Opinion; Subjects: BELARUS, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.12-15222
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-third session, 30 April–4 May 2012
No. 14/2012 (Belarus)
Communication addressed to the Government on 9 February 2012
Concerning Andrei Sannikov
The Government replied to the communication on 17 April 2012.
The State is a party to the International Covenant on Civil and Political Rights.
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the former Commission on Human Rights, which extended and clarified the Working
Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the
mandate in its decision 2006/102 and extended it for a three-year period in its resolution
15/18 of 30 September 2010. In accordance with its working methods, the Working Group
transmitted the above-mentioned communication to the Government.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to the detainee) (category I);
(b)
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 Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
United Nations
A/HRC/WGAD/2012/14
General Assembly
Distr.: General
12 July 2012
Original: English
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(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation; or
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (category V).
Submissions
Communication from the source
3.
Andrei Sannikov, national of Belarus, is a politician and activist. He was a career
diplomat who served as Deputy Foreign Minister in Belarus. In November 1996, Mr.
Sannikov resigned from his post as Deputy Foreign Minister, allegedly in protest of a
referendum held that year, which amended the Constitution of Belarus, expanding the
powers of the executive and restraining certain rights and freedoms. Mr. Sannikov co-
founded Charter’97, a civil rights organization that hosts a news website. He had organized
non-violent protests in opposition to the presidential elections of 2001, 2004, 2006, and
2008. In 2003, he was arrested for organizing a peaceful march demanding better living
standards. In 2005, Mr. Sannikov was awarded the Bruno Kreisky Award for his service to
the cause of human rights. In 2010, Mr. Sannikov ran in the presidential election as a
candidate affiliated with the European Belarus Civil Campaign.
4.
According to the source, on 19 December 2010, Mr. Sannikov and other electoral
candidates encouraged supporters to defend their vote by peacefully demonstrating in
Minsk. Thousands of protesters gathered in Independence Square and listened to speeches
by the electoral candidates advocating for new elections. The source states that at
approximately 10:00 p.m., Mr. Sannikov was giving a speech in which he reportedly called
for a second round of elections. At that point, a group of approximately 20 individuals,
allegedly Government agents, began breaking windows at Government House, the
headquarters of the National Assembly and the Central Election Commission. It is reported
that Mr. Sannikov told the crowd to remain peaceful and to keep away from the doors of
Government House. It is further reported that the Special Police Unit forcibly broke up the
crowd and made mass arrests even though most of the demonstrators peacefully left the
square within 20 minutes. The police allegedly stormed the square and put groups of
protestors into the trucks. According to the source, over 700 persons, including electoral
candidates, other peaceful protesters and bystanders, were arrested.
5.
The source contends that the police forces assaulted Mr. Sannikov by pinning him
down with a riot shield and jumping on it repeatedly, thereby severely injuring his legs. Mr.
Sannikov’s friends attempted to shield his head, and with the help of his wife, Iryna Khalip,
managed to free him.
6.
As they were on their way to a hospital, the Special Police Unit stopped the car,
dragged Mr. Sannikov out and arrested him. He was not presented with a warrant and no
specific charges were pressed against him at that point. Mr. Sannikov was taken by the
police to the KGB pretrial detention centre in Minsk, also known as Amerikanka, where he
remained until the conclusion of his trial.
7.
Although most of the people initially arrested on the night of the election on 19
December 2010 were released after several days in detention, at least 37 persons, including
electoral candidates, journalists and activists, were charged with criminal offences of
organizing and participating in mass disturbances. Most of these individuals, including Mr.
Sannikov, received heavy sentences of up to seven years’ imprisonment.
8.
The source alleges that the order for Mr. Sannikov’s arrest was issued by the
President of Belarus and other high-ranking officials. Mr. Sannikov was charged with
“organization of mass disorder accompanied by violence against persons, pogroms, arson,
destruction of property, or armed resistance of the authority” under article 293(1) of the
Belarus Criminal Code and with “involvement in riots, as expressed in the immediate
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fulfilment of actions specified in the first part of this article” under article 293(2) of the
Belarus Criminal Code.
