Analytical review of the trial on the criminal case of Drozd, Khamichenka, Kirkevich, Pratasenia and Vinahradau
Conclusions:
1. During the court proceedings there wasn't
presented any evidence that a mass riot, accompanied with the aggregate of such
actions as personal violence, destruction of property and armed resistance to
public agents, had really taken place in
Nezalezhnasts Square on 19 December 2010.
2. There wasn't presented any evidence that the accused had committed the crime
punished by Article 293, part 2 of the Criminal Code of the Republic of Belarus
(direct commitment of one or several criminal actions, characteristic for mass
riot (arsons, pogroms, personal violence, destruction of property and armed
resistance to public agents)).
3. The court received no evidence that A.Kirkevich had directly delivered at
least one blow on the wooden constructions (tables) with which the doors of the
House of the Government had been blocked. Neither was there evidence of
commitment of any other criminal actions by A.Kirkevich.
4. The actions of Dz.Drozd, U.Khamichenka, A.Pratasenia and P.Vinahradau bear
traits of an offense, but cannot be qualified under Article 293, part 2 of the
Criminal Code. In particular:
The delivery by Dz.Drozd of three blows on the wooden constructions (tables)
in the doorways of the House of the Government with the use of a megaphone
couldn't lead to their destruction. Moreover, these constructions weren't
mentioned by the civil plaintiff (the Main Economic Board of the Administration
of President of the Republic of Belarus) in the inventory of the destroyed
property, the tables weren't counted and the loss wasn't estimated.
Tearing a baffle from the hands of a policeman and delivery of blows on the baffles
with which the window openings were blocked cannot be qualified as armed
resistance to the police, which is necessary to qualify actions of A.Pratasenia
under Article 293, part 2.
P.Vinahradau's actions on hitting on the tables in the doorways of the House of
the Government is not destruction of property as far as these constructions
weren't mentioned by the civil plaintiff (the Main Economic Board of the
Administration of President of the Republic of Belarus) in the inventory of the
destroyed property and weren't destroyed as a result of his actions.
U.Khamichenka's actions on hitting the wooden barriers and already broken
windows with hands, feet and an ice axe are actions aimed at defilement of
property, but don't constitute corpus delicti under Article 293, part 2.
1. No evidence of commitment of other unlawful actions in Nezalezhnasts Square
on 19 December 2010 by the accused was presented to the court.
2. Defendant Kirkevich, who was kept in the pre-trial prison of KGB, didn't
have the necessary number of meetings with the lawyer during the preliminary
investigation. This circumstance is considered by us as a violation of the
right to defense, guaranteed by Article 62 of the Constitution of the Republic
of Belarus and norms of the Criminal-Process Code.
3. The state media (the newspaper Sovetskaya Belorussiya and the state
TV channels) repeatedly showed some of the accused as offenders of the House of
the government long before the trial, which grossly violates the presumption of
innocence.
4. The publication by the state-owned
newspaper Sovetskaya Belorussiya of materials of the preliminary
investigation before its end and establishing the guilt of the accused by court
were conducted on order of the head of the state, which eloquently witnesses
the political motivation of the criminal case and emphasizes the accusative
bias of the investigation and the trial.
Therefore we conclude that:
The conviction of Dz.Drozd, U.Khamichenka, A.Kirkevich, A.Pratasenia and
P.Vinahradau under Article 293, part 2 of the Criminal Code of the Republic of
Belarus is unlawful and politically motivated. The verdicts to them are
groundlessly severe and disproportionate to the committed violations.
Short description of the trial
On 27 April 2011 the Kastrychnitski District Court of Minsk started trying
the criminal case of Dzmitry Drozd, Uladzimir Khamichenka, Aliaksandr
Kirkevich, Andrei Pratasenia and Pavel Vinahradau, brought under Article 293,
part 2 of the Criminal Code (CC). Besides, Pavel Vinahradau was also charged
under Article 370 of the CC (outrage of state symbols). The court hearings were
held for six days: on 27-30 April and 4-5 May 2011 (a break was announced in
connection with days off).
The case was tried by Judge Ala Bulash. The state accusation was represented by
the Deputy Prosecutor of the Kastrychnitski district of Minsk, Barouski.
