ANNEXE 10
Documents cités à éa p. 611 du livre
OSCE
Organization for Security and Co-operation in Europe
Advisory and Monitoring Group Belarus
Rapport spot No. 29/2001
Violations de la loi dans le procès du Professor Bandazhevski
12 July 2001
Référence: Spot Report No 27/2001 daté du 18 Juin 2001
Ayant pris connaissance des analyses des experts juridiques ayant assisté au procès du Professeur
Bandazhevski pour l'OSCE AMG au Belarus, le Groupe a noté les violations suivantes du Code Criminel du Bélarus :
1. art. 19 - l'examen des preuves n'a pas respecté la procédure prévue par la loi : en effet des personnes qui étaient présents en tant qu'accusés devant la cour, ont également été entendues comme témoins pendant la procédure préliminaire et pendant le procès.
2. art. 20-4 - l'égalité des citoyes devant la loin 'a pas été respectée
3. art. 44, 45 - le droit de la défense a été violé, en effet le Prof. Bandazhevski a été privé du droit de rencontrer son avocat pendant toute sa détention.
4. art. 88 - les preuves ont été recueillies contrairement à la loi, en effet l'instruction au début de la procédure a été menée par des personnes différentes du groupe d'instruction. En conséquence, leur témoignage ne peut être accepté. De plus, l'un des témoins, Madame Shamychek elle-même a tépoigné publiquement du fait que des méthodes non conformes à la loi avaient été utilisées durant l'instruction.
5. art. 105 - les preuves recueillies n'étaient pas crédibles, elles étaient principalement basées sur les déclarations non prouvées de Madame Shamychek, qu'aucune autre preuve n'a confirmées par ailleurs. Aucune autre preuve, en particulier physique, n'a été présentée à la cour pour prouver la culpabilité du Prof. Bandazhevski
6. art. 350 - le verdict a été prononcé sans respecter les provisions de la loi
7. art. 356 - Il n'y a eu aucune confirmation de l'accusation, voir point 5 ci-dessus ;
8. art. 360 - la date, le lieu et les circonstances du crime n'ont pas été mentionnés,
Comme le note l'analyse d'un des experts : "le verdict de culpabilité, basé seulement sur le témoignage de l'un des accusés de l'affaire, sans aucune preuve supplémentaire, pose des questions évidentes .Tout ceci témoigne d'un haut degré "d'expéditivité" plutôt que du respect de la loi".
Conformément à son mandat, l'OSCE AMG au Bélarus continuera à suivre et à rapporter sur le respect des droits jumains et des normes légales dans la République du Bélarus
amnesty international
PUBLIC AI Index: EUR 49/008/2001
Date: 22 August 2001
BELARUS
PROFESSOR YURY BANDAZHEVSKY -
PRISONER OF CONSCIENCE
On 18 June 2001 Professor Yury Bandazhevsky was sentenced to eight years’ imprisonment. In
addition, the Belarusian authorities confiscated his property and prohibited him from assuming
any managerial and political functions for the first five years after his release. Amnesty
International believes that his conviction is related to his scientific research into the Chernobyl
nuclear reactor catastrophe of 1986 and his open criticism of the state authorities. The
organization considers him to be a prisoner of conscience and is calling for his immediate and
unconditional release from his current imprisonment in Minsk.
Background
After a trial which took place over the course of four months in the city of Gomel on the
Belarusian-Ukrainian border, the Military Board of the Belarusian Supreme Court found 43-yearold
Yury Bandazhevsky guilty of allegedly taking bribes from students seeking admission to the
Gomel Medical Institute, of which he is the former rector. Yury Bandazhevsky was convicted of
allegedly having accepted bribes, amounting to the equivalent of approximately US$26, 000 in
the period 1996 to 1998. Both before, during and after the trial Yury Bandazhevsky vociferously
denied the charges against him, and expressed fear that he had been targeted by the state
authorities on account of his scientific work.
Over the past four years Amnesty International has adopted a number of individuals as
prisoners of conscience, who - like Yury Bandazhevsky - had spoken out against the Belarusian
authorities and were subsequently convicted of alleged economic abuses and sentenced to
extended periods of imprisonment. International and domestic human rights organizations which
monitored these trials cast considerable doubt about their fairness (see Belarus: Dissent and
Impunity, AI Index: EUR 49/14/00 and In the Spotlight of the State: Human Rights Defenders in
Belarus, AI Index: EUR 49/005/2001).
