GOVERNMENT
CRITICS AND OPPOSITION UNDER FIRE
The Lukashenka administration
has systematically intimidated and punished individuals for their affiliation
with opposition political groups. Affected people include Youth Front members,
prominent and active demonstrators, lawyers who defend demonstrators or
work on politically sensitive cases, and deputies to the disbanded Thirteenth
Supreme Soviet. The government has employed against them disproportionate
criminal and administrative prosecution and non-criminal sanctions, including
disbarment from the legal profession, dismissal from teaching jobs and
expulsion from school or university. This pattern had hitherto affected
the BPF, however, in the past twelve months it has shifted to the Youth
Front. Young people - including one fifteen-year-old - have been beaten,
arrested, threatened, intimidated and expelled from university, mostly
on charges relating to political graffiti or participation in unsanctioned
demonstrations. Their membership of, and openly expressed support for the
Youth Front most likely also contributed to the government's motives for
prosecuting. Police and security service employees have beaten and ill-treated
members as young as fifteen years-of-age.
Criminal Sanctions
The Trial of Vadim
Labkovich and Alexei Shidlovsky
"Thank God you have
been behind bars since August"
Presiding Judge Lavrev
to Alexei Shidlovsky, Minsk, February 18, 1998.
The grotesque treatment
of Vadim Labkovich Alexei Shidlovsky, two teenagers prosecuted for graffiti-writing
in February 1998, clearly illustrates this emerging pattern of intimidation
and punishment. Sixteen-year-old Labkovich and eighteen-year-old Shidlovsky
were held without bail for six months prior to trial, during which prison
guards allegedly beat Shidlovsky, and Labkovich, a minor, was held together
with adult detainees. When their case was heard, the conduct of the court
and the prosecution turned the hearings into a virtual show-trial, and
the court sentenced them out of proportion to the alleged offense.
In the early hours of August
3, 1997, in the town of Stolbtsy, some seventy kilometers southwest of
Minsk, a small group of Youth Front members, including sixteen-year-old
Vadim Labkovich and eighteen-year-old Alexei Shidlovsky, wrote anti-presidential
graffiti of varying degrees of profanity on the walls of various buildings,
including government administration buildings, a library, the local stadium,
a public toilet and also on monuments to Lenin and Felix Dzerzhinsky, the
founder of the KGB's predecessor. The national red-green flag of Belarus
- reinstated in 1995 from Soviet times as the state flag - was replaced
above the town administration building with the banned, former national
white-red-white flag that has come to symbolize the opposition movement
and the BPF in particular.106 Police arrested
and detained Shidlovsky on August 25 and Labkovich two days later. During
a search of Labkovich's home on August 28, police found and confiscated
two white-red-white flags.
Despite the non-violent nature
of the crime and the youth of the accused, a motion by Labkovich and Shidlovsky's
lawyers to have them released on their own recognizance was denied. Prior
to the court hearing, which began on February 18, 1998, Labkovich and Shidlovsky
were held for almost six months in a detention facility and were thus exposed
to unsanitary, overcrowded, abusive and at times violent conditions. With
specific regard to Labkovich - who at sixteen was, under Belarus and international
law, a juvenile - such a period of pre-trial detention violates Article
10 (2b) of the International Covenant on Civil and Political Rights (ICCPR)107
to which Belarus is a state party, which requires that juvenile cases be
brought "as speedily as possible for adjudication." This period of pre-trial
detention also violated Article 37 (b) of the Convention on the Rights
of the Child, to which Belarus is a signatory, which stipulates that the
detention of children "shall be used only as a measure of last resort
and for the shortest appropriate period of time (emphasis added)."
On September 11, prison guards
allegedly beat Shidlovsky, after which he spent more than one month in
a prison clinic.108 Under Belarus law, pre-trial
juvenile detainees are permitted family visits only at the discretion of
the investigator. Labkovich was permitted just three visits from his mother
during his nearly six months of incarceration, which contradicts the spirit
of Article 37 (c) of the Convention on the Rights of the Child, which stipulates
that every child detainee "shall have the right to maintain contact with
his or her family through correspondence and visits, save in exceptional
circumstances."
On February 9, 1998, more
than six months after the offenses occurred, Labkovich and Shidlovsky received
notification of the formal charges against them from the State Security
Committee (KGB), which had been tasked with the investigation. They were
charged under Article 201 (2) of the Belarus criminal code for malicious
hooliganism (zlostnoe khuliganstvo, in Russian), which carries a
sentence of up to five years of imprisonment, and under Article 186 (2),
for abuse of state symbols, which carries a two-year term of corrective
labor or a fine.
On February 24, 1998, Labkovich
and Shidlovsky were convicted on charges of "malicious hooliganism" rather
than the minor offense normally applied to graffiti. The Minsk Regional
Court sentenced Labkovich to a one and a half years in prison, suspended
for two years, and Shidlovsky to one and a half years imprisonment in a
strict-regime labor camp.
Human Rights Watch researchers
monitored the five-day hearing in Minsk. During the proceedings, police
detained nine people outside the court building for various offenses, including
one person for holding a banner calling for Labkovich and Shidlovsky to
be freed. The Human Rights Watch researchers found that the conditions
under which the hearings were held gave the impression that the court was
trying dangerous recidivists, rather than two teenagers accused of writing
graffiti. On each day of the proceedings, Labkovich and Shidlovsky were
brought to the courtroom in handcuffs and placed in an iron cage,109
surrounded at all times by at least six armed policemen in blue/gray camouflage
military-style uniforms and an attack dog; dozens of special riot police
lined the entrance hall and corridors leading to the courtroom. Moreover,
on the first day of the proceedings, before any evidence had been heard,
presiding Judge Lavrev abandoned any pretense to objectivity of when he
stated to Shidlovsky, "Thank God that you have been behind bars since August."
Following a six-month KGB
investigation, the prosecution presented three witnesses, of whom only
one, Valery Ilyushin, claimed to have seen Shidlovsky with a group of young
people writing on the wall of the Stolbtsy library as he drove by. Shidlovsky
questioned the credibility of this testimony, alleging in court that Ilyushin
had attempted to blackmail him, demanding payment in return for silence.
