Svetlana Dvorianinova is free now

23.08.2007

SOS! ... SOS! ... SOS!

The judiciary of the regional court of the city of Vitebsk Mikhaseva V.A. prevents from the visit of Dvoryaninova S.I. with her daughter in no accordance with the law. Meanwhile she “asks” to withdraw the allegation of the judiciary’s disregard of the Constitution of the Republic Belarus.

THE INDEPENDENT PROSECUTOR OF RUSSIA,

de facto, THE INDEPENDENT PROSECUTOR OF THE FEDERAL STATE

“EURASIA-2” (“RUS-BELARUS”),

de facto – for the people of Belarus and Russia.

In behalf of the double-adjudged, upon the pronouncement
of the designedly wrongful sentence – Dvoryaninova Svetlana Ivanovna
(being in the pre-trial prison of the city of Vitebsk of the Republic Belarus)

CASSATION PROTEST
In the order of  the point 2 of the Article 370 of the procedural criminal code of the Republic Belarus (PCrC of the Republic of Belarus) for the whole public prosecutor's system of the Republic Belarus, so far as: “ The Prosecutor is obliged to appeal in the cassation order against every sentence, imposed with the breach of the criminal or procedural criminal law.”

In accordance with the determination of the Presidium of Vitebsk regional court the designedly wrongful sentence of the court of the Oktyabrsky area of the city of Vitebsk from the 10th of July the year 2006  was recalled (WITH THE PROSECUTORS’ OMISSION) in relation to Dvoryaninova Svetlana Ivanovna upon the episodes of the accusation in supposedly committing of crimes, stipulated by the p. 4 of the Art. 210, p.3 of the Art. 210, p.4 of the Art. 209, p.1 of the Art. 14, p. 4 of the Art 209, p. 1 of the Art. 427, p.1 of the Art. 209 of the Criminal Code (CC) of Belarus, finally there was given a sentence in the kind of the eight-year imprisonment [and yet the court “considered it necessary to impose” on Dvoryaninova in total: twenty years and six months of imprisonment for nine ACTIONS and account payable from two till ten thousand dollars USA] upon the civil and economic legal RELATIONS. Under the presence of the mitigating circumstances: “… her level of health, partial reparation of damages” with the service of term in the general regime colony with the deprivation of property and the revocation of right to hold post relating to the administrative-economic responsibilities for a period of five years [for a period of eight years as the court considered].

Meanwhile INCLUDING the Supreme Court of the Republic of Belarus – concealed in their decisions – both in the illegal sentence and in the repeal of the wrongful sentence of the substantial defender’s argument, of the expertise on the criminal law – before the Supreme Court of the Republic Belarus, in the social resonance of Mass-media (including the Internet: yandex-prosecutor), that:

From the sentences [both the recalled one (the judiciary Morozova M.V.) and the appealed (the judiciary Mikhaseva V.A.)] it is obvious that Dvoryaninova S.I. has been brought to criminal liability and convicted twice for –
improper fulfillment of the contractual commitments.

MEANWHILE:

As a result of the retrial / "NEW" legal investigation of the criminal case of Dvoryaninova S.I. the Dvoryaninova’s acts under the civil legal and economic relations – again with the breach of the requirements of the Art. 11 CCr of the Republic of Belarus – have been wrongfully estimated, with distortion of the actual circumstances of the case - under various parts of the Art. 210, 209, 427 of the CCr of Belarus.

On the 13thof August the year 2007 under the new/ repeated sentence of the court of the Oktyabrsky area  of Vitebsk m. Dvorjaninova S.I. was returned guilty in the commission of the crimes stipulated by the p. 4 of the Art. 210, p. 3 of the Art. 210, p.4 of Art the 209, p.1 of the Art. 14, p.4 of the Art. 209, p.1.of the Art. 427, p.1 of the Art. 209 ч.3 of the CCr of Belarus and with application of the p.1.of the Art. .71 and p.2 of the Art. 72, finally was given a sentence in kind of imprisonment for the period of 6 years and 6 months [but the court “considered it necessary to impose in total twenty one years and six months, but already for eighteen ACTIONS and account payable from two till ten thousand dollars USA], also under civil and economic legal RELATIONS of Dvoryaninova, including  the previous ten ACTIONS of the recalled sentence and fifteen ACTIONS, added to already unified criminal case. (but yet for the absence of “mitigating circumstances and aggravating circumstances”)] with the service of term in the general regime colony with the deprivation of property and the revocation of right to hold post relating to the administrative-economic responsibilities for a period of five years [for a period of eight years as the court considered].

