Lawtrend Monitor # 1-2012 Human Rights Magazine (Belarus)

HUMAN RIGHTS MAGAZINE

MONITOR

#1 - 2012 WHAT IS MONITORING? EXPERT OPINION ON THEORY AND PRACTICE Krassimir KANEV: “I understand human rights monitoring as a research of a particular segment of social reality through the prism of human rights standards” Elena TONKACHEVA: “Specialized, directional monitoring, held by a specific organization on separate categories of rights and freedoms, is topical and in high demand” FREEDOM OF ASSEMBLY AND RIGHT TO FAIR TRIAL IN BELARUS AMENDMENTS TO THE LAW “ON MASS EVENTS”: EXPERT OPINION OF THE VENICE COMMISSION AND THE POSITION OF THE BELARUSIAN OFFICIALS LESSONS ON FREEDOM OF ASSEMBLY IN BELARUS ANYONE CAN BE A MONITOR IN A TRIAL – WE’LL TEACH YOU HOW

IN PROPRIA PERSONA* I am happy to be honored with the right to present the readers the first issue of the Lawtrend Monitor.

I am writing these several lines for those who stay sympathizing with the Human Rights defense and who are not indifferent to the topic. Communication with like-minded people is anyway a useful and fascinating task. One more reason for my happiness is that the Monitoring group of Lawtrend, which has been at work for a year and a half, already has something to share with. A year and a half ago it was difficult for me to imagine that the monitoring, appeals and other human rights activities is a such captivating task that can be more than just work.

I couldn’t stay indifferent then – as well as now.

Starting our communication, I’d like to wish to all of us constructiveness in suggestions and objectiveness in conclusions. Enjoy your reading!

Mikhail Matskevich

Editors: Volha DAMARAD, Aliaxei KAZLIUK

Experts of the issue:

Design and layout: Ihar KORZUN

Aliaxei KAZLIUK Lawyer at the Legal Transformation Center (Lawtrend), human rights defender, expert in the sphere of the international human rights law, in particular, relating to the freedom of assembly, international mechanisms of human rights defense

Translation: Tatsiana TSYULIA Back cover: poster “Calendar for 8 years”, a reminder of the political prisoners in Belarus, author Yulia LIASHKEVICH

Mikhail MATSKEVICH Human rights defender, head of the Monitoring group Lawtrend, author of the training program for observers in court proceedings

Experts of the issue: Krassimir KANEV – expert on human rights monitoring, head of Bulgarian Helsinki Committee, teacher of human rights courses in Sofia University.

Aleh FIADOTAU Lawyer, expert in the sphere of the constitutional law, international and European law, informational law, administrative process in Belarus

Elena TONKACHEVA – human rights defender, Chairperson of the Legal Transformation Center (Belarus), expert in issues of legal reform in the transition economy countries, human rights defence and advocacy

Volha DAMARAD Lawyer, expert in the sphere of the international law, international humanitarian law, criminal law, law on human rights

* In one’s own person

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LAWTREND MONITOR CONTENTS: LAWTREND MONITOR?

MEO VOTO Krassimir KANEV: HUMAN RIGHTS MONITORING SHOULD FOCUS ON THE SPECIFIC VULNERABILITIES IN EACH COUNTRY Elena TONKACHEVA: MONITORING SHOULD RESULT IN SOME DEFINITE CHANGES

IPSISSIMA VERBA Aliaxei KAZLIUK: THE MONITORING GROUP LAWTREND WAS A RESPONSE TO THE CHALLENGE

AD DISPUTANDUM Aliaxei KAZLIUK: FREEDOM OF ASSEMBLY IN BELARUS: OPINION OF THE VENICE COMMISSION

ACTA DIURNA Volha DAMARAD: ON DOLL PICKETS AND REAL LIABILITY Volha DAMARAD: YO-MA-YO! ARBITRARY DETENTIONS Volha DAMARAD: DETENTION OF TATSIANA-HATSURA YAVORSKAYA FOR A PICKET AGAINST DEATH PUNISHMENT

PROBATUM EST Mikhail MATSKEVICH, Volha DAMARAD: MONITORING OF COURT PROCEEDINGS: TRAINING AND PRACTICE

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#1

LAWTREND MONITOR? The product you are reading now is titled Lawtrend Monitor.

Let us explain the title. “Lawtrend” – this is what we call our organization between ourselves – The Legal Transformation Center. “Monitor” hints at our habit to collect objective and sufficient facts, or to do monitoring, upon which we make our conclusions.

Why we do this?

This publication has been planned as a monthly journal on human rights, made by jurists, but not only for jurists. We want to tell about the most acute problems in the sphere of human rights in Belarus, the problems that we are monitoring and which we are trying to solve. And to tell adequately and objectively, explaining some legal nuances. It turned out that the founders and the experts of the journal are mostly international lawyers, so we will often refer to the international standards in the sphere of human rights. Moreover, we will try to include opinions of competent international lawyers, both scholars and practitioners. Our coordinate system is the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and other documents which must be observed by all states - in both laws and their enforcement, by judges, officials, and policemen.

