We, representatives of the human rights community of Belarus, have observed a high number of pre-trial and court rulings in politically motivated criminal cases that violate the fundamental procedural rights of defendants. In the absence of an independent, unbiased and objective trial, such investigations and verdicts tend to be arbitrary. The measures of restraint and criminal penalties imposed in these cases go beyond those normally applied in the absence of a political motive and are excessively severe, not corresponding to the degree of public danger of the offense and the personality of convicts.
Thus, Mr. Siarhei Adziarykha was found guilty of exceeding his authority for leaking information about the working schedule of Aliaksandr Lukashenka and other high-ranking officials of Belarus to a Telegram channel. He was sentenced to five years in a general-securty penal colony and a fine under Part 2 of Article 426 of the Criminal Code.
The Human Rights Committee has emphasized the need to open up wide access to government information of public interest in order to effectively exercise the right of access to information. Only two restrictions on this right are permitted, which may relate either to respect for the rights or reputations of others, or to the protection of national security, public order or public health and morals. Restrictions must strictly meet the requirement of necessity and proportionality. Invoking treason laws and similar acts relating to national security, official secrecy, anti-subversive activities in order to withhold or conceal from the general public information of legitimate public interest that does not threaten national security, and to prosecute journalists, researchers, environmentalists, human rights defenders or others for disseminating such information would be a violation of Article 19(3) of the Article 19(3) of the Covenant.
Ms. Alesia Bunevich was taken into custody on charges of committing an act of terrorism by a group of persons by prior conspiracy under Part 2 of Article 289 of the Criminal Code. Based on the information posted in the state-controlled media, she is charged with assisting citizens of the Republic of Belarus to illegally cross the state border, which is not a crime under Belarusian legislation. The rest of the charges are far-fetched and arbitrary, and the corresponding investigation can be carried out without depriving the accused of her liberty.
Mr. Aliaksandr Zaitsau was sentenced in a closed trial to ten years of imprisonment in a penal colony under part 1 of article 14 and part 2 of article 289 of the Criminal Code (attempted act of terrorism committed by a group of people by prior agreement) for attempted arson of the summer house of the Supreme Court chairman Valiantsin Sukala.
Mr. Viachaslau Maleichuk was convicted under Part 1 of Article 14 and Part 1 of Article 289, Part 1 of Article 13 and Part 3 of Article 289 (preparation and attempt to act of terrorism), Part 3 and Part 4 of Article 295 (illegal actions concerning explosives), Part 1 of Article 295-3 (Illegal actions concerning objects which action is based on use of combustible substances) and was sentenced to 22 years of imprisonment in a penal colony for ‘organizing acts of terrorism in Barysaŭ and Minsk on March 25, 2022’.
Accoding to the International Covenant on Civil and Political Rights, in the determination of any criminal charge against him, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. All or part of the public may be excluded from a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public. These requirements were not fulfilled by the court in the case of the persons mentioned above, which in itself could determine the attitude of human rights defenders to the results of the hearing.
The actions of Mr. Zaitsau were qualified excessively grave as an an act of terrorism. According to domestic legislation, an act of terrorism is defined as “the commission of an explosion, arson, flooding, or other acts in a generally dangerous manner or creating a risk of death, bodily injury or other grave consequences” for a specific purpose: to influence decision-making by the authorities, or to obstruct political or other public activity, or to frighten the public, or to destabilize public order. Therefore, only a public objective establishment of the purpose of the actions of the accused could exclude doubts in the correct qualification. It is necessary to present the public with reliable evidence that Mr. Zaitsau’s actions were intended to prevent the lawful and legitimate activities of the authorities and the democratic public order, and were not a product of the practice of violence and repression typical of the period after August 2020. Otherwise, the actions of the accused can be regarded only as an incomplete crime against property and, accordingly, can be qualified taking into account the procedural norm on the prohibition of provocation of a crime.
Mr. Maleichuk’s case, as it was covered in the state-controlled media, had all the signs of being provoked, rigged and aimed at creating formal conditions for the prosecution of other individuals openly investigating the crimes of officials before, during and after the August 2020 presidential election, criticizing the regime and not concealing the goal of overthrowing it. The accused looked beaten after his arrest; the principle of presumption of innocence was grossly violated by the state media and officials.
Criminal charges 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 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. Criminal legislation has been substantially tightened and extended with new corpus delicti, which are used by the authorities solely for the purpose of political repression. Out-of-court, the Interior Ministry and the KGB arbitrarily recognize as extremist citizens’ groups brought together by public or political interests, criticizing the actions of the authorities and demanding reforms in the state and its policies. This in turn paves the way for the arbitrary prosecution and imprisonment of their members as a disproportionate measure restricting the right to association and freedom of expression. Many cases are held in private in violation of the principle of publicity. In particular:
Mr. Anatol Matsulevich was sentenced to 7 years and 6 months in a penal colony under Part 1 Article 361-1 (establishing an extremist formation), Part 3 Article 130 (incitement to hatred), Part 3 Article 293 (training or other preparation of persons to participate in mass riots) for creating and administrating a protest Telegram channel His case was considered in a closed court session.
We emphasize once again that in a number of the cases listed, the acts of the accused were unlawful and questionable due to the inability to express their opinions freely, were triggered by the failure to investigate crimes against peaceful protesters and other victims of abuse and torture, as well as by the frustration caused by the authorities’ inability to stop the lawlessness.
Having studied these cases of criminal prosecution, we came to the conclusion that all of them are politically motivated.
The application of domestic law in these cases, the evaluation of facts and evidence were to varying degrees arbitrary and contained obvious errors, which violated the court’s obligation to be independent and impartial. The imposition of demonstrably harsh sentences substantially aggravated conditions of the defendants as compared to others convicted in similar cases without a political motive.
According to the Guidelines on the Definition of Political Prisoners, a person deprived of liberty is to be regarded as a political prisoner, if, along with the political motivation of their case, 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, consider that the persecution of Mr. Siarhei Adziarykha, Ms. Alesia Bunevich, Mr. Aliaksandr Zaitsau, Mr. Viachaslau Maleichuk, and Mr. Anatol Matsulevich is politically motivated, and recognize them as political prisoners. In this regard, we, the representatives of Belarusian human rights organizations, demand from the Belarusian authorities:
- to reconsider the measures taken against them and the court decisions, while respecting the right to a fair trial and eliminating the factors that influenced the sentence;
- immediately release all political prisoners and stop political repression.
Human Rights Center Viasna
Lawtrend
Belarusian Association of Journalists
PEN Belarus
Legal initiative
Barys Zvozskau Belarusian Human Rights House