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.23-18308 (E) 290923 290923
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. 52/2023 concerning Piotr Butsko (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 Piotr Butsko. 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/2023/52
General Assembly
Distr.: General
29 September 2023
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Piotr Butsko is a national of Belarus, born on 30 March 1977. He used to work for the
police force for more than 20 years, until 2017, when he retired as deputy head of the
Korelichi district police department, with the rank of lieutenant colonel. In January 2018, he
became the executive director of a limited liability company.
5.
According to the information received, on 9 August 2020, the results of the
presidential election in Belarus were announced. According to the official account, the
President was re-elected for a sixth consecutive term. The campaign period leading up to the
election and following the announcement of the results was reportedly marked by numerous
protests, violence and the arrest of presidential candidates. In 2020, more than 30,000 persons
were allegedly detained. The majority of them were punished after participating in peaceful
assemblies, under article 23.34 of the Code of Administrative Offences, for “participation in
an unauthorized mass event”.
6.
The source reports that, on 15 August 2020, Mr. Butsko and others participated in a
rally against the election results, in the town of Lida, Belarus, with trucks carrying opposition
symbols. On 30 August 2020, Mr. Butsko again took part in another rally with opposition
symbols. An investigation was then conducted into his participation in an unauthorized mass
event, punishable under article 23.34 of the Code of Administrative Offences. The
investigation and the case were closed on 8 September 2020.
7.
On 3 December 2020, Ivie District Court, in Hrodna Province, reportedly sentenced
Mr. Butsko to 10 days of detention for his participation in two peaceful opposition assemblies
on 13 and 15 November 2020, during which dissatisfaction with the actions of law
enforcement bodies and the presidential election procedure was expressed. Mr. Butsko was
found guilty since the local authorities had not given their permission for the assemblies to
take place.
8.
In addition, the source also reports that, on 11 December 2020, Korelichi District
Court, in Hrodna Province, sentenced Mr. Butsko to 7 days of detention for his participation
in a peaceful opposition assembly on 29 November 2020. Again, the reason for the verdict
was the lack of permission from the local authorities to hold the assembly.
9.
On 14 December 2020, Lida District Court, in Hrodna Province, reportedly sentenced
Mr. Butsko to 15 days’ detention for his participation in a peaceful opposition assembly on
25 October 2020. The reason for the verdict was once again the lack of permission from the
local authorities to hold the assembly.
10.
The source informs the Working Group that all the judicial decisions referred to above
were made under article 23.34 of the Code of Administrative Offences. Mr. Butsko could not
appeal against those decisions, as the time limit to lodge an appeal expired before he was
released. He was unable to appeal while serving the sentences.
11.
On 12 March 2021, Mr. Butsko reportedly took part in a peaceful opposition assembly
in Ivie. He held a banner and an image of a white-red-white flag. Subsequently, the police
started a criminal investigation into insulting behaviour, under article 369 of the Criminal
Code, because of the message expressed on the banner, since the police allegedly believed
that the banner might have insulted a former Minister of Internal Affairs. On 5 July 2021, the
Investigative Committee refused to charge Mr. Butsko, due to a revision of article 369 of the
Criminal Code that decriminalized the conduct in question.
12.
On 4 May 2021, Mr. Butsko and approximately 80 other former law enforcement
officers were stripped of their ranks by a presidential decree due to “discreditable actions”.
According to the source, an official news agency indicated that those individuals stirred up
protest in society, organized and participated in unauthorized events and posted extremist
materials on the Internet, with the aim of destabilizing the country during a period of
sociopolitical difficulties.
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13.
According to the source, on 27 May 2021, Mr. Butsko had a fight with the in-house
lawyer of the company in which he was working as executive director. On the same day, the
in-house lawyer filed a complaint with the police, asking them to prosecute Mr. Butsko.
14.
Initially, the police investigated the case as an administrative offence under article
10.1 of the Code of Administrative Offences. On 25 June 2021, after receiving a medical
report stating that the company’s lawyer had sustained “less serious bodily injuries”, the
police terminated the administrative case.
15.
On the same day, 25 June 2021, a criminal investigation into the incident was initiated
under article 149 (1) of the Criminal Code, relating to intentionally inflicting less serious
bodily injuries. According to the source, such a crime is classified as a “less serious crime”
under article 12 of the Criminal Code.
