Why are convicted anarchists Yemialyianau and Komar Belarus’s new political prisoners?
Ivan Komar and Mikita Yemialyianau
On March 27, the Minsk City Court is expected to hear appeals in the case of convicted anarchists Mikita Yemialyianau and Ivan Komar. If upheld, their sentences will become final and the two activists will be sent to serve 7 years in prison.
The Human Rights Center “Viasna” analyzed the sentences delivered on February 12 and offers a detailed explanation of why Yemialyianau and Komar are Belarus’s new political prisoners.
Background
Since the start of the radicalization of anarchist protests in Belarus, the authorities have closely monitored the activities of anarchist communities and individuals. Law enforcement officers regularly carry out violent actions against the anarchists. Many of them are victims of police abuse: their rights to a fair trial, liberty and security of the person, the right not to be subjected to torture and cruel, inhuman, degrading treatment, freedom of peaceful assembly, opinion and association, the right to protection from interference with privacy are routinely violated.
In particular, in December 2010, Ihar Alinevich was kidnapped by special services from the territory of the Russian Federation and brought back to Belarus, where, in violation of the right to a fair trial, he was sentenced to 8 years in prison. Other convicts in the case, Mikalai Dziadok and Aliaksandr Frantskevich, along with a number of witnesses, said that they were subjected to ill-treatment and forced to incriminate themselves. The three anarchists were called political prisoners by the Human Rights Center “Viasna” and the Belarusian Helsinki Committee.
Subsequently, Ihar Alinevich and Mikalai Dziadok were subjected to ill-treatment in prison and sent to serve their sentences in maximum-security correctional facilities, while Dziadok was arbitrarily re-convicted to an additional 12 months for minor violations of prison rules after serving his initial 4.5-year term.
In January 2016, anarchists Maksim Piakarski, Vadzim Zharomski and Viachaslau Kasinerau were convicted of spraying graffiti and vandalizing a billboard with the photo of a police officer. The three men were sentenced to heavy fines after spending about a month in pre-trial detention. The defendants reported torture and incitement to self-incrimination. Viasna called for their release, alleging a violation of freedom of expression.
In October 2016, anarchist Dzmitry Paliyenka was sentenced to two years in prison on trumped-up charges. The human rights community of Belarus called the activist a political prisoner, and Amnesty International in August 2017 recognized him as a prisoner of conscience. After serving his sentence, Paliyenka was again arbitrarily accused of committing a number of crimes and eventually convicted of malicious hooliganism and sentenced to a term of restricted freedom.
In April 2017, Viachaslau Kasinerau was sentenced to a fine for a performance near the Interior Ministry’s headquarters in Minsk, when he threw a noose on the statue of a tsarist police officer. The action was said to express protest against police arbitrariness. Viasna’s activists condemned the political nature of the prosecution and the human rights community demanded his release during his pre-trial detention.
The criminal prosecution of anarchist, arbitrary detentions, ill-treatment of detainees, dispersal of various peaceful events give us reason to confidently assert that there is a practice of persecuting anarchists for their views and beliefs.
The criminal case of Yemialyianau and Komar
In September 2019, the Minsk City Court was expected to open the trial of anarchist Dzmitry Paliyenka. On that day, unidentified people threw light bulbs filled with paint at the facade of the courthouse. In October, when the Paliyenka case was still in court, unknown people twice attacked the pre-trial detention center in Minsk with Molotov cocktails. During the first incident, a bottle was thrown at the metal door of the facility (there was no fire), and the second time — the bottle hit the sidewalk near the entrance and set the surface on fire (the smoke slightly damaged the facility wall).
On October 20, 2019, anarchists Mikita Yemialyianau and Ivan Komar were arrested on suspicion of committing the crimes. On October 22, they were remanded in pre-trial custody, where they remained until the trial. Meanwhile, based on the content of the prosecution, the activists could not influence the investigation: there were no witnesses whom they could force to change their testimonies and the accused could not destroy the evidence. The purpose of securing their appearance in court could have been achieved by applying other measures.
