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.

https://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.