opencaselaw.ch

A/HRC/WGAD/2021/50

Opinion No. 50/2021 concerning Raman Pratasevich (Belarus)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2021-11-19 · en UN

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.21-18488(E)

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-second session, 15–19 November 2021

Opinion No. 50/2021 concerning Raman Pratasevich (Belarus)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 42/22.

2.

In accordance with its methods of work,1 on 10 August 2021 the Working Group

transmitted to the Government of Belarus a communication concerning Raman Pratasevich.

The Government replied to the communication on 12 October 2021. The State is a party to

the International Covenant on Civil and Political Rights.

3.

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 him or her) (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 Covenant (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);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2021/50

General Assembly

Distr.: General

9 December 2021

Original: English

A/HRC/WGAD/2021/50

2

Submissions

Communication from the source

4.

Raman Pratasevich (also known as Roman Protasevich) is a citizen of Belarus, born

in 1995, who usually resides in Vilnius, Lithuania. The source reports that Mr. Pratasevich is

a well-known independent journalist and a former editor of the influential NEXTA Telegram

channel. The social media channel reportedly played a pivotal role in broadcasting footage

of post-election violence in Belarus and was used as a forum for sharing information about

protest action and police brutality. Mr. Pratasevich is also a co-founder of the independent

“Belarus of the Brain” (Belarus Golovnogo Mozga) Telegram channel. In the wake of a

reported pre-election crackdown on independent journalists and bloggers, Mr. Pratasevich

fled Belarus and sought political asylum in Poland.

5.

On 20 October 2020, the NEXTA Telegram channel was held to be extremist by the

Central District Court of Minsk. On 5 November 2020, Mr. Pratasevich was accused of

organizing mass riots (under art. 293 (1) of the Criminal Code of Belarus), organizing and

preparing activities gravely breaching public order (under art. 342 of the Criminal Code) and

deliberate incitement to social hatred (under art. 130 (3) of the Criminal Code) – crimes

punishable by up to 15 years of imprisonment. On 19 November 2020, Mr. Pratasevich was

placed on the “terrorist list”. On 7 February 2021, the Investigative Committee of Belarus

sent an extradition request to the Government of Poland in relation to Mr. Pratasevich.

a.

Context

6.

The source reports that according to official results of a presidential election held on

9 August 2020, the incumbent – in power since 1994 – won another decisive victory.

According to observers, the election was in violation of electoral law. In the run-up to the

vote, key opposition candidates and vocal critics were reportedly detained and charged with

serious crimes. Furthermore, thousands took to the streets denouncing what they perceived

as an attempt by the incumbent President to hold on to power. The protests, strikes and vocal

challenges were met with suppression and violence by the authorities. Tens of thousands have

reportedly been arrested, and many have been subjected to torture, arbitrary detention,

inhuman treatment, harassment by law enforcement services, or threats of losing their jobs,

custody of their children, or their assets. Leaders of the democratic opposition have been

detained or expelled from Belarus by the authorities. Some judicial actors have reportedly

targeted opponents and protest organizers with charges that carry lengthy terms of

imprisonment.

7.

The source submits that it is in this context that the legality of Mr. Pratasevich’s

detention must be assessed, and that he is a victim of this repression against critics and

opponents. His arrest was motivated by his journalistic activities and was intended to deter

the opposition, civil society and independent journalists.

b.

Arrest and detention

8.

According to the source, on 23 May 2021, at around 0700 Coordinated Universal

Time (UTC), Mr. Pratasevich reported to his colleagues that he was being followed by a

suspicious Russian-speaking man at Athens airport. The man stood behind Mr. Pratasevich

in the boarding queue, tried to engage him in innocuous conversation and attempted to take

a photograph of his travel documents. As Mr. Pratasevich boarded scheduled Ryanair flight

FR4978 to Vilnius, the man disappeared and did not board the aircraft. Flight FR4978 – using

a commercial aircraft registered in Poland (with the registration SP-RSM) – took off from

Athens at 0729 UTC and proceeded towards Vilnius.

9.

The source reports that at 0946 UTC, the flight crew was ordered by Belarusian air

traffic control to divert its course and make an emergency landing at the airport in Minsk.

Belarusian State media confirmed that the aircraft had been diverted on the orders of the

incumbent President. The official reason given for the diversion was a report of an explosive

device aboard the aircraft. At the time of the diversion, flight FR4978 was closer to Vilnius

than to Minsk (it was estimated to be 40 kilometres from the border between Belarus and

Lithuania), while the airport at Minsk was the fifth-closest from the aircraft.

A/HRC/WGAD/2021/50

3

10.

The source submits that at 0948 UTC, the aircraft’s crew reset the aircraft’s

transponder to emergency landing code 7700 (squawk code 7700). The aircraft was escorted

to the airport in Minsk by a Belarusian MiG-29 fighter jet. A video posted online by the

Aviatica Group purports to show the MiG-29 fighter jet after completing its mission. The jet

appears to be carrying a total of six rockets and an external fuel tank. It has been also reported

that a Belarusian Mi-24 helicopter was used during the diversion. According to the source, it

is not known whether the flight crew received an explicit threat of force from Minsk,

nevertheless the threat would have been implicit in the use of military aircraft.

11.

The source reports that at 1016 UTC, flight FR4978 landed at Minsk National Airport.

Despite the official narrative that there was an explosive device aboard the aircraft, the

aircraft was ordered to circle over densely populated areas of Minsk. On landing, Belarusian

law enforcement authorities entered the aircraft and prioritized the arrest of Mr. Pratasevich

and his partner. The authorities’ conduct indicates that the alleged bomb threat was a mere

pretext, and that the real motivation was Mr. Pratasevich’s arrest.

12.

According to the source, at 1358 UTC, the Chief of the Directorate for Combating

Organized Crime and Corruption published a photograph of Mr. Pratasevich next to two State

security officers, confirming his detention. Belarusian authorities then proceeded to check

the luggage and the passengers and released flight FR4978 for its onward journey to Vilnius

at 1747 UTC.

13.

The source reports that on 24 May 2021, Belarusian authorities released a video of

Mr. Pratasevich, in which he appears to be reading from a pre-prepared statement, confirming

that he is in good health and that he is being adequately treated by law enforcement authorities,

and confessing to his role in organizing mass protests in Minsk. Commenting on this video,

an observer noted a visible scar on his forehead, what appears to be a broken nose, and

“powder” covering up other potential bruises on his face, suggesting that he had been forced

to record the video under duress.

14.

According to the source, on 26 May 2021 a lawyer retained by Mr. Pratasevich’s

family attempted to visit him in custody but was denied access to her client by the authorities.

On the same day, commenting on the arrest of Mr. Pratasevich, the incumbent President

reportedly stated that he had warned his opponents before that they would be found and

punished.

