Oleg Orlov: The Bialiatski trial shows that it is impossible for human rights defenders to work in Belarus

On November 10, 2011, the trial of the head of the Human Rights Center Viasna, Ales Bialiatski will continue in Minsk. Over the course of the previous days of the proceedings the defendant and witnesses for the prosecution testified and the prosecution’s documents were examined and entered into evidence.

Oleg Orlov, Chairman of the Board of Directors of the Human Rights Center Memorial, was present at the trial as a monitor on behalf of Observers for the Protection of Human Rights Defenders (a joint program of FIDH and the World Organization Against Torture – OMST), and he tells us about the proceedings and about the situation of human rights defenders in Belarus.

What are the charges?

Formally – for non-payment of taxes. Bialiatski is being accused of committing a purely economic crime. But in reality this process is clearly political. Bialiatski is on trial for his activities in defense of human rights, while the authorities are trying to present everything as a trial of a simple criminal.

You can not legally be a human rights defender in Belarus

In the Republic of Belarus, within the legal framework, speaking purely from a legal stand point, you cannot be involved in independent civic actions, including the defense of human rights. Rights and the law – are not always the same thing. Human rights defenders  defend rights, but sometimes the laws contradict the idea of rights (remember, that at the Nuremburg trials, some of the defendants claimed that they were simply following the laws, and remember how the German judges were amazed that they were being tried in post war Germany for scrupulously following the existing Nazi laws). In my view, many of the current laws in the Republic of Belarus are also contradictory to the ideas or human rights.

Almost all of the organizations in Belarus defending human rights (with the exception of a very few) have been shut down for various justifications, and unregistered organizations are banned from engaging in any activities. Article 193-1 of the Criminal Code of the Republic of Belarus proscribes up to three years of imprisonment for engaging in organizational activities (!) of an unregistered organization or the administration of such an organization. So what you have is, practically any individual who is active in this kind of an organization can be locked up based on Belarus laws, regardless of what kind of work he actually engages in on behalf of the NGO: writing reports, helping victims of police abuses, or bringing produce to a sick elderly woman. The Human Rights Center Viasna was created in 1996, and stripped of its registration in 2003. At that time the authorities remembered something that had happened two years prior: in 2001, Viasna had sent observers to the elections, where numerous serious infractions were recorded. The authorities started picking at minor things: they decided that the observers were not set up properly. In the laws governing the activities of civic organizations enacted in Belarus, it lists the ways an organization may be shut down: there has to be a preliminary presentation by the prosecution, and if the organization does not remedy the identified infractions, it may be closed through the courts. But the Prosecutor’s Office did not submit any complaints to Viasna, and as such, chose not to use that law, but instead used an article of the civil code of the Republic of Belarus. This article is vague, it states that a civic organization can be shut down for repeat or excessive (without indicating what that might mean) offenses; the specifics are listed in the article governing the activities of NGOs. But the court ruled that since Viasna “broke the law excessively in 2001,” its registration can be revoked without the necessary notification by the Prosecutor’s Office. This is transparent abuse of power.
             The Committee on Human Rights of the UN, reviewing the situation in Belarus, has decided that the revocation of the registration (in effect banning) of Viasna, is contrary to the International Convention on Civil and Political Rights, and that government of Belarus must correct the situation. But the Committee’s decision was ignored by the latter. Since then, the administration of Viasna has tried repeatedly to register the organization again, but has been unsuccessful.  As a result, Viasna was forced to proceed as an unregistered organization. Bialiatski – a financial criminal, and not a persecuted human rights defender? In order to block any activities engaged in by Viasna, the authorities decided to use not the draconian article 193-1, but rather to follow a different path. The Special Services became aware that Bialiatski had opened accounts in his name in Poland and Lithuania. The accounts received grants from foreign sponsors to support the activities of Viasna: Swedish Helsinki Committee, Norwegian Helsinki Committee, Open Society Fund, and others. The authorities got the idea of bringing “financial” charges against the administrator of Viasna: Since the money is coming into Bialiatski’s account, it must be his personal profit (that will become the main argument of the prosecution during the criminal proceedings). Ales did not declare it, and did not pay taxes on it. The rest is easy: charges of failure to pay a particularly high amount in taxes – August 4, 2011 – trial.

Documents from Lithuania and Poland as the basis for the accusations. 

