“The people who make decisions and sign documents have started to hide.” Lawyer for Tsikhanouski, Babaryka, and Dziadok talks about judges handing down unlawful verdicts

“There was no single moment when I walked in and wondered: ‘What happened to the judges?’”

— In one of your interviews, you said that in the 1990s, Belarusian judges and prosecutors, despite their Soviet past, were honest people. When did you first feel that a judge in Belarus was no longer an independent figure, but an executor of someone else's will? When did this begin to happen?

— In the early 1990s, when I started working as a defense lawyer, imagine the atmosphere: independence, perestroika… There was hope for a reset of the entire legal system, for freedom from administrative pressure. There was an understanding that the law had to be observed and that laws had to be reformed. Back then, a commission headed by Dzmitry Bulakhau (a jurist, deputy of the 12th Supreme Soviet of Belarus (1990–1995), and chairman of the parliamentary legislation commission — Ed.) published the Concept of Judicial and Legal Reform. In other words, we were moving toward change, toward reform.

The people working in the system back then, of course, carried old habits. Just as there were virtually no acquittals under the Soviet Union, their numbers didn’t increase much. But the culture that we were ultimately working to serve the law was present. Perhaps there wasn’t a deep knowledge of the rule of law or human rights, but the principle that we must observe the law and act according to it was there.

Later, of course, I became acquainted with human rights, with the concept that one must also look critically at the law itself and that not every law leads to a just legal decision. But around that time, an authoritarian turn took place, and administrative interference in judicial proceedings began. And our paths began to diverge.

There was no single moment when I walked in and wondered: “What happened to the judges?” Gradually, a generation of jurists changed; judges and prosecutors began to rise through the ranks faster than before. On the one hand, refreshing the cadre was good; on the other hand, a lack of education and experience led to superficial views on the essence of the profession.

It became normal for them to report to the president with case files and receive instructions from someone who had nothing to do with the law enforcement and judicial system. And this system began adapting to the general policy of the state. Lukashenka would travel somewhere, point something out, it would be broadcast on television — and suddenly there’s a high-profile case.

And once it is high-profile, there is no other way it can turn out than to convict the people, regardless of the circumstances. At that point, of course, you felt that legal instruments and arguments no longer worked, because those inside the system had no freedom to make independent decisions.

— Is it true that judges in “political” cases merely read out decisions handed down from above? Or do they still have some degree of independence?

— I can’t even give you a specific starting point for when this became widespread; it all happened gradually.

I still caught the era when verdicts were written by hand and then typed out. When you write by hand, you begin to think about what you are writing. But when everything is typed on a computer by the investigator (previously it was an indictment, now it is an information summary on the criminal case detailing the charges and a series of evidence the investigator considers proof of the charges), it is very easy to simply take that text and copy it into the verdict. And no matter what is established in court, it is still forced to conform to what the investigator wrote in their office.

At some point, it became clear: whatever the investigator wrote would appear in the verdict, sometimes with the exact same typos. I don’t know where the question of sentencing is decided, or who communicates it to whom. It is probably shaped during judicial briefings, during reports. If a case is monitored by Lukashenka’s administration, that is likely where everything is decided. And if the case is high-profile, it’s understood that the sentence will be close to the maximum.

Sometimes the practice shifts; for example, initially under Article 342 of the Criminal Code (Organization and preparation of actions that grossly violate public order, or active participation in them), imprisonment was imposed, and then we began seeing sentences of “home confinement” (khimiya) upon an admission of guilt. Someone, evidently, passes these directives down to the judges. But I cannot claim that there is a single decision-making center for everything. In my view, responsibility is largely diluted.

— Did defense lawyers share lists of the best and worst judges with one another?

— If it wasn’t a politically motivated case, we knew the judges who handed down harsh sentences for things like drugs or theft, and those who might give lighter sentences. Among lawyers, we knew the competent judges who could examine a civil case fairly and according to the law, as well as those who didn’t care much.