The accused were defended by counsels of the Minsk Bar: Natallia
Aleksandrovich, Sviatlana Harbatok, Natallia Matskevich, Alena Puhachova and
Valery Zinkevich.
The trial started on 27 April.
The counsels solicited for requesting recordings of the events that had taken
place on Nezalezhnasts Square at 6-12 p.m. on 19 December 2010, made by the
operative-duty department of the Main Police Department of the Minsk City
Executive Committee, and also for summoning as witnesses Yazep Yanushkevich and
the experts who examined the psychical state of Uladzimir Khamichenka.
The judge granted the solicitation to summon the experts and the witness, but
dismissed the motion for requesting the video materials.
Accusation
The state accuser read the accusation, according to which in May 2007
P.Vinahradau, being in inebriated state, had insulted the state flag of the
Republic of Belarus by burning. On 19 December 2010 he, together with other
accused and other persons, took part in the mass riot which was accompanied
with personal violence, pogroms, arson, property destruction and armed
resistance to public agents. Under the fictional pretext of the non-democratic
nature of the election, the accused took part in public actions that grossly
violate the public order, destructed property of the Main Economic Board of the
Presidential Administration with the use of special tools, committed personal
violence and showed armed resistance to the police, as a result of which bodily
injuries to the latter ones were inflicted.
Being an active participant of the mass riot, the accused P.Vinahradau made
active steps for penetrating the House of the Government. He delivered at least
five blows on wooden barriers.
Being a participant of the mass riot, the accused Dz.Drozd made violent actions
to penetrate the House of the Government. He delivered at least three blows on
the wooden barriers in the doorways of the House of the Government and beat police
officers.
The accused A.Kirkevich, being an active participant of the mass riot, made
violent actions to penetrate the House of the Government. He delivered at least
one blow on the wooden barriers in the doorways of the House of the Government
and committed other unlawful actions.
The accused A.Pratasenia put on a protective outfit and made violent actions to
penetrate the House of the Government. He delivered at least 15 blows on the
glass in the window openings of the House of the Government, tore out baffles
from police officers and delivered blows on the baffles.
The accused U.Khamichenka, being inebriated, made violent actions with the aim
to penetrate the House of the Government, tried to break the entrance doors of
the House of the Government and delivered at least two blows on them.
Dz.Drozd and A.Kirkevich pleaded innocent, U.Khamichenka partially confessed
his guilt and P.Vinahradau partially confessed his guilt under Article 370 and
pleaded innocent of violating Article 293, part 2.
The state accuser stated that the guilt of the defendants was completely proved
by their own testimonies, testimonies of witnesses and other materials of the
case.
The proceedings towards P.Vinahradau on charges of violating Article 370 were
stopped due to the expiry of the legal prosecution terms specified by Article
83 of the Criminal Code of the Republic of Belarus. According to the court, it
was proved that in May 2007 P.Vinahradau, being in inebriated, had insulted the
state flag of the Republic of Belarus by burning it.
Testimonies of the accused at the trial
During the questioning A.Pratasenia stated that at about 7.30 p.m. on 19
December 2010 he had met with his friends and brother on Kastrychnitskaya
Square in order to take part in the peaceful demonstration dedicated to the
election. He stood in the center of the square and didn't hear speeches of the
candidates. The column of demonstrators moved towards Nezalezhnasts Square by
the carriage way. There were about 20,000 people in it. He came to Nezalezhnasts
Square at about 9 p.m. People shouted slogans at the square, but he didn't hear
anything concrete. He came to the square because presidential candidates called
people to do it. On the square, speakers called demonstrators to phone their
friends and invite them to the action. In some time he heard the sound of blows
on the doors of the House of the Government, and then – the sound of broken
glass. He came towards the building. He saw baffles near the windows, but
didn't saw the police. He delivered blows on the baffles in order to get hold
of them, but didn't want to inflict any harm to police officers. He saw a
fishing rod, disassembled it and put it away. He was wearing a protective
outfit not to get any traumas. He didn't try to get into the House of the
Parliament. Journalists started filming what was happening and the accused was
dragged towards the doors of the House of the Government. He yielded to
influence of the crowd and committed the actions in which he is accused. He
didn't confess delivering 15 blows and said that he hit only two times.
When asked by the counsel, he told that he
had no aim to penetrate the House of the Government. At first the property was
destructed by two people, and then – by about ten people. He didn't see any
bottles with incendiary mix. He didn't hear any calls to get into the building.
