National pressure records / Article
What's wrong with the verdict of Alexander Danilevich
Published April 20, 2023
On April 10, 2023, attorney Alexander Danilevich was sentenced to 10 years in prison. From the moment of his arrest on May 20, 2022, attorney A. Danilevich was kept in custody for almost 10 months. In this article, we will analyze point by point why this verdict should be considered illegal, aimed solely at prosecuting an attorney for fulfilling his professional duties and exercising freedom of speech.
As noted by Dmitry Laevsky, an attorney deprived of the right to practice, in the courtroom Danilevich was kept in a cage as a dangerous criminal, which violates the presumption of innocence and is not required based on the factual circumstances. A. Danilevich is a well-known attorney, who is extremely difficult to suspect of being a danger to others.
The case consisted of only 5 volumes of case files. A significant amount of them consists of KGB reports and printouts of correspondence from instant messengers. The accusation began with the words "On August 9, 2020, the regular presidential election was held in the Republic of Belarus," after which it was indicated that A. Danilevich acted "being dissatisfied with the announced election results."
As noted by Dmitry Laevsky, an attorney deprived of the right to practice, in the courtroom Danilevich was kept in a cage as a dangerous criminal, which violates the presumption of innocence and is not required based on the factual circumstances. A. Danilevich is a well-known attorney, who is extremely difficult to suspect of being a danger to others.
The case consisted of only 5 volumes of case files. A significant amount of them consists of KGB reports and printouts of correspondence from instant messengers. The accusation began with the words "On August 9, 2020, the regular presidential election was held in the Republic of Belarus," after which it was indicated that A. Danilevich acted "being dissatisfied with the announced election results."
What's wrong with the verdict: provision of legal assistance
Based on the announced charges under part 6 of Art. 16, part 3 Art. 361 of the Criminal Code, attorney A. Danilevich was being prosecuted for providing legal assistance to athletes and representatives of the strike committee.
Persecution of an attorney for providing legal assistance is contrary to the law and the international obligations of the Republic of Belarus in the field of ensuring guarantees of legal practice.
By virtue of paragraph 1 of Art. 17 of the Law of the Republic of Belarus dating December 30, 2011 "On the Bar and Legal Activities in the Republic of Belarus," an attorney has the right to provide clients with any legal assistance they need. Based on paragraph 1 of Art. 26 of the Law, the list of types of legal assistance is not limited. Consequently, the subject of legal assistance from an attorney can be advice on any issues, including the client's contact with any Belarusian and foreign organizations on any issues.
According to paragraph 18 of the Basic Principles concerning the Role of Lawyers (adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders on 27.08.1990–07.09.1990), attorneys are not identified with their clients or the interests of their clients as a result of the performance of their functions.
In accordance with sub. (c) Paragraph 16 of the Basic Principles Relating to the Role of Lawyers, Governments shall ensure that attorneys shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
The Republic of Belarus, as a member of the UN, is obliged to comply with the above-mentioned Basic Principles regarding the role of lawyers.
Thus, legal advice and advice regarding legal documents given by attorney A. Danilevich to his clients cannot be regarded as a criminal act, even if it were proven in the case that A. Danilevich was related to the appeals specified in the indictment. In this regard, the corpus delicti provided for in part 6 of Art. 16, part 3 Art. 361 of the Criminal Code, is absent.
Persecution of an attorney for providing legal assistance is contrary to the law and the international obligations of the Republic of Belarus in the field of ensuring guarantees of legal practice.
By virtue of paragraph 1 of Art. 17 of the Law of the Republic of Belarus dating December 30, 2011 "On the Bar and Legal Activities in the Republic of Belarus," an attorney has the right to provide clients with any legal assistance they need. Based on paragraph 1 of Art. 26 of the Law, the list of types of legal assistance is not limited. Consequently, the subject of legal assistance from an attorney can be advice on any issues, including the client's contact with any Belarusian and foreign organizations on any issues.
According to paragraph 18 of the Basic Principles concerning the Role of Lawyers (adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders on 27.08.1990–07.09.1990), attorneys are not identified with their clients or the interests of their clients as a result of the performance of their functions.
