Evaluation of Events Related to the Presidential Election: Position of the Human Rights Center "Viasna"

Evaluation of Events Related to the Presidential Election: Position of the Human Rights Center "Viasna" 


Non-free nature of the election as a catalyst for mass protests 

The Human Rights Centre "Viasna", as one of the participants of the national monitoring mission “Human Rights Defenders for Free Elections”, cannot but mention some improvements at separate stages of the campaign, but in general, believes the 2010 presidential election fell short of a number of key international standards for democratic elections. 
The Election of the President of the Republic of Belarus has neither been recognized as free nor democratic by the OSCE / ODIHR international election observation mission. 
Since 1996, no Belarusian election campaigns, including presidential ones of 2001 and 2006, have been recognized by OSCE as compliant with international standards for free and democratic elections. 

It should be noted that all election campaigns over the past fifteen years, especially presidential elections, have been far too predictable in advance and are no longer a real form of exercising the citizens’ constitutional right to participate in government; nor is it a form of a real government by the people. In this regard, political actors tend to perceive the elections rather as a political campaign, rather than as a real possibility of changing of power through universal suffrage. 

Almost all nationwide election campaigns and referendums (elections to the Chamber of Representatives, presidential elections) end in protests against their undemocratic and unfree nature. Despite the peaceful nature of those rallies, the police violently suppress such assemblies. Their participants are subject to administrative detentions and beatings. It is rather common when opposition activists are prosecuted for organizing and participating in such events. Opposition leaders M. Statkevich and P. Seviarynets were brought to criminal responsibility for organizing peaceful protests against the results of parliamentary elections and a referendum on amendments to the Constitution (lifting restrictions to the number of presidential terms) on criminal charges of "organizing group activities that breach public order". 

In 2006, over 700 persons were prosecuted under civil procedures for participating in a series of peaceful protests against the election results. 

In reality, the end of every presidential election in Belarus is marred by arrests of persons who had been running in the election or collecting signatures for their nomination as candidates. In 2001, Mikhail Marynich was arrested and sentenced to imprisonment; after the 2006 election one of the presidential candidates Aliaksandr Kazulin was sentenced to 5.5 years in prison. 


The authorities’ reactions. 

Just like during the 2006 presidential election, the authorities took active measures to prevent possible protests of citizens against non-free elections. 

To this end, they used the state media, especially state television. Citizens were intimidated with provocations, allegedly plotted by the opposition. 

On 10 December, 2010 Prosecutor General of the Republic of Belarus issued official warnings to five presidential candidates on the inadmissibility of violating the law. Warnings were issued to Uladzimir Niakliayeu, Vital Rymasheuski, Mikalai Statkevich, Yaraslau Ramanchuk and Andrei Sannikau. The warnings were said to be caused by the candidates’ appeals to hold an unsanctioned rally in Minsk’s Kastrychnitskaya Square after the polls closed on 19 December, 2010. Meanwhile, it was a second warning for candidates M. Statkevich and V. Rymasheuski. The first warning was issued by the General Prosecutor’s Office for appeals to take part in an unsanctioned rally in Kastrychnitskaya Square on 24 November, 2010. 
The next day, on 11 December, 2010 Head of the Presidential Administration Uladzimir Makei made an official statement, which was widely spread through public media. According to his statement, the opposition candidates, while calling on their supporters to gather on the polling day 19 December Minsk’s Kastrychnitskaya Square, were actually preparing provocations, including the use of explosives. "We already know that they are not going to peacefully conduct this event but prepare groups of militants. I think that the government has enough strength and means to react calmly and with dignity in such a situation”, added the head of the Presidential Administration. 

On 15 December 2010, Aliaksandr Lukashenka held a special meeting with the security forces "on security during the election", where he said: "The reaction of law enforcement and military personnel should be adequate and tough. According to Aliaksandr Lukashenka, "the people need no Square”, and those of the opposition leaders, who call to come there will “go into hiding”. He ordered the State Security Council Secretary Leanid Maltsau to coordinate law enforcement activities during the election. 

