2011 16/10
Аляксей Лапіцкі, судовы працэс у Жодзіне

Alaksiej Lapicki, trial in Zhodzina

On 14.10.2011 from 14:30 to 16:45 the second trial on the appeal of human rights defenders Aliaksiey Lapitsky and Sviatlana Lapitskaya was held in Zhodzina court. The appeal was filed on lawless actions (inaction) of the officials from Zhodzina executive committee who made obstacles and prohibition of peaceful mass action planned on 8.22.2011 in support of a prominent human rights defender Ales Bialiatsky.

The trial judge was Tatsiana Tratsiuk. For unknown reason, secretary Iryna Hardziyevich, who was responsible for trial records, has been replaced by another secretary - Charnienka.
At the beginning of the trial Aliaksiey Lapitsky made a motion and for 15 minutes was getting acquainted with the case materials.

It turned out that the documents which were requested by court from housing utilities, central town hospital, Department of Internal Affairs were absent: model forms of contracts with individuals and prices for their services in the frame of the Law “On mass events in Belarus.”

Judge Tatsiana Tratsiuk requested these documents not properly (!?), so the applicants raised the question about the execution of court’s decision on providing the court with relevant documentation.

In this regard a discussion happened again. Judge Tatsiana Tratsiuk in response to this legitimate remark and the requirement of procedural non-compliance of her own decision on 10.7.2011 about the request of the applicants, for some reason, decided to re-examine the petition and once again asked the representatives of the executive committee about their reference to the request of the documentation. And the representative of the executive committee, in her turn, did not support the request for documents this time. After that, the judge again, unclear under which reasons, tried to postpone consideration of this case…

However, the applicants demanded to accomplish the proper procedure. As a result the court was forced to return to the decision on the applicants’ appeal and judge T. Tratsiuk finally agreed with her last decision – she decided to make appropriate requests to these organizations by the next meeting (!?).

***
Referring to the fact that in the decree submitted to the court by the chairman of the executive committee Mikhal Amielyanchuk also lacked specific motivation to ban the declared picketing, and he directly accepted the resolution № 262r of 15.08.2011 to ban picketing and also had a previous positive experience of communication with applicants and conducting peaceful events in Zhodzina until 2005, the applicants again filed their request for direct participation of the executive committee’s chairman in the trial. The petition was not satisfied by the court again.

Later the judge clarified the positions expressed by the parties of the case in the preliminary trial. The applicants have confirmed their position and the party of executive committee didn’t recognize it again and stated that it considered all actions of the government legitimate.

The applicants have paid attention to the wording of paragraph 4 of the Decision of Zhodzina executive committee of 2005. It says literally that «the organizers of these events pay the costs of medical care, clean-up after the mass gathering, militia and fire protection”.

In this regard, Aliaksiey Lapitsky supplemented his position:

“The decision … of 2005 contains paragraph 4, which states that… organizers of events pay costs. That is, there is no specificity with respect to the order of payment of these expenses in the document. Law provides order, and it says that in 10 days term… organizers of event are required to pay these costs, which really happened to be. We in our appeal said that we would undertake public order, healthcare, cleaning the area and gave written assurances to act within the law. Thus, we confirmed that we were ready to compensate expense in accordance with the law in 10 days, if such would be, “- said the applicant.

Concerning the obligation of signing contracts, it was clarified that the applicants have raised the question of agreements because “nobody saw these agreements and nobody will sign contracts with citizens, who appeal for peaceful protest in the context of their social and political rights until the resolution from the executive committee. In this regard, I draw attention to the fact that, as the representative of the executive committee V. Verhel testified at the previous hearing” - the executive committee currently interprets its requirements as the need to attach to the application “the obligation of applicants to enter into such contract for the provision of appropriate services”.

It was emphasized that the application was not considered by the executive committee properly. It wasn’t “studied objectively … and nobody ever made sure that the applicants had provided assurances to act within the law …” which means within its articles and rules. Including Article 10.

“Really, this time we were ready to pay fees, required by the decision of Zhodzino executive committee № 781 from 2005. … – Yes, in our application there is no phrase “enter into contracts,” but neither law nor the same decision № 781 has the word “contract”, “- said Aliaksiey Lapitsky.