The prosecution also called as a witness Ilyushin's front seat passenger,
Alexei Zhendik, who did not corroborate Ilyushin's testimony.110
The prosecution's case was based only on this evidence and on Labkovich's
and Shidlovsky's partial confessions.111
The treatment, trial, and
sentencing of Labkovich and Shidlovsky were disproportionate to the offense
allegedly committed, which strongly suggests the political nature of the
prosecution's motives. Graffiti, which Human Rights Watch researchers found
to be in evidence throughout the city of Minsk, is defined by the Belarusian
criminal code as a petty crime (melkoe khuliganstvo in Russian)
and carries a much lighter sentence than "malicious hooliganism." Indeed,
as a minor, Labkovich could have been prosecuted under Article 162 of the
administrative code, which applies to juveniles and which entails a maximum
penalty of a fine levied against the parents of the offender. In this case,
it is abundantly clear that the state decided to punish Labkovich and Shidlovsky
for the content of the graffiti written and for their political affiliations,
in violation of domestic and international instruments to which Belarus
is a state party, notably the guarantees of freedom of expression set out
in Articles 33 (3) and 34 (1) of the Constitution of Belarus, Article 8
of the Russia-Belarus Union Charter, and Articles 19 and 26 of the ICCPR.112
At the appeal hearing on
April 21, the Belarusian Supreme Court upheld the original verdict and
sentences. Alexei Shidlovsky is currently serving a prison term. Labkovich
may face re-arrest for the slightest administrative infraction. Such an
infraction would therefore be considered a breach of his suspended sentence
and would likely result in the imposition of a one-and-a-half-year prison
term. Hence, Labkovich faces undue pressure to curtail his legitimate political
activity; Human Rights Watch calls for the verdicts against both Shidlovsky
and Labkovich to be expunged.
On September 26, 1997, the
KGB called in for questioning eighteen-year-old Alina Belskaya, a Youth
Front member who was with Shidlovsky and Labkovich on August 3. In light
of the arrests of Shidlovsky and Labkovich and the harassment of her fellow
Youth Front members, she fled the country prior to that meeting and subsequently
sought political asylum in Finland.
Pavel Syverinets and Dmitri
Vaskovich
Pavel Syverinets is the
leader of the Youth Front. On April 2, 1998, Syverinets, along with a group
of approximately fifty members of the Youth Front and the BPF, attended
a government-sponsored fair at the central Yakub Kolas square in Minsk
to mark the signing of the Belarus-Russia Union Charter in 1997. Independent
reports state that this group collectively sang pro-independence songs
and later peacefully dispersed.113 Men in plainclothes
subsequently emerged from parked cars and beat and detained up to forty
BPF and Youth Front members, including Syverinets and fifteen-year-old
Vaskovich. Police charged Syverinets and Dmitri Vaskovich with "malicious
hooliganism," under Article 201 (2) of the criminal code, which carries
a maximum sentence of five years of imprisonment.
As of this writing, Syverinets
is awaiting trial after his release on his own recognizance on June 3,
while Vaskovich was released after seventy-two hours of detention. The
charges against Syverinets and Vaskovich stem from allegations that during
the April 2 commemorative fair, a group of protesters led by Syverinets
forced artists off the stage, sang songs, shouted slogans and broke a microphone.
On the basis of eyewitness interviews and television footage, these allegations
appear to be unfounded. Moreover, such offenses are amply covered either
under Article 201 (1) of the criminal code ("petty hooliganism") which
carries a much less severe penalty (a maximum one-year prison term) or
under Article 186 (3) (organization or active participation in group actions
violating public order), which carries a maximum three-year prison term
or two years of corrective labor or a fine. On May 27, the Commission for
Juveniles under the District Executive Committee of Marina-Gorka handed
down a warning to Vaskovich. Human Rights Watch fears that there is every
likelihood that a political show-trial like that of Shidlovsky and Labkovich
will be repeated in the case of Syverinets.
Police treatment of Vaskovich
during his arrest and in custody violated Vaskovich's rights as a child,
which are guaranteed in the Convention on the Rights of the Child.114
Police bean and threatened him, denied him food, access to counsel and
to this parents, and held him with adult prisoners. Interviewed the day
after his release from custody following the April 2 incident, Vaskovich
told Human Rights Watch that the abuse started from the moment of his violent
detention:
When they grabbed us, they immediately
started to threaten us. They started to pull us by the hair. They threatened
that they would beat our heels. They said that my parents had abandoned
me, that they didn't want me anymore.115
At the police station, Vaskovich
was denied food and physically and verbally abused:
I was held in a cell and
was fed once in three days...only once, no more. That was on the second
day. They put me in handcuffs when they moved me from cell to cell, like
a criminal. On the last day [of detention] a policeman stood me against
the wall with my legs spread and hands apart, closed the door and started
to kick me around and said "I'm going to bash your head in, because you
don't like Russia!!"116
Such treatment is a clear
violation of the Convention, on the Rights of Child, which prohibits the
arbitrary arrest of children and requires that the detention of children
be limited to the shortest possible time. Article 37 (b) of the Convention
states:
No child shall be deprived
of his or her liberty unlawfully or arbitrarily. The arrest, detention
or imprisonment of a child shall be used only as a measure of last resort
and for the shortest appropriate period of time (emphasis added).
Article 37 (c) of the Convention
requires states to treat minors in custody with respect and "in a manner
which takes into account the needs of persons of their age." Vaskovich
was held with adult prisoners on the second day of his detention. Article
37 (c) further states that children in detention must be separated from
adults and that they have the right to "maintain contact with his or her
family through correspondence and visits, save in exceptional circumstances."
Clearly, the way in which the police and men in plainclothes abused Vaskovich
can in no way be construed as respectful or fitting for an adult, let alone
a fifteen-year-old boy. Vaskovich gave Human Rights Watch this example
of his wilfully negligent treatment in custody by police:
I said to them several times
that my stomach hurt and that I needed something to eat. The policeman
said to me "If your stomach hurts, how come you went to the demonstration?!
So sit down!"
In violation of the Convention's
Article 37 (d),117 Vaskovich was not granted
access to legal counsel and was granted no opportunity to contest his detention,
as stipulated under Article 220 (2) of the Belarusian code of criminal
procedure.
