BELARUSIAN CRIMINAL JUSTICE SYSTEM: COMEDY AND TRAGEDY

UNCLAS MINSK 000387

SIPDIS

SENSITIVE
SIPDIS
STATE FOR CA/OCS/ACS SENA AND
CA/VO/F/P PATTERSON
FRANKFURT FOR RCO RUSSEL BROWN

E.O. 12958: N/A
TAGS: PHUM PGOV CASC EFIN KFRD BO
SUBJECT: BELARUSIAN CRIMINAL JUSTICE SYSTEM: COMEDY AND TRAGEDY

Summary
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1. (SBU) Observations from the recent arrest and trial of an
AmCit accused of financial crimes confirmed that the Belarusian
criminal justice system remains a weak parody of a system based
upon rule of law. This glimpse at the court system outside the
public eye and highly politicized cases exposes deep-seated,
systemic problems that ranged from the absurd to the outrageous.
Reform of the criminal justice system, in particular the
professionalism of judges and prosecutors, is yet another issue
in the laundry list to be addressed by GOB authorities. End
summary.

Consular access? What Vienna Convention?
--------------


2. (SBU) Post encountered problems from the outset as the
Ministry of Foreign Affairs provided initial consular
notification in February 2006 more than two weeks after the
Department of Financial Investigations (DFI) of the Ministry of
Internal Affairs detained the AmCit. The Ministry of Internal
Affairs then told the Consular Section that the AmCit expressly
did not want to meet with Emboffs. In reality, after spending a
month in a detention facility before being released on USD
50,000 bail, the rather perturbed AmCit appeared at the Consular
Section and expressed displeasure that Conoffs did not visit him
during his detention.


3. (SBU) Unfortunately lightning did strike twice in this case
when the DFI re-detained and then arrested and formally charged
the AmCit in September 2006. Once again, the Belarusian
authorities violated Vienna Consular Convention provisions for
immediate consular access, using bureaucratic rigmarole to delay
a visit by Conoffs until five days after the detention. This
would become a familiar scenario as each subsequent request for
consular access, although eventually granted, proved an intense
battle of wills.


4. (SBU) The epitome of ignorance regarding Belarus'
international treaty obligations occurred during Conoff's first
interaction with the judge assigned to the case. In accordance
with the Belarusian Criminal Code, the trial judge personally
must approve visitation rights once a case is transferred to the
court's jurisdiction. When presented with an Embassy diplomatic
note requesting consular access, the presiding judge asked with
all seriousness whether the purpose of the visit was moral
support and whether the U.S. would grant such a request if a
Belarusian Conoff wished to visit a Belarusian prisoner. The
judge then grabbed the note and disappeared for 15 minutes,
leaving Conoff to contemplate the 1994-vintage portrait of
President Lukashenka hanging on the wall.


5. (SBU) When the judge returned in a huff, she informed Conoff
that while she understood the importance of "some international
documents," the Belarusian Criminal Code in most cases provides
for visitation rights only after a verdict has been announced.
[Note: The judge denied the AmCit's Belarusian wife visitation
on these grounds. End note.] Nevertheless, the judge stated
that she in general was inclined to grant the request, but that
she could not accept the current diplomatic note because it
omitted the Russian language silent letter "soft sign" from her
last name. Conoff offered to correct the note by hand or send a
new version by Embassy driver, but the judge rejected these
options as showing disrespect to the court.


6. (SBU) As a result, the Consular Section turned to the MFA
for assistance in shepherding this routine request for consular
access through the courts and finally received permission to
visit the Amcit two weeks later. One of our MFA counterparts
candidly attributed the actions of the judge to "fear or
incompetence" and shared his disbelief for her inflexibility by
stating that "as far I know, even one of the greatest documents
of all time, the U.S. Constitution, was edited by hand."