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Will we write about all problems of human rights in Belarus?

Perhaps, no, not now – at present we will consciously restrict to the questions of monitoring of the right to fair trial in matters regarding the freedom of assembly. To be more precise, we will deal with the question why it is so difficult in Belarus to express opinion publicly, by going out to the square with a flag or a poster, why it is so easy to be deprived of freedom for that, and what the pitfalls are on the way to restore justice in the Belarusian court.

Why the point is in the freedom of assembly and fair trial?

Where do we take information?

We write about the things that we are informed about. About the monitoring – because since 2010 we have had a stable Monitoring group; and, by developing this direction, we have been studying the theory of human rights monitoring, we have developed a set of instruments and methodology, and we have what to share with. About the criminal cases on December 19, 2010 – because we were present at all the 14 cases, documenting all what happened and then thoroughly analyzing this. About administrative cases – because, since December 2010 we have observed court proceedings, we have gathered more than 200 court decisions regarding participants of mass actions, we have compiled dozens of appeals to the higher ranking courts and we have studied in detail the practice of their consideration.

At present these issues are the most problematic in the legal framework. Regulation of the freedom of assembly, which is not really encouraged legally, has become even more prohibitive in autumn, 2011, with the adoption of amendments to the law “On mass events in the Republic of Belarus”. You can read about it in details in this issue. And since suspiciously a lot of public actions – pickets, demonstrations, flash mobs – end up with court proceedings, we cannot keep away from studying the practice of enforcing the law on assemblies in court. At the same time, our habit to regard court as an institution aimed at restoring justice makes us look closer at the observance of procedural guarantees which are the foundation of fair trial.

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Krassimir KANEV: HUMAN RIGHTS MONITORING SHOULD FOCUS ON THE SPECIFIC VULNERABIITIES IN EACH COUNTRY The first invited expert on the human rights monitoring and guest of the journal Lawtrend Monitor is Krassimir KANEV – head of the Bulgarian Helsinki Committee, teacher on human rights course in Sofia University, trainer on human rights monitoring course of the Human Rights Education Associates (HREA).

Besides, Mr KANEV is an expert and a consultant on the monitoring of penitentiary establishments, access to fair trial, freedom of expression and religion in the Balkans, the Caucasus, the Eastern Europe, the Central Asia and the Middle East.

www.bghelsinki.org

Monitoring is one of the forms of research in human rights alongside with fact-findings and documenting. Within the history this piece of the pie belonged to specialists: lawyers, human rights advocates, human rights defenders. But today because of the inexorable growth of the social media and the Internet ordinary people go to the court or demonstrations, observe what’s happening there and then produce something like a “personal report” – what they saw there and how they estimated it. It is obvious that there is no even a clue to objectiveness or professionalism. How would you comment on the effectiveness of monitoring by NGO and personal monitoring nowadays?

I understand human rights monitoring as a research of a particular segment of social reality through the prism of human rights standards.

Fact-finding and documenting are different names or different aspects of this research process. It uses all recognized methods which are used by social science, both qualitative and quantitative.

Historically, not only professionals were involved in human rights monitoring but many other people – journalists, politicians, family members of victims etc. Whatever the persons and interests involved, credibility of the results has inexorably been dependent on the extent to which they had used the scientific method and abided by the monitoring

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MEO VOTO* principles. These include accuracy, independence, impartiality, transparency, confidentiality and addressing vulnerability.

The unprecedented expansion of electronic media and social networks nowadays creates enormous possibilities for sharing the results of all kinds of “personal reports”. But it also creates credibility problems. Anybody can say anything and his/her message can instantly reach the other

end of the world. But why would we believe him/her assuming that this same accessibility of one’s message is of itself a huge incentive for manipulation? The answer is – we believe him/ her to the extent he/she abides by the monitoring principles and makes use of the scientific method as much as possible. These not only should be complied with; they must be seen as being complied with in the message itself.

* in my view

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In modern political dictatorships the work of monitoring organizations becomes more and more insecure; because of it they have to continue their work under-the-counter. What do you think if under the auspices of the United Nations the Convention or even the Model Standards of Monitoring Work in the NGOs will be drafted? Would it have any protection guarantees for monitors and regulate their work?

We don’t need to codify monitoring standards and methods. Social science has done so long ago. But international standards at the UN and at the regional level should give more protection and more possibilities for work to human rights monitors. Present-day standards, including the UN Declaration on Human Rights Defenders, are rather unsatisfactory in that regard. They do not provide for any special status of human rights work and the persons involved in it. E.g. human rights monitors do not have the right to visit prisons, speak to detainees in private and offer them legal aid; they don’t have access to sensitive documents for the

specific purposes of human rights research and the protections they get are just the same as those anybody else enjoys. Even representatives of the religious denominations have more rights in that regard – e.g. their private access to detainees had never been questioned.

versa. I think that nowadays the value of human rights monitoring shifts from the international to the domestic level. It is at the domestic level where we get more and more interesting and valuable human rights research. This goes in parallel with the proliferation of human rights organizations at the national level and with the progressive penetration of the human discourse into the work of media and professional groups.

