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.12-18314
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-fourth session, 27–31 August 2012
No. 39/2012 (Belarus)
Communication addressed to the Government on 20 April 2012
Concerning Aleksandr Viktorovich Bialatski
The Government replied to the communication on 22 May 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 that
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 methods of work (A/HRC/16/47, annex
and Corr.1), 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);
United Nations
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General Assembly
Distr.: General
23 November 2012
Original: English
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(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);
(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
Previous urgent appeal concerning Aleksandr Viktorovich Bialatski
3.
The case was reported to the Working Group on Arbitrary Detention as follows.
Aleksandr Viktorovich Bialatski, a citizen of Belarus, usually residing at Prospekt
Nezavisimosti, Minsk, Belarus, is a human rights defender, founder and President of the
Human Rights Centre Nasha Viasna (Viasna) and a vice-president of the International
Federation for Human Rights (FIDH).
4.
On 15 August 2011, the Rapporteur of the Working Group on Arbitrary Detention
together with other Special Procedures mandate holders sent an urgent appeal1 to the
Government of Belarus. The relevant content of the urgent appeal is reproduced below :
On 4 August 2011, at approximately 2:00 p.m., a group of individuals in plain
clothes reportedly surrounded the offices of the HRC “Viasna” in Minsk. Staff
members of HRC “Viasna” allegedly evacuated the office and locked the door.
While evacuating the office, one of them heard a plain clothed individual talking on
his mobile phone, saying that Mr. Bialatski was not to be found at the office. On the
same day, at approximately 4:30 p.m., Mr. Bialatski was arrested in Minsk city
centre by police representatives of the Department of Financial Investigations. A
search was conducted at his home by police officers. Mr. Bialatski was subsequently
taken to the Viasna office which was also searched by the police. On 5 August 2011,
Mr. Bialatski was allegedly transferred from a cell at the Financial Investigation
Department of the State Control Committee to the detention centre of the Ministry of
Interior, where he remains to date.
Mr. Bialatski was allegedly being held in detention for having failed to declare the
existence of a private foreign account registered in his name. As a result, a tax
evasion case was allegedly opened against Mr. Bialatski for “concealment of profits
on an especially large scale” under Article 243(2) of the Criminal Code of the
Republic of Belarus, which provides for up to seven years of imprisonment and
confiscation of property.
According to the information received, the purpose of the foreign account was to
receive donations registered in the name of Mr. Bialatski, to finance the human
rights activities of “Viasna”. In June 2011, Mr. Bialatski was reportedly informed
that an investigation on his private financial matters was being carried out by the
authorities. In view of his alleged detention, serious concern is expressed for the
physical and psychological integrity of Mr. Ales Bialatski. Further concern is
expressed that his detention may be directly related to his work in defence of human
rights, in particular with HRC “Viasna”.
1 See A/HRC/19/44, p. 57, case No. BLR 9/2011.
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5.
The Government replied on 31 October 2011, and the Working Group welcomes the
cooperation. The content of the officially translated reply received from the Government of
Belarus is reproduced below:
On 4 August 2011, criminal proceedings were instituted against Mr. Bialatski by an
investigator from the State Control Committee Financial Investigation Department’s
pretrial investigation team for an offence under article 243, paragraph 2, of the
Criminal Code (evasion of duties and taxes by concealment and deliberate
understatement of the tax base, or by refusal to submit a tax declaration (calculation)
or knowingly introducing into it false information, leading to losses on an especially
large scale).
This crime, covered by article 243, paragraph 2, of the Criminal Code, is categorized
as a serious offence, for which penalties include restriction of liberty for a period of
up to five years or deprivation of liberty for a period of three to seven years, with or
without confiscation of property and with or without forfeiture of the right to hold
certain posts or engage in certain activities.
The case was brought on the grounds of material gathered during preliminary
inquiries.
According to information from the Ministry of Justice of Lithuania received by the
State Control Committee Financial Investigation Department from the Ministry of
Justice of Belarus on 4 April 2011, a total amount of no less than 295,733 euros
entered Mr. Bialatski’s account with AB DnB NORD Bankas bank during the period
2009–2011.
