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.23-17615 (E) 250923 260923
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on
Arbitrary Detention at its ninety-seventh
session, 28 August–1 September 2023
Opinion No. 45/2023 concerning Igor Alyaksandravich Losik (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 51/8.
2.
In accordance with its methods of work,1 on 16 May 2023 the Working Group
transmitted to the Government of Belarus a communication concerning Igor Alyaksandravich
Losik. The Government has not replied to the communication. 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/2023/45
General Assembly
Distr.: General
26 September 2023
Original: English
A/HRC/WGAD/2023/45
2
GE.23-17615
1.
Submissions
(a)
Communication from the source
4.
Igor (or Ihar) Alyaksandravich Losik, born in 1992, is a citizen of Belarus. He is an
activist, blogger and consultant for the Belarus service of Radio Free Europe/Radio Liberty,
a non-profit news network. He is the co-founder and main administrator of “Belarus of the
Brain” (or “Belanova”), a Telegram channel founded in 2016 to create a news platform
accessible to all Belarusians.
5.
The source submits that, prior to the presidential election of 9 August 2020, “Belarus
of the Brain” became the main media outlet used by members of the Belarusian opposition.
At the time of the protests in August 2020, “Belarus of the Brain” had more than 170,000
subscribers. It is currently the second most visited channel in the country. Mr. Losik was an
active participant in the channel, using it to cover and report on the human rights violations
committed by the Government. In the lead-up to the presidential election, he continued to
cover these topics in addition to giving coverage to the opposition candidate.
6.
Previously, in 2011, Mr. Losik had led peaceful, silent protests as part of the
Revolution through Social Networks movement. Although he officially ended his association
with the movement and no longer participates in its administration, government officials kept
him under informal investigation.
(i)
Context
7.
According to the source, censorship and violence against members of the press have
become more prevalent following the presidential election of 9 August 2020, with hundreds
of journalists having been detained. As a result of the censorship, Belarusian journalists have
resorted to using alternative social media platforms, including Telegram. Telegram has
become the primary source of information for most Belarusians. However, in response to the
widespread adoption of Telegram, the Government has labelled all Telegram channels that it
does not administer or manage as “extremist” sources and, as is the case with its media
restrictions, all participation in these channels, including sharing, commenting and liking
posts and even visiting the channels, is considered a strict liability crime.
(ii)
Arrest and detention
8.
The source submits that, on 25 June 2020, Mr. Losik was arrested at his home in
Baranavichy and accused of using the “Belarus of the Brain” Telegram channel to disrupt
public order ahead of the presidential election of 9 August 2020. The arrest came several
hours after a two-hour-long search by 15 militia officers of the apartment in which he lived
with his family. During the search, Mr. Losik’s laptop, computer and telephone were seized.
9.
At the time of the search, the reason for the law enforcement action was unknown.
Although the law enforcement officials produced a signed search warrant issued by the Office
of the Procurator General of Belarus, the warrant did not include a name or department and
did not indicate who had authorized it. In addition, neither Mr. Losik nor his family was given
a copy of the search warrant or was allowed to read it in its entirety or make a copy for later
reference. Immediately after the search, he was arrested and taken to Okrestina, a detention
facility in Minsk.
10.
Neither Mr. Losik nor his family was presented with an arrest warrant or was informed
of the reason for his arrest. Several hours after his arrest, he and his family learned that a
criminal case had been opened against him under article 342 of the Criminal Code of Belarus
(“organization of and active participation in actions that grossly disrupt public order”), which
carries a sentence of three years’ imprisonment. After the arrest, Mr. Losik was kept in a
district pretrial prison in Minsk. His arrest appears to have been “pre-emptive”, as, at the
time, the authorities had no conclusive proof that he was posting to or was associated with
the “Belarus of the Brain” Telegram channel or that he had acted in any way that might have
disturbed public order. Instead, it is alleged that the authorities used the disturbance of public
order as a pretext on which to arrest him for his work as a journalist for Radio Free
Europe/Radio Liberty.
A/HRC/WGAD/2023/45
GE.23-17615
3
(iii)
Trial and conviction
11.
