Kupchenya Valeria Andreevna, Born 3/1/2001

Minor age (17 years old at the time of arrest)

Convicted on 9/4/2018 under part 4 of article 328 of the Criminal Code of the Republic of Belarus for 10 years

 

Case brief:

After graduating from the 9th grade, Valeria entered the technological college (Minsk, Krasnaya st.), Studied for 1.5 years, but took the documents from there, because she realized that shew did not have the heart for this profession. She planned to go to the Humanitarian university in 2018 and was looking for a job while waiting the exams.

She was familiar with Vladislav Sharkovsky, who told her that he had found a part-time job with a high income and she began to help him. Together, Valeria and Vlad became couriers for the contactless delivery of “legal aroma mixes and smoking mixtures” – such a description was in the job advertisement. Two minors did not know about the existence of an organized drug-selling group. Drugs were not sold, the court did not prove that drugs were sold to anyone.

Valeria was detained on 3/17/2018 at 00:46 at home.

The police learned about Valeria from the explanations and telephone correspondence of Vladislav, who had been detained several hours earlier.

She was sentenced on 9/4/2018 under part 4 of article 328 of the Criminal Code of the Republic of Belarus to imprisonment for a term of 10 years with serving a sentence in a penal colony of general regime.

Currently serving a sentence in a women’s colony #4 246035 Gomel. st. Antoshkina d 3.

The main violations in the criminal procedure:

The experts’ conclusion: in our opinion, part 4 of Article 328 of the Criminal Code of the Republic of Belarus has been illegally applied against Valeria Kupchenya and has an obvious punitive orientation.

1. When appointing a criminal punishment, circumstances affecting the degree and nature of responsibility, especially adult instigators and organizers, were not taken into account, mitigating circumstances were not taken into account.
2. During the preliminary investigation, the rights of the underage Valeria Kupchenya were repeatedly violated:

• special means were used during the arrest without grounds – handcuffs and torture.
• the most stringent preventive measure (detention) was unreasonably applied.
• a lawyer was provided only from the moment of the first interrogation.
• the investigation did not establish the organizer and other members of the group, the conclusion about the stability, cohesion of the controlled group is not based on evidence.
• mitigating circumstances were not considered when sentencing.

Violations of the Criminal Procedure Code:

1. The verdict does not correspond to the materials of the case, it was delivered unreasonably, based on arguments and assumptions, which contradicts part 4 of article 16 of the Criminal Procedure Code of the Republic of Belarus.
2. To the underage Kupchenya Valeria, special means were unlawfully used – handcuffs – Article 28 of the Law “On the Internal Affairs Bodies of the Republic of Belarus”. She was taken out of the house in handcuffs, and she was also taken to the courtroom in handcuffs. Although there were no grounds for using handcuffs, Valeria did not resist and did not try to escape.
3. During the search procedure, the girl was forced to stand in the room where the search was taking place, in her underwear, without being allowed to get dressed , in the presence of adult men (case officers).
4. Immediately during the search and detention, the underage Valeria Kupchenya made an attempt to actively contribute to the detection of the crime, she voluntarily admitted that she had “some substance” in her backpack. She did not hide anything and fully told about participation in the deed. From this follows the application of the note:

Article 328 Note. A person who voluntarily gave narcotic drugs, psychotropic substances, their precursors or analogues and actively contributed to the identification or suppression of a crime related to the illegal circulation of these funds, substances, the exposure of the persons who committed them, the discovery of property obtained by criminal means, is released from criminal liability for this a crime.

5. The judge issued a verdict under Part 4, which is untenable, incorrect and based on assumptions – Part 3, Part 4 of Art. 16 of the Criminal Procedure Code of the Republic of Belarus, part 2 of Art. 18 of the Criminal Procedure Code of the Republic of Belarus. In the actions of the minor Valeria Kupchenya there are no signs of committing a crime as part of an organized group. So, as it is not established, is not supported by any evidence and is not specified in the accusation itself by whom, when, where exactly, under what circumstances and on the basis of what agreements the organized group “ECLIPSE” was created and headed, appearing in the case. The quantitative and nominal composition of the participants in this group is not indicated, in the case they are called “unidentified persons”.
6. The court of first instance assessed the evidence collected in the criminal case in their totality and concluded that Valeria Kupchenya had no connection and intent with the end consumer for the transfer of especially dangerous psychotropic substances. Therefore, the court ruled to exclude sales and marketing intent from the charge (l.19, l.20 of the Sentence) The accused only performed the work of a courier and did not know for sure what substances were there. And had no idea what would happen with these substances.

On the basis of clause 12 of the Plenum of the Supreme Court of the Republic of Belarus dated March 26, 2003 No. 1, that the actions of an accused who have committed illegal trafficking in narcotic drugs, psychotropic substances, precursors and analogues without the purpose of selling are subject to qualification under Part 1 of Art. 328 of the Criminal Code of the Republic of Belarus

7. They did not take into account the positive aspects of Valeria’s Kupchenya characteristics from the College, the Court did not apply – Article 70 of the Criminal Code of Belarus.
8. In accordance with Part 1 of Art. 378 of the Criminal Procedure Code of the Republic of Belarus on appeals and protests, the court of appeal is obliged to verify the correctness of establishing the factual circumstances of the criminal case and the application of the criminal law, as well as the observance of the norms of the criminal procedure law when considering and resolving a criminal case by the court of first instance. That was not done!
9. In accordance with Part 3 of Article 397 of the Criminal Procedure Code of the Republic of Belarus in the descriptive and motivating part of the ruling of the court of second instance, the reasons for the decision must be stated. The above-mentioned provisions of the law by the court of second instance, when considering the case in full, NOT FULFILLED!