Meanwhile the “new” court (the judiciary Mikhaseva V.A.) in the breach of the p. 1 of the Art. 415 of the CCr of the Republic of Belarus HAS CONCEALED in the sentence about the  instructions  of the court having held the criminal case of Dvoryaninova in the order of the control and having recalled the wrongful sentence. Therefore there are reasons to assert that the “new” conviction has been passed designedly wrongfully, that is confirmed by the following arguments:

1. The sentence of the court is illegal and unreasonable as the conclusions of the court mismatch the actual circumstances of the case. The court has regarded the acts of Dvoryaninova S.I. as the  penal act, under presence of only CIVIL LEGAL AND ECONOMIC LEGAL RELATIONS and in the absence thereof the crimes Дворяниновой of S.I.

Whereas according to the item 2 of the REGULATION of the PLENUM of the SUPREME COURT of THE REPUBLIC BELARUS from the 21st of the December the year 2001 № 15 “ON THE APPLICATION BY COURTS OF THE CRIMINAL LEGISLATION ON AFFAIRS OF LARCENY” the acquisition of one's property or the right on it admitted as  stealage only in case it is committed designedly, unlawfully, free and interestedly with one of the ways listed in the law.

The property or the right on is considered to be somebody else’s if for the moment of the acquisition the guilty was not its proprietor or the owner under the lawful bases.
On the objective part, the plunder is shown in the illegal free acquisition of property, attended by its withdrawal from somebody else's possession. Thus the acquisition consists in the circulation of somebody else's property to one's own use or the use of other persons. The illegality of the acquisition is defined by it that the person who is taking hold the property, has neither valid nor the expected right, and when plundering the stealage is also carried out by one of nine ways listed in the item 1 to chapter 24 of CCr of Belarus.
From the subjective part any plunder is characterized by the direct intention and with the mercenary purpose: the person is conscious that as a result of the fulfillment of the certain acts he becomes the owner of somebody else's property, and wishes it. The mercenary purpose is admitted under the presence of the following circumstances: the person aspires to take material benefit; this purpose is satisfied due to the withdrawn property, the person aspires to turn the stolen property to own advantage or in favour of the close persons, or other persons in which destiny it is interested. The mercenary purpose is an obligatory attribute of the subjective part of any plunder. If the property is withdrawn for purpose of not enrichments, the responsibility for the plunder is not imposed.
2. At this conformity with p.1 of the regulation of the Plenum of the Supreme court of the Republic of Belarus “ON PRACTICE OF THE APPLICATION OF THE LAWS PROVIDING THE RIGHT TO BE DEFENDED IN CRIMINAL TRIAL” it is necessary to the courts to: observe strictly the procedural rights of the accused (the defendant); comprehensively, investigate fully and objectively the case; to reveal both convicting, and circumstances justifying the accused (defendant); check carefully the versions available to the case.

In the infringement of the specified regulation of the Plenum of the Supreme court the petition from the part of the defender on the reading of the conclusion of the expert (and there are two available, by each criminal case) at the session, received by the inquiry of the defender and being available in the case, has been unreasonably rejected by the court.
Meanwhile the judiciary designedly ignored the requirement of art. 3 of article 103 of the Code of Criminal Procedure of the Republic of Belarus from 1999 (hereinafter as C.Cr.P.), which enables the defender by the defendant’s consent to request the expert evidence for explanation of the questions arising in connection with the defense exercise and requiring special knowledge, and subject to the directions of paragraph 2 clause 2 of determination of the Supreme Court Plenum from the 26th of September, 2002 №6 “Some questions of criminal procedure law enforcement in the court of primary jurisdiction” under which: “the defender can … request by the defendant’s consent the expert evidence for explanation of the questions arising in connection with the defense and requiring special knowledge”, and the information collected by him is subject to subjoining to the criminal case ad sectam of him.

