Berezovsky has done to deserve British travel documents when Mohammed Al Fayed did not deserve British citizenship.

Conclusion – Berezovsky and the British fantasy of Russia

Over the last decade the British media and the British political establishment have bought into a vision of Russia as a “gangster” or “mafia” state ruled by a corrupt and ruthless kleptocracy presided over by Putin himself.  Berezovsky has been an enthusiastic proponent of this vision.  He is also its key witness and in so far as belief in it has enabled him to avoid extradition to Russia and to obtain British travel documents is its biggest beneficiary.

When questioned in a British Court by a British Counsel before a British Judge the fictions Berezovsky peddles have been exposed for what they are – his own fantasies.  Yet these fantasies have been key building blocks in constructing the vision the British media and establishment have of Russia.

As a witness Berezovsky is now discredited.  The British establishment and the British media have however invested far too heavily in the image of Putin and of Russia Berezovsky has played such a big part in fabricating to jettison it.  I have no doubt this image will outlast Berezovsky even though he, its main witness, is now discredited.  Certainly it will never occur to anyone in Britain to change their view of Russia simply because Berezovsky has been discredited or to consider that what Berezovsky has been doing is falsely accuse others of doing the very things he has been accused of doing himself.  Britain as the country that prefers Berezovsky’s fantasies to the truth is the loser.

PUSSY RIOT – AFTER THE JUDGMENT

The purpose of my previous post on the Pussy Riot case was to show that there was nothing wrong or sinister about the decision of the Russian authorities to prosecute the Pussy Riot case.  The purpose of this post is to discuss the trial and the judgment and to discuss the prospects of the forthcoming appeal and complaint to the European Court of Human Rights.  Along the way I shall assess whether the trial was a show trial as many allege and whether the judgment was a sham.  I shall also discuss the sentence and whether the criticism of the sentence as “disproportionate” is correct.

This post should be read as a follow up to the previous post on the Pussy Riot case.

http://mercouris.wordpress.com/2012/08/07/pussy-riot-2/

The Judgment

On 17th August 2012 the Pussy Riot trial in Moscow finally ended with the conviction of the three defendants.  The judge sentenced them to two years imprisonment.

The judgment took several hours to deliver and is very long.  It has been published in Russian but I have not found a complete translation in English.  The Russian Legal Information Agency (RAPSI – a branch of RIA Novosti) has however provided a useful summary of the Judgment and of each day of the trial except for some reason of the first day.

http://www.rapsinews.com/judicial_analyst/20120820/264341551.html

The day summaries of the trial convey something of its madcap quality.  The summary of the judgment though minimal gives an insight to the judge’s reasoning.  RIA Novosti on its main English language website adds the important detail that the judge found that the references to Putin did not appear in the “punk prayer” performed in the Cathedral but were added later to the film of the “punk prayer” posted on YouTube:

http://en.rian.ru/russia/20120817/175268773.html

Other reports from other news agencies including Itar Tass and Interfax confirm that the judge also found that the defendants acted as an organised group, that their action constituted a “gross breach of public order showing disrespect for society” and (based on the psycholinguistic report) that though fit to stand trial and aware of the nature of their actions two of the defendants, Tolokonnikova and Alyokhina, suffer from borderline personality disorders.

There is nothing surprising in any of these conclusions.  That the defendants acted as part of an organised group and that their action was premeditated and was planned in advance is unarguable.  The evidence at the trial shows that the defendants acted out a rehearsal of the “punk prayer” in another church.

The judge says that there were around fifty persons present in the Cathedral when the “punk prayer” took place.  Many of these were engaged in the act of worship.  Some were called as prosecution witnesses and confirmed the deep offence the “punk prayer” caused them.

It was for the judge to decide whether the “punk prayer” was a “gross breach of public order showing disrespect for society” as required by Article 213.  As is normal with Statutes and law Codes Articles 213 does not itself define what a “gross breach of public order” which “shows disrespect for society” is.  It is for the Court applying jurisprudence to decide in each case whether on the facts a “gross breach of public order showing disrespect for society” has taken place.  As I said in my previous post it was a virtual certainty that the judge would find that the “punk prayer” did amount to a “gross breach of public order showing disrespect for society” and that is exactly what she did.

The entire case turned on the defendants’ motive and whether they acted out of “religious hatred”.  Here the defendants’ conduct during and before the trial did them no favours.  Not only did the defendants delay making a full admission and a heavily qualified apology until the first day of the trial (a delay sharply criticised by the Russian liberal political leader Grigory Yavlinsky who was otherwise sympathetic to the defendants) but the defendants behaved throughout the trial with a complete lack of contrition and showed extraordinary disrespect to the court, the prosecution, the Patriarch and the prosecution’s witnesses.