What is the core subject of human rights monitoring and does it change within the history of human rights evolution?

Can you give examples of the greatest success and the brightest failure of human rights monitoring?

The core subject of human rights monitoring are the human rights themselves. And they have evolved over the past sixty years. We have got more and more human rights and more and more elements of social life entered into the human rights discourse. With that, the scope of human rights monitoring expanded a lot.

Success in human rights monitoring depends on how its results are used in advocacy. You can have a high quality research which can be completely useless if it is not followed up by adequate advocacy strategies. There have been many success stories of effective use of human rights monitoring throughout the history of human rights movement.

Examples are the numerous improvements in prison conditions after reports of the European Committee for the Prevention of Torture (CPT). But there have been also failures. One such failure in the recent history is the continuing imprisonment of Mihail Hodorkovsky in Russia, despite the voluminous and well documented research on the political motives behind his convictions.

Do the particularities of monitoring depend on each particular country or the monitoring procedure should be unified?

Each country has its own “skeletons in the cupboard”, i.e. specific human rights problems and specific vulnerable populations. E.g. in Belarus these are the political opponents to the government; in the Balkans – the rights of some ethnic minorities; in Western Europe – Third World migrants. It makes no sense to develop research protocols to study the rights of Muslim migrants from the MENA region in Belarus, for example, just as it makes no sense to develop research protocols to study the repression against political opponents to the government in France. Human rights monitoring should focus on the specific vulnerabilities in each country. However, the same monitoring principles which bring credibility and integrity to the monitoring process should apply everywhere.

Are the international governmental and nongovernmental organizations interested in the results of national monitoring? For which purposes can they use it?

International organizations are quite dependent on the domestic monitors but not any more vice

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Elena TONKACHEVA: MONITORING SHOULD RESULT IN SOME DEFINITE CHANGES Elena TONKACHEVA is a human rights defender, Chairperson of the Legal Transformation Center (Belarus), expert in the issues of legal reforms in the countries with transition economy, human rights defense and advocacy, trainer. From 2001 to 2004 was member of the Council on questions of organizing legal activities under the Belarusian Ministry of Justice.

Author of the concept “Modeling the perspectives of human rights activity in Belarus”, developer of the project “On charity and charity organizations in the Republic of Belarus”.

What monitoring actions of previous years do you single out as successful for Belarus? What are their results?

defenders working out recommendations at not only the regional level, but also in regard to the whole system of justice. The government paid attention to this activity, and the Ministry of Justice took a number of measures to improve administration of justice, based on this analysis.

It is necessary to single out the systematic activities of the Human Rights Center “Viasna” and the Belarusian Helsinki Committee that hold a monitoring related to electoral campaigns all over the country. Organization of the monitoring, quality of the collected information and conclusions made by the human rights defenders become a serious contribution for estimates of the Belarusian elections, made by international organizations and political entities.

Another example of human rights-related monitoring was held in 2008 by a team which later developed into the Legal Transformation Center.

The issue under consideration was the existence of information about free legal aid on the informational

Getting back to the history of developing systematic monitoring actions, I’d firstly remember the monitoring held by Human Rights Defense Center in Mahilou, headed by Siarhey Abadouski in 2011.

The subject of the monitoring was administration of justice on civil, criminal, and administrative cases in Mahilou courts. It was the first systematic work on courts monitoring. Two documents were compiled – “The White Book”, showing positive examples of judges and cases, where all procedure guarantees were meticulously observed, and “The Grey Book” in which negative examples of violating the norms of administering justice were enumerated. I remember that these actions stirred great public response throughout the country because a great amount of work had been done, and it allowed human rights

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stands of legal consultations, notary offices, buildings of law enforcement agencies – in the places where such information must be presented. The monitoring was held in all the regional and some district centers; law students and students of educational human rights programs were involved. Based on the monitoring, the Ministry of Justice had to admit that the state failed to make such information accessible in the places where it was obliged to. Measures were taken to provide legal consultations and courts with informational stands telling about free legal assistance. This monitoring led to absolutely definite results, as the citizens’ right to legal aid has become more accessible. Also we drew attention to the fact that many of the institutions were not equipped with ramps, meaning they were not accessible for people with physical disabilities. These remarks were taken into consideration, but unfortunately, the situation is changing slowly.

How can one use the results of the monitoring?

It is urgent how the results of monitoring are used. Absolutely definite recommendations must be worked out which human rights defenders use for a conversation with the government in order to improve the situation of exercise of some rights and liberties.

What tendencies and perspectives do you see in holding human rights monitoring in Belarus? What is the role of the monitoring component in the work of a human rights organization, in your opinion?