Amnesty International expressed concern about the treatment of Yury Bandazhevsky,
almost from the outset of his arrest by a group of police officers in the middle of the night in
Gomel on 13 July 1999. At that time he was informed that the legal basis for his arrest was the
presidential decree "On Urgent Measures for the Combat of Terrorism and Other Especially
INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM
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Dangerous Violent Crimes", a measure usually only used for the arrest of suspects engaged in
violent crimes or "terrorism". Furthermore, in violation of their obligations under the
International Convention on Civil and Political Rights1, which require the Belarusian authorities
to promptly notify an arrested person of the charges against them, the Belarusian authorities did
not formally charge Yury Bandazhevsky until 5 August 1999, nearly four weeks after his arrest.
He was eventually informed that he was charged under Article 169 (3) of the Belarusian Criminal
Code for allegedly taking bribes from students seeking admission to his research institute.2
The circumstances surrounding Yury Bandazhevsky’s arrest were also a cause of further
concern. He was reportedly not given access to a lawyer and had only very limited opportunities
to meet his wife, Galina Bandazhevskaya. The requirement that detainees should be given
immediate access to a lawyer is a principle supported by international human rights standards,
such as Principles 7 and 8 of the United Nations (UN) Basic Principles on the Role of Lawyers3
and Principle 17 of the UN Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment4, and is designed to deter the ill-treatment of detainees and arrested
persons by law enforcement officials and allow them to prepare a defence. Amnesty International
expressed concern that Yury Bandazhevsky’s original lawyer was not given access to his client,
as is required by these standards. After the lawyer obtained permission to visit his client in
Gomel, Yury Bandazhevsky was transferred to a prison some 140 km away in Mogilov without
the lawyer’s knowledge. The lawyer then reportedly complained that he was denied access to his
client at the prison in Mogilov because his client had been placed in a temporary isolation cell.
Yury Bandazhevsky was later transferred to a maximum security prison in the Belarusian capital,
Minsk, where he remained until his conditional release on 27 December 1999. The Advisory and
Monitoring Group of the Organization for Security and Co-operation in Europe (OSCE) in
Belarus, which was alerted to the arrest of Yury Bandazhevsky and later observed his trial (see
below), also stated that, due to Yury Bandazhevsky’s denial of access to a lawyer during his pretrial
detention, his right to defence was violated.
Motivations Behind Yury Bandazhevsky’s Prosecution
A great deal of Yury Bandazhevsky’s scientific work examined the effects of the radioactive fallout
of the Chernobyl nuclear reactor disaster of 1986 on people living in the region of Gomel. 5 As
the founder and rector of the Gomel Medical Institute, he had reportedly designed numerous
large-scale scientific research projects into the causes of the diseases afflicting the population
1 Article 9 (2) of the ICCPR states: "Anyone who is arrested shall be informed, at the time of arrest, of the reason of
his arrest and shall be promptly informed of any charges against him".
2 Yury Bandazhevsky was eventually convicted under Article 430 (2) of the Belarusian Criminal Code for accepting
bribes in large denominations with others with prior agreement.
3 Principles 7 and 8 respectively state: "Governments shall further ensure that all persons arrested or detained, with or
without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from
the time of arrest or detention" and "All arrested, detained or imprisoned persons shall be provided with adequate
opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay,
interception or censorship and in full confidentiality".
4 Principle 17 (1) states: "A detained person shall be entitled to have the assistance of a legal counsel. He shall be
informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities
for exercising it".
5 The main city in the region, Gomel, has a population of approximately 500,000 people and is situated around 120 km
from Chernobyl.
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residing in the contaminated areas, particularly the impact of radioactive emissions on children. 6
Yury Bandazhevsky had often been outspoken in his criticism of the reaction of Belarusian
authorities to the disastrous impact of the Chernobyl catastrophe on the population’s health,
stressing the need to find innovative solutions to the problem. Prior to his arrest, he had written a
report critical of the research being conducted into the Chernobyl incident by the Scientific and
Clinical Research Institute for Radiation Medicine in Minsk. He had criticized the research
methodology of this institute, which is part of the Belarusian Ministry of Health, and that 17
billion Belarusian roubles had been spent on research in 1998 which he considered had not
produced any important scientific findings. He proposed in his report: "[a]n immediate revision of
scientific programs, related to the alleviation of the consequences of the Chernobyl accident, in
such directions able to produce actual results with economic value". At the time of his arrest
police officers reportedly searched his home and confiscated Yury Bandazhevsky’s computer,
books and files relating to his scientific work.
