Results of monitoring of trial of Ales Bialiatski
This document was
prepared by the Human Rights Center "Viasna" on the
basis of monitoring of the criminal proceedings against its Chairman Ales
Bialiatski.
About Ales Bialiatski’s case
On 24 November 2011 the Pershamaiski District Court of Minsk sentenced the head
of the HRC “Viasna”, human rights defender Ales Bialiatski, to 4.5 years of
imprisonment with confiscation of property. He was charged with tax evasion
under part 2 of Article 243 of the Criminal Code. Ales Bialiatski pleaded
innocent. His defense insisted on his acquittal and release.
Two months later, on 24 January 2012, the Minsk City Court which heard the case
as the appellate court upheld the guilty verdict to Aliaksandr Bialiatski,
rejecting appeals of Bialiatski and his defense.
At present the human rights defender, detained since the instigation of the
criminal case (4August 2011), is kept in the Zhodzina jail #8, waiting for
transportation to the colony.
The international community declared Ales Bialiatski a prisoner of conscience.
Ales Bialiatski’s personality
Specializes in the Belarusian philology, writer, translator. Since his student
days Ales Bialiatski has devoted himself to the popularization of the
Belarusian language and culture. In 1986 he co-founded the literary association
"Tuteishyia".
Apart from creative work, since the early 80s Bialiatski has actively struggled
for the ideas of democracy and human rights. In 1988, together with
like-minded people he founded the first human rights organization in Belarus under
the name "Martyrology of Belarus". The same year he organized the
first procession on the Ancestor's Commemoration Day, "Dziady". In
1989-1998 he headed the museum named after Maksim Bahdanovich, combining
literary criticism with social activities in the field of human rights. In
1992-1996 Ales Bialiatski was a member of the Minsk City Soviet. In 1996 he
founded and headed the Human Rights Center "Viasna", and since 2007
he has been the vice-president of the International Federation for Human Rights
(FIDH).
Ales holds the Andrey Sakharov Freedom Prize and a number other international
awards. A member of the Union of Belarusian Writers. Prior to initiation of the
criminal proceedings he was twice nominated for the Nobel Peace Prize.
Essence and Grounding of Charges
The essence of the charges against Ales Bialiatski is that he allegedly concealed the profits which he received in 2007-2010 from "sources outside the Republic of Belarus" and intentionally evaded paying the income tax on this income, which resulted in damage to the State in the form of unpaid income tax in the amount of 352,274,360 rubles.
The "income of Ales Bialiatski" refers to the sums transferred by foreign
human rights organizations for the four years to the two accounts in the name
of Bialiatski in Lithuania
and Poland.
The accusation stated that the sources outside the Republic of Belarus"
which transferred money to the bank accounts were "non-residents",
but didn't specify who were this residents. The accusation also failed to
explain what the exact sums of the transfers were, who transferred the money
and for what purpose, who and when spent it. Many other questions, which the
accusation is obliged to clear out, remained unanswered, too. Despite the fact
that the charges were being changed during the trial, their wording remained
rather vague, whereas the objections of the accused on this occasion were
ignored.
The basis of the criminal case was some "information about the flow of
funds at the bank accounts", which, according to the prosecution, were
provided by Lithuania and Poland as
"international legal assistance". These "details" are the
main and almost the only evidence of the prosecution. These are just print-outs
from an electronic carrier, which look like excerpts from bank information.
However, these print-outs aren't signed or sealed by the appropriate officials.
The prosecution failed to present original bank documents, according to which
one could judge about the correspondence of these data to information provided
by information in the operating systems of banks. Moreover, the case doesn't
provide any information about the way these "documents" were received
by the Lithuanian and Polish authorities. The procedure of rendering legal
assistance was violated in this case. provide the right care is broken.
Futhermore, in the late summer of 2011 Lithuania officially announced that
the preovided information was imprecised, and the appropriate letter was
attached to the case at a court hearing.
On the basis of the information of such quality the tax inspection composed the
acts registering the transfer of means to the bank accounts, declared it Ales
Bialiatski's personal income and calculated the income tax for different
periods, which, according to the tax office, was to have been paid by Ales
Bialiatski. As it became clear during the trial, the tax officers didn't
penetrate into the essence of this information and could not even explain the content
of the documents, a part of which weren't even translated from foreign
languages until the trial. For instance, there was no translation of the
information about the purpose of the transfers.
