The results of the observation of the court case on the

occasion of the attack on the Roma family in Kobrin on the grounds

of prejudice in the Brest Regional Court

1. About the monitoring

The monitoring was conducted by the Belarusian human rights organization Human Constanta1
from 16.10.2018 to 27.02.2019 in the Brest Regional Court and on 11.06.2019 when appealing a sen-
tence to an appeal court in the Supreme Court.

Human Constanta works on three main areas:

1. Protection of the rights of foreign citizens and stateless people in Belarus;
2. Protection and promotion of digital freedoms;

3. Anti-discrimination and human rights education.

In the framework of non-discrimination and protection of the rights of vulnerable groups we
monitor court hearings on hate crimes. The allocation of such crimes in a separate group should help to
protect vulnerable groups from criminal encroachment, and also comply with the international obliga-
tions of the state in the field of human rights protection.
This report is written on the basis of the results of monitoring and studying the sentence of the
court of first instance.

The monitoring task was:

- to find out how the crime motive is investigated;
- to check a prejudice motive in this case;
- to find out how a legal assessment for the motive is given;

- to what extent a court gives a clear legal signal to the society about the inadmissibility of
crimes motivated by bias.

In this particular case we have monitored the trial with a personal presence at 90% of court
hearings in the court of first instance (Brest Regional Court) and during consideration of the appeal to the
Supreme Court.

Defining hate crimes, we use the methodological guide for non-profit organizations in the OSCE
region “Preventing and responding to hate crimes”2. The preparation and conduct of judicial monitoring
took place on the basis of the Reference Guide for Practitioners “Trial Monitoring” by the OSCE
ODIHR. Observers have received professional training on fair trial standards, the organization of legal
proceedings, rules of conduct in courts as well as on the topic of hate crimes. When monitoring, they
adhered to the principles of observation: non-interference, professionalism, objectivity and impartiality,
personal security.

1 Establishment “Consultation center on current international practices and their legal implementation
“Human Constanta”.
2 OSCE ODIHR Office for Democratic Institutions and Human Rights of the Organization for Security and
Cooperation in Europe
 2. Description of the case and certain aspects of the trial

On February 11, 2018, in Kobrin, a young couple (male K. and pregnant woman Ch.) of Roma
origin were attacked by a young man and received multiple knife wounds. As the result of the incident
the man suffered severe injuries and the pregnant woman died. On February 22, 2018 on suspicion of
committing this crime a young man, A.B, was detained and taken into custody in Kobrin.

As a result of the investigation of this episode, A.B. was indicted with the following charges:
- Paragraph 6, 14 of the Article 139 (2) of the Criminal Code - “a murder committed with par-
ticular cruelty and based on national hostility or discord” in relation to the murder of Ch., where a par-
ticular cruelty was associated with a diagonal knife stab in the face, and the motive was due to Roma
nationality, who, in the opinion of the accused, parasitize in society;

- Article 14 (1), paragraph 1,14 Article 139 (2) of the Criminal Code - “attempted murder of
two persons on the grounds of national hostility or discord, which was not brought to an end due to
circumstances beyond the control of the person”3.

During the investigation, it was found out that earlier, in December 2017, A. B. provoked the
incident in a diesel train "Luninets-Brest". He tripped out Yu passing by him, then pushed her into the
train tambour and hit her brother, both of them of Roma origin. For this episode A.B. was charged un-
der part 1. Article 339 of the Criminal Code - “Intentional actions that grossly violate public order and
express obvious disrespect for society, accompanied by the use of violence or the threat of its use, or
the destruction or damage of someone else's property or differing in their content with exceptional cyn-
icism (hooliganism).”
After the detention the social networks of A. B. were investigated and he was charged with two
more charges:

