In response to the recent sentences pronounced in a number of criminal trials involving protesters accused of using violence against or violent resistance to police officers and other officials (Articles 363, 364, and 366 of the Criminal Code), we note the following:
As evidenced by the results of observation of several trials in this category of cases, the courts failed to give a proper assessment of the legality of police-related violence. When passing sentences, the judges assumed that the law enforcement officers carried out their lawful activities to protect public order during illegal protests. Detentions of participants in such gatherings and the use of police gear against them, according to the judges, were legal. Accordingly, any kind of disobedience, resistance, and even more so the use of violence against officers of the Interior Ministry, in their opinion, were criminal. Under current law, police officers and other law enforcement officials enjoy increased protection as compared to other individuals, and the use of violence against them entails criminal liability regardless of the consequences of these actions for the victim.
Our position on these cases is that Experts of the Human Rights Center “Viasna”, however, believe that peaceful assemblies should be under state protection, while the police should not take action to forcibly stop them, even if they violate applicable rules. Violent cessation of assemblies and the use of physical force against protesters should be carried out only as a last resort, in cases where the behavior of the participants is violent, which poses a real threat to national and public security, life and health of citizens.
Accordingly, any actions aimed to forcibly terminate peaceful assemblies, detain their members, use violence against them or prosecute them only for the very fact of participating in such assemblies constitute disproportionate restrictions on the freedom of peaceful assembly that go beyond the permissible restrictions on freedom of assembly and expression, which has been repeatedly confirmed by the practice of the UN Human Rights Committee in its decisions concerning complaints filed by Belarusian citizens to report violations of Art. 21 and 19 of the ICCPR.
Such disproportionately harsh police actions aimed at dispersing peaceful assemblies cannot be viewed as a legitimate activity to protect and maintain public order, and in cases of violence against officers of the Interior Ministry used in response to initial police violence, these actions should be judged based on the severity of the damage to health. In most of the cases observed, the alleged victims did not suffer any damage or the damage was insignificant, or violence as such was not used at all. Practice shows that in cases where law enforcement officers did not use physical force, riot gear or violence when detaining peaceful protesters, the demonstrations were held peacefully.
According to the Guidelines on the Definition of Political Prisoners, it is the non-violent nature of the exercise and protection of human rights and fundamental freedoms that is an important criterion for eligibility. In this context, violence is viewed in a broad sense, which includes not only an attempt to cause physical harm to any person, but also actions aimed at destroying or damaging property. Although it should be borne in mind that this does not include cases of violence in response provoked by the initial disproportionate use of physical force, police equipment or weapons, provided that the actions of the accused were not intended to cause non-symbolic material damage or harm to anyone (See comment to para. 3.1 of the Guidelines).
According to the general approaches defined by the Guidelines, the use of violence by a persecuted person makes it impossible for them to be recognized as a political prisoner.
However, there are two important exceptions to this criterion, which in the absence of political motives on the part the authorities often result in no criminal case being opened, the persons being acquitted or discharges from liability. Otherwise, in the presence of such motives, the authorities may deliberately ignore the circumstances justifying necessary defense or extreme necessity.
Necessary defense is the lawful protection of the person and rights of the protected person and other persons, as well as the interests of society and the state protected by law from a socially dangerous attempt by harming the perpetrator. The main peculiarity of necessary defense, which distinguishes it from other circumstances that preclude the criminality of the act, is causing harm precisely to the perpetrator, rather than other persons. For example, such defense may be manifested in the case of clearly illegal actions of law enforcement officers who acted, inter alia, on an illegal order (See comment to para. 3.3 of the Guidelines).
In addition, the monitoring of court hearings in this category of criminal cases showed that the courts rendered disproportionately harsh (inadequate) sentences in comparison with sentences handed down in the same categories of cases outside the political context.
The duration or conditions of imprisonment under such sentences are clearly disproportionate (inadequate) to the offenses of which the defendants were found guilty.
All these circumstances give grounds to claim that the persecution of these persons is politically motivated, and the persons themselves are political prisoners.
Based on this, we recognize the following convicts as political prisoners:
- Andrei Tsimafeyenka (sentenced by the Kastryčniki District Court of Viciebsk to 2 years in prison under Part 1 of Article 366 of the Criminal Code; see opinion on the case by experts of the Human Rights Center "Viasna", Russian only);
- Dzmitry Karatkevich (sentenced by the Saviecki District Court of Minsk to 3 years in prison under Article 364 of the Criminal Code; see opinion on the case by experts of the Human Rights Center “Viasna”, Russian only);
- Siarhei Yafimau (sentenced by the Centraĺny District Court of Homieĺ to 3 years in prison under Article 364 of the Criminal Code; see opinion on the case by experts of the Human Rights Center “Viasna”, Russian only).
We consider it necessary to demand for these political prisoners an immediate review of the custodial measures and court rulings taken against them in the exercise of the right to a fair trial and the elimination of these factors, as well as their release from custody and selection of other measures to guarantee their appearance in court.
Human Rights Center "Viasna"
Belarusian Helsinki Committee
Belarusian Documentation Center
Center for Legal Transformation “Lawtrend”