Article 40 b (4) of the convention
stipulates that all children alleged to have infringed penal law "not...
be compelled to give testimony or to confess guilt." Vaskovich told Human
Rights Watch that unidentified police officers attempted to extract a compromising
statement from him against Syverinets:
When I was in the cell, they
called me for questioning and took me to an office. There were four young
men in leather jackets with closely cropped hair. The first time, they
said "If you help us, we'll help you." They wanted me to say something
against Pavel Syverinets. They threatened me, that if I didn't say something
against him, I would be sentenced to seven years in jail. They wanted to
put something else of a criminal nature on Pavel Syverinets. [T]hey questioned
me at night, on the first day...on Thursday night at 4:00 a.m.
Human Rights Watch fears
that of arbitrary arrests at demonstrations, in particular the targeting
of the Youth Front, will lead to repeated violations of children's rights.118
We consider the actions by the authorities, in particular the arbitrary
arrests during and following demonstrations, to put the juvenile participants,
legitimately exercising their right to freedom of assembly and association,
in danger of physical and verbal abuse and intimidation. Further, such
minors who are members of the Youth Front and who run afoul of the law
face unduly punitive treatment at the hands of the law-enforcement agencies
and the courts.
Viktor Gonchar and Andrei
Klimov
On January 29, 1997 (shortly
after the November 1996 referendum), a group of deputies to the disbanded
Thirteenth Supreme Soviet established a special investigation "commission"
to examine alleged constitutional violations by the President Lukashenka.
The commission set out to assess whether there were legal grounds to impeach
President Lukashenka. As an unofficial body, its findings, decisions and
resolutions had no legal force, yet Belarusian law enforcement brought
criminal charges against all of the commission's members including Viktor
Gonchar, its leader, and Andrei Klimov.
The commission reportedly
analyzed 156 decrees that were allegedly illegal or that violated the constitution,119
characterized the November 1996 referendum as a "seizure of state power,"
and concluded that the president would be impeached. These findings were
widely distributed to state agencies and foreign embassies.120
In July 1997 the Belarusian
procuracy brought criminal charges against Viktor Gonchar and all the other
commission members under Article 128 (2) of the criminal code - slander
linked with accusations of an especially grave crime - which carries a
maximum sentence of five years of imprisonment. After the criminal proceedings
were announced, the investigation began. Gonchar told Human Rights Watch:
Bearing in mind my status as
a Supreme Soviet deputy [sic], I naturally informed the procuracy of the
Republic of Belarus I would only give an account of the commission's activities
to the Supreme Soviet....A decree was then issued compelling me to come
for questioning after this refusal...and the police forcibly took me to
the Belarusian prosecutor for questioning. The same day the prosecutor's
office conducted a search of my apartment under the pretext of searching
for documents related to the work of the commission.121
The search failed to produce
any incriminating materials, and, although according to Gonchar the case
remains open, there have since been no arrests or prosecutions of commission
members under this article.
Andrei Klimov is a successful
entrepreneur. Through profits from his housing construction business, he
founded a bank and a newspaper, both of which carried his name. On February
10, 1998, Klimov began distributing a letter under his signature - summarizing
the commission's findings - to the procurator, the head of the police department,
the head of the tax inspectorate, and the head of the local government
in every district of Belarus.
The day after the letter
was distributed, on February 11 - just after Klimov and his wife, Tatiana
Klimova, had left their home - three men in plainclothes who identified
themselves as Interior Ministry employees emerged from a parked car and
detained them both.122 Tatiana was later released
without charge. Klimov was charged under Article 91 of the criminal code
- embezzlement on an especially large scale - and Article 151 - carrying
out entrepreneurial activities without a licence.
While Human Rights Watch
is not in a position to comment on the allegations,123
three factors point to the political nature of the case. First, and most
obvious is the timing of the arrest. Second, the commission met mostly
at Klimov's business office, triggering regular reviews of the company
throughout 1997 by "the security service control committee, and other investigative
organs."124 Finally, law enforcement authorities
refuse to release Klimov on bail - as of this writing he is entering his
fourth month in prison - despite provisions in law for conditional pre-trial
release.
Non-Criminal Sanctions
The Belarusian government
has effected non-criminal sanctions - in the form of dismissals from teaching
posts and expulsions from university - against activists for their role
in demonstrations and for political graffiti. It has also disbarred two
attorneys who defended people charged with graffiti, and for participating
in an unsanctioned demonstration or other possibly politically motivated
charges.
Repercussions at University
and Schools
Human Rights Watch has documented
seven cases of politically motivated dismissals, warnings and expulsions.
Such actions violate basic rights and chill intellectual inquiry. Experience
has repeatedly demonstrated that academic freedom - and the spirit of critical
inquiry it embodies - cannot flourish where members of the academic community
must fear censorship and politically motivated reprisals for expression
of their views. Such conduct violates Article 26 of the ICCPR, which bans
discrimination on any ground, including political opinion.
Liubov Lunyova works
for Minsk Spring 96, a non-governmental human rights organization, and
had since 1992 been a lecturer on a fixed-term contract in the ancient
history and middle ages history department of the Belarusian State University
(BGU) in Minsk. She lost her job there and has essentially been barred
from teaching, most likely for her activism, in particular, for organizing
demonstrations.
In early January 1998, worried
that her contract was soon to expire, Lunyova approached the dean of the
university in early January 1998, who reassured her that her contract would
be renewed. However, within weeks Lunyova lost her job, and subsequently
was unable to gain employment in the education sector. She explained what
she believes were the political motives behind this to Human Rights Watch:
[T]he history department is
very politically active and a large number of [the history faculty] students
go to demonstrations. [Since I am] a human rights activist, all the students
who are summoned to the dean's office came to me in the history department
for advice. I also attend all of these demonstrationsand walk in the front
row, and moreover, I organized a couple of demonstrations, for example
on December 10 - International Human Rights Day - which was shown on TV,
and naturally when I went to work [following the demonstration] everyone
commented that I was so open in expressing myself and that I have no fear.
