Trial of Artyom Breus and Ivan Gaponov. Day 1. Analysis

On 22 February 2011 Minsk Maskouski Court began the consideration of the criminal case under Par. 2 Art. 293 of the Criminal Code of Belarus (“mass riot”) against two Russian nationals Ivan Gaponov and Artyom Breus. The court session was chaired by Judge Mrs. Liubou Siamakhina with the participation of state attorney, deputy chair of Minsk Maskouski Prosecutor’s Office Siarhei Kunas. The defendants were represented by advocates Kazak (Breus) and Mrs. Siarheyeva (Gaponov). The civil claimant (Presidential Administration) was represented by Mr. Dzmitry Lepesh.

It should be observed that Judge Siamakhina is still under a EU entry ban, as ordered by a decision of the European Commission, for participation in illegal administrative prosecution of persons detained on 19 December 2010 during a post-election protest in Minsk.

The session was started by the prosecutor who based his charges on Breus and Gaponov’s alleged participation in the mass riot committed by a group of persons by previous concert. According to the prosecutor, Breus and Gaponov, together with other participants of the mass riot, maintained armed resistance, tried to break the police cordon, using impromptu means, kicked the policemen and by their actions caused damage to state property amounting to over BYR 29 mln.

Artyom Breus and Ivan Gaponov did not admit their guilt.

After that, the court proceeded to examination of the defendants.

Ivan Gaponov testified that he did not know Breus and had come to Kastrychnitskaya Square at about 8 p.m. 19 December 2010, knowing about a scheduled opposition rally, announced by a number of media. There he saw various flags. He said that he had called out slogan “Long Live Belarus!”. Gaponov also said that there had been a lot of people in the Square and he had heard no calls to leave the Square by the police. Then Gaponov together with other demonstrators proceeded to Nezalezhnastsi Square moving along the road. Gaponov explained that he had not seen anyone guiding the demonstrators or making orders. Having come to Nezalezhnastsi Square, Gaponov was standing to the right of the Lenin monument close to the Government House entrance. Soon he heard the sound of broken glass and decided to approach the entrance. Gaponov said that he had not seen who and when broke the glass doors of the building. He also said that he had not seen any tools for violent actions in the demonstrators’ hands. Then the police appeared, starting to push the crowd away from the entrance, as a result Gaponov found himself at the front between the demonstrators and the policemen. Unknown people reportedly took him by the hands. He could not leave, as he was pressed from behind by the crowd. Gaponov tried to move away from the policemen. He also said that he had not attempted to break the police cordon or hit the policemen, nor did he see other persons do that. Having been asked by the prosecutor, Gaponov said that he had not seen any truncheons or other tools for violent actions, including bottles with fluid, in the demonstrators’ hands.

Then the court proceeded to examination of Artyom Breus.

Artyom Breus also said that he did not know Gaponov. At about 8 p.m. he was walking pass Kastrychnitskaya Square, and seeing a big crowd of people with flags, approached the people and learned that it was a post-election rally. Then the demonstrators proceeded to Nezalezhnastsi Square and Breus followed them. Breus, together with other demonstrators, called out the slogan “Long Live Belarus!”. He saw no tools, e.g. iron rods, axes or ice-picks there. Having come to Nezalezhnastsi Square, he was standing 70 meters away from the Government House entrance. Later Breus heard the sound of broken glass, but did not see who had broken the doors. However, he approached the entrance. He also said he had not seen any tools for violent actions or bottles with fluid in the demonstrators’ hands.

Then he saw the riot police line up in front of the Government House entrance, who started pushing the crowd away from it. The people stood back, calling upon the policemen not to use violence. The policemen started hitting their shields with truncheons and the people began to advance. Breus himself did not hit the policemen, nor did he see other people do it. The crowd repeatedly advanced, Breus being pressed among the demonstrators and unable to leave the crowd. Soon Breus was taken forward by the crowd. When the crowd approached the policemen, Breus got a blow at his head. He started bleeding, lost consciousness and was taken away by unknown persons. He also said that he had noticed the demonstrators stop as soon as the policemen had retreated.

Then the policemen advanced, drawing a cordon around the demonstrators. Breus approached the policemen and asked them to let him go, as he had been injured. However, he received another blow at his head, was detained and put in a police bus.

It is essential that Artyom Breus said that during the preliminary investigation he had been forced to testify against the opposition leaders, who allegedly offered him money for participation in the rally. He was also threatened with violence by the investigators. Thus, the investigators violated the law, forcing the accused to slander the innocent people, making use of his fear for violence. Such actions should be considered as torture.

Breus also said that he had been sentenced to 15 days of administrative arrest for participation in the demonstration. Later, the Supreme Court reduced the sentence to 10 days of arrest.

It should be observed that the testimony of the accused were consistent and reliable, which was later proven by witnesses and video evidence.

Then the court proceeded to consideration of the civil claim.

The civil claimant in the case was the Presidential Administration (just like in Vasil Parfiankou’s trial), who entered a damage claim for BYR 29 mln.

On 21 February 2011, the damage amount was reduced to BYR 14.1 mln. The claim included the expenses for six pieces of glass, one rain pipe and several shrubs. The civil claim was represented by chair of the legal department of the Main Department of the Presidential Administration Mr. Dzmitry Lepesh. Mr. Lepesh reiterated his claim and stressed that he had received a payment document on covering the material damage on 21 February. Having been asked by the Judge, he declared that he would only be able to take any decisions after the money had been received on the Department’s account.