Systematic monitoring activity has existed as long as the human rights defense movement has existed, which naturally has grown and developed. Monitoring that we are doing today is much better in the quality of preparation, conclusions and recommendations, as compared to the one that we were doing 15 years ago. And we can surely say that the monitoring component has been established. Specialized, directional monitoring, held by a specific organization on separate categories of rights and freedom, is topical and in high demand. I would single out the Office for the Rights of People with Disabilities which obviously tries to combine the expert component with field research. Last year a human rights establishment “Platform” was set up which took the function to

advocate human rights in penitentiary establishments.

A pool of organizations is being created that are ready to contribute their monitoring research on separate segments of human rights or on vulnerable groups for the common thrift-box. I think this is the future.

Such strategy, voiced by our organization in 2000, envisages professionalization of the activities of human rights organizations, joint creation and use of unified methods and instruments of research, and also distinguishing specialized groups within the human rights defense movement, focused, for instance, on people with disabilities, rights of patients, rights of conscripts.

Aliaxei KAZLIUK: THE MONITORING GROUP LAWTREND WAS A RESPONSE TO THE CHALLENGE Administrative cases On December 20 and 21, representatives of human rights organizations were present in courts, or to be more precise, tried to get to the proceedings, which – in violation of the norms of the national and international legislation – were closed to the public.

Maximum what we were able to collect there – names of the administratively arrested and the number of days of their arrests for participation in the peaceful action. On the very first day the Human Rights Center “Viasna” published on its website the names of the arrestees, which was practically the only source of information for their relatives. Then a lot was done. Still, it was obvious that it was not enough to solve the situation.

So the idea came out to collect the most detailed information of the mass violations of the rights of the participants in the public action on December 19. Within several days, experts from the Lawtrend, the Committee “Soldarity”, HRC “Viasna” and “Justice Initiative” jointly worked out a questionnaire for the detainees which helped to document the majority of violations during the detention, court proceedings and the procedure of execution of the administrative arrests. Within a month we, with the help of colleagues and volunteers, were able to collect 298 questionnaires and 148 court rulings. At the same time we gave consultations, drafted complaints, and faced with the common inefficiency of the national judicial system when the matters came to restoration of citizens’ rights.

Lawtrend has been doing its field research for a long time, since it is difficult to argue about one’s position with either the state or society without having enough factual data. Separate pieces of monitoring research had been made as part of advocacy campaigns. But until the end of 2010 no need was felt to establish a permanent group within the organization that would specialize on holding monitoring research.

December 19, 2010 has become a kind of a catalyst.

After the dispersal of the peaceful demonstration, mass detentions and arrests and conveyor courts, we could not stay away from the matter, doing only human rights research. It was our time when we had to decide where our help would do maximum good. I will try briefly to restore the story line.

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IPSISSIMA VERBA* Criminal cases In 2011, from 17 February to 12 October, 14 criminal trials were held in Minsk that were related to the presidential elections and the peaceful action on December 19, 2010. As a result, five out of ten candidates for presidency were convicted, and a total number of convicts in these trials reached 44.

Judging by the general informational background, statements of official representatives and the information of the preliminary investigation, one could presume that the criminal cases were politically motivated. This is what defined our strategy of monitoring. We documented every process in

order to make a detailed analysis of the use of the procedural and the substantive laws. At that crazy time when five trials could be held at the same time, and not all those willing were allowed to attend the trial, the Monitoring group has managed to record 350 hours of audio, by this making a unique material for research and restoration of human rights.

This way we have become involved in the citizen control over the fair trial. Lawtrend Monitor will tell about this in details in the next issue.

* the very words

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Aliaxei KAZLIUK: FREEDOM OF ASSEMBLY IN BELARUS: OPINION OF THE VENICE COMMISSION Background of the story:

Note from lawtrend.org:

On October 3, 2011 the House of Representatives of the National Assembly of the Republic of Belarus, during one meeting in two readings, passed the bill “On introducing changes and amendments to the Law of the Republic of Belarus “On mass events in the Republic of Belarus” (further the law “On mass events”). The draft bill had not been accessible for the public, and the parliamentary hearing took place without the presence of the press.

The amendments to the law “On mass events” took effect on November 27, 2011, in spite of many protests expressed by human rights organizations.

On December 15, 2011 the president of the Committee on political issues of the Parliamentary Assembly of the Council of Europe asked the Venice Commission to assess the compliance of the Belarusian law on mass events with the universal standards on human rights, by this initiating the conclusion of the Venice Commission, which was also backed by the OSCE/ODIHR. On March 16 the European Commission For Democracy Through Law (more famous as the Venice Commission) at its 90-th plenary session considered the issue of compliance of the Belarusian law “On mass events” with the international standards, and on March 20 published the joint statement of the Venice Commission and OSCE/ODIHR (CDL-AD (2012)006).