The source reports that, on 18 August 2020, two months after his arrest, Mr. Losik
was transferred to the pretrial detention centre in Zhodzina. While there, he was subjected to
physical and psychological violence. He was forced to undress and hold humiliating and
uncomfortable positions for several hours at a time. He was subjected to arbitrary searches
and cell transfers, including to a basement cell with no toilet, light, ventilation or space to sit
or lie down, which he shared with five cellmates, two of whom were severely ill and
contagious. He was transferred from cell to cell with no warning or explanation. He was
arbitrarily prohibited from receiving letters, newspapers or information in any other form and
from seeing members of his family. Moreover, all communication between Mr. Losik and
the outside world was heavily monitored and redacted by the prison wardens.
12.
Furthermore, the authorities reportedly interviewed Mr. Losik at least once a week
and tried to make him confess to the charges against him by threatening him and his family.
13.
On 15 December 2020, a month after Mr. Losik had been placed in an individual cell
and prohibited from communicating with all outside sources, an additional charge was
brought against him under article 293 (2) of the Criminal Code. Article 293 establishes
penalties relating to “mass disturbances”. The combined charges under articles 342 and 293
(2) carried a penalty of up to 11 years in a maximum-security facility.
14.
In response to the additional charges brought against him, Mr. Losik started a hunger
strike, claiming on the “Belarus of the Brain” Telegram channel that it was his last hope to
challenge the unsubstantiated accusations against him and his wrongful detention. He ended
his hunger strike on 25 January 2021, when, through an intermediary, he posted a statement
on Telegram, citing nationwide support and solidarity as the reason for his decision.
Following the hunger strike, he was transferred to a cell with 24-hour video surveillance. The
authorities claimed that Mr. Losik was periodically monitored by prison doctors and visited
by prison psychologists. He was then transferred to the Gomel detention centre.
15.
On 18 February 2021, in response to the arrest and sentencing of two other journalists,
Mr. Losik wrote a letter – later published on “Belarus of the Brain” – in which he revealed
that the conditions of his detention in Gomel were no better than those that he had endured
in Zhodzina. The letter’s hopeless and defeated tone sparked concerns for his mental and
physical well-being among his supporters and family. On 11 March 2021, two new charges
were brought against Mr. Losik under articles 130 (“incitement to racial, national or religious
hatred or discord”) and 138 (“illegal use of signs protected by international treaties”) of the
Criminal Code, the latter offence being categorized as a war crime. These charges brought
his maximum possible sentence to 15 years’ imprisonment. When he was informed of the
new charges, Mr. Losik attempted to injure his wrists in the presence of his lawyer and the
investigator and went on a dry hunger strike for six days, after which he was placed in solitary
confinement. In April 2021, law enforcement officials censored all correspondence between
him and the outside world.
16.
In May 2021, the Office of the Procurator General finalized the charges against
Mr. Losik and his five co-defendants. In addition to charging him under articles 293 and 130
of the Criminal Code, the procurators requested that he and his co-defendants be found liable
for 3,078,000 roubles ($1.2 million) in damages. In June 2021, the trial began.
17.
On 14 December 2021, six months after the trial had begun, Mr. Losik was found
guilty and sentenced to 15 years’ imprisonment under articles 293 and 130 of the Criminal
Code. The trial took place behind closed doors, at the Gomel detention centre. Members of
the press and the general public were not allowed to attend any of the trial sessions. Family
members were allowed to attend only the last session, when the verdict was announced.
Mr. Losik had access to his lawyer while in pretrial detention and during the trial. It appears
that the lawyer had an opportunity to present a defence for Mr. Losik at trial, but this cannot
be confirmed, as the lawyer signed a non-disclosure agreement that forbids him from
revealing details of the case. A week after the trial, the Ministry of Internal Affairs added the
Belarus service of Radio Free Europe/Radio Liberty to its register of extremist organizations
and restricted public access to the network’s social media content and websites.
A/HRC/WGAD/2023/45
4
GE.23-17615
18.
On 1 June 2022, the Supreme Court rejected Mr. Losik’s appeal and upheld his
15-year sentence. The trial was presided over by a panel of three judges and held behind
closed doors. The names of the presiding judges were not disclosed to the public or to
Mr. Losik’s family. However, all Supreme Court judges are appointed by the President, and
they commonly rule in favour of the prosecution.
19.
