Analytical review of the court proceedings on the criminal case of Daronin, Fedarkevich, Kazakou, Loban, Matsukevich and Sakret

2011 2011-05-16T10:54:13+0300 1970-01-01T03:00:00+0300 en https://spring96.org/files/images/sources/sudy-sakret.jpg The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”

The trial of the criminal case of Daronin, Fedarkevich, Kazakou, Matsukevich and Sakret took place on 5-11 March at the Maskouski District Court of Minsk. The case was tried by Judge Alena Shylko with participation of the state accuser Melnikau, Deputy Prosecutor of the Maskouski District of Minsk. The defendants were charged under Article 293, part 2 of the Criminal Code (direct participation in mass riot). On 12 May the court found them guilty under Article 293, part 2.

Dzmitry Daronin was sentenced to 3.5 years of imprisonment, Aleh Fedarkevich – to 3.5 years of imprisonment, Siarhei Kazakou – to 3 years of imprisonment, Uladzimir Loban – to 3 years of imprisonment and Yauhen Sakret – to 3 years of imprisonment.


Brief analysis of evidence

1. Similarly to the previous trials, no sufficient evidence was presented that a mass riot corresponding to the definition in Article 293 of the Criminal Code of the Republic of Belarus (accompanied with the aggregate of such actions as personal violence, destruction of property and armed resistance to public agents) had taken place during the peaceful action of protest held in Minsk on 19 December 2010.

2. No precise evidence was presented at court that the accused had directly committed any actions which are qualified as mass riot by the disposition of Article 293 of the Criminal Code.

3. No evidence was presented that Matsukevich had taken an active part in the violent actions on Nezalezhnasts Square in Minsk. That's why he should be considered convicted solely on the basis of false testimonies of some of the witnesses who were questioned at the trial.

4. A number of court materials, first of all video materials, present direct evidence that some of the accused, namely Fedarkevich, Kazakou, Loban and Sakret, committed other offences that can be qualified as hooliganism, and requalification of these actions by the court could be used to assess adequately the deeds of each of them. As a result of the requalification they would have received punishments that aren't related to imprisonment.

In particular, the state accuser gave the following assessment to the role of each of the accused in his speech at the debate:

Loban – tore out a baffle out of a policeman's hands and supported other persons who delivered blows to the baffles of police officers. These actions cannot be considered as armed resistance to the police. It's worth noting that the baffle was voluntary returned to the police.

Sakret – showed armed resistance by hitting the police baffles several times with a nail drawer. It's worth noting that though these actions are unlawful, they cannot be considered as armed resistance, as far as the tool which was used for it is not considered as a weapon according to legislation of the Republic of Belarus and these actions didn't entail serious consequences for the police officers.

Kazakou – delivered 20 blows to police officers. Though such actions are unlawful, but it is not visible on the video materials that such blows were really delivered. Moreover, such actions cannot be qualified as a mass riot.

Fedarkevich – kicked the doors, windows and the wooden barriers with his feet. These actions are reflected in the video materials that were attached to the case, but cannot be qualified as anientisement, as far as the property wasn't destroyed and the harm that was inflicted to it is inconsiderable.

Matsukevich – delivered three blows to the doors and incited other citizens to violent actions by his calls "Belarusians, come here!"

This conclusion of the state accuser contradicts to all materials of the case. In particular, Matsukevich didn't deliver any blows to the doors. The fragments of the video recording with his participation that were demonstrated at the trial clearly show that he stood on the stairs and chanted the slogan "Belarusians, come here!" which cannot be considered as incitement to violent actions, is not aggressive in its essence and cannot serve as a reason for such a conclusion. The testimonies of Kviatkevich and Yaromenka, who stated that they, having heard these words, considered them as a call to break the door, cannot be taken into account, because these persons are also accused in active participation in mass riot and therefore could give false testimonies against Matsukevich under pressure of the investigation. It's worth mentioning that Matsukevich is a victim of the false testimony given by Krystsina Shatsikava, who, having taken him for a provocateur before his detention, also continued slandering him after it. The testimonies of these witnesses contradict to the video materials where it is visible that Matsukevich cried out the slogan several times and then left the square without any obstacles as soon as other people started breaking the windows. This fact is confirmed by the witnesses Huseltsau and Sharstou, who were on the square together with Matsukevich all the time.


Absence of the fact of mass riot

The rally that took place on 19 December 2010 in central Minsk was peaceful in its essence. Only a small group, not more than 20 people, digressed from the peaceful nature of the action and took part in violent actions. A part of them committed it on ruffian motives, and another part – with the aim to penetrate the House of the Government. However, these actions weren't accompanied with pogroms, arsons, armed resistance and personal violence.

A mass riot provides the direct intention of their commitment, coordination of actions of individuals and indomitableness of the crowd. Witnesses told that the demonstrators hadn't held hold any items that could be used for violent actions (spade handles, ice axes, spades and axes). The unlawful actions stopped on appearance of the police, who spent much time without interfering with actions of the offenders or trying to stop them.