The Venice Commission is a reputable international expert organization, founded in 1990 under the auspices of the Council of Europe. The Commission provides constitutional assistance, including assessment of current legislation in terms of compliance with international standards. The opinion of this organization shouldn’t be ignored first of all because it is a professional and independent legal assessment. Formerly the Commission assessed the Constitutions of Russia and Ukraine within the procedure of the countries’ entry into the Council of Europe. Belarus is an associate member of this organization. Since 1995, when the Commission assessed the Law on the Supreme Council, it has assessed the most problematic legal acts, from the point of view of the constitutional law, in the sphere of the electoral law, regulating the mass media, freedom of associations. The latest opinion –on article 193.1 of the Criminal Code (activities on behalf of unregistered organizations) – was published in 2011, stating the violation of the universal international standards in the sphere of human rights.

AD DISPUTANDUM*

Excerpts from the Joint Statement:

Quotations of Belarusian official representatives:

36. […] “National legislation governing freedom of assembly should clearly articulate and bring to life the main principles applicable in the exercise of this right, that being: the presumption in favour of holding assemblies, the state’s positive obligation to protect peaceful assembly, as well as principles of legality, proportionality, non-discrimination and good administration. 37. Unfortunately, the Law on Mass Events does not appear to reflect the above stated principles. The current regulation of freedom of assembly in the Republic of Belarus raises a number of serious concerns regarding its compliance with relevant international standards.”

http://www.belta.by/ru/person/opinions/EvgenijSmirnov_i_512515.html Chairperson of the Permanent commission on legislation and state-building of the Council of the Republic Yauhen Smirnou: “Today, an undeclared war has been declared against Belarus. The main task is to shake the country and change the leadership. [..] And of course, it is impossible to do it without mass events or some other active actions. […] It is an absolutely proofread and necessary law. It is being presented by some opponents in a provocative way in order to trigger people’s dissatisfaction towards the authorities and legislative bodies.”

43. “In order to bring the Law into compliance with international standards numerous revisions ought to be made. It is important to note that improvements in the text of this Law would need to be followed by proper implementation of the Law, which includes awareness raising measures and adequate training for competent authorities on application of the Law. The way in which this Law is interpreted and implemented is crucial in terms of its compliance with international human rights standards and for the protection of fundamental freedoms and rights.”

http://www.belta.by/ru/all_news/society/Belorusskiesenatory-odobrili-popravki-v-zakon-o-massovyxmeroprijatijax_i_578644.html The former Minister of the Interior Anatol Kuliashou: “Our law is absolutely democratic and aimed at protecting not some specific group of people, but the society and the state as a whole”. http://www.belta.by/ru/all_news/politics/Sanktsiiza-narushenie-novogo-zakona-o-massovyxmeroprijatijax-v-Belarusi-javljajutsja-liberalnymi--deputat_i_576126.html The deputy chairperson of the Permanent commission of the House of Representatives on human rights, national relations and the media Anatol Glaz: “While preparing the draft bill, legislations of more than 20 countries were studied – CIS countries, Europe, the USA. Also “The Guidelines on peaceful assemblies” were studied, adopted by the OSCE/ ODIHR in March, 2007. […] Our bill is not any worse than what we were studying, and in the part of sanctions is even better and more liberal than in many countries of Europe and the USA”.

38. “The Law on Mass Events is characterized by a detailed overregulation of the procedural aspects of holding assemblies. The Law creates a complicated procedure of compliance with a rigid and difficult authorization procedure, while at the same time leaving administrative authorities with a very wide discretion on how to apply the Law. This procedure does not reflect the positive obligation of the State to ensure and facilitate the exercise of freedom of peaceful assembly and freedom of expression.”

http://www.venice.coe.int/docs/2012/CDLAD(2012)006-e.pdf

* for discussion

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Volha DAMARAD: ABOUT DOLLS PICKETS AND REAL LIABILITY

Somebody calls them “nano-demonstration”, somebody “meemee-meetings”, somebody “doll demonstration”, or also “LEGO-demonstrations”. There isn’t an exact definition for “dolls demonstration” in any legislation all over the world. And one can surely say that this Russian invention of fight against lawlessness, in spite of its absurdity, causes trouble not only for the police and the prosecutor’s office, but for court, too.

The first demonstration we know about was with the participation of little men from Kinder surprises, toys from LEGO and stuffed animals, and it took place in December last year in Russia, in the city of Apatity.

The organizers did not get a permission to hold a meeting in its traditional understanding – with living people participating – and decided to hold a meeting with the main heroes being dolls. The initiative was picked up by other Russian cities.

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Acta diurna* This trend reached Belarus in February. The young wing of the campaign “Tell the truth!” held its Minsk demonstration of dolls named “Igrushko meetinguwe!” Early in the morning at the bus stop next to the entrance to Minsk city executive committee two activists placed dolls. Photos of the dolls action spread in the by-net.