9.
The source states that Mr. Sannikov faced harsh conditions at the KGB pretrial
detention centre in Minsk. He was held in a cold cell; reportedly beaten on multiple
occasions; denied access to the toilet and forced to confess to accusations of attempting a
coup d’Etat, armed resistance against representatives of the Government, planning pogroms
and arson and organizing mass disorder accompanied by violence. Mr. Sannikov was
reportedly threatened by the head of the KGB with possible measures against his wife and
child unless he gave a self-incriminating testimony.
10.
According to the source, Mr. Sannikov was also denied access to a lawyer. His
initial lawyer visited him on 20 December 2010, and publicly raised concerns about his ill-
treatment in pretrial detention. It is reported that the lawyer was subsequently disbarred by
the Minsk City Bar Association. Following this incident, Mr. Sannikov was not permitted
to confer with a lawyer in private until 22 March 2011. According to the source, when
reading out the charges against Mr. Sannikov in April 2011, the prosecution declared that
his “guilt was proved in full”. However, the source maintains that Mr. Sannikov’s lawyers
were not provided with any evidence, nor with the Government’s official statement of the
charges until three weeks before the trial commenced. This did not leave Mr. Sannikov’s
lawyers sufficient time to prepare a proper defence. Attempts by Mr. Sannikov’s lawyers to
have him released on bail proved unsuccessful.
11.
Mr. Sannikov’s trial commenced on 27 April 2011. He was tried alongside
protesters Ilya Vasilevich, Alekh Hnedchyk, Fyodar Mirzayanaw and Vladzimir
Yeramyanok. Prior to the trial, Mr. Sannikov did not know the co-defendants and had no
affiliation with them; they were not from his campaign.
12.
The trial lasted 10 days and the defendants were forced to sit in the courtroom
during the proceedings on a hard bench in a barred cage. In addition to the injuries to his
legs sustained during the arrest, Mr. Sannikov has a documented history of medical
problems. He requested the court on multiple occasions to pause the trial so that he could
receive medical assistance. These requests were allegedly refused.
13.
During his testimony in court, Mr. Sannikov stated that prison guards had tortured
him and other persons involved in the elections; that he had been deprived of sleep;
exposed to severe cold and his family had been threatened in an effort to secure
confessions. He testified that some of the Government’s evidence had been obtained from
him under duress. The court did not order an investigation of these allegations.
14.
The source reports a number of procedural irregularities during the trial. It is alleged
that the defence took witness statements on Mr. Sannikov’s behalf and provided
photographs of Independence Square on the night of the demonstration. These, however,
were not accepted as evidence by the court. In contrast, the court allowed the prosecutor to
enter recorded conversations from Mr. Sannikov’s telephone which was tapped during the
presidential campaign. Moreover, while 29 prosecution witnesses were announced, only
eight showed up to testify. The prosecution explained that the others were on “holiday”.
According to the source, the prosecution furnished no evidence that Mr. Sannikov had
engaged in or incited any disorder or violence at the demonstration, nor caused or incited
harm to people, nor destroyed or incited destruction of property. Reportedly, none of the
prosecution witnesses specifically identified Mr. Sannikov as one of the persons who had
committed violence or disobeyed police orders. The source reports that the defence
presented numerous witnesses, all of whom testified that the demonstration was peaceful
and that Mr. Sannikov did not encourage any rioting or violent acts.
15.
On 14 May 2011, the District Court sentenced Mr. Sannikov to a five-year prison
term. It is alleged that in its judgment, the Court adopted the prosecution’s indictment and
statement of evidence verbatim, without making any reference to the evidence presented by
the defence.
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16.
On 15 July 2011, the Minsk City Court dismissed a post-conviction cassation appeal
filed by Mr. Sannikov’s lawyers. Mr. Sannikov was not permitted to attend the hearing.