- Article 343 (2) of the Criminal Code - “Production and distribution of pornographic materials
or items of pornographic nature, using the global computer network Internet” (publications of 2 video
clips from Vkontakte). In 2013 and 2014, A. B. posted videos which were deemed pornographic. In
2013, A.B. has not achieved the age of criminal prosecution, but since at the time of the attack the
video continued to be in the “My video” section it was considered as a criminal act;
- Article 130 of the Criminal Code - “Intentional actions aimed at inciting racial, national, reli-
gious hatred or discord on the basis of racial, national, religious affiliation” - for publishing two videos and
15 photographs on its page “Vkontakte” in 2014, 2017 and 2018.
The case was considered by the judicial panel on criminal cases of the Brest Regional Court
composed of the presiding Valentina Kunitskaya and people's assessors Volynchuk T.S. and Kopyrkina V.S.
with the participation of the public prosecutor Daria Zhuk. The trial lasted from 16.10.2018 to
27.02.2019. On 11th of June 2019 the appeals of the accused were considered by the Supreme Court.
After that the sentence entered into force: 23 years of imprisonment with the serving of a sentence in
a colony of a reinforced regime.
During the monitoring we were interested in a presence of signs of a hate crime, how the mo-
tive of the crime was proved, as well as the application of Article 130 of the Criminal Code (“Inciting
racial, national, religious or other social hostility or discord”). As part of this monitoring, we did not con-
sider the episode associated with the distribution of pornographic videos. For the other three episodes
we were also interested in the procedure for proving and recording the motive of actions of A. B.

3 The case of a knife attack on spouses in Kobrin was transferred to the prosecutor's office
 2.1. The presence of a criminal act.

The presence of a criminal act is the first sign of a hate crime.

The fact of the murder and attempted murder was proved at the court hearing, the attack on
Ch. and K. the defendant did not deny.

In the case of the incident on the Luninets-Brest train, the testimony of A. B. and the victims
differed slightly, but all in all the accused does not deny the fact of the incident (tripping, pushing, insults
and hits).

With regard to charges for posting on the social network, it is worth noting that racist propa-
ganda, hate speech, racist speeches by politicians or restricted access to services for religious reasons are
the examples of acts considered criminal only in some OSCE area states. Such incidents are not consid-
ered to be hate crimes in the context of monitoring by states. Since the Belarusian legislation identifies
these actions as grounds for criminal prosecution, we consider the evidence procedure and the motive
for the crime within the framework of this monitoring.
In the Criminal Code of the Republic of Belarus there are special qualifications for recording
hate crimes4. In this particular case the reference to the motive of the crime was recorded when quali-
fying the incident in Kobrin (Paragraph 14 Article 139 (2) of the Criminal Code as a homicide commit-
ted on the basis of hostility based on the nationality of the victims).

2.2. Proofing and accounting of the motive of prejudice.

It was important for us to evaluate how the motive for the crime was proved in court. The
ODIHR OSCE methodological manual proposes to determine the motive according to such criteria as the
impressions of the victim and witnesses, the behavior of the criminal, the characteristics of the victim and
criminal, the place and time of the incident, previous crimes or incidents based on hate.
During the court hearing the accused A.B. refused to give explanations, but sometimes he voiced
his position on certain points of the prosecution. In particular, he spoke about his attitude towards Roma:
“I want to clarify about the motive: in actual fact, before committing a crime I had a hostile
attitude towards Roma. However, not in connection with their belonging to a certain nationality, but in
connection with their unworthy lifestyle. I consider that it is unreasonable to divide people into good and
bad based on their nationality, religion. However, with regard to Roma, it is obvious that only a few of
them benefit not only themselves, but also society. The rest of them lead a parasitic way of life. These
particular qualities caused negative emotions towards the victims...”

According to such statements, it can be concluded that the motive of prejudice is obviously based
on nationality. It is also clear from the description of the events of 2017 about the train conflict that the
motive of the conflict was also caused by prejudices, not hooligan promptings: the defendant accompanied
his blows and brutal actions with insults using the words “gypsy, gypsies”.
At the same time, the court argued the hate motive with the fact that on the social network
Vkontakte the defendant was the participant of nationalist groups "Overheard Racology", "Third Reich" and