In accordance with sub. (c) Paragraph 16 of the Basic Principles Relating to the Role of Lawyers, Governments shall ensure that attorneys shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
The Republic of Belarus, as a member of the UN, is obliged to comply with the above-mentioned Basic Principles regarding the role of lawyers.
Thus, legal advice and advice regarding legal documents given by attorney A. Danilevich to his clients cannot be regarded as a criminal act, even if it were proven in the case that A. Danilevich was related to the appeals specified in the indictment. In this regard, the corpus delicti provided for in part 6 of Art. 16, part 3 Art. 361 of the Criminal Code, is absent.
What's wrong with the verdict: causality
In addition, there are certain problems with facts: during the trial, the prosecution did not present evidence that would confirm that any legal assistance provided by A. Danilevich to his clients directly entailed consequences in the form of termination of purchases of OJSC "Belaruskali" products by the Norwegian company "Yara" and the cancellation of sporting events in Belarus.
Thus, from the testimony of witnesses (in particular, representatives of the management of OJSC "Belaruskali") it follows that the cessation of purchases of potash products by the Norwegian company was not due to appeals from the strike committee of workers of OJSC "Belaruskali", but to EU and US sanctions, which prevented the implementation of international payments and the conclusion of contracts, Norway's accession to these sanctions, as well as the refusal of the Republic of Lithuania to transport Belarusian potash products through its territory to the port of Klaipeda for shipment to buyers.
As for the cancellation of sporting events in Belarus, this consequence also cannot be recognized as consisting of a causal connection with the legal assistance provided by A. Danilevich to anyone, since the prosecution in the trial did not refute the influence of other factors on decisions regarding the non-holding of sporting events in Belarus (for example, appeals from other persons and organizations with which A. Danilevich had no connection based on the case files).
Thus, from the testimony of witnesses (in particular, representatives of the management of OJSC "Belaruskali") it follows that the cessation of purchases of potash products by the Norwegian company was not due to appeals from the strike committee of workers of OJSC "Belaruskali", but to EU and US sanctions, which prevented the implementation of international payments and the conclusion of contracts, Norway's accession to these sanctions, as well as the refusal of the Republic of Lithuania to transport Belarusian potash products through its territory to the port of Klaipeda for shipment to buyers.
As for the cancellation of sporting events in Belarus, this consequence also cannot be recognized as consisting of a causal connection with the legal assistance provided by A. Danilevich to anyone, since the prosecution in the trial did not refute the influence of other factors on decisions regarding the non-holding of sporting events in Belarus (for example, appeals from other persons and organizations with which A. Danilevich had no connection based on the case files).
What's wrong with the verdict: the reliability of unreliable information
In addition, as D. Laevsky notes, neither in the text of the accusation nor in the trial was it stated what information that is given in the documents allegedly compiled by A. Danilevich is unreliable (false) and why it is unreliable. It was also not specified on what basis it was stated that A. Danilevich's "knowing" of the unreliability of certain information, that is, that he allegedly knew in advance about its unreliability. The prosecution did not refute any information that was presented in letters and interviews attributed to A. Danilevich read out during the trial.
What's wrong with the verdict: interviews on the Internet and freedom of speech
Based on the announced charges under part 1 of Art. 361-4 of the Criminal Code, attorney A. Danilevich is also being prosecuted for an interview on legal issues that he gave to a media resource on the Internet.
Criminal prosecution for attorney's exercise of the right to free expression contradicts the law and the international obligations of the Republic of Belarus to ensure fundamental individual rights.
According to part 1 of Art. 33 of the Constitution of the Republic of Belarus, everyone is guaranteed freedom of opinion, expression and their free expression.
According to paragraph 23 of the Basic Principles concerning the Role of Lawyers, lawyers, like other citizens, have the right to freedom of expression, belief and assembly. In particular, they have the right to take part in public debate on matters relating to law, the administration of justice and the promotion and protection of human rights, without being subject to restrictions on their professional activities.
