of the minor child Emil Ostrovko during criminal proceedings (17 years at the time of his arrest, village of Kapishchi) (prepared on the base of the criminal case materials by both lawyers and human rights activists of «Our House» organization)
Chapter #1. The brief overview of the case on children rights violation.
Chapter #2. Some conclusions of “Our House” experts, who observed the court proceeding, with detailed aspect description of the Belarusian legislation.
Chapter #3. Violations of the rights of minor child during detention, arrest and court process.
Chapter #1. The brief overview of the case
The minor child Emil Ostrovko found an internet advertisement, which was offering a legal job with permanent legal source of income. The work should be done consisted in distribution of smoking mixtures. Emil Ostrovko was told this activity had legal status and couldn’t be prosecuted by the law. As it turned out afterwards the minor child was forced into spreading of dangerous psychotropic drug (so-called designed drugs or “highs”) under the guise of legal smoking mixtures.
Ostrovko was arrested on April 12, 2018 in Kolodishchi, Minsk district, on his way to girlfriend and was detained immediately.
The minor child actions were qualified as participation in an organized criminal group, controlled by an unidentified person. The investigation authorities and the court hold the view, the minor Ostrovko had full information on real threat to human health of systematic non-medical consumption of especially dangerous psychotropic drugs, on the public danger of distributing such a substance among the population, as well as on the high profitability of such illegal mass distribution. It was decided, Emil has been acted in criminal organization’ s interest on the territory of Minsk city and Minsk District, that falls under part 1 and 4, section 328 of the Belarus Criminal Code (Important note: implies imprisonment of up to twenty years with or without property confiscation).
While in jail, the minor Ostrovko had so far not been permitted to pass the end-of-primary school exams and to receive School Graduation Diploma.
The extreme distress has led to Emil’s suicide attempt during his detention in Detention Centre (SIZO) No. 1, Minsk.
On July 20, 2018, the court sentenced Emil Ostrovko to 10 years imprisonment without confiscation of property. At the moment, Emil Ostrovko is in “Prison No. 8, Zhodino”.
“Our House” expert summary: Following a thorough analysis of the case materials «Our House» experts concluded that part 4 section 328 of the Belarus Criminal Code was applied to E.Ostrovko illegally and must be considered as punitive actions, what is totally unacceptable in considering cases of minor child crimes.
At assignment of criminal sentence to Ostrovko court has to take into account circumstances influencing on degree and responsibility character, especially influence of adult organizers on Emil‘s actions.
Moreover, during pretrial investigation the minor‘s rights repeatedly violated:
– Unreasonably the most repressive measure was taken before court proceeding (pretrial detention);
– The personal search was carried without Emil‘s legal representative (without his parents);
– The preliminary investigation wasn‘t be able to identify both organizers or other participants of the criminal organized group. Consequently, the conclusion about sustainability and cohesion of controlled group is based on opinion, but not factual evidences;
– The minor‘s intention to distribute illegal psychotropic substance wasn‘t proven with satisfactory reliability.
Chapter #2. Some conclusions of “Our House” experts, who observed the court proceeding, with detailed aspect description of the Belarusian legislation.
In Belarus, a crime is qualified as committed by an organized group if it is committed by two or more persons, previously united into a controlled permanent group for joint criminal activities. Individual members of an organized group are only responsible for the crimes that they prepared or participated in personally (Criminal Code, section 18). But law enforcement practice is completely different.
The Minsk District Court (Judge A. Kolobov) sentenced the minor Emil Ostrovko to ten years jail. The sentence was announced on July 20, 2018. On that day school graduate Emil turned 17 years and 10 months.
The minor was convicted for a “crime” committed on an indefinite day of 2017, which the court failed to specify.
The judge accused the 17-year-schoolboy (who was 17 at the moment of the incriminated actions) on joining an unknown for justice system, stable, controlled organized group with stable structure.
However, in the verdict, Judge Kolobov neither named any member of this “stable” group, nor called the number of its members, also it wasn’t indicated who had organized and led the mentioned group.
On the bench of the accused the only representative of the organized criminal group was the underage schoolboy. The investigation did not even try to find other participants.
