Vital Melnik, Aliaksandr Zhukau, and Ihar Kunhurtsau recognized as political prisoners

Joint statement of the Belarusian human rights community

30 December 2022

We, representatives of the human rights community of Belarus, emphasize that the authorities misuse criminal law and apply excessively harsh penalties to protesters and dissenters, including long-term imprisonment for minor infringements. In particular, the clearly unwarranted classification of protesters’ actions as terrorism is inconsistent with what should be included in this term, according to international organizations.

Pursuant to Security Council Resolution 1566 (2004), acts that should be prevented and punished, regardless of whether justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious, or other similar nature, are characterized by the following:

• criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages,
• with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population, or compel a government or an international organization to do or to abstain from doing any act,
• which constitute offenses within the scope of and as defined in the international conventions and protocols relating to terrorism.

We are convinced that in the lack of these characteristics, unlawful acts are not terrorism and should be qualified as crimes against property with penalties corresponding to the gravity and public danger of the deed.

The consideration of politically motivated criminal cases in closed or de facto closed court sessions in the absence of the public, observers, and independent press grossly violates the procedural rights of the defendants and reduces the possibility to assess the credibility, sufficiency, and admissibility of any prosecution evidence.

We are aware of the conviction in a closed trial on 22 December 2022 of Vital Melnik under part 4 of Art. 309 (malicious damage of transport vehicle or line of communication); part. 2 Art. 295 (unlawful acts involving firearms, ammunition, and explosives); part 1 Art. 368 (insult of Lukashenka); part 3 Art. 295 (repeated or complex unlawful acts involving firearms, ammunition, and explosives); and part 1 Art. 289 (an act of terrorism) to 16 years of imprisonment and a fine of $3,560. The charges were related to the damage to the railway infrastructure to prevent the movement of military cargo of the Russian armed forces across the territory of Belarus.

We also note that criminal prosecution for incitement of social enmity or discord (Article 130 of the Criminal Code) is used selectively and discriminatorily with the sole aim to protect the institutions of power. We consider the classification of government officials, police officers, military personnel, etc. as social groups subject to protection in this context to be unjustified.

We insist on the inadmissibility of applying the law which protects representatives of the authorities, law enforcement officers, and judges from threats in connection with the legitimate performance of their official duties to punish people who have spoken out due to the flat violation of the Constitution and the law by representatives of state institutions, the involvement of government officials, prosecutors, and judges in torture and in creating an atmosphere of impunity for torture and other gross human rights violations, including with constituting elements of crimes against humanity. In particular, Aliaksandr Zhukau and Ihar Kunhurtsau were sentenced under Article 130 of the Criminal Code to two and one year and six months in prison, respectively, for criticizing government officials.

We reiterate that the nature of the acts of the accused was conditioned by systematic and widespread human rights violations, lack of freedom of expression, refusal to investigate crimes against peaceful protesters and other victims of abuse and torture, frustration with the authorities' ability to use the law to protect violated rights of citizens, lack of fair trial and conditions for a democratic and constitutional change of power in honest elections.

According to clause 3.2 of the Guidelines on Definition of Political Prisoner, a political prisoner is a person deprived of liberty provided there is at least one of the following factors bundled with political motives for persecution:

• (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;
• (d) the person has been detained in a discriminatory manner as compared to other persons.

We, representatives of the Belarusian human rights community, declare that Vital Melnik, Aliaksandr Zhukau, and Ihar Kunhurtsau are recognized as political prisoners. In this regard, we demand that the Belarusian authorities:

• review the sentences imposed on these political prisoners, while respecting the right to a fair trial and addressing the factors that influenced the classification of the acts, the type and amount of penalty;
• release the said political prisoners by applying other measures to ensure their appearance in court;
• immediately release all political prisoners, review politically motivated sentences, and end political repression against the Belarusian population.

Viasna Human Rights Center;

Belarusian PEN;

Legal Initiative;

Barys Zvozskau Belarusian Human Rights House.