Landmark UN decision: Ales Bialiatski’s detention arbitrary, release and compensation requested
In its
decision, the WGAD highlighted that “central to the case, as stated by
the source, [were] Mr. Bialatski’s claims that the funds received in a
bank account abroad were part of the fundraising for the
non-governmental organization, Viasna, that the Government had
deregistered and taken steps to dissolve”. “The Working Group also
emphasize[d] that criminal liability cannot be based on prior government
action to deregister and dissolve the non-governmental organization
Viasna, in violation of article 20, paragraph 1, of the [UDHR] and
Article 22 of the [ICCPR]”.
The WGAD further underlined that “the criminal law provisions in
Belarus applied to Mr. Bialatski’s case [did] not list human
rights-related activities among the purposes that allow tax exemption”
and that States parties to the ICCPR were “not only under a negative
obligation not to interfere with the founding of associations or their
activities, but also under a positive obligation to ensure and provide
[…] measures such as facilitating associations’ tasks by public funding
or allowing tax exemptions for funding received from outside the
country”.
The WGAD also stated that the “fund raising undertaken by Mr.
Bialatski for the purposes of allowing the very existence of Viasna and
continuation of its activities [was] in conformity with […] articles 20,
paragraph 1 of the UDHR and 22 of the ICCPR”, and concluded that “the
criminal provisions as applied to Mr. Bialatski [did] not take account
of the aforementioned standards” and that Belarus was therefore in
breach of its international obligations.
Eventually, the WGAD found Mr. Bialiatski’s detention was arbitrary
as it resulted from the exercise of his universally recognised human
rights, and that it fell within category II of the arbitrary detention
categories referred to by the Working Group when considering the cases
submitted to it (i.e. when the deprivation of liberty results from the
exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18,
19, 20 and 21 of the UDHR and by articles 12, 18, 19, 21, 22, 25, 26
and 27 of the ICCPR).
The WGAD added that “when there are claims of human rights
violations [...], including a pattern of harassment […], domestic
authorities have a duty to investigate, and the inquiry must be
independent, both institutionally and in practice, and prompt”. The
Group stressed that “there [was] no support for such a review being
undertaken by the domestic authorities in the present case”.
“The decision of the WGAD is a landmark victory as it recognises
that the detention of Ales Bialiatski is arbitrary under international
law, and implements the right to funding for independent human rights
NGOs” FIDH President Souhayr Belhassen said today. “Ales Bialiatski must
be released immediately, Viasna must not be subject to further
harassment” she added.
For OMCT Secretary General Gerald Staberock “this decision must lead
to an improvement of the situation of human rights defenders and NGOs,
in Belarus and beyond”.
In August 2011, Mr. Bialiatski was arrested and charged with
“concealment of profits on an especially large scale” under Article 243,
part 2, of the Criminal Code of Belarus. On November 24, after almost
four months of pre-trial detention, the Minsk Pervomaiski District Court
sentenced him to four and a half years of imprisonment under strict
regime conditions, confiscation of property - including the premises
used for Viasna’s offices - and to a fine of 757,526,717 Belarusian
Rubles (approximately 70,000 Euros). On January 24, 2012, the Minsk City
Court confirmed the sentence on appeal, after all the motions filed by
Mr. Bialiatski’s lawyers were rejected. On March 29, 2012, the same
court issued a new decision, ordering him to pay an extra amount of
140,366,151 rubles (nearly 12,700 Euros) in penalty in addition to the
previous fine which had already been paid in January 2012, due to
alleged late payment of arrears.
In making its decision, the WGAD took into account the communication
it received from the Observatory, but also the reply of the Republic of
Belarus, which alleged that the detention and sentencing of Mr.
Bialiatski was legal according to the national legislation and did not
violate its international obligations. The WGAD further took into
consideration Communication No. 1296/2004 of the UN Committee on Human
Rights, which concluded that the dissolution of Viasna violated its
freedom of association as guaranteed by Article 22 of the ICCPR, and
quoted the Special Rapporteur on the Situation of Human Rights
Defenders, Ms. Margaret Sekaggya, which addressed the case in her report
of February 24, 2010, as well as the report of the UN High Commissioner
for Human Rights on the situation of human rights in Belarus (dated
April 10, 2012), which found that the pressures on the HRC Viasna and
its President were violating Article 22 of the ICCPR.
The decision of the WGAD is based on international law and was
issued by an international monitoring body composed of independent
experts, according to a contradictory procedure with the Republic of
Belarus. Such decision will be relied upon to call for the release of
Mr. Ales Bialiatski.