He explained: “If our application would be treated in accordance with the Law “On mass events in the Republic of Belarus” and in accordance with the Law “On citizens’ appeals” were studied objectively, then it would be necessary not to make assumptions, do not think over but to clarify our position. After all, if we bear witness that we are responsible for everything – so we really take that responsibility on ourselves … In this situation, we absolutely do not violate the provisions of this decision of the executive committee of 2005 and it had to be taken into account by the executive committee when making a decision. But it hasn’t been done”.

During further investigation, when hearing the parties’ positions, finally recorded in the previous meeting, Aliaksiey Lapitsky drew attention of the court to the fact that the position of the executive committee representative Volha Verhel was articulated in the minutes in a distorted form. Thus, again, the demand was voiced for the applicants to attach contracts with organizations to provide services of law enforcement organs, health care and cleaning services (!?) to the application. During the negotiation of the circumstances of the preliminary hearing and further clarifying the position of Zhodzina executive committee Volha Verhel recognized this discrepancy and agreed with the comment of Aliaksiey Lapitsky.

In this regard, the position of the representative of executive committee was reaffirmed and fixed at the previous meeting saying that Zhodzina executive committee has considered it optional to attach contracts with municipal militia department, central hospital, communal services, or with other business entities that perform such services for permission of the declared mass event (which was required before and at the beginning of the previous trial on the complaint). Currently, the executive committee believes that in order the applicants to get a permission they must attach to their application not the contracts themselves, but a written commitment that the applicants would enter into such contract with the services mentioned. And it’s not necessary to specify the names of these organizations or individuals.

It was also found out that there was no concrete closed list of such organizations in the executive committee. The executive committee also lacks forms of contracts, price lists for these services (with the description of the work) with differential gradation of types and forms of mass actions, their scale (up to 1,000 participants, over 1,000 participants …) goals of public events (public, commercial … ), and also depending on people who are requesting holding events (individuals, legal persons, public and nonprofit organizations, commercial institutions, pensioners, unemployed …).

And then, during the refinement of the positions and asking questions it was revealed that V. Verhel in any case, considered that even in situations where there no costs for small picketing exist, the applicants of a peaceful assembly of citizens should still pay the “expenses” (!?). The reason was that even if one police officer was present somewhere near during the event, he acted to protect participants of the picketing and actually helped them to organize this picketing. So, you must pay for this. On the part of the utilities services, quoting V. Verhel a special container will have to be transported put near the picketing to collect the leaflets (for some reason the government representative thinks that they will lie under the feet on the pavement (!?) … Moreover, the representative of the executive committee could not explain the purpose for which the protesters need a garbage container, when there are enough waste bins in the town, and it’s enough for organizers to have a plastic bag for cleaning the territory after the picketing. And it does not require any cost to the utilities, which is financed from the budget through taxes and special charges of citizens and has a functional responsibility to clean the town’s park and recreation culture of the citizens every day…

In connection with the confirmed position of the executive committee’s representative there appeared new circumstances. In these circumstances, Aliaksiey Lapitsky noted that “taking into account the absence of the executive committee’s requirements on attaching contracts with the militia, doctors and communal services to the application, as well as the attached written assurances from the applicants on the proper organization of the event strictly within the law with a total absence of costs of a small picketing (up to 10 people) and at the executive committee officially provided area, as well as with the responsibilities of the authorities to guarantee the possibility of the applicants to carry out peaceful activities … – in these circumstances, the executive committee did not have any legitimate and legal grounds to ban the picketing”.

Later in the court session the representative of the executive committee claimed that those responsible for the work of the correspondence of the executive committee Alena Senchanka and Tamara Matsiushonak can not appear and testify in court about the delays in sending answers to the applicants. According to court documents submitted in the form of orders made by the Vice-Chairman of the Zhodzina executive committee Yury Shary on 4.10.2011, they both were urgently sent to social leave from 11.10.2011 on the basis of a note # 22 417 in the name of A. Senchanka (as if of 02.19.2011!? – see attachements).

