Triumph Of Law Or Disgrace Of Whole System?

How to assess the result of the case of the Minsk Wheel Tractor Plant chief engineer from a legal point of view?

On August 16, the Minsk City Court rejected the appeal of the General Prosecutor's Office against the acquittal with regard to chief engineer of the Minsk Wheel Tractor Plant Andrei Halavach. Thus, the court confirmed the legality of the acquittal of the person who spent four years in the remand prison.

What is this - a belated triumph of law?

To begin with, let us cite the words of Lukashenka regarding this case, said during a meeting with Head of the Investigatory Committee Ivan Naskevich: "You jail this person and then release him due to the lack of evidence. This is nothing but the insolence of the law-enforcement bodies. The investigators in particular, most likely. I will deal with the Prosecutor General, it needs to be clarified why he "oversees" criminal cases and "compliance with the law" this way."

In the above statement, Lukashenka expresses dissatisfaction with the work of all law-enforcement agencies: the investigation, the prosecutor's office, and the courts. It took so much time, so much paper, but nothing was proved. But the saddest thing in this case is that a respected man who gave 35 years of service to the plant, made it one of the most successful in the country's industry, spent 50 months behind bars (1,500 days and nights). At the same time, hundreds of plant workers did not believe in the guilt of the chief engineer and signed a petition to Lukashenka for his release.

Back in the spring of 2015, A. Halavach was detained on charges of receiving bribes worth more than 80 thousand rubles. The prosecution’s position was based on the testimony of one person who had previously been detained for giving bribes, and then released when he began to cooperate with the investigation. During the investigation, his testimony changed. At the trial, he was confused and could not remember the amount and dates of the bribes. Nevertheless, the court of the Frunzenski district of Minsk convicted Andrei Halavach under Part 3 of Article 430 of the Criminal Code to 8 years of imprisonment in a reinforced-security penal colony, and confiscation of property. A. Halavach plead innocent.

The verdict was appealed in the Minsk City Court. There, the sentence was canceled and the case was sent for a new trial to the same court. The trial was led by Judge Yulia Bliznyuk. The reconsideration took 55 days. None of the 86 witnesses confirmed that A. Halavach lobbied someone's interests or took bribes. The judge was brave enough to announce an acquittal.

True, A. Halavach was allowed to remain free only for 15 minutes. Before he could go down to the relatives who were waiting for him, the same investigator present at the hearing managed to charge him with other facts of bribes and imprisoned him.

When it came to the new trial, A. Halavach was again acquitted, although Prosecutor Yury Sharstniou demanded 9 years in prison with confiscation of property for him, along with the fine of one thousand base fees (BYN 25.5 K).

The Prosecutor’s Office, as usual, did not "back down", and protested against the acquittal. On August 16, the Minsk City Court put an end to this indicative criminal case. The lawyers of the accused Aliaksei Shvakau and Alena Varanko objected to the prosecution and asked the court to acquit their client. We must pay tribute to the members of the judicial board of the Minsk City Court chaired by Judge Siarhei Khrypach, who showed integrity and again recognized A. Halavach, who was tormented by the investigation, not guilty.

Yes, one can formally speak of the triumph of legality: a person is acquitted for the lack of proof of his guilt. But for this he had to spend in custody more than four years. Despite this, the prosecutors demanded to continue the process until the "victorious end".

Doesn't it look like a disgrace of the entire law-enforcement system?

Personally, I am inclined to consider the case of Andrei Halavach a defeat of our justice and the disgrace of the entire law-enforcement system.

Firstly, it revealed a strict accusatory bias of the preliminary investigation, which is trying to present all circumstances from the official activities of the suspect as evidence of corruption. For example, in the first case of A. Halavach, it was not possible to find out all the facts of bribes. Then they calculated the bribes as a percentage of the amount of shipment, by invoices. The bias of the investigation is also manifested in the "work with witnesses", who, under various pretexts, were inclined to slander the accused under the "did not see, but heard" principle. It was the refusal of witnesses to give doubtful testimony that served as the reason for the acquittal of A. Halavach in February 2019.

Secondly, prosecutors are accustomed to go in the wake of the charges and believe the collected criminal case materials. Their task is to convince the court that the accusation is fully proved , they are trying to do it as convincingly and severely as possible. For them, an acquittal is a shock, confirmation of bad work, marred reputation. Therefore, prosecutors at all levels always do their best to prevent an acquittal.

Thirdly, the courts understand the interest of investigators and prosecutors and in most cases try to "play along" with them. There is also departmental interest in this: when deciding on a not guilty verdict, the court has to withstand a flurry of attacks by the prosecution bodies, as well as indirect pressure from higher courts. All these bodies are in the same harness as the punitive apparatus of the state, designed to fight crime.

Now there will be a serious showdown. Perhaps, Prosecutor General Aliaksandr Kaniuk will receive a "last warning". After that, the indictment machine will begin to work more carefully to prevent such malfunctions.

The system needs to be transformed

However, neither personnel reshuffle nor the highest warnings will lead to the elimination of the systemic shortcomings of the current investigation, the prosecutor's office and the court. We need fundamental changes. They can be implemented as part of the judicial reform, as previously the author wrote in his publications.

First of all, it is necessary to make the judges bold and principled so that they are not afraid to acquit everyone whose guilt has not been proved during the trial. Where to get such judges? They must be introduced into the judicial system through a new procedure for the formation of courts, namely, through elections on an alternative basis. Of those who successfully passed the qualification exam and are included in the National Register of candidates for the post of a judge. These should be new judges, free of their own convictions and ready to judge by law, and not in the interests of the investigating authorities and prosecutors.

Further, after reforming the courts, it is necessary to take up the investigating authorities and release them from the tough administrative pressure and work to achieve a certain indicator. Investigators should be transferred to the category of civil servants, and not military men, as they are today. It is best to place the investigation in the Prosecutor's Office. Then it will be under constant supervision.

The Prosecutor's Office must guard the rule of law, including in the field of inquiry and investigation. Moreover, detention should be carried out with the approval of the court, as well as the prolongation of the terms of detention. The accused may file complaints about violation of their rights not only to the prosecutor, but also to the court.

And we also need to establish a jury trial if the accused does not plead guilty in a crime. As the experience of such courts, including in Russia, shows, they acquit about 10-15% of the accused. We have just a few acquittals, and each of them becomes a sensation.

Mikhail Pastukhou, Doctor of Law, Professor, Svobodnye Novosti