A journalist from the Times [of London] said to me "Strange
that you are involved in such actions and you haven't been fired." I said,
"well yes," and a month later they did.125
Lunyova said she believed
President Lukashenka is directly involved in pressuring university heads,
including through a warning to university leaders at a January 14, 1998
meeting:
On Belarusian TV they showed
a clip from a meeting at which Lukashenka said, pointing his finger at
our rector, "Incidentally, your lecturers are using the auditorium for
promoting their views, instead of to teach." After that many rectors thought
that they could lose their jobs. Following that meeting of the [BGU] rectors,
[President Lukashenka] summoned the deans and evidently gave them some
kind of order. He warned the rectors, "Whoever's students are most often
present at demonstrations will be the first to be fired."126
While Lunyova was not present
at this meeting, she discussed in detail the security provisions for the
president surrounding the meeting, noting that the entire area around the
university had been cordoned off, and that students had been sent away
for the day.
Shortly afterward, Lunyova
learned that her contract was not, after all, going to be renewed. When
she approached the dean of BGU to demand an explanation, Lunyova told Human
Rights Watch that:
He said that he couldn't do
anything [there was no money for my salary] although he had a good relationship
with me. The personnel department told me that there was money to fund
two positions. Many lecturers came to me when I said that I was leaving,
took me by the hand and said that they sympathized. The men said that they
admired me but they were afraid themselves, they have families, children.127
Lunyova later learned that
despite being told there was no money to keep her on, the department has
since hired a number of new lecturers. She explained that her dismissal
was not just the end of her employment at BGU, but that in effect her career
in education could be over.
Our female students were working
in school number 156 on Yanki-Mavra street and they called and asked
me to come. I went to the school and they said to me "We'll take you first
thing tomorrow, we need someone." I went to meet the director of the school.
The director said "If I give you a job, then I'll be fired within half
an hour." He apologized for a long time and said that he has no political
opinion and...said that he would call me, but didn't, because I think he
is afraid. I understood that the education system is a closed road for
me.128
Myacheslav Grib.
Following the dissolution of the Thirteenth Supreme Soviet in November
1996, Myacheslav Grib, former chair of that body, worked as a lawyer until
he was banned from doing so by the government in July 1997. He is currently
head of the international relations department and secretary of the central
committee of the social-democratic party, Narodny Hramada (People's
Assembly). On October 1, 1997, he started work as a lecturer in law at
the Institute of Law, teaching criminal law and criminal procedure to second-
and third-year students. A semester passed without incident, but at the
end of 1997 the rector of the Institute of Law called Grib to his office
and told him, "We need to decide something, because they are making my
life impossible." Grib told Human Rights Watch:
In the beginning there were
no problems, because I hadn't advertised the fact that I was teaching at
an institute, but it was impossible to keep that secret because the students
studying there talked about who was teaching them etc. Then there was talk
and this reached the presidential administration. [The Institute] received
inspection after inspection, from the tax inspectorate, from the Ministry
of Education....In the end they [the government] said to the rectorate
"If you continue to employ [Grib] we will close down the institute." I
didn't want to put my interests above the interests of the institute, so
that the students and lecturers [would] suffer. I said that I understood,
gathered my papers...and left.129
The education sector is closed
to Grib, who is now unemployed:
I am not working at the moment,
because I can't find a job....In principle I could work as a lecturer...when
I started to teach, other institutes found out, and I received three or
four invitations to work in my spare time...But as soon as I started to
teach - inspections, inspections and blunt conversation...As soon as I
was dismissed, all the invitations evaporated.130
Leonarda Mukhina is
the mother of Aleksandr Mukhin and is politically active in the BPF. She
is also a teacher at high school number 37, the last remaining Belarusian
language school in Minsk's Central district. On March 13, just under two
weeks following the arrest of her son for writing political graffiti, Mukhina
became aware of a letter, allegedly from the parents of the pupils she
taught, complaining that she was using her lessons to indoctrinate their
children with her political viewpoints. Shortly thereafter, Mukhina was
told by the school's director and by the director of studies that "the
parents" no longer wanted her to teach their children. Mukhina explained
to Human Rights Watch what happened later:
[I]t later transpired that parents
amicably came to my defense and said that I was absolutely satisfactory,
that they were happy with the level of education that their children were
getting, therefore they are categorically against my being fired.131
The parents reportedly demanded
a meeting with representatives of the school's administration, which took
place on April 6. Liubov Lunyova attended the meeting:
[A] journalist from the Belapan
news agency, Gennady Barbarich, came in order to take part in the meeting,
and similarly a journalist from Radio Liberty, Eduard Tarlevsky also came.
When [Tarlevsky] took out his microphone, they saw that there was an outsider
and the administration became indignant and said that there would be no
meeting with journalists present. He then took out his recorder and said
"Please just tell me your surname and I'll leave. I am here at the editor's
request,I need to report that you wouldn't allow me in here." Then the
head (of the regional education department of the Minsk central region)
[Yury E. Kanzas] went up to this journalist, grabbed him and with all his
strength threw him over the table. He fell and hit the ground heavily,
the microphone hit the floor and was damaged. This took place in front
of the parents at the parents' meeting, it was yesterday right at the beginning
of the meeting. One of the mothers started to feel ill, the scene was of
course awful. The parents were sitting in a half circle and the head of
the regional educational department, the educational system, leaped on
him...that's how he treated the journalist.132
At the meeting, the parents
reportedly demanded that Yury E. Kanzas show them the letter they had purportedly
written complaining about Mukhina's teaching, which he failed to do. Mukhina
subsequently brought a civil suit against the school's directors for slander
and in defense of her professional honor and dignity. On April 23, 1998,
Judge Zlobich rejected her claim, and on May 28 the Minsk City Court upheld
his decision. As of this writing, Mukhina continues to teach at school
number 37 and reportedly intends to appeal the city court's decision to
the Supreme Court.