When asked by the judge, he explained that he had seen a baffle in the window
and didn't think that there could be a policeman behind it. He has a bad
eyesight and didn't have any glasses. He didn't go away at the time when
windows were being broken because he yielded to the crowd effect.
The judge voiced A.Pratasenia's testimony during the preliminary investigation,
according to which he confessed having delivered no more than four blows.
Pratasenia answered that he didn't remember.
Testimony of Uladzimir Khamichenka
He was in Minsk on 19 December 2010. He came to Kastrychnitskaya Square at
4 p.m. and walked there. A crowd came to the square at about 8 p.m., but he
didn't come close to it. The crowd proceeded to Nezalezhnasts Square. He just
looked at the events and didn't do anything there. He talked with young people
near the Catholic church and heard the calls to phone to friends and relatives.
He didn't see any items in the hands of the present people. He saw them only
when the glass was being broken. He came nearer when the breaking of the
windows started and hit two times with his foot and one time – with an ice axe.
Everything had been already broken by that time. He doesn't remember where he
got the ice axe. He doesn't know why he was breaking the glass. He wanted to go
away, but didn't He confessed having defiled the property, but says that he
didn't beat any police officers. He delivered two blows with his hand, five – with
foot, and one – with an ice axe. He tore away the sealant from a window. He
didn't see any fire. Then police officers went out of the doors and hit him
with a truncheon several times. He felt pain and fell down. Then he was
detained. He didn't want to go with the police during the detention and
revolted. He didn't see any aggressive actions or resistance to the police from
the side of demonstrators.
Testimony of Dzmitry Drozd
On 19 December 2010 he came to the demonstration in Minsk to wait for the announcement
of the election results. Demonstrators came out to the carriage way and headed
for the House of the Government. They proceeded accurately. The traffic police
regulated their movement. Nobody tried to stop the people. They carried flags.
Nobody had any canisters or metallic items in their hands. The beating of the
windows had started before the candidates came. The people shouted: “Stop it!”
and “Provocation!”. There was no police, and demonstrators didn't manage to
stop the provocateurs. The windows were being smashed for half an hour, after
which he understood that the police would detain people. He came towards the
doors without the aim to penetrate the House of the Government. He delivered
blows on the wooden barriers with his megaphone, out of the desperation at what
had happened. He saw how the election was conducted and it was not fair. The
reasons for the action weren't “far fetched”, as it is stated in the
accusation. He covered a police video camera with his hands, but didn't hit on
the cameraman's arms.
Being asked by the counsel, he answered that he hadn't felt as a part of the
crowd. At first he stood at a distance, being sure that it was a provocation.
He also said that he had lived in Moscow for seven years, returned to Minsk in
2009 and wrote the book Landlords of the Minsk province.
When the judge asked what he refuted in the
accusation, Dz.Drozd answered that he didn't deny having delivered blows on the
wooden barriers at the House of the Government.
Testimony of Aliaksandr Kirkevich
On 19 December 2010 he was at the demonstration, as a member of the guard
of the presidential candidate V.Rymasheuski. The aim of the demonstration was
to support the candidates. The crowd moved towards Nezalezhnasts Square. The
aim of the procession was to surprise the authorities. There were no calls to
violence. Kirkevich lost Rymasheuski near the church. The demonstrators didn't
hold any things in their hands. He went to the House of the Government when the
crowd moved there. He didn't see how the windows were being broken and doesn't
remember the sound of broken glass. He saw flashes of photo cameras and a crowd
of people in front of the doors. The people pushed him and he had to move
forward. He didn't deliver any blows on the doors, just leaned against the wall
not to be smothered. He spent just a
minute near the doors. He left the square after the riot police appeared there
and went home by train. The accused confirmed that he could be seen on the
video that was demonstrated at the trial.
Being asked by the counsel, the accused explained that when the riot police had
come he had been standing in front of the stairs of the House of the
Government. He didn't hear any calls to enter the building and didn't see any
actions aimed at property destruction. There were few people near the entrance
doors and he didn't see any demonstrators hitting the police. He disagrees with
the qualification of these events as a mass riot. He thinks that it could be
qualified as hooliganism, in the last resort.
