Analytical review of the trial of Pavel Seviarynets, Siarhei Martseleu and Iryna Khalip
Conclusions:
- The trial failed to provide any evidence of an offence under Par. 1 Art. 342 of the Criminal Code, i.e. direct involvement in gross violation of the public order during the protest, as well as any criminal intent to stage the alleged actions by the defendants.
Nor did the trial provide any evidence of the damage allegedly inflicted by the defendants to any institutions or enterprises. In reality, none of the institutions or enterprises mentioned in the case file initiated legal proceedings to recover the reported damage in court.
- No evidence of the defendants’ involvement in any unlawful actions committed on 19 December 2010 in Nezalezhnastsi Square was provided.
- Defendants Seviarynets, Martseleu and Khalip, while in custody in the KGB pre-trial prison, were not provided with the sufficient amount of meetings with their lawyers during the preliminary investigation into the case. We consider the fact to be an outrage against their right to legal protection, guaranteed by Art. 62 of the Belarusian Constitution, together with a number of provisions of the Code of Criminal Procedures.
Seviarynets’s and Khalip’s lawyers were dismissed during the preliminary investigation stage, having faced harassment by the Ministry of Justice, and were eventually disbarred.
- The public media (the Sovetskaya Belorussia newspaper, state-run TV channels) repeatedly named the defendants organizers of the riot outside the House of Government long before the start of the trial, violating the defendants’ presumption of innocence.
- The publication of the preliminary investigation materials before its termination, and the announcement of the defendants’ guilt in the Sovetskaya Belorussia were made by order of the President, which is an evidence of the political nature of the criminal case and emphasizes the accusatory essence of both the preliminary investigation and the trial.
Considering this we believe that:
- The conviction of Seviarynets, Martseleu and Khalip under Par. 1 Art. 342 of the Criminal Code is illegal and politically motivated.
- Therefore, we demand to lift all restrictions imposed by the court on Seviarynets, Martseleu and Khalip, and to acquit them.
Brief description of the trial
On 11 May 2011, Minsk Zavodski District Court opened the hearing of the criminal charges brought against Pavel Seviarynets, Siarhei Martseleu and Iryna Khalip under Par. 1 Art. 342 of the Criminal Code. The trial lasted five days. The verdict was pronounced on 16 May 2011.
The case was heard by Judge Zhana Brysina. The state prosecution was represented by prosecutor Zhukouski. The defendants were defended by lawyers Vadzim Mushynski, Liudmila Chychykava and Hanna Bakhtsina.
The defendants were charged with organizing or active participation in group actions that grossly violate the public order. Pavel Seviarynets was in custody since 20 December 2010, Siarhei Martseleu – since 23 December 2010, Iryna Khalip had been under house arrest after several months of prison. Martseleu and Khalip had not been prosecuted before. Seviarynets was sentenced to 3 years of compulsory labour in 2005. He was released on 22 May 2007 after an amnesty.
Khalip and Seviarynets plead not guilty. Martseleu entirely admitted his guilt. Pavel Seviarynets said he did not trust the Judge, as well as the Belarusian judiciary in general. However, Judge Zhana Brysina dismissed the challenge, as it was not supplied with procedural grounds.
Khalip’s lawyer entered a number of motions, including one for change of measure of restraint, as the lawyer considers house arrest ungrounded and extremely severe. Iryna Khalip was forbidden to use any communication means (including correspondence), meet other people except for close relatives and leave the house, being constantly guarded by KGB agents, which presented a psychological trauma for her 4-year-old son. Meanwhile, a measure of restraint should be adequate to the defendant’s possible intent to continue criminal activity, influence the persons involved in the trial or escape criminal prosecution. However, the investigators failed to provide any reasons for the measure of restraint. The prosecutor objected and the Judge dismissed the motion.
Indictment
According to the prosecutor, Martseleu, acting as campaign chief of presidential candidate Mikalai Statkevich, committed an offence under Par. 1 Art. 342 of the Criminal Code, resulting in obstacles to the public transport, institutions and enterprises. On 5 December 2010, during his speech on the public radio, Martseleu called upon citizens to take part in an unauthorized mass event on 19 December, in violation of Art. 5 and 9 of the Mass Events Act. Martseleu was also involved in producing speeches on the undemocratic nature of the election. On 19 December, Martseleu organized and took part in group actions that grossly violated the public order in Kastrychnitskaya Square. He later refused to obey the police orders, moving along Nezalezhnastsi Avenue together with other people, which reportedly impaired the work of Minsk underground, public transport, a McDonald’s restaurant and the Trade Union Palace. As a result, McDonald’s representatives said their damage equaled to BYR 8,000,000.