15.

The source submits that on 30 May 2021, there were credible reports that Mr.

Pratasevich was being detained at a facility administered by the State Security Committee

(KGB).

16.

The source reports that on 2 June 2021, Belarusian public broadcaster ONT aired what

appears to be a recording of Mr. Pratasevich’s interrogation. In the video, Mr. Pratasevich

discussed an alleged conflict with members of the Belarusian opposition and suggested that

they may be responsible for his arrest. On 3 June 2021, ONT aired an “interview” with Mr.

Pratasevich, during which he appeared to “confess” to plotting anti-government protests and

to praise the incumbent President. When the interviewer asked Mr. Pratasevich whether he

feared being extradited to eastern Ukraine, the question caused Mr. Pratasevich visible

distress followed by an appeal for clemency by the incumbent President. Mr. Pratasevich was

also filmed breaking down into tears towards the end of the “interview”, revealing bruise

marks on his wrists. The source indicates that the “interview” has been widely condemned

as a “forced televised confession” amounting to ill-treatment.

17.

According to the source, Mr. Pratasevich’s access to legal assistance has been

restricted. His chosen counsel had no access to Mr. Pratasevich for at least four days

following his arrest (his counsel was not given information about his whereabouts and was

denied access to the detention facility). Mr. Pratasevich’s counsel is bound by strict non-

disclosure rules, preventing him or her from disclosing any information about the charges,

the investigation or the client’s instructions. The source notes with concern that Mr.

Pratasevich is unable to speak freely to his legal counsel. His counsel is also absent from the

broadcast footage of Mr. Pratasevich’s interrogations and “confessions”. The authorities have

provided no information on Mr. Pratasevich’s health condition. Despite multiple requests

from Mr. Pratasevich’s family, the authorities have refused to allow an independent physician

to conduct a medical assessment of Mr. Pratasevich’s physical and mental state.

A/HRC/WGAD/2021/50

4

18.

The source submits that on 14 June 2021, Belarusian authorities held a press

conference during which it was announced that Mr. Pratasevich was being charged with the

following offences under the Criminal Code: deliberate incitement to social hatred (under art.

130 (3)), organization of mass riots (under art. 293 (1)) and organizing and preparing

activities that gravely breach public order (under art. 342). If found guilty, Mr. Pratasevich

faces up to 15 years of imprisonment.

19.

According to the source, on 25 June 2021 Mr. Pratasevich’s family was informed that

he had been transferred to an unknown location, to be held under de facto house arrest. On

the same day, the Investigative Committee announced that Mr. Pratasevich had signed a

cooperation agreement with the authorities and had been granted a request to be placed under

house arrest. Mr. Pratasevich is reportedly being held under armed guard, is unable to leave

the location of his detention and is unable to communicate freely with his family or anyone

else (he has been allowed to make two calls to his family – both under supervision).

20.

According to the source, it has been alleged that the so-called “Luhansk People’s

Republic” has requested Mr. Pratasevich’s extradition to face unspecified charges. The

source notes with concern that an “extradition” or transfer of Mr. Pratasevich into the custody

of the militia there would raise a serious risk of his death and/or torture and would constitute

a grave violation of his fundamental rights.

c.

Analysis of violations

21.

The source argues that Mr. Pratasevich’s detention meets the Working Group’s

definition of arbitrary deprivation of liberty under categories I, II, III and V.

i.

Category I

22.

The source submits that Belarusian authorities did not release any official information

on the legal basis or reasons for Mr. Pratasevich’s arrest and detention until a journalist asked

the authorities to list the charges at the press conference held on 14 June 2021. Footage

purporting to show Mr. Pratasevich’s “confessions” to organizing mass disturbances do not

satisfy the requirement of formal charges and reasons for detention, especially where there is

a strong presumption that such “confessions” were obtained under duress. There is no

indication that Mr. Pratasevich’s detention has been judicially approved or reviewed since

his arrest. Reportedly, genuine and independent judicial review, capable of rendering his

detention lawful, is not available in cases against critics and political opponents, considering

the well-documented absence of judicial independence and impartiality in such cases.

ii.

Category II

23.

The source argues that notwithstanding the Belarusian authorities’ efforts to

demonstrate that Mr. Pratasevich was involved in organizing riots and mass disturbances,

there are compelling reasons to believe that he is being punished for his journalistic activities.

The source notes that the NEXTA Telegram channel broadcast footage of the authorities’

violent crackdown on peaceful demonstrators during an information blackout of the events

by Belarusian State-controlled media. As editor-in-chief of that platform, Mr. Pratasevich

was exercising a journalistic activity – that is, exercising the fundamental right to freedom of

expression protected by article 19 of the Universal Declaration of Human Rights and article

19 of the Covenant. The platform’s function as a tool for information-sharing about peaceful

demonstrations and civil action is further protected by the right to peaceful assembly under

article 20 of the Universal Declaration of Human Rights and article 21 of the Covenant.

24.

According to the source, despite continuous efforts by the authorities to discredit the

protests as “riots” or “extremist activities”, there is a body of audiovisual and witness

evidence which demonstrates that the protests were peaceful, and that violence was meted

out or directly provoked by Belarusian authorities. The placement of the NEXTA Telegram

channel and its editors on the list of “extremists” and the seeking of their extradition as

“terrorists” further demonstrate the authorities’ intention to persecute Mr. Pratasevich and

his colleagues for their journalistic activities.

A/HRC/WGAD/2021/50

5

iii.

Category III

25.

According to the source, Mr. Pratasevich has been deprived of fundamental fair trial

guarantees and other human rights standards, rendering his detention unlawful. Mr.

Pratasevich’s access to independent legal assistance of his choice has been severely restricted.

He had no access to his chosen counsel for four days following his arrest. There is a strong

presumption that Mr. Pratasevich is unable to give confidential instructions to or receive

confidential advice from his counsel, based on evidence of routine violations of counsel-

client confidentiality in Belarusian pretrial detention facilities. Video footage released by the

authorities demonstrates that Mr. Pratasevich has been interrogated without the presence of

his counsel (which includes the televised “interview” broadcast on 3 June 2021, which may

be regarded as a form of interrogation). Furthermore, there is no evidence that Mr.

Pratasevich has any legal recourse to challenge his detention, or that his detention has been

reviewed by an independent or impartial judiciary. The source argues that the Belarusian

judiciary is not independent of the executive and therefore cannot be regarded as adequate

“judicial supervision” for the purposes of determining lawful pretrial detention. Cumulatively,

these due process violations are of such gravity as to give the deprivation of liberty an

arbitrary character.

iv.

Category V

26.