According to information from the Ministry of Justice of Poland received by the
State Control Committee Financial Investigation Department from the Ministry of
Justice of Belarus, a total amount of no less than 335,787 euros entered Mr.
Bialatski’s account with Bank Śląski during the period 2007–2011.
In violation of current legislation, Mr. Bialatski did not declare these amounts to the
tax authorities and did not pay income tax on the income received.
Under article 153, paragraph 1.1, of the Tax Code, income received from sources in
Belarus and/or abroad by physical persons recognized under article 17 of the Tax
Code as resident in Belarus for tax purposes is subject to personal income tax.
Under article 17 of the Tax Code, physical persons who are present in Belarus for
more than 183 days in a calendar year are considered to be resident in the country
for tax purposes, which was Mr. Bialatski’s case.
On 23 September 2011, after a tax audit, a final charge was filed against Mr.
Bialatski under article 243, paragraph 2, of the Criminal Code for evasion of taxes
on an especially large scale, to a total amount of 352,274,360 Belorusian roubles
(more than 10,064 base amounts).
The investigation found no confirmation of reports that the above-mentioned sums
in the Lithuanian and Polish banks were intended to fund the Viasna human rights
centre and other organizations.
Mr. Bialatski was detained at 4.58 p.m. on 4 August 2011, by members of the State
Control Committee Financial Investigation Department at 36, Nezalezhnasci
Avenue, Minsk, on suspicion of the above-mentioned offence. In accordance with
article 41 of the Code of Criminal Procedure, Mr. Bialatski was informed at the time
of his detention of his rights and obligations, including his right to defence.
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As crimes under article 243, paragraph 2, of the Criminal Code are categorized as
serious offences, for which penalties include deprivation of liberty for a period of
more than two years, Mr. Bialatski was remanded in custody as a preventive
measure under article 126, paragraph 1, of the Code of Criminal Procedure.
Mr. Bialatski was placed in the temporary holding facility of the Minsk Municipal
Executive Committee Central Internal Affairs Department.
Mr. Bialatski did not plead guilty to the charge brought against him and refused to
give testimony. During questioning as a suspect during the initial stage of the
investigation, he confirmed that he had opened foreign bank accounts in his own
name and that he managed and operated them personally.
On studying the case file, the Minsk procuratorial authorities found that the
preliminary investigation had been carried out thoroughly, objectively and
comprehensively, the acts of the accused had been correctly classified, the
accusation was substantiated and based on evidence found during the investigation,
all possible investigative action had been taken, the preventive measures adopted
were correct, and that there had been no violation of criminal procedural legislation,
including in respect of Mr. Bialatski’s detention and the gathering of evidence.
On 5 August 2011, Mr. Bialatski was placed in remand centre No. 1 of the Ministry
of Internal Affairs Penal Enforcement Department, where he is still being held.
Mr. Bialatski made no complaints about his health and had no bodily injuries when
he entered the remand centre and was examined by a doctor. Mr. Bialatski has not
requested medical assistance during his detention in remand centre No. 1.
Mr. Bialatski is being held in a cell designed for six persons. As of 10 October 2011,
four persons were being held in the cell. The conditions meet the requirements of the
Detention Procedure and Conditions Act of 16 June 2003.
On 4 October 2011, the Minsk Procurator’s Office referred the case to the Pervomai
district court in Minsk.
No change was made to Mr. Bialatski’s preventive remand in custody.
No complaints or applications were received during the pretrial investigation either
from Mr. Bialatski personally or on his behalf.
Mr. Bialatski is making use of his right to defence under article 17, paragraph 1, of
the Code of Criminal Procedure, with the assistance of a professional lawyer as
defence counsel.
During the pretrial investigation, the counsel submitted three complaints (on the
unlawful bringing of charges, on the need to halt the criminal proceedings, and on
release from custody); after consideration, the complaints were rejected as
unfounded.
Since Mr. Bialatski’s arrest and detention were based on provisions of Belarusian
criminal and criminal procedural law, they cannot be considered to be arbitrary in
the sense of article 9 of the Universal Declaration of Human Rights or article 9 of
the International Covenant on Civil and Political Rights. Those articles and other
norms related to criminal investigation and detention in those instruments were
observed during the pretrial investigation in respect of Mr. Bialatski.