As a result of the Supreme Court decision, Mr. Losik was transferred from Gomel to
Navapolatsk correctional colony No. 1, a high-security facility, where he is expected to serve
the remainder of his sentence. Since his transfer to Navapolatsk, he has been subjected to
harsher and stricter measures. He can receive visitors other than his lawyer only twice a year.
He can receive correspondence only once a month. Moreover, he is liable to lose all rights
and benefits after two violations of the facility’s guidelines, which include not being clean-
shaven and dressing inappropriately and are enforced at the discretion of the prison wardens.
Mr. Losik has already been punished for not being clean-shaven. With regard to the specific
date of his release, when handing down their verdict, the judges stated that he would be
released in 2034 and that the period that he had spent in pretrial detention would count
towards his sentence.
20.
Since Mr. Losik’s transfer to Navapolatsk, concerns have been growing for his and
his family’s health and well-being. On 29 June 2022, Mr. Losik was added to the Belarusian
terrorist watch list. Mr. Losik has started another hunger strike and has experienced suicidal
thoughts. In addition, the authorities have reportedly started to threaten his family.
(iv)
Analysis of violations
21.
The source submits that the arrest and detention of Mr. Losik are arbitrary under
categories I, II and III.
a.
Category I
22.
The source recalls that a detention is arbitrary under category I when it is impossible
to invoke any legal basis to justify the deprivation of liberty. In Mr. Losik’s case, the
authorities have had no legal basis on which to justify his deprivation of liberty since 25 June
2020, owing to the improper arrest procedures carried out by the authorities and the fact that
he has not committed a criminal offence.
Improper arrest procedures carried out by the authorities
23.
The source notes that, although there are no articles of the Constitution of Belarus
stating that an arrest warrant is a mandatory precondition for a lawful arrest, international
law clearly requires law enforcement officials to present a warrant when conducting an arrest.
Article 9 (2) of the Covenant provides that anyone who is arrested is to be informed, at the
time of arrest, of the reasons for the arrest and is to be promptly informed of any charges
against him or her. The source contends that, in accordance with article 9 (1), a warrant
establishes the legal basis for the arrest. Thus, the failure to show an arrest warrant and
promptly inform a detainee of the charges against him or her demonstrates that there is no
valid basis on which to justify the arrest and that the resulting deprivation of liberty falls
within category I.
24.
The source submits that Mr. Losik was neither shown an arrest warrant nor informed
of the grounds for his arrest at the time of his arrest in June 2020. As a result, the authorities
failed to comply with the standards of due process established under international law. The
source therefore argues that there is no legal basis on which the deprivation of liberty of
Mr. Losik can be justified, which renders his detention arbitrary under category I.
Lack of a criminal offence
25.
The source recalls that the Working Group has found that a detention has no legal
basis when the detainee was arrested without substantive evidence to justify the arrest.
However, at the time of Mr. Losik’s arrest, the authorities presented no evidence to suggest
that he was engaged in any activity that would justify his detention. By working as a
consultant for a media organization and posting to a Telegram channel, he was peacefully
exercising his right to freedom of expression. Moreover, there is no direct evidence that
A/HRC/WGAD/2023/45
GE.23-17615
5
Mr. Losik’s posts incited actions during the August 2020 protests, which took place two
months after his arrest. Thus, the source concludes that there is no sound basis on which his
arrest could be legally justified and, as such, his detention falls within category I.
b.
Category II
26.
The source submits that a detention is arbitrary under category II when it results from
the exercise of fundamental rights or freedoms protected under international law, including
the rights to freedom of expression and of association.
Freedom of expression
27.
The source recalls that article 19 of the Universal Declaration of Human Rights and
article 19 (1) of the Covenant provide for the right to freedom of opinion, which includes
opinions of a political, scientific, historic, moral or religious nature. A State party violates its
obligations under article 19 (1) of the Covenant if it harasses, intimidates or unlawfully
detains an individual for holding a particular opinion. Article 19 of the Universal Declaration
of Human Rights and article 19 (2) of the Covenant explicitly protect the right to express
one’s thoughts and opinions. Similarly, those two articles protect the corresponding right to
receive such information free from government interference or censorship. Thus, the
Universal Declaration of Human Rights and the Covenant provide for special protection for
the work of journalists, who must be able to gather information and disseminate news and
ideas, this being a cornerstone of a democratic society.