Similar threatening and preventive statements were also made by the KGB chair Vadzim Zaitsau, Prosecutor General Ryhor Vasilevich and Interior Minister Anatol Kuliashou. 


Events of 19 December 

The protest against the non-free election was announced and planned by the opposition presidential candidates as an exclusively peaceful mass event. However, the day before the polling day was marked by preventive arrests of potential participants that became widespread on the polling day 19 December: civil and political activists, candidates' election agents and campaign activists were arrested across the country, they were blocked in their flats, got off trains, buses and cars; or isolated in other ways. The deliberate and well-planned nature of these actions was proven by Lukashenka’s words after his voting at polling station number 1 in Minsk: "Do not worry, no one will appear on the Square today." 

The intention to stage an exclusively peaceful rally on the polling day was announced by presidential candidates Uladzimir Niakliayeu, Ryhor Kastusiou, Vital Rymasheuski, Ales Mikhalevich and Yaraslau Romanchuk in an address to the General Prosecutor of Belarus, which was aired at 4 p.m. In addition to demands to end preventive detentions across the country, the candidates asked the General Prosecutor to come to Kastrychnitskaya Square personally in order to assess the actions of law enforcement officers and demonstrators. 

Ahead of the rally, which was scheduled for 8 p.m. in Kastrychnitskaya Square, it became clear that the authorities were not going to allow massive and long-term protests in the capital and had a plan of events. 
At 19:10 secret service representatives in civilian clothes attacked a convoy of supporters of presidential candidate Uladzimir Niakliayeu on their way to Kastrychnitskaya. All the journalists present were forced to lie down with their faces in the snow, video equipment was intentionally damaged. The candidate himself was beaten up and taken to a hospital emergency room with injuries. During the attack, explosive packages were used and sound amplifying equipment, which was expected to be used during the rally, was seized. This became a serious signal that the security services operated on a pre-planned scenario and were ready to use any unlawful force or provocative acts. The main message of this development was formulated in Lukashenka’s statement on 19 December: "I do not deal with criminals and saboteurs." 

The protest rally in Kastrychnitskaya Square, which, according to various estimates, brought together between 20 and 40 thousand participants, started at the scheduled time and was held exclusively in the peaceful way, the police did not prevent its implementation. The police did not intervene in the actions of the demonstrators, even when the column turned off the Independence Avenue. During the movement towards Independence Square, the demonstrators chanted slogans, holding flags and banners; no objects that would indicate the intention of violent acts were seen in their hands. In Independence Square near the Government House, none of those present candidates and other speakers called for the seizure of the building of Government, speaking of negotiations and the continuation of the protest on 20 December in the same Square, instead. However, at 10 p.m., despite a great concentration of law-enforcement personnel, unknown persons broke the doors and the windows of the Government House, the police did not respond to the illegal actions, not trying to stop them or isolate from other demonstrators. Such actions by the security forces indicate a planned and controlled nature of the provocation to justify further violent actions against the protesters.

Police actions. 

According to observers of the Human Rights Center "Viasna" and other human rights organizations who observed the 19 December rally in Independence Square, the actions of the police to forcibly disperse the rally were clearly disproportionate. Violence and special means (rubber sticks) were used against the peaceful demonstrators, including women and minors. This led to a large number of wounded among the demonstrators. Dozens of wounded were forced to seek medical help. Most of the demonstrators were arrested after the dispersal of the rally at a distance from the location. There are also known several cases of detention of totally random people. 
It is known that a variety of special police units from different cities of Belarus, as well as conscripts of internal troops and the students of the Police Academy were involved in the violent dispersal of the rally. 

During the violent dispersal of the rally presidential candidates Vital Rymasheuski, Andrei Sannikau and Ryhor Kastusiou were beaten. 

According to testimony from the detainees, the police used physical force against them, as well as other forms of inhuman treatment, they were insulted and humiliated: people were thrown on the floor of the police buses, while the policemen were walking on their backs, detainees were threatened with physical violence, police personnel insulted their dignity with foul abuses. 