Information from the competent authorities concerning Mr. Bialatski’s situation
convincingly confirms that his detention and remand in custody are not related to his
work as a human rights defender, including in the context of the activities of the
Viasna human rights centre.
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6.
In accordance with paragraph 23 of its methods of work, “[a]fter having transmitted
an urgent appeal to the Government, the Working Group may transmit the case through its
regular procedure in order to render an Opinion on whether the deprivation of liberty was
arbitrary or not. Such appeals – which are of a purely humanitarian nature – in no way
prejudge any Opinion the Working Group may render. The Government is required to
respond separately for the urgent appeal procedure and the regular procedure.” In its
submission, the source has expressly requested the Working Group to transmit a case of
Mr. Bialatski, following its regular procedure.
Communication from the source
7.
The source submitted the following information on further developments in the case.
On 28 October 2011, following the closure of the investigation, the Pervomaiski District
Court decided to prolong Mr. Bialatski’s detention.
8.
On 24 November 2011, Mr. Bialatski was sentenced to four and a half years’
imprisonment with confiscation of property by the Pervomaiski District Court of the City of
Minsk. The Court found Mr. Bialatski guilty of non-payment of taxes by not filing tax
returns and of filing tax returns with false information, thus causing damages in a
particularly high amount pursuant to article 243, paragraph 2 of the Criminal Code of
Belarus. The Court ordered his sentence to be served in a high security correctional facility.
Mr. Bialatski was also levied a fine of 721,454,017 Belorusian roubles (approximately
US$90,000) and restitution to the federal budget in the amount of 36,072,700 Belarusian
roubles (approximately US$4,500).
9.
On 2 December 2011, Mr. Bialatski was transferred to Prison No. 8, Zhodina. On 24
January 2012, the Minsk City Court upheld Mr. Bialatski’s sentence. On 17 February 2012,
Mr. Bialatski was transferred to Babruisk penal colony No. 2 where he remains.
10.
The source states that during the judicial proceedings, Mr. Bialatski was represented
by defence lawyers who argued and presented evidence showing that the charges were
unsubstantiated and pointed out to procedural irregularities, including the illegal reception
of evidence by the prosecution, uncertified documents and instigation of the case by the
KGB.
11.
The source submits that the money transfers, which were considered by the
Belarusian tax authorities, had a legitimate purpose of funding ordinary human rights
activities of Viasna and was never used as the personal funds of Mr. Bialatski.
12.
It is reported that a number of independent human rights organizations, including
Viasna, have been closed by the authorities and confronted with systematic refusal of
registration since 2003. In its Communication No. 1296/2004, Belyatsky et al. v. Belarus,
the Human Rights Committee concluded that the dissolution of Viasna constituted a
violation of article 22, paragraph 1 of the International Covenant on Civil and Political
Rights and that the co-authors of the complaint were “entitled to an appropriate remedy,
including the re-registration of Viasna” (para. 9). According to the source, the authorities of
Belarus refuse to implement this decision and have denied re-registration to Viasna.
13.
Notwithstanding the position of the authorities, Mr. Bialatski and members of
Viasna have tried to continue their activities in promoting respect for international human
rights and freedoms, providing legal and material assistance to victims of human rights
violations. In order to maintain such activities, members of Viasna decided that the funds
dedicated to Viasna’s human rights activities had to be transferred to a bank account
regularly opened and declared under the Lithuanian domestic law.
14.
The source stresses that Mr. Bialatski and Viasna’s independent activities in the
promotion and protection of human rights in Belarus have been recognized both
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domestically and internationally. Viasna and Mr. Bialatski have been awarded several
prizes, including the Czech Homo Homini Award in 2005, the Norwegian Helsinki
Committee Andrei Sakharov Freedom Award and the Swedish Government Per Anger
Prize in 2006, the Atlantic Council Freedom Award, the Freedom Award of the Danish
daily newspaper Politiken and the Polish Foreign Ministry Pro Dignitate Humana Award in
2011. Over the past decade, Mr. Bialatski has travelled across Eastern Europe, observing
trials, investigating human rights abuses, supporting prisoners’ families and observing
elections.
