MONITOR#2/3 - 2012

CONSEQUENCES OF 19.12.2010

Neil JARMAN:“European Court of Human Rights has made clear in a number of cases that an individual’s right to demonstrate peacefully does not cease if another person in the same assembly becomes violent or aggressive”

Raisa MIkHAIlOUSkAyA:“December 19 has changed all of us – each human rights defender in particular and the whole organization in general”

HUMAN RIGHTS NGOs: CONTRIBUTION TO OVERCOMING CONSEQUENCES

METHODS OF MONITORING ADMINISTRATIVE AND CRIMINAl TRIAlS ON DECEMBER 19 EVENTS

OSCE/ODIHR TRIAl MONITORING MISSION

INTERNATIONAl STANDARDS OF FAIR TRIAl IN THE ADMINISTRATIVE CASES OF THE PEACEFUl DEMONSTRATION PARTICIPANTS

Tamara SIDARENkA:“The atmosphere of fear in the lawyers’ Bar Association entered the chronic phase. Not everyone agrees to take up a case when it has a hint of not even politics, but of an alternative civil position”

HUMAN RIGHTS MAGAzINE

02

I have an advantage over all other readers - to be one of the first who read the materials of the issue.

Of course, all materials give food for thought. But the story of Tamara Sidarenka has been on mind for

IN PROPRIA PERSONA*

* In one’s own person

Editors: Volha DAMARAD, Aliaxei kAzlIUk

Design and layout: Ihar kORzUN

Illustrations: Sviatlana RyzHykAVA

Translation: Tatsiana TSyUlIA

Back cover: universal human rights logo decorated with “wycinanka” (paper-cutting). Authors: Predrag STAkIC and Volha Baburyna

Experts of the issue:

Neil JARMAN - head of the OSCE group of experts on freedom of assembly, director of the Institute for the Study of Conflict (Belfast, Northern Ireland), Special Rapporteur on December 19 events, one of the developers of the OSCE/ODIHR Guidelines on Freedom of Peaceful Assembly

Raisa MIkHAIlOUSkAyA - jurist, human rights defender, deputy chair of the “Center on Human Rights”

Authors of the issue:

Aliaxei kAzlIUkJurist at the legal Transformation Center (lawtrend), humanrights defender, expert in the sphere of the international humanrights law, in particular, relating to the freedom of assembly,international mechanisms of human rights defence

Volha DAMARADJurist, expert in the sphere of the international law, internationalhumanitarian law, criminal law, law on human rights

several weeks already. It’s been on my mind and that’s that, and I can’t help it. When an undergraduate

student for the first time faces the necessity of making a conscious choice of profession, he or she

gets a slight headache form dreams about “what could I be?” This is the moment when it seems that,

becoming a jurist/lawyer/attorney/judge, you will spend your life “legally”, by laws and by rights. When studying at the law faculty, school dreams gradually dissipate in the five-year mist, but the sincere inner

belief stays on, cherished secretly in the soul… “…I was deprived of the profession. The profession which has been a business of all my life”. Tamara

is my colleague, but I am a starting jurist, whereas she has 30 years’ work experience as a lawyer. We

are colleagues “by law”. It is flattering for me that I can say this. Inside fear that someone can steal

your lifework and encroach on your cherished dream encourages you to build up defence fortifications of

your own castle. Dreams about the ideals of kindness and justice in our state are not fake, we are not just

visionaries and daydreamers. I wish we had more competent jurists, so that the reality did not bereave

us of our dreams!

Volha DAMARAD

03

lAWTREND MONITOR #2/3 CONTENTS:

CONSEQUENCES OF DECEMBER 19 04

MEO VOTO

INTERVIEW WITH Neil JARMAN, SPECIAl RAPPORTEUR ON DECEMBER 19 EVENTS 06

PROBATUM EST

Aliaxei kAzlIUk:METHODS OF MONITORING ADMINISTRATIVE AND CRIMINAl TRIAlS ON DECEMBER 19 EVENTS 12

AD DISPUTANDUM

HUMAN RIGHTS NGOs: CONTRIBUTION TO OVERCOMING CONSEQUENCES OF DECEMBER 19 20

Volha DAMARAD:INTERNATIONAl STANDARDS OF FAIR TRIAl IN THE ADMINISTRATIVE CASES OF THE PEACEFUl DEMONSTRATION PARTICIPANTS 24

IPSISSIMA VERBA

Tamara SIDARENkA:A kISS FOR THE SlEEPING PRINCESS 30

CONSEQUENCES OF DECEMBER 19

04

Why do we look back on this date?

This issue focuses on the role of the events on December 19, 2010 and changes in the human rights situation in Belarus. A peaceful demonstration along Independence Avenue, a demonstration in October square, a cruel dispersal of the demonstrators by special squad militiamen, more than 700 detainees – this is the outcome of the presidential elections. The next day almost all the detainees were punished by an administrative arrest up to 15 days. The decisions were made by judges, but the judicial processes – without lawyers, witnesses, behind closed doors – had little in common with legal procedures. Afterwards arrests started, and daily searches, and criminal trials in cases of organizing and taking part in mass disturbances. Several more dozens of political prisoners appeared in Belarus. The whole subsequent year we observed serious deterioration of legal regulation in the sphere of freedom of assembly and freedom of expression, increasing pressure on civil society. On August 4, 2011 Ales Bialiatski was arrested – one of the most famous Belarusian human rights defenders, chairperson of the human rights center “Viasna”, vice-president of the International Federation of Human Rights (FIDH).

Did it happen before?

Such situation had occurred before: after elections in 2006 the police also dispersed the camp in October square in Minsk, there were also mass detentions, a presidential candidate Aliaksandr Kazulin ended up in prison. Year 2010 is different not only by the scale of human rights violations, but also by the reaction of society, human rights organizations, international governmental and non-governmental organizations.

What did civil society do?

Just after the news of the administrative arrests spread, people organized gathering warm clothes, books, hygiene items in order to pass them to the center of isolation of violators. A special website was launched giving possibility to “adopt” one of the prisoners – bring them parcels, send postcards, telegrams. Before the New Year famous musicians and poets signed postcards for the arrested demonstrators. After the charges of property destruction were brought in the criminal cases, civil activists announced about fund raising for to pay off the damage. And these are only several examples of solidarity.

What did human rights defenders do?

Besides the direct aid to the victims of the violations – legal consultations, compensation of fines, search for lawyers – human rights organizations were able to systematically document mass violations of human rights. Both the administrative and criminal cases on December 19 were monitored. Situations on particular categories of violations were followed, such as independence of judges and lawyers, situation of journalists, academic freedoms. To a large extent existence of properly collected objective information about the deterioration of human rights predetermined an adequate reaction of the international community, condemning the deeds of the Belarusian Government.What did international organizations do?Since the Government’s activities obviously violated the international legal obligations of Belarus, international governmental organizations (UN, OSCE, Council of Europe),

05

in any event, condemned the repressions against the civil society in Belarus. Not a single step of the Government on limiting citizens’ rights escaped the attention of the international community. In their turn representatives of nongovernmental organizations of the OSCE countries and international civil networks and organizations set up a Committee of international control of human rights situation in Belarus which has become an important influential instrument. It is hard to assess the effectiveness of the international community when the situation of human rights continues to deteriorate, but there is an opinion that without this close attention on the Belarusian problems a worse scenario could have unfolded.

Whom didn’t we mention?

