The case of Siarhei Tsikhanouski: important conclusions before the trial

A year ago, in May 2020, the presidential election campaign started in Belarus. Many people were rather skeptical about the 2020 election because of the first wave of the COVID-19 pandemic and the virtually burnt political field due to massive human rights violations during the previous presidential election campaigns.

However, many were not even close when trying to predict what public reaction the emergence of new figures on the political scene would provoke as they declared their presidential ambitions. It was the bold and active steps of the new politicians that showed that Belarusians were ripe for changes. The only opponent of these changes is the repressive state apparatus that demonstratively violates the rights of election campaign participants and those who advocate democratic changes in the country.

Amid the protest disguised as "feeding pigeons" last spring and the interviews of Siarhei Tsikhanouski with simple Belarusians, the authorities instantly started prosecuting supporters of the Country for Life movement. A few weeks later Tsikhanouski was detained as a result of a provocation by the law enforcement officers who used criminal prosecution to isolate him and exclude him completely from the electoral process.

Siarhei Tsikhanouski has been detained for almost a year on politically motivated charges. On 5 May 2021, the Prosecutor-General's Office informed that his criminal case had been sent to court. On 12 May 2021, it became known that the Homieĺ Regional Court would consider the criminal case against Siarhei Tsikhanouski.

On the eve of the trial against the political prisoner, the Human Rights Center "Viasna" recalls the chronology of violations of rights of Siarhei Tsikhanouski who was "got down" by the authorities at takeoff. They were seeking to forcefully end his participation in the election campaign either as a presidential candidate or as the head of the election team of Sviatlana Tsikhanouskaya.

The authorities violated Tsikhanouski's right to participate in the elections

On 6 May last year, riot police detained Siarhei Tsikhanouski on a highway near Mahilioŭ, when he was on his way to meet with his followers. The blogger was arrested for 15 days for his participation in a protest against deeper integration with Russia, which took place back in December 2019. The ruling was issued by the court back on 10 January 2020, but the authorities decided to hold Tsikhanouski liable at the very beginning of the election campaign.

For a long time, Siarhei Tsikhanouski's lawyer couldn't see her client, so he was not able to sign the application for registration as a presidential candidate and his initiative group in time. His wife Sviatlana Tsikhanouskaya tried to submit such documents by proxy, but the Central Commission for Elections and Referenda refused to register Tsikhanouski because his signature was not on the application. After this, the decision to participate in the elections was made by Sviatlana Tsikhanouskaya, who registered her initiative group under the leadership of Siarhei Tsikhanouski.

The "Human Rights Defenders for Free Elections" campaign pointed out that the refusal to register Tsikhanouski's initiative group was unlawful, as the authorities had created all the conditions to deprive him of the right to participate in the elections. The actions of the authorities looked like a special operation to neutralize the blogger as a participant in the electoral process.

Arbitrary detention in Hrodna

On 29 May 2020, Siarhei Tsikhanouski, as leader of Sviatlana Tsikhanouskaya's election team, was holding a picket to collect signatures in support of her nomination as a presidential candidate. No permission to hold a picket is required to collect signatures, as long as it is done in places not prohibited by the executive committee.

Numerous live streams from the scene of the action testify that there was no violation of public order because citizens calmly queued in front of the tables where the signatures were collected. The queues of citizens did not cause a traffic stoppage or hinder the routine of the institutions.

An attempt by a woman who approached Tsikhanouski to start a conflict at the picket, the subsequent intervention of the police with the demonstrative fall of an officer on the ground, and the reaction to the incident by state media suggest that the security forces used a provocation to detain Tsikhanouski, which clearly demonstrates the arbitrariness of the detention of the blogger.

The Interior Ministry and the Investigative Committee quickly reported that a criminal case was started against Tsikhanouski for group actions grossly violating public order as well as violence against police officers with an intention to obstruct their lawful activities. The report of the Prosecutor-General's Office on the transfer of the case to court proved that violence against policemen disappeared from Tsikhanouski's charges.

The international legal standard of the right to liberty and security of person provides that detention and imprisonment in connection with the peaceful exercise of the right to freedom of expression and freedom of assembly are arbitrary.