4 Thus, paragraph 9, Article 64 (1) as an aggravating circumstance, provides for “committing a crime based on racial,
national, religious hatred or enmity, political or ideological enmity, as well as based on hostility or enmity towards any social
groups ": Paragraph 14 Article 139 (1) “Murder” “on the grounds of racial, national, religious hostility or enmity, political or ide-
ological hostility, as well as on the basis of hostility or enmity towards any social group”; Paragraph 8 Article 147 (1) “Intentional
infliction of grievous bodily harm” “based on racial, national, religious hostility or enmity, political or ideological enmity, as well as
based on hostility or enmity towards any social group”; Article 443 (2) "Violation of the statutory rules of relations between
persons subject to the status of a military man, in the absence of relations of subordination" hostility or discord in relation to a
social group, or in relation to several persons, or a group of persons, or entailing the infliction of less serious bodily injury to the
victim”.
others. This conclusion was also made on the basis of the accused’s personal correspondence, testimony,
body tattoos, a third Reich flag screen saver, browsing history, images and videos found on A.B.’s personal
computer. In addition, for motive proofing after the detention of A.B. “auditory control” was installed in
the isolation chamber - for listening to the cellmates' conversation for more information collection. Its
results were announced at the court session in a very poor quality. From the record it can be concluded
that A. B. talks about the attack on the Roma family, does not repent of his deed and also speaks of his
readiness to continue such actions after the release. The court refers to this record arguing the prosecution
and the motive of the crime, although the accused contested this record as a means of proof. A note
from A.B., addressed to his girlfriend and confiscated by the prison staff, was also cited as an evidence.

Despite the reference to the motive of crimes, when qualifying criminal acts the court did not
specify Paragraph 9 Article 64 (1) of the Criminal Code (“committing a crime based on racial, national,
religious hatred or discord, political or ideological hatred, as well as on grounds of hostility or discord
regarding any social group”) as an aggravating circumstance.

2.3. Article 130 of the Criminal Code

A.B. was convicted based on the fact that in 2014, 2017 and 2018 two videos and 15 photographic
images were posed for public access on his personal page on the social network “Vkontakte”. According
to the court reasoning, this constitutes “deliberate actions aimed at inciting racial, national, religious
hatred or discord on the basis of racial, national, religious affiliation”.

Initially A.B. asserted that other people could have access to his computer and page in the student
dormitory where he lived. However, later at the court hearing he commented on the conviction as
follows: “Indeed, in all the cases mentioned by the prosecutor I added photographic and video materials
that contained elements of intolerance, hatred towards people belonging to different nationalities and
religions to my page. I was interested in this topic and I studied it. I was equally interested in other topics,
pictures and videos. I did not commit any deliberate actions to involve other people in the study of the
inter-ethnic question and to shape certain opinion among them. However, if such my actions are actually
punishable in terms of law, then I agree with the prosecution.” Essentially A.B. denies the intention of
actions to incite hostility or discord.
While gathering proof under this article, a computer-technical examination of the computer was
carried out in pre-trial proceedings as well as an initial psychological-linguistic examination with a survey of
experts was conducted during the court hearing. At the request of the prosecutor, a repeated psycho-
logical and linguistic examination was conducted, which recognized the presence of negative statements
and calls for violent actions against a number of social groups in the photo and video materials.
The judgment states that “by his actions the defendant realized his intent aimed at inciting racial,
national, religious hostility and discord on the basis of racial, national and religious affiliation”. The court
substantiates the motive for the crime by the fact that the images of the Nazi swastika, recordings of the
Molotov cocktail, the presence of tattoos, his presence in thematic groups in social networks were found
as well as statements from witnesses and A.B. himself. “The fact that A.B. himself did not offer to watch
his page with video recordings and photographs is insignificant since the actual placement of the specified
photo and video images in the public domain indicated that he had deliberate actions to post the dissem-
inated information for free public access, and that there was an intent to familiarize the uncertain circle
of people with his worldview on this issue, and of course about his intention to incite racial, national,
religious enmity and discord with via the Internet on the basis of race, nationality, religious affiliation for
persons of other nationality or race, religion, respectively, to the incitement of national enmity and hatred,
taking into account the subsequent behavior towards Roma people ". At the same time, the court
concluded that the absence of comments on these publications by A.B. does not exclude responsibility.
Four photos and one video were excluded from charges as the result of the expertise.
Thus, the court concluded that the intent was based on the objective side of the actions and the
additional circumstances of the case. Based on this article, the court issued a sentence of three years out
of five maximum for publishing one video and 11 photographs without the author’s accompanying text.
 When proving guilt the court failed to take into account a number of factors described in the
Camden Principles on Freedom of Expression and Equality (2009) and the Rabat Plan of Action to prohibit
propaganda of national, racial or religious hatred constituting incitement to discrimination, hostility or
violence were not taken into account. (2012). According to these documents, while determining the
threshold of severity of a statement, 6 factors should be taken into account:

