Opinion; Subjects: RUSSIAN FEDERATION, 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.24-01386 (E) 050224 050224
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-eighth session, 13–17 November 2023
Opinion No. 76/2023 concerning Alexey Moskalev (Russian Federation
and 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 14 July 2023 the Working Group
transmitted to the Government of the Russian Federation and the Government of Belarus a
communication concerning Alexey Moskalev. The Governments have not replied to the
communication. The States are parties 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,
* In accordance with paragraph 5 of the Working Group’s methods of work, Ganna Yudkivska did not
participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/76
General Assembly
Distr.: General
6 February 2024
Original: English
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Alexey Moskalev, born in 1968, is a citizen of the Russian Federation, who holds a
passport issued by the Federal Migration Service of the Russian Federation for the Tula
Region, in Yefremov. He is the father of a child who is a minor of 12 years of age. He usually
resides in Yefremov, Tula Region.
(i)
Context
5.
According to the source, the Russian Federation has used repressive mechanisms to
combat anti-war expression since the invasion of Ukraine on 24 February 2022. On 4 March
2022, in the context of the invasion, the State Duma – a chamber of the Parliament of the
Russian Federation – adopted Laws No. 31-FZ and No. 32-FZ, otherwise known as the “Fake
News Law”. The Fake News Law added article 280.3 to the Criminal Code and amended
article 20.3.3 of the Code of Administrative Offences; both articles seek to punish
discrediting the armed forces of the Russian Federation and are relevant to the present
complaint.
6.
The source submits that the Russian Federation uses the above-mentioned articles
together in order to silence anti-war expressions. For instance, those who are fined under
article 20.3.3 of the Code of Administrative Offences are at risk of subsequent criminal
prosecution – facing up to seven years’ imprisonment under article 280.3, part 1, of the
Criminal Code if law enforcement officials conclude that they have violated the same
provision again within one year.
7.
The source submits that the extent of the use by the Russian Federation of the Fake
News Law to silence anti-war expression is demonstrated by the more than 6,200 cases that
have been brought under article 20.3.3 of the Code of Administrative Offences and
65 prosecutions of individuals under article 280.3 of the Criminal Code as of 24 March 2023.
(ii)
Arrests, detentions and trial
8.
The source submits that the persecution of Mr. Moskalev began after Mr. Moskalev’s
child, who is a minor, drew a picture with the flags of the Russian Federation and Ukraine
accompanied with the inscriptions “No to war” and “Glory to Ukraine” during her school art
lesson on 24 April 2022.
9.
On 25 April 2022, a day later, Mr. Moskalev was found guilty of an administrative
offence under article 20.3.3 of the Code of Administrative Offences by Yefremov Interdistrict
Court of the Tula Region. The Court subsequently sentenced Mr. Moskalev to a fine of
32,000 roubles.
10.
On 27 December 2022, a criminal case was opened against Mr. Moskalev for
“discrediting the Russian army” under article 280.3 of the Criminal Code, based on its
provisions related to social networks. More specifically, Yefremov Interdistrict Court of the
Tula Region accused Mr. Moskalev of posting four messages, the content of which was
shared with the Working Group, on the Odnoklassniki social network under the username
“Moskalev Alexey” on 29 July 2022. The posts criticized the country’s military, calling its
military actions “terrorist in their nature” among similar characterizations.
11.
According to the source, on 30 December 2022, three days after his criminal case was
opened, Mr. Moskalev was summoned to the Federal Security Service building for an
interrogation, where he was beaten and ill-treated by the Federal Security Service. His head
was repeatedly smashed against the wall and floor, and he was locked in a room for two and
a half hours while the Federal Security Service turned on the national anthem of the Russian
Federation at full volume. The authorities then called an ambulance for Mr. Moskalev, who
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had a heart pain. The ambulance arrived, and doctors took Mr. Moskalev’s blood pressure
and gave him two pills and an injection to ease his heart pain. The doctors and the ambulance
subsequently left the scene. Mr. Moskalev did not complain about his health after this
incident.
12.
According to the source, the investigation against Mr. Moskalev did not require him
to sign any legal documents stating that he had to remain in the city, and he was therefore
under no legal obligation to do so. He reportedly moved cities shortly after the criminal case
was opened against him because his child feared going back to school to face harassment and
Mr. Moskalev believed that he and his child, who is a minor, needed a new start.