Although the idea was a kind of not original, Minsk action distinguished itself in its own way. It is unique due to the fact that it was estimated as a picket organized in violation of the law “On mass events”, and its organizers were detained and got administrative arrests from the court. To compare: in the Russian city of Barnaul after two successful dolls “meetings”, a third one was forbidden on the grounds that, according to the Russian law, citizens, members of political parties, members of other public associations and religious associations are recognized as participants of a public event when they voluntarily take part in it” (Article 6, point 1 of the Federal Law of the Russian Federation “On assemblies, meetings, demonstrations, processions and pickets”).

Pavel Vinahradau and Aliaksandr Artsybashau – organizers of the Belarusian dolls action – were detained a week later, and the court ruled to impose administrative arrest according to art. 23.34, p. 1 of the Code on Administrative Violations of RB for “violating the established procedure of organizing or holding a gathering, a meeting, a street procession, a demonstration, another mass event or picket.”

Analyzing the court’s ruling on the administrative violation made by Pavel, both the lawyer and the layman can find many interesting things.

Judge T. Motyl found Vynahradau guilty because he “took active part in holding an unsanctioned picket […], placed stuffed animals and posters […], hindered the movement of pedestrians.” And it was recognized as a violation of the Belarusian legislation on organizing and holding mass events.

This formulation means that Vinahradau’s “active participation” demonstrated itself through placing the subjects of the demonstration and hindrance to the pedestrian movement.

* daily deeds

Organizers of the street action in Minsk Pavel VINAHRADAU and Aliaksandr ARTSYBASHAU answered the questions of the Lawtrend Monitor:

Where did you get the idea of holding “Igrushko mitinguwe!”? Were you inspired by the Russian experience?

PV: I saw the action in Barnaul. I thought that I could do it cooler, and it seems to me – I did it.

What was your goal in holding a doll action and was it attained, in your view?

PV: There were at least two goals. The main goal was to give a good start to a new organization – it was the first action of “Zmena”. Well, the second goal was to do it cooler than in Barnaul. To make a kind of soc-competition. I think if this action is still being spoken of – the goals have been attained.

When you were planning the action, did you suppose that it could be estimated as a mass event?

What were the circumstances of your detention, how was it reasoned by the policemen?

PV: Nobody can make it clear how a picket can be made without participation of people, but the fact remains. As for me, it falls maximum under the article “unsanitary conditions” which does not envisage arrest; but since the action brought a strong media effect, somebody had to be punished – so, that was it: Artsybashau and I were punished.

PV: I was detained 11 days after the action. I still don’t understand why they were waiting for so long. I arranged to meet my friend at the railway station. I came five minutes earlier and saw how two policemen were running in front of the railway and were looking for someone. I think: “Well, not me!”

Well, no. It was me. Came up, put on hand-cuffs, took to the police department. And only there told why.

AA: We realized from the start that somebody would be held responsible. It was surely to be estimated as an unsanctioned picket, so it turned out like that. .

AA: I was detained the next day. I came to Pasha’s court proceedings, brought him juices and cigarettes.

Major Behunou noticed me, checked my passport and asked to follow him. Indeed, he had already known me, and just verified my surname in the passport. He took me to the waiting room. Pasha was sitting there. And there I understood that I would not get back home on that day.

You were arrested on article 23.34 of the Code of Administrative Violations of the Republic of Belarus for violating the procedure of holding and organizing a mass event. What was going on in the court proceedings? Who were the witnesses?

PV: I got ten days for the dolls and then later seven days for using obscene language. All the witnesses in the hearing were policemen, naturally. I did not admit my guilt, as I did not take part in the action, but the judge was not interested in it, as usually.

AA: I got ten days for the dolls and seven days for SHOS. I served the whole arrest without being released. I announced a hunger strike, and during 17 days I lost eight kilos. I want to remark that the judges did what the policemen told them to do. That is, they told how many days to give, and they gave me as many. It wasn’t taken into account that I have a one year-old son and some health problems. It was noticeable that the policemen gloried with their all-permissiveness. And also they threatened that if I didn’t give up my “accomplices”, I would keep “cursing” for a month more.

Legal commentary, Aleh FIADOTAU:

Does such form of expressing opinion fall under the law “On mass events in the Republic of Belarus”?

When citizens place dolls and leave, by doing this they realize their freedom of expression, which can be made indirectly, by means of giving out leaflets, sticking up wall newspapers, placing dolls with placards. At the same time, such form of expression in some specific circumstances can be qualified as breaking the order in public amenities in the streets, which fully complies with the limitations of personal rights and liberties envisaged by Article 23 of the Constitution of the Republic of Belarus.

