Will the pardoned political prisoners be granted expungement?

Since the third of July, at least 78 political prisoners have been released from places of imprisonment in Belarus. Pro-government activist Yury Vaskrasenski said that 900 more petitions were being considered. He also said that those pardoned are excluded from the lists of "extremists and terrorists." However, it is not known on what terms political prisoners are released, since the relevant decrees are not public. Former political prisoner and Viasna human rights defender Leanid Sudalenka speaks about the specifics of pardoning and figures out whether the pardoned people will be excluded from the lists of "extremists and terrorists" and how the Interior Ministry can monitor their "law-abiding behavior."

Aleh Zykun during his release. Screenshot from the ONT channel

The right of convicted persons to pardon is constitutional. It is stipulated in Article 84 of the Constitution. Article 96 of the Criminal Code says that the President has the right to pardon anyone convicted in the country, including those sentenced to death. And such a case happened quite recently: Lukashenka pardoned German citizen Rico Krieger, who was sentenced to death.

Despite the fact that after a pardon the person is released, their rights continue to be limited, for example, the right to be elected.

The pardon process is regulated by the Provision on the Procedure for Pardoning Convicted Persons, Expungement of the Records of Persons who Contributed to Solving Crimes and the Elimination of the Consequences of their Commission (approved by Presidential Decree No. 250 dated 03.12.1994, as amended by Decree No. 122 dated 03/26/2021) [hereinafter — the Provision on Pardon].

The law allows for expungement upon pardon. On the basis of this law, a person convicted of a crime may be fully or partially released from punishment, both main and additional, or released from punishment on probation, or the unserved part of the punishment may be replaced by a milder punishment, or they may be granted expungement (Article 96 of the Criminal Code).

The Provision on Pardon also refers to the expungement of a pardoned person's record. Paragraph 5 states that the pardon of convicts is carried out in the form of:

• replacement of the death penalty with life imprisonment;

• full or partial release from serving both the main and additional punishment;

• replacement of the punishment or its unserved part with a milder punishment;

• release from punishment on probation;

• expungement of criminal record.

Paragraph 29 of the Provision on Pardon stipulates that information on the decisions of the head of State on pardoning convicts may be covered in the media. As a rule, this is a procedure that is closed to the public. Of the 78 pardoned political prisoners in the last two months, the names of more than half of them are unknown to the public. In addition, the decrees themselves are not published, so the pardon procedure is not fully known.

However, it is noted that all pardoned political prisoners "admitted guilt, sincerely repented of what they had done and committed themselves to lead a law-abiding lifestyle, and the Ministry of Internal Affairs will provide control over the fulfillment of such obligations according to the instructions the head of state."

Vaskrasenski said that those pardoned were being excluded from the lists of "extremists" and "terrorists," but there has been no confirmation of this yet. As the human rights defender notes, it is clear from the single public decree on pardon in 2002 that the pardoned foreigner's record was not expunged.

"Moreover, in Lukashenka's messages about the pardon, we see a direct instruction for the Ministry of Internal Affairs to monitor the law-abiding behavior of pardoned political prisoners. This is the evidence that the criminal record of political prisoners is not expunged when they are pardoned," says Leanid Sudalenka.

According to the human rights defender, depending on the categories of crimes the pardoned prisoners were convicted for, the Interior Ministry will monitor them for two or five years. We do not know the cases of the expungement of criminal records through the court by former political prisoners.

According to articles 97-98 of the Criminal Code, a criminal record may be expunged or expire. For a less serious crime, the criminal record expires after two years; for a serious one, after five years. Less serious crimes include intentional crimes with a maximum penalty of imprisonment for a period not exceeding six years, and serious crimes, for a period not exceeding twelve years.

The court may expunge a criminal record if the convicted person leads a law-abiding lifestyle and at their request, but not earlier than when half of their term has been served.

"Even after the expiry or expungement of criminal records, the Ministry of Internal Affairs will continue to monitor former political prisoners"

Since 2022, there is the so-called "list of extremists" in Belarus (officially, the "list of citizens of the Republic of Belarus, foreign citizens, or stateless persons involved in extremist activities").

This list includes citizens convicted in connection with the commission of criminal offenses of an extremist nature. Citizens included in the specified list can not have their criminal record expired and within five years after its expiry they can not:

• engage in activities related to the sales of drugs, weapons, explosives;

• teaching activities, publishing activities;

• hold public office, serve in the military.

Financial transactions of such citizens are subject to special control in order to prevent the legalization of proceeds from crime and the financing of extremist activities.

The reason for excluding citizens from the "list of extremists" is the cancellation of the sentence, the death of the citizen, or the expiration of five years from the date of expiry or expungement of a criminal record (Part 6 of Article 18 of the Law On Countering Extremism).

"It means that even after the expiry or expungement of criminal records, the Ministry of Internal Affairs will continue to monitor former political prisoners for five more years," the human rights activist says.

"Limits on leaving the country, obligation to report to the inspection"

According to articles 195-196 of the Penal Enforcement Code, persons who have served a sentence or been released from punishment and have a criminal record fulfill obligations and enjoy rights with restrictions defined by legislative acts. Persons convicted after serving a sentence for a serious or especially serious crime, persons convicted two or more times before being sentenced to imprisonment for any intentional crimes, are subject to preventive supervision by the internal affairs body while their criminal record is valid.

According to Part 2 of Article 81 of the Criminal Code, while a criminal record is valid, a person is under preventive supervision and, in this regard, is obliged to notify the internal affairs body in advance of a change of residence, departure to another area for a period of more than one month, to appear at a specified place upon summons and, if necessary, provide explanations regarding their behavior and lifestyle.

According to Article 28 of the Law On the Basics of Crime Prevention Activities, preventive registration is the monitoring of the behavior of a citizen in order to prevent them from preparing or committing offenses and exerting preventive influence on them.

"For example, I served time under the Article 342 of the Criminal Code, which belongs to the category of less serious crimes. Thus, preventive supervision is not applicable to me, but preventive registration has been applied.

After being registered with the penal enforcement inspectorate, I was restricted from leaving the country, I was required to report to the inspectorate regularly, at least once a week, to carry out preventive measures, I was regularly checked by employees of the inspectorate at my place of residence with a bodycam turned on," says Leanid Sudalenka.

Leanid Sudalenka concludes that after pardoning political prisoners, they will not be excluded from the lists of "extremists or terrorists." The Ministry of Internal Affairs monitors former political prisoners during the expiration period of criminal records (two years for less serious and five years for serious crimes) in the form of preventive supervision or preventive registration.

After the expiry of the criminal record, former political prisoners remain on the "lists of extremists or terrorists " for five more years on the basis of the Law on Countering Extremism and the supervision established earlier may last for five more years. Thus, for a less serious crime, supervision will continue for seven years, and for a serious one, for ten years after release.