Lawyers. Never before, the lawyers’ community in Belarus was subjected to such pressure from the executive authority because of direct fulfilment of professional functions. In 2011 six lawyers were stripped of the license or disbarred for work as a defence lawyer in the politically motivated trials. A number of legislative changes made the Bar’s dependence on the executive authority even more evident. This is a serious problem, as access of citizens to legal aid becomes essentially limited without an independent Bar.

INTERVIEW WITH Neil JARMAN, SPECIAl RAPPORTEUR ON DECEMBER 19 EVENTS

06

Neil JarmaN is head of the OSCE group of experts on freedom of assembly, director of the Institute for the Study of Conflict (Belfast, Northern Ireland), Special Rapporteur of the Committee on International Control over the Human Rights Situation in Belarus, one of the developers of the Guidelines on Freedom of Peaceful Assembly.

Special rapporteur on investigating events in Belarus related to the opposition protest action on December 19, 2010 was appointed by the Committee on International Control over the Human Rights Situation in Belarus – an independent international expert on freedom of assembly and policing. Based on the results of an independent investigation, the Special Rapporteur prepared the Final Human Rights Assessment of the events on December 19, 2010 in Minsk (Belarus). The Final Assessment gives an objective impartial evaluation of the events. In particular, it estimates the public event in Independence square from the perspective of international standards and national law, proportionality and justification of the force applied by law enforcement agencies, and the subsequent reaction of the state in a form of administrative and criminal prosecution of the participants of the action.

MEO VOTO*

* in my opinion

cease if another person in the same assembly becomes violent or aggressive. And whilst the government has both a legitimate right and responsibility to intervene in response to acts of violence, such intervention must always be proportionate and any use of force must be the minimum necessary to deal with the aggression. This was not the case on 19 December 2010. The police intervention was not proportionate, nor was it the minimum necessary to restore order. On the contrary the video material shot at the demonstrations shows the police using force indiscriminately on many peaceful protesters and

I’d like to talk to you about December 19, 2010 events in Belarus and your Final assessment of these events. You admitted that the demonstration on December 19 had peaceful character, that’s why the authorities “did not have grounds for violent dispersal of the event”. So, it turns out that the authorities have violated the international standards on freedom of assembly. What international legal measures can be taken in order to bring the Belarusian state to responsibility?

The main body of the demonstration on 19 December 2010 was of a peaceful nature and the vast majority of those who participated remained peaceful throughout, the problems were caused by a relatively small number of people who violently attacked Government House. However, the European Court of Human Rights has made clear in a number of cases that an individual’s right to demonstrate peacefully does not

07

even on people who were trying to leave the area of the demonstration.

The primary means of holding a European state to account for its actions would be to take a case to either the European Court of Human Rights or to the UN Human Rights Committee. However, in the absence of Belarus being a signatory to either the European Convention on Human Rights or to the first Optional Protocol of the ICCPR, neither of these options is available to Belarusian citizens. The absence of either of these two remedies necessarily has a serious impact on the ability of the international community to hold the Belarusian government to account.

In an ideal situation, whereby cases against

the Belarusian government could be taken to the European Court, it would probably be necessary for a number of cases to be taken if the state was to be effectively held to account for the diversity of its activities, including the use of force in various locations, the dispersal of the main assembly, the use of pre-emptive detentions, the attack on Vladimir Nekliaev, the conditions in which people were held in detention, as well as a variety of other actions by state officials on those accused of participating in the assembly.

However, in the current situation there is little opportunity for an effective legal remedy.

Who must be held accountable for the actions of law enforcement agencies on December 19 (for example, for damages inflicted to participants of the mass event or to random passers-by)? Must be there some individual responsibility of the officers of law enforcement agencies who took part in beating etc, or the responsibility should be taken by those who gave centralized orders?

The OSCE and Venice Commission Guidelines on Freedom of Peaceful Assembly highlight the principles of liability and accountability and specifically stress the importance of holding police officers to account for their actions at public assemblies. In principle individual police officers should be held accountable for all occasions when they use force and should be prepared to be challenged on the proportionality and necessity of any use of force. In practice it may be difficult to identify individual officers, particularly if they were wearing helmets and did not have any identification numbers visible on their uniforms, but if individual officers can be associated with specific acts of violence, rather than simply having been present at the assembly, then they should be held to account and liable for their actions. More senior officers and public officials should also be held responsible for the wider decision making process, since the actions of the police on the ground in Independence Square and neighbouring areas appears to have been a result of specific orders to use force to disperse those

08

organizers of the assembly on 19 December 2010. There is some justification for this, since there was no formal notification of the intention to hold the assembly and a number of the candidates did announce their intention to gather in protest after the elections. In my view this would justify the state viewing those who made a public call to gather in protest (but only those who explicitly call people to protest) to be considered as an organizer.

The difficulty however, is with the level of responsibility that the state ascribed to the organizers. The OSCE Guidelines state that the organizers should take reasonable steps to ensure legal compliance and the assembly remains peaceful, but they cannot be held responsible for the actions of those participating in the assembly. Each individual is responsible for their actions during the protest. In the subsequent court cases the state appears to have held a number of people liable not only for organizing the assembly but also for all of the events that subsequently took place. In this I believe the state placed an

assembled. The question is how far up the chain of command the ultimate responsibility should sit. Given the nature of the assembly, as a political mobilization against the election results, it might be reasonably assumed that the decision to disperse the assembly was taken at a political level. This view is reinforced by the subsequent trials of many of the election candidates and that a large proportion of those charged and convicted of various offences were associated with the various election candidates.

What is your authoritative assessment of the criteria by which the authorities distinguished the “organizers” and “participants”? Does the division comply with the norms of the international law?

The authorities appear to have taken a fairly broad view of the concept of ‘organizer’ and specifically assumed that those involved as election candidates should be regarded as the

09

unreasonable expectation of responsibility on a small number of individuals.

In this there is a difference between those participating in the assembly and the police officers. Participants made individual decisions to join in the protest, they were not ordered to participate rather they were invited, whereas police officers were part of a wider unit and were deployed as such, and they were expected to respond to orders from above.

In your view, what are the international mechanisms to force the Belarusian authorities to investigate the complaints about activities of law enforcement agencies, about bad treatment or physical violence towards the detainees?

Unfortunately there appears to be little in the way of an effective international mechanism to apply pressure on the Belarusian authorities. In the weeks and months following the state violence towards the protests there were numerous reviews and reports by international bodies, including the European Union, Council of Europe, USA, OSCE and others, but ultimately the Belarusian government simply ignored all of these.

However, we should not forget that these various reports and public hearings on Belarus all served to increase the general awareness of people across Europe and beyond of the nature of the Belarusian regime. Therefore they undoubtedly had some wider impact, although the true extent of this may only become evident at some stage in the future.

International organizations and experts have many times commented on violations of the freedom of assembly in Belarus: conclusions of thematic Special Rapporteurs of the UN, Joint Opinion of the OSCE/ODIHR on the Law on Mass events of the Republic of Belarus, the Final assessment. In your view, how the civil society in Belarus can use such documents in advocacy?

It is important to continue to raise the issue of Belarus in the international arena. The UN Special Rapporteur on Freedom of Peaceful Assembly and Association is one such office

that can highlight the situation in Belarus on a global platform. The Special Rapporteur, Maina Kiai, comes from a civil society and activist background and is aware of the challenges facing civil society in undemocratic countries.

See his first annual report. Similarly the meetings organized by the OSCE/

ODIHR is another framework that can be used to highlight the ongoing issues. ODIHR is organizing a special meeting on freedom of assembly in Vienna in November 2012 and which would provide a further opportunity to ensure that the situation in Belarus remains in the public eye.