Yury Bandazhevsky has not been the only scientist working on the effects of the
Chernobyl disaster to have fallen foul of the Belarusian authorities. In 2000 Amnesty
International learned of the harassment of 68-year-old Professor Vasily Nesterenko, the head of
the independent Institute of Radiation Safety (Belrad), based in Minsk. Like Yury Bandazhevsky,
Vasily Nesterenko is a well respected academic, who has reportedly authored over 300 scientific
publications. He was reportedly one of the first scientists to be present at the site of the Chernobyl
reactor after it exploded on 26 April 1986. Through its research work Belrad has sought to
develop ways of assisting people living in contaminated areas, and reduce the related health risks.
Vasily Nesterenko has repeatedly criticized the Belarusian Ministry of Health for the inadequate
measures it has allegedly taken to counteract the negative effects of radioactive contamination on
the population’s health. He has also stated that the levels of radiation among the Belarusian
population in the contaminated areas are significantly higher than those levels to which the
Ministry of Health admit. Amnesty International learned that at the end of June 2000 the
Belarusian Ministry of Health attempted to prevent Vasily Nesterenko from undertaking further
research into the levels of radiation in people, arguing that Belrad did not have the required
licences to carry out such work. Vasily Nesterenko has stated that - like in the case of Yury
Bandazhevsky - he believes the Belarusian authorities wish to hide the truth about the full extent
to which radiation has harmed the health of the population. 7
Fair Trial Concerns
To international and domestic trial observers the evidence supporting Yury Bandazhevsky’s
conviction not only appeared extremely weak, but they also considered that his right to a fair trial
had been repeatedly violated. Shortly after the conviction of Yury Bandazhevsky, the well-known
human rights lawyer and Vice-President of the Belarusian Helsinki Committee, Gary Pogonyailo,
6 In the course of his career Yury Bandazhevsky is reported to have published around 200 scientific papers and articles and supervised numerous undergraduate and postgraduate research papers.
7 It is worth noting, that after being released from six months’ pre-trial detention in December 1999 and despite
concerns about his health, Yury Bandazhevsky resumed his scientific work at Belrad before returning to Gomel to
prepare for his trial, which began in February 2001. In this period he completed a number of scientific works,
including a book in June 2000, which addressed the impact of the radioisotope, cesium 137, on human beings in the
contaminated areas of Belarus, and the measures which can be taken to ameliorate its impact.
INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM
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who had closely followed the trial, stated that many violations of the right to a fair trial were
committed in the course of the trial, including Yury Bandazhevsky’s right to defence. The
Advisory and Monitoring Group of the OSCE in Belarus, which had observed the trial, noted
eight different infringements of the Belarusian Criminal Code during the pre-trial investigation
and trial, including: (1) the violation of Yury Bandazhevsky’s right to defence, after being denied
access to counsel during the entirety of his six months in pre-trial detention; (2) evidence was
taken in a manner contrary to the law; (3) evidence was not adequately reliable in that it was
based on the unsubstantiated statements of one person, unconfirmed by any other evidence and
no physical evidence was provided to substantiate the accused’s guilt (see below); (4) there was
no confirmation of the evidence; and (5) the time, place and conditions of the alleged crime were
not named.
During the trial, the prosecution failed to produce any material evidence supporting the
claim that Yury Bandazhevsky had accepted an amount equivalent to nearly US$26, 000, even
though his home, garage and workplace were repeatedly searched. Like most other academics in
Belarus whose salary is derived from a diminishing state budget, Yury Bandazhevsky reportedly
led a modest lifestyle and he had no material possessions to suggest otherwise. In addition, the
prosecution failed to produce testimony from any of the individuals alleged to have paid bribes.
Instead, his conviction was based on testimony of a single witness, a former colleague Nina
Shamychek, who herself admitted accepting bribes from potential students and their families. She
testified that in doing so she had acted on Yury Bandazhevsky’s behalf. During the trial witnesses
testified that they had paid bribes to Nina Shamychek, but not Yury Bandazhevsky.
