We, representatives of the human rights community in Belarus, note that criminal liability for incitement of “other social hatred or discord” (Article 130 of the Criminal Code) has been selectively and discriminatorily applied by both the investigators and the courts in an apparent attempt to protect the institutions of power. Moreover, it seems unreasonable to label representatives of the authorities, police officers, military personnel, etc. as separate social groups falling under protection in this context.
In addition, we note that in the presence of political motives, imprisonment by the authorities is used in violation of the right to a fair trial, other rights and freedoms guaranteed by the International Covenant on Civil and Political Rights, and selectively in comparison with other persons.
In particular, Siarhei Prus and Dzmitry Bondarau were sentenced under Part 3 of Article 130 of the Criminal Code to 5 years in a penal colony for creating and posting online a video calling for illegal actions against riot police officers of the Mahilioŭ regional department of internal affairs. The appeals, however, did not lead to any consequences, with Bondarau having committed the act in a state of diminished sanity.
In this regard, it should be recalled that any permissible restrictions imposed on fundamental rights and freedoms must be “necessary in a democratic society”. Accordingly, these restrictions should be necessary and proportionate in a society based on democracy, the rule of law, political pluralism and human rights. They should also be the least restrictive of those measures that could provide an appropriate protective function. Otherwise, any state intervention, including through criminal prosecution for violating national law, would constitute a violation of human rights.
Dzmitry Sonchyk was sentenced under Art. 364 and Art. 369 of the Criminal Code to 5 years of imprisonment in a penal colony for insults and threats to police officers in comments in a Telegram channel in 2020 and 2021. The comments were written under the influence of emotions after watching videos of beatings and detentions, and were thus triggered by the illegal actions of police officers. In court, Sonchyk stressed that he was not going to implement his threats. The content of the comments is unknown, as they were examined by the court in a closed session.
Andrei Razuvayeu was sentenced under Article 369 and 295 of the Criminal Code to 4 years in an open penitentiary for insulting a government official and keeping a small amount of hunting gunpowder. Imprisonment for a defamatory crime is a disproportionate measure of responsibility, just like imprisonment for possession of a small amount of gunpowder, as both are punishable by non-custodial sentences, and are therefore excessive.
Opponents of the authorities are unjustifiably detained before trial in the absence of sufficient grounds for restricting personal liberty. As the UN Human Rights Committee notes, “remand in custody on criminal charges must be reasonable and necessary in all the circumstances.”
“Detention in custody of persons awaiting trial shall be the exception rather than the rule. […] release from such custody may be subject to guarantees of appearance, including appearance for trial, appearance at any other stage of the judicial proceedings and (should occasion arise) appearance for execution of the judgment. That sentence applies to persons awaiting trial on criminal charges, that is, after the defendant has been charged, but a similar requirement prior to charging results from the prohibition of arbitrary detention […]. It should not be the general practice to subject defendants to pretrial detention. Detention pending trial must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. The relevant factors should be specified in law and should not include vague and expansive standards such as “public security”. […] Neither should pretrial detention be ordered for a period based on the potential sentence for the crime charged, rather than on a determination of necessity.”
In particular, we are aware of the detention of Iryna Melkher, Anton Melkher, Halina Dzerbysh, Siarhei Rezanovich, Liubou Rezanovich and Pavel Rezanovich on terrorism charges. These people have been in custody since early December 2020. They have not participated in any investigative actions, while the investigation is not formally completed, and the state propaganda resources back in 2020 claimed that the guilt and role of all those involved in the case was “established and proven”. However, based on the information disseminated by these sources and allegedly quoting the material of the investigation, the role of these individuals was episodic and secondary. Thus, the long detention of these persons pursues goals that are contrary to generally accepted rules and standards.
It is also known about the pre-trial detention of Yauhen Yushkevich on terrorism charges, as well as under Articles 342 and 293 of the Criminal Code. It should be emphasized that he has already been called a political prisoner by the country’s human rights community in connection with his detention under Art. 342 of the Criminal Code. Subsequently, Yushkevich was released but remained under travel restrictions to be again arrested in April 2021. Since then, there has been no information about Yushkevich committing any violent crimes, and the accused himself in violation Art. 198 of the Code of Criminal Procedure is prohibited from disclosing information about his criminal case. The circumstances of the new accusation of terrorism, which Yushkevich faced after being called a political prisoner, give grounds to believe that his detention may be arbitrary and related to his public activities.
Yauhen Buinitski was detained on charges under Part 3 of Art. 371 of the Criminal Code for organizing illegal border crossing by citizens fleeing arbitrary politically motivated persecution by the Belarusian authorities, which could have serious consequences for them – torture, cruel, inhuman, degrading treatment and illegal imprisonment. According to the Criminal Code, it is not a crime to act in a state of extreme necessity, i.e. to prevent or eliminate a danger directly threatening a person, the rights and legitimate interests of that person or others, the interests of society or the state, if this danger under current circumstances could not be remedied by other means and if the damage caused is less significant than its prevention.
The actions of all these individuals were not related to the direct use of violence.
We emphasize once again that in the above cases the actions of the accused were a consequence of the lack of freedom of expression. They were caused by the authorities’ failure to investigate crimes against peaceful protesters and other victims of ill-treatment and torture, together with disappointment in the government’s ability to stop lawlessness.
Assessing these cases of criminal prosecution, we conclude that there is in each of them a political motive for prosecution.
According to para. 3.2 of the Guidelines on the Definition of Political Prisoners, a political prisoner is a person deprived of liberty if, for political reasons, he or she is persecuted for at least one of the following reasons:
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;
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 persecution of Siarhei Prus, Dzmitry Bondarau, Dzmitry Sonchyk, Andrei Razuvayeu, Iryna Melkher, Anton Melkher, Halina Dzerbysh, Siarhei Rezanovich, Liubou Rezanovich, Pavel Rezanovich, Yauhen Yushkevich and Yauhen Buinitski is politically motivated, and the detainees are therefore political prisoners.
In this regard, we call on the Belarusian authorities to:
- review the measures and procedural decisions taken against them, respect their right to a fair trial and eliminate the factors that influenced the decision to enforce pre-trial detention;
- immediately release all political prisoners and end political repression.
Human Rights Center “Viasna”
Barys Zvozskau Belarusian Human Rights House
Identity and Law
Belarusian Helsinki Committee