In the verdict, the Judge states that “unidentified in the court trial person, being the organizer and leader of the organized group…”, which is followed by an account of the actions of the criminal group organizer for more than one and a half A4 page (53 lines)
It is impossible to know from the case files how Judge Kolobov, who presided at the trial, found out all that. Besides, the actions of the group leader are not related to Emil Ostrovko, who, according to the court, was an “ordinary participant”.
There are neither interrogation report of the criminal group organizer nor his name in the criminal case materials.
From the verdict: In circumstances not established reliably, in an unspecified place, at a time not established reliably, using an unidentified vehicle… the convicted minor arranged a meeting with an unidentified person and purchased a drug (sheets 1-3 of the verdict).
For Judge Kolobov, “not established” is a synonym for “fully proven” (page 7 of the verdict). On page 8 of the verdict, he writes: “The existence of the organized group itself has been established by the court.”
Given so many unidentified circumstances, Emil Ostrovko refused to take the stand at the trial. Judicial process was based on illegally obtained pre-trial evidence (illegally because the testimonies are elicited from children frightened by arrest: investigators promise to let them go home if they tell everything).
The 11th Form Graduate told everything and showed everything on a voluntary basis!
In accordance with section 63 of the Criminal Code (clauses 2 and 3 of part one), the sincere repentance of a committed action and active cooperation toward disclosing the committed action and finding prohibited objects are the circumstances for softening responsibility.
Judge Kolobov, however, “did not notice” any mitigating circumstances, and they aren’t reflected in the verdict (p.12 of the verdict).
Сaptain Pokora — the senior investigator of Minsk District department of the Investigative Committee — immediately has forgotten his promise to minor child to free him and issued the detention order of 14 April, 2018 about sending the schoolboy to Zhodino Prison No. 8
Formal reasons for appearance of Emil‘s detention order were following:
— could get away from the criminal prosecution organ;
— could obstruct the investigation;
— could prevent the further case consideration by the Court;
— could affect on persons involved in court proceedings;
— could not come upon a request of a body conducting criminal proceedings;
— could have intense to commit a socially dangerous act.
It‘s hardly to respond appropriately on the senior investigator assumption of Emil Ostrovko‘s intention to affect on persons involved in court proceedings? Indeed, the other participants had not been identified neither during preliminary investigating by captain Pokora nor during trial by Judge Kolobov. They were not been identified, and much more, nobody tried to find and to identify these participants.
Emil Ostrovko was arrested for action on Part 2 Section 328 and he was judged for actions on Part 4 Secion 328 of the Criminal Code. Sanctions on these two parts differ significantly: on Part 2 – imprisonment of up to eight years, on Part 4 – imprisonment of up to twenty years.
For prosecution criminal suspect on Part 4 Section 328 investigators have to prove the existence of certain organized criminal group.
In these court hearings the criminal organized group consisted of one schoolboy.
Emil Ostrovko‘s characteristics are positive. Under the section 70 of the Criminal Code with consideration of particular character traits of the accused the court could both sentence punishment is below the lower limit on incriminated section or a less severe punishment.
Again, it‘s natural for other European countries. Belorussian judge Kolobov didn‘t see reasons for application of section 70 of the Criminal Code.
Мinsk Region Court on 2 November 2018 under the chairmanship of А.Dobrey considered appeals against the sentence of The Minsk District Court (judge rapporteur — Е.Misnik, representative of prosecutor‘ s office — the associate judicial affairs officer Lanevskaya).
The judicial chamber excluded the distribution from the initial sentencing. But this is precisely what accusation and guilty verdict were built on.
However, ten years imprisonment for Emil was left unchanged by regional court board.
This is despite the fact, that the schoolboy was convicted for criminal actions of undefined persons violation of section 18 of Criminal Code)
Chapter #3. Violations of the rights of minor during criminal proceedings:
3.1. Violations during detention (Detention with violation of the Code of Criminal Procedure, unreasonable use of pretrial constraint measure)
Emil Ostrovko was arrested on April 12, 2018, on the basis of suspicion of distribution drugs, psychotropic substances, their precursors and analogues. On the same day he was imprisoned.
After the arrest, Emil’s legal representatives (parents) were not notified immediately, as required by section 432 of Criminal Procedure Code.