Instead the defendants used the Court as a platform to make inflammatory political statements, which contained more denunciations of the Patriarch and of the Russian Orthodox Church.  Their final speeches convey the impression that rather than regret what they did the defendants are proud of it.

http://www.counterpunch.org/2012/08/13/closing-statement-in-pussy-riot-trial/

http://www.counterpunch.org/2012/08/13/closing-statement-in-pussy-riot-trial-2/

http://criticallegalthinking.com/2012/08/20/pussy-riot-maria-alyokhinas-closing-statement/

None of these speeches contains any hint of contrition or apology or shows any trace of a genuine acknowledgement of the offence caused by the “punk prayer” to Russian Orthodox Christians.  All three defendants place the “punk prayer” squarely within the tradition of the propaganda of the deed.  All three criticise the Patriarch and the hierarchy of the Russian Orthodox Church.  All three claim a better understanding of Christianity than the Russian Orthodox Church.  All three combine further denunciations of Putin and the Russian power structure with claims that the Russian Orthodox Church (and the Court itself) are part of the Russian power structure.  All three claim that it is the Russian power structure including the Russian Orthodox Church, which is on trial rather than them.

All this may be very rousing to the defendants’ supporters.  It is difficult to see how the judge trying the case could however see such comments as anything other than self incriminating.  The judge will have especially noticed that Samutsevich in her closing speech as well as again calling the Patriarch by his given name in place of his Church name and repeating the smear that the Patriarch is a KGB agent also specifically admitted that the “punk prayer” was a parody of Russian Orthodox Christian worship.

“In our performance we dared, without the Patriarch’s blessing, to combine the visual image of Orthodox culture and protest  culture, suggesting to smart people that Orthodox culture belongs not only to the Russian Orthodox Church and Putin, that it might also take the civilian rebellion and protest in Russia”.

(Yekaterina Samutsevitch – closing statement – Italics added)

Outside the court room Alyokhina went further.  In a newspaper interview she said the case proved that the Russian security services and the Russian Orthodox Church have “fused”.

http://chtodelat.wordpress.com/2012/08/08/alyokhina/

In the light of all this and given that the “punk prayer” was a planned and rehearsed parody of the act of Christian worship carried out without warning or permission before worshippers in a Cathedral using scatological language and containing abuse of the Patriarch it is completely unsurprising that the judge should have found that the “punk prayer” was motivated by “religious hatred”.  I have no doubt that a judge in any other country trying the same case on the same law with the same facts would have come to the same view.

Appeal

There will now be an appeal.  An appeal is not a retrial.  An appeal court does not re try a case or ask itself whether if it retried the case it would come to a different conclusion from that of the trial judge.  What an appeal court does is consider whether the judge applied the law correctly when deciding the case.

“Religious hatred”

In a comment the person I know as Peter made on another blog he argued (so far as I can tell – I don’t speak Russian) that since the charge under Article 213 requires “religious hatred” the judge’s reasoning, which based “religious hatred” on the defendants’ “feminism”, is unconvincing and the judge’s decision that the defendants were motivated by “religious hatred” is therefore wrong.  I gather this view is now being repeated by the defendants’ supporters in Russia especially in radio talk shows.

It will be for the appeal court to decide whether there is anything to this point.  I have to say that I don’t think it is anything like as strong as Peter seems to think it is.  It is not my job or Peter’s job or the job of people commenting about a case on Russian radio stations to interpret the law or to decide what particular words in a law Code mean.  That is the job of the Court.  If a Court trying a case decides that the words in an Article have a particular meaning then that is the meaning they have unless and until an appeal court says otherwise.

Obviously I cannot say what the appeal court will say in this case.  On balance the judge’s reasoning with which Peter takes issue looks to me like standard judicial interpretation of words in an Article of the sort that courts engage in all the time and which is intended to relate the words in the Article to the case that is being tried.  Since the judge found that the “punk prayer” was premeditated and was intended to offend Russian Orthodox Christians her reasoning is understandable.  Unless the appeal court decides that the judge seriously misdirected herself, which frankly looks unlikely, any appeal based on this point will fail.  In that case the words “religious hatred” in religious hate cases brought under Article 213 will henceforth have the meaning the judge says they have however odd this meaning may appear to Peter.

Mistrial

The verdict could be challenged on procedural grounds.  The trial was a chaotic affair as were the pre trial proceedings.  There may be grounds to argue that this made the trial unfair and that there has been a mistrial in which case a new trial could conceivably be ordered. I have to say however based on the day summaries I have read that it seems to me that the defendants were not in the end disadvantaged by the chaotic way the trial was conducted.  The people who seem to have suffered most were the prosecution’s witnesses.  If the appeal Court takes the same view, as I expect it will, then any appeal based on this point will fail.

Exclusion of evidence

The defence might appeal on the grounds that some of its evidence was excluded.  The evidence that was excluded seems however at least to me to have been of little or no relevance to the case.  It does not seem to have touched on the “punk prayer” at all.  I cannot see how the defence can argue that if this evidence had been admitted it would have changed the outcome of the case.  Again if the Court is of this view then any appeal based on this point will fail.

Bias

Throughout the trial the defence repeatedly argued that the judge was biased and made repeated attempts to have her resign from the case.  The day summaries of the trial show extraordinary levels of disrespect by the defence for the judge.  They do not so far as I can see show any evidence of bias by the judge.  The evidence the judge decided to exclude was as I have said of little or no relevance to the case.  There have been numerous complaints that the judge repeatedly cut short attempts by the defence to cross examine the prosecution’s witnesses.  In every instance this happened that I know of the judge’s decision appears to me to have been right.  The judge would have been failing in her duty as a judge if she had allowed the defence unrestrained licence to harass and mislead the prosecution’s witnesses by engaging in irrelevant and pointless lines of enquiry.

