of minor Darya Bondarkova in the criminal proceedings
(17 years old at the moment of detention, the village of Golynets, Mogilev Region)
(prepared by the lawyers and human rights activists of “Our House”
on the basis of the materials of the criminal case)
Born in 1999 (at the time of detention she was 17 years old, sentenced to 8 years for 0.051 grams of synthetic cannabis (spice))
Chapter #1. The brief overview of the case on children rights violation of Darya Bondarkova.
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.
Charter#1. The brief overview of the case: An adult male (Darya’s classmate, he had twice been in hospital because of overdosing narcotic drugs), acting under the guidance of police officers, induced into a crime 17-year-old Darya Bondarkova through persistent persuasion, threats, and money transfer for purchasing him psychotropic substances. The adult male appears in the criminal case as a “purchaser” who made a “test purchase”.
Upon paying through the Internet, Darya took the psychotropic from the “bookmark”, but refused to deliver it to her classmate provocateur. After insistent persuasion and threats on his part, she eventually agreed to give 0.051 grams to her friend. The friend poured it into another bag and gave a part to the purchaser. The friend was subsequently convicted of this for 10 years and 10 months, later, after an appeal, reduced to 9 years and 10 months). Despite everything had been secretly filmed by the police, the fact of Darya‘s passing on the drug was not recorded by camera. The forensic examination of this bag with 0.051 grams of the spice found neither the fingerprints of Darya nor those of her friend.
After that, the classmate repeatedly called Darya, threatened and tried to persuade her to make a second purchase, but Darya flatly refused.
Darya Bondarkova was detained on February 13, 2016 in the courtyard of her house, physical force being applied. Police officers beat the minor and detained her until 3am without the presence of a legal representative (parent). Police officers never notified Darya’s parents about her arrest. Tortured by the police and frightened, Darya agreed [to do what police officers asked to]. The police gave her two surnames (of minor Yulia Belskaya, 16 years old, and adult Oleg Raguyev, 27 years old) and told Darya to do a provocation and persuade them to make a “test purchase” (in other words she had to help the police to get them in jail). After that, the police at last released minor Darya.
Later, a police officer forced Darya to call these two people in order to cajole them into meeting with her and buying drugs. When the young people yielded to persistent persuasion and agreed to meet up, the police officer attached a hidden camera on Darya’s jacket and he himself was nearby to orchestrate the provocation against the young people. As a result of this meeting, minor Yulia Belskaya (16 years old) was later sentenced to 8 years jail and adult Oleg (27 years old) to 6 years.
After this meeting, Darya univocally refused to act as a purchaser, i.e. to persuade other young people to sell drugs (in fact, she refused to help the police put other young people in jail).
On April 5, 2017, a police officer called Darya and demanded that she come to the police department to sign some documents. In the police department, she was detained.
On November 14, 2017, Darya Bondarkova was sentenced to 8 years prison.
Charter#2. Conclusions from studying the materials of the criminal case: in our opinion, part 3 of article 328 of the Criminal Code of the Republic of Belarus was improperly applied to minor Darya Bondarkova for the following reasons:
1. Darya Bondarkova was involved in committing the crime as a result of provocation by a person who did not mean to stop criminal activity, instead he just wanted to provoke Darya into committing the crime.
2. During the arrest, physical force and torture were ungroundedly used against the minor (she was beaten by police officers); while in the status of a detainee, she was repeatedly subjected to physical violence. In addition to physical violence, psychological pressure was applied to Darya Bondarkova.
3. From the very moment of arrest, Darya Bondarkova was imprisoned. The most severe measure – putting in detention facility – was applied only on the basis of the gravity of the crime of which she was suspected.
4. Darya Bondarkova was convicted not for crimes committed by herself previously, but for a provoked crime. The adult purchaser, who collaborated with law enforcement officers in order to mitigate his responsibility for other crimes, was bent on cajoling minor Darya Bondarkova into committing the crime.
5. In relation to the adult male purchaser the police did not initiate any criminal proceedings under art. 172 of the Criminal Code of the Republic of Belarus for “involving minors into committing a crime”, which again, in our opinion, testifies to the criminal case being concocted by police officers, whose actions did not aim at preventing illegal activities.
6. The court used evidence obtained as a result of provocation by state agents to commit a crime. The fact that minor Darya Bondarkova was induced to commit the crime by deliberate actions of an adult was not taken into account when imposing the punishment. It was not proved in court that Darya Bondarkova would have committed the crime even if the police had not provoked her.
7. The court did not analyse the relevant factual and legal circumstances that could help distinguish between provocation and the legal form of investigative methods. Therefore, the trial, during which Darya Bondarkova was found guilty, was not “fair”. Provocation is a procedural fault that is incompatible with fair justice.