Belarus, Lithuania and Poland have a Mutual Legal Assistance Treaty. At the request of the KGB, the General Prosecutor’s Office of the Republic of Belarus, using the Treaty, sent a request to the General Prosecutor’s Office of Poland and the Ministry of Justice of Lithuania. The authorities in those countries requested information from their banks regarding the funds located in the accounts of Bialiatski and over the summer of 2011 transferred the information they received to Belarus. It is important to note that the documents which were handed over contained not only the accounts of Ales Bialiatski and the funds received, but also documented the names of many of the individuals in Belarus to whom Ales subsequently transfered the money. In other words, the authorities of Lithuania and Poland handed over to the “last dictator of Europe” the human rights organization which had been forced to work practically underground. And these were the documents which formed the basis for the criminal case.

In Lithuania and Poland this has caused a scandal, high level officials have been wringing their hands: what have we done – we practically locked this person up. Some low level individuals were fired. The authorities in Lithuania have shown serious concern, and have issued an official apology. The authorities in Poland however have acted in an odd way; initially they were outright offensive, refusing to even let the human rights defenders know what specific information they provided to the authorities in Belarus. As a result Ales wound up behind bars.

At the same time, it’s worth noting that many (including a bank employee who took the stand as a witness) have said in the course of the proceedings, that these printouts from the bank accounts cannot be considered documentation in the strict sense of the word, because they have not themselves been documented in an appropriate way: they have not been signed by bank administration, they have no seal, and no requisite information.

Case evidence: “anonymous” tip or KGB set up?

It is absolutely clear that this is a political case and not one that has been initiated at the request of financial agencies or tax services. This was an effort of the KGB and it is a transparently political investigation. This can be seen even in the documents which were included in the case material by the investigators. These documents were listed in the course of reviewing the documentary evidence presented by the prosecution. First and foremost was a letter from the Assistant Director of the KGB Republic of Belarus, Major General Vegera to the Assistant Prosecutor General, Senior Counsel to the Judiciary Shved. The letter had been sent on November 3, 2010. Major General Vegera writes that the KGB received an anonymous tip that representatives of an unregistered organization the Human Rights Defense Center Viasna, are using funds received from abroad to “finance radical opposition.” This supposedly anonymous letter includes 27 photographs of “documents.” It is absolutely clear that there was no anonymous individual writing to the KGB, rather, that this material is the results of an operational investigation. An undercover agent obtained the information: 27 pages, made up of photos of files from some sort of a folder; among the “documents” are receipts from some individuals (with no last name indicated) showing that they received some funds (with no amounts indicated), the first page of some sort of text in English (possibly a grant agreement). It looks like the colleague from law enforcement was just flipping through the file and taking pictures, most likely in a hurry and covertly. After which, the agent gave the information he gathered to the KGB, and the KGB documented it as a supposed anonymous letter and sent it over to the Prosecutor General’s office. I want to note that the “anonymous” statement that Bialiatski and his colleagues finance “radical opposition” is utter nonsense. Viasna registers instances of prosecution of the political opposition (as a case of human rights abuse), but is not itself a political movement. That same letter states that there are bank accounts opened in the aforementioned banks in the names of Bialiatski and his deputy Stefanovich. It seems that the KGB got this information through their investigation as well. Further on, it states that actions have to be taken because Viasna is involved in illegal and unlawful activities in Belarus. That was the real basis for the criminal charges. And there’s not a word in there about the financial allegations against Bialiatski! The financial agencies started working on this case later on, as a result of the KGB letter.

The second letter. “Mass unrest” December 19 and the Human Rights Center Viasna

There is one other important letter in this case which was submitted by the KGB. It was sent on December 21, 2010, two days after the brutal breaking up of a peaceful demonstration in Minsk protesting election fraud.This is a request from the Chairman of the KGB, V. Zaitsev, to the Chairman of the Committee for State Control, Z. Lomat. Zaitsev writes: “…As a result of the mass unrest, a criminal investigation #10011110362 has been initiated, based on Sections 1 and 2 of Article 293 of the Criminal Code of the Republic of Belarus (the mass unrest – that same demonstration protesting election fraud – Oleg Orlov). As part of the investigation the location of the office of the unregistered Human Rights Center Viasna was searched, which yielded documentation and office equipment related to the investigation of the Director of HRC Viasna. The review of the seized documents and objects will be certified as evidence in the case of the indicated individuals. 

The office equipment is located in the Pervomaisk District Office of the MVD, Minsk.
This information is provided in order to resolve the question as to the bringing of criminal charges against the staff of the Human Rights Center Viasna. And once again, there’s not a single word about the non-payment of taxes! The issue in question is – to bring a criminal case against the opposition. The Human Rights Center Viasna is being “piggybacked” on to the opposition, which the authorities have such a dislike for, and then the KGB instigated the initiation of a criminal case. These two letters were mentioned only in passing by the prosecutor, but Ales Bialiatski demanding the right to speak, loudly and clearly read the letters into record. We understand why he did it – so that the content of these documents would be heard. Now they can be published as having been read out by Ales. Now it is completely clear where this whole criminal investigation is coming from.

