2012 16/02

Aleh Aheeu, Miensk

Today people in Belarus are not surprised by the facts of numerous administrative detentions of persons from the active part of Belarusian society. The passive part of this society accepts these messages as granted, as a weather forecast for tomorrow.

Let’s not argue about whether such an attitude of the inhabitants towards imprisonment and detention of people with their own view on the situation in the country is correct. It seems that each day there are less and less such indifferent people for almost every day more and more people fall into the orbit of repression. Perhaps, soon in the country there will be no people who weren’t involved in repressions themselves, or whose friends and relatives didn’t “spent some days” in the custody.

Another thing is interesting here – how do people get these administrative arrests. And how such things would be considered in the case if the law worked, and the mechanisms of justice existed in reality but not on paper.

A typical example from the judicial practice
, when a representative of the active part of society gets “days” of administrative detention only on the evidence of militia officers.
The picture, which can be called “the process of justice” in many Belarusian courts with a great irony, is usually as follows:

The court session.

All attributes of the ritual are in their places – the judge is wearing the mantle, there is the emblem, the red-green flag and a portrait in a frame. Everything seems to meet the requirements of the Law. Even the judge himself or herself makes attempts to look like a human being who wants to make sure at the post – whether really a person prosecuted has committed a wrongful act.

An individual almost always denies committing the administrative offence and informs the court that he or she didn’t commit the actions specified in the protocol, that it all was fraud and slander.

Then the machine of justice in the face of the judge begins to investigate the evidence in the case file concerning this administrative offence and starts questioning witnesses.

The most common type of a witness in such cases is a militia officer. Sometimes there are few of them, and sometimes one is enough for the court.

The militia officer, after establishing his or her identity, begins to perform his civic duty and give the court an explanation, or simply answer the questions of the judge about how the person prosecuted behaved at the time, in the place and under those circumstances specified in the protocol on an administrative offence.

And militia officer informs the court with one-word answers that everything written in the record is true. That precisely at that time and in that place the person prosecuted was acting that way. The recoding secretary carefully records the minutes of the hearing and tries to put these one-word answers of the militia officer as compound sentences.

It would seem that this is it –a common example of how the offender is caught on something illegal, is trying to avoid legal liability, and is lying but an honest militia officers shows the offender in his or her true colours.

Justice must triumph.

It only remains to observe the legal rights of a prosecuted person and to give him and his lawyer an opportunity to interrogate the witness – a militia officer some questions.

And the triumph of justice to the evident displeasure of the judge and the witness begins to drag on.

The witness can not give answers to the elementary clarifying questions about the events investigated at the hearing. He or she tarts to get confused, changes testimony and contradicts previous testimonies.

It’s very interesting to observe several witnesses when they are questioned one by one. First, one militia officer is being interrogated, and then the next one is invited into the court room. And obvious contradictions between the testimony of the first and second witness appear, that is, each of them in their own way begins to describe “the unlawful conduct of the offender”. Militia officers can indicate different scenes of actions, different time, they can describe the nature of actions differently, and say that the person was dressed exactly the same as he or she is present at the court session.

Very often after the interrogation of such witnesses the judge receives other evidence from lawyers – video from outside surveillance cameras with the place specified in the protocol, tickets to a concert, confirming that the “offender” was elsewhere at the time of his alleged actions, and other material evidence.

These evidence confirm the explanation of “the offender”, they are true and valid. And they expose the blatant lies of militia.

Later in the hearing not-militia witnesses can be questioned. They can explain in details and without contradictions that the person was not in the place specified in the protocol or did not commit those acts that are imputed. They can also report that the “offender” was dressed differently that today. That is they can fully confirm the version of the “offender”.

An uninitiated into the mystery of the Belarusian justice person may even seem that “Here it is – the moment of truth!” What could be easier for the judge? On the scales of Themis’s servant on one hand there are the words of militia officers, who were confused, unable to remember the events, who contradicted themselves and each other. In other words – they gave the court false explanations. And on the other hand there are explanations of the person accused, which were fully confirmed by witnesses – people not interested in the outcome of the case. His testimony was also confirmed by other evidence – videos, tickets to a concert or other objects of the material world, represented by the court in accordance with the requirements of the Law.

The Court, having examined all the evidence leaves for the consultation room and comes out of it declaring: “Guilty!” In the judgement there for sure will be a wording like “there were no grounds for doubting the reliability of the militia officers’ testimonies”.