Whilst it is impossible for me to say definitely without looking at the whole judgment and the case papers that there are no grounds for appeal, at the moment the prospects of the appeal do not seem to me good.

European Court of Human Rights

If the appeal fails the defence can apply to the European Court of Human Rights.  Late in the trial in what I think was an act of extraordinary discourtesy the defence lawyers told the judge they would do just that even though the judge at that point had not yet delivered her judgment.

The European Court of Human Rights is not an appeal court or a trial court. The European Court of Human Rights will not decide whether or not the defendants committed “hooliganism motivated by religious hatred”.  What the European Court of Human Rights does is enforce the European Convention on Human Rights.  Any application to the European Court of Human Rights must show that there has been a breach of one or more of the Articles of the European Convention on Human Rights.

ECHR Article 3 – Torture or Mistreatment

The defendants and their lawyers have claimed that the defendants were mistreated or even tortured both before the trial and during the trial.  Article 3 of the European Convention on Human Rights reads

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

Whether the defendants in the Pussy Riot case were tortured or subjected to “inhuman or degrading treatment or punishment” before or during their trial is a question of fact.  Nothing I have seen or heard suggests they were.  The defendants during the trial appeared to be in good spirits.  They participated fully in the trial questioning the prosecution’s witnesses and delivering lengthy closing speeches.  When doctors and an ambulance were called nothing was found to be wrong with them.  None of this of course proves that they were not tortured or mistreated but it does make it seem unlikely.

ECHR Article 6 –  Right to Fair Trial

The defendants and their lawyers and much of the press commentary have argued (and at enormous length) that the trial was unfair.  If so this would breach Article 6 of the European Convention on Human Rights, which reads as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights.

(a)   To be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)   To have adequate time and the facilities for the preparation of his defence;

(c)    To defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)   To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)   To have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

Political Prosecution

The defence has claimed that this is a political prosecution in which the outcome was predetermined and was decided not by the Court but outside the Court by the country’s political leadership.  If this turns out to be true then the trial was a sham and there could not have been a “fair hearing” before an “independent and impartial” tribunal where the “presumption of innocence” applies.  The trial would not have been fair and Article 6 would have been breached.

This assumption that this was a political trial is the governing assumption of nearly all western commentary.  The Guardian has repeatedly referred to the trial as a “show trial”, the Washington Post has grotesquely compared it to the Stalinist trials of the 1930s and even writers with a far more detached and objective view of Russia such as the conservative American writer Gordon Hahn and the liberal American writer Mark Adomanis assume it.

http://www.washingtonpost.com/opinions/pussy-riot-sentence-echoes-russias-bad-old-days/2012/08/17/380354bc-e8a6-11e1-a3d2-2a05679928ef_story.html

http://www.russiaotherpointsofview.com/2012/08/putin-pussy-riot-and-the-prospects-for-proper-politics-in-russia.html

http://www.forbes.com/sites/markadomanis/2012/08/17/vladimir-putin-pussy-riot-and-the-future-of-russian-politics/

At this point it is necessary to say that simply because most people assume something to be true does not make it true.  This is a case where a crime was indisputably committed.  On the first day of the trial the defendants themselves admitted as much though they insisted it was a minor crime that only required an administrative penalty.  Given that this is so whilst there may be an argument about the seriousness of the crime and about whether it should have been prosecuted under Article 213, there is no argument for saying that the prosecution should not have been brought at all.

The European Court of Human Rights has repeatedly said that where a prosecution is grounded in facts and law as was the case in this case its presumption is and can only be that the prosecution and the Court trying the case are acting in good faith.  It is for the defence to prove otherwise.  So far the defence has produced no evidence at all to support its claim that this was a political trial which was decided outside the Court.  Speculations about telephone calls between the country’s political leadership, the prosecution and the Court, however apparently well informed, are guesses not evidence.

http://www.russiaotherpointsofview.com/2012/08/putin-pussy-riot-and-the-prospects-for-proper-politics-in-russia.html

In summary, there is no evidence to think this was a political trial.  In the absence of such evidence the European Court of Human Rights will refuse to say that it was.  Unless something altogether more convincing comes up than has done so far, which frankly looks extremely unlikely, any claim to the European Court of Human Rights on this basis will fail.

Delay in bringing the case to trial

There has been some concern about the amount of time the case took to get to trial.  The greatest number of cases brought to the European Court of Human Rights under Article 6 are complaints of excessive delay in bringing the case to trial or in deciding the case.

The difficulty the defence will have arguing such a thing in this case is that it appears to have been the defence that was largely responsible for any delay in bringing the case to trial.  In fact both before the trial and during the trial itself the defence was continuously asking for more time and for more adjournments.  The four months it took to bring the case to trial do not anyway seem to me excessive.  I think it extremely unlikely that any complaint made to the European Court of Human Rights based on delay will succeed on this point.

Time to prepare defence

The defence has complained bitterly that it was not given sufficient time to prepare for the trial.  This does not however seem to have disadvantaged the defence at the trial.  There is nothing to suggest that the defence would have been different if the defence had been given more time to prepare it.

