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.
We further note that 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 pre-trial detention of:
Artsiom Parkhamovich, charged under Art. 130, 198, 203-1, 352, 364, 365, 366, 389 of the Criminal Code (complicity in deliberate actions aimed at inciting other social enmity and discord on the basis of a different social belonging, committed by a group of persons, etc.) for leaking information about law enforcement officers to a Telegram channel; in custody in a pre-trial detention center since October 22;
Yuliya Laptanovich, charged under Article 203-1 of the Criminal Code for leaking information about the chairwoman of an election commission to a Telegram channel and Article 361 of the Criminal Code (calls to action aimed at causing harm to the national security of the Republic of Belarus);
Dzmitry Kakhanouski, charged under Part 3 of Art. 130 of the Criminal Code, for leaking information about law enforcement officers and judges to several Telegram channels.
We also know about the sentencing of:
Vital Bandaruk under Part 1 of Article 130 (incitement to hostility or discord), Part 1 of Article 367 (libel against the president), Part 1 of Article 368 (public insult to the president) and Article 369 (insulting a representative of the authorities) of the Criminal Code for online comments, and Article 370 (desecration of state symbols) of the Criminal Code – to 5 years in prison;
Illia Dubski under Part 1 of Art. 130 and Art. 366 of the Criminal Code (threat of violence against a representative of the authorities) for commenting online and sending a voice message – to 5 years in prison;
Iryna Harashyna under Part 1 of Art. 342 (group actions grossly violating public order) for participation in a peaceful assembly and Part 2 of Article 203 of the Criminal Code (illegal actions in relation to information about private life and personal data) in a closed court hearing for disclosing the data of police officers – to 2 years in prison;
Siarhei Vinakurau under Art. 352 (unlawful acquisition of computer information) for posting online information about police officers – to 1 year of restricted freedom in an open penitentiary; sent to serve the sentence.
These persons did not call for violent actions on national, ethnic, racial or religious grounds. Their actions did not entail serious consequences for the victims.
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 Artsiom Parkhamovich, Yuliya Laptanovich, Dzmitry Kakhanouski, Vital Bandaruk, Illia Dubski, Iryna Harashyna and Siarhei Vinakurau 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