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.
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.
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:
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.
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”.
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.
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.
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.
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.
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.”
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.
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.
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.
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.”
“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”.
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
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”)
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
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”.
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.
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”.
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  EWCH 85), “bloody foreigners” (R v. Rogers (2007) 2 WLR 280) and “African bitch” (R. v. White  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  EWHC 485 and DPP v. Woods  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.
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
(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)
“….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)
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.
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
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.