OPINION OF HUMAN RIGHTS GROUPS AND ORGANIZATIONS ON THE CASE OF DZMITRY HALKO

On July 17, 2018,  Savet­s­ki dis­trict court of Min­sk con­vict­ed jour­nal­ist Dzmit­ry Halko. Dzmit­ry was found guilty under arti­cle 364 of the Crim­i­nal Code «Vio­lence or threat of vio­lence against a law-enforce­ment offi­cer» and sen­tenced to four years of restric­tion of lib­er­ty in an open-type cor­rec­tion­al insti­tu­tion. The sen­tence has not come into force.

The con­flict lead­ing to crim­i­nal pro­ceed­ings occurred on Novem­ber 25, 2017. Accord­ing to inves­ti­ga­tors, Dzmit­ry Halko used vio­lence against police offi­cers who entered the apart­ment, where Dzmit­ry’s minor son cel­e­brat­ed his birth­day with friends (includ­ing those of full age). Accord­ing to the case mate­ri­als, there were alco­holic drinks on the table and some of the guests were in a state of intox­i­ca­tion. Dzmit­ry Halko and his son, who also took part in the con­flict, were detained with the use of instru­ments of restraint and tak­en to a police sta­tion. Sev­er­al young peo­ple who took part in the birth­day par­ty tried to escape from the police by jump­ing off the bal­cony. By doing this, two of them suf­fered seri­ous injuries.  Dzmit­ry Halko was tak­en to the Iso­la­tion Cen­ter and on Novem­ber 27 incurred admin­is­tra­tive lia­bil­i­ty for minor hooli­gan­ism.

Imme­di­ate­ly after his release Dzmit­ry expressed his stand­point on what hap­pened in a Face­book post and was inter­viewed by web­sites KYKY.org and tut.by.  He claims, the police offi­cers entered the apart­ment in defi­ance of his protests, with­out war­rants or oth­er grounds pro­vid­ed by the law. They were shoot­ing a video in the apart­ment with­out con­sent of those present, and Dzmit­ry tried to stop the ille­gal actions of the police offi­cers (not using vio­lence against them). He expressed his indig­na­tion at the offi­cers’ actions and claimed that they had led to trau­mat­ic con­se­quences — a leg frac­ture of a teenag­er and a spinal frac­ture of a full-age guest who had got scared of the police intru­sion into the apart­ment.  By virtue of his pro­fes­sion­al jour­nal­is­tic skills and per­son­al qual­i­ties, Dzmit­ry Halko spoke not in defense of his own rights (by that time he had already served the admin­is­tra­tive sen­tence and believed that the case was over), but in defense of pub­lic inter­est.

Twelve days after the con­flict (and 10 days after the pub­li­ca­tions), crim­i­nal pro­ceed­ings were start­ed against Halko.

We can not state that the crim­i­nal pro­ceed­ings against Halko were the con­se­quence of his crit­i­cism in social and oth­er media. More­over, we have a great aver­sion to the sit­u­a­tion that led to the con­flict — the lack of adult con­trol over the behav­ior of minors and pos­si­ble drink­ing of alco­holic bev­er­ages by some of them. Were the inves­ti­ga­tion of the crim­i­nal case impec­ca­ble, we would have rec­og­nized its con­clu­sions with­out any objec­tions. How­ev­er, the tri­al mate­ri­als do not allow us to con­sid­er it as such and to rule out the pos­si­bil­i­ty that the crim­i­nal pro­ceed­ings were start­ed by law-enforce­ment agen­cies in retal­i­a­tion for crit­i­cism.