28.
The source submits that, despite those protections under international law, the
authorities arbitrarily detained Mr. Losik, on fabricated charges, for exercising his right to
freedom of expression. He was charged with disturbing public order and promoting national
hatred, both justifications that the authorities have used to jail journalists in the past. The
source considers that the abusive nature of the charges is evident in the light of the past
conduct of the authorities, the procedural violations at trial and, more importantly, the fact
that the authorities have not produced any evidence that links Mr. Losik’s articles or posts to
the August 2020 protests.
29.
The source recalls that freedom of expression is not an absolute right under the
Covenant and may be subject to limited restrictions in certain circumstances. Under article
19 (3), such restrictions must be provided by law and must be necessary either to respect the
rights and reputations of others or to protect national security, public order or public health
or morals. The Human Rights Committee has interpreted the limited provisions of article 19
(3) narrowly, noting that any restrictions must meet a strict test of justification and must not
jeopardize the right itself. Thus, the Government may not use such restrictions to silence
independent journalists who report on important issues, even if it disapproves of the
reporting.
30.
According to the source, in the present case, the restrictions do not apply. In his
articles and posts on Telegram, Mr. Losik only reported on and reflected the circumstances
imposed on the Belarusian people by their Government, and his reporting did not
conclusively or directly incite violence among the Belarusian population. Thus, the
Government did not have a justification for limiting his right to freedom of expression and
effectively violated his exercise of that fundamental right. The Government targeted
Mr. Losik for his legitimate work as a journalist reporting on critical issues in Belarus, which
does not fall within the narrow exceptions set out in article 19 (3) of the Covenant. As such,
the source considers that the continued imprisonment of Mr. Losik violates article 19 (2), as
it results from his peaceful free expression.
Freedom of association
31.
The source recalls that article 20 of the Universal Declaration of Human Rights and
article 22 of the Covenant provide for the right to freedom of association. Those articles
protect the right of individuals to associate with like-minded persons and join groups to
pursue a common interest and the right of such groups to form and carry out activities in
accordance with their mission, including if this mission is political, social, cultural, religious
or commercial. By targeting Mr. Losik because of his association with “Belarus of the Brain”
A/HRC/WGAD/2023/45
6
GE.23-17615
and Radio Free Europe/Radio Liberty, the Government violated his right to freedom of
association.
32.
The source submits that article 22 (2) of the Covenant establishes the limited
circumstances in which a State party may restrict freedom of association. Article 22 (2)
prohibits restrictions “other than those which are prescribed by law and which are necessary
in a democratic society in the interests of national security or public safety, public order
(ordre public), the protection of public health or morals or the protection of the rights and
freedoms of others”. Although the Government used Belarusian law to justify its treatment
of Mr. Losik, citing his work as a reporter for “extremist” organizations such as “Belarus of
the Brain” and Radio Free Europe/Radio Liberty, the provisions in question exist in
contravention of international law. As such, the Government cannot justify its violation of
Mr. Losik’s rights under article 22 of Covenant.
c.
Category III
33.
The source notes that a detention is arbitrary under category III when it violates the
right to due process or one of the tenets of the right to a fair trial. With regard to due process,
the minimum international standards are established in the Covenant, the Universal
Declaration of Human Rights, the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and the United Nations Standard Minimum Rules
for the Treatment of Prisoners (the Nelson Mandela Rules). The source argues that the
authorities have committed numerous violations of Mr. Losik’s rights under those standards.
Right to a fair hearing
34.
The source recalls that a fair hearing may be described as a trial conducted by a
competent, independent and impartial tribunal established by law. Furthermore, fairness
requires the absence of any direct or indirect influence, pressure, intimidation or intrusion
from any side and for whatever motive. For example, a hearing is not fair or independent if
the court openly supports one party over another or is subject to political interference by the
executive branch.
35.
According to the source, all federal and Supreme Court judges are appointed by the
President and are under significant pressure to rule in favour of the Government, in particular
in cases involving political activists or opposition figures. The executive capture of the
judiciary, the restrictions on Mr. Losik’s access to his lawyer and the fact that his trial was
held behind closed doors meant that he was denied a fair consideration of his case at trial.
According to the source, by failing to try Mr. Losik before an impartial court, the authorities
violated his right to a fair hearing.