The case was a simple one.  The facts and the nature of the charge were known at an early stage of the case even if the actual indictment was not produced until 20th June 2012.  Even this allowed the defence a full month before the start of the trial.  The European Court of Human Rights might conceivably decide that there has been a technical breach of Article 6, though frankly that looks to me unlikely.  It is surely even less likely that the European Court of Human Rights will find that the entire defence was so prejudiced that the whole trial was unfair.  This is quite apart from any question of whether any lack of preparation of the defence was due to the conduct of the defence by the defence itself.

Exclusion of witnesses

The defence has complained bitterly at the Court’s refusal to let the defence call certain witnesses.  Article 6 does not however give the defence an unrestricted right to call whomever it wants as a witness.  The right is limited to calling witnesses “under the same conditions” as the witnesses called by the prosecution.

The judge is under a duty to administer the trial properly and this extends to excluding time consuming and irrelevant evidence.  The judge is therefore entitled to exclude witnesses who have nothing relevant to say.  There is nothing to suggest that the evidence of the witnesses who were excluded would have changed the outcome of the case.  Again the European Court of Human Rights might conceivably decide that there was a technical breach of Article 6, though again that looks to me unlikely.  Again even if the European Court of Human Rights decides that there has been such a technical breach it is surely extremely unlikely to find that any such technical breach so prejudiced the defence as to render the whole trial unfair.

Limits on cross examination

The defence has complained bitterly at the Court’s refusal to allow certain questions of certain of the prosecution’s witnesses.  Article 6 does not however give licence to the defence to ask the prosecution’s witnesses any questions it wants.  The trial judge is under a duty to protect witnesses from harassment and from being asked misleading and irrelevant questions.  British practice on cross examination of witnesses in hate crime cases seeks to

“…..protect witnesses from unwarranted or irrelevant attack on their character and may seek the court’s intervention where cross examination is considered to be inappropriate or oppressive”.

(Crown Prosecution Service – The Prosecutor’s Pledge)

I cannot say for sure without seeing a complete transcript of the trial that the questions the defence was prevented from asking were all irrelevant.  However it appears to me that most of them were.  None of the lines of questioning the judge prevented seems to me to have had any bearing on the “punk prayer” itself, which was the crime that was actually committed, whilst the extraordinary contempt with which the defence including the defendants treated the prosecution’s witnesses is very obvious even from the day summaries of the trial.  On balance I think it is extremely unlikely that the European Court of Human Rights will find that there has been here even a technical breach of Article 6 on this point.  Even if the European Court of Human Rights does find that there has been a technical breach I again think it is extremely unlikely that it will decide that this made the whole trial unfair.

This was an open trial before a lawfully constituted Court on a charge that has a basis in law.  The defendants were represented by lawyers of their choice and participated fully in the trial.  I would have preferred the case to have been tried before a jury rather than a single judge but that is not a requirement of Article 6.  The defendants have a right to appeal the Court’s judgment as required by Article 2 of the Seventh Protocol of the Convention.  Whilst there might have been some procedural breaches I think the defence is going to have a very hard time convincing the European Court of Human Rights that the entire trial was unfair.

ECHR Article 10 – Free expression

Western commentary about the case has overwhelmingly reported it as an attack on the right of free expression and explained it as part of a supposed crackdown by Putin and the Russian government on political dissent.

The right of free expression is set out in Article 10 of the European Convention on Human Rights.  Though I set it out in my previous post for completeness I shall do so again here:

“1. Everyone has the right of free expression.  This right shall include the right to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.  This 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.”

As I discussed in my previous post the right of free expression under Article 10 is not an unlimited or absolute right and the provisions of Article 213 of the Russian Criminal Code and of Article 3 paragraph 6 of the Russian Law on Freedom of Conscience, Religion and Religious Association under which this case was brought do not conflict with it.  For a detailed discussion I refer to my previous post but briefly (1) the provisions in Article 213 of the Russian Criminal Code and of Article 3 paragraph 6 of the Law on Freedom of Conscience, Religion and Religious Association fall within the allowed exceptions set out in Article 10 (2) of the European Convention of Human Rights in that they are “…in the interests of public safety….(prevent) disorder or crime, (are) for the protection of health or morals….(and protect) the rights of others” and are therefore “necessary in a democratic society” and (2) in so far as the “punk prayer” was supposedly a political protest against Putin other political protests against Putin have not been prosecuted in the same way making it unlikely that the “punk prayer” was prosecuted for that reason.

“Punk Prayer” – No references to Putin

The second point has now become more difficult since the judge has found that the “punk prayer” as actually performed in the Cathedral did not refer to Putin at all.  The references to Putin were added later to the film of the “punk prayer” that was uploaded onto YouTube.