16.
The source explains that, according to article 26 (4) of the Code of Criminal
Procedure, charges under article 149 (1) of the Criminal Code should be pressed by the
victim. A prosecutor may press charges in the absence of such a complaint, if the crime
concerns substantial interests of the State or society or was committed against persons who
are dependent on the accused or are unable to do so on their own behalf.
17.
On 16 July 2021, the company’s lawyer submitted a statement to the police in which
he requested the police to terminate the criminal case because he had reconciled with
Mr. Butsko. After that, no criminal proceedings could be carried out under article 149 (1) of
the Criminal Code, as the victim had declared his unwillingness to press charges and the
prosecutor could not press charges because the case did not concern a public interest and the
victim could defend his own rights.
18.
On 19 August 2021, a criminal case under article 426 (3) of the Criminal Code
(exceeding authority or official powers) was opened against Mr. Butsko for causing injuries
to the company’s lawyer. Under article 12 of the Criminal Code, the crime stipulated in article
426 (3) is classified as a “serious crime”. Pursuant to article 26 of the Code of Criminal
Procedure, charges under article 426 (3) of the Criminal Code may be brought by the
authorities, without a victim’s request or consent.
19.
On 20 August 2021, Mr. Butsko was informed about the decision to institute criminal
proceedings against him under article 426 (3) of the Criminal Code and, on the same day, he
was detained.
20.
On 23 August 2021, an investigator decided that pretrial detention should be
maintained. That decision was authorized by a prosecutor. The pretrial detention was
subsequently extended several times and Mr. Butsko was kept in custody until sentencing by
the court.
21.
On 30 August 2021, Mr. Butsko was charged under article 426 (3) of the Criminal
Code. According to the charges, he intentionally committed actions that went beyond the
rights and powers granted to him in his position, which no one is entitled to commit under
any circumstances, accompanied by violence, causing substantial harm to the rights and
interests of the alleged victim. The accusation states that, during working hours, in a rude
manner and using foul language, Mr. Butsko made remarks to his subordinate about the
latter’s work. Those negative remarks caused an argument, during which Mr. Butsko
allegedly intended to inflict bodily harm.
22.
According to the source, during the preliminary inquiry into the beating, the
investigator took measures to identify the persons who had organized the opposition rally of
15 August 2020, while interviews were conducted with those who had participated in the
rally and traffic police who had been on duty at the time. At the end of the investigation, the
materials gathered were sent to the police to prosecute those who had taken part in the rally,
although the statutory time limit had expired. The investigator included information in the
criminal case about the three instances of Mr. Butsko’s administrative responsibility under
article 23.34 of the Code of Administrative Offences, between October and December 2020.
23.
The source informs the Working group that, during the investigation, Mr. Butsko’s
home and place of work were reportedly searched. The office of the company headed by
Mr. Butsko, its director’s home and other employees’ houses were also searched. A total of
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six search warrants were issued. During the searches, mobile phones, computers, storage
media, and a large amount of documentation were seized from the homes and offices of
Mr. Butsko and his former colleagues.
24.
On 6 September 2021, the investigator sent all the information and documentation
seized during the searches to another law enforcement body, the Department of Financial
Investigations. Reportedly, the cover letter states that that was done to establish whether
Mr. Butsko had been involved in other unlawful activities. On 2 November 2021, the
Department of Financial Investigations responded that it had found no evidence of any crime
having been committed during its examination of the case.
25.
The source states that, during the trial, Mr. Butsko pleaded guilty to causing less
serious bodily injuries. He explained that he fought with the company’s lawyer out of
personal animosity caused by an insult, and pleaded guilty to the crime under article 149 (1)
of the Criminal Code, that is, intentionally inflicting less serious bodily injuries.
26.
On 10 February 2022, the Lida District Court, in Hrodna Province, fully endorsed the
charges and found Mr. Butsko guilty under article 426 (3) of the Criminal Code. The Court
sentenced him to six years’ imprisonment in a strict-regime penal facility. It also imposed a
fine of 16,000 Belarusian roubles on Mr. Butsko and barred him from holding executive
positions for five years. When imposing the punishment, the Court considered, as aggravating
circumstances, the instances in which Mr. Butsko was prosecuted for participating in
unauthorized assemblies.
