Political prisoners in jails on verge of new sentences

The scope of means used by those who are entrusted with the fate of prisoners includes plenty of methods that look legitimate and are aimed at making the conviction life-long. Such a disappointing conclusion has been voiced by human rights lawyer Pavel Sapelka following the analysis of the provisions of Article 411 of the Criminal Code – “Deliberate disobedience to the correctional institution administration that executes the sentence of imprisonment.”

Specific examples of the use of the criminal article can be found in the letters of prisoners, who come to the human rights center "Viasna" in the framework of the monitoring of the country’s penitentiary system.

"Deliberate disobedience to the legitimate requirements of prison administration, that executes a sentence of imprisonment or other opposition to the administration in carrying out its functions by a person serving a sentence in prison, that executes a sentence of imprisonment, in case the person has within a year been subjected to disciplinary actions by placement to cell-type rooms, specialized chambers, solitary confinement or transfer to prison for violation of the sentence execution (deliberate disobedience to the correctional institution administration that executes the sentence of imprisonment) shall be punishable with imprisonment for a term of up to one year.

Deliberate disobedience to the correctional institution administration that executes the sentence of imprisonment committed by a person convicted of a grave or especially grave crime, or who has committed especially dangerous relapse is punished by imprisonment for a term not exceeding two years."

Here is the provision of Article 411 of the Criminal Code, which has no analogues, even in the criminal law of the Russian Federation, with which Belarus intends to harmonize legislation and chares the first place in the number of prisoners per capita. While the criminal codes of states that have chosen the democratic path of development only provide for punishment for actions that undermine the work of the correctional institution, manifested by terrorizing prisoners, attacks on the administration of the correctional institution or by the creation of an organized criminal group to terrorize the convicts or attacks on representatives of the administration of the correctional institution.

The Belarusian Article 411 of the Criminal Code is usually used to convict the prisoners who are not ready, owing to their beliefs and sense of personal dignity, to carry out certain orders of the administration of an institution aimed at humiliating the prisoner and lowering his status. Many of them did not admit the guilt and consider the verdict illegal. These include, for example, a 24-year-old Dzmitry S. who "was convicted in 2004 to 5 years and 6 months of imprisonment.” He was convicted under Article 411 for three times; as a result of partial summation of penalties the final term determined for serving is 10 years and 7 months.

When analyzing the issue, Pavel Sapelka points to the next important aspect: by requiring strict compliance with the prison regime, administrations of prisons generally do not implement, for some reasons, their own responsibilities in relation to prisoners, and often deliberately violate their rights. "The courts do not always take into account that, in accordance with the law, committing a new crime is a circumstance which burdens the responsibility. At the same time, in many cases courts do not take into account the negative impact of the environment, improper conduct of the prison administration, and other circumstances which in the aggregate often lead to the commission of new offenses. Court hearings are usually held in the colonies, with no access to the public. Thus, the principle of public justice is violated, and adverse events in these facilities remain beyond the control of the public. Exposing specific facts of abuse and inaction by prison administrations, poor working and living conditions of convicts, the courts rarely react to this by special rulings demanding appropriate action by heads of the supreme bodies of internal affairs, prosecutors and supervisory committees," quoting the remark by the Supreme Court of the USSR of 1989, the lawyer says that the situation in the colonies have since changed slightly, but the attention to the problem seems to have diminished. Unfortunately, the Supreme Court of the Republic of Belarus is not engaged in this problem. Meanwhile, it is crucial to understand and explain what particular actions by prisoners should be criminalized, says the lawyer. And here are his explanations. The inclination of Article 411 of the Criminal Code allows various interpretations of vague terms. While the disciplinary prejudice looks more or less clear, the undefined phrase "other resistance to the administration in carrying out its functions" leaves room for any kind of arbitrary expansive interpretation of the rule. The term "deliberate disobedience" is also absent in the regulations that define the rights and obligations of prisoners. All this leaves room for discriminative approach by prison administrations in deciding whether to prosecute a prisoner who is formally subject to Article 411 of the Criminal Code. Therefore, legislators should clarify the circumstances under which prisoners are subject to actions of the prosecution, and when they only should be followed by the application of disciplinary measures. At the same time, Pavel Sapelka gives a number of examples that show the consequences of lack of the necessary clarifications.

"Convict Uladzimir Nezhavorau, upon arrival in penal colony No. 1, was placed in a cell-type room for refusing to work on the improvement of correctional institution, when during a walk a controller of the colony offered to take a broom and clean the yard. According to Uladzimir Nezhavorau, the yard was perfectly clean. In his reply to this argument, the controller explained that the prisoner would not have to clean it up, but to just take a broom and walk with it around the yard. As a result, for refusing to carry out these absurd demands Nezhavorau was sentenced to one year's imprisonment under 411 of the Criminal Code. Later the same article was used to sentence him to two more years of imprisonment."

"Dzmitry K., when serving a sentence, was sentenced to two years' imprisonment under Article 411 of the Criminal Code, after he refused to comply with the requirement of the detachment chief to clean the room, talked after lights out, committed other minor violations; for each of those violations he was punished with a disciplinary action, and eventually was sentenced for two years' imprisonment under Article 411 of the Criminal Code. As a result, he had to serve seven years in prison, instead of three and a half years handed down by the court."

Referring to the Resolution of the Plenum of the USSR’s Supreme Court of June 21, 1985 No. 10 "On judicial practice in cases of criminal liability for actions that disrupt the functioning of corrective labour institutions", the lawyer points out the relevance of a comment set out in the document: "The courts should not allow conviction ... for an act constituting willful disobedience to the administration of a corrective labour institution, or other crime, as well as for minor actions, which only formally subject to the elements of a crime, and in fact constitute a violation of the requirements of the regime, which is punishable only on the disciplinary level."

Pavel Sapelka says a criminal case against political prisoner Zmitser Dashkevich is the logical continuation of the sad practice of application of Article 411 of the Criminal Code. The youth leader had less than six months before his release, and bringing him to justice under a well-designed pattern of suppressing the protest behavior of prisoners was, apparently, much easier than making another provocation after the release. Moreover, the court, which will probably be held in the walls of the colony, is easier to be made secret to public scrutiny.

It is the other political prisoners serving sentences in prison who are on the verge of facing these problems, too. They have already passed the most likely path to a new sentencing, concludes the lawyer.