The judiciary Mikhaseva V.A. – the court dismissed the defender motion by alleging UNFOUNDEDLY that the expert opinion did not refer to the case, in fact speaking of conviction of invalidation and inadmissibility of the evidence which had not been learned at all. Meanwhile the court is not competent to refuse the defender in examination of this or that document, existing in the criminal case materials.
Under article 286 of C.Cr.P. of the Republic of Belarus the court should hear evidence of the accused, the injured, witnesses, proclaim and examine the experts’ opinion, survey real evidence, proclaim the records of evidence and other documents, carry out other judicial actions concerning the evidence examining, except the cases provided by the present Code.

The abovementioned information indicates that concerning the present case the judicial enquiry was carried out unilaterally and noncompletely, the court findings are not confirmed by evidence, examined during judicial sitting, the court did not take into account the circumstances which could have influenced its findings, the court evaluated the evidence in the wrong way, and ABOVE ALL, the court did not evaluate the presence of the disfigurement of the factual situation of the case by investigation, then the judiciary (Mikhaseva V.A.) artificially created evidence, which are accusatory for the innocent Dvoryaninova only under civil and economic relations in the criminal case of Dvoryaninova.

3. Meanwhile I pay attention of the cassation instance court to the fact that according to the p.13 of the REGULATION OF THE SUPREME COURT PLENUM OF THE REPUBLIC OF BELARUS from the 28th of September, 2001 №9 “COURT SENTENCE” the findings of the qualification of crime under each article of the crime law, its paragraph or part, should be motivated in the narrative declaration of the sentence. And according to p.2 art.352 C.Cr.P. of the Republic of Belarus in case a person is accused of committing several crimes, the court adjudicates questions specified in paragraphs 1-7 of part 1 of this article, in respect of each crime separately, including the question whether the act is a crime, and in respect of what article of the Criminal Code of the Republic of Belarus provides the liability for its doing.

In defiance of article 352 of C.Cr.P of the Republic of Belarus in the sentence of Oktyabrsky region court of Vitebsk from the 13th of August, 2007 the qualification in respect of each crime separately was not indicated, it did not come from the sentence: in what manner the actions of Dvoryaninova S.I. were qualified in respect of each episode of the indictment and why the court disposed of the defense arguments, that of the experts of the HIGHEST level – concerning the presence of ONLY CIVIL AND ECONOMIC RELATIONS in Dvoryaninova case.

Thereby the specified indictment is awarded with significant defiance of C.Cr.P. of the Republic of Belarus, and thus there is an indisputable cause for its setting aside.

4. Moreover, the court design (of Mikhaseva V.A.) for the purpose of awarding an unjust sentence to Dvoryaninova is evident from the court’s motion under the hearing of witnesses: Kuchinsky Vitaly Evgenyevich, Shalomitskaya Vera Aleksandrovna, workers of ZHAU-14. These citizens were not heard as the witnesses in the course of the investigation. Neither defender nor the public prosecutor made a motion of the hearing of the specified witnesses. Under art.286 of C.Cr.P. of the Republic of Belarus evidence, produced by prosecution and defense, is examined in the court in the course of legal crime investigation.

Art.325 of C.Cr.P. of the Republic of Belarus does not create the possibility of producing evidence by court. Under p.2 art.24 of C.Cr.P. of the Republic of Belarus the functions of prosecution, defense and justice are separated from each other and can not be assigned to the same body or the same official.

Thus, the call of the witnesses and their hearing in the judicial sitting was performed with defiance of art 286, art.328, art.24 of C.Cr.P. of the Republic of Belarus. I.e. the evidence of the specified witnesses is the evidence, obtained with the defiance of C.Cr.P. of the Republic of Belarus; consequently they have no legal power and can not be the reason for the determination of the sentence.

I pay special attention of the trial jury to the fact that the witnesses’ evidence was read out under the own court initiative (the judiciary Mikhaseva V.A.), without hearing the opinion of the sides in the defiance of art.292, 295 of C.Cr.P. of the Republic of Belarus.