And the “offender” is sent to serve the arrest, which, in accordance with international standards can be characterised as “cruel, inhuman or degrading the individual”.

And now let’s see how this trial would be concluded, if it took place under the Law…

Thus, in the course of the hearing, the judge confirms that the testimonies of militia officers are not true. They are refuted by the evidence tested in court. We remember them as the testimony of witnesses not interested in the outcome of the case, material evidence and other evidence.

So, the judge has no choice but as to release of “offender” and to issue a decree on termination of administrative case for lack of the administrative offence. It is clear.

But the question is what to do with the false witnesses – militia officers?

Their actions are seem to appear an administrative violation under Article 24.4 of the Code of Administrative Offences (hereinafter – CAO). In accordance with this article a deliberately false explanation of the witness … or intentionally false statement on an administrative offence … in a case concerning an administrative offence are punishable by a fine from ten to fifty basic amounts or administrative arrest.

If we understand the corpus delicti, we’ll see that its direct object is a normal court activity, as well as the rights and interests of a person brought to justice. The given offence infringes the legal procedure for administrative prosecution and the person committing it conducts a deliberate act aimed at the illegal prosecution of an innocent person.

Since during the trial it was determined that the false witnesses – militia officers had committed an administrative offence, the procedure for bringing them to the statutory responsibilities is to begin.

Protocol of an administrative violation in the court room…

Thus, according to Art. 3.30. of Procedural-Executive Code of Republic of Belarus on Administrative Offences (hereinafter PECAO), one of the persons authorized to draw up protocols on administrative offenses provided in Art. 04.24 of the Administrative Code is a court clerk or assistant judge.

Therefore, the protocol on these militia officers’ case should be made immediately at the courthouse by a court secretary.

The protocol should include the date and place of its drafting, position, name and middle name of the person who made the protocol – in our case – the court secretary. There must also be information on the person against whom the administrative process is carried out. In addition time, place and circumstances of committing the administrative offense must be specified in a mandatory manner, namely, that the militia officers gave deliberately false explanation as witnesses in a case concerning an administrative offense in court, and that the given offense is provided under Art. 04.24 of the Administrative Code.

Also one must specify name and middle name and address of the victim – in this case, the person who was perjured by militia, and witnesses who were present in the courtroom when the militia officers gave false explanations.

Record of the hearing, which reflects the perjury of the police must be attached to such a protocol on administrative offense in respect of these militia representatives.

That’s it – the case is ready for consideration.

Since, in accordance with Art. 3.2. of Administrative Code this case on administrative violation of false witnesses in uniform should be considered by the judge of the district (city) court. And these offenders are already in court, as well as the case itself, so there are no impediments to the consideration of this case – it should be considered immediately.

When considering the case against officers their guilt will be confirmed by a protocol on administrative offense committed by them, the explanations of the victim – that is, the person whom they have stipulated and the witnesses who were present in court and heard how the militia officers deliberately misinformed the court.

The judge, who will consider such a case would have the body of evidences to issue the accusation decree.

The main question that should be solved is what punishment to prescribe in this case, because when imposing administrative penalties on an individual, the nature of the committed administrative offense, the circumstances of its commission and the private data of an individual who has committed an offense, the degree of his guilt, the nature and size of caused injury, property, as well as circumstances mitigating or aggravating administrative responsibility are taking into account.

Definitely aggravating circumstances will be found when officials commit an administrative offense in connection with the performance of their official duties.

I also think that the court may desire to take into account the fact that these offenders were given explanations on the case of an administrative offense, which provides an administrative penalty – arrest.

To restore justice, it seems that the sanction in the form of administrative detention would be a proportionate punishment for false witnesses taking into account that such sanction is provided by Article 24.4. of Administrative Code.

Also taking into account that administrative detention means placing the individual in isolation in places defined by law-enforcement organs, responsible for the execution of administrative punishments, and is established for a period up to fifteen days, and that the sanction of article provides exactly such a period of detention, I think that it will be fifteen days that false witnesses get.

And, since according to Art. 11.12 of PICAO the decision on imposing an administrative penalty in the form of administrative detention is to be executed immediately, our offenders will go straight to the place “defined by law-enforcement organs, responsible for the execution of administrative penalties” for a certain period adjudged by the court.

It turns out that if we consider such a case under the law, the answer to the question who should be sent to serve the administrative penalties just from the court room, and who is to be recognized as victim and go home is obvious.

It remains only to apply the law practically.

Legal expert Aleh Aheeu,
Belarusian Legal Portal,

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