Evidence of the defendants' guilt

None of the witnesses or victims stated having seen the accused deliver blows to police officers or the doors of the building, whereas the video materials either don't register actions of the accused at all or witness that their actions cannot be qualified as an active participation in a mass riot.


Conclusion

The conviction of the defendants Daronin, Fedarkevich, Kazakou, Matsukevich and Sakret under Article 293, part 2 of the Criminal Code of the Republic of Belarus is unlawful and politically motivated. The court verdict is severe and disproportionate to the committed offences, the more that actions of Matsukevich contain only corpus delicti of a misdemeanor.


Short description of the trial

The trial opened with familiarization with the charges presented by the state accuser Melnik. According to him, a mass riot was committed by the accused by previous concert and manifested in arsons, pogroms, personal violence, property destruction and armed resistance to the police.

The accused united with a rioting crowd which acted as a whole and committed the mass riot, in which the accused take an active part, delivering blows to the doors, wooden barriers and police officers. As a result, 29 police officers received injuries, were confessed victims and summoned to the trial.

The accused partially admitted their guilt, except for Daronin who pleaded innocent. The court started questioning the accused.

Yauhen Sakret stated that he wanted to stay in the square in case a tent camp would be organized there. He was hit in the head with a truncheon during the dispersal of the rally. He sympathized with the candidates and wanted to support them morally. He didn't hear anything about the ban on the action. He confessed having hit on the police baffles and the plywood behind the doors of the House of the Government after he had been beaten by the police. He doesn't admit the mass riot and admits his guilt only partially.

Uladzimir Loban stated that he hadn't seen any pogroms and mass riot. He partially admitted having supported a man who had been hitting on the police baffles. He came to the square to express his civil position. He didn't see any weapons there.

Matsukevich said that he had found about the action from the state media and had come there with his friends because of personal interest. He confessed having cried out "Belarusians, come here! We are owners of the country and we will rule it!". He went away from the square on his own. He doesn't confess his guilt.

Fedarkevich said that he had had a cold and didn't remember the events well enough. He didn't break the windows, just took away splinters of smashed glass. He also hit the plywood behind the doors several times. He admits his guilt partially. He didn't see any violence and pogroms. He heard the slogan "Long Live Belarus!"

Daronin said that he had come to the square together with two friends in order to find about the results of the election. He didn't hear the warnings of the police, didn't beat anyone and just hit the wooden barriers with his feet. He said that he was completely innocent.

Then the court proceeded to questioning of the police "victims": Dzianis Bulanouski, Hushcha, Ivan Komar, Lushchyk, Pilipeika, Aliaksei Sakach, Yauhen Saroka, Skarakhod, Ruslan Volkau and Ihar Ziankevich. The court received applications from other "victims", in which they stated their inability to come to the trial because of business at work. The court considered this as a good excuse. As a result, the testimonies of the absent "victims" given by them during the preliminary investigation were read aloud at the court hall.

All "victims" stated that they had been attacked by a rioting crowd on coming to the House of the Government, and had been hit with bars and handles of spades. Some of them even said they had seen bottles with incendiary mix and ice axes.


Conclusions from testimonies of the victims

1. None of the "victims" stated he had received any injuries from the accused in this case or any other accused who had taken an active part in the events of 19 December 2010 on Nezalezhnasts Square.

2. The testimonies of the "victims" that demonstrators allegedly held items that could be used for violent actions don't correspond to testimonies of other witnesses and the video materials that were demonstrated at the trial.

3. 24 out of 29 "victims" received injuries that didn't bring on even short-term health disorder and weren't registered by the forensic expertise. The rest received inconsiderable injuries.

4. The same "victims" keep taking part in all trials concerning the 19 December rally. Their role comes to strengthening the accusatory basis of the cases.

5.  All "victims" stated that nobody had shown any resistance to them when they had come out to dissect the crowd, which contradicts to their statements about the "rioting crowd".

The accused, in their turn, explained the following:

Sakret stated that he had heard about clashes with the police. He was hit in the head with a truncheon and therefore defended himself with the nail drawer he had taken with him as he planned to come to his work in the morning of 20 December 2010 right from the square.

Loban and Kazakou said that they hadn't seen anybody beating the police and hadn't seen anything except for flags.

Matsukevich explained that he had just stood on the stairs of the building, crying out "Belarusians, come here!" and had gone away as soon as the beating of the windows had started, which is confirmed by video materials and testimonies of witnesses.

All accused explained that they hadn't heard the demands of the police to disperse, hadn't seen anything but flags in the hands of demonstrators and that all violent actions had stopped as soon as the police had come. However, the policemen had demonstratively abstained from any interference for quite a long time.

The court proceeded to familiarization with the case materials.

The main document was the protocol of examination of the scene, on the basis of which it was stated that bottles, spade handles, iron bars, an axe, ice axes, bottles with incendiary mix and other weapons had been found on the square.