All the detainees were taken to Minsk districts police department to face charges under Article 23.34 of the Civil Code of the Republic of Belarus (violation of the order of organization or holding mass events). A large group of detainees was taken directly to the detention center in Akrestsin Street in Minsk. In some police departments, legal procedures took a few hours, while all the detainees were facing the wall. In the Akrestsin detention center, the detainees had to spend many hours (up to 8 or more) in the corridor, facing the wall, some of the detainees were left in the buses. In this case, people were not allowed to drink, there have been cases of beatings and abuses of detainees by police officers. 

It should also be noted that the police did not inform the families of the detainees about their whereabouts. No information about the detainees’ whereabouts was provided and was accessed only by direct calls by their relatives to these institutions. In total, there are four places of civil detentions are known: Zhodzina detention center, Minsk district detention center (women), Minsk city detention center and the detention center in Akrestsin Street. 

It should be noted that the police officers, while performing their official duties, had no badges on their uniforms with names or individual numbers. This fact complicates the identification of policemen in clarifying questions about abusing of authority and violation of human rights, and promotes a sense of impunity and anonymity of police officers. 

Reference: Art. 23.34 of the Civil Code of the Republic of Belarus provides for civil liability for violation of the order of organizing or holding meetings, rallies, street processions, demonstrations and other mass events or pickets. The article consists of three parts: the first part provides for liability of participants in such events, which have not been prosecuted for such offenses during the year. Part 1 Article 23.34 provides for a warning or a fine of up to BYR 1,050,000, or a administrative arrest for up to 15 days. 
Part 2 provides for responsibility of the organizers of such events. It provides for a fine ranging from BYR 700,000 to 1,400,000, or an arrest for up to 15 days. 
Part 3 provides liability for the persons have repeatedly committed the above-mentioned offence during a year. It provides for a fine of between BYR 700,000 and 1,750,000, or an arrest for up to 15 days. 
The procedure of organizing and holding of mass events is regulated by the Republic of Belarus’ Act "On Mass Events". 


Trials of civil detainees for participation in the 19 December 2010 rally 

 All the nine district courts of Minsk considered the civil cases of the protesters detained during and after the rally in Independence Square. As a result, some 700 people were convicted. The cases were considered by a judge and a clerk of the court. On average, one trial took about 10-15 minutes. No information about the schedule of the trials was available, the lists containing the names of the detainees were absent in almost all the courts. In the courts of Maskouski and Savetski districts the trials were closed to the public: no media representatives, relatives of the detainees or other persons were let into the courtroom. There were also certain difficulties with access to the courtroom in the courts of Leninski, Kastrychnitski, Partyzanski and Zavodski districts. 

 The Human Rights Centre "Viasna" lawyers drew up and submitted over 20 complaints to Minsk City Court against the decisions of the courts on civil charges and analyzed more than 150 verdicts made by the courts concerning the detention of persons on 19 December. 

Considering the analyzed cases, we can draw the following conclusions: 

All the verdicts look ready-made. All the detainees were accused of being involved in an illegal street meeting outside 11 Savetskaya Street, shouting slogans "Long Live Belarus!" and "Leave!", paying no attention to the policemen’s demands to stop their illegal activities. 

The guilt of the detainees was proved only by written materials on the case, namely by police reports or testimonies by witnesses. The testimonies were exclusively made by the police personnel, who did not appear in the courtroom and did not called in as witnesses by the court. The arguments of the detainees themselves were not taken into account by the courts, but were treated in a critical way. The verdicts of the courts were extremely accusatory, with no absolvent decisions at all. As a result, the courts also convicted several random detainees, arrested during a mass capture of possible participants after the dispersal of the rally. 
  Some detainees admitted their guilt in participating in the unsanctioned rally and claimed a written petition for applying part 6 of Article 6.5 of the Civil Code of the Republic of Belarus, providing for a lower fine. For example, Part 1 Article 23.34 of the Civil Code of the Republic of Belarus does not specify the lowest fine limit, therefore the fines in this case should be BYR 17,500. However, the courts ignored these requests (including written ones) and sentenced the accused to arrests for a period of 10 to 15 days. It should be noted that during 2010 up to 19 December, the courts had been using this provision of the Civil Code in civil cases on violations of the order of organizing and holding mass events. Disregard of this provision of the Civil Code by the courts in the cases of the 19 December protesters shows that the courts were rather guided by orders than by the rules of law. 