17.
Subsequent to his sentencing, Mr. Sannikov was transferred to Novapolatsk penal
colony No. 10, which is allegedly known for extremely harsh conditions, inter alia, due to
its proximity to chemical plants that lack proper safety mechanisms. Around August 2011,
Mr. Sannikov was transferred to the labour detachment of the third squad of penal colony
No. 10 in Novapolatsk, where he has been forced to work producing corrugated carton
boxes.
18.
The source submits that Mr. Sannikov’s arrest and detention are arbitrary as they are
directly linked to his activities in opposition to the ruling Government and, in particular, the
fact that he ran for presidential elections and took part in the protests of 19 December 2010.
The source maintains that Mr. Sannikov’s detention is in breach of his fundamental rights
and freedoms under articles 18, 19, 21, 22 and 25 of the International Covenant on Civil
and Political Rights and articles 19, 20 and 21 of the Universal Declaration of Human
Rights. Similarly, the source submits that his detention breaches articles 33, 35, 36, 37 and
38 of the Constitution of Belarus. The source maintains that the measures taken by the
authorities of Belarus cannot be qualified under the exceptions to the rights and freedoms
recognized in articles 18, 19, 21, 22 and 25 of the Covenant. According to the source,
although the authorities have invoked national security reasons for the arrests in connection
with the 19 December events, a number of international observers have recognized – and
the evidence available has shown – that the protests, in general, and Mr. Sannikov’s speech,
in particular, did not constitute a threat to the national security of Belarus. The source
submits that finding the narrow exception here would put in jeopardy the very core of these
rights and freedoms.
19.
Furthermore, the source submits that Mr. Sannikov’s trial failed to comply with the
minimum due process guarantees under the International Covenant on Civil and Political
Rights the Universal Declaration of Human Rights and the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment (Body of
Principles).1 The source sustains that in violation of articles 14, paragraph 1, of the
Covenant and article 10 of the Declaration, Mr. Sannikov was not tried by an impartial
judiciary. His right to “be presumed innocent until proved guilty” as set out in article 14,
paragraph 2, of the Covenant and article 11 of the Declaration was allegedly not respected.
The source contends that international observers have unanimously pointed to the lack of
impartiality of Mr. Sannikov’s trial. In particular, the source points to a violation of article
14, paragraph 3 (b) and (e) of the Covenant regarding the limited time for the preparation of
his defence, the lack of unimpeded access to counsel and the failure to objectively assess
evidence presented by the prosecution and the defence. In addition, the source submits that
Mr. Sannikov’s trial breached principles 10, 15, 17, 18, 19 and 21 of the Body of Principles
and articles 60 and 115 of the Constitution of Belarus.
Response from the Government
20.
On 19 December 2010, an unauthorized street protest against the results of the
presidential election took place in Minsk. Mr. Sannikov, in violation of the law, was one of
the organizers of the protest. During the protest there were calls for a change in
Government and new election without participation of the current President.
21.
According to the response, a group of about 400 people attempted to attack
Government House in order to occupy it, then stage a coup d’état. Mr. Sannikov was
among those who attacked the House. The assailants used stones, bottles, and iron bars.
The Government states that the video equipment, which has been turned over to the
1 General Assembly resolution 43/173, annex.
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investigation, enabled identification of all the assailants, including Mr. Sannikov who was
among them.
22.
The protesters also used iron bars, tire levers and other objects to attack the police, a
demonstration of the obviously aggressive nature of the protesters’ actions. As a result of
the clashes with protesters, 87 policemen were injured and 9 were hospitalized.
23.
Mr. Sannikov was detained when he tried to escape in the car that was stopped by
the police. To detain him, the police used a permitted combat technique which resulted in a
minor injury to his leg. Mr. Sannikov did not complain about injures to the Office of
Attorney General.
24.