I also think there is scope for a further review of the situation in relation to freedom of assembly in Belarus. The events of 19 December 2010 were just one, admittedly very extreme, example of how the state is suppressing the freedom to assemble, and there have been numerous other examples that have been highlighted on various websites, and occasionally in the international media of how the government is continuing to restrict the right to assemble. I think it is important to continue to document and report on the ongoing struggles of individuals and civil society organizations to protest and highlight the levels of repression that the state is using to limit people’s fundamental human rights. It might therefore be worth producing a further report on the second anniversary of 19 December to document the ways in which the state has continued to suppress freedom of assembly since 2010.

Your assessment of the December 19th events was based on many sources, including the primary data collected by the Belarusian human rights organizations. How do you assess the completeness and quality of the information that you dealt with? What data, in you view, should be collected in the first place, in order to get objective assessment of the freedom of assembly in Belarus?

The data that was gathered by Belarusian human rights organizations was absolutely vital, both for our work and reports, but also for the wider international human rights bodies and the mass media. It is incredibly important to have

10

video and photographic recordings of public events and the police actions at such events and it is important to have data that has been collected independently, from multiple locations and over the duration of the event. We have seen from similar cases in the UK the importance of civilian journalists in providing evidence that can challenge an institutional culture of denial by state bodies and which can undermine their sense of impunity.

It is impossible to gather a complete picture of large scale events due to their scale and complexity, but the Belarusian human rights organizations were able to provide a sufficiently diverse range of images to be able to make a reasonable assessment of how the events unfolded. Perhaps the one weakness from my perspective was not being able to understand what was being said due to my lack of knowledge of Belarusian, but as they say ‘a picture speaks a thousand words’.

The key is to gather as broad a range of visual materials, videos and photos, from as many locations and perspectives as possible, and also to monitor the local media outputs to compare and contrast different perspectives. ODIHR has published a Handbook on Monitoring Freedom of Peaceful Assembly and which is based on training that has been delivered to human rights groups in a range of countries including Armenia, Georgia, Kazakhstan, Kyrgyzstan, Moldova and Serbia. This may be a useful document for human rights activists working in Belarus.

11

In the first issue of the magazine experts Krassimir Kanev and Elena Tonkacheva told about the importance to hold monitoring of human rights for advocacy. This article opens a series of publication in Lawtrend Monitor on methods of judicial monitoring. Here we will provide readers with theoretic basis which is used by the Monitoring group of Lawtrend, as well as examples from the experience of human rights organizations in Belarus and monitoring missions of international organizations. We share with you our and our colleagues’ experience.

This article is about the basic classification of court monitoring, and also about how the monitoring of court proceedings on administrative violations on December 19, 2010 was organized.

Public control over delivering justice is equally significant for assessment of the effectiveness of the judicial system alongside with the prosecutor’s office control and higher instances. Although the conclusions of monitoring is not the ground for remanding some judicial decisions, when choosing the right methods, they help draw attention to the problems typical of the whole judicial system, of specific categories of cases or of specific cases connected to outstanding sociopolitical events. The results of monitoring become a stimulus and guidance for the state to hold reforms of the judicial system. In the situation when there is no political will towards reforms, and violation of judicial proceedings is a usual practice of exerting pressure on political opponents, monitoring is destined to perform one more important function – documenting violations of international legal obligations taken by the state.

Types of trial monitoring according to the ODIHr/OSCE classification

Systemic monitoring is a resource-demanding long-term program aimed to encourage large-scale reforms of judicial power. This type of monitoring is the basic source of information for assessment of the effectiveness of judicial system. So, the monitoring covers as many cases and categories of cases as possible. The program of this type of monitoring goes beyond the trial itself, estimating also how other institutions influence the process. The characteristics of systemic monitoring, such as length and complex approach,

Aliaksei kazliuk:METHODS OF MONITORING ADMINISTRATIVE AND CRIMINAl TRIAlS RElATED TO DECEMBER 19

12

ad hoc monitoring of court proceedings is viewed as a direct response to a limited number of criminal or administrative court proceedings caused by some specific events, such as a wave of violence after elections, unstable political situation, or persecution of journalists or human rights defenders. The cycle of holding this monitoring is limited by the length of court proceedings, and the final product will be a monitoring report. Distribution and use of the results can be made beyond the program of the monitoring. Ad hoc monitoring pays special attention to specific cases of human rights violations, but not to the broad agenda of the judicial system reform.

earn trust from the interested parties and provide multiple choice how to use the results in advocacy.

Thematic monitoring is oriented to a specific category of cases, a subject or a stage of court proceedings. This type of monitoring is carried out to assess separate elements of the right to fair trial or some peculiarities of law enforcement in some categories of cases. At the same time, thematic monitoring gives a less detailed picture of problems in the judicial system in general. The necessity to hold thematic monitoring can arise from urgency of specific problems of justice. Here the definition of the subject of thematic monitoring may demand a more special consideration of the core of the problem, as for instance, in monitoring of war crimes cases.

PROBATUM EST*

* approved

13

methods of monitoring the administrative cases related to December 19

These actions must be viewed as ad hoc monitoring since its necessity appeared because of mass violations of human rights at a specific event – the demonstration in Minsk after the elections, its dispersal and detention of the participants.

I will briefly describe the conditions of work. As a rule, such mass detentions do not happen without violations, and besides the malice of the government, there was also a banal unpreparedness of the police, courts and centers of isolation for such a large number of detainees, and consequently to the volume of legal procedures. Belarusian law envisages a fine or 15 days’ arrest for violating the procedure of organizing and holding mass events, the case must be handled in court. The citizens detained on the evening of December 19 were held in custody, the authorities refused to tell the number

of the detainees, the time and place of court proceedings.

It was necessary to organize monitoring of all nine district courts in Minsk during December 20 – 22 when the cases were due to be heard. It was possible thanks to joint efforts of human rights organizations. The collection of information was coordinated by the human rights center “Viasna”. However in those conditions full-fledged monitoring of court hearings was impossible: as soon as the detainees were taken to court, the police drove out most visitors from the building, including human rights defenders and journalists.

This way the authorities strived to avoid publicity of the court proceedings. Still participants of the monitoring, mainly human rights defenders and volunteers,using different tricks, managed to stay in the court to estimate the general number of the detainees and make up a preliminary list of names and terms of administrative arrests. It seems not too much, but that was all the information available at that moment, especially valuable for the relatives of the detainees. Official information started to appear only several days later. On December 20 – 21 the monitors managed to attend several court proceedings, stating that many guarantees of fair hearing were ignored by court.

Such observation had a number of disadvantages. The observers did not have a single approach or some standard form to collection of data, and the limited attendance at some proceedings did not allow making the full picture of violations, bearing in mind the total number of the detainees. There was a need for some other methodology and instruments to provide the maximum representativeness and possibility of retrospective data collection. With this aim a questionnaire was developed and later offered to the detainees. It consisted of 18 open-type questions on the following topics: dispersal of the peaceful demonstration and detention of its participants; being in the special police vehicle and in the police departments; being on court premises; stay in the centers of isolation. So, the questionnaire did not follow only the aim of court monitoring, as it covered a wider sphere of violations.