Pavel Vinahradau refused to testify at the trial
The victims' testimonies
All 29 victims are officers of the special mission police regiment that
guarded the public order on 19 December 2010 and came to the House of the
Government in order to stop unlawful actions of the demonstrators who were
breaking windows of the House of the Government. It's worth mentioning that
these very people also figured as victims in the cases of Dz.Miadzvedz,
M.Likhavid and two citizens of the Russian Federation, A.Breus and I.Haponau.
The majority of the victims didn't come to the trial because they were either
on vacation or sick leaves. The 9 policemen who were interrogated at the trial
gave testimonies which resembled the ones given during the previous trials
concerning the 19 December events. All of them didn't know the accused,
couldn't explain anything concerning their actions on 19 December 2010 and
didn't have any pretensions to the accused.
The testimony of just one victim, senior inspector of the Main Police Department
of the Minsk City Executive Committee, cameraman Mikalai Shylko, directly
concerned Dz.Drozd. He stated that on 19 December he had videoed violations of
the public order on Nezalezhnasts Square. He shot the general view and speeches
of the candidates. He didn't see any violent actions on Nezalezhnasts Square.
He followed demonstrators until one of them broke his camera. Then he went away
to take another one. After this he continued shooting the events on
Nezalezhnasts Square on video. He didn't video the beating of the windows from
the very beginning. He saw Sannikau in the crowd and followed him. He saw
Khamichenka, but the latter didn't have the ice axe with him at that time. The
riot police lined up, and he decided to shoot the demonstrators' faces. When he
walked between the riot police and demonstrators, the latter ones delivered
blows, including Dz.Drozd. He remembered Drozd, as the latter was quite short.
Drozd delivered a blow, but he doesn't know whether it was really a blow or an
attempt to close the camera objective. The camera didn't receive any serious
damage. He has no pretensions to the accused. Being asked by the counsel, he
answered that he didn't remember whether Drozd had hit him on the arms.
The testimonies of the witnesses who didn't come to the trial were read by the
court. The counsels objected to it, because they didn't consider the absence
and sick leaves as a good excuse for missing the trial.
In their testimonies the victims stated that they had been ordered to “clear”
the territory near the entrance of the House of the Government. They didn't see
who broke the window, as the windows had been already broken when they came.
The majority of the policemen stated that demonstrators had used violence
towards them. Demonstrators allegedly hit and kicked on their baffles, some of
the policemen were dragged out of the line and hit in the head and in the trunk
with hands and unidentified things. Powder fire extinguisher was used against
two of them. Practically all victims confirmed that the number of the people
who were active participants of the events at the entrance of the House of the
Government was 35-50 people, including journalists with photo and video
equipment.
The victims stated that they had received injuries of various degrees of
severity and had to apply to the hospital of the Ministry of Internal Affairs.
There they received medical aid, including medical examination and diagnostics.
However, the beating of 24 out of 29 victims wasn't registered by the forensic
expertise.
Testimonies of witnesses
A total of 13 witnesses were interrogated at the trial. The policemen
Aliaksandr Karpionak and Aleh Rytsik who had detained the accused Khamichenka
were witnesses of the accusation. They stated that Khamichenka had jibbed and
refused to go with them during the detention.
All other witnesses either couldn't say anything about concrete actions of the
accused near the entrance of the House of the Government or just characterized
their personalities.
Aleh Hulak, Chair of the Belarusian Helsinki Committee, testified at the trial
as well. He stated that he had monitored the demonstration, as far as the BHC
monitors the realization of freedom of peaceful assemblies. He came to
Kastrychnitskaya Square at about 7.20 p.m. He didn't see any incidents there. A
skating rink had been made there, that's why the majority of demonstrators
gathered near the House of the Government. He didn't see any unusual items in
the demonstrators' hands. Statkevich proposed to proceed towards the church.
Then Sannikau called on the people to go to the House of the Government, but
didn't call to violent actions. About 30,000 people came to the square. Some
people started breaking windows in the House of the Government. The witness
went forwards, stopped at a 20-meter distance from the House of the Government,
and saw that 3-4 people were breaking the glass at the entrance doors.
Journalists came there as well. The witness was surprised that the windows were
being broken for much time without any reaction from the side of the police.
Some 15-20 people continued breaking the windows. The witness saw a group of
people who he thought were police administration, standing on the right of the
entrance to the House of the Government. He asked them why they paid no
reaction. They answered that they weren't commandants.