The vice-rector of Gomel Medical Institute, Vladimir Ravkov, who was a co-defendant in
the trial, had initially stated during police questioning in June 1999 that Yury Bandazhevsky had
been involved in taking payments from students. However, he retracted his statement shortly
afterwards, during further police questioning and during the trial. According to the news agency
BelaPAN, in early August 2000 Vladimir Ravkov sent an open letter to President Alyaksandr
Lukashenka stating that he had made the initial statements against Yury Bandazhevsky as a result
of duress, after investigating officials had "interrogated him 14 - 16 hours a day, denied him food
and sleep and threatened to harm his wife and daughter".8 He also alleged that he was exposed to
some form of psychotropic substance, which caused feelings of severe disorientation. Despite
international standards which require the exclusion of evidence extracted as a result of illtreatment
or duress, such as Article 15 of the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Convention against Torture) or Principle 21 of
the UN Body of Principles for the Protection of all Persons Under Any Form of Detention or
Imprisonment, the court ignored the retraction and included his original statement.
With regard to the basis of the conviction a legal expert of the Advisory and Monitoring
Group of the OSCE in Belarus stated: "... the verdict of guilt based only on the evidence of one of
the accused in the case, without any additional proof, causes well-founded concern ... This all
testifies to the higher standing of ‘expediency’ rather than the rule of law". In recent years
8 BelaPAN 4 August 2000.
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concern has been expressed, both internationally and domestically, about the independence of the
judiciary in Belarus. Amnesty International has learned of a number of instances when the lack of
independence of the judiciary from the executive branch of state has laid it open to considerable
criticism, calling into question the overall fairness of the judicial system.
In the course of the past year concern has been expressed by two influential international
mechanisms, the Special Rapporteur on the independence of judges and lawyers and the
Committee against Torture. In February 2001, Dato’ Param Cumaraswamy, the UN Special
Rapporteur on the independence of judges and lawyers, characterized Belarus’ political context in
the following terms: "... the pervasive manner in which executive power has been accumulated
and concentrated in the President has turned the system of government from parliamentary
democracy to one of authoritarian rule. As a result, the administration of justice, together with all
its institutions, namely the judiciary, the prosecutorial service and the legal profession, are
undermined and not perceived as separate and independent. The rule of law is therefore
thwarted".9 During its examination of Belarus’ implementation of its obligations under the
Convention against Torture in November 2000, the expert body which monitors states parties’
implementation of that convention, the Committee against Torture, also expressed concern about
the lack of independence of the judiciary. It recommended that "[m]easures be taken, including
the review of the Constitution, laws and decrees, to establish and ensure the independence of the
judiciary ... in conformity with international standards".10 Under such circumstances, the
likelihood that individuals who speak out against the interests of the Belarusian authorities will
receive a fair trial in Belarus is greatly diminished.
The Conditions of Yury Bandazhevsky’s Imprisonment
During Yury Bandazhevsky’s six months in pre-trial detention in 1999 his health deteriorated
drastically, resulting in his hospitalization. He suffered from stomach ulcers, a condition which
was reportedly exacerbated by the conditions of his imprisonment, and depression as a result of
his predicament. Amnesty International fears that his health may once again deteriorate during his
current term of imprisonment at the UZ 15/1 penal colony in Minsk. His wife, Galina
Bandazhevskaya, who visited him in mid-July 2001 stated that he was being held in a dormitory-
type prison cell with around 150 other prisoners, sleeping in three-tiered bunk beds. She has
expressed concern that the adverse conditions of detention, particularly his poor diet, the lack of
stimuli and possibilities for Yury Bandazhevsky to continue his scientific work, will adversely
affect her husband’s longer-term health. Galina Bandazhevskaya is only allowed to see her
husband three times a year, when she is permitted to bring him a 30 kg food parcel.
Amnesty International considers Yury Bandazhevsky to be a prisoner of conscience,
imprisoned for exercising his right to freedom of expression, and is calling for his immediate and
unconditional release.
9 UN Doc. E/CN.4/2001/65/Add.1, 8 February 2001 - page 2.
10 UN Doc. CAT/C/XXV/Concl.2/Rev.1, 20 November 2000 - paragraph 7d.
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