Pavel Sapelka: “Punishment under article 411 of the Criminal Code is arbitrary deprivation of liberty”

Human rights activists have repeatedly stressed the need to exclude Article 411 from the Criminal Code of Belarus, as it provides for additional prison terms for disobedience to the administration of penal facilities. The issue received wide public attention when the charges began to be used against political prisoners. In 2012, a few months before the end of the term of imprisonment, one year was added to the sentence of Dzmitry Dashkevich; in February 2015, a few days before his release the same verdict was handed down on Mikalai Dziadok.

Lawyer Pavel Sapelka, who for many years worked as a lawyer, says that the essence of charges provided by Article 411 of the Criminal Code is one of the few provisions in Belarusian law where criminal liability directly depends on disciplinary prejudice, that is a disciplinary offense: “Meanwhile, there is a common tendency to reject even administrative prejudice as a condition for criminal liability. Indeed, an administrative offense, and certainly a disciplinary one, does not become a crime with the inherent characteristics of the crime, the main of which is a public danger, even if it is repeated.”

Pavel Sapelka stresses the fact that the practice of punishment under Art. 411 Criminal for the same offenses for which prisoners have already been punished in a disciplinary manner violates the well-known principle of non bis in idem, which means that no one should be twice punished for one action. This principle is enshrined in the Criminal Code of Belarus.

The penal legislation of Belarus does not contain an exhaustive list of violations, which may entail disciplinary responsibility: for violation of the established order of serving punishment convicts can be subjected to all sorts of measures. The law does not specify the public danger of such violations. Penalties are imposed in the extra judicial procedure as a result of decisions taken in prisons and penal colonies by the officers of the Ministry of the Interior. This provokes the practice of arbitrary and often disproportionate prosecution as to the gravity of the offense; these defects cannot be eliminated even with the use of appealing the penalties.

The only form of punishment for committing a crime under the Criminal Code art.411, although classified as an offense of no great danger to society, is a deprivation of liberty, which is contrary to the principles of criminal law and criminal responsibility – justice and humanism. At the same time, even for the more serious crimes committed by persons sentenced to imprisonment – hooliganism, theft, robbery, causing less grievous bodily harm, — provide for the imposition of a milder penalty: a fine, forced labor, or restrictions on freedom.

According to Pavel Sapelka, the above facts in their totality “suggest the arbitrary nature of imprisonment for disobeying the lawful demands of prison administration”. He is confident that the perpetrators must be held responsible within the scope of disciplinary measures, especially as the range of these measures is provided by the penal legislation and is varied in nature: “Accordingly, Article 411 should be excluded from the Criminal Code.”