A personal search of the minor was carried out without a legal representative.
During a follow-up search in a rented flat, the legal representative (mother) attended.
According to the rule No. 10 of the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules,1985), when the minor was going to be arrested, her or his parent/guardian must be immediately notified of the arrest, and if such an immediate notification is impossible, the parent or guardian should be notified as soon as possible.
When the pretrial constraint measure selected, lawful grounds, motives and the possibility of applying for a different, more lenient preventive measure were not been analyzed. Such «softer» measure could be placing the minor under supervision in the manner provided by section 123 of the Criminal Procedure Code of the Republic of Belarus. It was not taken into account that Emil Ostrovko had never been previously convicted and, as it follows from the medical record, he suffered from bronchial asthma.
The preventive measure applied to Emil was not justified by the investigation and the necessity of keeping him in a pre-trial detention centre was not explained. The investigation had no reason to suppose that if this measure were not applied, E. Ostrovko would have hindered the investigation and court proceedings, or made an attempt to escape from the investigation or the court, or in other way prevented establishing the truth on the case. All this does not comply with the principle of increased legal protection of the minor rights.
According to rule No. 13 of the Beijing Rules, pre-trial detention should be used only as a last resort.
3.2. The investigation both failed to prove the existence of a sustainable and manageable organized group and couldn’t establish the names and identities of its participants.
Throughout all the case materials as well as in the court verdict it is claimed that E. Ostrovko is a member of an organized group, controlled by an unidentified person. On this count, Emil Ostrovko was sentenced to 10 years in prison without confiscation of property.
The note on the results of the preliminary criminal investigation (case No. 18126140146) states that E. Ostrovko for material gain joined a sustainable, controlled, and organized group, which was created by an unidentified person at an unspecified time for illegally distribution of particularly dangerous psychotropic substances through the global network Internet. The unidentified organizer of the group also involved other unidentified persons. The investigation neither identified the group nor established the number of its members. This did not prevent the investigation from concluding that the group was sustainable, manageable, coordinated, and cohesive, which was not supported by any evidence in the criminal case of Emil.
3.3. The investigation did not attempt to establish the identity and the degree of guilt of the adults who involved Emil in illegal activities, the court did not take into account, as a mitigating circumstance, that unidentified adults might have influence on Emil.
There is no evidence of the investigation‘s attempt at finding the adult who involved the minor E. Ostrovko into criminal activity. Nor is the degree of the guilt of this adult established.
According to Section 63 of the Criminal Code of the Republic of Belarus, a court may recognize as mitigating other circumstances not only specified in this Section. However, the court did not consider as a mitigating circumstance the influence of adults on the minor E. Ostrovko, when he was involved in criminal activity..
According to rule No. 17 of the Beijing Rules, decisions on restricting of a minor’s individual freedom should be taken only after careful consideration of the issue. The restriction should be reduced to the minimum rate.
3.4. The minor rights under detention, in particular, the right for receiving compulsory secondary education.
By the time of his arrest, E. Ostrovko was a schoolboy of graduating class. Because of his detention, he was unable to pass exams for grade 11 (final year). In response to the complaints by E. Ostrovko and his legal representative, the Ministry of Education of the Republic of Belarus pointed to the fact that the legislation couldn’t provide educational process in a remand centre. The Ministry also informed that it had developed a bill on amending the legislation on this issue. However, the legislative process in Belarus is complicated and lengthy, so these amendments will unlikely be adopted in the nearest future. No measures have been taken toward realizing the right of the minor E. Ostrovko for receiving compulsory secondary education on his final school year.
During his stay under detention E. Ostrovko committed a suicide attempt.
According to rule No. 13 of the Beijing Rules, “The minors under detention should receive care, protection and all necessary individual assistance – psychological, medical, physical, also comprehensive assistance in the field of vocational education and training”. However, Emil received only medical assistance. Psychological assistance was not provided to him at all.
Thus, at all stages of the process, the principle of increased legal protection of the minor was not met. The investigation failed to find additional data on the personality of E. Ostrovko, his living conditions and upbringing. The reasons for commiting the crime by the minor were not established and were not taken into account in court sentencing.