However, you couldn't really predict an outcome just by knowing who was lenient and who was harsh, because they had very little room to make independent decisions. You could only gauge how someone conducted the trial. Lawyers would describe a judge as either comfortable to work with or not — meaning whether they let you do your job during the proceedings: file motions, articulate your position, whether they behaved respectfully and didn't interrupt. Because there were judges who shouted at the parties or acted very unprofessionally. I heard from colleagues that some judges would say: “No, you won't file that motion. No, you won't substantiate it. Sit down, counsel.” And you were lucky if that was said in a more or less calm tone.

Early in my career, that hardly ever happened to me. And when I did encounter it later, I was already an experienced lawyer and knew how to handle it: I could stand up, object to such conduct, or file a motion for recusal, pointing out in court that they were violating ethics and the law, and that managed to neutralize it somehow.

And another point — the people who make decisions and sign their names to them have started hiding. In the early 2000s, I could arrange a meeting with the city prosecutor simply by calling the reception desk, and they would assign me an appointment time. To visit ordinary prosecutors or investigators, we just showed our attorney IDs. And you went there as a lawyer not merely to submit a document, but to speak — to hold that specific official personally accountable.

Around the mid-2010s, this ceased to be possible. Turnstiles were installed in all agencies — the police, the prosecutor’s office, the Investigative Committee. And that was it; you could no longer walk in on your own; someone had to come down, collect you, and escort you. It got to the point where, for instance, we never saw, never knew, and could never question the head of the investigative team who signs the indictment and makes the decisions. We couldn't reach the prosecutor who authorized pretrial detention either.

As a result, we ended up dealing with investigators who make no decisions and are merely carrying out a specific task. And how do you talk to them? For example, in Tsikhanouski’s case, the indictment was over a hundred pages long. And every time investigative actions took place, different members of the investigative team showed up. One came to present the charges, another to familiarize the defense with the case file, and so on.

Syarhei asked each of them: “So, what is the substance of this charge? I don't understand it.” They would reply: “Well, we didn’t draft it.” “Where is the evidence here?” — “I don’t know, I just brought you the case file.” That is, the people responsible remain invisible, while those we interact with avoid explanations and pretend to be mere cogs in the machine. Even though their profession does not allow for that. After all, this is not a factory assembly line.

Yet you can't simply shut down a court by installing a turnstile. Courts are supposed to be open to the public. Lately, however, judges have started hiding as well. They stopped letting lawyers into their chambers, saying: “What if you set me up for a corruption trap?” In 2021, we witnessed court hearings themselves being closed to the public.

— Is this out of shame?

— I don't know whether it is out of shame or not. There was a semi-official justification claiming that certain judges had received negative comments online following open trials.

One of the first trials of that period to be closed was Tsikhanouski’s case. The formal pretext was the safety of the trial participants. We, the lawyers, asked: “What is the danger? Maybe we are in danger too? We want to know as well.” The implicit purpose seemed to be shielding judges and prosecutors from the public's reaction.

“As a rule, judges read out unlawful verdicts with downcast eyes”

Павялічыць

— Have you ever noticed a judge feeling ashamed when delivering an obviously politically motivated decision?

— There were different observations. I remember Judge Volha Husakova reading out a decision refusing compensation for non-pecuniary damages to four former defendants in the “White Legion” case. As a reminder, in 2017, against the backdrop of protests against the “social parasite decree,” Lukashenka suddenly claimed that squads of militants were being trained in Belarus allegedly to overthrow the government. Suspects were immediately rounded up; many were brutally detained, accused of creating an illegal armed formation, held in a pretrial detention center for three months, and then the case was dismissed for lack of corpus delicti.

In such a case, there should be one hundred percent compensation for non-pecuniary damage resulting from unlawful detention. Such practice used to exist in the past — rarely, but it did. And we had prepared the claims thoroughly: they substantiated not only their emotional distress, but also the fact that this case set their lives back ten years, ruining all their achievements and plans. The young men themselves had spotless reputations. So there was literally nothing to lean on to justify dismissing the claim.

And so Husakova, although she conducted the trial properly, ruled against us. It seemed to me then that she felt uncomfortable reading out such a decision. In general, I noticed that judges usually read unlawful verdicts with downcast eyes.