14

Lawtrend information note:

analytical Note (I-1) based on the results of evidence given by the citizens who had been detained at the public protest action in minsk on December 19, 2010 – the final product of highly professional and intense work on gathering and analysing unique data. The material is based on data gathered from 298 respondents who were detained at the public event after the presidential elections. The Note focuses on the following issues:- Dispersal of the peaceful demonstration and detention of the participants;- Transportation of the detainees in special vehicles and their being in the police departments;- Human rights violations on court premises and in court proceedings;- Human rights violations against the administrative arrested in places of freedom restriction.

15

Pluses and minuses of the questioning method

The pluses of this method area: possibility to involve large groups of people; adaptability to various sides of life; good formalizing of the results; minimum influence of the researcher on the respondent; operability; economy of time and means.

The main disadvantages were minimized. The most serious minus – impossibility to control the process of filling-in the questionnaire – was outweighed by the fact that the respondents filled in the forms personally in presence of a volunteer/monitor; otherwise one could not be sure that the respondent answered himself/herself. The questionnaire was not anonymous, and the respondents also enclosed copies of court rulings as a confirmation of their status. The picture was also more complete due to questioning “in hot pursuit”, that is practically in the first days after release. Also the open type questions were sometimes answered in details, although these were minority. Anyway, the high representativeness (298 questionnaires, or 37% of the detainees) reduced subjectivism, typical of each separate evidence, to a minimum in the general picture.

It is necessary to underline the importance of cooperation of other organizations. If we had failed to agree with the BNF party to hold the questioning in their office, the number of the respondents would not have reached almost 40% of all the detainees. The success of the monitoring was much favored by the location of the office in the center of Minsk and its relative reputation among the city-dwellers, and also by the media announcements that one could come and get help and leave evidence.

The use of the results

In January 2010 Lawtrend coordinated the collection of questionnaires and processing the results. The data were introduced into an electronic database for researchers’ work. In cooperation with the Committee of International Control, the preliminary analysis of the data had been completed and presented to the public by February, and recommendations based on the results of the monitoring were sent to the state bodies. The final product was the Analytical note (I-1) which contained statistical information and was illustrated by evidence of the eye-witnesses, descriptions of particular violations of human rights made by the Belarusian official representatives. At present the Analytical note contains the fullest description of human rights violations in the dispersal of the peaceful demonstration on December 19 and in the follow-up administrative persecution of the participants.

monitoring of criminal trials

The authorities did not limit themselves to administrative prosecution of the participants of the peaceful demonstration of December 19. Official statements and state-run mass media made statements about a “coup attempt”. At first seven out of 10 candidates for the President were detained. However, several days later it became known that a criminal case on “mass riots” was started. In this relation, almost every day searches took place in offices of political and civil organizations, in flats of civil activists. Even mobile phone operators were involved in the search for the people who broke the glass at the entrance to the House of Government: they were told to disclose the information about all phone numbers that were present in the square or near to in that evening. Many participants of the demonstration were questioned by the police about what they were doing in the Square, if they had heard calls for violent actions from the politicians who spoke from the tribune.

And still, why did the events attract so much human rights defenders’ attention? One should mention several facts here. Even at the preliminary investigation we fixed violations of the rights of the accused. State mass media published the materials of the investigation and the officials claimed that the organizers of the demonstration were guilty as a proved fact, which is a violation of the presumption of innocence. Information appeared that the suspects in the KGB detention center lacked medical help, and lawyers’ access to them was restricted. The lawyers who publicly spoke of these facts experienced pressure. Besides, the criminal article on mass riots had never been used before in Belarus. The extra-ordinary character of the situation was complicated by the fact that more than half of the ex-candidates could turn up in the prisoner’s box, and more than forty people were involved.

How the trials went on

From February 17 to October 12, 2011 there were 14 criminal trials in Minsk related to the presidential elections and the peaceful demonstration. All the trials ended up in

conviction. Five out of ten presidential candidates were found guilty. The total number of convicts was 44. Three of them – presidential candidates Andrey Sannikau, Mikalay Statkevich and Dzmitry Uss – were sentenced to five to 10 years’ imprisonment for organizing mass riot (art. 293 of the Criminal Code). Ten participants of the action, including the presidential candidates Uladzimir Niakliayeu and Vital Rymasheuski were convicted for organizing actions roughly violating the public order (art.342 of the Criminal Code). The head of the youth organization “Young Front” (registered in Czech Republic) Dzmitry Dashkevich and Eduard Lobau were convicted under article 339 of the Criminal Code (hooliganism). 28 participants were sentenced to different punishments for taking part in mass riots (two were fined, three got three years’ freedom restriction, 24 got three to five years’ freedom restriction).

monitoring of the ODIHr/OSCE

International organizations also expressed concern about the international standards of fair trial in the criminal cases of December 19. The EU representatives – ambassadors and employees of diplomatic missions – attended all court hearings. The Observation Mission of the International Control Committee over the situation with human rights in Belarus carried out monitoring of the trials and published interim reports.

However, the most interesting monitoring of the criminal cases, form the perspective of legal assessment, was the one conducted by the ODIHR/OSCE mission which was agreed upon with the Belarusian Government. The Bureau carries out monitoring of court proceedings so that to provide support to participating state in developing policy and reforms aimed to strengthen the rule of law and human rights. The director of the ODIHR Janez Lenarcic informed about the creation of the mission on March 7, 2011. He underlined that “Belarus, being the OSCE participating state, took the obligation to allow international observers to court proceedings. The observers will estimate to what extent the court hearings correspond to the national legislation and norms of fair trial written down in the OSCE documents and legally mandatory international agreements.”

16

The Bureau has a developed methodology and vast experience of monitoring. The successful example (similar to the Belarusian situation) can be a mission in Armenia on observation of court proceedings started on the fact of disturbances after the presidential elections in March 2008. In the final report the ODIHR described many deficiencies regarding the way how the cases were tackled in court system, and suggested recommendations aimed to provide aid to Armenian authorities in improving their system of criminal legal procedure in the country. It laid foundations for subsequent actions undertaken by the ODIHR jointly with Armenian authorities.

In Belarus the mission faced with some difficulties. Firstly, the Belarusian side insisted on some limitations of the mandate. As the report shows, the total number of the observers could not exceed four people being in the country at a time, and their presence had to be limited by the duration of the trials. Since in different periods of time court hearings of several cases were taking place simultaneously, some of them were visited by one observer instead of two, as is the common practice.

17

From March 9 to July 23, 2011 the ODIHR observed 10 criminal cases of the first instance and hearing of cassations, if they took place, and also two additional cases of the second instance. Eight observers from seven countries took part in the observation.

The observers attended the court hearing and at the end requested for a meeting with representatives of the defence and the prosecution. If they agreed, then each of the sides was asked the same questions based on applicable human rights standards. Most representatives of defence agreed to such meetings. Prosecution agreed to have the meeting at the level of the Head of Public Prosecution and Appeals Department, and there were four meetings. Attempts were made to hold such meetings with the judges of the trials, but they all were unsuccessful. The mission of the ODIHR/OSCE also did not have access to the texts of the judgment.

The observers wrote short reports on each court proceeding, and at the end of each case wrote a final report using the standard form developed according to international and national standards of fair trial. These reports served as the main source for making the final report. The observers also gathered context information on the system of criminal justice and events of December 19, 2010 at meetings in the Ministry of Justice, with representatives of the Supreme Court, prosecutor’s office, NGOs, other lawyers and human rights defenders, both national and international.

Lawtrend information note:

The final result of the mission’s work was a 114-pages report, with generally negative estimates of the compliance of the criminal cases with international standards and the national legislation. In this regard, the report presents 33 recommendations how to eliminate the deficiencies of the criminal and procedural legislation, and also of the national judicial system. The report was compiled on a topical principle in accordance with the applicable standards of fair trial.