After introducing amendments to paragraph 8 of Article 2, point 2 of the Law in November 2011, the state got a new possibility of the so-called lawful interference with the freedom of expression. The definition of the picket was specified, and now it is equaled to a joint mass presence of citizens in a previously arranged public place (including in the open air) at a particular time with the purpose to create a previously specified action, organized (<…>) for public expression of one’s social and political interests or protest. As we see from the definition, it contains the unclear term “action”. And, it is possible to presume that the state will regard also as “action” the delivery and placement of dolls by citizens. Since such placement of dolls is aimed at expressing an opinion, it turns out that the whole dolls action falls under the definition of picketing.

of the OSCE/CE, “Where issues under these other rights are also raised, the substantive issues should be examined under the right most relevant to the facts (the lex specialis), and other rights should be viewed as subsidiary (lex generalis).” (para 14). The cases described above do not refer to the freedom of assembly, as the citizens were exercising their freedom of expression, vested in Article 19 of the ICCPR and being in this case lex specialis. Also, the Guidelines remark that the court decisions confirm that “the right to freedom of expression includes the choice of the form in which ideas are conveyed, without unreasonable interference by the authorities, particularly in the case of symbolic protest activities.” (para 17). But, since the Belarusian law does not envisage responsibility for unsanctioned expression of one’s own opinion, the judge had to apply article 23.34 of the Code of Administrative Violations.

How does the court decision in this case comply with the international standards in the sphere of freedom of assembly?

Article 21 of the International Covenant on Civil and Political Rights does not have a definition of a peaceful assembly. But in the case of Kivenmaa v.

Finland the UN Human Rights Committee in point 7.6 stated that “public assembly is understood to be the coming together of more than one person for a lawful purpose in a public place that others than those invited also have access to.” The OSCE and the CE in their Guidelines define an assembly as “intentional and temporary presence of a number of individuals in a public place for a common expressive purpose” (para 1). So, the process of arranging dolls with tiny placards by two persons from one organization on their preliminary mutual agreement does not fall under the definition of a peaceful assembly. As it is indicated in the Guidelines

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Volha DAMARAD: YO-MA-YO! ARBITRARY DETENTION On March 24 nearly 100 people were detained in the rock-bar “Yo-ma-yo” in Dauhabrodskaya Street in Minsk. It happened during a concert in support of the initiative “Food not bombs” which, by giving out vegetarian food, aims at emphasizing the issues of poverty, hunger, militarism, globalization.

At 6.45 pm policemen burst into the bar and detained everybody who was in the room at the moment. It was a forced detention, without any reasons explained. The detainees were taken to the Partisan and Central district police departments.

After three hours of waiting in a building that looked more like a storehouse, the detainees were questioned. The questioning was made without compiling any procedure documents; the detainees were fingerprinted, photographed and subject to genotypic control (giving a sample of saliva). The whole procedure lasted longer than five hours, but the detainees still stayed unaware of the reasons for the detention.

Moreover, in violation of legal procedure norms, they underwent personal search – without a report of the personal search – and their relatives were not informed about their whereabouts.

Out of the hundred of the detainees, 14 people were detained till the court hearing on accusations of using obscene language (administrative violation – minor hooliganism), two more people – for being drunk in a public place. Based on the testimony of the policemen, seven people were fined; nine people were administratively arrested for two – three days.

All the others were set free without drafting any procedure documents.

The Monitoring group Lawtrend followed the events. Lawyers drafted appeals against the police actions to the prosecutor’s office for 16 people. As a result, the Investigating Committee is doing a checkup on the police actions.

The Belarusian human rights organizations and human rights defenders in person sent a petition to the UN Working group on arbitrary detentions informing about the incident. The Working group is incapable to take urgent actions within its mandate, but, as practice shows, these materials can be used in future within the procedure of reports.

human rights organizations is part of the mandate of the body.

Also it is worth mentioning that the Working group is the only extra-contractual body of the UN whose capacity involves considering individual complaints of those who endured arbitrary detention and making opinion or conclusions on them. Therefore, those detained in the bar “Yo-ma-yo”, members of their families or NGOs on their behalf can petition to the Group, without exhausting all national legal remedies.

The fate of the Belarusian appeal can have only one scenario – the incident in the bar can be included into the Annual report of the Working group, with the description of fact of mass detentions and the legal assessment with recommendations for the Government for Belarus. Within the mandate of the Group a procedure of “urgent measures” is also possible, but it is not applicable in this case, as there are no grounds to think that the arrest of the detainees causes serious threat to their health and life.

A country visit is impossible in the near future because the Working group visited Belarus in 2004 and is not on the list of countries to visit in 2012.

Legal commentary, Volha DAMARAD: The mandate of the Working group on arbitrary detentions includes “investigating the cases of arbitrary detentions”, namely, those cases when detention is made in violation of norms of the International Covenant on Social and Political Rights (p.9) which has mandatory legal force for our country.

Moreover, within the mandate there is a “mode of requests” to the state and NGOs on specific facts of arbitrary detentions that the Working group knows about. That’s why this petition from the Belarusian

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Volha DAMARAD: TATSIANA HATSURA-YAVORSKAYA DETAINED FOR PICKET AGAINST DEATH PUNISHMENTT Comments of Tatsiana HATSURA-YAVORSKAYA:

When you were planning the picket, did you know about the responsibility it could lead to?