The source argues that Mr. Pratasevich is being detained on the basis of his political

opinions, and as such, his deprivation of liberty is grounded in discrimination. It is well

known that Mr. Pratasevich is an active member of a Belarusian democratic movement that

opposes the Government of the incumbent President as well as human rights violations. His

arrest, detention and televised “confessions” indicate that he is being punished for his

journalistic activities, which facilitated the expression of political opinion by opposition to

the Government. As such, the authorities have specifically targeted Mr. Pratasevich,

alongside other political opponents and critics, on the basis of their political opinion.

Response from the Government

27.

On 10 August 2021, the Working Group transmitted the allegations from the source

to the Government under its regular communications procedure. The Working Group

requested the Government to provide, by 11 October 2021, detailed information about the

current situation of Mr. Pratasevich and to clarify the legal provisions justifying his continued

detention, as well as its compatibility with the obligations of Belarus under international

human rights law, and in particular with regard to the treaties ratified by the State. Moreover,

the Working Group called upon the Government of Belarus to ensure his physical and mental

integrity.

28.

On 11 October 2021, the authorities of Belarus informed the Working Group that they

would require additional time to transmit the response. On 12 October 2021, the

Government’s response was received by the Working Group.

29.

In this reply, the Government states that on 23 May 2021, the Minsk National Airport

email address “info@airport.by” received from a “protonmail.com” email address a message

written in English that read: “We, the Hamas soldiers, demand that Israel ceases fire in the

Gaza Strip. We demand that the European Union renounces its support for Israel in this war.

It is known that attendees of Delphi Economic Forum are returning home on the flight

FR4978. This plane has a bomb. If you do not fulfil our demands, the bomb will explode on

23 May over Vilnius.” Taking into account the seriousness of the threat received, the

information from Minsk National Airport was forwarded to the relevant air traffic control

bodies of the State enterprise “Belaeronavigatsia”.

30.

The Government notes that in accordance with the requirements of appendix 17 to the

Convention on International Civil Aviation (the Chicago Convention) and of the National

Programme for the Protection of Civil Aviation from Acts of Unlawful Interference in the

Republic of Belarus, a mechanism was activated to guide the response to this act of unlawful

interference in civil aviation activities.

31.

Flight FR4978 followed the route from Athens to Vilnius and was operated by Ryanair

using a Boeing 737-800. The aircraft departed Athens airport at 0710 UTC (10.10 a.m.

A/HRC/WGAD/2021/50

6

Belarusian time) and entered the airspace of Belarus, coming under the control of the Minsk

Regional Air Traffic Control Centre, at 0930 UTC (12.30 p.m. Belarusian time).

32.

After communication was established between Belarusian air traffic control and the

crew of the aircraft, the crew was immediately informed about the incoming threat regarding

the possible presence of an explosive device on board the aircraft, and a recommendation

was issued to land at an alternate airfield at Minsk National Airport. The crew sought

clarification several times about the source of the information and was informed that the

initial information with threats had been received at Minsk National Airport.

33.

Prior to that, the flight director at the Minsk Regional Air Traffic Control Centre tried

several times to call the office of the Ryanair representative in Lithuania using the phone

number provided by the aircraft’s crew, but it was not possible to contact any of the airline’s

representatives.

34.

After receiving and clarifying the information, the crew of flight FR4978, in

accordance with the established international requirements, at 0947 UTC (12.47 p.m.

Belarusian time), reset the aircraft’s transponder to code 7700 (indicating an emergency), and

in radio-telephone mode requested assistance, using the established phrase “Mayday”.

Thereafter, the crew, in accordance with the requirements of standard 3.7.2 in annex 2 to the

Chicago Convention, announced that they had decided to land at Minsk National Airport.

35.

Taking into account the decision made independently by the crew, the air traffic

control bodies of Belarus provided the flight’s crew with all the necessary priority assistance.

An appropriate emergency plan was put into effect at Minsk National Airport, and all relevant

services of the airport and other concerned State bodies were notified and alerted in

accordance with the established procedure.

36.

The landing of flight FR4978 at Minsk National Airport was safely completed at 1015

UTC (1.15 p.m. Belarusian time).

37.

After landing, the aircraft, in accordance with the established international and

national requirements in the area of aviation security, was assigned a special isolated parking

stand, where the relevant actions for inspection and questioning were carried out in relation

to the aircraft, the crew, the passengers, baggage, cargo and mail.

38.

These actions are provided for and must be performed by States in accordance with

the standards set out in chapter 5 of annex 17 to the Chicago Convention.

39.

After completion, at 1320 UTC, of all procedures established by international and

national law, flight FR4978 departed Minsk National Airport at 1748 UTC and at 1827 UTC

made a safe landing at the airport in Vilnius.

40.

According to preliminary conclusions from the Aviation Department, bearing in mind

the requirements under international law, the Belaeronavigatsia air traffic control services,

the aircraft’s crew, and the Minsk National Airport staff involved in the situation described,

acted within the framework of the requirements prescribed by the International Civil Aviation

Organization (ICAO).

41.

The Government explains that representatives of Belarus took part in an extraordinary

meeting of the ICAO Council on 27 May 2021 and, in a spirit of cooperation and transparency,

provided all available information on the emergency landing of the aircraft. For the first time

in its history, the ICAO Council decided to conduct an investigation under article 55 (e) of

the Chicago Convention. The Government notes, however, that the case in Minsk on 23 May

2021 is not exceptional. A number of incidents of coerced landing of civilian aircraft have

occurred during the twenty-first century alone. In 1956, France forced a flight to land to arrest

Algerian independence fighter Ahmed Ben Bella. None of these cases were investigated by

ICAO.

42.

The Government submits that without waiting for the preliminary results from the

ICAO working group investigating this “incident”, on 4 June 2021 the European Union

decided to ban aircraft of the national airline, Belavia, from flying to European Union airports

and flying over European Union territory. It recommended that European carriers refrain

from flying in Belarusian airspace. At the same time, not being a member of ICAO, the

European Union has no legal basis for applying sanctions in respect of foreign aircraft, or for

A/HRC/WGAD/2021/50

7

interfering in the scope of bilateral agreements on air services between European Union

members and other countries, in violation of the provisions of the Chicago Convention.

43.

According to the Government, despite the readiness of Belarus to receive international

experts, it was only two months after the start of the investigation that the ICAO mission

arrived in Belarus. During the visit, the ICAO representatives were provided with

documentation, as well as the opportunity to interview a number of aviation specialists from

Belaeronavigatsia and Minsk National Airport, and military personnel of the Air Force and

Air Defence Forces of the Armed Forces of Belarus. ICAO experts have refused to meet with

passengers who refused to fly on to Vilnius and stayed in Minsk, including Mr. Pratasevich,

who was detained by law enforcement agencies.

44.