Right to protection. In some cases, before the trial the judge did not always explain to the detainees their rights under Article 4.1 of Procedural Executive Civil Code of the Republic of Belarus, including the right to involve a counsel in a civil trial. In case the detainees requested for participation of a counsel, the motions were met. Meanwhile, there were cases when the detainees were denied a right to legal protection. 


Right to appeal. Most of the persons sentenced to civil arrests were denied the opportunity to appeal the decisions. 

According to Articles 12.2 and 12.4 of the Procedural Executive Civil Code, a court decision on imposing a civil penalty in the form of arrest may be appealed at a higher court within five days from the date of its proclamation. 

At the same time, according to part 2, Article 11.12 of the Procedural Executive Civil Code, the vrdict on the imposition of civil arrest is to be executed immediately. 

The situation suggests that the decision on arrest is not yet in force, but the person is already serving an arrest imposed on him or her. Moreover, while in penitentiaries the persons are deprived of opportunities to enter into agreements with lawyers, to pay state fees, etc. 

It should be noted that in some cases, the detainees passed their written complaints to the administration of detention centers, but those did not always pass them on to the courts. The complaints in most cases were left unattended or returned without review due to nonpayment of state fees. This led tot the expiry of the periods for appealing the decision, provided by the Procedural Executive Civil Code. A failure to appeal a decision, until it enters into force, deprived a person of the right to further appealing the ruling through a supervisory appeal. 
The convicts were not given a copy of the court decisions, not informed about their right to appeal the decisions. 
When drafting complaints against the rulings by Minsk City Court the lawyers of the Human Rights Centre "Viasna" demanded to recover the periods for appeals due to a valid reason. Minsk City Court restored the missed deadlines and took the complaints for consideration.

Criminal cases 

Following the events related to the presidential election in the Republic of Belarus, three criminal cases under Parts 1 and 2 Article 293 of the Criminal Code of the Republic of Belarus ("mass riots"), Part 3 Article 339 ("hooliganism") and Article 370 ("insulting national symbols") were instituted 
The majority of the accused are facing charges in the “mass riots” case, initiated by Minsk police on 20 December, 2010. 

Article 293 "Mass riots": 1. The organization of the mass riot which was accompanied with violence against people, demolition, arsons, defilement of property and armed resistance to representatives of the authority, is punished by 5-15 years of imprisonment.
2. Participation in mass riot which was manifested in the direct implementation of the actions that were mentioned in Part 1 of the Article, is punished by 3-8 years of imprisonment.

As of 19 January, 2011 Belarusian human rights defenders know about 32 accused and 16 suspects in the case. The accused include five presidential candidates: Uladzimir Niakliayeu, Andrei Sannikau, Ales Mikhalevich, Mikalai Statkevich and Vital Rymasheuski. All the former candidates, except for Rymasheuski, who remains under house arrest, were put in the KGB prison. Two more presidential candidates – Ryhor Kastusiou and Dzmitry Us - are suspects in this case, being forced to give a written undertaking not to leave. Charges for organizing and participating in mass riots were also brought against several campaign chiefs and election agents of the candidates, as well as journalists, activists of the democratic parties and organizations, active participants in the 19 December protest. There are three women among the accused: journalist and wife of presidential candidate Andrei Sannikau Iryna Khalip, journalist Natalia Radzina and deputy chair of the "Young Front" Anastasia Palazhanka, as well as two citizens of the Russian Federation. Out of the 32 accused, 28 were detained, 4 are under travel restrictions. According to human rights defenders, out of 16 suspects, 5 are in custody, 9 under travel restrictions, 2 are currently outside the country, most of them being the protesters, who had served civil arrests. 
According to Minsk city police, they have identified nearly 120 active participants in the protest on 19 December, therefore the list of accused and suspects is not yet final and is likely to increase.