Questioning of experts
On solicitation of U.Khamichenka's counsel, the results of the psychiatric
expertise of U.Khamichenka were announced and the experts who had conducted it
were questioned at closed court proceedings.
Written case materials and material evidence
Written materials of the case included protocols of examination of the
scene and results of expert examinations. Eights disks with video and photo
materials and some items that had been confiscated from the accused during
searches at their apartments (a mask, caps, clothes, etc.) were presented as
evidence in the case.
The defense paid a special attention to protocols of examination of the scene
(Nezalezhnasts Square). According to the first protocol of examination, which
took place at 00.00 a.m.
- 4 a.m.
on 20 December 2011 by frontal examination (the whole territory of the square
was examined according to this scheme). According to it, only 7 items were
found, including three napkins with brown stains. According to the second
protocol, nothing was removed from the square, and everything was shot on video
(the video was presented to the court).
According to the third protocol, conducted at 3 p.m. on 20 December
(more than 15 hours after the dispersal of the demonstration), canisters and
bottles with some liquid, iron bars, spades, an axe, ice axes, aerosol
containers, noise grenades, etc. were found at the scene. The case contains no
information about any measures taken to prevent the entrance of unauthorized
people to the territory of the square at that time.
According to the results of the expert examination of the items that were found
at the scene, they don't belong to cold arms, explosive or inflammable
materials.
Photo and video materials were watched at the trial. The majority of them
concerned the events on Nezalezhnasts Square. Moreover, private photos and
videos of P.Vinahradau were shown. At one of them one can see the burning of a
wooden construction with Lukashenka's photo. The bottom of the construction is
wrapped in a green-red cloth, but it is impossible to determine whether it is
the official state flag of the Republic of Belarus or not.
As it can be seen on the video materials, the accused Dz.Drozd hits the wooden
barriers (tables) in the doorways of the House of the Government at least two
times. It can also be seen that the accused A.Pratasenia tears out a police
baffle from a window opening of the House of the Government, delivers several
blows on the baffles, and how policemen hit back with truncheons. The accused
P.Vinahradau can be seen at the entrance of the House of the Government,
hitting the wooden barriers in the doorways with a hammer, while wearing a
mask. There are also photos of P.Vinahradau wearing the same clothes. The
accused A.Kirkevich is in the crowd which evidently presses on him. In front of
him there is V.Parfiankou (sentenced to 4 years of imprisonment) who is
delivering blows on the wooden barriers. It is difficult to conclude from the
videos whether A.Kirkevich hit the wooden barriers one time or no.
U.Khamichenka was videoed and photographed from many points. At first he broke
windows, and then – the door constructions and barriers, sometimes with the use
of a road-scraper (it is not visible on the video where he took it from).
Participation of the accused in personal violence, arsons and armed resistance
to the police wasn't registered on the video.
The presented video materials cover just a small piece of the square near the
doors of the House of the Government. There are practically no general views
which would give an idea of what was happening on the square and how many
demonstrators took an active part in the events. The video is a montage of
shots made by several cameras. There is no time-keeping or date, that's why it
is difficult to get an idea about the duration of the breaking of the glass,
its beginning and end. The actions of the first line of the riot police which
ran out and stopped in front of the House of the Government was shot from the end
where there were no clashes with demonstrators. Clashes can be seen at the
other end of the line, but it is impossible to see any details. The video
doesn't confirm the testimonies of the victims about the use of violence
towards them (dragging them out of the line, tearing helmets out of their heads
and hitting them aren't seen on the video). A part of the video shows the
insides of the House of the Government, where the police blocked the entrance
doors and the windows of the House of the Government with baffles and wooden
tables. No demonstrators can be seen using any special tools (axes, spades,
iron bars and bottles) against the police. No arsons or preparation to them
were registered on the video, either.
The defense also pointed at the absence of the description of the video
materials corresponding to requirements of the Criminal-Process Code. As a
result, it is not known who produced the video and what equipment was used, who
mounted the video shots, etc. The defense is convinced that in such circumstances
the video cannot be used as admissible evidence and must be excluded from the
case.
