We, representatives of the human rights community of Belarus, have observed the increasing number of court decisions made in politically motivated criminal cases, in violation of the fundamental procedural rights of the defendants, which, in the absence of an independent, unbiased, objective trial, make the conviction arbitrary. The criminal penalties imposed in these cases go beyond those normally applied in the absence of a political motive and are defiantly harsh, inconsistent with the nature of the offense. Criminal liability for inciting social enmity or discord (Article 130 of the Criminal Code) is selectively and discriminatorily applied only to protect the institutions of power, and we see no reason to single out government officials, law enforcement officers, servicemen, etc. as social groups subject to protection in this context. In particular:
Uladzislau Buryn was sentenced by the Brest regional court on 7 June 2021 to three years of imprisonment under part 1 of Article 130 of the Criminal Code for committing “deliberate actions aimed at inciting other social enmity and discord based on other social affiliation.” Due to Burin’s guilty plea in this case, the suspended punishment for another crime under Article 209 of the Criminal Code was added to the above sentence and the final sentence was four years of imprisonment.
The court found that the defendant posted text messages on the Internet that “negatively assessed persons united based on membership in groups such as ’employees of internal affairs bodies and members of their families’, ‘military personnel and members of their families’, ’employees of state agencies and institutions and members of their families’, containing statements of an inflammatory nature, forming hostile social and psychological attitudes, calling for violent and aggressive actions aimed at causing harm in the Republic of Belarus.” These and other circumstances were established without the disclosure in court of the defendant’s specific communications. In the open court session, only the first and the last words of the statements were announced, while in the court judgment they were not mentioned at all, which grossly violates the principles of judicial proceedings and imparts the conviction with an arbitrary character: a sentence can be based only on the evidence that was directly examined during the court hearing.
Moreover, the court’s findings contradicted the contents of the psychological expert review, as contained in the verdict, according to which the defendant developed a negative attitude towards, inter alia, specific representatives of the groups “internal affairs officers” and “members of the armed forces” – retaliating against peaceful protesters, supporting the “anti-national regime,” as well as the “henchmen”, and in addition, his calls for violent and aggressive measures against these “social groups” were reasoned by their aggression.
Dzianis Syrets was convicted on 11 June 2021 by the Minsk Region Court under part 1 of Article 130, Article 369, part 1 of Article 368 of the Criminal Code to four years of imprisonment for contempt of a government official and the president and inciting other social enmity and discord, which was expressed through the posting of text comments in a Telegram group.
Aliaksandr Zhmura was convicted by the Hrodna Region Court under Article 368 and part 1 of Article 130 of the Criminal Code to three years and six months in prison for contempt of the president and inciting other social enmity and discord against the police officers by posting messages in protest chats on the Internet.
As for the conviction of D. Syrets and A. Zhmura under Article 369 and part 1 of Article 368 of the Criminal Code, we once again reiterate our repeated demands to decriminalize defamation and prohibit imprisonment for insulting officials, the state, public agencies, and symbols (joint statement of 22 December 2020).
Regarding the charge under Article 130 of the Criminal Code, we point out that restrictions on freedom of expression must “strictly meet the requirement of necessity and proportionality” (Human Rights Committee, General Comment No. 340). Long-term imprisonment is an excessive punishment that does not meet the goals of the International Covenant on Civil and Political Rights.
On 22 January 2021 Larysa Tankashkur was convicted by the Pieršamajski District Court of Minsk under part 1 of Article 179 of the Criminal Code to three months of arrest (she started serving her sentence) for passing the personal data of officers from a local police department that she took from the subscribers’ files of the Ministry of Internal Affairs’ newspaper to the administrator of a protest Telegram group, where they were later published.
The former version of Article 179 of the Criminal Code, criminalized illegal collection or dissemination of information about the private life constituting a personal or family secret of another person, without their consent, which caused harm to the rights, freedoms, and legitimate interests of the victim. It should be noted that the concept of “information constituting a personal or family secret of another person” is vaguely defined in the legislation, and therefore can be applied arbitrarily. After the case was considered, the criminal law was amended to include liability for the unlawful collection and disclosure of personal data, which is exactly what the defendant had done. So, in fact, the defendant didn’t commit a criminal offense, especially since the disclosure of the subscribers’ personal data didn’t cause any real harm to their legally protected rights and freedoms. At the same time, Larysa Tankashkur was sentenced to the maximum custodial punishment under part 1 of Article 179 of the Criminal Code, given the availability of alternative punishments.