The Investigative Committee carried out a preliminary investigation in a criminal case

in connection with mass riots, as well as other connected crimes that took place on 9 August

2020 and the following days.

45.

The Government notes that, according to the results of an examination of information

published on the NEXTA, NEXTA Live and “Belarus of the Brain” Telegram channels, of

which Mr. Pratasevich was editor-in-chief, it was established that these contained: (a) calls

for violence against representatives of the authorities of Belarus, and other information aimed

at organizing mass riots on the territory of Belarus, and group actions grossly violating public

order, and at educating and preparing persons to participate in the named illegal actions; and

(b) publications aimed at fomenting and reinforcing hostility and hatred towards law

enforcement officials, civil servants, government officials and the public who actively

advocate for the observance of law and order and for the preservation of the current State

constitutional system of Belarus, discrediting and insulting them.

46.

The Government submits that in the course of the investigation, a psycholinguistic

examination of the information posted on the NEXTA and NEXTA Live Telegram channels

was carried out. According to the expert conclusion of 29 October 2020, the information

contains signs of extremism and calls for extremist activity.

47.

On 23 November 2020, Partizansky District Court, in Minsk, ruled that these Internet

resources should be recognized as extremist materials.

48.

According to the Government, on the basis of the evidence collected against Mr.

Pratasevich, who left to seek permanent residence in Poland in November 2019, orders were

issued on applying a preventive measure in respect of Mr. Pratasevich in the form of detention

and on prosecuting him for committing crimes under parts 1 and 2 of article 342, parts 1 and

3 of article 293 and part 3 of article 130 of the Criminal Code, and it was announced that he

had been included on a wanted list.

49.

During the passport control check on 23 May 2021 at Minsk National Airport, Mr.

Pratasevich was detained by police officers in accordance with article 108 of the Criminal

Procedure Code. On the same day, with the approval of the deputy prosecutor of the city of

Minsk, a preventive measure was applied in respect of Mr. Pratasevich in the form of

detention, which was subsequently changed to house arrest on 23 June 2021.

50.

The necessary investigations were carried out, with the participation of Mr.

Pratasevich and his legal counsel, and with the use of some video recordings, during which

the accused pleaded guilty to the crimes imputed to him, and made a confession.

51.

At Mr. Pratasevich’s initiative, a pretrial cooperation agreement was concluded with

him on 30 June 2021, under which he actively provides assistance in investigating the

criminal case, identifying all instances of criminal activity and exposing the participants.

52.

Mr. Pratasevich has not made any complaints about the criminal case, or about the

state of his health during the investigation. In addition, the accused personally rejected, in the

presence of his defence lawyer, the defence lawyer’s petition to conduct a forensic medical

examination of Mr. Pratasevich, pointing out that no violence had been used against him. The

accused did not request a medical assessment of his physical and psychological condition.

According to the conclusion of the forensic psychological examination of Mr. Pratasevich on

10 August 2021, his psychological state is intact and he is not suffering from any mental

disorder.

A/HRC/WGAD/2021/50

8

53.

The accused provides testimony voluntarily without any influence from law

enforcement officers. All investigations and proceedings are carried out with the participation

of defence counsel and observance of the rights of the accused under the Criminal Procedure

Code, in accordance with the objectives and principles of the criminal process. Mr.

Pratasevich communicates freely with his defence lawyer, in private and confidentially,

without a limitation on the number or the duration of the conversations.

54.

Currently, the preliminary investigation in the criminal case against Mr. Pratasevich

continues.

Further comments from the source

55.

On 12 October 2021, the reply of the Government was transmitted to the source, for

further comments, which the source submitted on 27 October 2021, rejecting the submissions

made by the Government. Firstly, the source argues that the submissions by the Government,

claiming that an email containing a threat of terrorism was received by the airport, which

served as the basis for the request to ground the aircraft, lack credibility.

56.

The source further contends that, in any case, these submissions have no bearing upon

the subsequent arbitrary detention of Mr. Pratasevich, which the Government has failed to

rebut. The source submits that, following his arrest on the airfield, Mr. Pratasevich has been

held in what authorities describe as house arrest, yet his exact location is unknown. The

source argues that the Government has failed to explain the reasons for his arrest, just as it

has failed to show what actions of Mr. Pratasevich invoked his individual responsibility for

a specific crime. Moreover, the source points out that all accusations against Mr. Pratasevich

have been presented by the authorities and the procuracy, as he has never appeared before a

court of law.

57.

The source concludes by reiterating that the detention of Mr. Pratasevich since 23

May 2021 amounts to arbitrary deprivation of liberty.

Discussion

58.

The Working Group thanks the source and the Government for their submissions.

59.

As a preliminary issue, the Working Group notes that the Government has argued that

Mr. Pratasevich has been under house arrest as of 23 June 2021, while the source states that

the family was informed of his house arrest on 25 June 2021. The source has further submitted

that Mr. Pratasevich is under house arrest at an unknown location, and that he is reportedly

being held under armed guard, is unable to leave the location of his detention and is unable

to communicate freely with his family or anyone else (he has been allowed to make two calls

to his family – both under supervision). While the Government had the opportunity to address

these allegations, it has chosen not to do so; neither has the Government contested the

source’s claim that the current situation of Mr. Pratasevich amounts to deprivation of liberty.

60.

Since not every house arrest amounts to a deprivation of liberty,2 the Working Group

recalls that an assessment must be carried out in each individual case. As the Working Group

has stated, “deprivation of liberty is not only a question of legal definition, but also of fact.

If the person concerned is not at liberty to leave, then all the appropriate safeguards that are

in place to guard against arbitrary detention must be respected.” 3 Moreover, in its

jurisprudence, the Working Group maintains that house arrest amounts to a deprivation of

liberty provided that it is carried out in closed premises which the person is not allowed to

leave.4 In determining whether this is the case, the Working Group considers whether there

are limitations on the person’s physical movements, on receiving visits from others and on

2 See, for example, opinion No. 37/2018.

3 A/HRC/36/37, para. 56.

4 See, for example, opinions No. 37/2018 and No. 13/2007; and deliberation No. 1 (E/CN.4/1993/24,

sect. II).

A/HRC/WGAD/2021/50

9

various means of communication, as well as the level of security around the place where the

person is allegedly detained.5

61.

In the present case, the source has alleged, and the Government does not contest, that

Mr. Pratasevich has been held at an unknown location since 23 June 2021, that he is being

held under armed guard, that he is unable to leave the place at will and that his ability to

communicate with the outside world is severely restricted. The Working Group therefore

considers that Mr. Pratasevich’s situation amounts to that of deprivation of liberty. In making

this determination, the Working Group recalls that it applies a heightened standard of review

in cases in which freedom of expression and opinion is restricted. 6 Moreover, it is not

contested that Mr. Pratasevich was arrested on 23 May 2021 and was in pretrial detention in

custody until 23 June 2021.