 
Article 339, ‘Hooliganism’

1. Deliberate actions that grossly violate the public order and demonstrate an evident disrespect to the society, which are accompanied with the use of violence or the threat of its use or destruction or waste of property of other people, or are defined by an exceptional cynicysm (hooliganism), -

2. Hooliganism, committed repeatedly or by a group of persons or connected with resistance to a person that stops the hooligan actions, or accompanied with the infliction of a less hard bodily injuries (malignant hooliganism)

3. The actions that are provided by parts 1 and 2 of the article, committed with the use of weapons and other items that are used as a weapon for infliction of bodily injuries, with the use of eplosives or explosive devices or are committed with the threat of their use, in the absence of the traits of a harder crime (especially malignant hooliganism) are punished with 3-10 years of imprisonment.

Criminal charges under Part 3 Article 339 of the Criminal Code were brought against the leader of "Young Front" Dzmitry Dashkevich and the activists of the organization Eduard Lobau and Dzianis Lazar, who were detained in Minsk on 18 December, 2010. According to investigators, they arbitrarily and deliberately punched and beaten two citizens with metal tongs. On 28 December, Dzianis Lazar was released, all the charges against him were withdrawn, on 6 January 2011, Dzmitry Dashkevich and Eduard Lobau were officially indicted, both men are currently in custody in the prison of Zhodzina. 

Article 370 "insult of the state symbols": Insult of the State Emblem of the Republic of Belarus, the National Flag of the Republic of Belarus, the National Anthem of the Republic of Belarus is punished by public works or a fine or by corrective work for up to two years, or imprisonment for up to three months, or a restraint sentence of up to one year. 

As yet, there are no suspects in the case, but police have reportedly been processing the photo and video coverage of the rally, which are said to feature the replacement of the state flag by the national white-red-white one at the KGB building during the march in Independence Avenue. The investigation of the case involved searches of some journalists, who might have similar photo and video coverage. 

The criminal case has been used by the authorities as a formal pretext for conducting searches, calls for conversations and interrogations of the political opposition activists, civil society organizations, human rights defenders and independent media journalists. 

Between 20 December and 19 January 2011, according to information of the Human Rights Center "Viasna" alone, about 100 searches have been conducted. Simultaneously, about 100 citizens have been summoned for interrogation by the KGB as witnesses in the case. People are often called for "conversation" in the Interior Ministry departments by telephone, as their mobile phones were located in Independence Square on 19 December. However, the citizens are usually not explained their right not to give explanations and testimony against themselves. There were a number of facts of interference by representatives of the KGB and police into the legal assistance to citizens during interrogations and conversations. 

The scale of the ongoing searches indicates that the criminal case has been used by the Belarusian authorities for a campaign of harassment and pressure on dissidents in the country, creating an atmosphere of fear in Belarusian society. 


Right to the protection of the accused, the pressure on lawyers and human rights defenders. 

Despite the fact that Article 48 of the Code of Criminal Procedures guarantees the counsels’ right to meet freely with their clients one on one, without limitation on the amount and duration of meetings, the lawyers of the majority of the accused, currently in detention, are deprived of such opportunities and they can only see their clients during interrogations. According to the administration of the KGB prison, the main reason for the inability to organize such meetings is the small amount of free space where the meetings could take place. Despite numerous complaints from lawyers to the General Prosecutor's Office, the situation has not yet changed. Meanwhile, the General Prosecutor’s Office and Minsk City Prosecutor's Office have repeatedly said that all the accused are guaranteed the right to legal assistance. It was not until 17 January 2011, after repeated complaints to the prosecuting authorities, Uladzimir Niakliayeu’s lawyer Ms. Tamara Sidarenka received a reply from Minsk City Prosecutor’s Office, which recommended the chief of the KGB detention center to provide opportunities to ensure the rights of lawyers to meet with their clients. 

