The Human Rights Center Viasna’s evaluation of the trials in the criminal cases on the events of December 19, 2010
CONCLUSIONS:
# The events of 19 December 2010
were the result of the unjust and undemocratic presidential election in Belarus, which
were not recognized as compliant with the relevant international standards for
free elections, and which were accompanied by numerous violations.
# The march along Independence Avenue and the rally on Independence Square
were peaceful, since the participants had peaceful intentions to express their
views and protest in connection with these election.
# Although the rally on Kastrychnitskaya Square and the march
along Independence Avenue
did cause some inconvenience for the city residents, nevertheless they did not pose
any threat to the public order, life and health of citizens.
# The behavior of some individuals who were
especially active outside the Government House, were offending in their nature,
but neither were stopped by the police, nor isolated.
# The duration of the wrongdoing, the number of
persons involved in it and the amount of damage do not suggest that there was a
mass riot on Independence Square
and, consequently, the participation of prosecuted persons in the riot.
# The police reactions to disperse the peaceful
assembly on Independence Square
were completely disproportionate to the nature and were accompanied by ungrounded
violence toward the demonstrators.
# The preliminary investigation of the events of
19 December 2010 was accompanied by serious human rights violations, including:
violation of the right to protection, violation of the presumption of
innocence, the use of non-procedural actions, torture and other cruel, inhuman
or degrading treatment that humiliate human dignity.
# The trials were of predetermined character and
accusatory in their nature.
# These trials reiterated the full dependence of
the judicial system in Belarus
on the executive branch, while the pressure and the Ministry of Justice’s denial
of licenses to a number of lawyers involved in the case indicate the absence of
an independent institute of advocacy.
# These circumstances indicate the convicts’ lack
of access to a fair and independent trial.
# The progress of the preliminary investigation
and the trials in the criminal cases clearly demonstrates their political
nature.
Under these circumstances, the Human Rights
Center “Viasna” has to
state:
1. The sentences pronounced
in the criminal cases on Par. 1, 2 Art. 293 and
Art. 342 of the Criminal Code are illegal and should be repealed or revised.
2. We
consider all the convicts in the criminal
cases as political prisoners. The
Human Rights Center "Viasna"
demands their immediate release.
In connection with the completion of the
preliminary investigation and a series of trials in the criminal cases caused
by the events on Independence Square in Minsk on December 19, 2010, the Human
Rights Center "Viasna" notes the following:
The events on Independence Square were followed
by criminal proceedings initiated against 61 persons under Par. 1, 2 Art. 293 of
the Criminal Code of the Republic
of Belarus (rioting). Later, 10
persons involved in the criminal case received milder charges under Par. 1 Art. 342 of
the Criminal Code (organization and preparation of activities that breach the public
order). In addition, two defendants were prosecuted under Art. 370 of
the Criminal Code (insulting state symbols), one of the defendants was charged
under Art. 382 of the Criminal Code (unauthorized appropriation of
the title or the authority of an official) and Art. 369 of
the Criminal Code (insulting a government official). Apart
from that, the police detained over 700 persons, who were later prosecuted
under administrative procedures under Art. 23.34 of the Administrative Code of
the Republic of Belarus, over 600 of them were brought
to administrative responsibility in the form of detention for up to 15 days.
The criminal case
under Art. 293 (rioting) was the first to be brought in independent
Belarus.
The country lacks an established case law on this kind of cases.
At the same time,
the nature of the demonstrators’ actions on December 19, 2010 during a procession from Kastrychnitskaya Square
to Independence Square
along Independence Avenue,
according to our estimates, does not contain the features required to qualify
these actions as a riot. The demonstration was not accompanied by riots, arson,
violence against individuals, property destruction, armed resistance to the
authorities.
In our opinion,
the march and the protest rally were peaceful, as the demonstrators initially
intended to peacefully express their protest and opinion with regard to the
presidential election. In their public statements to the media, as well as during
the meetings with voters, the presidential candidates urged the citizens to
take part in a peaceful assembly, without expressing any appeals for violent
acts.
The rally on Independence Square
was also peaceful. The vast majority of participants in the protest pursued
peaceful purposes, namely expression their beliefs and protest. However, some participants in the meeting took a
number of active steps, which were offending in their nature. At the same time, the large number of representatives
of law-enforcement agencies on Independence
Square took no measures to curb illegal activities
and isolate the perpetrators. Instead, the staff of the riot police and the interior
troops, with a disproportionate use of force and non-lethal weapons, dispersed
all the citizens who participated in the rally. Dozens of people were injured, including presidential candidates
Andrei Sannikau, Vital Rymasheuski, Ryhor Kastusiou. The beating of the presidential candidate Uladzimir Niakliayeu
and his supporters by the secret service was deliberately illegal.
Considering this, the Human Rights Center “Viasna” believes that there were no riots on December 19, 2010 in Minsk, and the prosecution and later conviction of the participants of these events under Par. 1, 2 Art. 293 of the Criminal Code are manifestly illegal.
The preliminary investigation of the case
The Human Rights Center "Viasna" stresses that
from the very beginning the preliminary investigation in the criminal case was
accompanied by violations of basic due process rights of defendants and regards
these abuses as a violation of human rights, among which are:
Violation of the right to protection
The majority of persons kept in custody in the KGB
jail, could not for a long period of time have meetings with their defenders. Such
visits were limited, the defenders were unable to fully exercise their right to
meeting with the client without any restriction on number and duration of such
visits, which is guaranteed by Art. 48 of the Code of Criminal Procedure.