You can read the Final report on the website of the ODIHR/OSCE

English RussianBelarusian

18

After the public part of the processes ended, the Monitoring group of Lawtrend started to collect procedural documents (first of all, judgments, appeals, decisions of the higher instances). We also observed the appeals. Finally we made an informational base of the criminal processes which allowed the researchers to analyse the course and the results of the cases in detail. The methodology of the research was based on the recommendations of the Guidance on observing criminal process by the International Commission of Jurists.

At present the results of the research are being prepared for publication.

Lawtrend information note:

Trial Observation manual for Criminal Proceedings. Practitioners Guide No. 5

Authors: International Commission of JuristsThis guide provides the prospective trial

observer with practical advice on how to carry out a trial observation. It outlines the various criteria and operational aspects that need to be borne in mind when preparing for, and conducting, a trial observation. It also provides a systematic overview of the international norms and standards relating to fair trial and due process in criminal proceedings.

EnglishRussian

19

monitoring by Lawtrend

Since the methodology of this monitoring has significant differences from the one conducted by the ODIHR/OSCE, it is worth telling about it in details. Besides the legal assessment of the criminal trials related to December 19 events, we aimed to fully document the contents of the processes and to collect the procedural documents. At the same time, the monitoring covers all the criminal cases related to the Square, including the cases of Dzmitry Dashkevich and Eduard Lobau, arrested just before the demonstration on accusations of hooliganism. The overall duration of the monitoring was from February 17 to October 12, 2011, so it includes two cases which had taken place before the ODIHR mission started work and the last case which took place in a long time span afterwards.

The total number of the observers was seven. Each process must be attended by two observers. It was not always possible, as the number of hearings that took place on the same day sometimes reached five. Also, the limited number of places in the audience room left many people, willing to attend, outside the courtroom. Since NGO observers did not have a special status empowering them to attend the trial (unlike the ODIHR/OSCE mission), sometimes only one person managed to get through. Dictaphones were used to record the hearing. The total time of the audio made up 350 hours, which were later transformed into written texts for convenience. The unique scripts of the court debates were decoded and published on the website lawtrend.org, sometimes on the same very day. Now you can read the speeches of the defence and the prosecution following the link.

On December 19 night law enforcement agencies confiscated all the equipment from the office of the Human rights center “Viasna”, and also detained the human rights defenders who were in the office, which complicated the work of the organization. In the first decade of 2011 the professional activities of “Viasna” included also monitoring of the administrative and criminal “cases of December 19”, collecting and delivering parcels to people who were in the center of isolation of violators. Lawyers consulted civil activists, helped to write complaints about police’s actions and appeals against judicial decisions. The organization was focused on following the course of the criminal cases on mass riots, preparing analytical reviews and comments at the end of the processes, and on help to find and get legal counsel. The specific of the work of “Viasna” is following the chronology of administrative and criminal prosecution in politically motivated cases and writing the chronology of violations.

Legal Transformation Center joined the work on the morning of December 20. The Monitoring group was set up which observed the administrative court proceedings, violations of human rights in the sphere of the freedom of assembly and the right to fair trial. Lawtrend conducted the questioning of the administratively arrested, collected much evidence of human rights violations. Lawyers of Lawtrend helped draw up appeals against the arrests, complains on conditions of detention in the center of isolation of violators. Later Lawtrend monitored the criminal cases, collected and distributed information and made legal analysis. Another important activity of the Group was communication with international organizations. The LTC sent a number

HUMAN RIGHTS NGOs: CONTRIBUTION TO OVERCOMING CONSEQUENCES OF DECEMBER 19

20

December 19 and the subsequent events on that winter night checked the cohesion of the Belarusian human rights community, like a shock wave from an exploded reactor. In theory every Belarusian human rights defense organization has its own professional field and specific of work. For instance, the expert sphere of Lawtrend is freedom of association, access to information, and right to fair trial; of the human rights center “Viasna” – aid to political prisoners, legal support in restoring rights and monitoring of human rights violations; the Committee of support of the repressed “Solidarity” help those who were persecuted for political views. The events of December 19 forced the human rights defenders to join their efforts in response to the challenge, so as to channel their professional potential for solution to common problems concerning human rights violations. We will set several examples of the input made by human rights organizations to overcome consequences of December 19.

of appeals to the UN Working group on arbitrary detentions, the UN Special Rapporteur on human rights defenders and other special procedures of the UN. The Monitoring group worked closely with the International Observation Mission of the Committee of International Control over the situation of human rights in Belarus.

On January 5, 2011 the office of the Belarusian Helsinki Committee was searched and computers were confiscated. The main directions of the BHC were: aid to lawyers and human rights defenders who suffered pressure after December 19; issues of forceful fingerprinting; and also monitoring of the cases on “mass riots”. Analytical reviews were also prepared as a result of the monitoring. Besides, the BHC made claims and requests asking to conduct an inquiry into the statements of torture in the KGB detention center.

One of the main directions of work of the Committee of defence of the repressed “Solidarity” has been aid to students who suffered pressure for their civil activities: appeals against institutes’ decisions to expel students; help to prolong studies in European establishments. Citizens who lost work could also rely on high quality legal support. The questionnaire for administratively arrested was also developed with the “Solidarity” participation.

21

AD DISPUTANDUM*

* for discussion

The deputy chair raisa mIkHaILOuSkaya tells about the activities of the “Center on Human rights” in relation to December 19 events and their role in the common human rights agenda.

The December 19 has changed all of us – each human rights defender in particular and the whole organization in general. What we had been doing before sharply moved to the background. The organization’s activity and priorities have changed. Now I understand that maybe somebody in the organization was not interested in this, but then I, being the head of the organization, had to divert the directions and priorities at 180 degrees literally in one day.

I remember well the day when the Belarusian human rights defenders gathered in the “Viasna’s” kitchen (it was only a couple of hours after the 19th) and distributed tasks, who will deal with what issue. Of course, it all was decided in correspondence with the possibilities of the organization. The Center on human rights got the “criminals” – those who were in the KGB detention center. It was necessary to provide their relatives with legal aid and support. We decided to set up a group of lawyers who will deal with the cases of the KGB detainees – presidential candidates and their authorized delegates. They flung themselves to work and did it day and night, as the situation demanded.

On December 20 our lawyers together with the lawyers of the arrested democratic candidates engaged in direct defence and aid to relatives (petitions to the Prosecutor General, chairperson of the State Security Committee, presentation of Volha Niakliaeva at an official briefing of the OSCE mission on results of the Presidential elections in Belarus). On December 23 the candidate Ryhor Kastusiou filed a complaint, on behalf of all the imprisoned candidates, to the Central Electoral Commission claiming to recognize that the elections were not valid. The complaint was drawn up by our lawyers in extremely difficult conditions.

Simultaneously we worked to inform the Belarusian and international community about what had happened in Belarus, the situation of the arrested candidates for the President and members of their team. On December 24 practically all embassies of the EU and the USA in Minsk held meetings on this problem.

22

During the preliminary investigation human rights defenders together with lawyers of the presidential candidates went abroad to take down testimonies of the citizens who had to flee the country just after December 19 because of possible arrests. Protocols of questioning of these witnesses were made up strictly according to the criminal and procedural legislation of Belarus. The protocols were attached to the cases’ materials of the preliminary investigation before it ended and were finally included into the cases materials.

