Letter on detention of Vitaly Braginets and criminal case brought against Andrey Machala
In a joint letter Lawyers for Lawyers and the Council of Bars and Law Societies of Europe (CCBE) express concern about the detention of Belarusian lawyer Vitaly Braginets and the criminal case brought against Belarusian lawyer Andrey Machalau.
Firstly, according to the information we have received, on 23 May 2022, Mr. Braginets’ apartment was searched, and subsequently he was taken to the State Security Committee, and then to the police station for questioning about his “involvement in protest activities”. It is alleged that Mr. Braginets started swearing and screaming and tried to leave the police department and was consequently accused of “disobeying a police officer” under Article 24.3 of the Code of the Republic of Belarus on Administrative Offenses.
Two days later, on 25 May 2022, the Partizansky District Court of Minsk sentenced Mr. Braginets to an administrative detention of fifteen days. From the transcript of the court hearing it becomes clear that these alleged protest activities relate to organizing and taking part in an unauthorized protest in Minsk and using protest channels on Telegram. Despite the expiration of his 15-day administrative detention, Mr. Braginets was not released on 7 June 2022.
It has been brought to our attention that as a result of the administrative arrest, Mr. Braginets will be deprived of his lawyer’s license and the right to discharge his professional duties as a lawyer. Furthermore, the fact that he was questioned in relation to “participation in protests activities” carries a risk of continued prosecution.
Secondly, according to the information we have received, on 3 June 2022, it became known that a criminal case was initiated against lawyer Andrey Machalau on charges of “using deliberately forged documents” (part 1 of article 380 of the Criminal Code of Belarus) – a lawyer’s certificate and a warrant for the protection of a client. It is alleged that knowing about the decision of the disciplinary commission of the Minsk Regional Bar Association to impose a penalty on him in the form of expulsion from the bar, he went to court to defend his client, where, as usual, he provided a certificate and a warrant.
However, we understand that according to the legislation of Belarus of that time (as of May-June 2021), the decision of the disciplinary commission of the bar association to apply a disciplinary sanction in the form of expulsion from the bar does not mean that the lawyer is automatically expelled from the bar. Indeed, a lawyer loses the right to practice only when the decision has been confirmed by the council of the bar association and when this decision has been notified to him. Therefore, until then, the lawyer is not only entitled, but is also obliged to continue to perform his lawyer’s duties.
And although, subsequently, there was a decision by the council of the bar association to expel him, this decision was taken behind closed doors and had not been duly notified to Mr. Machalau when he represented his client. Therefore, all the actions taken up by lawyer Mr. Machalau to that point, including the use of documents of a lawyer (certificates and warrants), were absolutely legal. This entails that the charges brought against him are unfounded and are rather connected to, and serve to unlawfully curb his legitimate activities as a lawyer.
Furthermore, it is reported that in the trial against lawyer Mr. Machalau which has started on 6 June 2022, he was not provided with the minimum guarantees to a fair trial. Indeed, it is reported that Mr. Machalau’s defense lawyer was supposed to be lawyer Mr. Braginets. However, given that the term of the administrative detention of lawyer Mr. Braginets expires on June 7 (see above), lawyer Mr. Machalau petitioned to postpone the court session, for only two days, to June 8, so that after his release his lawyer Mr. Braginets could defend him. This demand was refused and another lawyer was appointed by the judge, who was granted only 20 minutes to study the criminal case and prepare for the defense of Mr. Machalau.
Lawyers for Lawyers and the CCBE urge the Belarusian authorities to release Vitaly Braginets and drop all charges against him and against lawyer Andrey Machalau unless credible evidence is presented in proceedings that respect fair trial guarantees, and guarantee that all lawyers in Belarus, including the ones named above, are able to practice law without threat, intimidation, hindrance, harassment, improper interference or reprisals.
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