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'Detained and released illegally', or How to spend 4 days in jail instead of 10

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One of 170 arrests on Freedom Day 25 March 2018. Photo: Euroradio

Something that some people calle a 'Freedom Day miracle' happened on the evening of 25 March when almost all the opposition activists detained ahead of the Freedom Day celebrations were released. Some of them, like Uladzimir Nyaklyayeu, had spent four days in jail. Others, like Mikalai Statkevich, had been locked for ten hours.

“Nobody explained anything. I realized I was being released when I passed the check-point and noticed Vyachalsau Siuchyk outside. I would have expected to be transferred to some other building or to Zodzina detention centre,” Maksim Vinyarski told Euroradio. “If I had known that I was being released, I would have demanded a reference proving that I had served an administrative sentence. That reference must contain the reason for the release. Usually, this is 'the end of the detention term.' However, something different had to be written in the reference that time.”

To tell you the truth, I think that there was no legal reason to release me. They violated my constitutional rights when they arrested me. They violated the law again when they released me.”

Maksim Vinyarski and some other people detained ahead of the Freedom Dayevents are set to find out the reason for their arrests and check what their current status is.

It is very difficult to organize such a situation legally, rights defender Valyantsin Stefanovich says.

“I am very happy that they have been released. But there are a lot of problems: the court’s decisions that led to the arrests have not been anulled. A higher court has not cancelled it either. It means that these people are still facing imprisonment. And they do not know when it may happen.”

Viasna Human Rights Center lawyer Valyantsin Stefanovich

Interestingly, it is impossible to simply cancel an administrative sentence. Technically, nobody has the right to do it. According to the Constitution, neither the Minister of Internal Affairs nor Alyaksandr Lukashenka can interfere in the work of courts.

It is not a legal question, one of the lawyers whom Euroradio asked for comments said. Only the court has the right to reconsider court’s decisions, another lawyer noted.

“They cannot simply release people. You can ask for a respite but it means that the court’s decision needs to be appealed. If the court’s decision was being fulfilled, why were they released then? Some other decision must have been made.”

Te lawyer adds that he has never seen a situation in which an administrative arrest could be divided into parts. It is impossible if you stick to the law.

“You cannot release someone only because you want to. The court’s decision must be fulfilled. If it isn’t, it must be changed somehow. Only the court that pronounced the sentence or a higher instance court can do it.”

Uladzimir Nyaklyayeu and Mikalai Statkevich in 2016. Photo: Euroradio

In other words, Uladzimir Nyaklyeu cannot owe 6 days of arrest to the legal system only because somebody ordered to release him early on 25 March. The court’s decision needed to be changed to release the politician. The term of his detention had to be shortened from ten to four days or replaced with a fine. Or it had to be cancelled altogether.

All this applies to some ideal world where the rule of law is real. Uladzimir Nyaklyayeu living in modern Belarus does not know if he would be told to spend the remaining six days in jail ahead of some other protest action in the future. Rights defender Valyantsin Stefanovich says on this:

“The started employing the practice of ‘prospective arrests’ in Belarus long ago. The court pronounced its sentence but the people do not get detained despite the fact that the law says that court’s decisions must be fulfilled immediately. They release you saying: 'you will be jailed some time later, and you just remain on the hook."

Detained observers Tatstsyana Mastykian and Nasta Loika in a police van. Photo: spring96.org

Even rights defenders have never heard of an administrative arrest to be divided into parts. Belarusian Helsinki Committee observer Nasta Loika can only recall one such case:

“A Polish citizen was preventively detained before 25 March last year. She was charged with swearing in a public place and sentenced to 15 days of arrest. However, the Polish Embassy interfered. As a result, she was released three days later, brought to the border and received a stamp in her passport forbidding her to enter Belarus for 5 years. It is not clear what happens when she comes to Belarus because administrative arrests never expire.”

The Polish citizen has a choice: to stay in Poland or to come to Belarus and see if she gets detained. Uladzimir Nyaklyayeu will have to stay at home forever unless he wants to check the same thing. Iosif Brodski’s verse suits the situation the best: “Don’t leave the room, don’t make the mistake and run.”