Pavel Seviarynets, acting as an election agent of presidential candidate Vital Rymasheuski, allegedly committed an offence under Par. 1 Art. 342 of the Criminal Code, i.e. organized and took part in group actions that grossly violated the public order and resisted the police orders. During the election campaign, he called upon voters to take part in the unauthorized protest on 19 December. On 19 December 2010, Pavel Seviarynets, disobeying police orders, marched along Nezalezhnastsi Avenue and, together with other demonstrators, violated the public order.
Iryna Khalip, acting as an election agent of presidential candidate Andrei Sannikau, allegedly committed an offence under Par. 1 Art. 342 of the Criminal Code, i.e. organized and took part in group actions that grossly violated the public order and resisted the police orders. Mrs. Khalip repeatedly called upon citizens to participate in the 19 December unauthorized protest. On 19 December 2010, she marched along Nezalezhnastsi Avenue, ignoring police orders and involving other persons in the march, which resulted in a 52-hour delay in the schedule of the public transport.
Examination of the defendants
Siarhei Martseleu said there were no appeals for participation in the 19 December unauthorized protest in the speeches he had prepared. However, he admitted he called upon voters to take part in the demonstration in a radio speech on 5 December 2010. At the same time, he said the objectives of the protest were purely peaceful. Apart from that, Siarhei Martsaleu could not have foreseen that the protest would be banned by the authorities. He also said he admitted that he had marched along Nezalezhnastsi Avenue and that his involvement in the unauthorized protest was a conscious decision.
Iryna Khalip said she did not mention any specific location for a scheduled protest. She also referred to the Belarusian Constitution, which guarantees freedom of peaceful assembly. On 19 December, Mrs. Khalip did not speak to the demonstrators. After Andrei Sannikau was beaten, she tried to take him to hospital, but soon her car was stopped, all those inside the car were pulled out and badly beaten.
Pavel Seviarynets made use of his right not to testify in court.
Testimonies by the witnesses
Among those questioned by the judge, there were several road policemen, who were on duty on 19 December 2010. None of the witnesses said that there was any violence used by the demonstrators. Nor did they see any objects (iron rods, sticks, bottles) in the protesters’ hands.
The judge did not allow the examination of representatives of a number of enterprises, whose damage claims were reportedly mentioned in the case file: McDonald’s, Minsk underground, Minsktrans public transport service.
Written materials of the case
The written materials featured police reports on the view of the site of occurrence drawn up on 19 and 20 December 2010.
There were also several videos covering the defendants’ actions during the protest. In one of them, Pavel Seviarynets speaks to the people. No appeals for violence were captured. In another video shot by the KGB during a canvassing meeting Pavel Seviarynets calls upon voters to come to a peaceful rally on 19 December.
Among the materials, there were numerous statements by various enterprises on the damage they reportedly suffered due to the protesters. However, there was only one civil claim for financial compensation – that by Minsktrans, which was eventually covered by convict Dzmitry Bandarenka.
Oral arguments
In his speech, the prosecutor argued that the guilt of each defendant had been established by the witnesses’ testimonies and the written case materials. According to him, all of them had known about the illegal nature of the protest. Nonetheless, they called upon other persons to take part in the rally and participated in it themselves. As a result, the demonstration caused damage to a number of enterprises. The prosecutor demanded to sentence Pavel Seviarynets to 3 years of compulsory labour, Siarhei Martseleu and Iryna Khalip – to 2 years of suspended sentence each.
The counsels said that their clients’ guilt had not been established, as marching along Nezalezhnastsi Avenue is not a crime. The lawyers also emphasized the peaceful nature of the demonstration, which did not violate the public order, the lives or health of other individuals. Apart from that, they said the alleged claims by such enterprises as McDonald’s were ungrounded, as there were no disturbances outside them.
The verdict
The court found Pavel Seviarynets, Siarhei Martseleu and Iryna Khalip guilty of committing an offence under Par. 1 Art. 342 of the CC and sentenced:
Pavel Seviarynets – to 3 years of compulsory labour;
Siarhei Martseleu – to 2 years of suspended sentence;
Iryna Khalip – to 2 years of suspended sentence.