Thus, even if the nature and the purpose of the financial means, which were allegedly transferred to the accounts of Ales Bialiatski, aren't taken into account, the only evidence of the prosecution was null and void from the very start. However, the court ignored it, having no doubt in the verity of "information about the movement of funds at the bank accounts".
Position of Ales Bialiatski
During the trial, Ales Bialiatski didn't confirm the information in the
"bank excerpts", as far as they were obtained illegally, weren't
sealed and signed and contained imprecise information. However, he didn't deny
the existence of the accounts and receipt of funds from foreign partners of HRC
"Viasna", including international human rights organizations.
However, Ales Bialiatski emphasized that these funds were not transferred for
him personally, but were used on behalf of these organizations to carry out
human rights activities in several areas, namely: the collection, procession
and analysis of information on the situation of human rights in Belarus and
other countries, the publication of literature on human rights, conducting
educational activities, the work of legal advice offices, election observation,
aid to victims of repression and so on.
All reports and financial documents were submitted to these organizations,
which checked the expenditure of the funds provided. Information about the
presentation of reports can be requested from the organizations which
transferred the funds, and the defense repeatedly asked for it both during the
investigation and at the court of appeal. Nevertheless, this motion was
rejected.
Facts Established by Court
The attempt of the prosecution to present the receipt of financial means by
Ales Bialiatski as his personal income spent for his personal needs was
unsuccessful.
It wasn't established that Ales Bialiatski purchased any property during the period of the alleged tax evasion. At the same time, evidence was provided that all assets were purchased by him long before the beginning of the criminal prosecution and all expenditures were confirmed by declared income which was repeatedly checked by tax inspectors. On the contrary, the court was presented evidence that the means, transferred to Bialiatski's account, were used solely for the purposes of human rights activities of the HRC "Viasna". The court ignored this evidence. Howeverm, even in the final charges and the sentence it is recognized that the receipt of funds from sources outside the Republic of Belarus by Bialiatski was connected "with the performance of the undertakings ensuing from the concluded agreements", which is admittance of implementation of certain errands by Bialiatski. As far as there were no talks about any other activities of A.Bialiatski except for human rights activities, the court evidently agreed with the existence of agreements connected to human rights activities. At the same time, the motions of the defense for making inquiries about the reasons and purposes of the transfers witness the reluctance to confess the real situation and the innocence of Ales Bialiatski.
Thus, Ales Bialiatski was prosecuted and convicted for actions associated with obtaining financing for the implementation of peaceful activities of the Human Rights Center "Viasna".
Does Court Verdict Correspond to Tax Legislation of Belarus?
According to the Belarusian tax legislation, finances received by a citizen
from a foreign organization for implementing the errand of transferring these
finances to other persons or making payments, aren't taxable and don't entail
the obligation to pay the income tax).
That's why it can be concluded that Bialiatski didn't receive taxable income by
implementing errands of foreign organizations and did not have any obligations
to pay income tax.
It should be emphasized that the reason why the accounts were opened abroad to finance the activities of the organization is that the use of the means received from the abroad is strictly limited or even made impossible by the Belarusian legislation. Thus, the legislation considers any foreign donations as foreign gratuitous aid and specifies that such funds can be obtained and used only with permission of the Department of Humanitarian Affairs of the Presidential Administration for a limited list of purposes which doesn't include human rights activities. At the same time, there are no clear criteria and procedure for obtaining such permission.
Such restrictions for foreign financing of public associations are absent in the jurisprudence of other states, including post-Soviet ones.
It is quite interesting that, during the trial of the human rights defenders, the Criminal Code was supplied with a new article, 369-2, penalizing activities for the use of foreign gratuitious aid (as a “convenient tool” for the future).
The following common problems were revealed during the trial of Ales
Bialiatski:
- opportunities for the exercise of the Belarusian citizens'
constitutional right to freedom of association;
- implementation of international obligations by the state;
- opportunities for human rights activism in Belarus.
Right of Association
The right of association is guaranteed by the Constitution of the Republic of Belarus and is recognized an the international treaty of the Republic of Belarus - the International Covenant on Civil and Political Rights.
The human rights organization "Viasna-96" was established in 1996. In 1999 it was registered as NGO "Human Rights Center "Viasna"". "The main aim of the association is peaceful activities to promote a civil society based on respect for human rights arising from the Universal Declaration of Human Rights and the Constitution of the Republic Belarus.
