The trial in the criminal case of anarchist activist Dzmitry Paliyenka has been scheduled for September 25. The hearing will be held behind closed doors at the Minsk City Court.
Dzmitry Paliyenka, who was earlier called a political prisoner by the Belarusian human rights community and a prisoner of conscience by Amnesty International, was again arrested by police on March 20, 2019, on suspicion of committing particularly malicious hooliganism (using pepper spray against a citizen following a verbal conflict) and placed in pre-trial detention.
It should be noted that in February 2019, Paliyenka was detained by police on suspicion of spraying anti-police graffiti one a building in Minsk. The activist was then held as part of a criminal investigation under Art. 341 of the Criminal Code.
Later, he was charged under several articles of the Criminal Code - Part 3 of Art. 339 (especially malicious hooliganism), Art. 369 (insulting a representative of the authorities), Art. 130 (incitement to racial, ethnic, religious or other social hatred or enmity), and Art. 341 (desecration of buildings and property damage).
According to the information available, Dzmitry Paliyenka has refused to confess to the charges.
Meanwhile, some of the charges against him, in our opinion, constitute an unacceptable restriction on freedom of expression and a new dangerous new form of persecution for public criticism of the activities of government bodies and officials.
In particular, Paliyenka is charged with inciting hatred, which, according to the investigation, targeted “other social group” - the police.
The charge stems from an online video in which unknown persons are seen spraying anti-police graffiti to a background song “Menty Ubivayut Molodykh” (Cops Kill the Young) by the Russian group Televizor. The video also features several posters and slogans attacking the police, including an image of the former Minister of the Interior Ihar Shunevich. An expert analysis led the investigation to conclude that the footage is also evidence of insulting a public official - former Interior Minister Shunevich.
In this regard, we note that representatives of the government bodies and the police, in particular, are not a separate social group, while criminal liability for incitement to hatred must, first of all, serve to prevent the incitement of hatred against vulnerable groups on prohibited grounds of discrimination, rather than government officials, government agencies and the police, in particular.
The same applies to criminal liability for insulting a government official.
Article 19 of the International Covenant on Civil and Political Rights guarantees the right to freedom of opinion and expression. At the same time, in order to respect the rights and reputations of others, it sets permissible limits on the right.
However, these restrictions should not be linked to the official position of the persons targeted by alleged defamation.
Decriminalization of defamation offenses is a standard formulated and justified in the decisions of a number of international organizations. International bodies, the UN and the OSCE, recommended the repeal of laws that criminalize defamation, or at least to not deprive of freedom for committing defamation offenses, resorting to civil-law proceedings as an alternative. The OSCE Parliamentary Assembly called for the repeal of all laws that criminalize defamation of public figures, the state or its organs. Plenipotentiary representatives of the UN, OSCE, and OAS on issues of freedom of speech stated that “criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws.”
Thus, the level of protection against defamation forms of expression (attacks on honor, dignity, and reputation of a person by disseminating insulting information or derogatory statements) possessed by government officials, including the President, prosecutors or judges, shall not be higher than that of any other citizen.
The case of Dzmitry Paliyenka once again emphasizes the need for the termination of criminal prosecution for defamation offenses as a first step towards the abolition of Articles 367, 368, 369, 369-1, and 391 of the Criminal Code.
We believe that the official, who was called a victim in the criminal, should be provided with other measures of the legal protection of his honor and dignity, including in civil proceedings on an equal basis with others.
We also note that the charge of spraying graffiti that was classified as the desecration and destruction of property is a crime of minimal social danger, the penalty for which is not connected with imprisonment.
Concerning the decision of the Minsk City Court to hold a closed hearing in the criminal case, we note that in accordance with the International Covenant on Civil and Political Rights, every one facing a criminal charge has the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Media and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
When assessing the fairness of a trial it is necessary to process from judging the means of prooftaking. The principle of a fair trial requires not only compliance by law enforcement agencies to national legislation, but also affects the quality of the law, requiring its correspondence to the principle of the rule of law.
We also remind you that in accordance with the provisions of the Guidelines on the Definition of Political Prisoners, approved by the Belarusian human rights community, imprisonment in violation of the right to a fair trial, and other rights and freedoms guaranteed by the International Covenant on Civil and Political Rights or the European Convention on Human Rights, in the presence of political motives of the prosecution, is the basis for recognition of such persons as political prisoners.
In this regard, we, representatives of the human rights community, urge the Belarusian authorities to:
- hold an open trial in the criminal case of Dzmitry Paliyenka in compliance with all the guarantees of a fair trial;
- be guided by the international obligations of the Republic of Belarus under international law of human rights ratified by the country.
Human Rights Center “Viasna”
Belarusian Helsinki Committee
Belarusian Association of Journalists
Belarusian Documentation Center
Legal Transformation Center Lawtrend
Advisory center on contemporary international practices and their legal implementation “Human Constanta”