8. Darya Bondarkova was sentenced to 8 years for 0.051 grams of spice, which, in our opinion, testifies to the disproportion of punishment.
9. It is clear that the police have made it their usual practice to induce minors to commit crimes.
Chapter#3. Violations of the rights of the minor in criminal proceedings:
3.1 Investigation operations (hereinafter IO) and arrest were carried out with violations of the Criminal Procedure Code of the Republic of Belarus (hereinafter CPC)
In relation to minor Darya Bondarkova, IO were accompanied by violation of her rights and legitimate interests. The buyer (adult male), which had previously been detained under part 1 of art. 328 of the Criminal Code of the Republic of Belarus, with the intention of cooperation with the investigation in order to mitigate his guilt, agreed to provoke Darya to commit a crime. He was interested in Darya’s committing the crime.
Thus, Darya Bondarkova was induced to commit the crime by deliberate actions of the adult.
On February 13, 2017, Darya Bondarkova was detained with the use of force in the courtyard of her own house on the sudden suspicion of the illegal trafficking of narcotic drugs, psychotropic substances, their precursors and analogues.
The use of physical force was not preceded by a clear and univocal warning for the minor about the intention to do it. There were no grounds for using physical force against the 17-year-old girl. There was a possibility to detain Darya Bondarkova in a non-violent way.
The legal representative (mother) of the minor was not immediately notified of the detention of her daughter.
A law enforcement officer actively prevented minor Darya Bondarkova from letting know her mother of her whereabouts, despite the fact that the detention was carried out at night.
According to the testimony of the legal representative of Darya Bondarkova (her mother), at the time of detention, the minor, being in the status of a detainee, was subjected to psychological pressure and physical violence.
According to the legal representative of Darya Bondarkova (her mother), the police, through persuasion, intimidation, and money offers, tried to induced minor Darya Bondarkova to take part in provocations against other persons. This seems to mean that in the Republic of Belarus, police officers exploit minors in provocations against suspects.
According to the Ten UN Standard Minimum Rules on carrying out justice towards minors (Beijing Rules), when a minor is detained, his or her parents or a guardian must be immediately notified of the detention, and if immediate notification is not possible, the parents or guardian shall be informed in the shortest possible time.
3.2 Ungrounded use of a preventive measure
When detention as a preventive measure is applied to the minor, the only reason for doing that was the gravity of the crime of which she was just suspected.
An alternative measure, namely putting the minor under supervision in the way provided by art. 123 of the CPC the Republic of Belarus, which was possible in this case, was not considered.
Darya Bondarkova had not been prosecuted previously. There were no negative references on her personality. In our opinion, the investigation had no reason to believe that, had she not been imprisoned, Darya Bondarkova would have hindered the investigation of the criminal case or its consideration in court, or would have tried to escape from the investigation or the court, or in any other way prevented establishing the truth in the criminal case. This does not comply with the principle of increased legal protection of the rights of minors.
According to rule 13 of the Beijing Rules, pretrial detention should be used only as a last resort.
3.3 Lack of a fair trial
Guided by law enforcement officers, the adult purchaser, through various actions except ones paralysing the will (persuasion, requests, threats), induced Darya Bondarkova to commit a crime with the purpose to make it possible to accuse her and subject to criminal prosecution.
The court’s verdict does not contain evidence that Darya Bondarkova would have committed the crime even if police officers had not provoked. It follows that the actions of Darya Bondarkova were in fact provoked by the police officers who actually incited Darya to purchase the psychotropic drug through the Internet and then to sell it. Such provocations by the police and the use in criminal proceedings of evidence obtained by means of provocation violate the principle of a fair trial.
According to rule 14.1 of the Beijing rules, where the case of a juvenile offender has not been diverted (under rule 11), she or he shall be dealt with by the competent authority (court, tribunal, board, council, etc.) according to the principles of a fair and just trial.
3.4 Verdict and choice of impact measures
The trial failed properly to assess the impact of the adult, which had been previously convicted, on the minor. In particular, no criminal proceedings were initiated against the adult person that involved minor Darya Bondarkova into criminal activities.
The evidence obtained in violation of the established procedure was not assessed properly.
The physical and psychological abuse toward Darya Bondarkova was not assessed properly.
The fact that Darya Bondarkova was provoked to the crime was not considered a mitigating circumstance.
According to Rule 16 of the Beijing Rules, in all cases except those involving minor offences, before the competent authority renders a final disposition prior to sentencing, the background and circumstances in which the juvenile is living or the conditions under which the offence has been committed shall be properly investigated so as to facilitate judicious adjudication of the case by the competent authority.
According to Rule 17.1.c. of the Beijing Rules, deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response.