Thus, the case mate­ri­als do not show whether the police con­duct­ed an inter­nal inves­ti­ga­tion into the law­ful­ness of the actions of police offi­cers of enter­ing the apart­ment and recor­ing video. The court did not make a legal assess­ment of that either. Mean­while, Arti­cle 25 of the Law on Bod­ies of Inter­nal Affairs states that a police offi­cer is enti­tled to enter homes and oth­er legal prop­er­ty of cit­i­zens with­out hin­drance only when chas­ing sus­pects and the accused of crim­i­nal offences or if there are suf­fi­cient grounds to pre­sume, that a crime has been or is being com­mit­ted there, or a sus­pect or accused of a crime is inside. Arti­cle 25 also speaks on the right to take pho­tos, and do sound and video record­ing of cer­tain per­sons, but only «under teh estab­lished pro­ce­dure.»

It fol­lows from the tes­ti­mo­ny of the police offi­cers that their vis­it to the apart­ment (with­out — any war­rants or rul­ings) was caused by the fact that the local police offi­cer saw a group of teenagers on the bal­cony. Thus, the sus­pi­cion was about the actions that could have been rec­og­nized as an admin­is­tra­tive vio­la­tion, in the worst case sce­nario, but not a crim­i­nal offence. Fur­ther expla­na­tions giv­en by police offi­cers (about a pos­si­ble porn stu­dio or a drug den) con­tra­dict their own tes­ti­mo­ny and do not stand up to crit­i­cism. Among oth­er things, police offi­cers admit­ted in court that, despite being in the apart­ment for a long time, they did not start any pro­ce­dur­al actions and did not announce their begin­ning.

In our opin­ion, the court did not eval­u­ate of the law­ful­ness of the actions of the police offi­cers with due dili­gence.  Mean­while, there is every rea­son to believe that these actions vio­lat­ed the invi­o­la­bil­i­ty of home and were accom­pa­nied by inter­fer­ence in pri­vate  life. And they were regard­ed as such by Dzmit­ry Halko.  

We draw your atten­tion to the fact that Arti­cle 364 of the Crim­i­nal Code, under which Dzmit­ry is con­vict­ed, pro­vides for lia­bil­i­ty for hin­der­ing the law­ful actions of law-enforce­ment offi­cers. In oth­er cas­es, they are not enti­tled  to spe­cial pro­tec­tion by law. How­ev­er, in Halko’s case, as in many oth­ers, the law­ful­ness of actions of the police offi­cers was left out of the process. Along with the issue of the lim­its of self-defense of a cit­i­zen pre­vent­ing ille­gal actions of police offi­cers (includ­ing those direct­ed against his son and oth­er cit­i­zens).

Dzmit­ry Halko’s case stands out not only because he is a pub­lic fig­ure (which attract­ed increased pub­lic atten­tion to the case), but also because he, con­trary to the inter­ests of his own safe­ty, began to pub­licly talk about the rights of cit­i­zens and the pos­si­bil­i­ty of their defence in con­flicts with the police .  

The gov­ern­ment is oblig­ed to ensure an unbi­ased inves­ti­ga­tion of any case and a fair tri­al to every­one. Thus, the cas­es relat­ed to pub­lic crit­i­cism of the actions of the author­i­ties (includ­ing police offi­cers), inves­ti­ga­tion should be as thor­ough and impec­ca­ble as pos­si­ble, both in pro­ce­dure and in con­clu­sions. In our opin­ion, in this par­tic­u­lar case it is not; many issues that are sig­nif­i­cant for the case (and for fur­ther prac­tice of rela­tions between cit­i­zens and police offi­cers) have not been resolved by the court.

We call on the court of appeal to elim­i­nate all the gaps in the judi­cial inves­ti­ga­tion and to make a law­ful and well-argued deci­sion.

Belaru­sian Asso­ci­a­tion of Jour­nal­ists

Legal Ini­tia­tive

Expert-legal part­ner­ship «FORB Ini­tia­tive»

Belaru­sian Doc­u­men­ta­tion Cen­ter

The Sol­i­dar­i­ty Com­mit­tee

Barys Zvoskau Belaru­sian Human Rights House

PEN Cen­ter

Human Rights House Vias­na

Belaru­sian Helsin­ki Com­mit­tee