A. Burdyka and A. Hryshkautsou's case

04.02.2016

https://spring96.org/en/news/82182 2016 2016-02-04T20:16:25+0300 2016-02-04T20:16:25+0300 2016-02-04T20:16:25+0300 en The Human Rights Center “Viasna” The Human Rights Center “Viasna” The Human Rights Center “Viasna”

The Human Rights Center “Viasna”

Sentenced to death by the Hrodna Regional Court on May 14, 2010.

September 17, 2010, the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Belarus considered the appeals of Andrei Burdyka and left the verdict of the Hrodna Regional Court unchanged, thereby dismissing the appeals.

December 6, 2010, the UN Human Rights Committee registered a complaint filed by Aleh Hryshkautsou, and on December 17, 2010 – by Andrei Burdyka. In accordance with the rules of procedure, the Human Rights Committee requested the government not to carry out the death sentence against Burdyka until the complaint was considered on the merits.

However, in violation of the commitments the sentence was carried out in July 2011.

In May 2015 the UN Human Rights Committee concluded that Hryshkautsou's right to life had been violated, since he had been sentenced to death in the course of at trial where the minimum guarantees for a fair trial had been violated.

A.Burdyka's complaint is pending.

Facts

At about 2.30 a.m. on November 14, 2009 the firemen who were called to extinguish fire in apartment №284 in Kabiak Street 8/2 in Hrodna found the bodies of the owner of the apartment I. Marchyk, his son's wife A. Marchyk and their acquaintance N. Ivanova with multiple stab wounds to the chest. The under aged son of A. Marchyk was missing and was found unharmed in A. Hryshkautsou's apartment in the morning. A. Hryshkautsou and A. Burdyka were detained on suspicion of the murders.

The court found Andrei Burdyka guilty of committing crimes under part 1 of Art. 14 and part 2 of Art. 205, "attempted theft", part 3 of Art. 207 and part 2 of Art. 207 "robbery", paragraphs 1, 6, 12, 15 of part 2 of Art. 139 "aggravated murder", part 2 of Art. 218, paragraphs 1 and 6 of part 2 of Art. 182 "kidnapping" of the Criminal Code, for which he was sentenced to death and confiscation of property.

Aleh Hryshkautsou was found guilty of committing crimes under part 2 of Art. 205, "theft", paragraph 1 of Art. 14 and part 2 of Art. 205 "attempted theft", part 3 of Art. 207 "robbery", paragraphs 1, 6, 12, 15 of the 2 of Art. 139 "aggravated murder", part 2 of Art. 218, paragraphs 1 and 6 of part 2 of Art. 182 "kidnapping" of the Criminal Code, for which he was sentenced to death and confiscation of property.

The defendants insisted that they had committed the crimes on the emotional ground, unintentionally, while being in the state of alcoholic intoxication (the presence of intent is of fundamental importance for the death penalty).

Significant violations during the investigation and the circumstances of the case that weren't considered by the court and/or influenced the verdict

- A. Burdyka and A. Hryshkautsou weren't read their rights, their relatives weren't notified of their detention.

- A. Burdyka and A. Hryshkautsou weren't provided with timely access to a lawyer from the moment of actual detention, as required by Article 45 of the CPC, as well as with means of effective protection on other stages of the investigation. For example, all the investigative actions to familiarize A. Burdyka with the rulings on the appointment of expert examinations were carried out in the absence of the counsel. Despite the mandatory participation of the counsel during the investigative actions with Hryshkautsou, the latter was familiarized with all rulings on the appointment of expert examinations and with all expert conclusions in the absence of the counsel. The counsel was familiarized with these rulings and conclusions only after the end of the investigation, while studying the case. The body that conducted the criminal proceedings against Aleh Hryshkautsou familiarized him with the conclusions of expert examinations only formally – as it can be seen from the appropriate documents, he was given about 20 minutes to study the bulky, complex and critically important examinations on 80 sheets, an so on.

- The initial testimonies were taken from the both suspects while they were in the state of alcoholic intoxication, which is confirmed by the expert examinations.

- A. Burdyka and A. Hryshkautsou were subjected to physical and psychological pressurization with the aim to extract confessions, which formed the basis for the death verdict to Hryshkautsou. These statements are confirmed by the forensic examinations and the four calls of the “ambulance” to the detention center on the first night of their detention there. In accordance with part 4 of Art. 105 of the Criminal Procedure Code of the Republic of Belarus, testimonies that are obtained with such violations, should be declared inadmissible. However, the testimonies of A. Burdyka, obtained on the day of the detention as a result of these violations, were put in the basis of the conclusions of the court of the first instance, according to which "the accused had the intent of theft of property even before they came to the apartment”. These conclusions resulted in qualifying the actions of A. Burdyka as a murder combined with robbery, according to paragraph 12 of part 2 of Art. 139 of the Criminal Code of the Republic of Belarus. This affected the assessment of the gravity of the crime and issuance of the death verdict to A. Burdyka.

- A particular attention should be paid to the violation of the right to defense during the appointment of the complex psychological and psychiatric examination of A. Burdyka. Due to the absence of the opportunity to effectively exercise his defense at this stage, experts were given incomplete information. In particular, the investigation didn't interrogate Burdyka's mother regarding the circumstances of his development in childhood and adolescence and about his illnesses. The information about his registration at the dispensary wasn't requested from the city polyclinic. Therefore, the research part of the expert conclusion contains only incomplete information about Burdyka's chronical illness, generalized ticks, which was put down from his own words. The experts didn't conduct a due research regarding this disease and didn't study the question of the possible relation of the disease to the state of the defendant during the crime, committed by him on October 14, 2009. The experts also didn't consider the fact that during the incident A. Burdyka cut himself with knife, produced sounds and behaved inadequately (as stated by Hryshkautsou). According to information from city polyclinic №3, in 1989 A. Burdyka was “put on a register by a neurologist, being diagnosed with generalized tics, Tourette's disorder". This is knonw to be a neuropsychiatric disease, which has a chronic course, is combined with anxiety, aggression and obsessions.

- On the eve of the tragedy, the elderly owner of the apartment tried to calm down the company, in which a scandal was flaring up. He called the police six times, asking them to come. As it was found during the court proceedings, these six calls weren't even put down in the appropriate register by the duty officer.