By virtue of paragraph 2 of Art. 19 of the International Covenant on Civil and Political Rights, 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 Republic of Belarus is a party to the Covenant and therefore is obliged to ensure citizens the rights provided for in it and not violate them.
Based on clause 3 of Art. 19 of the Covenant, any restriction of the right to free expression (and criminal prosecution and criminal liability are such restrictions) must comply with the criteria of legality established by paragraph 3 of Art. 19 of the Covenant: restrictions must be established by law and can only be applied in the interests of national security, public order, the protection of morals, public health, the rights and freedoms of others, and they must strictly meet the requirement of necessity (and proportionality - which is explained in detail by the Human Rights Committee).
The Human Rights Committee, established in accordance with the Covenant and empowered to interpret it, explaining the issue of criteria for the legality of restrictions on freedom of expression in General Comment No. 34, September 12, 2011 (paragraphs 34, 35), indicated that:
- restrictions should not be overly broad. Restrictive measures must comply with the principle of proportionality; they must be appropriate to fulfill their protective function; they must represent the least restrictive means by which the desired result can be achieved; and they must be proportionate to the interest protected. The principle of proportionality must be respected not only in legislation that provides for restrictions, but also by administrative and judicial authorities in the process of applying legislation;
- when a State party invokes legal grounds when imposing restrictions on freedom of expression, it must demonstrate clearly and in detail the specific nature of the threat, and that the adoption of specific measures meets the criteria of necessity and proportionality, in particular by establishing a direct and immediate connection between form of expression and threat (for the values listed in paragraph 3 of Article 19 of the Pact).
From the charges brought against attorney A. Danilevich, it is clear that the restriction of his right to free expression does not meet the criteria of legality, is unfounded and disproportionate.
In particular, the specific real nature of the threat from A. Danilevich's interview to the values protected by paragraph 3 of Art. 19 of the Covenant wasn't presented by the prosecutors. In addition, it has not been substantiated whether the restriction already applied to A. Danilevich in the form of a criminal charge is necessary and proportionate to the protected values (interests). That is, the state has not justified why it is necessary to criminalize an interview that does not contradict the law and was done in the correct form. At the same time, it is obvious that criminal charges and detention of A. Danilevich for an interview do not correspond the "least restrictive means" term.
In paragraph 23 of the above-mentioned General Comment No. 34, the Human Rights Committee notes that the restriction of the right to free expression under paragraph 3 of Art. 19 of the Covenant cannot serve as a justification for silencing any defenders of democratic principles and human rights. Aggression against a person exercising his right to free expression, including arbitrary arrest, is incompatible with Art. 19 of the Covenant.
Accordingly, under the stated circumstances, A. Danilevich's interview cannot be considered a criminal act, since it is an exercise of the right to free expression, within the limits established by the Covenant.
In subparagraph c) of paragraph 77 of the report of the UN High Commissioner for Human Rights A/HRC/46/4 dating February 15, 2021, "The situation of human rights in Belarus in the context of the 2020 presidential elections," the High Commissioner recommended that the Government of Belarus, among other things, immediately and unconditionally release all those unlawfully or arbitrarily detained for the peaceful exercise of their freedoms of expression, including attorneys, and cease any administrative or criminal judicial action against citizens for exercising their human rights, including the right to freedom of expression.
Criminal prosecution for attorney's exercise of the right to free expression contradicts the law and the international obligations of the Republic of Belarus to ensure fundamental individual rights.
According to part 1 of Art. 33 of the Constitution of the Republic of Belarus, everyone is guaranteed freedom of opinion, expression and their free expression.
According to paragraph 23 of the Basic Principles concerning the Role of Lawyers, lawyers, like other citizens, have the right to freedom of expression, belief and assembly. In particular, they have the right to take part in public debate on matters relating to law, the administration of justice and the promotion and protection of human rights, without being subject to restrictions on their professional activities.
By virtue of paragraph 2 of Art. 19 of the International Covenant on Civil and Political Rights, 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 Republic of Belarus is a party to the Covenant and therefore is obliged to ensure citizens the rights provided for in it and not violate them.