While preparing for the trials, with the help of Lawtrend, we found witnesses for defence – citizens who took part in the protest action. Also we formed a group of VIP-witnesses from civil society (famous Belarusian human rights defenders, journalists, writers, civil activists who were in the Square). These witnesses made their statements at the trials of the ex-candidates, their delegated and activists.

23

Volha DAMARAD:INTERNATIONAl STANDARDS OF FAIR TRIAl IN THE ADMINISTRATIVE CASES OF THE PEACEFUl DEMONSTRATION PARTICIPANTS

24

The right to fair trial was not observed in the administrative cases related to the December 19 demonstration. These circumstances are confirmed by the analytical Note (I-1) on the results of the research of the evidence of the citizens detained during the public action in minsk on December 19, 2010. One of the sections of the Note examines the violations of human rights on the court premises and in court proceedings. The article analyses the right to fair trial from the perspective of international standards, laid down in the International Covenant on Civil and Political Right (ICCPR) which is a compulsory legal document for our country. This commentary does not pretend to an academic research, but aims to show the real practice of Belarusian treatment of international human rights obligations.

25

must be “impartial, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” (p.2 of the Basic Principles on the Independence of the Judiciary).

It is worth mentioning that in 1997 the Human Rights Committee expressed concerns that in Belarus “the procedures relating to tenure, disciplining and dismissal of judges at all levels do not comply with the principle of independence and impartiality of the judiciary.” (Concluding observations of the Human Rights Committee : Belarus. 19.11.1997).

The right to public hearing (art. 14(1) of ICCPr)

Public hearing means the possibility of the public attending, including the press representatives. Information on time and place of a court hearing must be available for the public (General Comment No. 32 Article 14: Right to equality before courts and tribunals and to a fair trial; G. A. van Meurs v. The Netherlands, p. 6.1). There are categories of cases that can be heard non-publicly but this exception does not cover cases under articles 23.34 of the Procedural and Executive Code on Administrative Offences (for instance, private life, national security etc.).

The right to public hearing includes also attendance by court observers. The possibility “to attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments” for everyone was established by the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (art. 9, p.3b).

The International Commission of Jurists also remarks that, within the standard, states must provide an effective system of protocoling and documenting judicial proceedings which will be available for the general public.

26

The right to fair trial (art. 14(1) of ICCPr)

The Human Rights Committee interpreted the right to fair trial as “the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive.” (p. 25 of the General Comment No. 32). The fundamental guarantee of this standard is existence of a real opportunity to plead, to hear, question and contest evidence. Besides, the following requirements must be observed: equality of arms in a process (p.6.6. Wolf v. Panama), the principle of equal procedural rights (p. 13 of the General Comment No. 32), opportunity to adequately contest claims against for the accused, to attend the proceedings and to be heard in person in court proceedings.

The right to fair and public hearing by a competent, independent and impartial tribunal established by law (art. 14 of ICCPr, p. 13.9 of the Concluding document of Vienna meeting of OSCE in 1986, p. 5.16 of the Document of the Copenhagen meeting of the Conference of the human rights dimension of the OSCE)

The Human Rights Committee claimed that this right is absolute and is not liable to any limitations. This standard means that the judicial body that hears the case must be set up on the basis of the law. The court’s competence means the kind of court which acts within its jurisdiction and has powers to consider a particular case. In other words, the jurisdiction of a case must be defined according to the law, and the process must be held without violations of procedural terms, defined by the law. Court’s independence means that judges must consider a case objectively, based only on facts, without experiencing interference, pressure or unlawful influence of any governmental or other bodies. Impartiality of court means that the judge does not have prejudices against the considered case…. Impartiality is based on the legal principle nemo judex in sua causa1. Thus a court’s decision

1 nobody can judge pursuing personal interests (lat.)

To defend himself in person or through legal assistance of his own choosing (art. 14(3) (d) of ICCPr)

The essence of the standard is the following: every detainee must be immediately informed about his right to legal assistance. If the detainee does not have a lawyer, the latter must be appointed for him. Implementation of the right is conditioned by two factors: first, the appointment of the lawyer is required by the interests of justice; second, the detainee does not have financial means to hire a personal lawyer. The detainee must enjoy the right to have confidential meetings with his lawyer (such meetings can be seen, but not heard by other people). The lawyer appointed by the state must be experienced and competent appropriate for the gravity of the violation. Lawyers must have a possibility to act freely, without pressure and threatening.

The HRC stated that “all persons who are arrested must immediately have access to counsel” (p. 27, Concluding Observations of the Human Rights Committee: Georgia. 05.05.1997). The possibility of the accused to defend oneself personally does not mutually exclude a possibility of legal counsel (p. 37 of the General Comment No. 32). It means the right includes two criteria: the right to be informed about the right to be represented by a lawyer and the right to legal counsel. Besides, the right to defend oneself does means not to be forced to accept services of the lawyer appointed by the state.

The right to communicate with the lawyer means that the accused must enjoy a possibility to talk with his lawyer tête-à-tête, observing confidentiality. This demand must be understood as the possibility for the accused to communicate with his lawyer in somebody’s eyesight, but out of hearing.

27

Lawtrend information note:

International Commission of Jurists (ICJ) is a non-governmental human rights organization, composed of 60 eminent judges and lawyers. ICJ aims to promote and protect human rights through the Rule of law, by using its unique legal expertise to develop and strengthen national and international justice systems.

It is represented by branches and departments in more than 80 countries, but unfortunately not in Belarus. In CIS countries the ICJ is represented by The Centre of International Protection (Russia) operated by karinna Moskalenko and Andrey Riechter

The right to obtain the attendance and examination of witnesses (art. 14 (3) (e) of the ICCPr)

Everyone who is accused of an administrative violation has the right to demand attendance of witnesses, moreover, they must be questioned equally with the witnesses against him.

Accused persons have the right to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. (p. 39 of the General Comment No. 32).

The right to have any judgment be made public in sensible time limits (art. 14 (1) of the ICCPr

The right means that the judicial decision must announced publicly and be open for public control. It means that the right to publicity of the judgment must be claimed not only by involved parties, but by everyone. Even in cases in which the public is excluded from the trial, the judgment must be made public (p.29 of the General Comment No. 32). The judgment is considered to be public when the decision was read aloud in the courtroom or published in written form and is available for the general public. The published judicial statement must include legal reasoning and the procedure of appeal of the judicial decision. The rule of court must be handed in to the charged person in reasonable time limits.

28

The right not to be forced to confess guilt or to testify against oneself

The HRC remarked that this right is non-derogable (p. 6 of the General Comment No. 32). This standard must be viewed as “the absence of any direct or indirect physical or psychological pressure from the investigating authorities on the accused with a view to obtaining a confession of guilt.” (p. 11.7 Berry v. Jamaica). The accused has the right to keep silent in the court proceeding. Such silence must not be viewed as agreement with the accusations or as responsibility or confession. If the accused claims that the statements or confessions were obtained under pressure, the judge must consider the claim adequately and take measures (p. 41 of the General Comment No. 32).

29

According to the Analytical Note prepared by the Legal Transformation Center, every component of the right to fair trial was violated practically to a full extent. The most common violations include:

(a) the procedure and terms of appeals were not explained;

(b) court’s rulings were given to the accused only after the terms of appeal expired;

(c) the court proceeding lasted two or three minutes, which cast doubts on the court’s impartiality and competence;

(d) protocols of detention, witnesses’ evidence, reports of the law enforcement agencies, and other evidence, were not read out, which might mean that the court’s decision was biased;

(e) judges’ refusals to motions to question the defence witnesses;

(f) the proceedings were not public, and relatives, journalists and civil representatives were not allowed into the courtroom (with rare exceptions);

(g) no access to legal counsel. Thus, one can claim that the Belarusian

Government violated the provisions of the International Covenant on Civil and Political Rights.