The defense solicited for requiring the videos made by the operative-duty
section of the Main Police Department of the Minsk city Executive Committee at
6-12 p.m. on 19 December. Counsels also solicited for the attachment of the
video and photo materials from the Belarusian Helsinki committee and other
independent sources. The defense stated that these materials were shot from
other viewpoints and presented general views, which is quite important for
qualifying the events of 19 December 2010. However, the court didn't grant
these motions.
The prosecutor solicited for supplementing the case with verdicts to the
already convicted Atroshchankau, Malchanau, Novik and Parfiankou as far as,
according to norms of the Criminal-Process Code, the facts that had been
established during the previous trials don't need to be proved and are
obligatory for the court. According to the prosecutor, the verdicts on these
cases established the fact of the mass riot on Nezalezhnasts Square on 19
December 2010. The defense objected, as far as these verdicts concern other
persons and weren't voiced at the trial. Nevertheless, the judge granted the
motion and attached the verdicts to the case materials.
Dispute of the sides
State accusation
The state accuser was the first to take the floor. He stated that the guilt
of the defendants was completely proved. According to him, the accusation
describes all events of 19 December 2010 and the general result of actions of
other people, and then – actions of each of the accused. The prosecutor stated
that though none of the accused took the blame to the full extent, all of them
actually confessed their guilt of the actions in which they were accused.
Two of the convicts had previous convictions which weren't expunged at the time
of the trial. In particular, in 2010 U.Khamichenka was sentenced to three
months of arrest for a theft, and was released on 9 December, after serving the
whole term of the arrest. On 26 May 2008 Pavel Vinahradau was sentenced to two
years of personal restraint without direction to an open penitentiary
institution, under Article 342 of the Criminal Code (organization or active
participation in group actions that grossly violate the public order) and was
granted parole in 2009, without expunging the conviction. That's why the
prosecutor considered their actions as a repeated offense.
He demanded 3,5 years of imprisonment in a high security prison for Dz.Drozd, 4
years – for A.Kirkevich and P.Vinahradau and 3 years – for A.Pratasenia and
U.Khamichenka. Moreover, the prosecutor considered it as necessary to use a
forcible anti-alcoholic treatment towards U.Khamichenka in prison. He also
proposed considering the commitment of the crime by Khamichenka in inebriated
state as an aggravating circumstance.
Defense
The counsels asked to justify their clients
because of the absence of corpus delicti under Article 239, part 2 of the CC in
their actions. They disagreed that the events of 19 December 2010 were a mass
riot, as far as actions of a small group of people that lasted for a short
period of time didn't result in a great damage (14 million rubles according to
the civil lawsuit), weren't accompanied with pogroms, arsons and armed resistance
to the police and didn't present any danger to public security. The counsels
pointed that some actions of the defendants violated the public order, but
didn't constitute a crime under Article 293, part 2 of the CC.
U.Khamichenka's counsel stated that due to peculiarities of the psychic and
physical development it is difficult for him to adequately assess certain
situations and his role in them. Therefore, he had no intention to take part in
a mass riot. The counsel also disagreed with the statement that Khamichenka had
been inebriated, as there was no conclusion of the forensic expertise on this
matter.
Dz.Drodz's counsel pointed, that the victim M.Shylko was unable to answer
whether her defendant had hit him on the arms, and had no pretensions to
Dz.Drozd.
A.Kirkevich's lawyer stated that no evidence was presented that her defendant
had committed the actions of which he was accused: destructed property and
delivered blows on police baffles. She pointed at incorrect formulations, such
as “took other active steps”. She pointed that a verdict couldn't be grounded on opinions in the absence of
facts, and any doubts were to be explained in favor of an accused. She also
stated that she had been unable to realize her right to meet with her client
without limitation of the number and time of meetings, because the
administration of the pre-trial prison of KGB had prohibited the meetings
referring to the absence of free meeting rooms. The lawyer considered it as a
violation of A.Kirkevich's right to defense, which is guaranteed by Article 62
of the Constitution.
Verdict
Judge Ala Bulash found all accused guilty under Article 293, part 2 of the
CC, and sentenced:
Pavel Vinahradau – to 4 years in a high-security prison,
Aliaksandr Kirkevich – to 4 years in a
high-security prison,
Dzmitry Drozd – to 3 years in a
high-security prison,
Uladzimir Khamichenka – to 3 years in a
high-security prison,
Andrei Pratasenia – to 3 years in a
high-security prison.