15.
Mr. Bialatski’s arrest was preceded by his statements at the Council of Europe in
April 2011, about the deteriorating situation of human rights activities in Belarus; his
participation at the FIDH International Board meeting held in Paris in June 2011; and his
speech on the occasion of a hearing on the situation in Belarus before the European
Parliament, in which he called for sanctions against those responsible of human rights
violations in the country.
16.
In light of the foregoing, the source submits that the sentencing and continued
detention of Mr. Bialatski are a direct result of his peaceful exercise of the rights and
freedoms guaranteed under international human rights law, in particular those enshrined in
articles 19 and 22 of the International Covenanat on Civil and Political Rights. According
to the source, Mr. Bialatski’s detention is solely aimed at sanctioning and preventing his
activities as a human rights defender.
17.
The source further states that following sentencing by the first instance court on 24
November 2011, Belarusian NGOs launched a campaign to collect money in order to cover
material damages allegedly done to the State and court budgets, amounting to a total of
757,526,717 Belarusian roubles (approximately US$95,000), equivalent to the fine levied
against Mr. Bialatski. Days before his appeal in January 2012, the entire amount of the fine
was paid.
18.
In its response to an urgent appeal, the Government mentioned that “[t]he
investigation found no confirmation of reports that the … sums [on the basis of which Mr.
Bialatski was prosecuted] in the Lithuanian and Polish banks were intended to fund the
Viasna human rights centre and other organizations.” In the same response, the
Government submits that “[i]nformation from the competent authorities concerning Mr.
Bialatski’s situation convincingly confirms that his detention and remand in custody are not
related to his work as a human rights defender, including in the context of the activities of
the Viasna human rights centre.”
Response from the Government
19.
On 20 April 2012, the Working Group requested the Government of Belarus to
respond to the aforementioned allegations. On 22 May 2012, the Government of Belarus
provided its reply. The Government stated that, in a spirit of constructive collaboration, in
October 2011, it had provided the Working Group with exhaustive arguments showing the
unfounded nature of the allegation that Mr. Bialatski’s arrest and detention could be of an
arbitrary nature. Specifically, the Government stated that its response showed that Mr.
Bialatski’s arrest and detention were based on specific provisions of the Criminal Code and
Code of Criminal Procedure of Belarus and hence could not be considered arbitrary under
article 9 of the Universal Declaration of Human Rights nor article 9 of the International
Covenant on Civil and Political Rights. The provisions of these articles, as of other norms
in these documents related to criminal prosecution and detention in custody, were respected
during the preliminary investigation regarding Mr. Bialatski.
20.
The Government maintains that Mr. Bialatski was informed of his rights and
responsibilities, including his right to defence, immediately upon his arrest. He used the
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services of a lawyer, who represented his interests during the court hearing of the criminal
case, and he had adequate time and possibilities to prepare his defence.
21.
In November 2011, the Pervomaiski district court in Minsk sentenced Mr. Bialatski
to four years and six months’ deprivation of liberty to be served in a strict regime colony,
with confiscation of property.
22.
According to the Government’s response, the court sentence is related exclusively to
his violations of the tax legislation. Mr. Bialatski did not declare substantial financial
resources that he had received from sources outside of Belarus, which is a serious violation
of current the tax legislation (more detailed information may be found in the Government’s
response of 31 October 2011 to the previous urgent appeal).
23.
Specifically, under article 153, paragraph 1.1., of the Tax Code, income received
from sources in Belarus and/or abroad by physical persons recognized under article 17 of
the Code as being resident in Belarus for tax purposes is subject to personal income tax.
Under article 17 of the Tax Code, physical persons who are present in Belarus for more
than 183 days in a calendar year are considered to be resident in the country for tax
purposes, which was Mr. Bialatski’s case.
24.
The Government notes that tax evasion is punishable by law, as it is a criminal
offence in all European countries. Some countries of the European Union provide more
serious penalties than Belarus for violations of the tax legislation. Everybody, without
exception, is prosecuted in the case of tax evasion, regardless of their political or social
status. The legislation of European countries does not contain any guarantee of tax
immunity for persons involved in human rights activities.