This finding of the judge has been barely reported in the west.  A commentator to my previous post who I know only as Fitzhenrymac has noticed differences between films of the “punk prayer” that have appeared on the internet.  It is surely the case by now that various films of the “punk prayer” are circulating on the internet.

http://fitzhenrymac.wordpress.com/2012/08/24/pussy-riot/

This is not conclusive of what was actually said in the “punk prayer” when it was performed in Cathedral.  However anyone minded to dispute the judge’s finding should consider that it is based on the evidence of the prosecution’s witnesses who were physically present in the Cathedral and who actually saw and heard the “punk prayer” when it was actually performed.  There is no reason to think these witnesses, who judging from the day summaries are not sophisticated people, would be prepared to brave a hostile court room and lie on oath and moreover do so together in what would have to be a joint criminal enterprise to mislead the Court.  The judge in her Judgment apparently said that she saw no reason to disbelieve these witnesses and nor do I.

ECHR Articles 9 & 17 – Right to worship and prohibition on abuse of rights

A complaint to the European Court of Human Rights based on Article 10 anyway faces the further difficulty that it ultimately criticises Russia for not privileging Pussy Riot’s right to protest over the right of Russian Orthodox Christians to perform worship undisturbed in their own church.

Western commentary has ignored this point though it has been touched on by N.N. Petro one of the commentators to my previous post.  The right to perform worship is a human right just as the right to free expression is a human right.  Article 9 of the European Convention on Human Rights sets it out:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

(Italics added)

“Worship” is defined by the Oxford English dictionary as “reverence or veneration paid to a being or power regarded as supernatural or divine; the action or practice of displaying this by appropriate acts, rites or ceremonies”.

Russian Orthodox Christians have a right to worship in their own church in accordance with their “acts, rites or ceremonies” and to do so in peace without interference or disruption and without having their “acts, rites or ceremonies” parodied obscenely in their presence in their church whilst they worship.  Like all other articles of the European Convention on Human Rights Article 9 does not create a cause of action against private individuals.  However as a signatory to the European Convention on Human Rights, Russia is bound by it and is therefore under a legal duty to protect the right of religious believers to worship in their own places of worship in peace.

Even the defendants themselves now admit the “punk prayer” was an unlawful act.  If Russia were to permit unlawful acts like the “punk prayer” which interfere with and disrupt worship Russia would find itself in breach of its responsibility to protect worship under Article 9.  The point was well made by an organisation known as The World Russian People’s Council

“It has to be confirmed in public that desecration of holy places, insulting people’s religious feelings, and manifestation of hatred of Orthodox Christians is a crime, not a ‘creative act’.  An acquittal, on which the defence lawyers insisted, would have confirmed that any atheist has a right to perpetrate any ‘creative blasphemy’ with impunity”.

(Italics added)

http://www.interfax.com/newsinf.asp?id=355159

This inability to understand that Russian Orthodox Christians have a right to worship to the same degree that “feminists” and “punks” and anti Putin activists have a right to protest has distorted western commentary about the case.  The defendants in the Pussy Riot trial are attractive young women who as self professed “feminists” and “punks” are in tune with the modern western liberal zeitgeist in a way that the Russian Orthodox Church with its bearded priests, ancient rituals and complex history is not.  This has resulted in some completely mistaken commentary about this case that betrays a complete failure to understand that the Russian authorities are under a legal duty to protect the right of believers to worship and are under a legal duty to bring a case where the right to worship is being infringed as it was in this case.  For examples of what I mean see these articles by Mark Adomanis in Forbes

http://www.forbes.com/sites/markadomanis/2012/05/02/pussy-riot-is-not-popular-in-russia/

http://www.forbes.com/sites/markadomanis/2012/08/17/vladimir-putin-pussy-riot-and-the-future-of-russian-politics/

This same blindness has also resulted in some deeply unattractive commentary such as this frankly disturbing article by Nick Cohen in the Observer, with its gratuitous and intemperate attacks on the Russian Orthodox Church and on the Patriarch and its extraordinary insensitivity to ordinary Russian Orthodox Christians whose worship the “punk prayer” parodied and whose feelings it insulted (“An evil collusion between a tyrant and a man of God”)

http://www.guardian.co.uk/commentisfree/2012/aug/19/nick-cohen-pussy-riot-putin?INTCMP=SRCH

and this article which appeared in Counterpunch, with its equally intemperate attacks on the Russian Orthodox Church dragging in irrelevant references to Rasputin who as it happens and contrary to the writer’s belief was actually on very bad terms with the hierarchy of the Russian Orthodox Church

http://www.counterpunch.org/2012/08/22/hating-russian-orthodoxy/

The Russian authorities cannot follow the example of western liberal journalists by prefering self proclaimed “feminist punks” who have acted in a criminal manner to Russian Orthodox Christians who have not and who simply wish to perform the act of worship in peace in their own church as is their right.  If the Russian authorities did behave in this way they would be acting illegally.  Article 17 of the European Convention on Human Rights makes it absolutely clear that a state cannot prefer the rights or supposed rights of one group of persons over another:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”.

(Italics added)

To conclude, without reading the full text of the Judgment and a transcript of the trial, I cannot definitely say that there have been no breaches of any of the Articles of the European Convention on Human Rights.  However based on the information I have seen I strongly doubt that there have been any breaches of any great importance.  If there have been any breaches they appear to me to be of a purely technical nature that the European Court of Human Rights will decide can be compensated for by payment of small amounts of compensation.  I think it is extremely unlikely and practically inconceivable that the European Court of Human Rights will decide that there has been a sufficiently major breach of the Convention such as would justify setting the whole judgment aside.  The prospects of a complaint to the European Court of Human Rights do not seem to me to be strong.