Maksim Skalkin and Yury Samusevich were convicted by the Slutsk District Court of Minsk Region on 2 April 2021: M. Skalkin was sentenced under part 1 of art. Article 13 and part 2 of Article 179 of the Criminal Code to one year of imprisonment and a fine of 5,800 rubles for preparation to the illegal collection of information about private life, which constitutes personal and family secrets of another person committed by an official using their authority; Yury Samusevich was sentenced under part 1 of Article 14 and part 2 of Article 179 to one year and six months of imprisonment and a fine of 5,800 rubles for attempted illegal collection of information about private life constituting personal and family secrets of another person, committed by an official using their authority.
The mentioned case was considered in a closed court session, which substantially violated the basic procedural rights of the defendants. The punishment for the incomplete misdemeanor was imposed in the form of imprisonment, while alternative measures of punishment were available, which allows one to claim a selective approach to the assignment of punishment for the defendants. Together with the arguments set forth for the qualification of actions of Larysa Tankashkur, it allows us to conclude that the conviction of Maksim Skalkin and Yury Samusevich was arbitrary.
On 7 June 2021, the Kastryčnicki District Court of Hrodna sentenced Aliaksei Haloukin under Article 364 and part 1 of Article 366 to three years of imprisonment for threatening an official on duty and an officer of the Ministry of Interior. The messages were posted by the defendant in the Telegram channel and addressed to Ihar Shunevich and Yury Karayev (former and present ministers of interior). There is no doubt that the accused could not have implemented any kind of threats against the above persons.
Given the availability of alternative punishments for these misdemeanors and the absence of harmful consequences of the act, the court chose the most severe type of punishment – differentially compared to other known cases of conviction that are not politically motivated.
On 10 March 2021, Aleh Zubrytski was sentenced by the Centraĺny District Court of Minsk to three years of restricted freedom in an open-type correctional facility under Article 364 of the Criminal Code for threatening to use violence against a family member of a riot policeman. The defendant denied sending a threatening message. The verdict was based on contradictory and doubtful evidence, including evidence of falsification, and the most important evidence – the victim’s phone – was not examined either at the investigation or in court. Moreover, during the hearing of the case, the judge gave reasons to doubt her impartiality by giving legal advice to the victim. Thus, several principles of the trial were violated concerning the defendant: the presumption of innocence, the principle of equality of arms.
Aliaksei Melnikau was convicted on 8 February 2021 by the Kastryčnicki District Court of Mahilioŭ to seven years of imprisonment under Article 13 and part 2 of Article 293, part 3 of Article 295-3 for preparation to participation in mass riots; illegal manufacturing, storage, and carrying of objects whose destructive action is based on the use of flammable substances; illegal manufacturing and storage of firearms.
The defendant was detained on 9 August 2020. According to the press service of the General Prosecutor’s Office, he had on him firecrackers, three homemade incendiary devices containing smoke-producing pyrotechnic compositions, a knife, which he “secretly carried and tried to transport from Mahilioŭ to Minsk to participate in the mass riots. During the search at his apartment, a double-barrelled smooth-bore handgun was found.
Melnikau pleaded partially guilty to the illegal storage of weapons. The trial was closed on no grounds.
Human rights defenders emphasize that after the presidential election there were no mass riots in Belarus, and there were generally peaceful protests against falsification of the election results. The court’s violation of the principle of openness and publicity during the consideration of this criminal case raises doubts about the observance of the principle of presumption of innocence in relation to the defendant. Overall, the sentence is excessively cruel and is subject to reconsideration.
Andrei Kareshnikau was convicted by the Centraĺny District Court of Minsk on 13 November 2020 under part 1 of Article 339, part 2 of Article 346 of the Criminal Code to two years of imprisonment for disorderly conduct and desecration of historical and cultural valuables, committed against highly valued historical and cultural valuables, and for desecration of the monument to the defenders of the Fatherland, which, according to the accusation, was expressed in the drawing of an image in the form of a circle and a line on the surface of “the female figure, embodying the generalized image of the motherland, the symbol of Victory and Glory, which is part of the architectural and sculptural complex ‘Obelisk Minsk – Hero-City'” on 14 August 2020. The image had no content, which was confirmed by the defendant and the expert. Without denying the wrongfulness of the act, we doubt the validity of qualifying the actions of the accused as criminally punishable disorderly conduct, as well as the applicability of the term “desecration” to his actions.
Both offenses belong to the category of minor gravity crimes for which non-custodial penalties are also available. However, the court, without due substantiation, disregarding mitigating circumstances and absence of aggravating ones, gave the defendant the heaviest kind of punishment and fully compounded the sentences under two elements of the crime, when the alternatives such as cumulative and concurrent sentences were available. Thus, he was convicted differentially in comparison to other persons convicted for non-politically motivated crimes.
On 17 June 2021, the Lida District Court of Hrodna Region sentenced Ihar Pyzhjanau under part 1 of Article 366 of the Criminal Code to three years of imprisonment for violence against an official – unintentional infliction of physical harm to a KGB officer, who arbitrarily detained the defendant. According to the information received by human rights defenders, the court session was closed on no grounds.