1) The context of the statement. It is important to assess whether there is a conflict in

society, whether there is institutional discrimination against social groups affected by the
statement, what media and political landscape exists in the country;
2) Who the author is, how much he/she influences the audience and enjoys authority, the
degree of vulnerability and fear among communities;
3) Intention — besides intentions to carry out hate propaganda and target a group, it is
important to know the consequences of your actions, that is, whether words can lead to
violent consequences;
4) Content, form and style of speech, direct and indirect calls for discrimination, reasoning,
the way the audience understands the statement;
5) The degree and significance, the publicity of the statement, by what means the statement
was carried out, its intensity and scale;
6) Inflicted harm. If there were the consequences, then this can be an aggravating circum-
stance.
Considering what was said in the court hearing and the court’s arguments, including the conclusion
of the commission expertise, the assessment of the number of views of this video and images is not
obvious, the context is not taken into account, the author’s status and credibility for the society is not
assessed, the absence of author’s comments and sequence of delivered information is ignored, the examples
of the reaction of the audience are missing.
In this regard, it is difficult to assess the real threshold of the severity of these publications. Public
status in itself and open access does not guarantee the level of public danger. Also, there was no attempt
to balance the right to freedom of expression and the permissible limitations of this right.
3. Conclusions

The following has been revealed as a result of monitoring:

1) Belarusian criminal legislation provides for the possibility to qualify hate crimes, and in the
main episode of the crime (murder and attempted murder), there is a special qualification
taking into account the motive of prejudice;
2) special qualification of hate crimes does not occur in its entirety, the reference to para-
graph 9, part 1 of article 64 of the Criminal Code is not given as an aggravating circum-
stance on the train incident;
3) the motive of the prejudice in one of the episodes was replaced with hooliganism, which
negatively affects the legal protection of the vulnerable group on the ground of nationality
(Roma);
4) proving the motive is one-sided without taking into account the context of the statement,
the publicity of the author and the actual results of the actions. At the same time,
reference is made to the results of “auditory control” in the temporary detention facility
of the Kobrynsky District Department of Internal Affairs after the detention of A. B., which
shall be regarded as an inadmissible evidence;
5) when convicting for deliberate incitement to hatred, the court did not take into account
international standards of freedom of expression and did not apply the Kemden Principles
on Freedom of Expression and Equality (2009) and the Rabat Plan of Action to prohibit
propaganda of national, racial or religious hatred, inciting discrimination, hostility or violence
(2012).
 4. Recommendations

To the Ministry of Foreign Affairs, the Ministry of Internal Affairs, the Investigation Committee, the
Supreme Court of the Republic of Belarus:
- conduct regular training for MIA officers, investigators, prosecutors and judges with the participation
of OSCE ODIHR experts on the topic of combating hate crimes5;
- keep separate statistics on hate crimes, inform the public and the OSCE / ODIHR annually;
- develop a comprehensive program for the prevention of hate crimes with the participation of
non-governmental organizations;

To the investigative bodies, expert commissions and courts:

- during investigation, expertise and trial, pay attention to the motive of the crime, be guided by
the Camden Principles on Freedom of Expression and Equality and the Rabat Plan of Action to
prohibit the propaganda of national, racial or religious hatred that constitutes incitement to dis-
crimination, hostility or violence, including taking into account context of the statement, author,
intention, content of the statement, degree and significance, as well as the inflicted harm
- to assess the boundaries of the right to freedom of expression and the ratio of permissible
restrictions of this right. Restrict this right only in extreme cases;

To the Supreme Court of the Republic of Belarus:

- Examine the practice of applying Article 130 of the Criminal Code of the Republic of Belarus and
issue a resolution of the Plenum with explanations, including using references to international
standards, and also introduce criteria for distinguishing such criminal cases from administrative
liability under Articles 17.10 and 17.11 of the Administrative Code;
- To study the practice of using paragraph 9, part 1 of article 64 of the Criminal Code and make
a decision of the Plenum with explanations on this provision;

To the mass media:

- avoid using hate speech in their publications, to promote the use of correct vocabulary;
- pay more attention and highlight the danger of hate crimes.

5 Components of the ODIHR mandate: Assistance to participating States in planning and drafting legislation
aimed at effectively combating hate crimes; Capacity building of the justice systems of the participating States, as well
as the law enforcement, investigative and court officials working in them; Raising the awareness of state officials, civil
society and international organizations on hate crimes; Support for civil society measures to monitor hate crimes and
report on their results. https://www.osce.org/ru/odihr/182666