27.
On 20 and 21 February 2022, Mr. Butsko and his lawyer lodged appeals. On 17 May
2022, the Judicial Board of the Hrodna Provincial Court upheld the verdict. Subsequently,
Mr. Butsko filed a supervisory appeal to the Chair of the Hrodna Provincial Court, which
was dismissed on 1 November 2022.
28.
According to the source, after his conviction and transfer to the penal facility,
Mr. Butsko was placed on a list of political persons: this allegedly meant that a yellow tag
was placed on his clothes, which he always has to wear. Moreover, his rights as a prisoner
are limited, in particular, the number and duration of phone calls to his family.
Analysis of violations
29.
The source claims that the prosecution and deprivation of liberty of Mr. Butsko
violated articles 9, 14, 19 and 21 of the Covenant.
a.
Violations of articles 19 and 21 of the Covenant
30.
The source submits that the only reason that Mr. Butsko was convicted was as a result
of the requalification of charges from “less serious crime” (article 149 (1) of the Criminal
Code on intentionally inflicting less serious bodily injuries) to “serious crime” (article 426
(3) of the Criminal Code on exceeding authority or official powers). Notwithstanding
Mr. Butsko’s commission of unlawful acts, the investigation under article 149 (1) of the
Criminal Code would have been terminated upon receipt of the statement of reconciliation.
31.
The source claims that the authorities wanted to put Mr. Butsko in prison because, as
a former high-ranking police officer, he publicly expressed his political views, which were
critical of the authorities, and participated in opposition rallies. Under the pretext of criminal
prosecution for causing bodily harm, the authorities punished Mr. Butsko for exercising his
rights under articles 19 and 21 of the Covenant.
32.
In that context, the source claims that, even before the conflict with the company’s
lawyer, Mr. Butsko had been stripped of the rank of lieutenant colonel. That reportedly
demonstrates that his opposition activities were closely monitored by the authorities.
33.
In addition, it is stated that the investigation of the beating also focused on
Mr. Butsko’s own opposition activities, which were in no way connected to the incident. In
the criminal case file, 68 pages were dedicated to the inquiry into the circumstances
surrounding the organization of the opposition rally on 15 August 2020. As a result of the
inquiry, the investigator tried to initiate proceedings against Mr. Butsko in relation to the
rally, even though it was impossible due to the relevant statute of limitations. Also enclosed
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in the case file was a ruling to dismiss the administrative case against Mr. Butsko for
participation in the opposition rally of 30 August 2020. Copies of the three judgments in
which Mr. Butsko was found guilty of participating in peaceful assemblies were also included
in the case file. The administrative case against Mr. Butsko regarding his participation in the
peaceful assemblies of 13 and 15 November 2020 was included in its entirety in the criminal
case file, which also contained materials from the preliminary investigation that had been
conducted into the allegation that Mr. Butsko had insulted the former Minister of the Interior.
34.
At the same time, the source reports that the criminal case file did not contain any
rulings on Mr. Butsko’s administrative liability for offences unrelated to the exercise of civil
and political rights, although such offences had been prosecuted by the authorities. That
allegedly demonstrates that the prosecuting authorities were interested specifically in his
opposition activities.
35.
Moreover, according to the source, when imposing the sentence for causing bodily
harm, the Lida District Court considered the instances in which Mr. Butsko had been
prosecuted for participating in unauthorized rallies as an aggravating circumstance. The
source claims that, if he had not taken part in those peaceful assemblies, his punishment for
the beating would have been more lenient.
36.
It is alleged that the criminal investigation was conducted in violation of the right to
privacy, home and correspondence. Numerous searches were conducted at the homes of
Mr. Butsko and other individuals and legal entities, accompanied by the seizure of equipment
and documents. There is no explanation in the criminal case file as to why six searches were
necessary in a case concerning a beating. The verdict was mainly based on company
documents and witness statements. Thus, the items seized during the searches were allegedly
not necessary for the purpose of prosecution. Moreover, none of the search warrants stated
what the investigator intended to find during the search. All search warrants were motivated
by abstract reasons: they either stated that the search was conducted “for the purpose of
finding and seizing items of relevance to the case, as well as items prohibited for circulation”
or ordered the search because, in a particular person’s home, there “may be instruments and
means of committing a crime, items, documents and valuables that may be relevant to the
criminal case”. The source claims that there has been a violation of article 17 of the Covenant,
because a search warrant should be limited to the search for necessary evidence,2 while all
search warrants in the present case were worded broadly, which did not strike a balance
between the rights of the parties concerned. Article 17 was also allegedly violated because
the searches were carried out without judicial authorization.
