Three TrialWatch reports released today show how Aleksandr Lukashenko’s government is using the courts to crush democracy in Belarus.
The reports focus on how the justice system is being weaponized in a four-pronged assault – on journalists, protesters and those perceived as involved in protests, lawyers, and opposition leaders. All are at risk of being put behind bars on politicized charges in Lukashenko’s Belarus. With courtrooms increasingly closed to the public, the reports offer a rare window into the degradation of the justice system.
The defendants in these cases represent key parts of civil society and were prosecuted in some instances for simply:
The three reports are based on monitoring inside courtrooms in Belarus by the Clooney Foundation for Justice and its TrialWatch partners, the American Bar Association Center for Human Rights and Human Rights Embassy.
“Judges have become enforcers for the Lukashenko regime,” said Stanford Professor and TrialWatch Expert Beth Van Schaack, who co-authored one of the TrialWatch reports. “The courts have abdicated their role in defending the rule of law; instead, they convict on little more than prosecution say-so while denying defendants the right to put on a defense.”
Katsiaryna Andreyeva and Daria Chultsova, two young journalists working for an independent media outlet, were convicted of ‘organizing group actions that grossly violated public order’ and given two-year prison sentences simply for live coverage of a protest. The TrialWatch report on their case, co-authored by Professor Van Schaack and staff at the ABA Center for Human Rights, finds that their conviction flouted the presumption of innocence.
“The prosecution’s proffered evidence was inconsistent, contradictory, and wholly insufficient to meet the essential elements of the charged offenses or sustain the conviction,” the report noted.
For example, the court said that the fact that the defendants had interviewed protesters was evidence they ‘participated’ in the demonstration, despite that being standard journalistic practice.
The report found that their conviction also violated their right to freedom of expression. The prosecution argued that because “the accused carried out a live broadcast” this “already confirms the fact that they organized illegal actions,” suggesting any reporting would have been considered a crime. Following their conviction, the outlet the women worked for was designated as ‘extremist’ and a new law was passed forbidding live reporting on protests. The month after representing Ms. Andreyeva at trial, her lawyer Siarhej Zikratski was disbarred and left Belarus.
“This case was clearly meant to send a signal to journalists: stop covering protests,” said Van Schaack.
The ABA Center for Human Rights and Human Rights Embassy monitored 15 protest-related cases as part of TrialWatch, one of which was brought against a human rights lawyer,
The cases show Belarus’ assembly line of injustice in action. The defendants were generally arrested after or in the vicinity of protests and detained pending trial. Some were actually protesting; others happened to be in the wrong place at the wrong time and were swept up in the arbitrary arrests.
In the case of Lyudmila Kazak, a human rights lawyer who at the time was representing opposition leader Maria Kolesnikova, police officers claimed that her initial arrest (which occurred the day before an important hearing in Kolesnikova’s case) was based on her involvement in a protest, but Kazak was subsequently prosecuted for allegedly disobeying police orders during her arrest: eyewitness testimony confirmed that she was grabbed off the street by masked men and did not resist arrest. At the police station, officers showed particular interest in privileged documents related to Kolesnikova’s case. She was subsequently disbarred on the basis of her unjust conviction.
Hearings were perfunctory at best, with two of them lasting less than 15 minutes. In eight of the cases, lawyers had to ask for time to speak with their clients as they hadn’t been given an opportunity to consult before trial. In four cases, defendants were not represented by counsel at all and none of the defendants had access to counsel while being interrogated in detention. Charge sheets and judgments were copy-pasted without regard for what actually happened. Furthermore, police officers routinely testified anonymously, absent concrete justification.
Police testimony was riddled with inconsistencies, with officers often struggling to recall basic details of the alleged offense and in some instances, admitting that they may have confused the defendant with someone else. None of the defendants were acquitted. The report, by staff at the ABA Center for Human Rights, concludes that “a reasonable review of the absurdities and inconsistencies in the police evidence should have resulted in acquittals in every case.”
The trial of opposition politician Viktor Babariko, who was given a fourteen-year prison sentence for alleged bribery and money laundering, was monitored by CFJ and evaluated by Covington & Burling LLP. Although Belarus has been at pains to limit scrutiny of this case—requiring lawyers to sign onerous non-disclosure agreements and disciplining or disbarring Babariko’s defense lawyers, as well as restricting access to the judgment—the monitoring revealed serious fair trial violations. The report finds that, among other things, “Mr. Babariko was repeatedly denied access to his defense counsel,” and the court “failed to take any remedial action” when “Mr. Babariko told the court that he did not understand the charges against him.”
Courts in Belarus are increasingly closed to the public. These three reports show what is likely happening behind those closed doors. While the judge who presided over the journalists’ trial has already been sanctioned by the EU, the international community needs to keep up the pressure on repeat bad actors in the justice system, including police, prosecutors, and judges. Moreover, ongoing international initiatives—such as investigations by the UN Office of the High Commissioner for Human Rights and the International Accountability Platform—should highlight violations of due process and fair trial rights.
