Statement of human rights defenders of Belarus on recognition of 15 new political prisoners

Joint statement by the Belarusian human rights community.

September 6 , 2023

We, representatives of the human rights community of Belarus, note that the authorities misuse criminal law and apply excessively harsh penalties to protesters and dissenters, including long-term imprisonment for acts that did not entail serious consequences. 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.

In international law, "terrorism" normally denotes acts of violence against civilians for political or ideological purposes [1].

In the Declaration on Measures to Eliminate International Terrorism (resolution 49/60), the General Assembly stated that terrorism is “acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes.”

According to Security Council resolution 1566 (2004) 2004, criminal acts that should be prevented and punished, regardless of whether they are justified by considerations of a political, philosophical, ideological, racial, ethnic, religious, or other similar nature, have three distinctive features:

- are committed, including against civilians, with the intent to cause death or serious bodily injury, or taking of hostages;

- are committed 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;

- constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.

Criminal acts that lack these characteristics are not terrorist in nature and must be qualified as crimes against public administration (threat of violence against government officials) or crimes against property (for example, deliberate destruction or damage to property of others), and punished proportionately to the gravity and the public danger of the offense.

We are aware of the detention on arbitrary charges of committing a terrorist act with aggravating circumstances under Article 289 Part 3 of the Criminal Code of Maksim Lapatsin, Andrei Lapatsin, Siarhei Kastryzh, Vadzim Patsenka in connection with an attack by unknown persons on a combat aircraft of the armed forces of the Russian Federation based at a military airfield in Belarus.

We also note that criminal prosecution for incitement of social enmity or discord (Article 130 of the Criminal Code) is used by the investigative authorities and the courts 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. It is also unacceptable to use criminal law to suppress sometimes excessively harsh statements against aggressors in connection with the full-scale war unleashed by the Russian Federation in Ukraine.

We are aware of the conviction of the following persons:

Yury Tashkinau to three years of imprisonment in a penal colony under Part 1 of Article 130 (Inciting other social enmity or discord), Article 361-2 of the Criminal Code (Financing the activities of an extremist formation) for negative statements against state propagandists, anti-war statements, donations to support protesters in Belarus;

Aliaksandr Skatarenka to deprivation of liberty in a penal colony under Part 1 of Article 130, Article 391 (Insulting the judge) for statements on the Internet;

Siarhei Nikitsin to six years of imprisonment in a penal colony under Article 364 (Threat of violence against an employee of the internal affairs bodies), Article 369 of the Criminal Code (Insulting a representative of the authorities), Article 368 (insulting A. Lukashenka), Article 366 (Threat against an official performing official duties or another person performing a public duty), Article 130, Article 391, Article 188 (Slander), Article 389 of the Criminal Code (Threat against a judge or a people's assessor) for statements on the Internet;

Mikhail Miakeka to six years of imprisonment in a correctional colony under Parts 1 and 3 of Article 130, Part 1 of Article 342 (Organization and preparation of actions grossly violating public order or active participation in them), Part 2 of Article 366 (Threat against an official), Part 2 of Article 367 of the Criminal Code (Slander against A. Lukashenka) for comments on the Internet;

Hanna Skryhan to two years of imprisonment in a correctional colony in a closed court session under Article 130 of the Criminal Code;

Anatol Sashunou to four years of imprisonment in a correctional colony under Article 130, Part 1 of Article 368, Article 369 of the Criminal Code for comments on the Internet criticizing the actions of law enforcement agencies and A. Lukashenka.

Detention is unreasonably applied to persons involved in politically motivated criminal cases in the absence of sufficient grounds for the use of a preventive measure restricting 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 execution of the judgment. That sentence applies to persons awaiting trial on criminal charges, that is, after the defendant has been charged, but a similar requirement prior to charging results from the prohibition of arbitrary detention […]. It should not be the general practice to subject defendants to pretrial detention. Detention pending trial must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. The relevant factors should be specified in law and should not include vague and expansive standards such as “public security”. […] Neither should pretrial detention be ordered for a period based on the potential sentence for the crime charged, rather than on a determination of necessity.”

We are aware of the detention of the following persons:

Ivan Yanchuk under Article 130 of the Criminal Code for transmitting data to protest Internet resources;

Zhanna Volkava under Article 130 of the Criminal Code for statements on the Internet;

Veranika Nikolkina under Articles 130, 342 of the Criminal Code for statements on the Internet against the Belarusian authorities and the Russian military;

Siarhei Leaniuk under Article 130 of the Criminal Code for comments on the Internet.

Andrei Parotnikau, analyst and head of the analytical portal Belarus Security Blog, security expert, was also detained on charges of treason under Part 1 of Article 356 of the Criminal Code. The circumstances of the case set out in the propaganda documentary of a state TV channel lead to a firm belief in the absence of this offence in the actions of the accused. The investigation of a criminal case can be carried out smoothly  without keeping A. Parotnikau detained.

Assessing these cases of criminal prosecution, we conclude that there is in each of them a political motive for prosecuting the accused. We believe that decisions on the use of preventive measures and judicial decisions were made for political reasons in violation of the rule of law.

We emphasize once again that the nature of the actions of the accused was often the result of systematic, widespread violations of human rights, the lack of freedom of expression, and was caused by the lack of investigation of crimes against peaceful protesters and other victims of ill-treatment and torture, disappointment in the ability of the authorities to use the force of law to protect the violated rights of citizens, the lack of a fair trial and conditions for a democratic and constitutional change of power in fair elections.

We once again remind that the consideration of politically motivated criminal cases in closed or effectively closed court sessions, in the absence of the public, observers, and independent press, in an environment of intolerance towards the activities of human rights organizations, defenders, and independent journalists, grossly violates the procedural rights of the accused and critically undermines the assessment of the authenticity, sufficiency, and admissibility of any evidence of the accusation.

According to the Guidelines on the Definition of Political Prisoners, a "political prisoner" is a person deprived of liberty if, for political reasons, he or she is persecuted for at least one of the following reasons:

1. 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;

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

We, representatives of the Belarusian human rights community, declare the recognition of Yury Tashkinau, Aliaksandr Skatarenka, Siarhei Nikitsin, Mikhail Miakeka, Hanna Skryhan, Anatol Sashunou, Ivan Yanchuk, Zhanna Volkava, Veranika Nikolkina, Siarhei Leaniuk, Andrei Parotnikau, Maksim Lapatsin, Andrei Lapatsin, Siarhei Kastryzh, Vadzim Patsenka as political prisoners. In this regard, we demand from the Belarusian authorities:

• review the sentences passed against the stated political prisoners while exercising the right to a fair trial and eliminating the factors that affected the qualification of their actions, the type, and severity of punishment;

• release these political prisoners, applying 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

Barys Zvozskau Belarusian Human Rights House

[1] https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet32ru.pdf