62.

In determining whether the deprivation of liberty of Mr. Pratasevich was arbitrary, the

Working Group has regard to the principles established in its jurisprudence to deal with

evidentiary issues. If the source has established a prima facie case for breach of international

requirements constituting arbitrary detention, the burden of proof should be understood to

rest upon the Government if it wishes to refute the allegations. Mere assertions by the

Government that lawful procedures have been followed are not sufficient to rebut the

source’s allegations.7

63.

The source has argued that the arrest and detention of Mr. Pratasevich is arbitrary and

falls under categories I, II, III and V. The Government denies these allegations. The Working

Group shall proceed to examine the allegations in turn.

Category I

64.

The source has argued that the detention of Mr. Pratasevich falls under category I

since the authorities did not release the official list of charges against him until this was

requested by journalists on 14 June 2021. The source also argues that the grounding of the

plane on 23 May 2021 was a mere pretext for the arrest of Mr. Pratasevich. However the

Government denies these allegations, arguing that the grounding of the plane was warranted

by a credible terrorist threat received by Minsk National Airport on 23 May 2021. According

to the Government, the arrest of Mr. Pratasevich had in fact been warranted since 23

November 2020, when a court accepted the expert evidence in a case against him and ordered

pretrial detention. However, given that Mr. Pratasevich had left Belarus, the pretrial detention

could not be effected until he was discovered among the passengers on flight FR4978 on 23

May 2021. Mr. Pratasevich was therefore arrested on 23 May 2021.

65.

From the outset, the Working Group wishes to remark on the incredible circumstances

of the present case, involving the grounding of an aeroplane, which was followed by the

arrest of Mr. Pratasevich. While the Working Group takes note of the Government’s

submissions that these two events are not connected, it is nevertheless perplexed that in its

reply the Government also draws a parallel between these events and those of 1956 where it

alleges that France forced the grounding of an airplane in order to carry out the arrest of an

Algerian national. The Government contends that this was accepted as legitimate by the

international community and that the same should be the case in respect of the events of 23

May 2021, thus implying that the true reason for grounding the plane was indeed the arrest

5 See, for example, opinion No. 16/2011, para. 7: an individual under house arrest could not meet with

foreign diplomats, journalists or other visitors at her apartment, and her mobile telephone and the

Internet were cut off. She was not allowed to leave her apartment, except on short approved trips and

under police escort, and the entrance to the compound was guarded by security agents. See also

opinions No. 39/2013, No. 30/2012, No. 12/2010, No. 47/2006, No. 18/2005, No. 11/2005, No.

11/2001, No. 4/2001, No. 41/1993 and No. 21/1992.

6 Opinions No. 57/2017, para. 46; No. 41/2017, para. 95; No. 62/2012, para. 39; No. 54/2012, para. 29;

and No. 64/2011, para. 20. Domestic authorities and international supervisory bodies should apply the

heightened standard of review of government action, especially when there are claims of a pattern of

harassment (see opinion No. 39/2012, para. 45). See also the Declaration on the Right and

Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally

Recognized Human Rights and Fundamental Freedoms, art. 9 (3).

7 A/HRC/19/57, para. 68.

A/HRC/WGAD/2021/50

10

of Mr. Pratasevich. However, noting the ongoing investigation into the incident by ICAO,

the Working Group refrains from making any further comments on the matter.

66.

Notwithstanding this, the Working Group notes that, as submitted by the Government,

when arrested on 23 May 2021 Mr. Pratasevich was placed in pretrial detention by the deputy

prosecutor of the city of Minsk, who also was the authority who substituted his pretrial

detention with house arrest on 23 June 2021.

67.

The Working Group recalls that according to article 9 (3) of the Covenant, anyone

arrested or detained on a criminal charge is to be brought promptly before a judge to exercise

judicial power. As the Human Rights Committee has noted, 48 hours is ordinarily sufficient

to satisfy the requirement of bringing a detainee “promptly” before a judge; any longer delay

must remain absolutely exceptional and be justified under the circumstances.8 The Working

Group emphasizes that the prosecutorial body cannot be considered a judicial authority for

the purposes of article 9 (3) of the Covenant.9 Noting the uncontested facts described above,

the Working Group finds that Mr. Pratasevich was not brought promptly before a judicial

authority, in violation of article 9 (3) of the Covenant.

68.

Moreover, to establish that a detention is indeed legal, anyone detained has the right

to challenge the legality of his or her detention before a court, as provided by article 9 (4) of

the Covenant. The Working Group recalls that according to the United Nations Basic

Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of

Their Liberty to Bring Proceedings Before a Court, the right to challenge the lawfulness of

detention before a court is a self-standing human right, which is essential to preserve legality

in a democratic society.10 This right, which is in fact a peremptory norm of international law,

applies to all forms of deprivation of liberty11 and to “all situations of deprivation of liberty,

including not only to detention for purposes of criminal proceedings but also to situations of

detention under administrative and other fields of law, including military detention, security

detention, detention under counter-terrorism measures”. 12 Moreover, it also applies

“irrespective of the place of detention or the legal terminology used in the legislation. Any

form of deprivation of liberty on any ground must be subject to effective oversight and

control by the judiciary.”13

69.

The right to take proceedings before a court in order for the court to decide upon the

lawfulness of detention also must take place without any substantial delay, as specified in

article 9 (4) of the Covenant, and as the Human Rights Committee has specified in its general

comment No. 35 (2014), the adjudication of the case should take place as expeditiously as

possible.14 In the present case, Mr. Pratasevich was not availed of the opportunity to exercise

his right to challenge the legality of his detention without delay. In fact, he was not presented

before a judicial authority either upon his arrest on 23 May 2021 or when his pretrial

detention was substituted with house arrest on 23 June 2021. In fact, from the submissions

made by the Government, it appears that Mr. Pratasevich has not been presented before a

judicial authority at all since his arrest on 23 May 2021. The Working Group therefore finds

that both of these failures amounted to a violation of article 9 (4) of the Covenant.

70.

Furthermore, the source has submitted that Mr. Pratasevich was denied access to legal

counsel of his choice for at least four days after his detention. While the Government argues

that Mr. Pratasevich was granted the legal assistance of his choice, the Working Group is

mindful that the Government has neither submitted the date when such legal assistance was

granted nor indeed challenged the submissions about access to legal counsel being denied for

the first four days. In these circumstances, the Working Group finds that the denial of legal

assistance for four days after the arrest further adversely impacted Mr. Pratasevich’s ability

to exercise his rights under article 9 (4) of the Covenant. Recalling that judicial oversight of

8 See the Committee’s general comment No. 35 (2014), paras. 32–33.

9 Ibid., para. 32. See also opinions No. 23/2021; No. 41/2020, para. 60; No. 6/2020, para. 47; No.

5/2020, para. 72; and No. 14/2015, para. 28; and A/HRC/45/16/Add.1, para. 35.