Right to a public hearing
36.
The source notes that article 14 (1) of the Covenant provides that everyone is entitled
to a public hearing. The right to a public hearing means that an accused person has the right
to an open hearing attended by the public. In general, a hearing must be open to everyone,
including members of the press and relatives of the accused. Courts are under an obligation
to disclose information about the time and venue of the hearing and provide adequate time
and facilities for attendance by interested members of the public.
37.
The source submits that, in the present case, by holding his pretrial hearing, trial and
Supreme Court appeal hearing behind closed doors, thereby preventing the attendance of any
members of the press or relatives of the accused, and failing to disclose any court documents
or transcripts after the hearing, the authorities violated Mr. Losik’s right to a public hearing.
Right to the assistance of legal counsel
38.
The source recalls that article 14 (3) (b) of the Covenant enshrines the right to have
adequate time and facilities to prepare a defence and to communicate with a lawyer of one’s
own choosing. This right includes access to a qualified lawyer of one’s choosing, sufficient
time and facilities to communicate with a lawyer and the lawyer’s freedom from intimidation,
hindrance and harassment when representing his or her client.
A/HRC/WGAD/2023/45
GE.23-17615
7
39.
The source argues that, although Mr. Losik was assigned a lawyer, whom his family
plans to continue using, and has had access to his lawyer’s services throughout his detention,
the lawyer has been subjected to government intimidation and hindrance for representing
him. Like all lawyers in Belarus, Mr. Losik’s lawyer had to sign a non-disclosure agreement
that prevents him from revealing details of the case to anyone other than his client. In
addition, all meetings and correspondence between Mr. Losik and his lawyer are
continuously monitored by law enforcement officials. Moreover, all Belarusian lawyers are
licensed by the executive branch; the Government has been known to suspend the licences
of lawyers who present defences that contradict the agenda of the executive branch and, in
some cases, even to prosecute them. Therefore, the lawyer representing Mr. Losik is not only
being hindered from representing his client effectively but is also facing significant
government intimidation. In view of the above, the source contends that the authorities have
violated Mr. Losik’s right to the assistance of legal counsel.
Right to a prompt trial and release pending trial
40.
The source notes that article 9 (3) of the Covenant provides that anyone arrested or
detained on a criminal charge is to be brought promptly before a judge or other officer
authorized by law to exercise judicial power. Under the Covenant, criminal defendants are
entitled to trial within a reasonable time or to release. Although the Human Rights Committee
has recognized that the reasonableness of trial delays must be assessed on a case-by-case
basis, the Government is obliged to provide a justification for delaying a trial, in particular
in cases in which the defendant is held in pretrial detention. Moreover, the Covenant and the
Committee have established that pretrial detention should not be the general rule. Rather,
unless the State can demonstrate that there is an extreme need for detention, a criminal
defendant is entitled to pretrial release.
41.
According to the source, in the present case, Mr. Losik was held in pretrial detention
for one year, without justification. The authorities failed to provide an explanation either for
the decision to hold him in pretrial detention or for the delay in the first instance trial.
Therefore, the source submits that Mr. Losik’s right to be promptly brought before a judicial
authority has been violated.
(b)
Response from the Government
42.
On 16 May 2023, 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 17 July 2023, detailed information about the current situation
of Mr. Losik and to clarify the legal provisions justifying his continued detention and the
compatibility of his continued detention with the obligations of Belarus under international
human rights law, in particular with regard to the treaties ratified by the State.
43.
The Working Group regrets that the Government did not submit a reply and did not
seek an extension in accordance with paragraph 16 of the Working Group’s methods of work.
2.
Discussion
44.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
45.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international law constituting arbitrary detention, the burden of proof should be understood
to rest upon the Government if it wishes to refute the allegations.2 In the present case, the
Government has chosen not to challenge the prima facie credible allegations made by the
source.
46.
The source has argued that the detention of Mr. Losik is arbitrary and falls under
categories I, II and III. The Working Group shall proceed to examine these allegations in
turn.
2 A/HRC/19/57, para. 68.
A/HRC/WGAD/2023/45
8
GE.23-17615
(a)
Category I
47.
The source alleges, and the Government has not contested, that Mr. Losik was arrested
on 25 June 2020 and that, although the arresting authorities did not present an arrest warrant,
the reasons and legal basis for the arrest were explained.
