Expert Conclusion on Prosecution of Dzmitry Paliyenka

On October 2016, the Central district court of Minsk found Dzmitry Palieynka guilty of committing a crime envisaged by article 364 of the Criminal Code of the Republic of Belarus (violence or threat of violence against an employee of law enforcement agencies) and article 343, part 2 (production and distribution of pornography materials or items of pornographic character). According to the decision, Paliyenka was sentenced to two years imprisonment with deferral of execution of the sentence for two years. He was set free in court.

Before that, Palieynka had been several times detained by police for participation in demonstrations and subject to arbitrary arrest before the World Hockey Championship in Minsk in 2014 (he was detained on May 8, 2014 and arrested for 10 days).

The action Critical Mass on 29 April 2016, detention of participants and opening of criminal proceedings against Palieynka and Kanavalau.

The grounds for criminal prosecution of Paliyenka has been his participation in peaceful gathering Critical mass on April 29, 2016 in Minsk. The event was a mass cycling ride and was held for several months. The aim of the cyclists was to protest against the restrictions of the traffic rules on movement of cyclists on the road. Traditionally, cycling rides take place without submitting any applications. Invitations are sent through social net where the rules of the rides are written down in order to observe public order.

Thus, the pre-stated aim of this event was public expression of opinion through peaceful assembly. This circumstance makes it possible to qualify the Critical Mass as peaceful assembly. In all, 35 people took part in the ride. The Human Rights Center "Viasna" and the Belarusian Helsinki Committee monitored the course of the meeting, which has been illustrated in the report.

Near Bahdanovicha Street, a column of cyclists rode to the extreme right side of the road. They did not create any obstacles to other participants in the traffic. Around 20 minutes after the beginning, the police started interfering with the event.

It should be mentioned that according to the OSCE Guidelines on the Freedom of Peaceful Assembly, the authorities have a positive obligation to enhance the exercise of the rights, to defend participants (p. 2.2), even when it interferes for a short time with regular traffic movement (p. 20). In this case, the police attended the place of gathering and followed the movement of the cyclists, but instead of guarding and encouraging the event, 20 minutes later they used disproportionate force to stop the action.

The detainees were rudely pushed onto the floor of a bus, beaten with legs on the face and stomachs, bikes were thrown on top of them, and they were not allowed to stand up all the way to the police department. No demands were announced along the way, nobody resisted in the bus, but force was applied, the special squad police cursed with rude words.

As a result, six people were prosecuted, including one observer. The traffic policemen and special squad policemen inflicted bodily harms to the detainees, and the property was spoilt. Two of the participants, Dzmitry Paliyenka and Stanislau Kanavalau were detained as suspects in a criminal case according to art. 364 of the Criminal Code. Later, Kanavalau was set free, and the criminal case was closed. And then the administrative cases according to art. 23.4 were open (disobedience to lawful police’s demands), against four participants of the event, and they were held liable for violating the traffic rules.

On March 6, the HRC Viasna issued a statement concerning the arrest of Dzmitry Paliyenka. The statement indicated that the arrest of the participants of the action was estimated as a consequence of their exercise of their freedom of speech and as the restriction of their right to peaceful assembly. It remarked the disproportionate use of force by police when interfering with the action and detention of the activists. The statement sums up with the demand to set Dzmitry Paliyenka free until the end of the investigation, and to stop prosecution against other participants of the action. Nevertheless, Paliyenka was under arrest for five months, and just before the trial, another charge was brought – according to article 343, part 2 of the Criminal Code.

Court proceedings in the case of Dzmitry Paliyenka at the Centarl district court of Minsk, October 11-12, 2016.

The court proceedings started on October, 2016. The process was monitored by the representative of Viasna Pavel Sapelka. Upon the results of the monitoring of the court proceedings, experts of Viasna came to the following conclusions:

The fact that Dzmitry Paliyenka used actions of violent character against police officers, who guarded the public order during the cyclist ride Critical Mass, did not find confirmation and was not supported by sufficient evidence during the court proceedings.  

Thus, the aggrieved party Uladzimir Kaltunou told that, performing the order to stop the cyclist ride of the Critical Mass, he stopped one of the cyclists on the move, Kanavalau, who was riding in the road and violated the traffic rules. As a result, they fell on the asphalt. When the aggrieved person started to rise, he felt being dragged down by the hand by Paliyenka.

“I felt my jacket dragged. I grasped him by the hand, he started tearing out. Then, I hit him twice in the area of corpus, this complies with the law. After that he lay on the asphalt. As a result, I had my jacket torn. I did not see that it was exactly him who tore the jacket. I don’t have claims to him, and did not file material claims. I did not suffer beating or any physical damage.”

In questioning the second witness, chief inspector of the traffic police Aliaksandr Dashukevich, it turned out that he did not see that it was exactly Paliyenka who tore Kaltunou’s jacket:

“I ran up to them when they were lying on the ground. I saw only Kanavalau trying to tear out a bike from Kaltunou’s hands, and then Paliyenka arrived, dressed in a blue sweater, and started grasping Kaltunou by the hand.”

Responding to Paliyenka’s lawyer, the witness Dashukevich oncegain cleared it out that he did not see the moment when Paliyenka was tearing Kaltunou’s jacket, as he was holding Kanavalau at that time. The witness did not remember either if he later told that it was Palieynka who had torn the jacket.

The third witness was Vadzim Rutkouski, who had been driving past and stopped because he thought he had to help the policemen. He did not see if Kaltunou and Paliyenka were struggling, as there was a car in the way, but he noticed that Kaltunou’s jacket was torn.