Sentence

 Much of the criticism of the Russian Court’s handling of the Pussy Riot case has centred on the sentence, which the US State Department, the British government, the Swedish government and the European Commission have all described as “disproportionate”.

Before discussing the sentence itself I will deal with two particular misconceptions I have seen about it.

Only a Prison Sentence – Not Hard Labour

Firstly, in a discussion of an article about the case by Anatoly Karlin which Al Jazeera has published the sentence has been described as “two years hard labour”.

http://www.reddit.com/r/Foodforthought/comments/yoz9o/why_everything_you_think_about_pussy_riot_is_wrong/

I do not know where the idea that the defendants were sentenced to “two years hard labour” has come from.  I should say that I have also seen it mentioned in several other places so it may be doing the rounds.  However it is wrong.  The sentence was two years’ imprisonment in an ordinary prison.  It does not involve hard labour

Sentencing the defendants as a group

The other misconception is that the Court was somehow in error in not handing down separate sentences for each defendant.

The “punk prayer” was a joint enterprise which all three defendants planned, rehearsed and carried out together.  At no point did the defendants defend themselves separately from each other for example by instructing different lawyers.  Nor did any of them seek to blame or shift part of the blame onto the others.  Samutsevitch’s father did rather clumsily make such an attempt in a statement he gave to the police which the judge read out at the trial in which he accused Tolokonnikova of controlling Samutsevitch who in his words had become a “zombie”.  In the actual trial he however gave different evidence.  His arguments were anyway never adopted by his daughter who appears to have been much more heavily involved in Voina and Pussy Riot than her father perhaps realised when he made his statement to the police.

Given that the “punk prayer” was a joint enterprise and that none of the defendants sought to separate themselves from the others I think the judge was right to find them equally guilty and to sentence them together as a group.

Was the sentence disproportionate?

The first point to make is that the sentence was within the range of punishments set out in Article 213.  Since the judge found the defendants guilty of an offence under Article 213 the judge had the power to impose the sentence and did not act illegally by doing so.

Was the sentence too harsh?  I am not familiar with sentencing practice in Russia so I think the best way I can answer this question is by comparing the sentence that was actually given in the case with the sentence that would have been imposed in Britain, the jurisdiction I know best, had the case happened there.  As it happens Britain is also the place where much of the most ferocious criticism of the case and of the sentence has come from.

Firstly, it should be said clearly that there is no doubt the British courts would treat this as a religious hate crime case.  The case law is clear.  Whilst it deals mainly with race hate crimes the principles followed in religious hate crimes are identical.  Words British Courts have found sufficient to prove race hatred include “black bastard” (DPP. v. Woods [2002] EWCH 85), “bloody foreigners” (R v. Rogers (2007) 2 WLR 280) and “African bitch” (R. v. White [2001] EWCA Crim 216).  There is no doubt the far more elaborate words spoken in the “punk prayer” would be considered sufficient in Britain to prove religious hatred if spoken in the same way during a Church service.  The fact that the defendants claimed a political motive for their action would in Britain provide no defence.  The British Courts have said that

“….it is immaterial that the defendant had or may have had an additional reason for uttering the words”.

(see DPP v McFarlane [2002] EWHC 485 and DPP v. Woods [2002] EWHC 85).

The sentences for religious hate crimes under Sections 4 and 4A of the Public Order Act 1986 and Sections 28 and 31 of the Crime Disorder Act 1998 (where there is no physical harm to persons or property as was the case in the Pussy Riot case) are set out on pages 86 to 87 of the Magistrates’ Courts Sentencing Guidelines published by the Sentencing Guidelines Council.  They show that the maximum sentence for such crimes when tried on indictment (that is before a jury as a case like the Pussy Riot case would certainly be tried if tried in Britain) is two years imprisonment.  This is the same sentence as the one imposed by the Russian Court in the Pussy Riot case.

http://www.northants.police.uk/files/linked/WCU/Magistrate%20Sentencing%20Guidelines.pdf

The British Crown Prosecution Service publishes what it says would be “serious aggravating factors” for the Court to use when deciding the length of the sentence it should impose in a hate crime case.  Though these specifically relate to race hate crimes the Crown Prosecution Service has made clear that the same or similar factors apply to other hate crimes including religious hate crimes.  These are

(1) Planning;

(2) A pattern of (racist) offending;

(3) Membership of a group promoting (racist) activities;

(4) Deliberately setting the victim up for the purposes of humiliation or to be offensive;

(5) If the offence took place in the victim’s home;

(6) If the victim was particularly vulnerable or providing services to the public;

(7) If the timing or location of the offence maximised the harm or distress it caused;

(8) If the expressions of racial hostility were repeated or prolonged;

(9) If fear and distress throughout a particular community resulted from the office;

(10) If particular distress was caused to the victim or the victim’s family.       