The Clooney Foundation for Justice calls for Belarusian courts to be reopened to the public; for lawyers to be allowed to speak freely and zealously represent their clients; and for those complicit in violations like the ones documented in these reports to be held to account.
The journalists, Katsiaryna Andreyeva (family name Bakhavalova) and camerawoman Daria Chultsova, were covering a demonstration in November 2020 for Belsat, a Poland-based media outlet operating in Belarus. The demonstration was being organized in memory of a protester who had died from police violence. The journalists filmed and reported from an apartment overlooking the demonstration.
After several hours of coverage, including some interviews on the street below, the police forced the apartment door open and arrested them. According to Ms. Andreyeva, on the way to the police station the arresting officers told her she would be sent “to the zone to sew uniforms for the cops for ten years.” The journalists were then kept in arbitrary pre-trial detention until their trial in February 2021.
The prosecution alleged that they had acted with “mercenary motives” in a “preliminary conspiracy” to organize the protest, and that the protest had blocked traffic. In particular, the prosecution’s theory was that by reporting on protesters’ activities and by offering a ‘positive assessment’ of the demonstration (for instance, by saying the protesters were ‘brave’), the journalists were “calling for more people to participate in these group actions.”
The report finds that “it was impossible for the court to conclude, as it did, that the prosecution met its burden of proving guilt beyond a reasonable doubt.” Instead of immediately identifying this dearth of evidence, the court focused on the defendants’ lack of formal accreditation as journalists—which was irrelevant to the question of whether they had organized the demonstration and, indeed, was because the Belarusian authorities have persistently refused to accredit independent media. The court also showed hostility to protest activity, stressing that the journalists had reported on messages being shared on ‘destructive Telegram accounts’ by protesters. The report concludes that “the prosecution of Ms. Andreyeva and Ms. Chultsova was driven by an improper motive” – “to suppress independent and critical journalism.”
Protesters, Citizens & Lawyers
The 15 protest-related cases involved passers-by, activists, students, and a human rights lawyer who were all arrested in September and October 2020 during the widespread demonstrations that erupted after Belarus’ flawed presidential election. The defendants were among the many who were charged with ‘participating in an unauthorized mass event’ or ‘disobeying police orders.’
As in the journalists’ case, there was a stunning lack of evidence of any crime. For instance, one defendant was convicted despite a police officer’s statement that he could have confused the defendant with someone else. In two of the cases, the court used the wrong name for the defendant in the judgment, showing that they were operating off a template.
The charges were problematic on their face, with the prosecution alleging that the defendants should be convicted for demonstrating “against the fact of holding fair elections” and shouting slogans such as “Long live Belarus” and “Shame” for the purpose of “expressing their socio-political views” – even though prosecuting political speech and peaceful assemblies violates core human rights protections under the International Covenant on Civil and Political Rights, to which Belarus is party.
While these defendants were generally given short prison sentences, there are serious concerns that they were detained in conditions that violated their right to be treated with humanity. For instance, one defendant told the court that detainees were sleeping on concrete without mattresses, that there was no drinking water available in the cells, and that detainees were forced to defecate in the cells without cleaning materials. Proper COVID-19 protections were also not provided.
Ms. Kazak’s case, described above, is also emblematic of a broader crackdown on lawyers, who face discipline or disbarment by a government-controlled body—or even arrest and detention “for their work with the opposition.” The impact of this crackdown was felt across the cases in all three reports: Ms. Andreyeva’s lawyer was disbarred; Ms. Kazak appears to have been prosecuted and convicted for her work on behalf of an opposition figure; and three members of Mr. Babariko’s defense team were prosecuted, disbarred or disciplined.
Viktor Babariko is a Belarusian banker and politician who intended to stand as a candidate in the 2020 Belarusian presidential election. In May 2020, he resigned from his position as chair of the board of Belarusian bank Belgazprombank in order to run. He was arrested on June 18, 2020 while on his way to register his candidacy and put on trial for alleged bribery and money laundering alongside seven co-defendants, who all pled guilty.
Before trial, the Belarusian authorities made public statements asserting his guilt. For example, General Prosecutor Andrei Schved announced to the media that the trial concerned “criminality in its purest form,” and that he was convinced the court would “confirm” that the defendants were “run-of-the-mill bribe takers” as well as “scoundrels who used their official position for personal gain.” This violated Mr. Babariko’s right to be presumed innocent. The report concluded, “[t]he record of Mr. Babariko’s trial indicates that Belarusian authorities failed to afford him the benefit of the doubt, suggesting that his indictment, prosecution, and eventual verdict were all a foregone conclusion designed to punish him for his presidential campaign.” He was ultimately found guilty of bribery and money laundering and given a severe sentence.
Before and during his trial, the Belarusian authorities were also at pains to prevent him from putting on a defense. He was initially denied access to his lawyers on the ground that ‘training’ was taking place in the detention facility where he had been taken. Furthermore, he told the court that the indictment (which has been kept from the public by virtue of non-disclosure rules) did not provide the facts on which the charges were based and he was unable to consult his lawyers confidentially when requested.