Lawful decisions, on the other hand (and there were such instances), seemed to be read almost with pride. I had one “non-political” case. A respectable group of people was celebrating something at home, making a bit of noise, and a police officer living downstairs came up to confront them. It all ended in an administrative case, allegedly for disobeying a police officer.

The case was heard by a judge who was not the easiest to deal with, I’d say. But apparently, there were no instructions from above. In my closing remarks (there is no formal adversarial debate in administrative proceedings), I presented an analysis of the evidence explaining why this person could not be held administratively liable. When I finished, the judge said: “And another thing…” That is, before even retiring to the deliberation room, he gleefully added his own argument to mine! And in his ruling, he used it in favor of my client. At that moment, you could see how liberating and gratifying it was to be independent, autonomous, and to render lawful and just decisions. Unfortunately, they had fewer and fewer opportunities to do so.

— Judges and lawyers all graduate from the same law faculties; you have known many of them since your student days. Have you had personal conversations with judges where they explained why they make unlawful decisions?

— You know what they say? “We act according to the law.” It’s a mantra. No one except Lukashenka has ever said: “Sometimes laws don't apply.” In law enforcement agencies, no one says that; even a prison guard or warden will constantly claim they act strictly by the law. But the way they interpret the law — in a grotesque manner — means they would need serious retraining.

Because the law began to be steered toward repressive and eventually even torturous practices. And later, they began rewriting the law entirely. It turned out you could imprison someone for words, and for a very long time. You could apply laws retroactively regarding cooperation with “extremist formations.”

Why is this done? So they can tell themselves: “We are acting according to the law.” I’m not a psychologist, but I imagine it’s impossible to live — you would lose your mind — if you constantly considered yourself an evil person. Or you’d have to be an outright psychopath to find pleasure in torturing, killing, or making unlawful decisions. Therefore, one must find excuses. The primary one is “according to the law.” Another is: “It wasn’t my decision.” As we noted earlier — shifting responsibility.

With some people I knew better, we would say: “Why don’t you quit? You shouldn’t be here. You’re an intelligent person.” “What else do I know how to do?” they’d say. “I can’t do anything else.” They’d claim it was their duty to their family: where would they get money, how would they pay their mortgage or loan, that they were close to retirement and needed to hold out.

From judges in administrative cases, I also heard things like: “Well, I didn’t assemble the case file. This is what was brought to me, and what grounds do I have to distrust what was submitted? Why are they putting me on sanctions lists?”

— What do you mean, no grounds? You are the honorable court!

— Once I heard: “What if this case is being monitored from above?” It is simply fear. Behind every blatantly unlawful decision may lurk the thought: “What if this case is under oversight? What if this is what’s required?” Later, a person settles into this social role, and many (again, I cannot generalize) no longer see any way out of the system.

Although I know some judges, investigators, and prosecutors who demonstrated resolve and made the effort (because it takes real effort) to break out of the system and, for example, become defense lawyers. For civil servants, the freedom of lawyers might seem attractive: an attorney is more independent, manages their own time, and is perhaps even better off financially. But when the question of making the jump arises, fear sets in: “Where will my salary come from?” In state service, it hits the bank card every month, whereas in legal practice, you have to work to earn that money.

Yet those who found the strength to do it were ultimately glad of their decision. This proves that a choice always exists. I don't know what choices existed in 2020; we know only a couple of stories of investigators resigning, someone leaving the Prosecutor General's Office, or one judge resigning demonstratively. But back then, they were walking on the edge of a knife.

You see, slipping away quietly was one thing. But leaving demonstratively — the system would surely take revenge for that. And I believe it did take revenge, viewing them as traitors. I heard that there were far more such people than we know of, but understanding the system, they evidently chose not to publicize their decisions.

— Do you think there are any judges left in Belarus today who have not handed down a single politically motivated verdict?

— I don't know whether it is possible to refuse such cases. For instance, working in a court and handling strictly civil cases. Though civil cases can also be “political.” Lawsuit proceedings to disbar attorneys were handled as civil cases, for example.

Then again, there are economic courts, and there are civil judicial panels in regional courts and the Supreme Court, meaning some judges do not deal with criminal or administrative matters.