After the interrogation of the witnesses, examination of the case materials and viewing the videos, the Judge got back to consideration of the civil claim. Then, Mr. Lepesh declared withdrawal of the claim, due to the payment of the material damage.

It is important that the money has been collected by ordinary citizens and transferred to the claimant’s account by human rights defenders Stefanovich, Tonkacheva and Bastunets, which should be considered as attenuating circumstance during the consideration of the cases.

Interrogation of witnesses

The witnesses called in the trial were policemen of the Special Purpose Police Regiment Aleh Dudarchyk and Aliaksandr Yakauleu.

Aleh Dudarchyk said that he maintained public order on 19 December 2010. At about 10-10.30 p.m. he was received a message of the crowd breaking the glass doors of the Government House. They moved towards the entrance and line up in front of it, awaiting further commands. According to the witness, after several quiet minutes, the first ranks of the demonstrators attacked the policemen, trying to break into the Government House. They started hitting and kicking the policemen simultaneously, including with the use of the truncheons taken from the policemen. He saw no other objects in the demonstrators’ hands, which completely coincides with the testimonies of Breus and Gaponov. According to the witness, the demonstrators’ actions were coordinated. However, he heard no commands for the demonstrators. According to the witness, Breus was at front of the demonstrators and hit the police shields at least twice. He saw Gaponov later outside the Red Church hitting the police shields as well. The witness said that when the active participants had been encircled, he took part in the detention of Breus and Gaponov. He also drew up an arrest report against Gaponov and talked to him in the Delinquency Isolation Center. Gaponov replied that he did not know the policeman.

In his report, Dudarchyk stated that Gaponov had participated in an unauthorized event and yelled anti-state slogans “Leave!” and “Long Live Belarus!” Having been asked by the advocate, why he had not stated all the actions by Gaponov (e.g. hitting the police shields), Dudarchyk said that it was less important.

Dudarchyk helped his colleague Yakauleu detain Breus. He did not see Breus’ injured head, nor did he see who had hit Breus for a second time or when Breus had asked to be released. Dudarchyk’s testimony during the preliminary investigation and that provided during the trial featured contradictions concerning the time of events. Therefore, the court read out his testimony in the report.

Witness Aliaksandr Yakauleu said that the citizens had tried to enter the Government House, hitting and kicking the policemen and their shields with their feet, hands and fishing rods. He saw no ice-picks or bottles. He said that he knew the accused and pointing to Gaponov said that his name was Breus. The witness stressed that he had seen Gaponov and Breus together (unlike the first witness, who said that he had seen them separately in different places). According to Yakauleu, he had not used coercion while detaining Breus and Gaponov. He said that all the accused had been encircled and went to the police buses themselves. The witness’ testimony during the trial strongly contradicted to his earlier testimony provided during the preliminary investigation concerning the time and description of the actions committed by Breus and Gaponov, as well as certain disagreement with the written testimony by Yakauleu, saying that he could not remember the events well enough, as too much time has passed.

In general, the witnesses’ testimonies were contradictory, inconsistent and disagreeing with the materials of the administrative case. The witnesses repeatedly said that they could not remember well enough. Besides, their testimonies contradicted their earlier testimonies provided during the preliminary investigation.

The human rights defenders believe that the witnesses’ testimony was false, which cannot serve as a ground for criminal prosecution of the accused.

Written evidence in the case. After interrogation of the witnesses, the court read out the written testimony in the case: record of the view of the scene of action, results of expert examination. According to the record of the view of the scene of action, there were two stun grenades, ice-picks, a hunter’s axe and spade handles found outside the Government House. According to the expert examination, the stun grenades could not be considered as explosives, while other objects could not be viewed as cold arms, as all of them were of industrial manufacture. There were fingerprints on some of them, which however could not be identified; the rest had no fingerprints on them.

Viewing of video evidence. The video evidence featured two videos of police footage. Unfortunately, those present in the courtroom could not see or hear the videos. The Judge and the prosecutor had the videos stopped at the moments when they featured Breus and Gaponov to ask questions. The questions suggest that the videos did not prove involvement of the accused in the alleged actions (arson, riotous damage, armed resistance to the policemen etc.), but merely showed their presence in the first ranks of the demonstrators. Having been asked by the prosecutor whether he could leave the Square, Breus said that now when the video shows that he could see that he had been able to do so, but he could not adequately assess the situation at the moment, Apart from that, the video showed that at 10.35 p.m. the Square was quite, while the arrest reports against Gaponov and Breus stated that they had been detained at 10.30 p.m.

The prosecutor’s motion. After the court session had been over, the prosecutor entered a motion for a seven-day break in the trial for reindictment, which is likely to be completely different from the first one. The trial is due to be resumed on 1 March 2011.

Conclusions. The trial showed that evidentiary base provided by the investigation did not prove the defendants’ guilt of committing the crime mentioned in the indictment. This is precisely why the prosecuting official entered a motion for a break to reconsider the charges. In our opinion, the state prosecutor is likely to bring new charges under “milder” Articles of the Criminal Code – “hooliganism” (Art. 339) or “group actions disturbing public order” (Art. 342).

However, as a result of the judicial monitoring, the Human Rights Center “Viasna” arrived at a conclusion that the actions of Aryom Breus and Ivan Gaponov did not have the elements of the crime at all and therefore demands their immediate release.