Due to the obvious violations of these rights, Siarhei Tsikhanouski has been recognized as a political prisoner by the human rights community of Belarus, which demanded his immediate release from detention. Amnesty International, a respected international human rights organization, recognized Siarhei Tsikhanouski as a prisoner of conscience and demanded that the Belarusian authorities immediately release the blogger.

The final charges announced by the investigation committee indicate that Siarhei Tsikhanouski is charged with a criminal offense solely for expressing an opinion on social and political issues and for exercising his right to freedom of assembly. Deprivation of liberty for exercising one's fundamental rights is, by definition, unacceptable in international practice, especially if the words do not lead to real threats.

Lukashenka "decided" Tsikhanouski's fate

At the beginning of the election campaign, Lukashenka repeatedly spoke out about his opponents. From his public statements, we can draw an unambiguous conclusion: the decision to detain Siarhei Tsikhanouski and to launch criminal proceedings against him was made not in the legal field, but by direct order of the president.

On 29 May 2020, the day of Tsikhanouski's detention in Hrodna, Aliaksandr Lukashenka paid a working visit to Minsk Tractor Plant. When addressing the workers of the plant he called his opponent a "mongrel" and predicted Tsikhanouski's detention, which took place in a few hours.

A month later, on 28 June 2020, speaking at a closed meeting of the functionaries of the Minsk region, Aliaksandr Lukashenka said that he was the initiator of the criminal prosecution of Tsikhanouski: "Yes, I instructed about Tsikhanouski". Fragments of the meeting were shown in a show on the "Belarus 1" TV channel.

On 10 October 2020, Lukashenka met with political prisoners in the KGB detention center. At the meeting with his opponents, he told Siarhei Tsikhanouski: "Politics is a dirty business, if you go for politics, you should have been prepared that you could have money planted, a provocation could be arranged, like the one in Hrodna, or you could be imprisoned". He explicitly said that it was in his power whether the political prisoners would stay in jail or not, and that those who would "cooperate" would get out. In the course of that meeting, Lukashenka made a point that Tsikhanouski would not be released from custody any time soon.

Thus, it is obvious that Aliaksandr Lukashenka personally was the initiator of the detention and criminal prosecution of the author of the YouTube channel "Country for Life". Such interference of the authorities is incompatible with the adoption of legitimate procedural decisions in the legal field and makes it possible to conclude that the attitude of law enforcement authorities to the blogger and his criminal prosecution are biased.

Later, in December last year, a recording of a speech by Yury Karayeu, former Minister of Internal Affairs, was published online. The Interior Ministry has not issued a contradiction that the voice does not belong to Yury Karayeu. The recording confirms that the decision to detain Tsikhanouski has nothing to do with the legal grounds: "If he can't be charged, some charge has to be made up, and he should be put in jail for a long time. Let him do his time!".

Judicial review of the legality of detention and imprisonment does not comply with the international obligations of the state

Siarhei Tsikhanouski has been kept in custody for a year, but such a term is obviously inappropriate. From the moment of his detention and throughout the entire period of the preliminary investigation, the investigating body did not provide any information that he could pose a danger to society, escape or put pressure on the witnesses in the criminal case.

The Belarusian legislation, which provides that detention is authorized by the prosecutor and prolonged by him, does not comply with international human rights standards, according to which only the judiciary has the right to make such decisions.

In Belarusian practice, when appealing against detention and extension of detention in court, the defendant is not present in the court session and thus has no opportunity to present arguments in their defense, and the session itself is held behind closed doors.

As a result, during the year of his imprisonment, Siarhei Tsikhanouski has never appeared in court to resolve issues related to the legality of his detention, which is incompatible with the international obligation of the state to create the necessary conditions for each person arrested on criminal charges to be brought promptly before a judge.

Ill-treatment and torture of the political prisoner in the detention center

From the moment the Belarusian authorities isolated Tsikhanouski, they began to put pressure on him, using the long-known tools of the prison administration in the form of abuse of the right to discipline prisoners and exploiting informal relationships among prisoners to create unbearable conditions.