The written materials of the crime case were read out without motions from the prosecution side, in contravention of art.325 of C.Cr.P. of the Republic of Belarus.

And the court design is also obvious in the qualification of Dvoryaninova actions under p.1 art.427 of Cr.C. of RB because under p.p.3) part.1 art.30 of C.Cr.P. of RB: “the court is able to dismiss indictment under the crime case and release a person from the crime liability in connection with the use of administrative discipline measures”.

5. Meanwhile the court in defiance of art.62 of the Constitution of the Republic of Belarus – the constitutional warranty of right to the legal assistance to Dvoryaninova, in defiance of the International treaty – the court in fact disparaged the human merit of Dvoryaninova and her daughter obviously, cynically; depreciated the human merit of the citizens present in the hall, meanwhile the court depreciated the authority of not only the judicial authority, but that of the President of RB, whereas it counteracted the legal assistance to Dvoryaninova repeatedly and without any legal reason declined the daughter of Dvoryninova to carry out the legal assistance.

In defiance of p.5 of art.23 of C.Cr.P. of RB the court has not created the necessary conditions for defense implementation and supported the prosecution.

Everything set forth indicates that the court indictment to Dvoryaninova S.I. is awarded with the significant defiance of the criminal procedure – in defiance of the requirements of part.2 art18, art.350 of C.Cr.P. of RB, the sentence is awarded under the disregard of the requirements of art.11, art.62 of C.Cr.P. of RB: - in the absence of the court reasoning and justification: ONLY CIVIL AND ECONOMIC RELATIONS presence in the crime case, the sentence is awarded in the absence of crime and under the court counteraction (by Mikhaseva V.A.) in providing legal assistance to Dvoryaninova S.I.

On the ground of set forth and under art.370; part2, part3 art.378; art.385 part1 p.3); art.388 part1 p.p.3), 4); part1 art.415; art.16 of C.Cr.P. of the Republic of Belarus; under the instruction of the regulations of THE SUPREME COURT PLENUM OF THE REPUBLIC OF BELARUS; part3 art.41, art.44 of the Constitution of RB; art.11 of the International pact of civil and political human rights –

OBLIGATE

The Independent Public Prosecutor of Russia, de-facto
Nikolay Eliseyevich Shiyatyy

23th of August, 2007, Vitebsk-Minsk-Moscow

The protest of The Supreme Court of the Republic of Belarus on the case of the famous Belarussian businesswoman Dvoryaninova S.I convicted supposedly for a criminal offence (though only civil legal and economic relationships figure in the case), with use of artificial evidences incriminating unguilty Dvoryaninova, has been  satisfied.

But for all that the court has not taken into consideration that Dvoryaninova S.I. has been convicted as a criminal, at the presence of only civil and economical relationships. Dvoryaninova has been convicted on legal ground according to consummated decisions of economic courts, at the presence of official reprimand, that has not been upheld and reversed till now. It is proved by the following:

We are having the following question emerging to the judge of the Supreme Court – Kalinkovich V.L., the trial judge –Morozova M.V., the senior investigator Lantsuntsevich S.A., who trumped up the Dvoryaninova’s case: «To what extent can one be «legally ignorant» and cynical against the law so as not to be able to distinguish civil-economic relationship from criminal offences?» We can ask the same question to the judges of cassational instance, who are not likely to have surnames, names and patronymics and wish to remain unknown, and the judge Mikhasyova V.A, who has proceeded to the study of new and additional (but nevertheless being far-fetched and artificial) facts concerning this supposedly criminal deed which really includes only economic and civil legal relationships.

NOTICE
The opinion of the Independent Attorney of Russia: there is no notion of   “criminal” in laws, law lists (see “crime”, “criminal deed”). Though officers of courts and  law-enforcement organs claim that only a convicted person, whose sentence came into effect, can be called a criminal. But this assertion is irrational, since it contradicts the conception and origins of Russian language, meaning of words, which have their roots and, conformably, a sense. The “criminal” is a person or an official , who has broken the Law and  not observed the State constitution and other laws. That’s why criminals are to be punished inevitably.