Ales' Mukhin and
Andrei Gilevich, both aged eighteen, and Sergei Murashko,
aged seventeen, are all first-year students at the Minsk Information and
Radio-Technical Institute and are members of Youth Front. On February 28,
1998, police arrested the three teenagers for allegedly spray-painting
Zhiyvie Belarus and other slogans, including phrases of a political
nature, along with painting a picture of a white-red-white flag on a bus-stop
shelter after attending a rock concert. The three had allegedly been drinking
beer. Police released Murashko soon after, but held Mukhin and Gilevich
until March 3, for seventy-two hours. All three were charged with hooliganism
under Article 201 (1) of the criminal code, which carries a maximum sentence
of one year of imprisonment or one year in a labor camp and/or a fine.
On March 23, Mukhin and Gilevich
received a letter from the rector of the university, V. M. Ilyin, explaining
that they were being expelled, before their trial had even begun. The letter
cited information received from the Central Region Police Station on the
pair's alleged activities. An activist with Minsk Spring 96, Liubov Lunyova
has been working on the case. She told Human Rights Watch what happened
when she went to the university to complain:
[I]t turned out that [the rector]
was ill and the deputy rector was in some kind of conference. We went to
the deputy rector of student administration, Nikolai Kolinkovich. He said
to us that yes, we expelled them, because they disgraced the Belarusian
people and the honor of our university. I said that there hadn't yet been
the court hearing and that the court could acquit them. He replied "They
won't be acquitted. They'll be sentenced to jail. They are criminals, and
there is no place here for criminals." Then we asked how did they know
that they had done something. "You don't know that they are guilty, the
investigation is still ongoing." He said to us that the dean went to the
police, the investigator showed him all the documents [related to the case],
showed him the accusation sheet, showed him the evidence....A lawyer wouldn't
be allowed to see any of that! It's a so-called "secret of the investigation."...The
investigator grossly violated the law, he revealed confidential information;
moreover that they have now been expelled from university, [it's] none
other than pressure on the investigation, and pressure on the court. They
have already named them criminals....133
Mukhin and Gilevich were
expelled before their guilt has been proven in a court of law. Further,
their membership in the Youth Front and the fact that some of the slogans
they were alleged to have written were political in nature appear to have
been the primary motivating factors in their expulsion. Under the institute's
charter, students may be expelled for "violating norms of conduct in a
public place." It is unclear, however, how often this point isenforced,
in particular with reference to graffiti. Deputy rector Kolinkovich told
Human Rights Watch merely that students were expelled "all the time" for
infractions in student dormitories or for poor academic performance. 134
On May 27, 1998, Judge Brogin
at the Central district court sentenced Mukhin, Gilevich and Murashko to
one year of imprisonment suspended for one year under Article 201 (1) of
the criminal code.
Ina Pimenava is a
nineteen-year-old student and the wife of Alexei Shidlovsky. Following
her husband's arrest on August 25, 1997, Pimenava was subject to numerous
"visits" at home and at the university by KGB officials who repeatedly
questioned her and coerced her into making a false rape allegations against
a leading opposition figure.
Pimenava told Human Rights
Watch that on December 5, she was summoned to her university, the BGU journalism
faculty, where she was told that she was "one step away" from being expelled,
ostensibly for missing class. The real motive, however, appears to have
been for her husband's political activity and the harassment of the KGB.135
As of this writing, Pimenava has continued her studies without further
hindrance or harassment.
Disbarments
In 1998 and 1998, the Ministry
of Justice disbarred at lease three attorneys who themselves are politically
active or who defend politically sensitive cases. A presidential decree
placing the bar association under much tighter Ministry of Justice control
has served to facilitate these disbarments. In "Crushing Civil Society,"
Human Rights Watch expressed alarm that the decree (Presidential Decree
No. 12 on Several Measures on Improving the Practice of Lawyers and Notaries
in the Republic of Belarus) could lead to the exclusion of independent
lawyers from practicing law in Belarus. This decree has served to perform
precisely that function.
One Belarusian lawyer described
a statement on lawyers by the deputy minister of justice, broadcast in
a radio address, in the following way:
[L]egal assistance on the territory
of Belarus can only be given by lawyers [who are members of] Belarusian
bar associations, no other lawyers can undertake legal practice on the
territory of the Republic of Belarus. During this [address] he quoted a
famous presidential decree, and after that [cited] our renewed law on the
bar in the Belarusian republic...in which private lawyers were abolished
in the republic. All lawyers were driven into the bar associations...which
are strictly subordinate to the Ministry of Justice. The Ministry of Justice
will now determine the membership [of the associations] because the ministry
is now carrying out the issuing of licences and the taking of qualifying
exams....Entrance into the profession will be determined by the Ministry
of Justice. The Ministry of Justice has the right to discipline lawyers,
all the way up to the removal of their licence to practice law. There are
no fines, no warnings whatsoever. They can immediately strip you of your
licence for any misdemeanor, [and] defining the degree of a misdemeanor
- flagrant or otherwise - is extremely subjective.136
Garry Pogonyailo
is a leading defense lawyer in Belarus. In recent years he has defended
some of the highest-profile political cases in the country. He told Human
Rights Watch:
Linked with my professional
activities on a range of issues [such as] cases of a clearly political
character: e.g. the case of poet Slavomir Adamovich, the case of Pavel
Sheremet and the group of ORT journalists, the case of [Tamara] Vinnikova,
the ex-chair of the National Bank of Belarus, and a range of other cases,
I started to be openly persecuted....137
In 1997, Pogonyailo received
two reprimands from the Minsk city bar association. The first, which he
received on May 20, related to comments Pogonyailo made to the press concerning
the heavy-handed treatment of former National Bank chair, Tamara Vinnikova,
who was arrested on January 14, 1997 on charges of embezzlement and at
the time was being held in the Minsk KGB pre-trial detention facility.
Pogonyailo protested the fact that Vinnikova, a woman who was suffering
from poor health, was forced to undergo a medical examination in the presence
of male prison guards and a female investigator. Pogonyailo told Human
Rights Watch that in response to the examining doctor's request that the
male guards leave the room, investigator Pesenko stated that Vinnikova
"is not a human being, she is a prisoner." Pogonyailo protested that Vinnikova's
treatment was unduly harsh and degrading.
