Observatory requests to implement decision of the UN Working Group on Arbitrary Detention on the case of Ales Bialiatski

The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), addresses the Belarusian Minister of Foreign Affairs with a request to implement Decision A/HRC/WGAD/2012/39 of the United Nations Working Group on Arbitrary Detention on the case of human rights defender Ales Bialiatski.

OPEN LETTER - THE OBSERVATORY

BELARUS: Open Letter to the Minister of Foreign Affairs 

Mr. Uladzimir Makei
Minister of Foreign Affairs
Ministry of Foreign Affairs
ul. Lenina, 19
Minsk 220030
Republic of Belarus

By Email: mail@mfa.gov.by

Paris-Geneva, May 16, 2013

Re: Request to implement Decision A/HRC/WGAD/2012/39 of the United Nations Working Group on Arbitrary Detention on the case of human rights defender Ales Bialiatski

Dear Minister,

At its 64th session, the United Nations (UN) Working Group on Arbitrary Detention (WGAD) adopted Decision A/HRC/WGAD/2012/39, published on November 23, 2012, in which it found in particular that the detention of Mr. Ales Bialiatski, President of the Human Rights Centre (HRC) “Viasna” and FIDH Vice-President, was arbitrary, “being in contravention of Article 20, paragraph 1, of the Universal Declaration on Human Rights (UDHR) and Article 22 of the International Covenant on Civil and Political Rights” (ICCPR). The WGAD emphasised that “the adequate remedy is to release Mr. Bialiatski and accord him an enforceable right to compensation pursuant to Article 9, paragraph 5, of the [ICCPR]”.

On March 5, 2013, during the 22nd session of the UN Human Rights Council (HRC) held in Geneva, the Delegation of the Republic of Belarus challenged the authority of the WGAD to investigate and adopt an opinion on the detention of Mr. Ales Bialiatski and described the investigation and opinion as an interference into the internal affairs of Belarus.

The Observatory recalls that UN Special Procedures (including the WGAD) are subsidiary bodies of the UN. They were set up by and report back to the UN HRC. The members of the WGAD are selected by a Consultative Group appointed by the UN HRC, on the basis of their “expertise and experience in the area of the mandate, integrity, independence and impartiality”[1]. Their “legal opinions”, such as the above-mentioned decision on Mr. Ales Bialiatski, are UN decisions. The Republic of Belarus as a UN Member State has an obligation to cooperate with all UN bodies and mechanisms (as provided for in Article 56 of the UN Charter), and it is also bound by treaties, in particular the ICCPR, which Belarus ratified in 1973.

WGAD is entrusted by the Human Rights Council with the mandate to investigate “alleged cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration or in relevant international legal instruments accepted by the States concerned”[2].

The WGAD assesses information collected under an adversary procedure in a transparent manner and uses a standard of “convincing evidence” to determine whether a detention is arbitrary or inconsistent with the applicable international standards or whether the information available is not sufficient to make such determination. The working practices of the WGAD were approved by the UN Commission on Human Rights on April 15, 1997[3].

Being an independent mechanism[4], it has the discretion to act on any information or individual case it deems appropriate. The Observatory emphasises that the WGAD has acted in full compliance with its prerogatives. In that respect, we recall that the WGAD “evaluate[s] all information in the light of internationally recognized human rights standards relevant to their mandate, and of international conventions to which the State concerned is a party[5]”.

In that case, the WGAD held that laws in forced applied to prosecute and detain Mr. Bialiatski contradicted international human rights standards binding the Republic of Belarus.

In light of all these elements, the Observatory respectfully urges you to comply with the aforementioned international obligations and, more particularly, to implement Decision A/HRC/WGAD/2012/39 of the UN WGAD on the case of Mr. Ales Bialiatski, in particular by:

- releasing him immediately and unconditionally, and accord him an enforceable right to compensation (paragraph 53 of the Decision) ;

- conforming with the “negative obligation “of Belarus “not to interfere with the founding of associations or their activities”, but also with the “positive obligation” of the State “to ensure and provide […] measures such as facilitating associations' tasks by public funding or allowing tax exemptions for funding received from outside the country” (paragraph 48 of the decision).

Finally, the Observatory takes note with appreciation of the Republic of Belarus' commitment to cooperate in a constructive manner with the Human Rights Council and its thematic special procedures and urges it to extend a standing invitation to all UN Special Procedures and invite the UN Special Rapporteur on the situation of human rights defenders as manifestations of this significant commitment.

We hope that you will take all these elements into account and remain at your disposal for further discussions,

Yours sincerely,
 
Souhayr Belhassen
President of FIDH

Gerald Staberock
Secretary General of OMCT

[1] See CHR/RES/2004/76 “Human rights and Special Procedures”; Report of the inter-sessional open-ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights (E/CN.4/2000/112, paras.7 and 10); and the Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials and Experts on Mission (ST/SGB/2002/9).

[2] See CHR/RES/1991/421, March 1991, 103, para. 2.

[3] See E/CN.4/RES/1997/50, April 15, 1997.

[4] See HRC Resolution, UN Document HRS/RES/5/2, June 18, 2007 and Article 3(a) of the Code of Conduct.

[5] See Article 6(c) of the Code of Conduct.