Based on clause 3 of Art. 19 of the Covenant, any restriction of the right to free expression (and criminal prosecution and criminal liability are such restrictions) must comply with the criteria of legality established by paragraph 3 of Art. 19 of the Covenant: restrictions must be established by law and can only be applied in the interests of national security, public order, the protection of morals, public health, the rights and freedoms of others, and they must strictly meet the requirement of necessity (and proportionality - which is explained in detail by the Human Rights Committee).
The Human Rights Committee, established in accordance with the Covenant and empowered to interpret it, explaining the issue of criteria for the legality of restrictions on freedom of expression in General Comment No. 34, September 12, 2011 (paragraphs 34, 35), indicated that:
- restrictions should not be overly broad. Restrictive measures must comply with the principle of proportionality; they must be appropriate to fulfill their protective function; they must represent the least restrictive means by which the desired result can be achieved; and they must be proportionate to the interest protected. The principle of proportionality must be respected not only in legislation that provides for restrictions, but also by administrative and judicial authorities in the process of applying legislation;
- when a State party invokes legal grounds when imposing restrictions on freedom of expression, it must demonstrate clearly and in detail the specific nature of the threat, and that the adoption of specific measures meets the criteria of necessity and proportionality, in particular by establishing a direct and immediate connection between form of expression and threat (for the values listed in paragraph 3 of Article 19 of the Pact).
From the charges brought against attorney A. Danilevich, it is clear that the restriction of his right to free expression does not meet the criteria of legality, is unfounded and disproportionate.
In particular, the specific real nature of the threat from A. Danilevich's interview to the values protected by paragraph 3 of Art. 19 of the Covenant wasn't presented by the prosecutors. In addition, it has not been substantiated whether the restriction already applied to A. Danilevich in the form of a criminal charge is necessary and proportionate to the protected values (interests). That is, the state has not justified why it is necessary to criminalize an interview that does not contradict the law and was done in the correct form. At the same time, it is obvious that criminal charges and detention of A. Danilevich for an interview do not correspond the "least restrictive means" term.
In paragraph 23 of the above-mentioned General Comment No. 34, the Human Rights Committee notes that the restriction of the right to free expression under paragraph 3 of Art. 19 of the Covenant cannot serve as a justification for silencing any defenders of democratic principles and human rights. Aggression against a person exercising his right to free expression, including arbitrary arrest, is incompatible with Art. 19 of the Covenant.
Accordingly, under the stated circumstances, A. Danilevich's interview cannot be considered a criminal act, since it is an exercise of the right to free expression, within the limits established by the Covenant.
In subparagraph c) of paragraph 77 of the report of the UN High Commissioner for Human Rights A/HRC/46/4 dating February 15, 2021, "The situation of human rights in Belarus in the context of the 2020 presidential elections," the High Commissioner recommended that the Government of Belarus, among other things, immediately and unconditionally release all those unlawfully or arbitrarily detained for the peaceful exercise of their freedoms of expression, including attorneys, and cease any administrative or criminal judicial action against citizens for exercising their human rights, including the right to freedom of expression.
What's wrong with the verdict: "extremism" without extremism
The charge itself of promoting extremist activity (part 1 of Article 361-4 of the Criminal Code) was based on the fact that A. Danilevich in March 2022 "gave an interview to an unidentified person for subsequent posting on the Internet resource Tr*buna." This resource is included in the list of extremist materials in Belarus. The following is curious: attorney Danilevich gave an interview on Telegram to one of the sports channels, which is not included in the list of extremist ones, and from there this interview was republished on the "extremist" media. This, however, did not bother either the prosecution or the court.
Conclusions
Thus, the criminal prosecution of A. Danilevich contradicts the international obligations of the Republic of Belarus in accordance with the Covenant and the Basic Principles concerning the Role of Lawyers. There are no legal or factual grounds for convicting A. Danilevich on the charges brought against him. And without any doubt, Alexander Danilevich should be acquitted, and his freedom and right to continue legal practice restored.
