We, representatives of the human rights community in Belarus, note with concern the ongoing repression triggered by the unprecedented protests against rigged election results and acts of torture and cruelty by law enforcement agencies, as well as part of a wider destructive policy in relation to civil rights and freedoms.
In particular, we note that the criminal law continues to be arbitrarily used to imprison people who, for protest reasons, stopped railway traffic for short periods, which, however, resulted in no damage and did not endanger the passengers or the trains. The absence of such a danger has been repeatedly confirmed in court hearings by prosecution witnesses. Numerous cases of this category have been analyzed by human rights lawyers.
In particular, on October 11, the Viciebsk District Court sentenced Siarhei Ivanou to three years of imprisonment in a penal colony under Part 1 of Article 14 and Part 1 of Article 309 of the Criminal Code.
In essence, his actions contained signs of blocking transport communications (by creating obstacles or in another ways), which, however, cannot qualify as a criminal offense, since the counts imputed to him lacked certain key consequences. There are no signs of deliberate destruction, damage or otherwise rendering unusable of the means of communication, structures, signaling or communication equipment or other transport equipment that could lead to deaths, train crashes, accidents or other grave consequences. Thus, they cannot be classified as a criminal offense.
It is important to note that placing objects on railway tracks that may cause disruption to the movement of railway transport is only an administrative offense.
In addition, under Article 309 of the Criminal Code, Ivanou was unreasonably and in the presence of alternative options sentenced to the maximum punishment in terms of both type and length.
The courts still do not take into account the circumstances that were expected to rule out the criminal responsibility of defendants in politically motivated trials.
On November 11, the Frunzienski District Court of Minsk sentenced Yauhen Korzhal and Tsimafei Mazhankou to two years in a penal colony, and Aliaksei Ihnatsenka – to three years and one month in a penal colony under Article 364 of the Criminal Code for “threatening to use violence” against a police officer in order to “obstruct his lawful activities in revenge for the performance of his official activities.” On August 11, 2020, the defendants, seeing police officers beating and kicking a person lying outside an apartment building, threw a wooden door down onto the lawn, after which the beating of the lying person stopped.
In accordance with Art. 34 of the Criminal Code, every citizen has the right to protection from socially dangerous encroachment. This right belongs to a person regardless of the possibility of avoiding encroachment or seeking help from other persons or authorities. An action committed in a state of necessary defense, that is, while protecting their life, health, property, home and rights or those of another person, the interests of society or the state, from socially dangerous encroachment by causing harm to the infringer, is not a crime, if the limits of necessary defense were not exceeded. Exceeding the limits of necessary defense is recognized as a discrepancy between the defense and the nature and danger of the encroachment, which is obvious for the defending person, and only when the encroaching person suffers a deliberate death or grievous bodily harm.
In this situation, the defendants did not have the opportunity to apply to the authorized state bodies to protect the victim, who was being beaten, from criminal attacks by police officers; the actions of the police officers clearly violated the constitutional rights to personal inviolability and the prohibition on cruel, inhuman and degrading treatment, which put the accused in a state of necessary defense, excluding criminal liability.
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.”
Maryia Uspenskaya has been in custody since September 28. On that day, KGB officers raided her apartment as part of an “anti-terrorist operation.” The violent attack involved a shootout, which resulted in the death of Uspenskaya’s husband, Andrei Seltser, and a KGB officer. According to the information spread by the Investigative Committee, Uspenskaya’s arrested related to suspicions of complicity in the murder of the KGB officer. At the same time, the video of the incident confirms that Maryia Uspenskaya did not play a direct role in the shootout, only filming her husband’s actions. Other circumstances of the incident – the unforeseen and unexpected encroachment on the inviolability of the home and the brevity of the conflict – rule out accusations of any form of complicity by prior conspiracy.
In accordance with the Guidelines on the Definition of Political Prisoners,
A political prisoner is also a person who deprived of their liberty if, if there are political motives for persecuting him and at least one of the following factors is observed:
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.
In this regard, we consider the persecution and imprisonment of Siarhei Ivanou, Yauhen Korzhal, Tsimafei Mazhankou, Aliaksei Ihnatsenka and Maryia Uspenskaya politically motivated, and they are therefore political prisoners in accordance with paragraph 3.2 (b, c) of the Guidelines on the Definition of Political Prisoners.
We, representatives of Belarusian human rights organizations, call on the Belarusian authorities to:
- immediately release political prisoner Maryia Uspenskaya;
- review the sentences passed against Siarhei Ivanou, Yauhen Korzhal, Tsimafei Mazhankou, and Aliaksei Ihnatsenka, while respecting their right to a fair trial and eliminating the factors that influenced the verdicts, release them, while selecting other measures to ensure their appearance in court;
- immediately release all political prisoners and stop political repression.
Human Rights Center “Viasna”
Lawtrend
Legal Initiative
PEN Belarus
Belarusian Helsinki Committee
Human Constanta