It is immediately obvious that many of these “serious aggravating factors” are present in the Pussy Riot case.  (1), (4), (7), (9) and (10) obviously are.  So is (8).  The defendants “prolonged” their crime by publishing it on YouTube, a fact specifically noted by the judge in her judgment.  Given the hostility the defendants have shown to the hierarchy of the Russian Orthodox Church including in their statements at the trial and given a previous incident in which some of the defendants or persons associated with them may conceivably have been involved where a man dressed as a priest but with a policeman’s hat carried out a theft from a supermarket (intended apparently to show that the priesthood and the police commit crimes in Russia with impunity) it is just possible that (2) and (3) apply as well.  Certainly the fact that the defendants acted as part of an organised group would be an aggravating factor even if it were the case that the group had no previous history of religious hate activity.

This is a religious hate crime perpetrated by defendants with a history of previous offending for which the defendants have shown no contrition, which they carried out as an organised group and where many and possibly most of the “serious aggravating factors” identified by the Crown Prosecution Service apply.  It is inconceivable that defendants convicted of such a crime in Britain would escape without a prison sentence.  The sentence of two years imposed by the Russian Court is exactly in line with the maximum two years prison sentence imposed for such crimes in Britain.  Given the defendants’ previous history of law breaking, their lack of contrition, their visible contempt for the prosecution’s witnesses and for the Court, their continued openly expressed hostility during their trial to the Patriarch and the hierarchy of the Russian Orthodox Church and the presence of so many of the “serious aggravating factors” identified by the Crown Prosecution Service, it is difficult to believe that they would have escaped with anything less than the maximum two years sentence allowed by law.

The law in other countries about which I know less takes a harsher view.  I understand that the maximum prison sentence for disrupting a church service in Germany and in the State of New York is three years.  In the United States a student on a homophobic hate crime charge faced a possible 10 year sentence for spying briefly on another student with a concealed camera.  In that case the eventual sentence was only 30 days but only because the judge disagreed with the jury and decided that there had not in fact been a hate crime.

Personally as someone who believes that prison is an expensive way of making good people bad and bad people worse I think prison sentences even for hate crimes of this sort where there is no harm to persons or property are disproportionate and excessive.  I include the sentence imposed on the defendants in the Pussy Riot case in that category.  If the matter had been left to me I would have imposed a lengthy period of community service or possibly a suspended sentence.  The decision however was not mine to make.  The judge acted perfectly legally in imposing the sentence that she did and based on international legal practice I can see no grounds for saying it was disproportionate.

I would add that my opinion of hate crime sentencing practice unlike that of almost everyone else I have read (Anatoly Karlin in Al Jazeera is the important exception) is at least informed.  It often seems to me that much of the criticism of the Russian criminal justice system is made by people who because of their law abiding middle class lifestyles have little contact with or knowledge of the criminal justice system in their own countries and who as a result consistently underestimate the severity with which the criminal justice system treats criminal cases in their own countries.  Consider for example the following extracts from two articles by Rupert Cornwall in the Independent and Mark Adomanis in Forbes

“In any country such a stunt would have caused considerable offence, and not merely among the devout.  But imagine the consequences had it occurred in the West.  In the US, there would have been outrage on the warring cable TV channels, while the band’s PR people would have their work cut out to prevent a cascade of engagement cancellations.  Had the punk prayer been in Westminster Abbey, it would have sparked much snide commentary about how the C of E had become relevant to national life.  In neither country, of course, would the affair have got within a mile of the courts”

(Rupert Cornwell – Italics added)

http://www.independent.co.uk/opinion/commentators/rupert-cornwell/rupert-cornwell-putin-faces-the-ageold-dilemma-of-the-tyrant-8053875.html?origin=internalSearch

“….I would never dream of taking such an ostenatiously pro-Kremlin line, to basically ditch the American understanding of freedom of speech in favour of the Russian”.

(Mark Adomanis – Italics added)

http://www.forbes.com/sites/markadomanis/2012/08/22/rod-drehers-brave-stance-against-pussy-riot-and-in-support-of-blasphemy-laws/

For Mark Adomanis’s information the right to worship is a right protected by the First Amendment of the US Constitution and religious hate crime is as much a crime in the United States as it is in Russia.

In passing I would say that another good example of this habit of making uninformed criticisms of the Russian criminal justice system is the widespread criticism I have seen of the supposedly disproportionate response of the Russian authorities to the public order offences committed in Moscow during the opposition protest rally on 6th May 2012.  In Britain these offences would almost certainly be treated either as cases of affray or possibly even of riot for which the maximum prison sentence for organisers and ringleaders is three years (for affray) and 10 years (for riot) (see sections 1 and 3 of the Public Order Act 1986 and see also R v. Keys and Others (1986) 8 Cr. App. R. (S) 444 and R v. Najeeb and Others (2003) 2 Cr. App.R. (S) 69).

I would add that my criticism of hate crime sentencing practice is not only informed but also consistent.  If five masked Russian skinheads of ultra nationalist views broke into the main synagogue in Moscow and engaged in an obscene and scatological parody of Jewish religious practices which insulted the Chief Rabbi (who supports Putin) and filmed the crime and then publicised the crime by uploading the film of the crime onto YouTube I would still say that a two year prison sentence was too harsh even if the defendants behaved during their trial with the same arrogance and contempt for their victims that the defendants showed in the Pussy Riot case.  I wonder how many of Pussy Riot’s supporters in the west would say the same.