10 A/HRC/30/37, paras. 2–3.

11 Ibid., para. 11.

12 Ibid., para. 47 (a).

13 Ibid., para. 47 (b).

14 See para. 47.

A/HRC/WGAD/2021/50

11

detention is a fundamental safeguard of personal liberty15 and is essential in ensuring that

detention has a legal basis, the Working Group finds a breach of article 9 (4) of the Covenant.

71.

Noting all the above, the Working Group concludes that the Belarusian authorities

failed to establish the legal basis of Mr. Pratasevich’s detention in accordance with the

provisions of the Covenant. The Working Group therefore finds that his detention was

arbitrary and falls under category I as lacking legal basis.

Category II

72.

The source has argued that the detention of Mr. Pratasevich was based solely on his

legitimate exercise of rights under articles 19 and 21 of the Covenant. The Government has

argued that Mr. Pratasevich was arrested and charged because an investigation established

that certain resources on Telegram channels for which Mr. Pratasevich performed the

functions of editor-in-chief contained elements which included (a) calls for violence against

representatives of the authorities of Belarus, and other information aimed at organizing mass

riots on the territory of Belarus, and group actions grossly violating public order, and at

educating and preparing persons to participate in the named illegal actions; and (b)

publications aimed at fomenting and reinforcing hostility and hatred towards law

enforcement officials, civil servants, government officials and the public who actively

advocate for the observance of law and order and for the preservation of the current State

constitutional system of Belarus, discrediting and insulting them. The Government has

specified that the Internet outlets that Mr. Pratasevich worked for were recognized as

extremist by a court on 23 November 2020 on the basis of an expert opinion issued on 29

October 2020, without providing any further details, especially concerning the individual

actions of Mr. Pratasevich.

73.

Thus, the Working Group observes that while the Government had the opportunity to

explain which specific actions by Mr. Pratasevich amounted to crimes, it has chosen not to

do so. Equally, while the Government had the opportunity to address the specific allegations

of infringements upon Mr. Pratasevich’s freedoms of expression and assembly, it has chosen

not to address these at all.

74.

Freedom of expression includes the right to seek, receive and impart information and

ideas of all kinds, regardless of frontiers, and this right includes the expression and receipt of

communications of every form of idea and opinion capable of transmission to others,

including political opinions.16 Moreover, the permitted restrictions to this right may relate

either to respect of the rights or reputations of others or to the protection of national security

or of public order (ordre public) or of public health or morals. As the Human Rights

Committee has stipulated: “Restrictions are not allowed on grounds not specified in

paragraph 3, even if such grounds would justify restrictions to other rights protected in the

Covenant. Restrictions must be applied only for those purposes for which they were

prescribed and must be directly related to the specific need on which they are predicated.”17

It should be noted that article 21 of the Covenant permits restrictions to the right of assembly

on the same three grounds.

75.

In the present case, the Government of Belarus, in its response to the submissions

made by the source, has not invoked any of the permitted restrictions; the Government has

cited a number of criminal acts allegedly committed by Mr. Pratasevich without any

explanation as to what actions constituted these violations. It is quite clear to the Working

Group that in fact the basis for the arrest and subsequent detention of Mr. Pratasevich was

his exercise of freedom of expression and freedom of assembly. There is no evidence

whatsoever that any of his actions have been violent, that he incited violence or indeed that

his actions have led to violence by others. While freedom of expression and freedom of

assembly are not absolute rights, “when a State party imposes restrictions on the exercise of

freedom of expression, these may not put in jeopardy the right itself”.18 Moreover, “paragraph

3 may never be invoked as a justification for the muzzling of any advocacy of multi-party

15 A/HRC/30/37, para. 3.

16 Human Rights Committee, general comment No. 34 (2011), para. 11.

17 Ibid., para. 22.

18 Ibid., para. 21.

A/HRC/WGAD/2021/50

12

democracy, democratic tenets and human rights”.19 It appears to the Working Group, however,

that this is exactly what happened in the present case.

76.

The Working Group wishes to specifically recall Human Rights Council resolution

24/5, which “reminds States of their obligation to respect and fully protect the rights of all

individuals to assemble peacefully and associate freely, online as well as offline, including

in the context of elections, and including persons espousing minority or dissenting views or

beliefs, human rights defenders, trade unionists and others”.

77.

Equally, the Working Group recalls the principle enunciated in Human Rights Council

resolution 12/16, in which the Council calls upon States to refrain from imposing restrictions

which are not consistent with article 19 (3) of the Covenant – including on: discussing

government policies and political debate; reporting on human rights; engaging in peaceful

demonstrations or political activities, including for peace or democracy; and expressing

opinion and dissent, religion or belief.

78.

Finally, the Working Group notes the undisputed fact that Mr. Pratasevich is a

journalist, and in this regard recalls the 2021 report of the United Nations High Commissioner

for Human Rights which records the following in the context of the pre-election events in

Belarus in 2020:

Journalists and human rights defenders were regularly harassed and detained while

exercising their legitimate functions in the context of assemblies, including on the

grounds of “participating in unauthorized events” while covering public gatherings.20

79.

Very similar reports followed the post-election period in the country:

Journalists have been routinely detained in the context of the protests, even when they

clearly identified themselves as such with their press cards, without regard for their

protection under international human rights law to exercise their functions of reporting

during assemblies. Between 9 August and 20 December, 384 journalists were arrested,

80 were sentenced to administrative detention, several were fined, and 62 reportedly

experienced violence and beatings.21

80.

Turning specifically to the outlets and publications that Mr. Pratasevich worked for,

both the Office of the United Nations High Commissioner for Human Rights (OHCHR) and

the Special Rapporteur on the situation of human rights in Belarus have raised concerns about

the Telegram-based channel NEXTA Live and its logo being held to be “extremist” by

national courts, since the legislation on extremism contains unclear definitions and imprecise

procedures for determining what is considered extremist, thus raising concerns about the

inhibiting effect of the use of such legislation on freedom of expression and freedom of the

media.22

81.

The Working Group recalls that the Human Rights Committee, in its general comment

No. 37 (2020),23 has clarified that the protection under article 21 of the Covenant extends to

participating in an “assembly” by organizing or taking part in a gathering of persons for a

purpose such as expressing oneself, conveying a position on a particular issue or exchanging

ideas.

82.

It is thus clear to the Working Group that the arrest and detention of Mr. Pratasevich

was based solely on his journalistic activity, and his freedoms of expression and assembly,

following the pattern identified by OHCHR and the Special Rapporteur on the situation of

human rights in Belarus, as noted above.