In June 2020, after the political prisoner was placed in the pretrial detention center in Valadarskaha Street, he was subjected to two penalties. The first penalty was imposed for violations of the routine. The second penalty was imposed for poor cleaning of the cell: according to Tsikhanouski, the detention facility staff found cobwebs in the cell under the three-meter ceiling. For this, Tsikhanouski was placed in a punishment cell for seven days - a cell for solitary confinement, with conditions incompatible with the minimum standards of treatment of prisoners, which falls under the criteria of cruel and inhumane.

Siarhei Tsikhanouski appealed the placement in segregation, but the appeal was considered in a closed session in violation of the principle of publicity. The court refused to satisfy the complaints of the political prisoner. After that Tsikhanouski was placed in segregation for another four days on the grounds of "being unshaven".

During Tsikhanouski's stay in pretrial detention center No. 1 in Minsk, he reported psychological torture used against him. Thus, after leaving the punishment cell, the inmates in the previous cell refused to stay with the political prisoner, as the information that the blogger allegedly had a "low social status" had been spread among them.

Tsikhanouski was told that he had to refute the information about his status, namely to have someone from the criminal underworld confirm that this was not true. At the same time, the obligation to protect the rights of the prisoner lies with the administration of the detention center, and it was up to them to stop such treatment. However, no information on the reaction of the authorities to this incident was voiced.

Human rights activists pointed out that the actions by which moral suffering is inflicted on Tsikhanouski in order to obtain information or a confession from him, to punish him for his activity at the beginning of the election campaign, to intimidate him or his wife, who is a presidential candidate, when such suffering is done at the instigation of officials, with their consent or acquiescence are torture.

The presumption of innocence does not apply to Tsikhanouski

During the investigation of the criminal case, the Investigative Committee published an article "How enmity was fomented: IC shares details of Tsikhanouski's case".

The article claims that Siarhei Tsikhanouski made up and prepared a plan to organize street riots in Minsk during the 2020 presidential election. According to the first deputy head of the Investigative Committee, Aliaksandr Ahafonau, "the accused had been actively preparing and organizing street protests in Belarus for about a year".

The representative of the Investigative Committee also states that "the ideology behind the organization of the riots was incitement of social enmity and discord in the country by Tsikhanouski and his accomplices [...]. It was established that in his YouTube channel 'Country for Life' and Telegram channel of the same name, Tsikhanouski openly called for violence against the representatives of the authorities and law-enforcement agencies, and with his statements incited social enmity and discord in society on the basis of social belonging."

Aliaksandr Ahafonau also said: "However, that's not all. It is known that last May Tsikhanouski obstructed the work of the Central Commission on Elections and National Referenda by threatening the chair of the commission, Lidziya Yarmoshyna, and publicly calling to break into her house".

The official source also gave a premature assessment of the consequences of the actions of the defendant in the criminal case: "Given the fact that the damage caused by the actions of Tsikhanouski and persons close to him amounted to more than three and a half million rubles, the property and funds of the accused were seized, including more than 900 thousand dollars found with Tsikhanouski".

A month and a half later, the state TV channel "Belarus 1" released a propaganda film The Overwhelming Minority: The Downside of Tsikhanouski's Country for Life in which, on behalf of the channel and a representative of the investigative body, a biased assessment of the actions that were attributed to the political prisoner was given, effectively declaring him guilty even before the trial began.

The standard of presumption of innocence provides that all public authorities and the media must refrain from prejudging the outcome of the trial, for example, by refraining from making public statements alleging the guilt of the accused. The essence of the presumption of innocence is that a person is presumed innocent until a court verdict of guilty enters into force.

Demonstrated violation of confidentiality of communication with a counsel

The fact that the confidentiality of Tsikhanouski's conversations with his lawyer was in great doubt became clear in October 2020, when Siarhei Tsikhanouski told his lawyers that at a meeting with Lukashenka in the KGB detention center he was reminded of the contents of his confidential conversation with his lawyer and that he was placed in a punishment cell in June 2020 for what he said in that conversation [about the president's youngest son Mikalai].

Siarhei Tsikhanouski would later write in one of his letters:

"He [Lukashenka - editor's note] said that he wanted to release me after the elections and push me and Sviatlana abroad, but after listening to my conversation with a lawyer in the detention center, where I said that it was impossible to forgive and it was necessary to hold the dictator's family, the 'deputies', and his coterie accountable, he ordered me in a punishment cell".