Unfortunately, higher courts did not consider such violations to be a reason to overturn the decisions of the courts of first instance. The Lawtrend Monitoring Group made up around 40 appeals against the court’s decisions, however, only one case has been sent for revision (and is still incomplete). All this raises serious concern of human rights defenders and proves a systemic crisis of the Belarusian justice. The fulfilled monitoring dealt only with the so called politically motivated cases, but no one can be sure that such approaches to delivering justice are not applied to other cases on administrative offences.

Tamara Sidarenka is one of the lawyers who were disbarred for work in the “Decembrists cases”. How the events unfolded, what was the motive for her disbarment, the procedure of appeals against the decision of the Board of experts, and the current state of things – the whole story by Tamara Sidarenka.

Tamara SIDARENkA:A kISS FOR THE SlEEPING PRINCESS

“I did not have a firm sense of purposeful injustice and mass violations of human rights in our country”

I was a lawyer in the legal counseling of the Leninski district in Minsk from 1978 to 2010. Time flew so fast that I would not be able to answer at once to the question of my work experience, and I did not even realize that it had been more than thirty years. It turns out that I am an “experienced lawyer with long-lasting practice”. The work is usual and ordinary: consultations, civil and criminal cases, appeals. Each business has its own peculiarities, nuances; questions and problems constantly arise. The work demands to follow changes in legislation, study the practice of law enforcement. There were victories, and there were failures. When I thought that courts made unfair decisions, I filed appeals to appellate courts. Some of the decisions, like scars on the heart, stayed on for the whole life, reoccurring in the memory and reminding of injustice. But to be sincere, in December 2010 I did not have a firm sense of purposeful injustice and mass violations of human rights in our country.

When in the autumn the electoral campaign for presidency started, I did not follow it seriously, its course, debates, programs. My professional tasks and duties took too much time and power. Nevertheless, at that moment, my attention was attracted to the presidential candidate Uladzimir Niakliayeu. First of all, due to his poetic talent and charisma. There was also another reason: I had to defend one of the members of his electoral team. According to my professional assessment, the investigation was biased. I insisted on this in court. We did not manage to obtain justice.

On December 17, 2010 Niakliayeu’s wife Volha signed a contract with me for legal services. Then I thought only of possible administrative sanctions against the candidate for presidency Niakliayeu. It turned out quite different. Now the

30

story of beating, detention and arrest of Uladzimir Niakliayeu is known practically to everyone who follows more or less the events in the country. And a photo of Niakliayeu with a swollen black eye was one of the most popular on the web.

Passing the buck

On December 20, 2010 the lawyer Uladzimir Bukshtynau and I started to work in the “case of Niakliayeu” as defense lawyers. Our primary task then was to find out where our client was. We managed to discover the whereabouts of the ex-candidate for the President only on the second day. At that moment Niakliayeu had already been questioned without a lawyer. He turned out to be in the KGB detention center; although investigation was carried out by the police, the investigative group included investigators from the state security bodies.

Our first step was to get permission from the investigator to visit our defendant. The first day ended up with nothing: we spent the whole working day near the door of the bureau of passes of the KGB detention center, from which the man on duty convoys to the detention center, but still we did not see our client. The next day I appeared at the door of the bureau of passes before the opening hours, I honestly sat there till the bureau closed. All our puzzled questions were followed by the answer that there were no rooms for meeting

the client as they were all occupied. The same story repeated the next day.

We started to write daily complaints to the General Prosecutor, one of them I brought personally to the General Prosecutor’s office. The answers came efficiently, but a week later. The letters told that our complaints had been redirected to the prosecutor’s office of Minsk. One more week later, the Minsk City prosecutor’s office started to send answers. They told the complaints had to be addressed either to the head of the investigation or to the head of the detention center of the KGB. The circle closed up, time was inevitably slipping away.

Constant excuses with some business of the cabinets did not convince us. How can a cabinet for questionings and meetings with the accused be occupied when investigators and lawyers have a special queue? All lawyers pass through the bureau of passes. And all the time, except for me, there were only the lawyers of the detainees of the “December 19 case”. Soon interesting events started to take place: without explaining the reasons the man-on-duty of the detention center was inviting those people who stood behind us in the queue to the bureau of passes (as a rule these were investigators). Our indignation came across with the passing-the-buck tactics. The bureau employee explained that he was not a worker of the detention center. The man-on-duty explained that he was only on duty and carried out

instructions. It was impossible to get through to the head of the detention center as his telephone number was “classified”. Another KGB worker who received visitors in the bureau of passes also lifted his hands in dismay. The complaint passed on to him, successfully proceeded up the line. Our “calls” in the form of a notice to the Book of remarks and suggestions at the bureau of passes did not resolve the situation. Moreover, some time later the appropriate graph next to our note contained a remark that the check-up conducted by the General Prosecutor’s office had not revealed any violations.

Personally I was unable to exercise my right nine times (take it as nine working days) waiting in the queue to visit my client and being the first or one of the first, up till the moment of changing the measure of detention for Niakliayeu (February, 2011).

“Called on the carpet”

A little later the Minister of Foreign Affairs at the high international level remarked in between that our system turned out not to be ready for such a large number of the accused, there was no possibility, so to say… In my view they were insincere. There were two or three cabinets for meetings in the detention center of the KGB. But it was impossible for lawyers of “December 19 cases” to get there, and it was not accidental. I mean there cannot be any objective-subjective explanations in this case!

As it turned out later, operating officers (for example, the chairperson of the KGB) had numerous “talks” with the accused. Such “meetings” were held in some other cabinets without compiling any procedural documents. In the talks the accused were told that article 293 of the Criminal Code (and this is a grave offence) was the mildest that had been brought against them yet. Later, accusations of treason against the motherland and espionage appeared which envisage death penalty. Imagine what the people felt being in that informational blockade, without any legal help.

On December 24, 2010 BelaPAN published an article saying that lawyers were unable to visit their clients. The article quoted my words: “Thus, there are grounds to assume that my access to my

client is restricted on purpose.” Time showed that such statements are punished in our country by at least disqualification.

One more player joined this unequal game – the Ministry of Justice. The Ministry started to pay attention and enthusiasm never seen before in any other case. This “anxiousness” had a very specific character: not only the lawyers’ work in the political cases was in focus, but their previous work too.

So, on December 30 I was summoned to the Ministry of Justice, and the head of the administration of the Lawyers’ Bar and legal licensing Mr. Gryshkavets asked me to explain the fact of my providing the media with defense materials from Nyakliayeu case. It turned out that I was not the only one who had been “called on the carpet”.

“Lawyer’s obligation to maintain honor of the profession and personal dignity”

Further on the Ministry of Justice sent a letter concerning the interview to the administering body of the Bar – Minsk City Lawyers Bar (MCLB). I gave explanations, also at the panel session of the MCLB. There was a ruling stating absence of violation in my interview. The answer was sent to the Ministry of Justice.

Almost simultaneously I received a Prescription of the Ministry of Justice, indicating the following:

“The information published in the media containing reference to my name goes beyond the limits set by the definite tasks of the Bar, provisions of the Law of the Republic of Belarus “On the Lawyers’ Bar”; it does not comply with the requirements of the Professional ethics of the lawyer, defining obligations of lawyer to maintain dignity of the profession and personal dignity”.