83.

The Working Group consequently finds that the arrest and detention of Mr.

Pratasevich is arbitrary and falls under category II. The Working Group refers the present

case to the Special Rapporteur on the promotion and protection of the right to freedom of

19 Ibid., para. 23.

20 A/HRC/46/4, para. 19.

21 Ibid., para. 37.

22 Ibid., para. 36; and A/74/196, para. 54.

23 See para. 12.

A/HRC/WGAD/2021/50

13

opinion and expression and the Special Rapporteur on the rights to freedom of peaceful

assembly and of association, for appropriate action.

Category III

84.

Given its finding that the deprivation of liberty of Mr. Pratasevich is arbitrary under

category II, the Working Group wishes to emphasize that no trial of Mr. Pratasevich should

take place. However, the investigations against Mr. Pratasevich are ongoing, he remains

charged, and court proceedings are expected. The source has made a number of submissions

concerning the denial of fair trial rights to Mr. Pratasevich, which the Working Group shall

proceed to examine.

85.

The source has submitted that Mr. Pratasevich’s fair trial rights were denied and that

his detention is therefore arbitrary. In particular, the source has alleged that Mr. Pratasevich

was denied access to legal counsel for the first four days of his detention, and that

subsequently such access was seriously impeded as he was unable to speak freely with his

lawyer and to receive confidential advice. The source has also argued that Mr. Pratasevich

appeared in a number of televised interviews and confessions during which his lawyer was

not present.

86.

The Working Group notes that all these allegations were detailed to the Government.

However, the Government has merely stated that the requisite investigatory actions were

undertaken with the cooperation of Mr. Pratasevich and his lawyer, which included a video

recording during which Mr. Pratasevich himself voluntarily confessed to the charges. The

Government has also argued that Mr. Pratasevich voluntarily entered a pretrial cooperation

agreement on 30 June 2021, under which he actively provides assistance in investigating the

criminal case, identifying all instances of criminal activity and exposing the participants.

However, the Government has chosen not to address the credible allegations that the

confidentiality of communication between Mr. Pratasevich and his lawyer was not preserved.

87.

The right to legal assistance is an essential element of the right to a fair trial as

encapsulated in article 10 of the Universal Declaration of Human Rights and article 14 of the

Covenant, as it preserves equality of arms and thus the overall fairness of the proceedings. In

the present case, the Working Group finds that Mr. Pratasevich was denied access to legal

assistance following his arrest, in violation of his right to adequate time and facilities for the

preparation of his defence and to communicate with counsel under article 14 (3) (b) of the

Covenant. The Working Group recalls that all persons deprived of their liberty have the right

to legal assistance by counsel of their choice at any time during their detention, including

immediately after their apprehension, as well as throughout their detention, and that such

access is to be provided without delay.24

88.

Furthermore, the source has argued that Mr. Pratasevich was unable to speak freely

with his lawyer and that the Government has not addressed the allegation concerning the

denial of confidential communications with his lawyer. The Working Group notes that the

right to communicate with counsel, as encapsulated in article 14 (3) (b) of the Covenant,

entails the requirement that the legal counsel be able to meet his or her client in private and

to communicate with the accused in conditions that fully respect the confidentiality of their

communications.25 In the view of the Working Group, this was denied to Mr. Pratasevich,

and it therefore finds a breach of article 14 (3) (b) of the Covenant as well as of rule 61 (1)

of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson

Mandela Rules) and principle 18 (3) of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment.

89.

The Working Group also wishes to place on record its discomfort over the uncontested

allegations that strict confidentiality and non-disclosure covenants have been placed on Mr.

24 A/HRC/45/16, paras. 50–53; and A/HRC/30/37, principle 9 and guideline 8. See also opinions No.

42/2018, No. 83/2018 and No. 67/2020.

25 Human Rights Committee, general comment No. 32 (2007), para. 34. See also Khomidova v.

Tajikistan (CCPR/C/81/D/1117/2002), para. 6.4; Siragev v. Uzbekistan (CCPR/C/85/D/907/2000),

para. 6.3; and Gridin v. Russian Federation (CCPR/C/69/D/770/1997), para. 8.5; and opinions No.

42/2018, No. 83/2018 and No. 67/2020.

A/HRC/WGAD/2021/50

14

Pratasevich’s lawyer. The Working Group is concerned that such covenants have a serious

adverse impact on the ability of the lawyer to represent the client properly, and amount to a

further violation of Mr. Pratasevich’s right to a lawyer of his own choosing as provided under

article 14 (3) (b) of the Covenant as well as principle 9 of the United Nations Basic Principles

and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their

Liberty to Bring Proceedings Before a Court.26 The Working Group refers the present case to

the Special Rapporteur on the independence of judges and lawyers, for further consideration.

90.

The Working Group notes the allegations of various televised appearances of Mr.

Pratasevich which the source argues were forced, but which the Government contends were

entirely voluntary and took place with the cooperation of Mr. Pratasevich and his lawyer.

The Working Group notes, however, that the Government has not addressed the allegations

about these various “interviews” and “confessions” being aired on national television on

several occasions, nor the allegation that Mr. Pratasevich’s lawyer did not appear in them.

Moreover, the Working Group has already established serious interference with Mr.

Pratasevich’s right to legal assistance, as well as with the confidentiality of the

communication with his lawyer, which casts further serious doubt on the voluntariness of

these televised appearances.

91.

Furthermore, the Working Group observes that the Government has provided no

explanation as to the purpose of these televised appearances, although it had the opportunity

to do so. Noting that Mr. Pratasevich at the time of these televised appearances was a suspect,

with charges against him and liable to court proceedings, he was and remains entitled to be

presumed innocent until proven guilty, as required under article 14 (2) of the Covenant, and

it was the duty of the Belarusian authorities to preserve this right.

92.

The Working Group wishes to emphasize that the presumption of innocence is one of

the fundamental principles of a fair trial and is thus non-derogable,27 and guarantees that no

guilt can be presumed until the charge has been proved beyond reasonable doubt.28 As the

Human Rights Committee has stated, it is the duty of public authorities to refrain from

prejudging the outcome of a trial – for example by abstaining from making public statements

affirming the guilt of the accused.29 In the present case, the Working Group considers that Mr.

Pratasevich’s right to the presumption of innocence under article 11 (1) of the Universal

Declaration of Human Rights and article 14 (2) of the Covenant was violated.

93.

The Working Group also notes the source’s submissions that during the televised

interview of 24 May 2021, Mr. Pratasevich appeared to have a visible scar on his forehead,

as well as a broken nose and “powder” covering up possible bruising. Although these

allegations were put to the Government, it has chosen not to address them, but has merely

stated that all televised appearances of Mr. Pratasevich were entirely voluntary and he

declined medical examinations requested by his lawyer. The Government has submitted that

the medical examination ordered by the court took place on 10 August 2021, which

concluded that he was in good physical and mental health.