On 28 October 2003 the NGO "Human Rights Center "Viasna"" was deprived of state registration.
In accordance with the opinion of the UN Human Rights Committee #1296/2004 of 7 August 2007, the termination of activities of the HRC "Viasna" was considered a violation of the right to freedom of association, which Belarus has to provide in accordance with its obligations under the International Covenant on Civil and Political Rights. The State was asked to provide Ales Bialiatski and other founders with appropriate remedies, including re-registration of "Viasna" and compensation.
This decision of the Human Rights Committee wasn't implemented. In 2007, the Ministry of Justice of the Republic of Belarus refused to renew the registration of the HRC "Viasna" on the basis of the Committee's recommendation, which is a breach of the duty of the State in good faith performance of the international agreement.
The two attempts to register the organization with the state in 2009 had no
success. The law governing the registration process provides very broad
criteria sufficient for making a decision to refuse registration, allowing for
a systemic practice of registration denials to human rights organizations,
especially those who were deprived of registration.
Taking into account that activities on behalf of unregistered public
associations in Belarus are a criminal offense, denial of registration deprived
the founders of the HRC "Viasna" of opportunities to achieve the
goals set forth in the founding documents and, accordingly, to realize their
rights.
However, this does not correspond to the obligations, assumed by the state as a party to the International Covenant on Civil and Political Rights - to provide persons within its jurisdiction with the rights provided for in the Covenant. The state has no right to deprive a man of his natural and inalienable right. Thus, we can state a violation of the right of association towards Ales Bialiatski and other founders of the HRC "Viasna".
As far as the organization was placed outside the legal field by the state, it had to choose another form of activity and act as an unregistered association.
About Human Rights Activities
Human rights activities have a special status and a high degree of
protection in the international legal regulation due to the fact that human
rights are the foundation of the dignity and value of human personality.
Recognizing this, states, together and separately, have assumed the obligations
and responsibilities to promote and protect human rights. The process of
implementation in the international standards of human rights is largely
dependent on the contributions of individuals and groups - human rights
defenders. The right to protection of human rights and guarantees enshrined in
the Declaration on the right and responsibility of individuals, groups and
organs of society to promote and protect universally recognized human rights
and fundamental freedoms (Declaration on Human Rights Defenders).
The Declaration was adopted by the UN General Assembly by consensus and embodies the commitment of states based on membership in this organization.
Enshrined in the Declaration is in particular the right to conduct human rights work individually and in association with others, the right to form associations and non-governmental organizations, the right to seek, receive and utilize resources for the purpose of protection of human rights (including the receipt of funds from abroad). The internal law of States, relevant to international standards, should ensure the implementation of these rights.
Belarusian legislation does not contain the legal framework and safeguards for human rights activities. As for the receipt of funds from foreign sources, the domestic law raises insurmountable limits to attract foreign financing for any purpose, including for human rights work.
Effective implementation of the activities of any association, including human rights, it is impossible without fundraising. Being deprived of the legal body on the territory of Belarus (which means the impossibility of opening a bank account), the Human Rights Center "Viasna" determined the form of its funding through the use of personal bank accounts.
As a result of criminal prosecution, which is based on the accusation of the
use of funds from these accounts, the head of the HRC "Viasna" Ales
Bialiatski vested personal criminal liability. However, it was found that he
did not act for personal gain, but exercised his right to association for human
rights activities. Since this is a realization of the constitutional rights and
the rights guaranteed by the ICCPR, in which case the State (represented by the
judiciary) was to have considered the grounds on which such right may be restricted
in accordance with the Constitution and the Covenant, namely:
- the legality of prosecution;
- the need for measures of criminal
responsibility for the protection of public security or public safety, public
order, health or morals or the protection of the rights and freedoms of others;
- the proportionality of the measures of
responsibility to the achievement of public interest goals.
The court decision does not meet these criteria: it is not based on the
domestic tax legislation, does not specify which of interests are achieved by
drawing Ales Bialiatski to criminal liability, and does not explain why it such
extreme measure of responsibility as the deprivation of liberty is necessary to
protect the public interests in this particular case.
Thus, it should be stated that the State violated the right of Ales Bialiatski to freedom of association.
