Chronicle of January 12 hearing on Elena Tonkacheva's appeal against expulsion from Belarus

2015 2015-01-15T01:37:43+0300 2015-01-15T01:37:43+0300 en The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
Alena Tankachova, Center for Legal Transformation

Alena Tankachova, Center for Legal Transformation

The consideration of the appeal of the human rights activist Elena Tonkacheva against the Department of Citizenship and Migration of the Pershamaiski District Police Department of Minsk continued at 2.30 p.m. on January 12 at the Pershamaiski District Court of Minsk. The case is considered by Judge Natallia Petukh.

Human Rights Centre “Viasna” presents to your attention the chronicle of the events.

2.35 p.m. The court session began. Elena Tonkacheva filed a motion to invite two witnesses: Mikhail Matskevich and Ina Lebiadzenka The hearing is attended only by Rudyshkina, Kryshtaliou was unable to come. The representative of the interested body asks what relations the witnesses have to the case. The plaintiff believes that these people have relation to the violations with reference to which the Citizenship and Migration Department ruled to expel her from Belarus.

2.38 p.m. Witness Mikhail Matskevich, who has labor relations with the plaintiff, alleges haven visited the traffic police with Elena Tonkacheva several times. The police drew up three reports of violation of traffic rules by him while driving Tonkacheva's car. He paid the fines and has the confirming receipts. He hasn't committed violations of traffic rules while driving a vehicle before.

One listener is expelled from the court hall for violating the order.

2.47 p.m. Testimony is given by Ina Lebiadzenka, who says that Tonkacheva and she are acquaintances and have neighboring summer residences. The court establishes that they are in a friendly relations and asks the witness to
perform her civic duty and not to deviate from substantive issues.

As it follows from the testimony of the witness, her own private car often breaks down, that's why the plaintiff offered her to use her own car for driving to the summer residence. The court asks probing questions of a technical nature: how much horsepower the car has, what is the capacity of the engine, how many transmission positions the car has, what kind of wheel drive it has, etc. The witness can not answer some of the questions but explains that she may not notice an insignificant speeding drivinga new car on a new road. In general, she drives the car accurately, but violated the traffic rules several times while driving her own car, and twice violated the traffic rules while driving the plaintiff's car at the end of 2013.

2.58 p.m. Elena Tonkacheva asks the witness to describe how the car looks: the color and the insides. The witness tells about her feelings in it and also describes the payment of the fine and the rewriting of the violation report to her name.

3.02. The court starts considering the written materials of the case. The judge asks the plaintiff about the recovery of a fine for December 2013. Tonkacheva is not ready to give an explanation, because she does not remember the circumstances of the offense.

3.10. The court asks the representative of the interested body why it was decided to expel the plantif for three years. The representative of the DCM says that the law provides for a variation of the term from six months to ten years. The court also asks about the meaning of the expression "would consider" which is used in the document. The DCM representative responds that this expression was used in the decision and at that time there were such model decisions.

3.19. During familiarization with the case materials it is established that the car was not put on the balance of the organization "Center for Legal Transformation" and the organization wasn't responsible fro the technical maintenance of the car, though there is an agreement for gratuitous use.
"I did not give
my car to everyone, it was a limited number of people, including my father and the witnesses who have a driving experience and whose style I could understand, which gave me the ground to believe that they could be trusted,” says Elena Tonkacheva.

3.29. The study of the first volume of the case is over, the judge proceeds to the second one. After the end of the study of the written materials of the case Elena Tonkacheva makes a motion for attaching to the case the appeal of her father, declared to the DCM yet before the consideration of the question of expulsion. She believes that this appeal presented the reasons why she cannot be expelled from the Republic of Belarus well enough. She also asks the court to make a private remark to the Pershamaiski DCM for violating the law on the applications of citizens, namely Art. 9, 11 and 14.

3.39. The representative of the DCM was to have provided copies of correspondence with the public. Though they were presented, it is evident that there were fewer documents than the appeals directed by citizens, which meant that the representative either violated the requirement of the court or the legislation concerning responding to applications of citizens.

3.43. Tonkacheva asks to pay a special attention to the inaccessibility of the court for people with disabilities, which limits their right to whole-scale participation in court proceedings. She quotes the witness S. Drazdouski.

44. The applicant's representative supportsthe motions, whereas the representative of the interested body blankly resents it. She states that the responses to the applications were given in conformity with the legislation and asks to attach excerpts from the law “On Applications of Citizens and Legal Bodies” to the case.

The Court notes that private it issues private remarks at its own discretion in the conference room.

Instead of presenting
an instruction onoffice work or a note confirming the absence of such instruction, Rudyshkina asks to attach to the case an opinion of representative of the interested body. The DCM also points that such instruction certainly exists, though she cannot present it and is not familiar with it.

3.54. The applicant's representative again asks the representative of the interested body to provide the definition of "public order".

The representative
of the DCM provides a definition of expulsion, by which the police department is guided, and then the definition of “public order” from the general theory of the law. The counsel points that the general theory of the law and textbooks are not laws and that the ruling on expulsion refers to a law, whereas book definitions are presented at court, which is fundamentally wrong.

The lawyer also wants to hear a clear answer to the question: "
Can you say for sure that Tonkacheva was driving the car at the time of the commission of the offenses?" After a brief explanation, Rudyshkina states that she is fully confident in this matter.

The court
also wants to hear exhaustive reasons why Tonkacheva's appeal against expulsion was not satisfied. The representative of the DCM says it was "Systematic violation of the law of Belarus without proper conclusions".

4.29. E. Tonkacheva says what conclusions she made regarding the use of the vehicle, what she has learned and states that she will be very attentive int eh future.

4.30. A ten-minute break is announced before

4.54. The applicant makes main emphasis on violations in the composition of the documents and the groundlessness of the expulsion in conformity with the present legislation, as well as on the fact that the decision to expel the plaintiff was made solely at the discretion of the staff of the DCM and on the basis of the unreasonable assumptions about the possible threat to life and health of citizens presented by Tonkacheva. "Thus”, argues the applicant, “the ruling was issued not on the basis of legal requirements, but on the basis of an extended opinion of the state body, which entails a substantial interference with the personal life and violation of the legal interests of the plaintiff”. The counsel draws the attention of the court to the large number of appeals of citizens and NGOs
which were answered only partially and formally, and calls to take into consideration the opinion of the public while issuing the verdict. Moreover, he points at the close ties of the plaintiff with the Republic of Belarus and the family ties and traditions. At the end Elena assures that she has learned the lesson and received an experience which will substantially influence her future decisions. Therefore, she asks the court to abolish the ruling for her expulsion.

5.19. The lawyer turns the attention of the court to the fact that the DCM needed just half an hour to take the decision on expulsion, but as long as two days to explain the reasons and provide a defition of “public order”. The lawyer also emphasizes that there is no general definition of "public order" in the legislation, there is only one Article 65 of the Law, which defines the grounds for expulsion, and if interpreted literally, traffic violations can in no way be qualified in accordance with this Article. He supportsthe plaintiff ans asks to cancel the ruling for her expulsion.

5.25. The representative of the interested body reminds about the 20 administrative offenses committed by the plaintiff for the whole time of residence on the territory of Belarus and states that the decision on her expulsion is well-grounded and fair.

5.36. The sides proceed to remarks a
nd exchanged them.

5.40. The judge announces a break until 2.30 p.m. on January 13.

Here are the details of the first and second days of the trial.