37.
In addition to instituting criminal proceedings under article 426 (3) of the Criminal
Code, the investigation sought to establish Mr. Butsko’s involvement in financial crimes by
unilaterally sending seized documents and equipment to the financial police. Such scrutiny
was not connected to the charge of causing bodily harm. The fact that the investigator tried
to find new charges against Mr. Butsko reportedly demonstrates that the main purpose of the
prosecution was to put him in prison.
38.
The source claims that, once in the penal facility in which Mr. Butsko is serving his
sentence, he was placed on the register of political prisoners.
39.
The source states that, even if there is no mention in the judgment against Mr. Butsko
of his prosecution for expressing opinions and participating in peaceful assemblies, the very
fact that the prosecution resulted in a sentence, the manner of the investigation, the trial and
the penalty imposed by the court indicate that he was punished specifically for the exercise
of his rights guaranteed by articles 19 and 21 of the Covenant. Thus, the source claims that
his deprivation of liberty is arbitrary according to category II.
b.
Violation of articles 9 and 14 of the Covenant
40.
The source claims that the requalification of the charge from article 149 (1) to article
426 (3) of the Criminal Code was arbitrary. Accordingly, the detention of Mr. Butsko, on the
2 Human Rights Committee, general comment No. 16 (1988).
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basis of such a requalification, was allegedly arbitrary, thus violating article 9 (1) of the
Covenant.
41.
The Human Rights Committee has observed that, although an arrest or detention may
be authorized by domestic law, it may nonetheless be arbitrary and that the notion of
“arbitrariness” is not to be equated with “against the law” but must be interpreted more
broadly to include elements of inappropriateness, injustice, lack of predictability and due
process of law, as well as elements of reasonableness, necessity and proportionality.3
42.
According to the source, the initial charge under article 149 (1) of the Criminal Code
was requalified to a more serious charge to punish Mr. Butsko for exercising his rights under
the Covenant. This is also confirmed by the fact that the charge was requalified only after the
company’s lawyer had reconciled with Mr. Butsko and the criminal case could not have been
prosecuted under article 149 (1) of the Criminal Code.
43.
Moreover, the source submits that such requalification could not have been predicted
and was not in line with national criminal law. The prosecuting authorities themselves
initially considered the beating to be a less serious offence. Article 426 (3) of the Criminal
Code provides for criminal liability for abuse of power by an official accompanied by
violence. Initially, the investigation was carried out within the framework of an
administrative case, although for qualification under article 426 (3) of the Criminal Code, the
severity of the violence is not important. Had there been a uniform law enforcement practice,
criminal proceedings under article 426 (3) of the Criminal Code would have been initiated at
the outset, without an investigation within the framework of an administrative case. Thus,
the initial qualification of Mr. Butsko’s actions allegedly contradicts the final qualification;
this means that, for the prosecuting authorities themselves, the final qualification was not
foreseeable.
44.
Article 149 (1) of the Criminal Code criminalizes violence motivated by personal
enmity, while article 426 (3) thereof criminalizes violence perpetrated by persons against
individuals under their control. Deeds imputed to Mr. Butsko cannot qualify under article
426 (3) because that article criminalizes beatings in situations in which the victim depends
on the defendant, who has power over the victim. The subordinate relationship in a private
company does not fall under that category because the boss has no power over the
subordinate, only authority in work-related matters, and such authority does not fall under
the definition of power in article 426 (3). That was pointed out by an expert who supported
his position by referring to the Criminal Code’s commentary and who gave examples of
situations in which article 426 (3) would be relevant, such as the beating of a pupil by an
orphanage educator or the unreasonable use of violence by a police officer against a detainee.
45.
