Pavel Sapelka: Vigilance must have legal framework, otherwise it will turn into witch-hunt
Over the last month, in different places of Belarus – Minsk, Hlybokaye, Iuye – there have been a few cases where police officers detained people who photographed office buildings: journalists and ordinary passers-by. At the same time, law enforcement officers referred to a recent decision of the Minister of the Interior, which prohibited photographing a number of public and administrative offices (http://news.tut.by/society/438550.html), and the perpetrators may be held to determine their identity and other circumstances. Lawyer Pavel Sapelka comments on this ruling in the context of current legislation.
- It seems to me that such arguments are either frankly hypocritical or they are a sign of a low professional and legal level. Let's look at it from the point of view of national law.
“We are not talking about banning video recording or taking photographs of office buildings, but about a rule that governs exclusively the actions of the bodies of internal affairs,” say representatives of the Interior Ministry. Firstly, it is unclear so far, which type of document is in question; apparently, an order of the Deputy Minister, which became known to the public. The Criminal Code, for example, also does not contain an explicit prohibition to commit crimes. It only determines which socially dangerous acts are crimes, establishes the grounds and conditions of criminal liability, provides for penalties and other criminal sanctions that may be applied to persons who committed the crime. That is, by giving police officers the right to stop certain actions of citizens and apply coercive procedural measures, the author considers these actions as illegal. Meanwhile, all illegal actions, which are prohibited by the law, are specified in the Criminal Code or the Code of Administrative Offences, the only regulations that determine what actions are, respectively, a crime and an offense (Some regulations by the President also establish criminal and administrative responsibility). We can also talk about extremist activities, and appropriate action of authorized bodies are specified in the applicable law ("On Countering Extremism").
Another quote: "In case a citizen is suspected of being involved in provocative activities or cats that threaten public safety, employees of the Interior are authorized to act in accordance with the legislation, including escorting the citizen to the Department of the Interior and conducting a check." The key phrase - "in accordance with the legislation", that is not according to one’s own understanding of the role and place of the police in public relations, not in accordance with the "revolutionary consciousness."
- But police officers have always been authorized to request the IDs and detain citizens for their identification?
- Indeed, the law gives the right to check the citizens’ IDs in case they are suspected of committing a crime or an administrative offense. But further actions of police officers must correspond to the nature of suspicion. For example, in case of suspicion of committing a crime a person can be detained in the manner prescribed by the Criminal Procedure Code: when a person is detained in the commission of a socially dangerous act or immediately after its commission; if the witnesses of the incident, including the person who is aggrieved by a crime, directly identify the person as the one that committed a dangerous act; when police officers find on that person, on his or her clothes or other things used by him in his home or premises, workplace or vehicle clear traces pointing to his involvement in the commission of a socially dangerous act; if there are other reasonable grounds to suspect a person of committing a crime, provided that he or she was trying to escape from the scene or the prosecuting authority, has no permanent residence, or lives in another area, or his or her identity cannot be established (there are some other grounds which have no connection with the problem in question).
- You have explained in detail the actions of police officers in case of suspicion of having committed a crime, and what should be done in case of a minor misconduct, say an administrative offense?
- The law does not provide for detention in case of suspicion of committing an administrative offense. In accordance with Part 1 of Art. 8.2 of the Code of Procedure of Administrative Offenses, administrative detention of an individual is the actual short-term restriction of his or her freedom as part of administrative proceedings for committing an administrative offense, including bringing him to a place determined by a body in charge of proceedings and his stay in this place. Are there any indications of suspicion, speculation or any urgency?
Therefore, reference to the fact that, in accordance with para. 3, Part 2, Art. 8.2 of the Code, in order to establish the identity a person can be subjected to such a measure as administrative detention for up to three hours - this is just a quote from the Code, which, when taken out of the text of the legal act, loses its original meaning. Three hours are given to authorities conducting the administrative process not in order to establish the identity of any person, but only the offender. In certain cases specified in the Code, detention can last longer.
To sum up, we will repeat: detention and the use of procedural restrictions towards persons who have not committed an administrative offense or crime is arbitrary, which violates the rights of citizens. Moreover, the law establishes a corresponding responsibility for these actions.