The confirmation of the "wiretapping" appeared at the end of April 2021: the ONT TV channel showed a fragment of a conversation between Siarhei Tsikhanouski and his lawyer, where the political prisoner spoke about Lukashenka's youngest son Mikalai.

The very fact of recording the conversation with the lawyer, let alone making it public, violates the right to confidential communication with the lawyer, and in fact the right to defense of the accused, which can not be restricted under any circumstances.

Violation of the right to a trial without undue delay or release

The Human Rights Center "Viasna" has pointed out that the lodging of new, more serious charges in order to extend the detention of defendants in politically motivated cases after the expiration of the term of detention on the original charges looks equally questionable from the legal perspective.

On 29 November 2020, Siarhei Tsikhanouski's six-month term of detention expired on charges of committing crimes of minor gravity: organizing actions that grossly violate public order and obstructing the work of the Central Republican Commission for Elections and Referendums (alleged threats to Lidziya Yarmoshyna).

According to these articles, the defendant in the criminal case should be released or sent for trial no later than six months of imprisonment. By that time the authorities have brought a new charge against the political prisoner, under which he can be kept in custody for up to 18 months.

Such actions of the investigating authorities violate the right of a detainee to be tried without undue delay or to be released from custody.

Violation of the right to defense and a fair trial

"Tsikhanouski's case" has already resulted in convictions of some of its defendants, the blogger's associates who worked on the "Country for Life" channel, as well as those who were detained along with the political prisoner on May 29 last year.

The sentence upon blogger Uladzimir Niaronski has already come into force - in early April, the Minsk Regional Court considered his appeal. The commencement of sentences in cases where Siarhei Tsikhanouski appears and the court has a legal assessment of actions, including those of Tsikhanouski, entails prejudicial effect.

A verdict that came into force in another criminal case is binding for the body in charge of criminal proceedings with regard to both the established circumstances and their legal assessment.

Thus, the Homieĺ Regional Court, when considering the case against Tsikhanouski, is obliged to accept, without checking the evidence, the facts previously established by the verdict which entered into legal force in other cases, which were severed into a separate case and were considered by other courts.

It should be reminded that during the consideration of the criminal case of Uladzimir Niaronski the lawyer filed a motion to summon Siarhei Tsikhanouski as a witness to the court. The judge rejected the motion because, as far as he knew, "Tsikhanouski refuses to testify on all counts".

The obligation for the court to apply the rule of prejudice creates the impossibility for the defense to challenge the facts and their legal evaluation during the consideration of the criminal case. In fact, under such conditions, there is no point in proving the innocence of Tsikhanouski under the article on gross violation of public order.

Thus, this part of the charge undermines Siarhei Tsikhanouski's right to defense and the right to be tried in his presence, which is a violation of the standard of a fair trial.

"Pre-trial" conclusions on the accusation of Siarhei Tsikhanouski

Thus, the preliminary investigation into the criminal case of Siarhei Tsikhanouski was accompanied by a violation of a number of his rights, which the Republic of Belarus has committed itself to under the International Covenant on Civil and Political Rights (Covenant):

• The right not to be subjected to torture and ill-treatment (Article 7 of the Covenant)
• The right to liberty and security of person (Articles 9 (1) and 9 (3) of the Covenant)
• The right to a fair trial (Article 14 (1) of the Covenant)
• The presumption of innocence (Article 14 (2) of the Covenant)
• The right to confidential communications with counsel (Article 14 (3) (b) of the Covenant)
• The right to defense (article 14 (3) (d) of the Covenant)
• The right to freedom of expression and peaceful assembly (Arts. 19 and 21 of the Covenant)
• The right to take part in the government of the State through election campaign (Article 25 of the Covenant)

This extensive "set" of violations of fundamental rights of Siarhei Tsikhanouski makes it possible to state that the circumstances of his criminal prosecution are incompatible with human rights standards, including the right to a fair trial, and are clearly associated with a political motivation for persecuting him by the president's authoritarian regime that has lost its legitimacy.