According to the source, another element of the crime stipulated in article 426 (3) of
the Criminal Code is the use of violence “out of other personal interest”. In the present case,
the court dismissed the statements of Mr. Butsko and the company’s lawyer that the former
man beat the latter out of enmity and decided that Mr. Butsko beat him out of “personal
interest”, which manifested itself in the demonstration of personal and physical superiority
over a subordinate. Such an interpretation was allegedly arbitrary because the beating was
artificially given a different meaning using abstract language. That allowed the court to
qualify Mr. Butsko’s actions under a more serious article of the Criminal Code, which does
not require the victim’s consent for prosecution.
46.
The source claims that there is no reason to think that the charge was requalified to a
more serious one lawfully, because, in their decisions, the courts of the three instances did
not explain why the actions of Mr. Butsko could not be qualified under article 149 (1),
although they were explicitly requested to address this matter. Reportedly, the judge who
handed down the verdict in the first instance and the judges who rejected the appeals in the
second instance routinely sentence to prison persons who express opposition views. Since
August 2020, Belarusian human rights organizations have allegedly identified other persons
3 Human Rights Committee, general comment No. 35 (2014), para. 12.
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who were considered political prisoners by those judges. The failure to provide a proper
reasoning in the judgment is allegedly a violation of article 14 of the Covenant.4
47.
Moreover, the Human Rights Committee has stated that detention pending trial must
be based on an individualized determination that it is reasonable and necessary taking into
account all the circumstances, for such purposes as to prevent flight, interference with
evidence or the recurrence of crime.5 The relevant factors should be specified in law and
should not include vague and expansive standards such as “public security”.6
48.
The source states that Mr. Butsko was in pretrial detention between 20 August 2021
and 10 February 2022. He was detained pending trial even though he had no previous
criminal record, had a permanent place of residence and a family with two minor children,
had reconciled with the victim and there were no legal grounds for criminal prosecution.
Approximately two months elapsed between the beating and the institution of criminal
proceedings. During that time, Mr. Butsko did not abscond or try to influence the
investigation. Accordingly, he was detained solely because of the gravity of the suspicion
imputed and later because of the gravity of the charge. Moreover, when a measure to restrict
liberty was selected, the possibility of another less restrictive measure was not even
considered. Accordingly, detention did not meet the criteria of necessity and proportionality.
49.
Under article 9 (3) of the Covenant, anyone arrested or detained on a criminal charge
should be brought promptly before a judge or other officer authorized by law to exercise
judicial power and should be entitled to trial within a reasonable time or to release. That
condition applies in all cases without exception and does not depend on the choice or ability
of the detainee to assert it.7 That condition applies even before formal charges are brought,
that is from the moment a person is detained or taken into custody on suspicion of committing
a criminal act. Forty-eight hours is normally sufficient for the delivery of individuals, as well
as for the preparation of a court hearing, any delay beyond that period must be strictly
exceptional and justified by specific circumstances. 8 Inherent in the proper exercise of
judicial power is the principle that it must be exercised by a body that is independent,
objective and impartial. Therefore, the public prosecutor cannot be regarded as an official
competent to exercise judicial power.9
50.
The source claims that the order to arrest Mr. Butsko was issued by the investigator
and authorized by the prosecutor. In violation of article 9 of the Covenant, Mr. Butsko was
not brought before a court or other body authorized by law to exercise judicial power within
48 hours. The fact that his arrest was authorized by a prosecutor did not exempt the authorities
from complying with the requirement of the Covenant to bring him before a judge to verify
the lawfulness and validity of detention.
51.
The source claims that the charges against Mr. Butsko were brought one week after
his arrest, which is allegedly another violation of article 9 (3) of the Covenant.
52.
According to the source, it follows that the arrest and detention of Mr. Butsko were
arbitrary under category III.
(b)
Response from the Government
53.
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. Butsko 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.
4 Human Rights Committee, general comment No. 32 (2007), para. 49.
5 Human Rights Committee, general comment No. 35 (2014), para. 38.
6 Ibid.
7 Ibid., para. 32.
8 Ibid., para. 33.
9 Torobekov v. Kyrgyzstan (CCPR/C/103/D/1547/2007), para. 6.2; and Reshetnikov v. Russian
Federation (CCPR/C/95/D/1278/2004), para. 8.2.