48.
The Working Group recalls that, as it has stated on numerous occasions, for a
deprivation of liberty to have a legal basis, it is not sufficient for there to be a law that might
authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.3 This is typically4 done by means of an arrest warrant, arrest order
or equivalent document.5 The Working Group finds that no such document was presented to
Mr. Losik, in violation of articles 3 and 9 of the Universal Declaration of Human Rights and
article 9 (1) of the Covenant.
49.
Furthermore, the Working Group recalls that article 9 (2) of the Covenant requires
that anyone who is arrested not only be informed of the reasons for the arrest but also be
promptly informed of any charges against him or her. The Government did not contest this
allegation, and the Working Group cannot but conclude that there has been a breach of article
9 (2) of the Covenant in respect of Mr. Losik.
50.
Lastly, the Working Group recalls that it is a well-established norm of international
law that pretrial detention should be the exception and not the rule and that it should be
ordered for as short a time as possible.6 Article 9 (3) of the Covenant provides that it should
not be the general rule that persons awaiting trial should be detained, but release may be
subject to guarantees to appear for trial and at any other stage of the judicial proceedings. It
follows that liberty is recognized as a principle and detention as an exception in the interests
of justice.
51.
In the present case, according to the source, Mr. Losik spent about a year in pretrial
detention, and the possibility of alternative preventive measures was not duly considered,
contrary to article 9 (3) of the Covenant. In the absence of any argument to the contrary, the
Working Group finds his detention to be in violation of article 9 (3) of the Covenant.
52.
Accordingly, the Working Group considers that the arrest and subsequent detention
of Mr. Losik are arbitrary under category I.
53.
Furthermore, the source invokes category I to claim that Mr. Losik was detained not
for any crime that he had committed but solely for his journalistic activities. The Working
Group will examine this allegation under category II.
(b)
Category II
54.
The source submits that a detention is arbitrary under category II when it results from
the exercise of fundamental rights or freedoms protected under international law, including
the rights to freedom of expression and of association provided for in articles 19 and 22 of
the Covenant.
55.
The Working Group observes that, while the Government had the opportunity to
explain which specific actions by Mr. Losik amounted to crimes, it chose not to do so.
Moreover, it did not address the specific allegations of infringements of his rights to freedom
of expression and of association.
56.
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,
3 In cases of flagrante delicto, the opportunity to obtain a warrant will typically not be available.
4 Human Rights Committee, general comment No. 35 (2014), para. 23; see also opinions No. 88/2017,
para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
5 See, for example, opinion No. 30/2017, paras. 58 and 59.
6 Opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 57/2014, para. 26; No. 1/2020, para. 53;
and No. 8/2020, para. 54. See also the Human Rights Committee, general comment No. 35 (2014),
para. 38; and A/HRC/19/57, paras. 48–58.
A/HRC/WGAD/2023/45
GE.23-17615
9
including political opinions.7 Moreover, the restrictions that may be imposed on that right
may relate either to respect for the rights and reputations of others or to the protection of
national security, public order or 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.”8 It should be noted that article 22
of the Covenant permits restrictions of the right of association on the same three grounds.
57.
In the present case, the Government of Belarus has not invoked any of the permitted
restrictions. Given the general context of the case and the opinion rendered by the Working
Group in the case of another co-founder of the “Belarus of the Brain” Telegram channel,9 it
is clear to the Working Group that Mr. Losik was in fact arrested and subsequently detained
for exercising his rights to freedom of expression and of association. There is no evidence
whatsoever that any of his actions have been violent, that he incited violence or indeed that
his actions led others to commit acts of violence. While the rights to freedom of expression
and of association are not absolute, “when a State party imposes restrictions on the exercise
of freedom of expression, these may not put in jeopardy the right itself”.10
58.
The Working Group wishes to recall Human Rights Council resolution 24/5, in which
States are reminded 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”.
59.
Equally, the Working Group recalls the principle enunciated in Human Rights Council
resolution 12/16, namely that States should refrain from imposing restrictions that are not
consistent with article 19 (3) of the Covenant, including restrictions 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.
60.
