Statement by the human rights community of Belarus
October 30, 2024
We, representatives of the Belarusian human rights community, once again note that criminal liability for “incitement of other social hatred or hostility” under Article 130 of the Criminal Code has been selectively and discriminatorily applied by investigators and courts in an apparent attempt to protect state bodies. Moreover, it seems unreasonable to label government officials, police officers, military personnel, etc., as separate social groups under protection in this context.
We insist that it is unacceptable to apply a law aimed to protect government officials, law enforcement officers, and judges from threats in connection with the lawful performance of their duties to punish those citizens who have spoken out in connection with the clear violation of the Constitution and law by state institutions, the involvement of government officials, prosecutors and judges in torture and in creating a climate of impunity for torture and other human rights violations, often showing signs of crimes against humanity.
According to the International Covenant on Civil and Political Rights, everyone is entitled to a fair and public hearing by a competent, independent, and impartial tribunal in the determination of any criminal charge against them. 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. In the absence of such exceptional circumstances, the proceedings should be open to the general public, including representatives of the media, and should not, for example, be limited to a certain category of persons. Even in cases where the public is denied access to the hearing, the court decision, including the main conclusions, evidence, and legal arguments, should be made public. The court did not fulfill these requirements in the case of the persons mentioned, which could determine the attitude of human rights defenders to the hearing results.
We also reiterate our position expressed in the statement of the human rights community that it would be a violation of Paragraph 3 of Article 19 of the Covenant on Civil and Political Rights to refer to treason laws and similar acts concerning national security, professional secrecy, or the fight against subversion, to withhold or conceal from the general public information of legitimate public interest and does not threaten national security, but also to prosecute journalists, researchers, environmentalists, human rights defenders, or others for disseminating such information.
We are aware of the conviction of:
- Vadzim Naŭcenia on charges of insulting A. Lukashenka, insulting a representative of the authorities, discrediting the Republic of Belarus, inciting hatred, organizing or actively participating in a group gross violation of public order under Articles 368, 369, 369-1, 130, 342 of the Criminal Code; he was sentenced to imprisonment for three years in a penal colony with a fine;
- Andrej Subcielny on charges of calling for actions aimed at harming the national security of the Republic of Belarus, inciting hatred or hostility under Articles 361 and 130 of the Criminal Code; he was sentenced to imprisonment in a penal colony;
- Siarhiej Kabarčuk and Pavieł Kabarčuk, citizens of Ukraine, in a closed court hearing on charges of preparing a terrorist act, illegal actions related to weapons and ammunition and moving them across the border, agent activity under Part 1 of Article 13, Part 3 of Article 289, Part 4 of Article 295, Part 3 of Article 333-1, Article 358-1 of the Criminal Code; they were sentenced to 20 years of imprisonment in a penal colony with a fine;
- Ludmiła Dejnieka on charges of inciting social hatred, calling for actions aimed at harming the national security of the Republic of Belarus, insulting Lukashenka under Articles 130, 361, and 368 of the Criminal Code; she was sentenced to imprisonment in a penal colony.
The authorities unreasonably use detention in the absence of sufficient grounds for the use of the preventive measure, which restricts personal freedom: 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 the execution of the judgment. This suggestion concerns persons awaiting trial on criminal charges, that is, after the indictment, but a similar requirement, covering the period before the indictment, follows from the prohibition of arbitrary arrest… It should not be the general practice to subject defendants to pretrial detention. Detention should be based on a case-by-case decision that it is justified and necessary, taking into account all the circumstances, for purposes such as preventing escape, interfering with the process of collecting evidence, or recidivism of the crime… The relevant factors should be spelled out in the law and should not contain vague and broad standards, such as “public danger”… Pre-trial detention should be applied not on the basis of a possible sentence, but on the basis of determining the need for this measure of restraint.”
Thus, we are aware of the detention of:
- Volha Radzivonava on charges of insulting A. Lukashenka and slander against him, insulting a representative of the government, inciting hatred under Articles 368, 367, 369, 130 of the Criminal Code;
- Daniił Palanski, a journalist, on charges of treason under Article 356 of the Criminal Code;
- Alaksandr Sudnikovič on charges of insulting A. Lukashenka, insulting a representative of the authorities, participating in an extremist formation, inciting social hatred under Articles 368, 369, 361-1, 130 of the Criminal Code;
- Nakanishi Masatoshi, a Japanese citizen, on charges of espionage activities under Articles 358-1 of the Criminal Code.
Having studied these criminal prosecution cases, we concluded that all of them are politically motivated.
According to the Guidelines on the Definition of Political Prisoners, a person deprived of liberty is to be regarded as a political prisoner, if at least one of the following criteria is observed:
- 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;
- 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 further imprisonment of Vadzim Naŭcenia, Andrej Subcielny, Siarhiej Kabarčuk, Pavieł Kabarčuk, Ludmiła Dejnieka, Volha Radzivonava, Daniił Palanski, Alaksandr Sudnikovič, Nakanishi Masatoshi is politically motivated, and they are political prisoners. We demand from the Belarusian authorities:
- review the sentences and preventive measures imposed on these political prisoners, while ensuring the right to a fair trial and eliminating the factors that affected the choice of punishment, the categorizing of actions, the type and severity of punishment;
- release the mentioned political prisoners by taking other measures to ensure their appearance in court;
- immediately release all political prisoners, review politically motivated sentences, and end political repression against citizens.
Human Rights Center Viasna;
Lawtrend;
Human Constanta;
Belarusian Helsinki Committee;
Office for the Rights of Persons with Disabilities;
PEN Belarus.