Pogonyailo received a second
reprimand in September for protesting procedural violations in the case
of ORT journalist Pavel Sheremet. Sensing that he was about to be expelled
from the ranks of the Minsk city bar association, and thus prevented from
practicing law, Pogonyailo decided to leave the bar association voluntarily
before such a decision could be made. The Ministry of Justice intervened
and issued an antedated decree repealing Pogonyailo's departure, thus reinstating
him in the Minsk city bar association. Pogonyailo told Human Rights Watch
that the Ministry of Justice was no doubt keenly aware of the enormous
amount of publicity the Sheremet affair had generated, and therefore feared
the outcry that would ensue if Pogonyailo were effectively barred from
legal practice. However, on March 24, 1998, following the rejection of
Sheremet's and Zavadsky's appeal, the Ministry of Justice rescinded its
decision to reinstate Pogonyailo, effectively barring him from practicing
law.
Pogonyailo decided to join
a Russian bar association in order to continue practicing law. He told
Human Rights Watch:
[A]s soon as I left the Minsk
city bar association, I took steps toward joining one of the Russian Federation
bar associations and was accepted. I passed a qualifying examination and
the Presidium of the Inter-territorial Collegia of Lawyers [of the Kollegia
Advokatov Rossiskoy Federatsii (The Bar Association of Lawyers of the
Russian Federation)] in Moscow passed a decision accepting me. This association
is in the ranks of the guild of Russian lawyers and I became a member of
the international association of the lawyers' union, attained the status
of a Russian lawyer and became a member of the international union of lawyers.
This means that according to the law, according to international agreements,
which Belarus has ratified, I have the right to undertake legal practice
[in Belarus], but as a Russian lawyer.
I see no legal basis for
obstructing [my giving] professional legal assistance here in Belarus,
but considering the authorities' attitude toward me, I understand that
anyway they will not allow me to take part in a range of cases and that
they will hinder me.138
Pogonyailo's fears proved
to be well-founded. On April 15, 1998, Belarus authorities barred him from
representing Youth Front leader, Pavel Syverinets.139
On June 2, 1998, following a recommendation by the Qualification Commission,
the Ministry of Justice stripped Pogonyailo of his licence to practice
law on the grounds that byrepresenting Pavel Syverinets, he violated presidential
Decree No. 12. Under the decree only members of the officially sanctioned
lawyers' bar associations may practice law.
Nadezhda Dudareva
is a prominent defense lawyer in Belarus and is noted for having represented
numerous clients connected with the opposition movement and for her outspoken
criticism of the government. On February 25, 1998, the Ministry of Justice
revoked her licence to practice law. Human Rights Watch believes that there
is a link between the types of cases Dudareva chooses to defend, in particular
those of a political nature, and the ministry's decision to revoke her
licence. Most recently, Dudareva had defended teenagers Vadim Labkovich
and Alexei Shidlovsky, in a politically-charged case involving graffiti
and the hanging of the white-red-white flag. The official reason for her
disbarment was that she violated lawyer's ethics, by allegedly putting
pressure on a judge. The claim stems from an incident that took place in
the town of Orsha in August 1997, when Dudareva told a judge she would
turn to the press to highlight what she felt was an unjust decision.140
The timing of the Ministry of Justice's decision to revoke Dudareva's licence,
however, points to a political motive, as it occurred the day after the
Labkovich-Shidlovsky trial concluded. Human Rights Watch also considers
that Dudareva's clientele and her outspoken criticism of the judicial process
also contributed to the Ministry of Justice's decision.141
Dudareva further believes
that the fact that she undertook such political cases free of charge -
something that the Minsk city bar association forbids its members to do
- contributed to the removal of her licence:
I undertook such [political]
cases free of charge, and this was quite well known...it's my right to
charge for my work or not. Members of the city lawyers' bar association
are not allowed to work free of charge - it's forbidden. This was one of
the ways to deprive these people of the services of a lawyer and thus they
dismissed me to prevent me from working anymore. That's the main reason.
It was also done to eradicate independent lawyers from the Republic of
Belarus.142
Myacheslav Grib143
is, by education, a lawyer and received a licence to practice law in 1996.
After the dissolution of the Thirteenth Supreme Soviet, he registered as
a lawyer with the Minskaya Gorodskaya Kollegiya Advokatov (Minsk
City Lawyers' Bar Association); after Presidential Decree No. 12 came into
force, Grib wascompelled to retake the legal practice examination on July
1, 1997 in order to retain his licence to practice law. He passed the exam,
but his licence was not renewed. Grib explained to Human Rights Watch:
The Minister of Justice issued
a ruling, refusing to issue me a licence because on March 15, 1997, I took
part in a demonstration and rally marking the third anniversary of the
adoption of the 1994 constitution, which I personally signed as commissioned
by the Supreme Soviet.144
According to reports, authorities
granted permission for the rally but not the march.145
Further, according to Article 9 of Decree No. 5 on Gatherings, Meetings,
Street Marches, Demonstrations and Pickets, demonstrations must not interfere
with traffic and the demonstrators must march only on the sidewalk. On
March 15, Grib explained that due to the number of participants, the demonstrators
were unable to walk on the sidewalk alone:
[I]t was simply not possible
to walk on the sidewalk, even if we had wanted to, because there were around
4 to 5,000 people and to accommodate them on two narrow sidewalks on the
Yakub Kolas square was simply impossible, therefore we walked on the sidewalk
and on the road.146
This technically represents
a violation of Article 9, however given the circumstances it may have been
unavoidable. Moreover, the size of the fine levied against Grib suggests
a political motive. On March 20, under Decree No. 5, the Partisan District
Court fined Grib 20,000,000 Belarusian rubles [then approximately U.S.$800],
which, he told Human Rights Watch, was at the time the largest fine levied
against a Belarusian citizen.147
The court held Grib responsible
for organizing and actively participating in an unauthorized march that
violated public order and disrupted traffic. Grib contests the allegation
that he was the demonstration organizer, claiming that he signed the original
application to hold the demonstration that was denied and did not organize
the demonstration that actually took place.
Human Rights Watch views
the Ministry of Justice's refusal to renew Grib's licence to practice law
as motivated chiefly by political reprisal and against the spirit of the
United Nations Basic Principles on the Role of Lawyers, which guarantees
the rights of lawyers to "freedom of expression, belief, association and
assembly."