94.

The Working Group is seriously disturbed by the allegations concerning Mr.

Pratasevich’s television appearance on 24 May 2021 and is mindful of the failure of the

Government to address these, as well as its failure to allow an independent medical

examination of Mr. Pratasevich at the time. Although the Government contends that Mr.

Pratasevich refused the medical examination requested by his lawyer, the Working Group is

mindful of the very serious interference it has already established with the right of Mr.

Pratasevich to communicate confidentially with his lawyer.

95.

Equally, the Working Group is not persuaded by the argument presented by the

Government that Mr. Pratasevich was examined on 10 August 2021 and was found to be in

good health. Any examination that may have been carried out on that date may not have

uncovered whatever may have happened to Mr. Pratasevich some three months prior, in May

26 Opinions No. 42/2020, No. 66/2019, No. 28/2018, No. 70/2017, No. 36/2017, No. 34/2017, No.

32/2017, No. 29/2017 and No. 14/2017.

27 Human Rights Committee, general comment No. 32 (2007), para. 6; see also opinion No. 67/2020.

28 Human Rights Committee, general comment No. 32 (2007), para. 30.

29 Ibid. See also opinions No. 63/2020, No. 45/2019 and No. 30/2017.

A/HRC/WGAD/2021/50

15

2021. In this regard, the Working Group recalls that the Manual on the Effective Investigation

and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (Istanbul Protocol) 30 specifically highlights the particular importance of the

timeliness of the medical examination. The Working Group also recalls that prompt and

regular access to family members as well as to independent medical personnel and lawyers –

all of which was denied to Mr. Pratasevich – is an essential and necessary safeguard for

preventing as well as protecting against arbitrary detention and infringement of personal

security.31

96.

Given this, and once again highlighting the incompatibility of such televised

appearances with the presumption of innocence, the Working Group considers that Mr.

Pratasevich was subjected to forced confession. The Working Group recalls that the burden

is on the Government to prove that the statements made by Mr. Pratasevich were given

freely,32 which the Government in the present case has not done. Mr. Pratasevich’s right to

be presumed innocent under article 14 (2) of the Covenant and his right not to be compelled

to confess guilt under article 14 (3) (g) were thus violated.

97.

Although the trial proceedings against Mr. Pratasevich are yet to commence, the

Working Group recalls that forced confession taints the entire proceedings, regardless of

whether other evidence is available to support the verdict.33 The Working Group refers the

present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment, for further action.

98.

Noting all the above, the Working Group considers that the violations of Mr.

Pratasevich’s right to a fair trial are of such gravity as to give his deprivation of liberty an

arbitrary character, falling under category III.

Category V

99.

The source has alleged that the arrest and detention of Mr. Pratasevich was based

solely on his political opinions, while the Government has merely stated a number of

accusations brought against the online outlet that Mr. Pratasevich worked for (see para. 45

above).

100.

The Working Group recalls the observations of the United Nations High

Commissioner for Human Rights in her report on the situation of human rights in Belarus in

the context of the 2020 presidential election, noting that:

Criminal charges were increasingly brought in the context of protests. According to

official sources, between 9 August and 30 November, more than 1,000 criminal cases

were opened against peaceful protesters, opposition members and supporters,

journalists, human rights defenders, lawyers, peaceful protesters and persons critical

of the Government.34

101.

The Working Group also notes the failure of the Government to respond to the

source’s allegation regarding the comments made by the President in the context of Mr.

Pratasevich’s arrest, in which he allegedly referred to having warned his opponents earlier

that they would be found and punished (see para. 14 above).

102.

Mindful of these observations as well as those cited above (see paras. 72–83)35 and of

its own findings under category II, the Working Group finds that the arrest and detention of

Mr. Pratasevich was based on discrimination on the grounds of his political opinions, in

violation of article 26 of the Covenant. His detention is therefore arbitrary under category V.

30 See para. 104.

31 See, for example, opinion No. 34/2021, para. 77.

32 Opinions No. 45/2018 and No. 86/2020. See also Human Rights Committee, general comment No. 32

(2007), para. 41.

33 Opinion No. 34/2015, para. 28.

34 A/HRC/46/4, para. 43.

35 Ibid., paras. 19 and 36–37.

A/HRC/WGAD/2021/50

16

103.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the situation of human rights in Belarus, for

appropriate action.

Concluding remarks

104.

The Working Group wishes to place on record its very serious concern for the physical

and psychological well-being of Mr. Pratasevich, who has been in the custody of the

Belarusian authorities, who was initially arrested on 23 May 2021 and has then been held at

an unknown location since 23 June 2021, and has since appeared in a number of televised

interviews during which, according to his family, he has acted entirely out of character. While

the Government has argued that Mr. Pratasevich has been examined by medical experts, the

source has argued that independent medical examination has not been permitted.

105.

The Working Group reminds the Government of its duty to treat all detainees with

humanity and with respect for the inherent dignity of the human person, as required by article

10 of the Covenant and rule 1 of the Nelson Mandela Rules.

Disposition

106.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Raman Pratasevich, being in contravention of articles 2,

3, 7, 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles

9, 14, 19, 21 and 26 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I, II, III and V.

107.

The Working Group requests the Government of Belarus to take the steps necessary

to remedy the situation of Mr. Pratasevich without delay and bring it into conformity with

the relevant international norms, including those set out in the Universal Declaration of

Human Rights and the International Covenant on Civil and Political Rights.

108.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Pratasevich immediately and accord

him an enforceable right to compensation and other reparations, in accordance with

international law. In the current context of the global coronavirus disease (COVID-19)

pandemic and the threat that it poses in places of detention, the Working Group calls upon

the Government to take urgent action to ensure the immediate, unconditional release of Mr.

Pratasevich.

109.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.

Pratasevich and to take appropriate measures against those responsible for the violation of

his rights.

110.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to (a) the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression, (b) the Special Rapporteur on the rights to freedom of

peaceful assembly and of association, (c) the Special Rapporteur on torture and other cruel,

inhuman or degrading treatment or punishment, (d) the Special Rapporteur on the

independence of judges and lawyers, and (e) the Special Rapporteur on the situation of human

rights in Belarus, for appropriate action.

111.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

112.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Pratasevich has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Pratasevich;

A/HRC/WGAD/2021/50

17

(c)

Whether an investigation has been conducted into the violation of Mr.

Pratasevich’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Belarus with its international obligations in line with the

present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

113.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

114.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

115.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.36

[Adopted on 15 November 2021]

36 Human Rights Council resolution 42/22, paras. 3 and 7.