About Pre-trial Detention
The detention of Ales Bialiatski was of an arbitrary character, since the preliminary investigation and the court failed to provide specific justification for such measure of restraint.
Abstract provisions of the Criminal Process Code without evidence do not give grounds for detention. It should be taken into account that A. Bialiatski was suspected, and then - charged with nonviolent crimes. The appeals against the detention were considered in his absence and his explanations didn't interest anyone. The information about his personality and international recognition was not taken into account. Hundreds of personal guarantees with the request to release Ales Bialiatski on bail were rejected with the same wording. The fact that Ales Bialiatski, knowing about the claims of the tax inspection, repeatedly went abroad and returned to Belarus, was ignored, too.
During the first court sitting, held on 2 November, the state prosecutor Saikouski addressed the defendant with a "speech", the essence of which was that the restraint to the prisoner could be change depending on his testimony and compensation of the damage. It is absolutely contrary to law because the issue of a preventive measure can not be attributed to the way a defendant testifies. Moreover, at the stage of trial the restraint is determined by the court, not by the prosecutor. Thus, the prosecutor's speech demonstrated the lack of the judicial independence of the court, at least in determining the restraint.
About Court Proceedings
The trial, as a result of which Ales Bialiatski was issued a verdict, was unfair. This is witnessed by:
- Violation of guarantees of the presumption of innocence
Since the arrest of Ales Bialiatski, a campaign
aimed at his discrediting in the eyes of the public was launched at the state
media. In many publications, national newspapers and state television reports
it was directly stated that he evaded from paying taxes and cheated the state,
was the "keeper of the opposition cash", was involved in
"financial fraud", etc.
After the announcement of the verdict, but before its entry into force, Aliaksandr Lukashenka gave a comment when responding to questions from reporters during a visit to the Ivatsevichy district. There he stated that the penalty to Bialiatski was too mild.
Such statements do not comply with the principle of presumption of innocence, according to which a person is considered innocent until the verdict of the court enters into force. Violation of this principle could have had or has had an impact on the impartiality of the court of the first instance and the appellate court.
During the trial, Ales Bialiatski was kept in a cell, which created an image of a dangerous offender in the eyes of the public.
As it follows from the sentence, the failure of Ales Bialiatski to provide documents on the expenditure of funds from his accounts was used as the basis for conclusions about his guilt. Thus, the burden of proving his innocence was put on the defendant, contrary to the principle of presumption of innocence.
- Violation of the adversarial principle, the right to equality before the
court
Being kept in custody in pre-trial prison, Ales Bialiatski didn't have
information and documents about the receipt and expenditure of financial means
in his disposal. At the same time, as he explained to the court, the originals
of the appropriate financial documents and reports had been submitted to the
organizations which transferred the money long before the beginning of the
verification activities of the tax inspection. It was clear even from the
"information about the flow of funds on accounts," that these funds were
transferred not personally for Ales Bialiatski, but for the activities of the
Human Rights Center "Viasna".
In order to prove this, solicitations were made by Bialiatski and his defense during the court proceedings (including in the appellate court) for making inquiries to the organizations which transferred the money with the aim to receive information about the purpose of the transfers and the use of the funds. These motions were rejected, putting the defense in an unequal position with the prosecution in the matter of evidence.
- Violation of the right to defense
The right of a person to be informed about the legal status (a witness, a
suspect or an accused) and the facts which serve as the basis for the
accusation is one of the elements of the right to defense. This right ensues at
least from the fact that persons cannot draw arguments in their defense without
knowing the essence of the charges.
The right to defense was violated towards Ales Bialiatski, as the verdict was passed on the basis of vaguely worded charges.
Ales Bialiatski was charged with concealment of income and evasion from paying
taxes frokm the means which were transferred to his bank accounts. However, the
the prosecution did not specify when, in what amount and for what purpose the
money was transferred. Neither was it stated how Ales Bialiatski used these
means. Accordingly, it is unclear, on the basis of which information the amount
of the alleged "damage" was calculated. And the main thing - the
accusation never mentioned who had transferred the money - that is who was the
source of teh income.
The impreciseness of the charges deprived Ales Bialiatski of the opportunity to
argue in his defense, which is a violation of the right to defense.