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54.
The Working Group regrets that the Government did not submit a reply, nor did it
seek an extension in accordance with paragraph 16 of the Working Group’s methods of work.
2.
Discussion
55.
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.
56.
In determining whether Mr. Butsko’s detention is 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 law constituting arbitrary
detention, the burden of proof should be understood to rest upon the Government if it wishes
to refute the allegations.10 In the present case, the Government has chosen not to challenge
the prima facie credible allegations made by the source.
57.
The source has argued that the detention of Mr. Butsko, both in his administrative and
criminal cases, is arbitrary, falling under categories II and III. The Working Group,
nevertheless, considers that some of the allegations fall under category I; it thus proceeds to
examine these categories in turn.
(a)
Category I
58.
According to the source and not contested by the Government, Mr. Butsko was in
pretrial detention in his criminal case for about six months without any less restrictive
measure being considered, despite the fact he had no previous criminal record, had a
permanent place of residence and a family with two minor children and had reconciled with
the victim.
59.
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.11 Article 9 (3) of the Covenant provides that it should not be the
general rule that persons awaiting trial should be detained, while release may be subject to
guarantees to appear for trial or 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.
As no justification for not using less intrusive preventive measures, such as bail or
undertaking not to abscond, has been provided in the present case, the Working Group
concludes that there has been a violation of article 9 (3) of the Covenant.
60.
Moreover, according to the same provision, anyone arrested or detained on a criminal
charge should be brought promptly before a judge. As the Human Rights Committee has
stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing detainees
“promptly” before a judge following their arrest and any longer delay must remain absolutely
exceptional and be justified under the circumstances.12 In the present case, it has not been
contested that Mr. Butsko was brought before a judicial authority after a week following his
arrest. Rather, he was arrested and held in police custody under the supervision of the public
prosecutor. As the Working Group has stated, a prosecutorial body cannot be considered a
judicial authority for the purposes of article 9 (3) of the Covenant.13 The Working Group thus
finds a violation of that provision.
61.
Accordingly, the Working Group considers that the detention of Mr. Butsko in his
criminal case was arbitrary under category I.
10 A/HRC/19/57, para. 68.
11 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 Human Rights Committee, general comment No. 35 (2014), para.
38; and A/HRC/19/57, paras. 48–58.
12 Human Rights Committee, general comment No. 35 (2014), para. 33; and CAT/C/GAB/CO/1,
para. 10.
13 Human Rights Committee, general comment No. 35 (2014), para. 32; See also opinions No. 14/2015,
para. 28; No. 5/2020, para. 72; and No. 41/2020, para. 60; and A/HRC/45/16/Add.1, para. 35.
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(b)
Category II
62.
The source submits that the administrative detention of Mr. Butsko in 2020 was
arbitrary under category II as it resulted from the exercise of his fundamental rights or
freedoms protected under international law, including the rights to freedom of expression and
freedom of assembly provided for in articles 19 and 21 of the Covenant.
63.
In particular, he was sentenced, on 3 December 2020, to 10 days of detention under
article 23.34 of the Code of Administrative Offences for his participation in two peaceful
opposition rallies on 13 and 15 November; on 11 December 2020, to 7 days of detention for
his participation in another peaceful opposition rally on 29 November 2020; and, on
14 December 2020, he was sentenced to 15 days of detention for his participation in a
peaceful opposition rally on 25 October 2020. Altogether, he spent 31 days in detention in
relation to the above-mentioned administrative proceedings.
64.
The Working Group observes that, while the Government had the opportunity to
address the specific allegations of violations of Mr. Butsko’s rights to freedom of expression
and assembly, it chose not to do so.
65.
The Working Group recalls that 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.14 Moreover, the permitted
restrictions to this right may relate either to respect for the rights or 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
article 19 (3), even if such grounds would justify restrictions on 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.15 It
should be noted that article 21 of the Covenant permits restrictions on the right of assembly
on the same three grounds.
66.
The Working Group wishes to specifically recall Human Rights Council resolution
24/5, in which the Council reminded States of their obligation to respect and fully protect the
rights of all individuals – including, persons espousing minority or dissenting views or
beliefs, human rights defenders, trade unionists and others – to assemble peacefully and
associate freely, online as well as offline, including in the context of elections.