Lastly, the Working Group notes the undisputed fact that Mr. Losik is a journalist and,
in this regard, recalls the 2021 report of the United Nations High Commissioner for Human
Rights on the situation of human rights in Belarus in the context of the 2020 presidential
election, which states that: “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.”11
61.
Very similar reports have been received in relation to 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.”12
62.
It is thus clear to the Working Group that the arrest and detention of Mr. Losik were
based solely on his journalistic activity and his exercise of the freedoms of expression and of
association, in violation of articles 19 and 22 of the Covenant and consistent with the pattern
identified by the Office of the United Nations High Commissioner for Human Rights, as
noted above.
63.
The Working Group concludes that the arrest and detention of Mr. Losik are arbitrary
and fall under category II. The Working Group refers the present case to the Special
7 Human Rights Committee, general comment No. 34 (2011), para. 11.
8 Ibid., para. 22.
9 Opinion No. 2021/50.
10 Human Rights Committee, general comment No. 34 (2011), para. 21.
11 A/HRC/46/4, para. 19.
12 Ibid., para. 37.
A/HRC/WGAD/2023/45
10
GE.23-17615
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and the Special Rapporteur on the rights to freedom of peaceful assembly and of association,
for appropriate action.
(c)
Category III
64.
Given its finding that the deprivation of liberty of Mr. Losik is arbitrary under
category II, the Working Group wishes to emphasize that he should not have been tried.
Nevertheless, as a trial did take place and Mr. Losik was sentenced to a long period of
imprisonment, the Working Group will proceed to an examination of the source’s
submissions concerning the denial of Mr. Losik’s fair trial rights.
65.
The source makes three allegations under this category: that Mr. Losik was not tried
by an independent and impartial tribunal, that he did not have a public hearing and that his
right to effective legal representation was impaired. The Working Group will examine these
allegations in turn.
66.
With regard to the independence of the judiciary, the Working Group recalls that it is
a sine qua non of the right to a fair hearing as enshrined in article 10 of the Universal
Declaration of Human Rights and article 14 of the Covenant. Issues relating to the separation
of powers between the political organs of government and the judiciary and the safeguarding
of the independence of the judiciary are a matter of growing concern. The Working Group
refers to the report submitted by the Special Rapporteur on the situation of human rights in
Belarus to the Human Rights Council in respect of the period in question, which states that:
“The Special Rapporteur observed in her latest report to the General Assembly (A/75/173)
that institutional deficiencies and politically motivated interference and pressure on courts
and the judiciary undermined judicial independence and negatively affected the realization
of the right to a fair trial in Belarus. As much became evident in the context of the
deterioration in the situation of human rights in 2020 and 2021.”13
67.
The independence of judges has been systemically restricted in Belarus. In politically
sensitive cases, judges are apparently expected to implement the requests of the Procurator
General, whose role is to implement the executive’s repressive policy of harshly punishing
dissent. Judges therefore often deny defendants their rights to the presumption of innocence
and to present witnesses in their defence. In the context of arrests and deprivation of liberty,
consistent testimonies about delays in access to a lawyer and to other legal and procedural
safeguards increase concerns. Lawyers are obliged to sign a non-disclosure agreement, which
makes it difficult to obtain information on the specific articles under which any charges have
been brought. The penitentiary authorities have repeatedly denied lawyers access to their
defendants in pretrial detention, invoking precautions on health grounds, even though no
preventive measures related to coronavirus disease (COVID-19) or restrictions have been
officially enacted by the Government to date.
68.
In view of the above findings, and in the absence of any reply from the Government,
the Working Group cannot but find that Mr. Losik was not tried by an independent and
impartial tribunal, contrary to article 10 of the Universal Declaration of Human Rights and
article 14 (1) of the Covenant. Furthermore, article 14 (1) of the Covenant provides that, in
the determination of any criminal charge, everyone is entitled to a public hearing. Article 10
of the Universal Declaration of Human Rights similarly guarantees the right to a public
hearing. As the Human Rights Committee has explained in its general comment No. 32
(2007): “The publicity of hearings ensures the transparency of proceedings and thus provides
an important safeguard for the interest of the individual and of society at large.”14 Although
the right to a public hearing is not absolute, it may be restricted only “for reasons of morals,
public order (ordre public) or national security in a democratic society, or when the interest
of the private lives of the parties so requires, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would be prejudicial to the interests of
justice”, and, in the absence of such exceptional circumstances, “a hearing must be open to
13 A/HRC/47/49, para. 53.
14 Human Rights Committee, general comment No. 32 (2007), para. 28.
A/HRC/WGAD/2023/45
GE.23-17615
11
the general public, including members of the media”, with entrance not limited to a select
group of persons.15
69.