- Clearly arbitrary nature of the assessment of facts and evidence
Making their conclusions on the basis of inappropriate and insufficient evidence, the court, at the same time, ignored some significant information presented in the process. No legal assessment was given to evidence of innocence of Ales, in particular:
• documents of foreign organizations which ensure that funds received
from them by A.Bialiatski were sent not to him personally, but for the
activities of the HRC "Viasna", and reports for their use were
received;
• statements of witnesses that A.Bialiatski passed to any third parties
the funds which were received from foreign organizations;
• samples of printed editions as an example of the results of the
activities for which funding was issued by foreign organizations;
• information in the bank statements on the transfer of funds for
various purposes of human rights activities;
• information on the international recognition of A.Bialiatski for his
contribution to the development of the Belarusian culture as a circumstances relevant
for the choice of the restraint;
• the formal written statement about of Lithuania about the inaccuracy
of the information, submitted in accordance with international legal
assistance, and testimonies of witnesses about the invalidity of the bank excerpts.
Moreover, an evident law violation was committed by confictation of all
property including Bialiatski's apartment, which cannot be confiscated under
any circumstances, being the only place of residence. The share of property,
which didn't belong to Bialiatski, was confiscated as well.
The appellate court didn't change its approach to the assessment of the social
danger of the alleged crime and the imposed penalty even though 757,526,717
rubles were transferred to the account of the Pershamaiski District Court of
Minsk to compensate the whole sum of the financial damage stated in the
verdict.
Thus, even though the financial claims of the state were completely satisfied, Ales Bialiaatski is still deprived of his personal freedom.
- Violation of the right to be tried in one's own presence
One of the standards of fair trial is the right to be tried in one's own
presence. Ales Bialiatski wasn't summonsed to the appellate court though he had
filed a petition for habeas corpus to give explanations, and his defense had
filed an appropriate petition during the proceedings at the Minsk City Court,
in what was denied. Thus, Ales Bialiatski was unable to directly participate in
the proceedings.
Thus, it should be concluded that Ales Bialiatski was convicted of a criminal
offense and sentenced to a long prison term on the basis of unfounded
allegations and as a result of unfair judicial procedures. The State also
evidently violated his constitutional rights.
We believe that the described actions of government agencies and the media are aimed at ruining the reputation of Ales Bialiatski as an individual, discredit of the very idea of human rights activities in Belarus and impeding the further work of organizations and individuals for the protection and promotion of human rights in the country.
However, the HRC "Viasna" continues its work. Ales Bialiatski is a well-known person on the European scale. His contribution to the development of the Belarusian culture and human rights activities are inextricably linked. And the attempt to blacken his name and efforts to protect human rights in Belarus by the unjust accusation is doomed to failure.
The following organizations and individuals demand the rehabilitation and release of Ales Bialiatski:
Amnesty International
CIVICUS
Civil Rights Defenders
Front Line
Human Rights House Network
Human Rights Watch
IDEA-Eurasia
Libereco - Partnership for Human Rights
Östgruppen
The Observatory for the Protection of Human
Rights Defenders
The Belarusian Association of Journalists
Belarusian PEN-Center
Danish Institute for Human Rights
The delegates of the extraordinary conference of
the Baltic States and Belarusians in Belarus
The International Federation for Human Rights
International Society "Memorial"
International non-governmental Coordinating
Committee Community of Democracies (ISC / CD)
International PENMinistry of Foreign Affairs of France
Ministry of Foreign Affairs of the Czech Republic
The Norwegian Helsinki Committee
The OSCE Parliamentary Assembly
The Working Group on Belarus in Group
"Diaspora"
National Institute of Georgia
Members of the Presidential Council on Civil
Society and Human Rights
Czech Helsinki
Committee
Andreas Herkel, PACE rapporteur on Belarus
Aung San Suu Kyi, the Nobel Peace Prize (1991)
Bertrand Delanoe, Mayor of Paris
Jerzy Buzek, President of European Parliament
(July 2009 to January 2012)
Catherine Ashton, EU High Representative for
Foreign Affairs
Martin Schulz, Chairman of the European
Parliament (January 2012)
Stefane Hessel, co-author of the Universal
Declaration of Human Rights
Thomas Hammarberg, Council of Europe
Commissioner for Human Rights
Shirin Ebadi, Nobel Peace Prize (2003)
Stefan Fule, the EU Commissioner for Enlargement
and European Neighborhood Policy
Ayman Gilmore, chairman of the OSCE
and others.