Ready, Action, Camera: Take Two!
--------------


7. (SBU) To the relief of the AmCit, who repeatedly told Conoff
that he eagerly awaited his day in court, the judge finally
convened a hearing on February 5, 2007, almost five months after
the arrest and more than a month after the Department of
Financial Investigations handed off the case to the Prosecutor?s
Office.


8. (SBU) This, however, proved to be the shortest of reprieves
as it took less than an hour for the judge to declare a recess.
Following the judge's heavily scripted excursion through the
biographies of the defendant, the prosecutor made his opening
statement -- or rather stumbled through his reading of eight
pages of convoluted text. At this point, the judge abruptly
halted the proceedings and adjourned to her chambers, soon to be
joined for 30 minutes of ex parte discussions with the
prosecutor as defense lawyers waited patiently in the hallway.


9. (SBU) The trial resumed after 90 minutes, but with the
addition of two laypersons who the judge announced would serve
as "people's assessors" of the case. The judge then stated that
these new participants constituted a change to the composition
of court, which in turn dictated starting over from scratch.
This turn of events caused considerable angst, but did not save
trial participants and observers from a second rendering of the
prosecutor's rambling opening statement.


10. (SBU) The judge then announced that none of the 22
witnesses due to be called by the prosecutor and the defense had
appeared for the trial, but that the court would endeavor to
ensure that these individuals appeared after lunch. None of the
trial participants seemed taken back by this proposal. As
dictated by Belarusian court proceedings, the prosecutor then
began questioning the defendant, but in what appeared to be an
entirely haphazard manner. The questions either were entirely
open-ended, such as "Tell the court what happened in November
2004," or leading -- "when you decided to defraud the bank, what
actions did you take?" --, but did not elicit objections from
defense counsel.

Going Through The Motions
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11. (SBU) Just when it seemed that the trial would move forward
at a reasonable pace, a series of illnesses struck the
proceedings. The absence of one witness lead to a three-week
recess, and one day after the trial resumed, one of the people?s
assessors fainted in court, triggering another month-long delay.


12. (SBU) The court re-convened on March 21, 2007 for the
fourth time since the trial began on February 5. Conoff
attended the hearing at the request of the AmCit, who
anticipated that closing arguments would be heard. While
waiting for the case to begin, Conoff spoke briefly with defense
counsel, who just had emerged from chambers. They informed him
that the presiding judge had informed them she planned to
announce the verdict the following day at 5:00 pm. The judge
then exited her office and spent the next 15 minutes walking the
halls searching for the prosecutor, who had failed to appear in
time for the hearing.


13. (SBU) Once the case finally got underway, the court
subjected the participants to another of the vagaries of the
Belarusian justice system - the requirement that all
information solicited and collected during the course of the
investigation and trial be read into the official record.
Thankfully, this particular case was relatively minor in scale
and therefore involved a mere nine volumes of documents, which
the judge, demonstrating enviable stamina, managed to zip
through in 50 minutes flat.


14. (SBU) When it came time for closing arguments, the
prosecutor evidently decided to compensate for the judge's
verboseness. His closing statement, in which he simply stated
that the government proved its case without delving into
unnecessary details, lasted less than three minutes. By
contrast, the AmCit's local attorney put forth a spirited and
fairly well-grounded defense.


15. (SBU) On March 23, the court sentenced the defendant to 5.5
years in prison, plus confiscation of assets, for crimes
committed in violation of Article 210, Part 4 of the Criminal
Code (theft through abuse of authority). Sentencing provisions
called for between five and twelve years' imprisonment for this
offense.

Comment
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16. (SBU) Although we are not in a position to comment upon the
guilt or innocence of the American defendant, observations from
his trial expose fundamental weaknesses in the current state of
the Belarusian criminal justice system. In a case stripped of
serious political connotations, both the judiciary and law
enforcement proved unwilling and perhaps unable to uphold basic
tenets crucial to guaranteeing a fair trial. The lack of
professionalism is yet another example of the many things that
do not bode well for the future of rule of law in Belarus.

MOORE