6 new names on list of political prisoners

Statement by the human rights community of Belarus

December 21, 2021

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. It also seems unreasonable to selectively apply criminal norms protecting personal data solely in order to prevent the dissemination of information about representatives of government agencies suspected of involvement in gross violations of rights and freedoms. Furthermore, application of those norms in conjunction with arbitrarily imputed crime against the peace and security of mankind (according to Art.130 of the Criminal Code) does not seem legitimate, either.

In addition, we note that imprisonment of political opponents of the regime is used by the authorities in violation of the right to a fair trial, other rights and freedoms guaranteed by the International Covenant on Civil and Political Rights, and selectively in comparison with other persons.

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.”

The case of Eduard Babaryka who was detained on June 18, 2020, is an alarming example of abusing remand in custody as a preventive measure. Eduard Babaryka, after having remained in custody for tax evasion for the maximum possible term, a year and a half, became a suspect under a number of other articles of the Criminal Code. This practice used against political prisoners is a violation of the right to a fair trial and constitutes an unacceptable abuse of criminal procedural mechanisms for the purpose of political repression. 

In particular, we know about detention of the following persons:

1. Siarhei Petrushenka, charged under Articles 130 and 352 of the Criminal Code (deliberate actions aimed at inciting other social enmity and discord on the basis of a different social belonging, committed by a group of persons, etc.) for leaking information about law enforcement officers to a Telegram channel; in custody since June 2021;
2. Andrei Harun, charged under Part 3 of Art. 130 of the Criminal Code for leaking information about law enforcement officers to a Telegram channel;
3. Tatsiana Karpovich, charged under Art. 130 of the Criminal Code, for leaking information about law enforcement officers and judges to a Telegram channel;
4. Ruslan Kuzmich, charged under Part 1 of Article 361-4 (facilitating extremist activities) for publishing a commentary under the photo of a man with a weapon in his hands: “Ok, it’s time to get out the weapons. Long live Belarus!” In our opinion, in this case, imprisonment as a measure to restrict the right to freedom of expression is disproportionate and unnecessary;
5. Ryhor Kastusiou, charged under Article 357 of the Criminal Code for plotting or other actions committed with the aim of seizing state power, when the circumstances of the case, as well as age and state of health of the detained politician, indicate that his remand in custody for such a long time is not at all necessary.
6. We also know about the conviction in a closed court session of Andrei Ausievich under Art. 130 (Incitement to hostility or discord), Art. 361 (Calls for actions aimed at causing harm to the national security of Belarus), Art. 369 (Insulting a government official) of the Criminal Code to three years and six months in a correctional facility for comments on the Internet.

The persons mentioned above did not call for violent acts on national, ethnic, racial or religious grounds. Their actions did not entail serious consequences for the victims.

We emphasize once again that in a number of the above cases the actions were the result of provocations, as well as numerous and widespread human rights violations, lack of freedom of expression, lack of conditions for a democratic and constitutional change of government in fair elections, distrust of the state’s law enforcement system, including failure to properly investigate the numerous crimes against peaceful protesters and other victims of ill-treatment and torture, and disappointment in the authorities’ ability to use the force of law to protect violated rights.

Assessing all these cases of prosecution, we conclude 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. 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 that further detention of Siarhei Petrushenka, Andrei Harun, Tatsiana Karpovich, Ruslan Kuzmich, Ryhor Kastusiou and Andrei Ausievich is politically motivated, and the detainees are therefore political prisoners.

In this regard, we call on the Belarusian authorities to:

• review the measures and procedural decisions taken against these political prisoners, respect their right to a fair trial and eliminate the factors that influenced the decision to enforce pre-trial detention and sentence these individuals to imprisonment;
• immediately release all political prisoners and end political repression in the country.

Human Rights Center “Viasna”

Lawtrend

PEN Belarus

Belarusian Helsinki Committee

“Legal initiative”