By law I had to take measures, answer to this prescription, otherwise my license for lawyers’ activity would be suspended. I had to answer. All this distracted from work and created a negative psychological background. It turned out that it was only the beginning. Then followed the check-up of my yearly reports, visits to the Ministry of Justice with my documents, another Prescription dated July 17, 2011, new explanations. It was not the quality of my work and business papers that were checked, but rather financial reports, or,

32

to be even more precise, the correctness of the filled-in reports. And the “remarks” were too much formal: for example, in the Book of registration of contracts I wrote in the data of a new agreement on the wrong day. I should say that the Book is an “innovation” of the Ministry of Justice the practical use of which is unclear. The lawyer and the client sign a contract which is written in a special form in two copies. Money for the contract is paid at the pay-desk, two copies of bills are produced. The date of signing the contract and the sums of money are indicated in the common Book of agreements to consultation. During court hearing of my case, the representative of the Ministry of Justice was unable to tell what’s the practical use of such an additional book for a lawyer.

No sooner had the defense thundered out their speeches, than I was summoned to the Ministry of Justice again. I was told to write an explanatory note if I really said in my speech in the Niakliayeu case that the “people in black” who attacked Niakliayeu and his column were not devils out of the snuffbox to jump out in a moment, and

somebody had to push the button. This figure of speech of mine was quoted in a newspaper. So I had to write a new explanation.

The atmosphere of fear in the Bar entered the chronic phase. Lawyers practically stopped giving any comments on cases; not everyone agreed to take up a case when it had a hint of not even politics, but of an alternative civil position.

It is easier to reproach them, it is harder to realize the objective reality in which they work: my case, the situation of my colleagues Sapelka, Aheieu and others who were also ripped of their licenses. The disease was in progress…

“I don’t need attestation anymore”

Within the period check-ups of lawyers started to be large-scale and numerous. Almost half of the lawyers from Minsk City Bar were checked in 2011. At the end of May the Ministry of Justice initiated an extra-order attestation of lawyers. Even the law had been changed for that. That is, before the changes this was not the Ministry

of Justice, but the Bar’s bodies that held the attestation. The attestation revealed that claims occurred firstly against the lawyers who had taken up the “Decembrists’” cases.

Like all the others, I was getting prepared for the attestation scheduled for August 17: I read my characteristics which said I did not have any reproves, I was awarded with the Ministry of Justice diploma in 2010, there was a report on the number of cases. Nevertheless, I was not allowed to take the attestation, which is an obvious violation of law. On August 17 the member of the attestation commission Zelenko N.A. informed me that the day before the Qualification Commission of the Ministry of Justice had already issued the decision to withdraw my license. In other words, I did not need that attestation already.

Is it worth mentioning that the Qualification Commission did not inform me about their decision, they did not also find it necessary to listen to my explanations. As it turned out later, the final document of the Qualification Commission had numerous mistakes. I’d like to remark that this decision bears recommendation character, the decision is made by Ministers, that is in my situation nothing had changed yet, I still was a lawyer and had to take attestation. But Zelenko N.A. seemed to consider that in that case he did not need to take the law into account.

On August 30, 2011 the Minister of Justice Halavanau V.G. signed Ruling #197 about the suspension of my license. In the Ruling, the same as in the Decision of the Qualification Commission, through the noise of references to some rulings and laws, it was asserted that in December 2010 I committed a violation (the interview), and then I committed more violations within the year. Recurrence of the violation after the first Prescription, under p.75 of the Provision on licensing, was the grounds for suspension of my license.

It all was enough strange and illogical. Just have a look: the check-up held in summer 2011 revealed the violation mentioned above in the Cash Book dated to the period before December 2010. How can they be named re-occurring when they had been “committed” before the December 2010?!

Imagine? The circumstance lying on the surface which was many times the subject for consideration for the Ministry of Justice,

the Qualification Commission, the Panel of Ministry, the Minister – and none of the highest officials noticed all this absurdity with the dates of the violations. For all the 33 years of lawyer experience, I had never faced with such obvious mistakes from the persons whose legal qualification must be at least at the medium level.

This is how foolishly and unlawfully I was deprived of my profession. The profession which has stayed the business of all my life. The inflicted pain stays on in my heart. And only my professional feelings come to the surface.

Even excitement appeared – what can the court write if decides to dismiss my appeal? It turned out that the judicial power also has imagination! On January 12, 2012 the court of the second instance, lowering modestly their eyes, upheld the decision of the court of the Moscow district dated October 28, 2011, made by the judge Shestakov. The Chairperson of the Minsk City Court B.G.Putsyla also agreed with the legal assessment given by the judges. As for my arguments and reasoning in complaints, they pretended not to be seeing or hearing me.

At present my case is being considered in the last instance. I am waiting for the decision from the Supreme Court of the Republic of Belarus – it will have the last word in my “case”.

Of course, paper does not blush. But there is the professional conscience and honor. Now I have another excitement: what can the highest official write who is heading the judicial system of the country? It is not long to wait – about a month.

The homespun truth which I learnt 30 years after my work in the legal system: unjust decisions can occur, resulting not from mistakes against which no one can be secured. I don’t want you to think that I have become so sagacious because of my “personal grief”. In 2011 – 2012 I learnt about many cases, especially administrative ones, where the law sleeps in a sound deep dream. And it can’t be helped even by the most righteous lawyers’ arguments. I want to invent something to wake up the sleeping princess Morale. Unfortunately only a kiss will not be enough.

34

The International Observation mission of the Committee of the International Control over the situation with human rights in Belarus jointly with the legal Transformation Center carried out monitoring of the situation of lawyers which resulted in the Analytical Review G-3 (2011) “Situation of lawyers in the Republic of Belarus after the Presidential elections on December 19 2010” and the Analytical note G3cd “Conditions of performing lawyers’ activities in the Republic of Belarus (February 19 – April 19, 2011).

35

According to the data of the Note in 2011, the following lawyers were deprived of the lawyers’ license:1. Valiantsina Busko (Hrodno Regional Bar, participation in an unsanctioned meeting);2. Uladzimir Toustsik (Minsk City Bar, lawyer of I. khalip);3. Tamara Harayeva (Minsk City Bar, lawyer of I. khalip);4. Aleh Aheieu (Minsk City Bar, lawyer of A. Mikhalevich);5. Tatsiana Aheieva (Minsk City Bar);6. zaryna Aheieva (Minsk City Bar);7. Pavel Sapelka (Minsk City Bar, lawyer of A. Sannikau);8. Tamara Sidarenka (Minsk City Bar, lawyer of U. Niakliaieu and A. Mikhalevich)

What do you see when you are thinking of human rights?

15 thousand offers from 190 countries were sent to the contest on making the international human rights logo. The winner of the contest Predrag STakIC from Serbia told that he had been encouraged to take part in the contest by love and hope. “Human rights is the greatest human invention in the whole history”, he said. “As the Universal Declaration on human rights states they are the basis for the future where freedom, justice and peace rule. They are also the fundamental instrument to create such world. If we do not realize, respect and protect human rights, we do not deserve to be called a human.”

The Human Rights Center “Viasna” suggested giving the international human rights logo a national peculiarity by decorating it with the folk-art of “wycinanki” (paper-cutting). The pattern was designed by the master of “wycinanki” Volha BaBuryNa.