Human rights organizations of Belarus recognize Mikhail Zhamchuzhny political prisoner
A sentence of 7 October 2015 by the judicial board for criminal cases of the Viciebsk Regional Court, in view of the changes made to the verdict by the Supreme Court on 23 October 2015, found Mikhail Zhamchuzhny guilty of committing crimes under Part 5, Art. 16, Part 1, Art. 375, Part 1 and Part 2, Art. 376, Part 1 and Part 2, Art. 431 of the Criminal Code and sentenced him to 6.5 years of imprisonment in a penal colony under strict regime with a deprivation of the right to hold positions related to the implementation of organizational and administrative duties.
In accordance with the verdict, Mikhail Zhamchuzhny was convicted of inciting the intentional disclosure of certain information which constitutes an official secret by a person who has (had) access to the data; unlawful acquisition with a view to sell and selling special technical means designed for obtaining secret information; unlawful acquisition with a view to sell and selling special technical means designed for obtaining secret information, committed repeatedly; bribery; bribery committed repeatedly.
These charges penalized the following actions committed by Mikhail Zhamchuzhny:
in 2013-2014 years, having received the consent of a police officer (senior inspector, officer on duty at the medical detoxification center of the police department of the Viciebsk Regional Executive Committee), Mikhail Zhamchuzhny obtained official documents with information that, according to him, were of public interest: information on criminal cases opened against officials, a summary of the 2012 and 2013 incidents involving law enforcement officials, a special report on the sudden death of a citizen named Kudzelka in the temporary detention facility of the police department of the Viciebsk Regional Executive Committee, an Order of the Ministry of the Interior “On certain aspects of personnel work in the Interior Ministry”. These documents were handed over by Mikhail Zhamchuzhny to the human rights organization Platforma.
According to the investigators, for providing such information Mikhail Zhamchuzhny rewarded the police officer with cash. In addition, according to the investigation, Mikhail Zhamchuzhny gave the police officer special technical means intended for obtaining secret information.
The criminal case file suggests that all the alleged episodes of illegal activities were committed by Mikhail Zhamchuzhny as part of a sting operation, consisting of four stages, under the control of the KGB’s Viciebsk regional department, the ultimate aim of which was to reveal his connections with foreign citizens. At the same time, committing certain illegal actions in an environment as close as possible to reality was not stopped by the authorities, allowing the accused to complete them in order to identify his communication channels and checking his involvement in the commission of a more serious crime under Art. 358 of the Criminal Code (espionage).
We do not rule out that there certain illegal behavior by Mikhail Zhamchuzhny could be the result of provocation of crime: incitement, inducement, encouragement, directly or indirectly, to commit unlawful acts.
In this situation, it is difficult to imagine that, when provoking Mikhail Zhamchuzhny to commit a serious crime under Art. 358 of the Criminal Code (espionage) and providing every opportunity to complete his actions, he received actual documents containing such secrets.
It is also clear that, instead of preventing wrongful intent, within the illegally extended operational experiment, using a provocateur, a police officer who provoked the actions, Mikhail Zhamchuzhny was dragged into more and more episodes of criminal activity for the purpose of artificial creation of evidence.
The timely cessation of illegal, according to the KGB, actions by Mikhail Zhamchuzhny would have significantly reduces the degree of their public danger and would have resulted in a much milder sentence. Citing a need to solve the crime against the State (espionage) as the rationale for the operational interests of the experiment does not hold water, because is not based on compelling grounds of Mikhail Zhamchuzhny’s intentions to carry out such activities. However, such actions of the KGB fit well into a series of arrests and treason cases launched by the State Security Committee in 2012-2014 (A. Haidukou, A. Alesin, U. Lazar), which, however, did not result in formal charges, but were largely designed to enhance the role and significance of the KGB in the State with the use of techniques that are totally unacceptable in a democratic society.
Mikhail Zhamchuzhny’s motives had nothing to do with self-interest or receiving any other benefits. His actions were motivated by the misunderstood interests of human rights protection. Contacts with the operational staff for unlawful purposes and unlawful methods have always been condemned by the human rights community.
In accordance with the International Covenant on Civil and Political Rights, “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
When assessing the fairness of a court hearing, it is necessary to proceed from evaluating the methods of obtaining evidence. The principle of a fair trial not only requires compliance by the law enforcement agencies with the national legislation, but also affects the quality of the law, requiring to comply with the principle of the rule of law.
In this case, Mikhail Zhamchuzhny’s right to protection in court was violated: his counsel was forced to sign a non-disclosure agreement under the threat of criminal responsibility for the disclosure of preliminary investigation data. This measure, which is extremely widely used in practice, severely limits the ability of a lawyer to defend the interests of his client.
Both the preliminary investigation and the trial were completely closed and not transparent, despite great interest in the case from the public and the media. At the same time, the authorities in charge of the case failed to give any justification for the need to consider the case in a closed court session. References to the secret nature of some of the documents gave the court a right to hold only a portion of the consideration in a closed session in order to declare the content of these documents. The closed trial resulted in the concealment from the public of questionable practices by the law enforcement authorities.
In this regard, representatives of the country’s human rights organizations came to the following conclusion: the sentencing of Mikhail Zhamchuzhny is groundless and politically motivated.
Understanding political motives as an actual reason for actions which are unacceptable in a democratic society or inaction of law enforcement and judicial authorities, and other entities of power, aiming, among other things, to achieve the goal of strengthening and maintaining power by the authorities, we believe that the imprisonment sentence was imposed on Mikhail Zhamchuzhny in violation of his right to a fair trial as guaranteed by the International Covenant on Civil and Political Rights; the sentencing was based on charges provoked by representatives of the government, which do not therefore constitute criminal acts, with the duration and conditions of imprisonment being clearly disproportionate to the offense of which the person was convicted.
We consider it necessary to demand an immediate retrial of Mikhail Zhamchuzhny, while retaining the right to a fair trial and the elimination of the factors mentioned above.
Ales Bialiatski, chairman of the Human Rights Center "Viasna"
Aleh Hulak, chairman of the Belarusian Helsinki Committee
Zhanna Litvina, ex-chair of the Belarusian Association of Journalists
Alena Tankachova, chair of the Board of the Center for Legal Transformation
Raisa Mikhailouskaya, chair of the Belarusian Documentation Center
Inna Kulei, chair of the Committee of Assistance to the Repressed "Solidarity"
Tatsiana Reviaka, President of the Barys Zvozskau Belarusian Human Rights House