The Government explains that, in accordance with the Code of Criminal Procedure,
an arrest warrant and/or charges are not required at the moment of apprehension. Detention
involves physical apprehension of a person, bringing him/her to the investigative
institution, and arrest up to 72 hours after apprehension. As soon as a person is brought to
the investigative institution, a formal record is drawn up. The record shall indicate, inter
alia, the reasons, place and time of apprehension.
25.
During the pretrial detention, Mr. Sannikov did not submit any complaint about
treatment by the prison staff and the conditions of his detention. All prisoners are given
access to toilet facilities and cells are kept at pre-established temperatures.
26.
There were no restrictions on Mr. Sannikov’s meetings with his lawyer. He met with
the lawyer in private on numerous occasions.
27.
On 23 January 2012, the Department of Citizenship and Pardon of the
Administration of the President received a petition for pardon from Mr. Sannikov. On 14
April 2012, by the decision of the President, Mr. Sannikov was granted pardon and
released.
Further comments from the source
28.
The source reiterates that Mr. Sannikov’s arrest and detention were politically
motivated. In this regard, the source refers to the fact that the President held a press
conference shortly after security forces had arrested the protesters and most of the
opposition candidates, at which he claimed that he had thwarted attempts by the opposition
to stage a revolution. According to the source, the President also announced the true basis
for the crackdown and arrests, stating: “That’s enough of that. There won’t be any more
silly democracy, muddle-headed democracy in the country.” The source concludes that,
consistent with the Belarusian Government’s demonstrated practice of stifling political
dissent, the arrest and detention of Mr. Sannikov were politically motivated and approved
at the highest levels of power.
29.
The source emphasizes that the prosecution provided no evidence at the trial that
Mr. Sannikov was guilty of the crimes with which he was charged: it adduced no evidence
that Mr. Sannikov had engaged in or incited any violence at the demonstration, nor caused
or incited harm to people, nor destroyed or incited destruction of property. Although the
prosecution witnesses presented an assortment of non-credible statements, none of them
identified Mr. Sannikov as the person who had committed violence or disobeyed police
orders.
30.
As to the Government’s claim that the court based its decision on the petitions of
both the prosecution and the defence, the source notes that in its judgement, the court
adopted the prosecution’s indictment and statement of evidence verbatim, without any
reference to the evidence submitted by the defence. Furthermore, the defence took witness
statements on Mr. Sannikov’s behalf and provided photographs of the square on the night
of the demonstration, but the court did not accept them as evidence.
31.
The source also emphasizes that the Government presented no evidence that Mr.
Sannikov was among those who had stormed Government House on the night of 19
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December 2010. No evidence of this was introduced at Mr. Sannikov’s trial; the videotape
referred to in the Government’s response was not presented and no witness identified Mr.
Sannikov as one of the persons who had committed violence or disobeyed orders. The
source contends that Mr. Sannikov did not participate in storming the building, but he did
exhort the crowd to remain peaceful and to keep away from the government building.
32.
The source reiterates that Mr. Sannikov was not permitted to see a lawyer in private
until he had been in detention for nearly three months.
33.
The Government’s response failed to address the fact that Mr. Sannikov’s wife,
Iryna Khalip was also detained at the same time as he was arrested; nor does the
Government refute the fact that the authorities threatened to seize their son and put him in
an orphanage. The Government’s response does not address the evidence showing that
when Mr. Sannikov refused to confess to any crimes, Vadim Zaitsev, the head of the KGB,
threatened that brutal measures would be taken against his wife and child if he did not
provide a self-incriminating testimony. The source also notes that the Government’s
response does not address the evidence showing that Mr. Sannikov was denied access to
counsel after his first lawyer, Pavel Sapelko, was disbarred by the Minsk City Bar
Association. That Mr. Sapelko was disbarred after, and as a result of, publicly raising
concerns about Mr. Sannikov’s “horrendous” condition and the Government’s mistreatment
of him during his pretrial detention is uncontested.
34.