As the counsels managed to prove during the debate, these materials had been found only during the third examination, 15 hours after the dispersal of the rally. Nobody guarded the square during this time, that's why someone could come there and put these items with the aim to discredit participants of the peaceful rally. By the way, according to the protocol of the first examination, which was conducted at 00.00 a.m. - 4 a.m. on 20 December 2011, no such items were found on the square.

The court proceeded to questioning of witnesses of the accused.

Judge Kviatkevich, who was guarded to the court under escort and is also an accused in connection the 19 December events, explained that he had heard Matsukevich's calls "Belarusians, come here!" and had considered them as a call to violent actions. At first the witness denied it and even said he didn't recognize Matsukevich, but the prosecutor squeezed a confession out of him using prohibited suggestive interrogation.

At the same time, the witness stated that he hadn't seen Matsukevich beating the windows, hadn't seen anything but flags in demonstrators' hands and hadn't heard any calls to disperse on the part of the police.

The witness Krystsina Shatsikava was the only to state that he had seen Matsukevich whom he had taken for a provocateur, and had seen him beating the windows. The witness Shatsikava actually gave a false testimony against Matsukevich to justify her groundless thesis that Matsukevich was a provocateur. Her testimony became the basis for drawing Matsukevich to criminal responsibility.

The witnesses Huseltsau and Sharstou confirmed that Matsukevich had cried out the slogan
"Belarusians, come here!", but hadn't beaten the windows and had left the square together with them as soon as other people had started beating the windows.

The witnesses Aliaksandr Hanchar, Andrei Prakapchuk and Dzianis Zyl gave testimonies concerning Daronin's behavior.

It's worth noting that all these witnesses hadn't seen any violent actions and hadn't seen demonstrators holding any items that were allegedly found on the square during an examination, and hadn't heard any calls to disperse on the part of the police.

The police officers Kiryl Makasin, Aliaksandr Nikifarenka, Aliaksandr Novik, Andrei Rashchupkin and Yauhen Shchur gave testimonies that were similar to testimonies of the "victims". However, Rashchupkin, who had stood near the doors shooting the events on video, stated that he hadn't seen anything but flags in demonstrators' hands.

The court proceeded to viewing of the video materials.

At some of them some of the accused (Daronin, Fedarkevich, Loban and Sakret) could be seen hitting the glass and the wooden barriers. Matsukevich could be seen only shouting slogans and leaving the square without delivering any blows, which completely disproves the false testimony by the witness Shatsikava. After the demonstration of the video materials the prosecutor asked the accused to give explanations concerning their actions.

The judge and the prosecutor pressurized the defendants with the aim to squeeze out confessions of guilt.

Sakret admitted having tried to penetrate the House of the Government. However, he said that he had not hit but knocked on the plywood to ask where the candidates who had gone for negotiations had been. He confessed that his actions were ruffian, but said they couldn't be considered as a mass riot.

Kazakou didn't confess participation in a mass riot and explained his actions as hooliganism.

Fedarkevich stated he hadn't heard any calls or aggressive slogans and had delivered blows on ruffian motives.

Daronin pleaded innocent and assessed his actions as hooliganism.

Matsukevich didn't take the blame. He stated that he hadn't hit on the glass and the slogans he had cried out couldn't be considered as aggressive.

It should be noted that Daronin and Matsukevich had consumed small amounts of alcoholic beverages at the beginning of the demonstration.

The witnesses Dzmitry Sarachuk and Artsiom Sauchuk were questioned on solicitation of the defense. They stated that the demonstrators hadn't held any tools for violent actions, not more than 20 people had taken part in the violent actions, demonstrators had been trying to stop them and the predominant of people majority had participated in the rally peacefully. The judge paid an aggressive reaction to testimonies of witnesses of the defense, threatened them with responsibility for giving knowingly false testimony, thus showing that the verdict was predetermined.

The judge declined the solicitation of the defense for questioning the police officers who had videoed the events in the crowd and near the doors of the House of the Government. The refusal of the solicitations of the defense which were important for establishing the truth witnesses that the court didn't consider the case impartially and objectively.


Debate

During the debate, the prosecutor repeated the theses of the accusation, emphasized that guilt of the accused had been proved and demanded to find them guilty of the crime, punished by Article 293, part 2 of the Criminal Code of the Republic of Belarus.

The counsels argued that:

1. There were no traits of a mass riot: there was no rioting crowd, the people didn't hold any weapons that could be used for violent actions, the scope of the damage is quite small, there was no personal violence, whereas the police were inactive. There was no direct intent in the actions of the accused.  Violent actions were committed by a small group of people, whose actions must be qualified under milder articles of the Criminal Code.

2. The court must assess the actions of each of the accused and their individual behavior, not find them guilty of the crimes they didn't commit, as far as such approach violates the principle of individualization of punishment and introduces frank-pledge, when people can be punished for actions of somebody else.

Despite the absence of evidence of guilt of the accused, the court found them guilty and gave them hard sentences, though some of the accused hadn't even delivered a single blow during the demonstration.

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