The Anti-terrorism Decree
On October 24, 1997, Presidential
Decree No. 21 on Urgent Measures Against Terrorism and Other Especially
Dangerous Violent Offences entered into force. The passing of the decree
followed a rash of shootings and explosionsin 1997.148
On May 3, 1997 the head of the presidential press service stated that the
opposition, in the form of the BPF, was capable of forming terrorist groups
whose aim is to destabilize the situation in the republic.149
Human Rights Watch recognizes
the state's need to take measures to guarantee public security but notes
that these measure must be clearly articulated in law and must not come
at the expense of internationally recognized civic rights. Human Rights
Watch is concerned that Decree No. 21 is vaguely worded and that, given
current circumstances, could for political reasons lead to prejudiced prosecutions
against persons associated with the opposition movement.
Human Rights Watch is concerned
that the decree could facilitate the prosecution of opposition figures
on the extremely serious charge of "terrorism" for what are either activities
protected by international human rights law or minor public order infractions.
The decree provides a sweeping definition of "terrorism" under Article
1:
Terrorism is understood as the
use of violence or threats of violence with the aim of violating public
security, destabilizing social order, intimidating the population, affecting
decision- making by state bodies, or hampering political or other public
activities.
Malleable terms, such as
"threats" of violence with the aim of "destabilizing the social order"
or "affecting decision-making by state bodies" or "hampering political
or other public activities" appear tailored to elevate street gatherings
or protests into grave criminal acts, depending on the authorities' subjective
perception of "threat." The examples of "manifestations of terrorism" given
elsewhere in Article 1 appear to bear this out:
[V]iolence or threat of violence
with regard to an official, a policeman, a volunteer civilian policeman,
a serviceman, or other person, in connection with his/her performance of
official activity or fulfillment of public duty.
International definitions
of terrorism, for example, would not embrace resisting arrest or talking
back to the police, or even violent or threatening efforts to obstruct
an officer performing in the line of duty.150
Given the frequent scuffles at political demonstrations, often initiated
by the police themselves, the potential for political abuse of such a law
is great. Article 8 of the decree, which permits an investigative officer
and the prosecutor to authorize detention ofterrorism suspects for up to
thirty days without charge or access to a lawyer is also cause for concern.
Article 9 (4) of the ICCPR stipulates that [a]nyone who is deprived of
his liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not
lawful." The term "without delay" has been interpreted as entailing a matter
of days, not a month. Article 220 of the Belarusian criminal procedure
code also entitles an accused to challenge the legality of detention.151
An extended period of detention without judicial supervision in terrorism
cases, such as thirty days, increases the likelihood of coerced testimony
and physical or psychological abuse, which is already a problem in ordinary
criminal cases involving political protesters, as described earlier. Derogation
from the protection of ICCPR Article 9 is permitted "in time of public
emergency which threatens the life of the nation and the existence of which
is officially proclaimed,"152 but no such emergency
has been proclaimed in Belarus, nor would the sporadic incidents that led
to the adoption of the decree warrant such a step.
Article 7 of the decree
requires "as a rule" the detention of terrorism suspects before trial "to
secure their appearance in court." Human Rights Watch is concerned that
this provision, particularly when applied to political protesters, would
be a direct violation of Article 9(3) of the ICCPR which states "It shall
not be the general rule that persons awaiting trial shall be detained in
custody...."
The decree at Article 2 also
provides for the death penalty for those convicted of terrorism. Human
Rights Watch opposes the use of the death penalty without reservation in
all cases because it is inherently cruel punishment, because it is susceptible
to discriminatory application, and because all legal systems are capable
of error and miscarriages of justice which cannot be remedied once this
extreme penalty is executed.
***
106 The
white-red-white horizontally striped flag is the pre-Soviet national flag
of Belarus. As part of the Soviet Union, Belarus was represented by a red-green
flag. Following the break-up of the Soviet Union, the Twelfth Supreme Soviet
in September 1991 reinstated the white-red-white flag as the national flag
of the country, however, in 1995, President Lukashenka replaced it with
the Soviet-era red-green flag.
107 Belarus
has been a state party to the ICCPR since 1973.
108 Although
Shidlovsky's beating was confirmed to Human Rights Watch researchers in
an interview with his wife, Ina Pimenava, on December 6, 1997 - an allegation
that Shidlovsky himself repeated in court - presiding Judge Lavrev dismissed
the allegation, citing Shidlovsky's failure to lodge a formal complaint
at the time the beating was alleged to have taken place. Human Rights Watch
regards as negligent Judge Lavrev's failure to consult prison treatment
ward records to seek corroboration of this allegation.
109 This
is a standard practice in criminal trials in C.I.S. countries.
110 For
example, Zhendik stated that he did not see anyone writing on the library
wall, whereas Ilyushin claimed he saw Shidlovsky in the act of writing.
Judge Lavrev ignored defense attempts to explore this contradiction.
111 Labkovich
admitted in court that he had written some slogans, such as Svaboda
[Freedom] and Zhivye Belarus [Long Live Belarus]; Shidlovsky denied
writing any slogans at all, but said he pointed out government administration
buildings to the others.
112 Article
26 of the ICCPR forbids discrimination on the grounds of, among other things,
"political or other opinion."
113 Television
coverage by the Russian NTV network on April 2 depicted a group, including
Syverinets, singing, but showed no evidence of violence at the fair. One
eyewitness, who declined to be identified, told Human Rights Watch that
Syverinets attempted to sing using a microphone but that it had been switched
off.
114 Belarus
signed and ratified the Convention in 1990. Under international law, a
child is a person who has not reached the age of majority according to
domestic legislation. In Belarus the age of majority is eighteen.
115 Human
Rights Watch interview with Dmitri Vaskovich, Minsk, April 6, 1998.
116 Ibid.
117 Article
37 (d) states: Every child deprived of his or her liberty shall have the
right to prompt access to legal and other appropriate assistance as well
as the right to challenge the legality of the deprivation of his or her
liberty before a court or other competent, independent and impartial authority
and to a prompt decision on any such action.
118 See
Appendix A for a list of Youth Front members detained at demonstrations.
119 Human
Rights Watch interview with Viktor Gonchar, April 7, 1998.