We consider as arbitrary the detention of Ihar Pyzhjanau, one of the activists and observers during the 2020 election campaign because the law provides for the possibility of detaining a citizen in connection with the commission of an administrative offense or suspicion of committing a crime; a citizen must be notified about the detention and its reasons. Otherwise, the actions of a citizen who has disobeyed or resisted unlawful detention should be seen as a necessary defense, aimed at protecting their rights and, under the conditions of a collapse of the national legal system, possibly their life and health. Causing unintentional bodily harm by a person in a state of necessary defense should not be criminally prosecuted.
Under such circumstances, the verdict, rendered after a closed trial, is subject to review with observance of procedural guarantees, one of which is the public and open examination of the case by the courts.
Ivan Viarbitski was convicted by the Smarhon District Court of Hrodna Region on 15 March 2021 under part 5 of Article 16, part 1 of Article 289 of the Criminal Code, and part 1 of Article 377 of the Criminal Code to eight years and one month of incarceration for “incitement to an act of terrorism” and destruction of a search warrant.
According to the Criminal Code, a person who incited another person to commit a crime is recognized as an instigator. The question of whether someone was induced to commit a crime was not examined by the court. In addition, inducement in criminal law refers to more specific actions: inciting another person to commit a particular crime through requests, persuasion, bribery, intimidation, threats, and by other means. Thus, the actions of the accused had the attributes of incitement to commit a crime, but not incitement as defined in part 5 of Article 16 of the CC.
According to part 3 of Article 361 of the CC, public appeals to commit an act of terrorism committed through the Internet were a minor gravity crime at the time of the action and were punishable by imprisonment for two to five years, with the availability of other criminal penalties. However, the court mistakenly qualified Ihar Viarbitski’s actions under the knowingly graver crime of terrorism, and the higher court instances have not corrected this mistake so far. Thus, the rights and freedoms of the defendant, which could have been lawfully restricted in this case, were violated by an obviously disproportionate and excessively severe punishment.
We reiterate that in a number of these cases, the unlawfulness and questionable nature of the actions of the accused were the result of a lack of opportunity for free expression, were caused by a lack of investigation of crimes against peaceful protesters and other victims of cruel treatment and torture, and by disappointment in the authorities’ inability to stop the lawlessness.
In evaluating all of these cases of criminal prosecution, we conclude that in each of them there was a political motive for the prosecution of the accused, as well as significant violations of substantive and procedural law, which directly affected the outcome of the case.
Agreeing with the position of the Supreme Court, we emphasize that the verdict, as the most important act of justice in a criminal case, must be legal, reasonable, reasoned, and fair, set in strict accordance with the principles of presumption of innocence, adversarial proceedings and equality of arms in criminal proceedings.
However, the application of domestic law in the listed cases, the evaluation of facts and evidence to some extent was arbitrary and amounted to obvious errors, by which the court violated its obligation of independence and impartiality, and the imposition of demonstratively harsh sentences significantly worsened the situation of the defendants compared to other convicted persons in a similar situation without a political motive.
According to the Guidelines on the Definition of Political Prisoner, a person deprived of liberty is also to be regarded as a political prisoner, if, as well as political reasons for their prosecution, at least one of the following criteria is observed:
a) the detention has been imposed in violation of the right to a fair trial, other rights and freedoms guaranteed by the International Covenant on Civil and Political Rights or the European Convention for the Protection of Human Rights and Fundamental Freedoms;
b) the detention was based on falsification of evidence of the alleged offence, or imposed in the absence of the event or elements of the offence, or imposed in connection with an offence committed by another person;
c) the length of the detention or its conditions are clearly disproportionate (incommensurate) to the offence the person is suspected, accused or has been found guilty of;
d) the person has been detained in a discriminatory manner as compared to other persons.
We, representatives of the Belarusian human rights community, declare that the prosecution of Uladzislau Buryn, Dzianis Syrets, Aliaksandr Zhmura, Larysa Tankashkur, Maksim Skalkin, Yury Samusevich, Aliaksei Haloukin, Aleh Zubrytski, Aliaksei Melnikau, Andrei Kareshnikau, Ihar Pyzhjanau, and Ivan Viarbitski is politically motivated and they are political prisoners. In this regard, we demand that the Belarusian authorities:
- review the measures and judicial decisions taken against them while respecting the right to a fair trial and eliminating the factors that influenced the sentence;
- release them with the application of other measures to ensure their appearance in court;
- immediately release all political prisoners and stop political repression against citizens.
Human Rights Center “Viasna”
Lawtrend Legal Transformation Center
Belarusian Documentation Center
Belarusian Helsinki Committee
Barys Zvozskau Belarusian Human Rights House
Belarusian PEN Center