Psychiatric reasons for sentence

In explaining her sentence the judge in the Pussy Riot case said that two of the defendants, Tolokonnikova and Alyokhina, suffered from personality disorders and needed time in prison to help them understand the full nature of what they had done and presumably to obtain some help or therapy.  The judge’s finding was made on the basis of the psycholinguistic report that was provided by the prosecution.

I would have preferred that the judge had requested a further psychiatric examination of the defendants by an independent analyst before coming to such a conclusion and that she had not relied on a report provided by the prosecution as a sentencing tool.  Having said this I would ask anybody who disagrees with the judge’s conclusion to say whether at least in Tolokonnikova’s case they consider her persistently disruptive behaviour and her bizarre (and public) sexual conduct to be that of a normal and mentally healthy person.

Whether this finding of the judge was justified and if so whether it justifies the judge’s decision to impose a two year prison sentence will be for the appeal Court to say.  If the appeal Court decides that it was and does and if the appeal Court refuses to reduce the sentence for any other reason then given that the two year sentence is as I said completely in line with international practice for this sort of offence I do not expect the European Court of Human Rights to find it disproportionate or to interfere with it.

Conclusion

The Pussy Riot case was an ordinary prosecution of a public order religious hate crime of a kind widely recognised in international legal practice.  As I said at the conclusion of my previous post there are no great legal or political issues involved in this case.  What is extraordinary about this case is not the crime that was committed or the way the Russian authorities dealt with it but the way the defence defended it and the way it has been reported by the defendants’ supporters in Russia and in the west.  As is now becoming regularly the case well connected individuals in Russia who are accused of breaking the law defend criminal charges brought against them not by defending themselves in Court but by seeking to politicise their case and by using the western media to run a public relations campaign on their behalf.  The result is a deluge of misleading and mendacious commentary in which the plain facts of the case invariably get lost.   In the process all considerations of sub judice are thrown out of the window and Russian Courts are treated with a level of bullying and disrespect unknown to Courts anywhere else.  In the Pussy Riot case the judge who tried the case has had to ask for police protection because of the large number of threats she has received.  How any of this is supposed to support the rule of law in Russia (something western critics of Russia pretend to care a lot about) completely escapes me.

One result is that the people the west ends up supporting in Russia are more often than not people who can best be described as criminals or presumed criminals.  Thus Berezovsky and Zakayev have been granted political asylum in Britain notwithstanding the admission of the British Courts that there is a prima facie case in Russia against them, the jailed oligarch Khodorkovsky is treated as a hero notwithstanding that the European Court of Human Rights has repeatedly found that the only thing heroic about him is the scale of his frauds, the British businessman Bill Browder has practically succeeded in persuading the US Congress to pass a law that discriminates against Russian officials despite being himself wanted in Russia on charges of serious tax fraud and the jihadi terrorists of the northern Caucasus are (as shown by Gordon Hahn in a series of brilliant articles he has published on Russia Other Points of View) given by the western media a consistently free pass.

In the case of Pussy Riot this has plumbed new depths of absurdity with Amnesty International declaring the defendants prisoners of conscience and new articles continuing to appear in their support in the Guardian every day on top of the 70 odd the Guardian has already published.  This notwithstanding that this is a case where the criminals have themselves gone out of their way to publicise their crime by uploading film of it on YouTube where everyone can see it.

Anatoly Karlin in two brilliant articles he has published on the case, one on his own blog and one on Al Jazeera, has partly explained the grotesque level of over reporting of the Pussy Riot case by reference to the Culture Wars that are being fought out separately in the west and in Russia

http://darussophile.com/2012/08/08/its-a-culture-war-stupid/

http://www.aljazeera.com/indepth/opinion/2012/08/2012823795897200.html

To the extent that this is true of the west it is completely wrong for the west to use Russia as a battlefield for its own social and moral conflicts.  To the extent that it is true of Russia then Russian society has a right to conduct this sort of conversation on its own.  In the case of Russia if Pussy Riot’s intention was to persuade Russians that “feminism” is all about serial law breaking, profanity, sexual obscenity and exhibitionism then they have quite possibly succeeded.

Speaking for myself, it seems to me that the overwhelming beneficiary of all this is none other than the person who is supposed to be its target, who is of course Vladimir Putin himself.   Russians are perfectly capable of recognising criminal behaviour in their own society even if westerners and some Russian oppositionists are wilfully blind to it.  Whenever a society is confronted with a choice between lawful authority and criminal behaviour it will always and invariably support lawful authority against criminal behaviour.  To the extent that in Russia Putin today stands for lawful authority western and oppositionist embrace for criminal behaviour can only work to his advantage.  If the west and that part of the Russian opposition that persists in this practice want to keep Putin in power for a long time then they are going about it in the right way.  In the meantime I for my part cannot help but wonder what criminals in Russia have to do before certain people in the west and in the Russian opposition recognise them as such.

PUSSY RIOT

On 21st 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 3rd 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 16th 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 30th 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 29th 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 29th 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 26th 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 29th 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 29th 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 21st 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 3rd 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 20th 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 20th June 2012.  Only at the start of the trial on 30th 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 21st 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.