Of course, I knew that I could be detained. On the other hand, I knew that I would never get permission to hold such picket, and the law itself does not envisage a possibility for me to approach the Administration of the President. I was more worried that, in case of my detention, the authorities wouldn’t be satisfied with administrative punishment, and there would be an examination with the trustee agencies regarding my children.

What was the aim of your picket?

The main one is to spoil the “picture” for the authorities that the whole society so to say believes in what had happened in court and wants the capital punishment. Second one is to inspire those who disagree for similar personal protests. Third one is to demonstrate that the Law does not take into account many circumstances and restricts my rights.

On December 6, 2011 Tatsiana Hatsura-Yavorskaya held a picket: went out to the street, accompanied by her under-aged sons, with a placard “Mr President, I have four children, who guarantees their right to live?” - protesting the death sentences to Dzmitry Kanavalau and Uladzislau Kavaliou. Three days later she was detained by people in plain clothes at the entrance to her house and taken to the Central district police department in Minsk. After an administrative protocol was made up, she was taken to court. The court ruled that she was guilty of holding an unsanctioned picket, and she was fined 20 base amounts.

Do you think the picket has fulfilled the planned goals?

I think, the first goal has been attained, the second one hasn’t been attained, and the third one I will still have to put forward.

Legal commentary, Aliaxei KAZLIUK: In this case, the state obviously interfered with the realization of the freedom of assembly and the freedom of expression, guaranteed by Article 21 and Article 19 of the ICCPR, and also Article 35 and 33 of the Constitution, although the police did

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not interfere with the picket itself. The fact of the subsequent detention and a fine is quite enough to claim that there has been interference with the realization of freedoms and rights. Unfortunately, Belarusian courts do not regard administrative cases, whose subject is realization of citizens’ rights and freedoms, in the light of constitutional provisions and international norms, and only restrict to the norms (in this case) of the law “On mass events” and the Code of Administrative Violations. With this case as an example, it means that, out of three components that should be observed in order to recognize such interference lawful, court studies only the first one – limitations have to be set by law (Article 19, part 3 of the ICCPR, Article 21 respectively). The law “On mass events” (and the Administrative Code – in the part of identifying liability) really has a wide range of limitations, many of which are incompatible with widely recognized principles of the international law.

At the same time both the court of the general and

the appellate trial jurisdiction that tackled the case did not study if such limitations were “necessary” (part 3 of Article 19 of the ICCPR) or “necessary in a democratic society” (Article 21 of the ICCPR), and also if the limitations pursue one of the lawful goals, mentioned in part 3 (a,b) of Art. 19, in Art. 21 (similar enumeration of lawful limitations exists in Art. 23 of the Constitution).

As for the international legal remedies to defend and restore rights, this case seems promising for consideration in the UN Human Rights Committee, as actions of the state directly violate provisions of the ICCPR. Besides the case meets the formal criteria of admissibility, as it has already been considered in the first instance and appellate courts, and traditionally the HRC does not recognize the supervisory instance in Belarus as an effective legal remedy.

Mikhail MATSKEVICH, Volha DAMARAD: MONITORING OF ADMINISTRATIVE COURT PROCEEDINGS: TRAINING AND PRACTICE According to part 1 of article 2.14 of the Code of Administrative Procedure, cases on administrative violations have to be considered publicly. It means that every Belarusian citizen has the right to attend administrative court proceedings as a listener (observer).

Since July of the previous year 14 district courts in the USA started to broadcast video recordings of civil proceedings online; and 60% of a survey respondents answered in favor of such publicity of the judicial system. In Belarus, in order to get to a courtroom, one needs to go through the fire, water and copper pipes – the fire being a cordon of guards at the entrance to the court, the water – an enthusiastic personal search, and the copper pipes – no empty places in the courtroom.

It is worth mentioning that not all cases, but only politically motivated cases suffer this fate. These are the well-known trials over democratic activists, opposition activists, independent journalists, social activists etc.

Court monitoring is in fact a realization of the right to fair trial which is an international standard in the sphere of human rights. The main point of the monitoring is to be present in the courtroom and to register all stages of the process. The result of such activity is assessment of the elements of the system of justice and identification of the problems that must be solved. Monitoring activities allow collecting necessary data about the character of the trial, the practice of law enforcement in some categories of rights and liberties. The collected data allow formulating a valid critics and suggestions on observance of the citizens’ rights and liberties.

Besides, participation of citizens in administration of justice helps to broaden their citizen competences.

Lawtrend offers a unique program of preparation of civil observers of court proceedings and invites to join the civil control of administration of justice.

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PROBATUM EST*

Anyone can become a member of the Monitoring team Lawtrend - from a high school student to a pensioner. For this you need to take a one-day practical seminar â&#x20AC;&#x153;Observerâ&#x20AC;? held by the experts of Lawtrend. At the seminar participants get the basic knowledge of human rights and practical skills of monitoring.

* proved

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