Human Rights Watch calls Prosecutor General to drop charges against Andrei Kim
Letter to Prosecutor General of the Republic of Belarus regarding the harsh sentencing of youth activists
June 26, 2008
Grigory Alekseevich Vasilevich
Prosecutor General of the Republic of Belarus
Ulitsa Internationationalnaya, 22
Dear Mr. Vasilevich,
Please accept my greetings on behalf of Human Rights Watch.
We are writing to express our profound concern about the recent arrests and disproportionate sentences of 10 youth activists for participating in a peaceful, but unsanctioned, protest on January 10, 2008. We are especially concerned about Andrei Kim, who is among these ten and who was arrested at a subsequent peaceful protest on January 21. He was charged with violations related to both protests and received a disproportionately harsh sentence for offences based on what we believe to be political reasons.
We learned about Andrei Kim’s arrest and sentencing from Belarusian civic activists, colleague organizations, and lawyers in Minsk. We have read the administrative court’s decision of January 22, 2008, and the criminal court’s verdict of April 22, 2008. In both verdicts Andrei Kim was sentenced for essentially the same acts—allegedly striking a police officer and participating in the unsanctioned peaceful protest that took place on January 10 and January 21.
On January 10, 2008, there was a peaceful protest in Minsk attended by more than 2,000 small business owners. Eleven days later, on January 21, more than 1,000 entrepreneurs gathered at a peaceful protest organized and held by small business owners. Kim was detained at the second protest and held at the police station along with 14 youth activists.1 The following day (January 22, 2008), the activists were tried by an administrative court and sentenced to 10 days of administrative detention for various misdemeanor violations related to this protest. Kim was charged with “petty hooliganism” and “violating order of organizing and holding mass actions” (Articles 17.1, part 1 and Article 23.34 of Belarusian Code on Administrative Misdemeanors) and found guilty on January 22. After 10 days the other activists were released. But instead of releasing Kim the authorities launched criminal charges against him for “organization and active participation in actions that grossly violate public order (article 342, part 1 of the Criminal Code),” and “using violence or threat of violence against a police officer (article 364 of the criminal code)” for allegedly striking police officer Yuri Sychev during the January 21 protest. Kim denies all allegations against him. He was transferred to a pretrial detention center where he was held for three months.
On April 22 the Central Court of Minsk sentenced Kim to 1.5 years imprisonment on the above criminal charges. Seven of his co-defendants received two years of “limitation of freedom without transfer to an open correctional institute,” and two received fines of 3,5 million Belarusian rubles (roughly 1,640USD). All were charged with violating Article 342, part 1 for allegedly blocking traffic for 151 minutes.
The court’s decision against Kim for violations of administrative codes 17.1, part 1 and Article 23.34 and the offences with which Kim were charged for on April 22, amount to duplicate charges for the same offence, based on the same behavior for which he was previously convicted and served a custodial sentence for . Two of the prosecution witnesses testified at both the administrative and criminal proceedings, on January 22 and April 22, respectively. Their testimonies described the same alleged actions: blocking traffic, using obscene language, and striking a police officer.
Belarus is party to and therefore legally bound by the International Covenant on Civil and Political Rights (ICCPR) which provides in Article 14.7 that: “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” This is known as the prohibition on double jeopardy, or the ne bis in idem rule. We believe that Kim was tried twice for the same offences in violation of article 14.7 of the ICCPR. The European Court of Human Rights recently found a violation of the identical provision contained in the European Convention on Human Rights, in a case where a man was prosecuted on the basis of the same facts for the criminal offences of “minor disorderly acts” having been found guilty and served 3 days prison time for the administrative offence of “disorderly acts” (See Sergey Zolotukhin v Russia, (Application no. 14939/03), Judgment June 7, 2007). It is clear that the administrative offence for which Kim was convicted, would constitute a prior conviction for the purposes of Article 14.7 of the ICCPR, and that his subsequent trial and punishment for the same offences under the criminal code violates his rights protected by the Covenant.
Belarus also has binding legal obligations as a party to the International Covenant on Civil and Political Rights (ICCPR) to protect the freedom of assembly (Article 21). While prior notification of a peaceful assembly can be required by state parties, it should not under any circumstance be used as a tool to restrict the right to hold peaceful assemblies. We are aware that freedom of assembly is provided for under Belarusian law, but that in practice this freedom is severely restricted. The procedure for obtaining permission to hold assemblies is an onerous and excessive burden for civil society groups, and applications are frequently denied. Further, authorities often use intimidation and threats to discourage people from participating in protests or other peaceful assemblies.
In order to fulfill its obligations under the Article 21 of the International Covenant, state parties should make available public thoroughfares or other areas, and possibly re-route traffic. Obstructing traffic is often a legitimate consequence of exercising the right to assemble. While under some circumstances it can be considered a misdemeanor, pressing criminal charges on these grounds against participants of peaceful protests is disproportionate and conflicts with the principles of the ICCPR.
The facts outlined above lead us to believe that Andrei Kim and his codefendants were singled out for disproportionate sentences due to their involvement in civic activism, to serve as a warning to other opposition activists. Andrei Kim is associated with Initiative, a youth organization that holds public actions on social rights issues, and advocates for and correspondents with political prisoners. His codefendants are activists from youth groups that have been harassed repeatedly in the past, including Young Front and Young Democrats.
In the recent past Belarusian authorities have similarly pressed misdemeanor charges against political opposition activists who were exercising their rights to freedom of assembly, association, and expression. For example, in spring and summer 2007 more than 60 activists were beaten, fined, and jailed for various charges including participating in unsanctioned protests and “petty hooliganism” for participating in peaceful demonstrations.
Criticism or allegations by civil society organizations of any government and its policies are not often welcomed by the relevant authorities. However, raising public awareness through legitimate criticism is an appropriate part of the work of civil society, which in turn is aimed at improving adherence to international standards and the rule of law. Such exercises of freedom of association, assembly, and the right to a fair trial are protected by International Covenant on Civil and Political Rights, to which Belarus is party. We are particularly dismayed and surprised that authorities are putting more activists behind bars after recently releasing six political prisoners.
We are aware that Andrei Kim’s lawyer has appealed the April 22 sentence, and the case will go to the appellate court in the coming days.
We urge you to use your good offices to reconsider the criminal charges against Kim and his co-defendants and take full account of the rights and obligations stemming from the protection given to the rights to freedom of assembly. We also urge you to drop the charges against Kim as he received his conviction from the administrative court. We further respectfully request to be apprised of developments in the case.
Thank you for your attention to this matter.
Europe and Central Asia Division