The Belarusian Code of Criminal Procedure provides that the severity of the crime itself is grounds for pre-trial detention. However, the United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) say that “pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.” “Alternatives to pre-trial detention shall be employed at as early a stage as possible,” the Rules suggest. In addition, the aforementioned measure, being sanctioned by the prosecutor and not by the court, violated paragraph 3 of article 9 of the International Covenant on Civil and Political Rights. Thus, although it did not go beyond the usual repressive practices of the Investigative Committee and the Prosecutor’s Office, the detention of Yemialyianau and Komar constituted a violation of the right to liberty and security of person.
Their stay in the detention facility and later in the pre-trial detention center was marred by violations of their civil and procedural rights. In particular, Mikita Yemialyianau was interrogated by an Interior Ministry officer in the absence of the investigator in charge of the criminal case, without a protocol, without a lawyer, and without clarifying his rights. Yemialyianau believed that this was just a private conversation, but this ‘conversation’ was recorded and documented as part of the investigation. Subsequently, this conversation appeared in the case file as evidence of the defendants’ guilt.
Ivan Komar claimed that the pressure he faced amounted to torture. Before each interrogation, he was taken to a room with GUBOPiK officers (Main Directorate for Combating Organized Crime and Corruption, department specifically targeting anarchists in Belarus), where he was threatened with violence, lengthy prison terms and problems for his family and friends. It should be noted that the investigator could not have been unaware of these visits. Some interrogations, according to Komar, took place without a lawyer. Komar also said that GUBOPiK officers threatened to put him in a cell with ‘low status’ prisoners in case he gives testimonies that had not been agreed upon by the officers. According to human rights activists, this threat means that the prisoner will either have to inflict damage on himself or break the prison rules, demanding to be taken out of the cell, or he will himself be labeled as a ‘low status’ prisoner, which results in an absolute disrespect for his rights, including the obligation to perform the most dirty work, to have many duties and taboos (he must occupy a certain place in the cell, report on his low status; such prisoners should not share cells with ordinary prisoners, have meals next to them, touch them or their things, or give their own things to someone else). For these prisoners, this also means repeated and unpunished violence.
Komar said he wrote a confession, i.e. could not refuse to testify, after in the first hours of his detention he was put in a cell with a man who beat him 10 times in the face, took off his shirt and threatened him with rape. This man demanded a confession. On the same evening, Komar wrote 2 documents in the presence of GUBOPiK employees.
According to our knowledge, the police often use other prisoners to put pressure on the accused in order to obtain the necessary testimonies; other prisoners earlier reported similar abuse.
In particular, death row prisoner Siamion Berazhny, when speaking at the Supreme Court in 2017, said that one of the prisoners, by all indications coordinating his actions with the persons investigating the case, used violence to demand self-incrimination and testimony against other defendants in the capital case.
During the trial, Ivan Komar rejected many of his earlier testimonies. Komar also said that his defense during the investigation was ineffective: when asked by the judge whether he informed his lawyer about the pressure, Komar explained: “Yes, but she said it’s better not to voice it. All lawyers said the same thing - that it would only make things worse. Apart from my current lawyer.” Thus, the fact that a lawyer participated in the interrogations does not refute the defendant’s allegations of ill-treatment.
Komar complained about the police abuse during the preliminary investigation of the case. An investigator of the Maskoŭski district department of the Investigative Committee conducted a so-called investigation. Human rights activists and international experts have repeatedly criticized such methods of responding to reports of torture: the investigations fail to utilize the entire scope of powers the inspectors possess. They are limited to mere interviewing (without warning of responsibility for perjury) the persons involved, and some other actions. Investigative experiments, verification of evidence on the crime scene, and confrontations are never carried out, because this is not provided for by the Code of Criminal Procedure. Moreover, the alleged offenders are not suspended from their office. Therefore, it is true to say that there has been no proper investigation into Komar’s allegations of torture. Such methods of improper investigation of allegations of torture in Belarus were criticized by the UN Committee against Torture in 2018. The Investigative Committee, however, failed to find any violations Ivan Komar’s rights.
The results of the investigation were not attached to the case file, and the court did not examine them, as a result. The court also did not suspend the proceedings until the torture allegations were thoroughly investigated. Nor did it make any steps to verify Komar’s allegations of coercion to testify and torture.
By being confined to a cell during the trial, the authorities violated the defendants’ presumption of innocence. On the court premises, during the days of the trial, without any objective necessity, additional control measures were taken to increase the atmosphere of fear: bags were examined, and incoming visitors were filmed.