In this situation, Aliaksiey Lapitsky stated that the executive committee has not submitted any evidence and physical evidence that the responses registered by August 16 and September 2 were sent timely. The stamps on the envelopes from the executive committee have other mailing dates, namely, August 18 and September 7, 2011. And this accordingly is 2 and 5 days later and it violates the required by the legislation the terms.

In this context, the statements of the executive committee’s representative V. Verhel, who together with the Vice-chairman Yury Shary personally signed the second response of 02.09.2011 and was personally responsible for the manipulation of the dates and terms of the late response from the executive committee to applicants can not be considered as necessary evidence. In this situation, Aliaksiey Lapitsky told about his disappointment and suggested the judge T. Tratsiuk to call from the responsible representatives from the head post-office for explanation.

However, the proposal was not supported and didn’t meet the actions of the judge necessary in this situation. She has only assured the applicants that in this situation, the court will be able to evaluate objectively the failure of the executive committee to provide the necessary evidence of its position to the court. In this way she, in fact, refused to make the request to the post-office.

Later in the trial other witnesses invited by the applicants were interviewed: the head of the ideological department of the executive committee Alena Haretskaya and militia officer Siarhey Shcharbitsky, who was invited by Haretskaya to her office to put the administrative pressure upon Aliaksiey Lapitski on 08.19.2011 when the human rights activist came to the executive committee with the appeal and tried to ask A. Haretskaya about the specific reasons for the executive committee’s ban of a peaceful assembly of citizens (picketing) in Zhodzina declared on 22.08.2011.

In the testimony of witnesses, in their answers to questions the circumstances of the case declared by Aliaksiey Lapitsky and Sviatlana Lapitskaya have fully confirmed. Thus, the actual rejection of Alena Haretskaya to explain the specific reasons to ban the peaceful assembly of citizens declared by human right defenders on 08.22.2011 in Zhodino was confirmed, as well as her attempt to interfere A. Lapitsky with militia officer through putting an administrative pressure upon the applicant in her private office in the building executive committee of Zhodzina.

Further, the following documents were sounded in the case: the application to hold the event with the organizers’ warranty of 07.08.2011, an additional statement of counterclaim of 08.19.2011, answers from the executive committee, additional applications to court, and executive committee’s decision № 781 p.4 from 2005…

But, the representative of the executive committee V. Verhel didn’t announce the documents attached to the case of (!?). And the applicants were not invited to familiarize themselves with them (!?).

Instead, the judge again asked Aliaksiey Lapitsky about the availability of the documents attached. And then once again she asked about the necessity of requiring model forms of contracts, tariffs for the provision of related services required by the executive committee to pay for the organization of a peaceful assembly of citizens in Zhodzina. Thus, judge T. Tratsiuk the third time tried to reconsider her decision on the need for further requiring of these documents from the relevant organizations of the city by the court.

Aliaksiey Lapitsky again explained to the court that as a guarantor of the constitutional rights of citizens the executive committee to in the frame of the Law of the Republic of Belarus “On mass events in the Republic of Belarus”, which regulates the organization and conduct of these activities, is obliged to develop and bring to the specific public requirements properly to obtain their guaranteed by the Constitution permits to hold peaceful public events declared in Zhodzina. In this context being obliged to come into contracts with certain services we, the applicants, have the right and are to familiarize ourselves with all the necessary documentation to know and plan our possibilities, to see how legal these requirements are, whether they act according to legislation and also to have the possibility to appeal to court.

It was also noted that today Zhodzina executive committee lacks a clear and understandable, transparent procedure for the practical implementation of the provisions of the Law “On mass events in the Republic of Belarus” on the order of organization of peaceful assembly, and there are also no well-designed and open to the public relevant specific regulations, clear and lawful requirements for applicants that would allow them to get guaranteed by the Constitution permits the holding of peaceful mass of alleged events in Zhodzina without nomenclature and ideological fuss.

As a result the court the third and the last time confirmed its decision to require the relevant information from the town services.

The continuation of the trial was scheduled on 9:30, 17.10.2011

According to the court session,
Prepared by Ales Volny,
Belarusian Legal Portal,
by.prava-by.info

One thought on “Trial on human rights activists’s appeal on ban of peaceful picketing in Zhodzina continues (case documents and audio recordings of the process are being attached)”

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