HRDs: Authorities abuse criminal law by passing harsh sentences on protesters

Statement by the human rights community of Belarus

July 22, 2022

We, representatives of the human rights community in Belarus, note that the authorities are abusing the possibilities of the criminal law and applying excessively harsh penalties to protesters, including long-term imprisonment for acts that did not entail serious consequences. In particular, the qualification of the protesters' actions as terrorism clearly does not correspond to how international organizations believe this term should be understood.

According to Security Council resolution 1566 (2004) 2004, criminal acts that under no circumstances are justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, must 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 offenses within the scope of and as defined in the international conventions and protocols relating to terrorism.

We are convinced that criminal acts that lack these characteristics are not terrorist in nature and must be qualified as crimes against property and punished correspondingly to the gravity and public danger of the offense.

A closed trial in politically motivated 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:

Mr. Andrei Padniabenny, who was sentenced in a closed-door trial to 15 years in a penal colony under Part 1 of Article 14 and Part 3 of Article 218 (attempted intentional destruction or damage to property) for attempting to set fire to a truck crane wheel in 2019; under Part 1 of Article 361-1 (creation of an extremist formation) for creating and administering a Telegram channel; under Part 1 and Part 2 of Article 289 (an act of terrorism) for setting fire to the car of the first deputy head of the regional Penitentiary Department, puncturing the wheels of 39 trolleybuses.

Mr. Dzmitryi Neshta under Part 1 of Article 295-3 of the Criminal Code (illegal actions in relation to objects which action is based on the use of combustible substances) and Part 1 of Article 289 of the Criminal Code (an act of terrorism) of setting on fire with three ‘Molotov cocktails’ cars belonging to officers of one of the military units.

We 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 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. In particular:

Mr. Anatol Yaskevich was convicted under Part1 of Article 130 of the Criminal Code (incitement of hatred) for posting on a social network and Tik-Tok video messages with the news about the crash of a military plane in Baranavičy and the death of two pilots and under Part 2 of Art 368 of the Criminal Code for insulting in his video messages Mr. Aliaksandr Lukashenka and sentenced to 4.5 years of imprisonment s in a penal colony.

Mr. Aliaksandr Frantskevich was convicted under Article 364 of the Criminal Code (violence or threat of violence against an employee of the internal affairs bodies); Article 365 of the Criminal Code (interference in the activities of a police officer); Part 1 of Article 366 of the Criminal Code (violence or threat against an official performing official duties or another person performing a public duty); Part 1 of Article 368 of the Criminal Code (insulting the President of the Republic of Belarus); Article 369 of the Criminal Code (insulting a government official); Article 389 (death threat to a judge); Article 391 of the Criminal Code (insulting a judge for his comments in Telegram channels) based on his messages in Telegram channels. He was sentenced to 4.5 years of imprisonment in a penal colony.

Mr. Andrei Dzenisenka was convicted under Article 130 (incitement of hatred), Part 3 of Article 361 of the Criminal Code (calls for restrictive measures/sanctions, other actions aimed at harming the national security of the Republic of Belarus) based on his messages in Telegram channels and sentenced to 4 years of imprisonment.

Mr. Ivan Hubchyk was convicted under Article 130 of the Criminal Code (inciting hatred) based on videos posted on TicToc, where he speculates on the causes of the authorities' brutality, appeals to the authorities to think about the future, and appeals to protesters not to use excessive violence, especially against low-level members of the law enforcement agencies. Mr. Hubchyk was sentenced to 4.5 years of imprisonment.

Having studied these cases of criminal prosecution, we concluded that all of them are politically motivated.

The court decisions were made for political reasons in violation of the fundamental principles of fair justice. The persons mentioned above did not call for violent acts on national, ethnic, racial, or religious grounds. Their actions did not and could not entail serious consequences for the victims.

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. As a rule, the comments were written in connection with information about the illegal actions of Interior Ministry officers against peaceful protesters.

According to the Guidelines on the Definition of Political Prisoners, a person deprived of liberty is to be regarded as a political prisoner, if, along with the political motivation of their case, at least one of the following criteria is observed:

• 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, the representatives of the Belarusian human rights community, declare that Mr. Andrei Padniabenny, Mr. Dzmitryi Neshta, Mr. Anatol Yaskevich, Mr. Aliaksandr Frantskevich, Mr. Andrei Dzenisenka, and Mr. Ivan Hubchyk are recognized as political prisoners. In this regard, we call on the Belarusian authorities to:

• to review the 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

PEN Belarus

Legal initiative

Barys Zvozskau Belarusian Human Rights House