Special proceedings in Belarus explained

When was the institution of special proceedings introduced?

In 2022, Dzmitry Hara, the chairman of the Investigative Committee, initiated the introduction of special criminal proceedings. He cited the necessity to rectify the actions of Belarusians in exile, including calls for sanctions, as the underlying reason.

This instrument enables the completion of investigations and the submission of cases to the court of law in the absence of the accused. It should be noted that the legislation permitted the commencement of proceedings and the hearing of cases in the absence of the accused in court before this.

Leanid Sudalenka thinks that special proceedings are used as a way to oppress and persecute people who left the country after the 2020 events.

How is the institution of special proceedings regulated by law?

On July 20, 2022, the Criminal Procedure Code (CPC) was amended with Chapter 49-3 "Special Proceedings". The Investigative Committee's website now features a "List of individuals who have been summoned to the Prosecutor's Office in connection with the special proceedings that have been initiated against them." Also, a special Telegram channel called "Special Proceedings. Official" was set up, where photos and personal data of people facing special criminal proceedings are posted.

When was the first special proceedings trial held?

The first special proceedings case, which was filed with the court without the defendants being present, started in December 2022 against five admins of the Telegram channel "Black Book of Belarus" that deanonymized people who worked for the regime and maintained the repression. On 18 January 2023, the Minsk City Court announced the verdict: Yanina Sazanovich, Dzmitry Navosha, Daniil Bahdanovich, Valeria Zaniamonskaya, and Volha Vysotskaya were each sentenced to 12 years in prison. They were charged under Part 3 of Article 130 (incitement to social hatred and discord) and Part 3 of Article 203-1 of the Criminal Code (illegal actions with personal data). The KGB put the defendants on the "terrorist list". The trial was held in camera and lasted just over a month.

How many Belarusians have faced special proceedings so far?

As of 7 August 2024, special proceedings have been initiated against 114 individuals. Most of them have already been sentenced in absentia. In all cases, the defendants were convicted.

The maximum sentence of 25 years of imprisonment and a fine of $11,650 was imposed on Vadzim Prakopyeu by the Brest Regional Court on December 26, 2023. He was charged with six offenses. This was the second trial in absentia against him. In June 2023, Vadzim Prakopyeu had already been sentenced in absentia to 25 years in prison, fined $12,210, and stripped of all military ranks.

A maximum fine of $490,000 was imposed on Hanna Krasulina by the Minsk Regional Court on July 1, 2024. She was sentenced to 11 years in prison under four articles of the Criminal Code. 

Have human rights defenders been tried in absentia?

They have. So far, the verdicts have been passed against two Viasna human rights defenders – Dzmitry Salauiou and Leanid Sudalenka.

On March 3, 2023, in the Leninski District Court of Minsk, Judge Maryna Zapasnik announced the verdict in the criminal case against the founder of Viasna and Nobel laureate Ales Bialiatski, his deputy and FIDH Vice-President Valiantsin Stefanovic, the coordinator of the campaign "Human Rights Defenders for Free Elections" and lawyer Uladzimir Labkovich, and human rights defender Dzmitry Salauiou. The latter was sentenced in absentia to eight years of prison, a fine of $38,810, and pecuniary sanctions.

On June 17, 2024, former political prisoner, lawyer, and human rights activist Leanid Sudalenka was sentenced in absentia by the Homieĺ Regional Court. The new criminal case was initiated as part of special proceedings in November 2023. Leanid was charged under parts 1 and 2 of Article 361-4 of the Criminal Code (promoting extremist activity) and sentenced to five years in prison and a fine of $7,950.

Who can be subject to special proceedings?

Article 468-25 of the CPC allows for special proceedings not only for extremist offenses, but also "in other cases" - if justified or consented by the General Prosecutor. For example, in October 2023, the Investigative Committee opened a case of "fraud" in absentia against Viktar Biadrytski, the head of EkoStroyKompleks.

Leanid Sudalenka points out that individuals can be designated as defendants in special proceedings even in the absence of a formal extradition request. This broadens the scope of potential defendants. It is the view of human rights activists that special proceedings are being used as an instrument of political persecution, given that only one of more than a hundred cases is not politically motivated. The Investigative Committee has initiated special proceedings against members of the Coordination Council and individuals who participated in the 2024 Freedom Day demonstrations abroad.

If a person is in Belarus, can they be convicted in absentia?

This procedure allows for trial and sentencing in the absence of the accused, which is not allowed in the ordinary procedure. In light of the above, it is only possible to instigate special proceedings in relation to those who have left Belarus. If the person returns to the country before the case has been decided, they will be subject to normal procedure.

How will people know if special proceedings have been initiated against them?

Special proceedings are preceded by initiating and investigating a criminal case. As part of the investigation, property may be searched or seized at the place of registration, and the defendant's family members may be summoned for questioning. Therefore, it is from their relatives in Belarus that many people learn about the case against them.

You can find out when special proceedings begin by visiting the Investigative Committee's website or following a special Telegram channel. After the investigation is completed, the case is submitted to the prosecutor and then to the court. Information on the date of the court hearing is published on the website of the Supreme Court in the section "Special Proceedings in Criminal Cases".