25.
The Government conveys that there is no legal basis for the Working Group’s
continued consideration of Mr. Bialatski’s case. The Government submits that Mr.
Bialatski’s detention and the subsequent court decision were based on clear legislative
provisions that are in conformity with the applicable international legal instruments.
26.
The Government further states that the information provided to the Working Group
by the source perversely interprets the situation in respect of the Bialatski case and tries to
give it a political hue. According to the Government, the source has not presented a single
convincing fact in support of the argument concerning a possible violation of the provisions
of international legal instruments.
27.
The Government emphasizes that the source of the information should be aware that,
although the Working Group on Arbitrary Detention has a special thematic mandate, it
cannot replace the domestic judicial system and revise decisions adopted by the judicial
bodies of a Member State of the United Nations.
Further comments from the source
28.
By letter dated 23 August 2012, the source provided further comments. According to
the source, the Government of Belarus vaguely refers to article 9 of the Universal
Declaration of Human Rights and article 9 the International Covenant on Civil and
Political Rights, and fails to demonstrate (1) the degree of compliance, by the authorities,
with all the provisions of article 9 of the Covenant, including in the light of the
jurisprudence of the Human Rights Committee and other international bodies and
mechanisms; and (2) the reasons why it considers that the detention of Mr. Bialatski does
not fall within the scope of the mandate of the Working Group on Arbitrary Detention.
29.
The source refers to the following guarantees under article 9 of the Covenant: the
provisions of the domestic legislation that, in its turn, must comply with the principles of
international instruments, must be observed during the detention; the custody must not only
be lawful, but also reasonable and necessary in all respects (for instance, to prevent escape,
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manipulation of evidence or repetition of earlier crimes); the custody cannot be assessed in
abstract but must be analysed in the light of the concrete circumstances of each case, and all
factual information about the accused; the suspicion that a person committed a criminal
offence is not in itself sufficient ground for holding the detainee in custody during the
investigation and the run up to the trial; the custody must not be considered as a standard
measure to be applied to all individuals suspected of committing a criminal offence. This
measure should be used only as a last resort, only when less strict measures cannot ensure
the proper behaviour of the accused. The source submits that the custodial placement of Mr.
Bialatski during the preliminary investigation was in violation of the aforementioned
standards.
30.
The source submits that any decision taken by the investigative organ and by the
court about the extension of the period of custody, must contain motivations for resorting to
custodial placement, for instance on grounds of necessity, reasonableness and
commensurability. This was not done in the present case and amounts to a violation of the
provisions of article 126, paragraph 2,, of the Criminal Procedure Code of Belarus and
article 9, paragraph 1, of the International Covenant on Civil and Political Rights.
Moreover, the decisions of the courts on the question of the legality of the custodial
placement are based on article 126, paragraph 1 of the Criminal Procedure Code of Belarus,
according to which "the measure of restraint in the form of custodial placement can be
applied to persons who are suspected of committing hard or especially hard crimes solely
on the basis of the graveness of the offence". However, in the present case, neither the
decision of the investigator, nor any court decision concerning the custodial placement of
Mr. Bialatski contain any reasoning for the use of such a restrictive measure towards Mr.
Bialatski. In addition, the source submits that not a single piece of concrete evidence was
provided to demonstrate the likelihood of the danger that the accused could evade justice,
destroy evidence or violate the law. Therefore, the legal norm that allows custodial
placement solely on the basis of the graveness of the offence fails to meet the international
standards, since this approach is not based on the individual assessment of the possibility of
an unlawful behaviour of the accused during the investigation of the case and its
consideration by the court. In the light of the foregoing, the source submits that the
custodial placement of Mr. Bialatski violated article 9, paragraph 1 of the International
Covenant on Civil and Political Rights.
31.