Mr. Sannikov’s civil and political rights are restricted and he risks re-arrest. Under
paragraph 17 (a) of its Revised methods of work, the Working Group “reserves the right to
render an opinion, on a case-by-case basis, whether or not the deprivation of liberty was
arbitrary, notwithstanding the release of the person concerned.”
35.
According to the source, the President of Belarus has threatened to re-arrest Mr.
Sannikov and his campaign aid, Zmister Bandarenka, if they exercise their right to freedom
of expression. During a press conference on 21 April 2012, President Lukashenko is quoted
as saying in reference to Messrs. Sannikov and Bandarenka, “[o]ne more [act of] pressure
and those blabbermouths, who have been set free and should say thanks for that, may return
to prison. If they blabber, they will go back there.” In the light of the continued limitations
placed on Mr. Sannikov’s fundamental rights, including the right to political participation,
and the constant threat of re-arrest, it is fitting that the Working Group should consider his
case under paragraph 17 (a) of its Revised methods of work.
Discussion
36.
The Working Group recalls that in his report (A/HRC/4/16), the Special Rapporteur
on the situation of human rights in Belarus had noted systematic violations of civil and
political rights and the deprivation of Belarusian citizens’ right to effectively take part in
the conduct of public affairs continued to be observed (para. 10).2
37.
In this case, the Working Group finds that Mr. Sannikov’s right to a fair trial, as
provided for in article 14 of the International Covenant on Civil and Political Rights and
articles 10 and 11 of the Universal Declaration of Human Rights, has been violated.
38.
Mr. Sannikov was deprived of the right to effective legal assistance at the pretrial
stage, and his trial was accompanied by a number of procedural irregularities, as pointed
out by the source, which have not been sufficiently rebutted by the Government. Following
his lawyer’s disbarment by the Minsk City Bar Association, Mr. Sannikov, for several
months, was not permitted to confer with a lawyer in private, nor was he provided with
adequate time and facilities for the preparation of his defence, which constitutes violation
of article 14, paragraph 3 (b), of the Covenant.
2 See also the Working Group’s opinion No. 13/2011 (Belarus).
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39.
The Working Group considers that Mr. Sannikov’s right to a fair trial was
substantially infringed and his deprivation of liberty falls within category III of the
categories applicable to the cases submitted for consideration by the Working Group.
40.
The Working Group also considers that Mr. Sannikov was deprived of his liberty
because of his activities in opposition to the Government and, in particular, the fact that he
was an electoral candidate and allegedly took part in the protests of 19 December 2010.
These points are well illustrated in statements made by the President of Belarus following
Mr. Sannikov’s release and the continuous limitations imposed on his fundamental rights
and freedoms. The deprivation of Mr. Sannikov’s liberty between 20 December 2010 and
21 April 2012 constitutes a breach of his fundamental rights and freedoms under articles
19, 21, 22 and 25 of the International Covenant on Civil and Political Rights, and therefore
also falls within category II of the categories applicable to the cases submitted for
consideration to the Working Group.
Disposition
41.
In the light of the foregoing, the Working Group on Arbitrary Detention renders the
following opinion:
The deprivation of liberty of Andrei Sannikov was arbitrary, being in contravention
of articles 9, 14, 19, 21, 22 and 25 of the International Covenant on Civil and
Political Rights, as well as articles 7, 10, 11, 13, 14, 18, 19, 20 and 21of the
Universal Declaration of Human Rights; it falls within categories II and III of the
categories applicable to the cases submitted for consideration to the Working Group.
42.
Consequent upon the opinion rendered and taking into account that Mr. Sannikov
has been released, the Working Group requests the Government to take all necessary steps
to provide him compensation for the harm and damages he suffered during the period of his
arbitrary detention, in accordance with article 9, paragraph 5 of the International Covenant
on Civil and Political Rights.
43.
In accordance with article 33 (a) of its Revised methods of work, the Working
Group considers it appropriate to refer the allegations of torture to the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment for appropriate
action.
[Adopted on 4 May 2012]