The lawyers’ comments to the media about the impossibility of meetings with their defendants, as well as on their health and detention conditions, have generated a backlash by the Ministry of Justice of the Republic of Belarus. The Ministry of Justice has accused some lawyers of giving biased and one-sided comments, which, according to the Ministry, violates the rules of legal ethics. The Justice Ministry addressed Minsk City Bar with a demand to consider the possibility of imposing disciplinary penalties on four lawyers. It also recommended considering the possibility of suspending the license of Andrei Sannikau’s counsel and member of the Presidium of Minsk City Bar Pavel Sapelka. 
On 12 January, a meeting of Minsk City Bar considered the motion by the Justice Ministry. The leaders of the Bar saw no grounds for instituting proceedings on the motion and application of sanctions against the lawyers. 

Pressure from the authorities has also been used against human rights activists, e.g. on 20 December 20 2010, persons in civilian clothes conducted an illegal search at the office of the HRC "Viasna", in which all the PC system units were seized. 10 persons, including lawyers Valiantsin Stefanovich and Uladzimir Labkovich, were detained by police and taken to Minsk Pershamaiski District Police Department, where they spent more than three hours and were released without explanation for their detention. 

On 14 January, a search was conducted in the office of the BHC. On 17 January, the office of the HRC "Viasna" was searched again. On 19 January, the KGB searched the office of the "Human Rights Centre". 

Searches were also conducted in the private apartments of human rights activists Alena Tankachova, Aleh Hulak, Ales Bialiatski, Raisa Mikhailouskaya and Ales Kaputski (Maladechna). 

Apart from that, on 13 January, the Ministry of Justice issued a written warning to the BHC for submitting information to the UN Special Rapporteur on the Independence of the Courts, which dealt with the facts of pressure on lawyers from the Justice Ministry. The Ministry of Justice regarded the information of the Belarusian Helsinki Committee as being subjective in reflecting the work of the government and law enforcement agencies to maintain stability and the rule of law in the country, and deliberately distorting the actual situation in the country, as an attempt to discredit Belarus in the eyes of the world. 

Conclusions: 


- Election of the President of the Republic of Belarus was neither free nor democratic. The election results announced by the CEC, in no way reflect the actual will of the citizens of Belarus. 
- The protest against the undemocratic and unfree election was peaceful. The citizens who had gathered in central Minsk had peaceful purposes and sought to peacefully express their opinions and protest. 
- The incident with the smashing of windows in the building of the Government House was not prevented by law enforcement agencies. The evident inaction by the Interior Ministry personnel, who were present in Independence Square, indicates to a well-organized provocation by the authorities, used to forcibly disperse the rally and the arrests more than 700 of its participants. 
- The actions of the police to disperse the demonstration were clearly disproportionate to the character. The use of physical force and special means led to a large number of wounded among the peaceful protesters. 
- The attack of security services in civilian clothes on the presidential candidate Uladzimir Niakliayeu and his supporters was clearly provocative and illegal. 
- The beating and arrests of virtually all the presidential candidates, the rivals of Aliaksandr Lukashenka, are nothing more than political violence. 
- The criminal case under Part 1 and 2 Article 293 of the Criminal Code ("mass riots"), initiated by the KGB, is used only for long-term isolation of the leaders of the pro-democratic opposition movement, as well as a means of exerting pressure and creating the atmosphere of intimidation among the country's independent civil society, independent media and journalists, human rights defenders, as well as all the dissidents of Belarus. 
- Since 19 December 2010, there has been a sharp boost in the wave of politically motivated repressions and human rights violations. This is a return of the Belarusian authorities to cruel and repressive methods of influence on the political parties, civil society and independent media. 
- The number of political prisoners in the country reached a record for the period of 16 years of the reign of Aliaksandr Lukashenka and the list of prisoners is not yet final.