The source further invokes the breach of article 9, paragraph 3, of the Covenant. It
notes that according to the provisions of the Criminal Procedural Code of the Republic of
Belarus, the custodial placement is conducted on the basis of decision of the investigator,
sanctioned by the prosecutor or other organs of criminal prosecution (article 126, paragraph
4, of the Criminal Procedure Code). When considering cases related to Belarus, the Human
Rights Committee has twice stated that the State prosecutor is not a person who possesses
the necessary institutional independence and impartiality to be considered as an "other
officer authorized by law to exercise judicial power" as stated in article 9, paragraph 3, of
the Covenant, since due administration of the judicial power can only be conducted by an
organ that is independent, objective, impartial and unbiased with the regard to the questions
being considered. Consequently, the source submits that the placement of Mr. Bialatski in
custody by the deputy prosecutor of the city of Minsk on 5 August 2011 constitutes a
breach of article 9, paragraph 3 of the International Covenant on Civil and Political Rights.
32.
Furthermore, the source contends that when considering the appeals against the
custodial placement of Mr. Bialatski, the Pervomaiski District Minsk Court and the Court
of the City of Minsk did not observe the requirements of article 9, paragraph 4, of the
Covenant. According to the source, the decisions of the courts do not contain references to
the consideration of any evidence providing sufficient grounds to hold Mr. Bialatski in
custody (such as criteria of necessity, reasonableness and expediency of the use of this
measure towards the relevant individual in the relevant circumstances). Moreover, the court
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assessment was conducted in the absence of Mr. Bialatski, who was thus deprived of the
opportunity to defend himself.
33.
In parallel, the source submits that, in its response, the Government failed to
demonstrate the reasons for which it considers that the detention of Mr. Bialatski does not
fall within the scope of the mandate of the Working Group on Arbitrary Detention. The
Government merely refers to article 153, paragraph 1.1, of the Tax Code, which states that
"income received from sources in Belarus and/or abroad by physical persons recognized
under article 17 of the Code for tax purposes is subject to personal income tax". The source
stresses that Mr. Bialatski was placed in custody under charges of tax evasion (see article
243, paragraph 2, of the Criminal Code) after the Belarusian tax authorities wrongly
considered that money in accounts located in Lithuania and Poland to be Mr. Bialatski’s
personal income, and accused him of concealing it. This money, which was transferred by
major international organizations for the purpose of funding ordinary human rights
activities, was never used by Mr. Bialatski as personal funds, but rather to finance the
legitimate activities of the Human Rights Centre “Viasna”.
34.
According to the source, Mr. Bialatski has always maintained his innocence with
regard to the accusations brought against him. During the preliminary investigation and
throughout the court proceedings, he repeatedly stated that the money, which a number of
foreign funds and organizations had transferred in accounts opened in his name in Poland
and Lithuania were used exclusively to finance the human rights activities of the Human
Rights Centre “Viasna”. The right to freedom of association, guaranteed under article 22 of
the Covenant, covers not only the creation of associations, but also all their subsequent
activities. There is no effective way to conduct those activities without access to funds.
35.
The right of human rights workers and organizations to solicit, receive and utilize
resources specifically to foster and protect human rights and fundamental freedoms by
peaceful means is enshrined in article 13 of the Declaration on human rights defenders2.
The Declaration provides special protection to human rights defenders, including the right
to solicit, receive and utilize resources for the purpose of protecting human rights
(including the receipt of funds from overseas).
36.
The source recalls that the authorities cancelled the official registration of the
Human Rights Center “Viasna” in 2003, then again in 2007, before eventually denying it
official re-registration in 2009. The denial of registration prevented the organization from
opening a bank account in Belarus to receive funds and to pay (or be exempted from) taxes
on the funds received. Moreover, the Criminal Code of Belarus strictly restricts the right of
organizations to receive charitable contributions from overseas that can be used only for
explicitly limited purposes, which exclude human rights-related activities.
37.
The Government has thus cut off all possibilities for the organization to finance its
human rights activities. This legislation is contrary to article 13 of the Declaration on
human rights defenders and violates article 22 of the International Covenant on Civil and
Political Rights. Therefore, the funds dedicated to the human rights activities of the Human
Rights Centre “Viasna” were channelled through Lithuanian and Polish bank accounts, only
because the organization had systematically been denied registration in Belarus, in violation
of article 22 of the Covenant and because article 193, paragraph 1, of the Criminal Code of
Belarus criminalizes its activities “as being part of an unregistered organization”.
