On February 12, 2020, the Court of the Saviecki district of Minsk sentenced anarchists Mikita Yemialiyanau and Ivan Komar to seven years in prison each for damage to public property (Art. 341 of the Criminal Code), attempted intentional damage to property and intentional damage to property (Part 1 of Art. 14, Part 2 of Art. 218, Part 2 of Art. 218 of the Criminal Code), unlawful actions in respect of items the damaging effect of which is based on the use of combustibles (Part 2 of Art. 295-3 of the Code).
The two defendants were charged with throwing light bulbs filled with paint at the building of the Minsk City Court in September 2019 and two counts of the use of combustibles (one of which – a failed attempt) to set fire to the door of the pre-trial prison in Minsk in October 2019.
Mikita Yemialiyanau did not deny his involvement in the three acts and announced that the purpose of his actions was drawing attention to political prisoners in Belarus, as well as disagreement with the current system and the repression of freedom of opinion.
Ivan Komar denied his participation in the actions and reported abuse and pressure against him on the part of employees of the Interior Ministry and other persons forcing him to confess to committing the crimes.
No proper investigation has been conducted with regard to Komar’s reports of psychological and physical pressure. The court failed to suspend the hearing of the case to investigate the circumstances of ill-treatment reported by the defendant. In such circumstances, the accuracy and admissibility of the evidence obtained as a result of the disputed interrogation actions and later forming the basis for the conviction are highly questionable.
In accordance with article 7 of the International Covenant on Civil and Political Rights, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
In accordance with article 19 of the Covenant, everyone has the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The exercise of the right carries with it special duties and responsibilities. It may, therefore, be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the right or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.
Thus, the permissible restrictions on freedom of expression established for the protection of public order must be proportionate and should not go beyond the necessary limits. Unlawful use of a combustible mixture, property damage can and should be prosecuted, but the punishment for these violations should not be excessive and disproportionate.
In accordance with article 14 of the Covenant, in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
In violation of these rights, Mikita Yemialiyanau was sentenced to excessively cruel punishment, which is manifestly disproportionate to the offense.
Ivan Komar’s sentence was also excessive and disproportionate to the charge.
Furthermore, the court failed to investigate properly Komar’s reports of coercion to testify, abuse and threats of torture; nor did it give a proper assessment of investigation procedures in respect of Yemialiyanau which violated his right not to incriminate himself, as well as access to a lawyer, which, together with other violations of the defendants’ rights, is evidence of an unfair trial.
Given the minority of the offense, the defendants’ behavior after the arrest and their personalities, there were grounds for the application to Yemialiyanau and Komar of a non-custodial sentence as provided by the corresponding articles of the Criminal Code.
All the above may indicate a disproportionate punishment of Mikita Yemialiyanau and Ivan Komar in connection with their views and beliefs.
In accordance with the Guidelines for the definition of political prisoners, a person deprived of liberty is regarded as a political prisoner, if, in addition to political reasons for their prosecution, at least one of the following criteria is observed:
- the detention has been imposed in violation of the right to a fair trial, other rights and freedoms guaranteed by the International Covenant on Civil and Political Rights or the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- the detention was based on falsification of evidence of the alleged offense, or imposed in the absence of the event or elements of the offense, or imposed in connection with an offense committed by another person;
- the length of the detention or its conditions are clearly disproportionate (incommensurate) to the offense the person is suspected, accused or has been found guilty of.
We consider it necessary to demand an immediate retrial for Mikita Yemialiyanau and Ivan Komar, with guarantees of the right to a fair trial and the elimination of the above violations.
Human Rights Center “Viasna”
Belarusian Helsinki Committee
Belarusian Documentation Center
Advisory Center on Contemporary International Practices and Their Legal Implementation “Human Constanta”
Human Rights Initiative “Identity and Law”
Legal Transformation Center “Lawtrend”
Barys Zvozskau Belarusian Human Rights House