At the district court level, however, it is hard to imagine. Especially in small towns where there are only two or three judges. Did they really not preside over a single administrative protest case? And if they haven't yet, do they have the option to refuse? I strongly doubt it. You must make a pact with yourself in advance: if you become a judge in Belarus, you will have to make unlawful decisions.

— Do you think it is possible to leave this system today?

— It seems to me there is always a choice. Why is it that we all sit in the same university lecture halls, and then enter society and act completely differently? When we speak of judges, prosecutors, and defense lawyers, we received roughly the same education. At university, we weren't taught that violence is good or that delivering unlawful rulings is acceptable. Everyone read the Constitution in their first year, which states that the human being is the supreme value and that state officials must guarantee their rights.

— It seems that the personnel in both the courts and the prosecutor's office have gotten much younger. Take Alina Kasyanchyk, for example…

— You aren't imagining it. Whereas previously an investigator at the Prosecutor General's Office would typically be a colonel, now almost everyone there is under forty.

— Could one reason be that the system molds younger people more effectively than mature, established individuals? Hence the younger cadre.

— I wouldn't judge by age alone. Young people have access to more information. One shouldn't measure responsibility by age. Yes, perhaps the general value system has eroded in recent years. But if you only listen to propaganda and what is said at administrative meetings, it means you allow yourself to be molded.

Of course, the quality of legal education may have deteriorated. On the other hand, the younger generation — judging by 2020 — largely proved to be completely free-spirited. Highly educated, broad-minded, knowing a lot, and traveling abroad.

The issue likely comes down to an individual’s core values. For some, the motivation is: “I’ll enter state service, and in return, I’ll get a salary and an apartment. I don’t need any broader horizons.”

“There were situations where the prosecutor didn't even understand why they were presenting a piece of evidence”

Павялічыць

— Let’s talk about prosecutors. The average person doesn't view them favorably because they are accusers, and one doesn't expect anything good from them. But how should it be?

— A prosecutor is supposed to be the public’s advocate, you see? In American courtroom films, they say: "The People versus so-and-so." The prosecutor is the people's lawyer.

In our country, the prosecutorial function was degraded. The Soviet legacy remained: the prosecutor was supposed to oversee investigations, go to court, conduct audits (so-called general oversight) in factories, schools, and monitor compliance with the law across all spheres. In reality, a prosecutor's office should have a narrower scope — protecting people from criminal violations. And to do their job, they must be independent in their decision-making. Worldwide, this is viewed as a prestigious profession.

In Belarus, the prosecutor’s office was hollowed out. First, its investigative powers were stripped. In our reality, that was somewhat logical, because if the prosecutor’s office oversees investigations, it shouldn't be investigating its own cases. Though in the Western model, the prosecutor directs the investigation and coordinates the work of investigators and detectives.

So, our prosecutor's office had that function severed. Then, gradually, all major cases that one would expect a prosecutor's office to investigate were transferred to the KGB, which shouldn't be involved in anything outside of national security (in its true sense).

When the Investigative Committee was created in 2011, the prosecutor's office was effectively stripped of its investigative oversight role, because the Criminal Procedure Code was amended so that oversight could also be conducted by the head of the investigative unit. This was interpreted to mean that prosecutors would receive complaints and simply forward them to the head of the investigative unit. The prosecutor's office virtually became a mailbox, an agency that makes no decisions.

And what was left? Court. But a prosecutor goes to court with a binder given to them by an investigator and merely reads it out. There were situations where the prosecutor didn't even understand why they were presenting a particular piece of evidence.

— Incredible!

— With computerization, it became normal for a case file to span 150 volumes containing whatever could be thrown in, even if it had little bearing on the case. A prosecutor is supposed to study all of it and understand the purpose of each piece of evidence. In practice, many turned into mere couriers who bring the materials to court and read them out — materials they didn't manage and didn't supervise during the investigation, completely unaware of what actually happened during the probe.