2 Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the
General Assembly in its resolution 53/144 of 9 December 1998.
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38.
Consequently, the source reiterates that the sentencing and detention of Mr. Bialatski
are arbitrary as they result from the exercise of his universally recognised human rights that
are criminalized by the legislation of Belarus.
Discussion
39.
Mr. Bialatski was sentenced to four and a half years’ imprisonment with
confiscation of property in 2011, and this judgment was upheld on appeal earlier this year
(2012). Central to the case, as stated by the source, are 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.
40.
In its Communication No. 1296/2004, Belyatsky et al. v. Belarus, the Human Rights
Committee held that the dissolution of Viasna was in violation of the freedom of
association, as guaranteed by article 22 of the International Covenant on Civil and Political
Rights.
41.
The Special Rapporteur on the situation of human rights defenders dealt with the
case in her report of 24 February 2010, and set out the background as follows:
Concern was expressed that the continuous and sustained refusal to register the
human rights organization Viasna might be related to its activities in the promotion
and defence of human rights, in particular its campaign for the abolition of the death
penalty in Belarus. Further concern was expressed that this verdict, and repeated
refusal to register the organization, is in violation of international standards, in
particular article 22 of the International Covenant on Civil and Political Rights, to
which Belarus is a party, and runs counter to the decision of the Human Rights
Committee and the resolution of the Parliamentary Assembly of the Council of
Europe.3.
42.
In the report of the United Nations High Commissioner for Human Rights on the
situation of human rights in Belarus, the following is set out:
The Human Rights Centre Viasna has also been repeatedly targeted by the
authorities. Since cancelling its registration in 2003, the Belarusian authorities
threatened Viasna Chairman Ales Bialatski (also the Vice-President of the
International Federation for Human Rights and a member of the Belarusian
Association of Journalists) with criminal prosecution for “unauthorized NGO
activity” (Criminal Code, art. 193.1). The latest warning was issued in April 2011.
On 20 December 2010, KGB officers reportedly raided the Viasna offices, seized
computers and documentation, and detained 10 staff members, who were released
later the same day. On 4 August 2011, Mr Bialatski was again arrested, placed in a
pretrial detention centre of the Ministry of the Interior and charged with tax evasion.
On 24 November, he was sentenced by the Pervomaiski District Court in Minsk to
four and a half years of maximum security imprisonment and his property
confiscated. Mr Bialatski was convicted for “concealment of incomes on an
especially large scale” (Criminal Code, art. 243.2). The court ruled that Mr Bialatski
had intentionally avoided paying taxes from the money he allegedly kept in bank
accounts abroad; the court disregarded the fact that the money was not Mr
Bialatski’s personal income. He appealed against the verdict, which was, however,
confirmed on 24 December 2011 by the Minsk City Court. In February 2012, Mr.
Bialatski was taken to Babruysk correctional colony No. 2. Another Viasna member,
3 See A/HRC/13/22/Add.1, para. 140.
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11
Valiantsin Stefanovich, was also found guilty of tax evasion and, on 16 December
2011, the court in Minsk sentenced him to a fine for having concealed income.4
43.
In her report on the situation of human rights in Belarus, the United Nations High
Commissioner for Human Rights made the following recommendation:
Put an immediate end to all forms of pressure on and harassment of civil society
organizations, as well as individual human rights defenders; and release immediately
and unconditionally Ales Bialatski, and withdraw charges brought against him and
other human rights defenders.5.
44.
The Working Group has reviewed the submissions made to it and, in particular, the
Government’s information about the first instance and appeal judgements against Mr.
Bialatski in 2011 and 2012, respectively. It has also considered the source’s information
and Mr. Bialatski’s claims that the funds received in the bank account abroad were part of
the fundraising for the non-governmental organization Viasna.
45.
The Working Group notes that there is no immunity for human rights defenders
against criminal charges of the kind in this case. However, government action has to respect
the exercise of human rights, and Governments have specific duties to protect human rights
defenders against different forms of harassment that they may encounter in their activities.