The lawyers were subjected to unwarranted
restriction of their rights: the investigating authorities, the Ministry of
Justice repeatedly referred to the extended ban on disclosure of preliminary
investigation materials. The ban covered information concerning the health status
of the accused, their conditions of detention. Reports
on the abuses in the media were followed by harassment of the lawyers by the
Ministry of Justice. Four Lawyers: U. Toustsik, P. Sapelka, A. Aheyeu, T. Harayeva
involved in the protection of defendants in the case, were denied licenses and
legal practice.
The Human Rights Center "Viasna" considers
these facts as a violation of law on the protection guaranteed by Art. 62 of the
Constitution of the Republic
of Belarus, Art. 14 of
the International Covenant on Civil Rights.
Violation
of the presumption of innocence principle
Starting from December 20, 2010, the public media began
releasing numerous reports about the events on Independence Square on December 19, 2010. The
information was clearly propagandistic, and contained numerous inaccuracies,
bogus and false facts that later failed to be mentioned in the investigation
materials.
The Sovetskaya
Belorussia newspaper published the materials of the preliminary
investigation, which were printed by the personal order from the President. These
materials repeatedly mentioned the names and photos of the persons who, according
to the journalists, took an active part in the storming of the House of
Government.
The media and statements by officials, including
Lukashenka, repeatedly claimed that the events of 19 December 2010 was nothing
but a coup attempt, an attempt to forcibly change the constitutional order of
the country.
These facts suggest a propagandist nature of the
publications and statements, the perpetrators’ being charged with nonexistent
crimes before the court hearing. The main goal of this propaganda was to create negative
public opinion about the events and specific persons involved in the case.
The Human Rights Center "Viasna"
considers these facts as a violation of the principle of the presumption of
innocence guaranteed by the Code of Criminal Procedure, Art. 26 of the
Constitution and Art. 14 of the International Covenant on Civil and Political
Rights.
Actions of non-procedural character, torture and other cruel, inhuman and
degrading treatment
Of particular concern to the Human
Rights Center "Viasna" are the cases of torture and other cruel, inhuman
and degrading treatment.
A number of persons detained in the KGB prison and
the Interior Ministry detention center have reported the facts during the
investigation, e.g. former presidential candidate Ales Mikhalevich, accused in
the case, said guards in the KGB prison used torture and mistreatment. Similar
statements were made by a former candidate for President Andrei Sannikau, accused
Klaskouski and Drozd.
According to this information, the accused were
subjected to treatment that falls under the definition of "torture"
as reflected in Art. 1 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, including: infliction of physical
pain in order to intimidate, torture, deprivation of sleep for a long time, forced
standing against the wall with feet wide apart, frequent stripping of detainees
in cold rooms.
The accused were often subjected to non-procedural
actions that failed to be reflected in the relevant procedural documents. They were
forced to testify in all sorts of "talks" and
"conversations", often without their consent and in the absence of their
lawyers. In the course of these so-called "talks" they
were subjected to psychological pressure to force them to cooperate with the
investigation, providing the necessary evidence.
Moreover, the conditions of detention in the
detention center of the Internal Affairs Ministry and the KGB prison did not
meet minimum international standards of detention. Thus, in
many cases, the prisoners were deprived of individual beds and were forced to
sleep on the floor or under the bunks, or sleep in shifts.
Such detention conditions are cruel, inhuman
treatment and humiliation of human dignity.
The Human Rights Center "Viasna"
believes that in these cases the authorities of Belarus violated Art. 7 of the
International Covenant on Civil Rights.
Differentiation of criminal cases in separate proceedings
The separation of
cases from the common criminal case into separate proceedings, in our opinion,
seriously violates applicable procedural rules and became an obstacle to
ensuring the full, comprehensive and objective study of all the circumstances,
did not contribute to the implementation of the rights of the accused and their
defenders.
The trial
The trials in the criminal cases were
predetermined in character, had a pre-accusatory nature.
The commencement of the trials before the termination
of the preliminary investigation of all criminal cases, in our opinion,
seriously violates the principles of universal, full and unbiased examination
of all circumstances.
The courts, having opened the hearings of illegally
separated cases, failed to take measures to consolidate the cases into one
proceeding. This in turn contributed to an unjustified deviation
from the generally accepted principle of territorial jurisdiction.
In most cases, the defenses were not taken into
account by the judges, petitions were ignored. In
rejecting defense motions, which was aimed at implementing the procedural
rights of the accused and presenting of evidence in their defense, the courts grossly
violated the principle of competition and equality of arms.
The facts which underlay the convictions in most
cases did not meet the evidence provided by the investigators.
The sentences in the criminal cases of Ivan
Gaponov, Artyom Breus and Dzmitry Miadzvedz clearly demonstrated the dependence
of the judicial system of Belarus,
its reliance on the executive authorities. As a result, sentencing was not
based on evidence and the internal beliefs of judges, but on the authorities'
response to specific political situation.
The courts failed to provide proper legal
treatment of the charges – the existence of a riot on 19 December 2010 on Independence Square.
Under these circumstances, the Human Rights Center
“Viasna” believes that the convicts in the case did not have access to an
independent and fair trial.
The right of access to fair justice is one of the
key commitments that were taken by Belarus following the ratification
of the International Covenant on Civil and Political Rights (Art.
14).