67.
Equally, the Working Group recalls the principle enunciated in Human Rights Council
resolution 12/16, in which the Council called upon States to refrain from imposing
restrictions that were 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.
68.
Lastly, the Working Group notes the undisputed fact that Mr. Butsko participated in
peaceful rallies in the context of post-electoral debate in Belarus and, in this regard, recalls
the report of the United Nations High Commissioner for Human Rights published in 2021,
in which the High Commissioner records the following in the context of the post-election
period in the country:
Charges were overwhelmingly brought against people under article 23.34 of the Code
of Administrative Offences for “participation in an unauthorized mass event”. While
the maximum sentence for such acts is 15 days, several people reportedly received
successive sentences, accumulating up to almost 90 days of detention. In several
cases, criminal charges were additionally brought against persons serving
administrative sentences, leading to further remand in custody. Reportedly, some were
14 Human Rights Committee, general comment No. 34 (2011), para. 11.
15 Ibid., para. 22.
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GE.23-18308
detained and released without proceedings or charges, on condition that they pledge
to stop taking part in protests.16
69.
The Working Group recalls that the Human Rights Committee, in its general comment
No. 37 (2020), has clarified that the protection afforded 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. It is thus clear to the Working Group that the above periods of detention
of Mr. Butsko, albeit short, were based solely on his freedoms of expression and assembly,
following the pattern identified by OHCHR as noted above.
70.
The Working Group concludes that those periods of detention of Mr. Butsko were
arbitrary, falling under category II.
(c)
Category III
71.
The source alleges that the criminal proceedings against Mr. Butsko were unfair, thus
rendering his detention arbitrary under category III. While the nature of the crime committed
by Mr. Butsko was not disputed (causing bodily harm to the in-house lawyer), the source
complains mostly about an allegedly incorrect legal qualification of the crime, which led to
more severe punishment. The source suggests that the court considered the multiple instances
in which Mr. Butsko was prosecuted for participation in unauthorized peaceful assemblies as
an aggravating circumstance. The source claims that, if he had not taken part in the peaceful
assemblies, his punishment for the beating would have been more lenient.
72.
The Working Group reiterates that it has consistently refrained from taking the place
of the national judicial authorities or acting as a kind of supranational tribunal when it is
urged to review the application of national law by the judiciary.17 It is outside the mandate of
the Working Group to reassess the sufficiency of the evidence or to deal with errors of law
allegedly committed by national courts.18
73.
In the case at stake, no prima facia arbitrariness can be detected in the domestic courts’
reasoning; and the Working Group considers that the source did not provide sufficient
information demonstrating violations of Mr. Butsko’s rights to a fair trial. Furthermore,
noting that the source has not alleged that Mr. Butsko was convicted following proceedings
that were not adversarial or in the course of which he was not represented by a lawyer of his
choice or given ample opportunity to state his case, to challenge the evidence against him or
to submit what he found relevant for the outcome, the Working Group is unable to make any
finding under category III.
74.
The Working Group considers that the source did not provide sufficient information
demonstrating violations of Mr. Butsko’s rights to a fair trial. The Working Group is thus
unable to make any finding under category III.
3.
Disposition
75.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Piotr Butsko, being in contravention of articles 3, 9, 19
and 20 of the Universal Declaration of Human Rights and articles 9, 19 and 21 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and II.
76.
The Working Group requests the Government of Belarus to take the steps necessary
to remedy the situation of Mr. Piotr Butsko 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.
16 A/HRC/46/4, para. 41.
17 See, for example, opinion No. 16/2017.
18 See, for example, opinion No. 5/2021.
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GE.23-18308
11
77.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Butsko 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. Butsko and to take appropriate measures against those responsible for the violation of
his rights.
79.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
80.
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 compensation or other reparations have been made to Mr. Butsko;
(b)
Whether an investigation has been conducted into the violation of Mr. Butsko’s
rights and, if so, the outcome of the investigation;
(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
81.
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.
82.
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.
83.
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.19
[Adopted on 31 August 2023]
19 Human Rights Council resolution 51/8, paras. 6 and 9.