Thus, the court hearing was conducted in violation of the principles of a fair trial.
Based on the verdict, the court found that the defendants:
- acting as a group of persons by prior conspiracy, having the intent to damage property in a public place by throwing light bulbs filled with paint at the building, they committed property damage against the Minsk City Court building;
- acting as a group of persons by prior conspiracy, they intentionally illegally made a home-made incendiary device, an object whose damaging effect is based on the use of combustible substances, which they illegally stored and transported across the territory of the city of Minsk;
- acting as a group of persons by prior conspiracy, having the intent to intentionally damage property in a generally dangerous way, attempted to damage the administrative building of pre-trial detention center No. 1 in a generally dangerous way, but failed to complete the crime due to circumstances beyond their control, since the combustible substance did not ignite;
- acting as a group of persons by prior conspiracy, they again deliberately illegally made a home-made incendiary device, an object whose damaging effect is based on the use of combustible substances, which they illegally stored and transported across the territory of the city of Minsk;
- acting as a group of persons by prior conspiracy, having the intent to intentionally damage property in a generally dangerous way, deliberately damaged by arson the facade of the building of detention center No. 1.
The verdict established, and Yemialyianau does not deny this, that he actually committed the actions provided for by Art. 341, part 1 of Art. 14, part 2 of Art. 218, part 2 of Art. 218, and part 2 of Art. 295-3. It was also reliably established that it was Ivan Komar who purchased the light bulbs, the paint, and the solvent. He also filmed the three actions.
Thus, the conclusions of the verdict alleging the commission of the crimes by a group of persons by prior conspiracy are untenable under the criminal law.
A crime is recognized as committed by a group of persons if at least two persons jointly participated in the commission of this crime as its executors (co-executors); a crime is recognized as committed by a group of persons by prior conspiracy if the offenders agreed in advance on the joint commission of this crime (Article 17 of the Criminal Code).
The court, however, failed to substantiate its findings about the joint commission of the crimes. Ivan Komar denied his knowledge of Yemialyianau’s plans to attack the detention center with Molotov cocktails. But even the court’s conclusion that Komar was aware of Yemialyianau’s plans to commit unlawful acts and, at his request, purchased the paint, the light bulbs and the solvent, and also videotaped the attacks, does not indicate that the crime was committed by a group of persons by prior conspiracy: Komar’s actions are not covered by the objective part imputed to Yemialyianau, but have elements of aiding in committing some of them.
An accomplice is a person who assisted in the commission of a crime by giving advice, guidance, providing information or tools and means of committing a crime, removing obstacles or providing other assistance, or a person who promised in advance to hide the criminal, the tools or means of committing a crime, evidence of a crime or objects obtained by criminal means, or a person who has previously promised to purchase or sell such items (Article 16 of the Criminal Code).
Thus, taking into account the circumstances authentically established by the verdict — the manufacture of the incendiary mixture and its transportation, throwing the light bulbs with paint and the bottles with the incendiary mixture by Yemialyianau, Komar can only be convicted of aiding in the form of providing tools or means of committing the crimes, provided that this qualification is properly substantiated by the sentence.
It should be borne in mind that the sentence does not contain any no reliable evidence of Komar’s complicity with Yemialyianau in illegal actions with respect to objects whose damaging effect is based on the use of combustible substances and the commission of the attack on the pre-trial detention center.
Among the mitigating circumstances, according to the court, was the defendants’ voluntary compensation for the damages; an aggravating circumstance, in accordance with Art. 341, part 1 of Art. 14 and part 2 of Art. 218 of the Criminal Code, was the commission of the crimes by a group of persons by prior conspiracy. The court’s conclusion on the need to impose a sentence related to deprivation of liberty is not substantiated in the sentence.
Part 2 of Article 218 of the Criminal Code (intentional destruction or damage to property committed in a generally dangerous way) provides for up to 5 years of restricted freedom (custodial or non-custodial) or 3 to 10 years of imprisonment. The court sentenced the two defendants to 5 years of imprisonment for attempting to commit the crime, and 6 years for committing the crime; by absorbing a less severe punishment by a more severe one, the eventual sentence is 6 years in prison.
