The whole spectrum of Russian society has already had a say in the debates concerning the case of Svitlana Davydova, ranging from: “condemn the enemy” to “reward the heroine”, onto “Chekas are such idiots” to “turn the Russian provincial mother of a large family into a martyr”. In actual fact this story contains not only a very important moral and political aspect to it, but also a judicial one, since the story clearly depicts the difference between the State (“the government” as the Anglo-Saxons call it in this case) and the nation (as a people sovereign in its power over the State).
Of course, if there is anyone who suits the role of a symbolic victim of the state’s paranoia and state’s sadism, then it is precisely this courageous woman who had decided to stop what seemed to her as the plotting of intervention against Ukraine in April 2014. For Russia, such a figure is far more prominent in the role of a victim of the Leviathan’s power, rather than the artillery captain Alfred Dreyfus from the family of Alsatian Jewish traders in France, 120 years ago.
Let us examine this case from a legal point of view.
From the criminal code of the Russian Federation, it unambiguously follows that the objective side of Davydova’s alleged criminal action (treason) is the damage caused to the national security. An attempt to frustrate a secret (in the form of “polite green men”) or an apparent intervention into a peaceful and, according to the documents, united neighboring country, cannot be regarded as damages caused to Russia’s national safety.
Moreover, the preparation itself of such an intervention is a crime of exceeding official powers as per article 286 of the criminal code. With the weighing in of aggravating factors like: the crime being organized by the officials in power, committed by a group of persons with the infliction of grave consequences, and more. Therefore the preparation to commit a crime cannot be considered as a secret protected by the law. Hence, in a normal court the charge against Davydova would have been dropped immediately.
Now on to what lawyers refer to as a subjective side of the crime – the presence of intent. Yes, Svitlana Davydova knew what she wanted; by communicating her suspicions about the preparation of aggression, she was hoping that the Ukrainian government would be able to prevent the war by stating through diplomatic channels that it had been warned, or by initiating an international scandal.
Since the theme of fighting with fascism and the war by the means of strengthening national propaganda have been turned into a constant ideological background, I will allow myself to repeat a story which became a vivid example of a struggle against war and fascism some 80 years ago.
This is the story of a writer and pacifist Carl Von Ossietzky, a prominent activist (to use modern terminology) in a German anti-war movement. Accidentally, (as did Svitlana Davydova) he discovers from his pilot friend that Germany is secretly restoring its military aviation (and, as it later became known, in close cooperation with the USSR).
Germany, as an “aggressor” of the First World War, was forbidden from restoring its military by the Treaty of Versailles. Ossietzky raises a major scandal in the hope that the League of Nations and the great nations among its members would denounce the preparations for a new war in his country. The case takes place in the spring of the year 1929 during the the rise of the “military-patriotic” nationalism as Field Marshal Hindenburg and Lance-Corporal Hitler are laying claim to the presidential post. In 1931, Ossietzky is sentenced to a year and a half in prison for treason. The great nations did not notice the disclosures, and did not issue ultimatums about the resurgence of militarism in Germany.
Ossietzky refused to become a political refugee. The political amnesty at the end of 1932 opened the doors to prison for him. But he became a symbol of the treasonous behavior to the Nazis and other nationalists to such an extent that after Hitler’s ascent to power, the unfortunate victim was thrown into a concentration camp. Since the pacifist had become a symbol of the resistance to militarism, Ossietzky was awarded with a Nobel Peace Prize in 1935, in the hope that it would save him. In 1940, having invaded Norway, the Nazis dealt with the members of the Nobel committee who voted in favor of the “traitor’s” candidacy.
In 1938, persecuted and practically remaining under house arrest (he was let out of the concentration camp as the Berlin Olympics were approaching), Ossietzky died in hospital.
I believe that the example of Carl Von Ossietzky’s sets a precedent for the nomination of Svitlana Davydova for the Nobel Peace Prize. There is still time to nominate her in February.
Returning to the promised legal analysis, the Russian criminal code openly allows for the violation of the law for the prevention of a more socially-dangerous crime. This very law interprets the preparation of an aggressive war as an especially serious international crime.
The dispatch of the military forces onto the territory of Ukraine is undoubtedly aggression, and he preparation of such aggression is a serious breach of the Russian law. An attempt to frustrate such aggression is an attempt to warn about a particularly grave crime. Svitlana Davydova, even though formally breaking a law, was actually rigorously following the norms of a much higher law – she was striving to put a stop to an international crime. This is equivalent to breaking the hands of a rapist or blowing out a murderer’s brains. That breach of the law, which essentially signifies compliance to it. In this case Svitlana was representing the Russian nation, which has fallen victim to the crime of the State/authorities. She personified a nation which was exercising its right to a lawful defense.
This is why the protection of Svitlana Davydova isn’t simply the defence of an ordinary mother; this is the defence of the nation’s right to stop the crimes of the government.