Then they compose their speech — some more conscientiously, others less so. Effectively, they read out whatever the investigator wrote. And that's it. Zero accountability. A judge bears responsibility through the very act of passing a verdict and signing it. A defense lawyer is accountable to their client. But who are prosecutors accountable to? If the question of responsibility arises, they will say: “I just sat in court and presented a position based on these documents. I didn’t make the decision.”

— Did you ever encounter zealous prosecutors who took pleasure in demanding harsh sentences or seemed delighted when political defendants were tried?

— This avoidance of responsibility likely prevents them from experiencing strong feelings either way. I know for certain that prosecutors clear the sentences they request in court with their department head or another senior prosecutor. How things go from there, I don't know. But in politically motivated cases, it is simply easier for a prosecutor to ask for the maximum. After that, let the court figure it out: whether to reduce it or not, the verdict will be a conviction regardless.

To be fair, in the past, in cases where they had room for independent decision-making, we saw partial dismissals of charges and requests for non-custodial penalties. That is, where no acute state interest was involved, it was possible. And it probably brought satisfaction to act according to their professional judgment.

— What did prosecutors say regarding unlawful charges? Did they try to justify themselves?

— You see, unlike investigators, they can’t pass the buck by saying: “I don’t know the case, I just showed up in court.” So many prefer to remain silent and avoid conversations about conscience or reasoned professional discussions.

Though in fairness, both in the prosecutor's office and in the investigative agencies, I had instances where staff members would help with something if it was within their power and posed no threat to their career. Sometimes that allowed you to achieve something beneficial for your client.

— You say “achieve something,” but we are talking about simply upholding the law, right?

— Yes. Where there might have been inaction or a formal brush-off, action would actually be taken.

“A society that has not worked through its past will not become healthy”

Павялічыць

— I don't have exact statistics, but presumably very few judges and prosecutors will remain untainted by these “political” cases. Suppose the situation in Belarus changes. Do you have an answer to what should be done with those people who worked in this system for years, broke the law, and handed down unlawful decisions?

— Something will have to be done about it. A society that has not worked through its past will not become healthy. We saw this example when, at the dawn of Belarusian independence, we failed to process our Soviet past and attempted to start anew from scratch. Yet after many years, everything slid backwards. The same principles, the same system, the same people remained — although, as I mentioned earlier, there turned out to have been more conscience back then than there is now.

In what form should this be done? Criminal liability is a separate matter for cases where actual crimes were committed. Here, the question is how much institutional strength we will have to prosecute them. In a fair court, presenting sufficient evidence for a conviction is not easy. This requires serious work, and above all, people capable of carrying it out.

Lustration, on the other hand, is entirely feasible. In everyday parlance, lustration may sound like retribution, but in reality, it is a lawful process enacted by parliament on behalf of the people. And there are various models of lustration. The people, represented by parliament, can say to certain individuals based on specific criteria: step down from public office for a time, step aside, you cannot hold these posts. Or there are softer models, where you simply disclose the truth about yourself or resign.

This is by no means an arbitrary process; it is highly deliberate. What form it takes depends on many factors: what the next government will look like, the strength of the new elites, the democratic voice, the voice of the legal community, and ultimately what resources will be available. You see? But ideally, this work must be done.

— In your view, should it be taken into account whether a judge or prosecutor acted under pressure? They might argue: “Oh, I was forced, you must understand, I was intimidated.”

— We recognize that they all acted under pressure. That is, so to speak, the baseline condition. But one must understand that pressure varies. We have a legal standard for when unlawful actions cease to be considered criminal: when you act formally unlawfully in a situation that threatens your life or health, and the harm you caused is significantly less than the harm that could have been inflicted upon you, your loved ones, or anyone else. This is known as necessity. Any second-year law student knows this.

And that is precisely what needs to be evaluated: was the pressure such that it threatened harm greater than the harm caused? It seems not. The rest is a matter of intent and awareness. Jurists could not fail to understand their actions and rulings. Some may claim they didn't, but they should have. It is written in the laws, and they were trained to read those laws. Besides, defense attorneys repeatedly told them so during trials. We presented arguments, but they were ignored. I don’t want my words to sound vengeful. But it is essential to look at this objectively.

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