In response to a number of recent sentences in criminal trials related to charges of violence against and violent resistance to police officers and other officials (Articles 363, 364, 366 of the Criminal Code), as well as hooliganism (Article 339 of the Criminal Code), once again reaffirming our position set out in the joint statement of human rights organizations of January 16, 2021, we note the following.
Peaceful assemblies should be under the protection of the state and the police should not take measures to forcibly stop them, even if they violate the procedures for their organization and conduct. Violent dispersals of rallies and the use of physical force, particularly of riot control equipment and weapons, against protesters, should be applied only as a last resort, in cases where the behavior of participants is violent and poses a real threat to national and public security, life and health of the public.
The disproportionate and violent actions by the police aimed at disrupting peaceful assemblies cannot be regarded as legitimate activities to protect and maintain public order, and in cases of violence against officers of the Interior Ministry used in response to initial police violence, these actions should be judged based on the severity of the damage to health and the intent to cause such damage. They should also be regarded as defense against clearly wrongful acts of law enforcement officers, including by illegal orders (necessary defense).
According to the Guidelines on the Definition of Political Prisoners, violence provoked by the initial disproportionate use of physical force, police equipment or weapons, provided that the actions of the accused were not intended to cause non-symbolic material damage or harm, gives grounds to consider persons in question as political prisoners.
In addition, monitoring of these trials proved that the courts handed down excessively harsh (disproportionate to the offense) sentences, as compared to similar sentences pronounced in the same categories of trials outside the political context.
The duration or conditions of imprisonment under the sentences handed down to protesters are clearly disproportionate to the offenses of which they were found guilty.
In a number of cases, court hearings were held behind closed doors, as members of the public, human rights defenders and the media were not allowed to attend. Moreover, the courts’ orders to classify the hearings were not conditioned by the need to protect state secrets or personal information of the participants in the trials, which could be considered as undesirable for public distribution.
The monitoring of the court hearings also revealed other violations of the principles of a fair trial, most notably, the presumption of innocence and equality before the court.
All these circumstances give grounds to claim that the persecution of the below persons is politically motivated, and the convicts are therefore political prisoners.
Based on the above and guided by paragraph 3.2 (a, b, c, d) of the Guidelines on the Definition of Political Prisoners, we will consider the following convicts as political prisoners:
Yuzef Niamera – sentenced as a result of a retrial by the Hrodna Regional Court to one and a half years in prison under Part 1 of Article 342 and Article 364 of the Criminal Code;
Pavel Aucharau – sentenced to five years in prison under Part 1 of Article 342, Article 363 and Part 2 of Article 293 of the Criminal Code;
Emil Huseinau – sentenced to five years in prison under Part 1 of Article 342, Article 363 and Part 2 of Article 293 of the Criminal Code;
Uladzimir Khamichkou – sentenced to four years of restricted freedom in an open correctional facility under Part 1 of Article 342 and Article 363 of the Criminal Code; sent to serve the sentence;
Eduard Zhdanko – sentenced to three and a half years in prison under Part 2 of Article 363 of the Criminal Code;
Artsiom Nikitsin – sentenced to two and a half years in prison under Part 2 of Article 339 and Article 363 of the Criminal Code;
Uladzimir Kniha – sentenced to four years in prison under Part 1 of Article 342 and Article 364 of the Criminal Code;
Yauhen Raznichenka – sentenced to three and a half years in prison under Part 1 of Article 342 and Article 364 of the Criminal Code;
Tsikhan Osipau – sentenced to eleven years in prison under Part 2 of Article 293, Part 1 of Article 400, Part 1 of Article 14 and Article 362 of the Criminal Code.
We consider it necessary to demand for these political prisoners an immediate review of restrictions and sentences imposed on them with full respect for the right to a fair trial and the elimination of the above flaws, as well as their release from custody and application of other measures to ensure their appearance in court.
Human Rights Center “Viasna”
Belarusian Documentation Center
Center for Legal Transformation “Lawtrend”
Belarusian Helsinki Committee
Barys Zvozskau Belarusian Human Rights House