Сlosed trial grossly violates procedural rights of the accused on political grounds

Statement by the human rights community of Belarus

July 6, 2022

We, representatives of the human rights community in Belarus, note that criminal liability 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.

We also 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.

A closed trial in these cases grossly violates the procedural rights of the accused and reduces to a minimum the assessment of the credibility, sufficiency and admissibility of any evidence for the prosecution.

We are aware of the conviction of:

1. Mr. Aliaksandr Volski sentenced to three years of restricted freedom in an open-type penitentiary under Article 130 of the Criminal Code for a comment on a social network. The content of the comment is not provided in the verdict, however, it is known that it concerned the illegal actions of Interior Ministry officers against peaceful protesters. Mr. Volski began serving his sentence;
2. Mr. Yury Zhukouski sentenced to eight years of imprisonment in a penal colony under Part 1 of Article 293 of the Criminal Code (organization of riots), Part 1 of Article 342 of the Criminal Code (disorderly conduct), Part 1 of Article 130 of the Criminal Code (inciting hatred) and Part 1 of Article 368 (insulting the president) for calls on the Internet to participate in protest actions, resistance to the authorities, participation in a peaceful assembly and insulting Lukashenka;
3. Mr. Yauhen Nareika sentenced in a closed-door hearing to four years of imprisonment in a penal colony under Part 1 of Article 366, Part 1 of Article 342, Part 1 of Article 130 of the Criminal Code for his comments regarding employees of internal affairs bodies;
4. Mr. Aliaksandr Novikau sentenced in a closed-door hearing to two years of imprisonment in a penal colony under Part 1 of Article 130 and Part 1 of Article 179 of the Criminal Code for publishing articles on his website, the content of which was ‘aimed at revising world history, the results of the war, and discrediting the victory in the Great Patriotic War of 1941–1945’. The court ruling also states that there were “signs of the rehabilitation of Nazism, as well as hostility to groups respecting the history of the Soviet period”. Mr. Novikau was also convicted of leaking personal data of employees of internal affairs bodies, namely their names and places of service;
5. Mr. Viktar Karnienka sentenced in a closed-door hearing to three and a half years of imprisonment in a penal colony under Part 1 of Article 368 and Part 1 of Article 130 of the Criminal Code for insulting Mr. Aliaksandr Lukashenka and ‘inciting other social hatred’;
6. Mr. Yauhen Ivonchyk under Article 369, 130 of the Criminal Code in the ‘Zeltser case’;

A number of court decisions were made for political reasons in violation of the fundamental principles of fair justice. The selective imposition of harsh sentences has substantially worsened the situation of the accused in comparison to other convicted persons in a similar situation without a political motive:

1. Mr. Yury Basalai was convicted under Article 369 of the Criminal Code of insulting an employee of internal affairs bodies and under Part 1 of Article 328 of the Criminal Code of possession of a small amount of wild cannabis he collected and sentenced to two and a half years of imprisonment;
2. Mr. Viktar Ulasenka was sentenced to four years of imprisonment in a penal colony under Articles 368 and 369 of the Criminal Code, Part 1 of Article 328 of the Criminal Code for insulting a government official and Mr. Aliaksandr Lukashenka, as well as for possessing an amount of marijuana for personal use;

Meanwhile, criminal prosecution for rude comments on social networks is a disproportionate restriction on freedom of expression and the courts' general practice is to impose criminal penalties under Article 328(1) of the Criminal Code on a first-time offender in the absence of a political motive, without imprisonment and applying other criminal penalties.

Human rights defenders also know about the referral to coercive psychiatric treatment of Mr. Daniil Zharyn, who was convicted under Part 1 of Article 289 (an act of terrorism) and Article 130 (inciting hatred) of the Criminal Code. Mr. Zharyn was accused of setting fire to the doors of the Interior Ministry Institute. The qualification of this action as an act of terrorism was obviously excessive. The court hearing was held behind closed doors, therefore, there is no sufficient evidence of the public danger of Mr. Zharyn requiring his isolation.

We emphasize once again that in a number of the abovementioned cases the nature of the acts of the accused was the result of numerous and widespread human rights violations by the authorities, the lack of freedom of expression, and caused by the lack of investigation of crimes against peaceful protesters and other victims of cruel treatment and torture, disappointment with the authorities’ reluctance to use the force of law to protect citizens’ violated rights in the absence of conditions for a democratic and constitutional change of government in fair elections.

Having studied these cases of criminal prosecution, we came to the conclusion 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:

1. 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;
2. the person has been detained in a discriminatory manner as compared to other persons.

We, the representatives of the Belarusian human rights community, declare that the further imprisonment of Mr. Aliaksandr Volski, Mr. Yury Zhukouski, Mr. Yauhen Nareika, Mr. Aliaksandr Novikau, Mr. Viktar Karnienka, Mr. Yauhen Ivonchyk, Mr. Yury Basalai, Mr. Viktar Ulasenka, Mr. Daniil Zharyn is politically motivated, and they themselves are political prisoners. . In this regard, we call on the Belarusian authorities to:

• to review the measures of restriction and sentences passed against the mentioned political prisoners while exercising the right to a fair trial and eliminating the factors that affected the qualification of actions, the type and amount 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

Human Constanta

Legal initiative

Lawtrend

Belarusian Helsinki Committee

PEN Belarus

Belarusian Association of Journalists