[Robyn Curnow is a graduate of the University of Melbourne and the University of Queensland. She works as a lawyer in Melbourne.]
Reactions to the prosecution and sentencing of three members of Pussy Riot in August this year have revealed sharp disparities in the ways different countries’ legal systems protect peoples’ religious sensibilities. What they have also exposed is a spectrum of tolerance across national jurisdictions for criminal laws designed to preserve public order.
Granted, the level of unrest triggered by Pussy Riot has been relatively contained to date: vandalism of various sites in Moscow and a wave of civil litigation against Pussy Riot, including a claim by a Novosibirsk woman seeking damages for “deep moral suffering” after viewing footage of the performance by the group in the Christ the Saviour Cathedral (several thousand kilometres away in Moscow). And it is certainly worth questioning whether the performance itself would have gained as much exposure as it did in Western media had the official reaction been a fine or warning instead of a criminal prosecution. Pyotr Verzilov, the husband of one of the defendants, provided a partial answer to this question when he told RIA Novosti on 22 August: “…the Pussy Riot story and the court case is very easy to understand for the West. Pussy Riot is basically a machine placed inside the media.”
Indeed, while many commentators have questioned the severity of the sentence imposed by the Khamovniki District Court on 17 August, few have grappled with the offence as it was characterised by the prosecution or analysed the evidence presented to support it. The reason for this is understandable: not only is the footage of the offending conduct barely comprehensible, but the particulars of the charge are not accessible to the mainstream English speaking media. So, because (or perhaps in spite) of the fact that few legal commentators know how the prosecution case was put, the most interesting questions have not yet been asked.
One person started asking before the sentence was passed. In her article “The Pussy Riot Act” (The St Petersburg Times on 8 August 2012), Michele A. Berdy provided a translation of the indictment for non-Russian speakers, as well as some useful observations about the act of “desecration”: “…it was the worst of the pre-revolutionary Russian religious crimes and carried the death penalty for centuries.” Berdy also translated the particulars: “hooliganism, that is, a gross violation of public order expressing a clear disrespect for society, committed on the grounds of religious hatred or enmity or hate against a particular social group by a group of persons by prior agreement.”
This means that the charge was framed contrary to article 213.2 of the Criminal Code of the Russian Federation. The offence provision, which appears in Section IX, entitled ‘Crimes Against Public Security and Public Order’, may be translated as follows:
- a gross violation of the public order expressing a clear disrespect for society
- with the use of weapons or articles used as weapons
- motivated by political, ideological, racial, national or religious hatred or enmity, or for motives of hatred or enmity in relation to a particular social group.
Prior to its amendment in 2003, the offence provision required the conduct to be “accompanied by violence against citizens or the threat thereof, or the destruction or threat of destruction of property of another” (Law and Legal System of the Russian Federation, 2009, p 586). The current version of the law, however, appears to characterise the second and third elements as alternatives.
Nevertheless, the absence of weapons, or articles used as weapons, by the defendants in this case appears to bring their conduct within the category of “petty hooliganism” or “Disorderly Conduct” under Article 20.1 of the Code of Administrative Offences of the Russian Federation. This alternative was canvassed by Vladimir Lukin, Russia’s Human Rights Commissioner (RIA Novosti, 23 August 2012) when he described the actions of the defendants as a “serious misdemeanour”, rather than a crime. Article 20.1 provides for the imposition of a fine or an administrative arrest for a period up to 15 days for “violation of public order in the form of open disrespect of the public accompanied by foul language in public places, abusive pestering of people or destruction or damage caused to other people’s property.”
It is possible that the “serious misdemeanour” alternative was considered by the parties in this case, but ultimately the indictment alleged an aggravated form of hooliganism, contrary to article 213.2 of the Criminal Code because – according to the translation of the indictment by Berdy – it was “committed by a group of persons in by prior agreement.” This increased the maximum penalty to 7 years imprisonment. To date, the most notorious breach of a similar provision was the illegal landing, in 1987, of a Cessna 172 in Red Square by 19 year old German national Mathias Rust, for which he was sentenced to four years’ imprisonment.
Berdy has also reviewed documents, described as witness testimony, which tell how the conduct was “unbefitting, and in fact violated all imaginable and unimaginable, commonly accepted rules of behaviour in a church. They put on clothing that clearly and obviously contradicted church rules. Then they started to satanically jerk around, jump, run, kick their legs up, twirl their heads while they shouted very insulting, blasphemous words.” According to Berdy’s translation, this led to a “violation of the feelings and faith of many Orthodox Christians and a defilement of the spiritual basis of the state.”
The statements by the Pussy Riot members in their defence focussed on two points: first, their lack of intention to cause harm, in the form of subjective feelings of hurt and insult among the worshippers present in the cathedral, and second that their motivations were political rather than religious. According to one of the statements read out by the defendants’ lawyers during the proceedings, the object of the protest was the support of the Orthodox Church’s Patriarch Kirill for President Putin (as opposed to the church itself).
In other words, the defendants were not motivated by religious hatred, but rather “a desire to persuade church leaders not to meddle in politics.” With this statement, the defendants blended the religious and political so thoroughly that the distinction between them all but disappeared – which seems to be exactly the point they say they were trying to make.
By contrast, the prosecution stressed the religious significance of the performance: “They set themselves off against the Orthodox world and sought to…