When there are claims of human rights violations in this context, including a pattern of
harassment, domestic authorities and international supervisory bodies should apply the
heightened standard of review of government action. Domestic authorities have a duty to
investigate, and the inquiry must be independent, both institutionally and in practice, and
prompt.
46.
There is no support for such a review being undertaken by the domestic authorities
in the present case. This is despite the fact that there is a close link between continuous
harassment against the work of Mr. Bialatski and his colleagues at Viasna and the
organization was impaired by the authorities from undertaking its activities. This is
particularly striking in the light of the strong criticism expressed by international bodies as
referred to above, as well as the finding of the Human Rights Committee of violation of
article 20 of the Universal Declaration on Human Rights and article 22 of the International
Covenant on Civil and Political Rights in respect of the dissolution of Viasna.
47.
The judgements rendered against Mr. Bialatski do not address his claims that the
funds received in the bank account abroad were part of the fundraising for the activities of
Viasna, nor does the Government’s submission assist the Working Group in this respect.
The Working Group emphasizes 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 Universal Declaration on Human Rights and article 22 of the
International Covenant on Civil and Political Rights. Such government action will not have
effect in public or private law, and will not provide the basis for subsequent criminal
proceedings.
48.
Moreover, the Working Group notes that the criminal law provisions in Belarus
applied to Mr. Bialatski’s case do not list human rights-related activities among the
purposes that allow tax exemption. In this respect, the Working Group emphasizes that
under article 22 of the Covenant, States parties are 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 the legal framework for the incorporation of juridical
4 See A/HRC/20/8, para. 62.
5 Ibid., para. 75 (e).
A/HRC/WGAD/2012/39
12
persons. In the Working Group’s view, measures such as facilitating the tasks of
associations by public funding or allowing tax exemptions for funding received from
outside the country, fall within the scope of the positive obligation under article 22 of the
Covenant. Finally, States are required to protect the establishment or activities of
associations from interference by private parties.
49.
The Working Group further recalls that in accordance with article 22, paragraph 2,
of the International Covenant on Civil and Political Rights, any restriction on the right to
freedom of association must cumulatively meet the following conditions: (a) it must be
provided for by law; (b) it may only be imposed for one of the purposes set out in
paragraph 2; and (c) it must be “necessary in a democratic society” for achieving one of
these purposes. The Government has not established any of these conditions to justify its
action of de-registering Viasna, harassing its members and impairing its activities.
50.
Under these circumstances, the Working Group finds that the fundraising undertaken
by Mr. Bialatski for the purposes of allowing the very existence of Viasna, and continuation
of its activities, is in conformity with the rights contained in article 20, paragraph 1, of the
Universal Declaration on Human Rights and article 22 of the International Covenant on
Civil and Political Rights. The Working Group notes with concern that the criminal
provisions as applied to Mr. Bialatski’s case do not take account of the aforementioned
standards. The Working Group concludes that the sentencing and ongoing detention of Mr.
Bialatski are in breach of article 20, paragraph 1, of the Universal Declaration on Human
Rights and article 22 of the International Covenant on Civil and Political Rights.
Disposition
51.
In the light of the foregoing, the Working Group on Arbitrary Detention renders the
following opinion:
The deprivation of liberty of Aleksandr Viktorovich Bialatski, being in
contravention of article 20, paragraph 1, of the Universal Declaration on Human
Rights and article 22 of the International Covenant on Civil and Political Rights. Is
arbitrary and falls within category II of the arbitrary detention categories referred to
by the Working Group when considering the cases submitted to it.
52.
Consequent upon the opinion rendered, the Working Group requests the
Government to take the necessary steps to remedy Mr. Bialatski’s situation and bring it into
conformity with the standards and principles set forth in the Universal Declaration on
Human Rights and the International Covenant on Civil and Political Right.
53.
The Working Group emphasizes that the adequate remedy is to release Mr. Bialatski
and accord him an enforceable right to compensation pursuant to article 9, paragraph 5, of
the International Covenant on Civil and Political Right.
[Adopted on 31 August 2012]