The defendant shall be deemed to have received notice of the summons and case decisions after the publication on the Court's website.

Where can one see the verdict?

The judicial disposition is now also published on the website of the Supreme Court under "Special Proceedings in Criminal Cases". However, this site is not accessible from abroad. The Viasna human rights defenders monitor various cases, including cases of prosecution in absentia, and publish reports on its website and social media.

Is there any point in appealing a conviction in absentia?

Leanid Sudalenka believes that the sentence in absentia should be appealed. He points out that the 10-day appeal period begins the day after the judicial disposition is published.

Throughout the special proceedings, the defendant may only be informed of the commencement of the proceedings, the date of the trial, the verdict, and the decision on appeal. No further information is given to them.

Sudalenka believes it is important to appeal the in absentia verdict, challenging not the charges, but the application of special proceedings itself, which violates the right to legal defense and a fair trial. After the verdict has come into effect, a cassation and supervisory appeal should be made in order to then file a constitutional complaint under Article 116 of the Constitution to review the special proceedings for compliance with the right to defense and equality of parties.

In absentia proceedings, can a defense counsel be appointed?

In accordance with Article 468-25, paragraph 5, of the CPC, the participation of defense counsel is mandatory from the moment the order for special proceedings is issued. Under Article 468-26 of the CPC, the ruling and all procedural documents are shared with the appointed defense counsel, who is selected through the Territorial Bar Association.

Leanid Sudalenka has observed that appointed defense counsels frequently fail to contact the defendants and agree on a case theory, and even decline to share a copy of the verdict. It is often not possible to ascertain which attorney is involved in a case, as this information is not made public.

As Sudalenka notes, without a consensus on the case theory, a defense counsel cannot mount a defense in court, as they lack the necessary information regarding the defendant's stance on the charges. In practice, defendants in special proceedings are not afforded the opportunity to present their defense through legal counsel.

What are the options for pro se legal representation?

Lawyer Leanid Sudalenka shares his experience of protecting rights in absentee proceedings:

1. Document Request. Upon learning of the commencement of criminal proceedings, one should submit a written request to the relevant criminal prosecution body for copies of the ruling on the initiation of the case and on one's involvement as an accused.

2. Designated Defense Counsel. When special proceedings are initiated, one should attempt to identify the appointed defense counsel. If successful, demand communication and agreement on the case theory.

3. Constitutional Compliance. Submit a request to the court to verify that the legal norms of special proceedings are in alignment with the Constitution. Even if the motion is not granted, it is important to do so.

4. Appeal. Once the judicial disposition is published on the court's website, you have 10 days to file an appeal. For instance, Sudalenka contested the infringement of the right to freedom of expression and freedom from discrimination.

5. Cassation and supervisory appeal. Once the appeal process is complete, submit a supervisory appeal to the Supreme Court in order to exhaust all available legal avenues.

Sudalenka believes that making various motions should be a required component of the process. The dismissal of the appeals and the lack of responses to the petitions indicate a lack of familiarity with the charges, lack of the opportunity to communicate with defense counsel, attend the trial, and are therefore a violation of the right to a fair trial.

What are the consequences of a judgment rendered in absentia?

Lawyer Leanid Sudalenka warns of possible risks in connection with the execution of the sentence in absentia:

1. Imprisonment. A conviction in a special proceeding authorizes the detention of the convicted person upon their return to Belarus and enables declaring them as wanted, including the submission of extradition requests to other countries. This should be kept in mind when visiting different countries. There are also possible risks of deportation, forced airplane landing, kidnapping, and others.

2. Loss of nationality. A conviction that has come into force may result in the loss of nationality, including that obtained by birth. The Law on Citizenship of the Republic of Belarus provides for this possibility for persons who are recognized as guilty of extremist activity or causing serious damage to the interests of the country and who are abroad. To date, no such cases have been reported, although threats from the authorities continue.

3. Recovery of penalties. The articles of the Criminal Code enabling special proceedings carry significant financial penalties, with fines reaching up to 50,000 base values (approximately $612,000 in 2024). This may include the recovery of damages and court costs, including the cost of appointed defense counsel. Upon the effective date of the judgment, enforcement proceedings are initiated. These proceedings entail the sale of the seized property, including jointly acquired property in the marriage until the debt is repaid in full.

The Viasna Legal Team offers comprehensive legal assistance, including the drafting of petitions for the release of impounded property and related division of marital property, as well as complaints against the actions of executors.

In place of conclusions

"The special criminal proceedings in Belarus do not align with the constitutional guarantees of a fair trial and the minimum fair trial guarantees outlined in the International Covenant on Civil and Political Rights. Therefore, all subsequent consequences, including the verdict in absentia, putting a person on a wanted list, loss of nationality, seizure and confiscation of property to recover fines and penalties, are also unlawful. The Report of the High Commissioner to the UN Human Rights Council on the human rights situation of March 15, 2024 states that a crime against humanity in the form of persecution has been committed in Belarus. The government has engaged in an organized, sustained, and systematic campaign of violence, repression, and punishment to promote a policy of attacking the civilian population to silence, suppress, obstruct, and contain the expression of dissenting opinions in public spaces and privately," summarises Leanid Sudalenka.