“A big guy was lying on the ground, the policeman tried to detain him. Then a small guy jumped up to him began to pull by the hand. Then all of them were seized the riot police and dragged into a bus.”

The riot police officer Hutsau, of the police department of the Minsk City Executive Committee, who testified on the circumstances of the detention of the cyclists, explained that he had not seen how Paliyenka had been tearing the jacket.

“The defendant was with the bike. We used force to take the bike away, and took him to the car.”

Since witness Kanavalau was unable to attend the proceedings because of leg fracture, prosecutor Yurkevich read out his testimonies given during the preliminary investigation:

“Dzmitry was following me, we drove off the cycling road to the car way, then we heard a traffic warden demanding us to turn to the pavement. A traffic warden tried to stop me, grasped my bike on the move, and we fell. I tried to rise, but he held me tight and put on handcuffs. I saw Kaltunou showing a torn jacket and saying to other policemen: “Look what he’s done”.

The defendant Paliyenka refused to testify in court and pleaded non-guilty.

As for the porn video allegedly published by Paliyenka on a page in Vkontakte, it should be remarked that it has not been proved that the page belonged to Paliyenka. It was not established when and from what device the post had been published. Now, the page is no longer on the web, which was confirmed by the document presented by the lawyer. The investigation alleged that the video had been posted by Paliyenka three years before.

Curiously, the court heard the reply of Saint-Petersburg police department in response to a request of Minsk police regarding the ownership of the account in Vkontakte.  The request dated Macrh 16, 2016, that is before the Critical Mass action was held on April 29 the same year. The fact might testify that the special service have long looked for a chance to hold Paliyenka liable according to criminal law.

Based on the monitoring over the court proceedings, Viasna experts gave the following comments:

Pavel Sapelka noted the insufficiency of the evidence given in court:

“The prosecutor’s speech reflected vividly the lack of sufficient and convincing proofs in the criminal case. They missed from the part of the incriminated violence against the policeman, as well as in the part of distribution of pornography materials on the web.
I am convinced as earlier that the prosecution of the activist has been linked totally to his exercise of civil and political rights”.

Valiantsin Stefanovich remarked that human rights defenders’ assessment of the criminal case had not changed.

“We consider that the authorities, instead of performing their positive obligations on ensuring the freedom of assembly, exercised by Paliyenka and other participants of the action Critical Mass, detained the participants of the action with the disproportionate use of force and beat some of them during the detention.

In this regard, we consider that the prosecution of Dzmitry Paliyenka is directly linked to the exercise of the rights and freedoms, guaranteed to him by the Constitution.

We are glad by the moderateness manifested by the authorities towards Paliyenka and by the sentence, not imposing freedom restriction. Nevertheless, the sentence underlines the necessity to hold reforms of the legislation regulating implementation of constitutional rights, including the freedom of peaceful assembly, guaranteed to all citizens of Belarus.

The decision with its motivational part, issued by the Zavodski district court of Minsk to overturn the suspension of execution of the sentence

In this regard, we remark the following:

According to art. 77, part 6 of the Criminal Code, when the convict, whose sentence has been suspended, does not fulfil the duties imposed on him by court, despite an official warning, or repeatedly violated the public order, for which he has been twice held liable according to the administrative law, then the court can annul the suspension, following an application of the supervisory body over the convict or other persons entitled with the task, and send the convict to serve the sentence as defined by the initial court decision.

The grounds for this decision were two administrative penalties in the form of arrests according to art. 17.1 (minor hooliganism), 23.4 (disobedience to lawful police's demands) and 23.34 of the Code on Administrative Offences (organizing or participating in unsanctioned mass events). The first case related to the events of March 10, 2017, when Paliyenka was detained in the House of Justice, when we shouted loud several times “Shame!” after the court decision was announced on so called “anti-fascists case”, expressing his indignation against the verdict. The Maskouski district court of Minks held him liable according to articles 17.1 and 23.4 and arrested for 7 days.

The second case related to detention of Paliyenka on March 20, 2017 when he came to a detention center to leave there a parcel for a detainee. He was held liable according to art. 23.34 by the Zavodski district court of Minsk and arrested for 15 days for participation in a peaceful assembly on February 25, 2017 against the construction of a business center in the area of the memorial of the victims of Stalinist repressions Kurapaty.

When Paliyenka was supposed to go out from the prison in Žodzina, he was not set free. His camera-mates reported that he had been held liable according to administrative law once again and arrested for 10 days more. The grounds for the arrest are unknown to the public.

In our view, both the administrative cases are connected with Paliyenka’s exercise of freedom of expression and freedom of assembly. Besides, holding him liable according to art. 17.1 can be regarded in essence as arbitrary detention, not grounded on his having performed the incriminated activities (minor hooliganism).

As for Paliyenka’s failure to implement the sentence as for employment is concerned, it should be mentioned that after the curt verdict Paliyenka was registered in the employment center and took attempts to find a job, but got refusals from potential employers.

Conclusions and demands

Analyzing the above-mentioned facts in a sum, we come to the conclusion that freedom restriction for 1.5 years for Dzmitry Paliyenka has been politically motivated prosecution, aimed to prevent him from his public activities.

Taking into account that freedom deprivation of Paliyenka has been the direct result of his exercise of freedom of assembly and freedom of expression, we consider it possible to recognize him a political prisoner and to demand that the authorities release him immediately.