It is alleged by the source that the authorities did not grant the public and the media
access to Mr. Losik’s trial, in violation of the provisions mentioned above. Given that no
explanation of those restrictions has been provided by the Government, the Working Group
finds that the hearing of Mr. Losik’s case behind closed doors violated his rights under article
10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant.
70.
Lastly, as concerns the submissions relating to effective legal representation, the
Working Group is concerned that the confidentiality of Mr. Losik’s communication with his
lawyer was not guaranteed. The Working Group reiterates that respect for lawyer-client
confidentiality is an important part of the right of defence. The right of a defendant to have
private discussions with his or her legal counsel, without surveillance, constitutes one of the
fundamental aspects of a fair trial. Preventing a lawyer from conferring with his or her client
and obtaining confidential instructions defeats much of the purpose of legal assistance. In
this respect, the Human Rights Committee has stressed that counsel should be able to meet
their clients in private and to communicate with the accused in conditions that fully respect
the confidentiality of their communications and, furthermore, that lawyers should be able to
advise persons charged with a criminal offence without restrictions, influence, pressure or
undue interference from any quarter.16
71.
Noting that the source’s complaint about the intimidation of Mr. Losik’s lawyer is in
line with the findings of the Special Rapporteur (see para. 66 above), and in the absence of
any explanation from the Government, the Working Group concludes that Mr. Losik was
deprived of effective legal representation, contrary to article 14 (3) (b) of the Covenant, rule
61 (1) of 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.
72.
Given all the above, the Working Group considers that the violations of Mr. Losik’s
right to a fair trial are of such gravity as to give his deprivation of liberty an arbitrary
character, falling under category III.
(d)
Concluding remarks
73.
The Working Group is disturbed by the uncontested allegations concerning
Mr. Losik’s health and well-being. It notes with great concern that he has allegedly been
severely humiliated and subjected to numerous arbitrary acts, including searches and
unexplained constant changes of cell, which might have exacerbated the distress already
inherent in any measure of deprivation of liberty and might have created further anxiety
regarding his adaptation to the different places of detention. The Working Group considers
that the treatment to which Mr. Losik was subjected appears to constitute retaliation for his
activism and is incompatible with the obligations that Belarus has assumed under article 10
of the Covenant. It notes that he was added to the Belarusian terrorist watch list, and it appears
that his family was intimidated as well.
74.
Referring to the source’s statements about the psychological and physical ill-treatment
of Mr. Losik, and noting that he has started another hunger strike and has expressed some
suicidal thoughts, 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.
15 Ibid., para 29.
16 Ibid., para. 34. See also the Basic Principles on the Role of Lawyers, para. 16; A/HRC/45/16,
para. 54; and opinions No. 29/2017, No. 32/2017, No. 34/2017, No. 36/2017, No. 70/2017,
No. 66/2019 and No. 70/2021.
A/HRC/WGAD/2023/45
12
GE.23-17615
3.
Disposition
75.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Igor Alyaksandravich Losik, being in contravention of
articles 3, 9, 10, 19 and 20 of the Universal Declaration of Human Rights and articles
9, 14, 19 and 22 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I, II and III.
76.
The Working Group requests the Government of Belarus to take the steps necessary
to remedy the situation of Mr. Losik 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.
77.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Losik immediately and accord him an
enforceable right to compensation and other reparations, in accordance with international
law.
78.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Losik and to take appropriate measures against those responsible for the violation of his
rights.
79.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression and the Special Rapporteur on the rights to freedom of
peaceful assembly and of association, for appropriate action.
80.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
81.
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. Losik has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Losik;
(c)
Whether an investigation has been conducted into the violation of Mr. Losik’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.
82.
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.
83.
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 of any failure to take action.
A/HRC/WGAD/2023/45
GE.23-17615
13
84.
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.17
[Adopted on 30 August 2023]
17 Human Rights Council resolution 51/8, paras. 6 and 9.