Human Rights Damaging Belarus

The testimony of witnesses called by the prosecution largely supported the defense; they gave vivid accounts of the horrible conditions which human rights defenders are subjected to in Belarus.

The first witness called by the prosecution – Leonid Chavko, the Deputy Director of the Department for Oversight of Human Rights Activities for the Office of the President of the Republic of Belarus. The Prosecutor asked him: “How can human rights activities be conducted legally?” (According to Belarus law, any activity funded by a sponsor is considered humanitarian, if the sponsorship is foreign, the activity is regulated by a law on foreign donations.) Mr. Chavko explained that such a law does exist and that the department is tasked with monitoring compliance with it; the law lists types of activities which can receive foreign sponsorship (either financial or direct humanitarian aid): medical, educational, cultural, and “other.” If an individual (or organization) wants to initiate humanitarian activities, he must open a special humanitarian account in his own name (or name of organization) in a specially authorized bank in Belarus. The sponsor can send funds to that account, but the funds cannot be used right away. In a relatively brief period of time the party interested in humanitarian activity, has to write out a mission statement detailing and describing the future activities, expenditures, when the activities must be realized, authorized individuals, etc. This detailed plan must be presented to the department, which must review it in a specific timeframe. If the activities are humanitarian, but the bureaucrat decides that the activities are not in the interest of the Republic of Belarus, the funds have to be returned to the sponsor. All of the fees have to be born by the applicant. It seems that the Prosecutor really didn’t understand the picture that the testimony of the witnesses was painting, and continued with the questioning. He asked whether it was possible to conduct human rights activities in Belarus. Chavko responded: “Human Rights – what’s that, for strikes and demonstrations? No, not that – that’s not even up for discussion”. When the side of the government noted that human rights is a much broader concept, Chavko thought it over and stated, “That would probably be “Other Activities”. How would it be regulated? That’s not specified in the law, so the decision is made in a special way. The person has to present the same mission statement, but the decision will not be made on the departmental level, but rather by the department head. If the head deems the activity acceptable, the document goes to the President’s desk. And the President is the one who makes the final decision.” The defense attorney in turn asked about the criteria, which the department head and the President use in making their decision regarding “other activities.” “What criteria?” – Chavko sounded offended, “Since it is not clearly spelled out in the law, the President makes the decision, governed purely by the consideration – is this in the interest of the Republic of Belarus or not.” This essentially explains why the Human Rights Center Viasna, was forced to work semi-legally.

Personal income or sponsorship of an organization?

The indictment insists that the funds transferred to Bialiatski’s accounts are his personal income. The defendant himself insisted throughout the proceedings that the money was not transferred to him. He asked that it be noted what the funds were for: in the documents the labels are – “Viasna,” “For Viasna,” “for a seminar,” “for publishing activities,” “to be forwarded to victims of political repression,” etc. Bialiatski kept coming back to the fact that he forwarded the funds to the intended destinations, that he was the manager of the funds not the owner. That was the same position his and his attorneys maintained throughout the investigation. But the Prosecution stubbornly ignored this argument. Within literally several days after Bialiatski’s arrest, his attorney sent a request to the investigator stating that it is necessary to identify who the donors are, and to request that they in turn, identify how the funds were supposed to be used, how they were used, and whether the donors have any complaints against Bialiatski. Amazingly enough, the investigators refused to send these requests for information. The only thing that was important for the investigators was that the money went into Bialiatski’s personal account. Who sent him the money, why, how the money was spent – none of this was of any interest to the investigation. This only confirms once more that this case is political and the authorities want a conviction.

During the proceedings, the Prosecutor slipped up. Bialiatski insisted throughout that the funds cannot be referred to as “his funds”, since they are not his. The Prosecutor said, “I understand that all of this money isn’t yours. I want to ask you something else: did you take any part of the funds for yourself?” Since the Prosecutor concedes that not all of the money was Bialiatski’s personal income, then the case should either be dropped, or the Prosecution has to identify what part of the funds it does consider Bialiatski’s personal income and asses the tax on precisely that amount!

Conclusion

Everything in this process is completely evident. In essence, they are hardly even trying to hide the fact that this person is being tried for his human rights activities. Unfortunately, I think the court will rule to convict. Although we will certainly be very interested in hearing the discussion. I am sure that the Defense will be quite convincing. But how convincing will the Prosecutor be? I have my doubts. Over the course of the proceedings he has show himself to be a week and inarticulate attorney, unable to argue his own position. Well see.

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