Part 2 of Art. 295-3 of the Criminal Code (illegal manufacture, purchase, transfer into possession, sale, storage, transportation, transfer or carrying of items whose damaging effect is based on the use of combustible substances, committed repeatedly or by a group of persons by prior conspiracy) provides for up to 3 years of restricted freedom (custodial or non-custodial) or up to 5 years of imprisonment. The court determined the defendants to 4 years in prison.
Article 341 of the Criminal Code (damage to property in public places in the absence of signs of a more serious crime) provides for punishment in the form of community service, or a fine, or up to three months of detention. The court sentenced the defendants to 3 months of detention each.
By partial addition, the court sentenced Yemialyianau and Komar to 7 years in prison each.
Anarchists receive lengthy prison terms over Molotov cocktail attack
The punishment is excessively strict and violates the principles of criminal punishment. When imposing a sentence, the court must proceed from the principle of individualization of punishment, that is, take into account the nature and degree of public danger of the crime committed, the motives and goals of the offense, the identity of the perpetrator, the nature of the damage caused and the extent of the damage caused, as well as the circumstances mitigating and aggravating the responsibility. It should also substantiate the selected measure of punishment in its sentence. A custodial sentence can only be imposed on the condition that the objectives of criminal responsibility cannot be achieved by applying a milder punishment provided for in the corresponding article of the Special Part of the Criminal Code. The court may also declare as extenuating the liability and circumstances not specified in the corresponding article of the Criminal Code.
The crimes provided for in part 2 of article 218 and part 2 of article 285 of the Criminal Code are respectively qualified as grave and less grave; article 341 of the Criminal Code — not representing a great public danger. At the same time, these articles provide for non-custodial punishment. This means that for all the acts committed by the defendants, the sentence could range from 6 months of non-custodial restrict of freedom to 10 years in prison. The court’s choice of punishment within this range should have been made with respect for the circumstances of the case: there was one aggravating and one mitigating circumstance; the defendants are young people with no prior convictions; the damage from the crime under Article 341 of the Criminal Code was insignificant (143.22 rubles), under part 2 of Article 218 of the Criminal Code — symbolic (1.48 rubles), under part 1 of Article 14, and part 2 of Article 218 of the Criminal Code — there was none; there were no victims in the case; the motive for committing the crimes was drawing attention to the political prisoners in Belarus and disagreement with the current system and repression for freedom of opinion.
In accordance with Art. 19 of the Covenant, everyone has the right to freely adhere to their opinions. Everyone has the right to freedom of expression; this right includes freedom to seek, receive and disseminate all kinds of information and ideas, regardless of state borders, either orally, in writing or by print, or in art forms of expression, or in any other way of their choice.
In the spirit of the Covenant, it should be stated that both convicts have the right to have any, including anarchist, beliefs. There is no evidence that the ideology of anarchism calls for violence and an encroachment on the rights of citizens.
At the same time, the exercise of the right to disseminate opinions imposes special obligations and special responsibilities. This right, respectively, may be associated with some restrictions, which, however, must be established by law and be necessary:
a) for the respect and reputation of others;
b) for the protection of state security, public order, public health and morals.
Thus, the attacks on the court building and the pre-trial detention center are not covered by the protection of article 19 of the International Covenant on Civil and Political Rights. However, the permissible restrictions on freedom of expression established for the protection of public order should be proportionate and not go beyond the necessary limits. This means that the unlawful use of a combustible mixture and damage to property can and should be prosecuted, however, the punishment for these violations should not be excessive and disproportionate.
Meanwhile, the punishment imposed on the defendants is clearly excessive — the two youths who violated the law for the first time and thus could be punished and corrected without imprisonment were sentenced to the most severe form of punishment provided for by the Criminal Code; their terms of imprisonment are closer to the maximum possible punishment. Moreover, under part 2 of Article 295-3 of the Criminal Code, the punishment is imposed in violation of part 1 of Article 69 of the Criminal Code, as it exceeds half of the maximum penalty prescribed by the article in the presence of a mitigating circumstance provided for in paragraph 4 of part 1 of Article 63 of the Criminal Code.
Komar was punished without taking into account his role in committing the unlawful acts. It is the same as that imposed on Yemialyianau, who himself committed all the actions that are part of the objective side of the crimes. This is yet another confirmation that the type of punishment and its length for both convicts is dictated solely by their belonging to the anarchist community, which, in our opinion, is evidence of the presence of a political motive in the case.
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