120 An
excerpt of a letter on the commissions findings, written by Andrei Klimov,
reads: "In the first half of 1998, the President of the Republic of Belarus,
A. G. Lukashenka will be dismissed from his post and the state power structure
that he created will be declared illegal. Taking into account that President
Lukashenka's implementation of powers, according to the constitution adopted
in the November 1996 referendum, represents a direct seizure of state power,
all officials are obliged to refrain from fulfilling decrees and orders
of the president and laws of the National Assembly." Letter reprinted in
Naviny (The News) newspaper, Minsk, February 18, 1998.
121 Human
Rights Watch interview with Viktor Gonchar, April 7, 1998.
122 Human
Rights Watch interview with Tatiana Klimova, Minsk, February 19, 1998.
123 Klimov's
lawyer, Vera Stremkovskaya, a well-known defense lawyer, claims that, with
regard to the charge of building without a licence, Klimov did in fact
obtain a licence, but two months after the commencement of that particular
construction project.
124 Human
Rights Watch interview with Viktor Gonchar, Minsk, April 7, 1998.
125 Human
Rights Watch interview with Liubov Lunyova, Minsk, April 7, 1998.
126 Ibid.
127 Ibid.
128 Ibid.
129 Human
Rights Watch interview with Myacheslav Grib, Minsk, April 6, 1998.
130 Ibid.
131 Human
Rights Watch interview with Leonarda Mukhina, Minsk, April 7, 1998.
132 Ibid.
133 Human
Rights Watch interview with Liubov Lunyova, Minsk, April 7, 1998.
134 Human
Rights Watch telephone interview with Nikolai Kolinkovich, June 26, 1998.
135 Human
Rights Watch and Memorial interview with Ina Pimenava, Minsk, December
6, 1997.
136 Human
Rights Watch interview with Garry Pogonyailo, Minsk, April 6, 1998.
137 Ibid.
138 Ibid.
139 RFE/RL
Newsline vol 2, no. 73 Part II, April 16, 1998.
140 Human
Rights Watch interview with Nadezhda Dudareva, Minsk, April 7, 1998. Dudareva
was first charged with violating article 172 (1) of the criminal code in
relation to this incident. The charge was later reduced to that of violating
lawyer's ethics.
141 On
December 18, 1997, Dudareva was charged with contempt of court following
comments she made to Judge Nikolai Samoseiko during the November 15, 1997
trial of five BPF members: Aleksandr Bondarev, Grigory Kiyko, Anatol' Sorokin,
Aleksandr Kovel', and Vladimir Liysko. The five were arrested following
a March 23, 1997 demonstration at which demonstrators and police clashed.
In his ruling, Judge Samoseiko
reportedly refused to acknowledge the existence of defense witness testimony
that might otherwise have contributed to an acquittal. Dudareva subsequently
confronted Judge Samoseiko with her doubts concerning his objectivity.
Dudareva allegedly argued that Judge Samoseiko's objectivity was weakened
by the fact that he was appointed directly by the president - as are all
judges in Belarus. She later repeated that charge in an interview with
the independent Russian television network, NTV.
Dudareva was charged with
contempt of court under Article 166 (3) of the administrative code of Belarus,
which carries a maximum sentence of fifteen days of imprisonment and/or
a fine. On December 23, Dudareva was found guilty and fined 200,000 Belarusian
rubles (U.S.$5).
142 Ibid.
143 For
an account of Grib's dismissal from academia, see above.
144 Human
Rights Watch interview with Myacheslav Grib, Minsk, April 6, 1998.
145 Interfax
news agency, Moscow, cited in WNC, March 20, 1997.
146 Human
Rights Watch interview, Minsk, April 6, 1998.
147 An
appeal court later reduced the fine to 6,000,000 Belarusian rubles [approximately
U.S.$240].
148 These
incidents included: on April 1, submachine gun fire on the Russian embassy
(Interfax News agency, Moscow, cited in WNC, April 2, 1997); on April 4,
a minor explosion at a private residence in Minsk by bomb that was foiled
in Lithuania (Itar-Tass news agency, Moscow, cited in WNC, September 5,
1997); on April 28, an explosion at a gas compressor station in Minsk region
(Interfax news agency, Moscow, cited in WNC April 28, 1997); on April 30,
an explosion on the Torzhok-Minsk-Ivantsevichi gas pipeline (Interfax news
agency, cited in WNC, April 30, 1997); on September 10, an explosion in
the Sovetsky and Minsk District People's Court building (Minsk Radio, Minsk,
cited in WNC, April 30, 1997); and on October 1 the murder by radio-controlled
explosion of Yevgeny Mikolutsky, head of the Mogilev State Control Committee,
in the stairwell of his apartment block (Interfax news agency, Moscow,
cited in WNC, October 7, 1997. Mikolutsky's wife also suffered serious
injuries in the attack.) The so-called Belarusian Liberation Army claimed
responsibility for the gas pipeline and compressor station attacks and
the shooting at the embassy; a group calling itself "New Order" claimed
responsibility for the private residence explosion. Although no group has
claimed responsibility for the murder of Mikolutsky, Lukashenka has publicly
accused Vasilly Leonov, the former Agriculture Minister, and collective
farm manager Vasilly Starovoitov of being behind the attack (both were
arrested in November 1997 on corruption and embezzlement charges).
149 Russian
NTV television, Moscow, cited in WNC, May 3, 1997.
150 Terrorism
is generally defined in the context of hijacking or attacks against aircraft,
ships, or diplomats, or hostage-taking where the purpose is to compel a
third party to perform or abstain from an act. See, e.g. the 1970 Convention
for the Suppression of Unlawful Seizure of Aircraft, the 1971 Convention
for the Suppression of Unlawful Acts Against Safety of Civil Aviation,
the 1973 Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, Including Diplomatic Agents, or the
1979 International Convention Against the Taking of Hostages.
151 This
right is delineated under Article 220 (1) of the Criminal Procedure Code
- The procedure to appeal an arrest or extension of the period of detention
to court - and Article 220 (2) - The judicial verification of the legality
and basis for arrest or extension of the period of detention.
152 ICCPR
Article 4(1) and (2).
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