13.
On 1 March 2023, Mr. Moskalev was reportedly arrested without a warrant by the
Tula Region police forces outside his home in the city of Uzlovaya, Tula Region.
14.
After his arrest, Mr. Moskalev was detained for the whole day in the police building
of the Temporary Detention Centre of the Tula Region. The following day, he was placed
under house arrest by the Yefremov Interdistrict Court of the Tula Region, and his minor
child was sent to a children’s home.
15.
According to the source, the reason for Mr. Moskalev’s house arrest was that the
authorities viewed his move as an attempt to escape the investigation, despite him having
moved several months before they arrested him. Allegedly, that the authorities only ordered
the house arrest after various independent media wrote about Mr. Moskalev’s story.
16.
During Mr. Moskalev’s house arrest, he was subject to restrictive measures commonly
imposed on individuals under house arrest in the Russian Federation; he had an electronic
monitor placed around his leg and was prohibited from leaving his apartment. In addition,
the Commission on Juvenile Affairs reportedly believed that Mr. Moskalev would not be able
to exercise parental control over his child, who is a minor, despite an investigator allowing
Mr. Moskalev’s minor child to be returned to him.
17.
On 27 March 2023, a trial was held at the Yefremov Interdistrict Court of the Tula
Region to decide Mr. Moskalev’s case. Mr. Moskalev was present at his trial and was able to
testify. He was represented by an attorney.
18.
Mr. Moskalev’s sentencing hearing took place the day after his trial, on 28 March
2023. However, Mr. Moskalev was not present at the hearing, because he escaped his home
that same day and fled the Russian Federation. Nonetheless, the source submits that
Yefremov Interdistrict Court sentenced Mr. Moskalev in absentia to two years in prison under
article 280.3, part 1, of the Criminal Code for his posts on the Odnoklassniki social media
network.
19.
On 30 March 2023, Mr. Moskalev was arrested by police officers in Minsk, Belarus,
without being shown a warrant. The Ministry of Internal Affairs of Belarus issued a press
release in which it stated that it had arrested Mr. Moskalev on the basis of a request by the
police of the Russian Federation.
20.
On 12 April 2023, it became known that Mr. Moskalev had been transferred from
Belarus to the Russian Federation. However, his whereabouts were not precisely identified,
and he was not able to contact his attorney or his family until 3 May 2023.
21.
On 20 April 2023, during the time that Mr. Moskalev was missing, his attorney
appealed against his sentence before Tula Regional Court.
22.
On 3 May 2023, Mr. Moskalev was found in SIZO-1 in Smolensk, Russian
Federation. Thereafter, the source submits that Mr. Moskalev was able to meet with his
attorney.
23.
Reportedly, after his arrest by Belarusian authorities on 30 March 2023, Mr. Moskalev
was detained in Smolevichi, Belarus, by eight employees of local special services.
24.
According to the source, while detained, Mr. Moskalev was severely beaten on his
chest and back and suffered a torn leg muscle in his right leg because of the beatings. He was
dealt blows to the head and his head was beaten against the wall. Mr. Moskalev was also
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handcuffed and kept for an hour in handcuffs, which squeezed his hands very tightly. As a
result of the handcuffing, Mr. Moskalev still cannot feel either of his thumbs.
25.
Following the beatings, Mr. Moskalev was taken to a temporary detention centre,
where the officers documented the bruises and marks on his body. The officers then forced
Mr. Moskalev to sign a document stating that he had no claims against the security forces
who had beaten him. Mr. Moskalev allegedly agreed to sign the document due to his fear that
the officers would beat him further if he refused to sign it.
26.
Mr. Moskalev spent three days in a temporary detention centre, where the conditions
were poor. There were 12 people in one cell, and after getting up, the detainees had to roll up
the mattresses and could not sit on them due to lack of space.
27.
Following Mr. Moskalev’s arrest and detention in the first detention centre, he was
detained in another pretrial detention centre in the city of Zhodino, Belarus. He stayed there
for one week and was then extradited to the Russian Federation.
28.
Mr. Moskalev was taken out of Belarus and extradited to the Russian Federation by
individuals in civilian clothes in an unmarked car. Once in the Russian Federation, he was
taken to a temporary detention facility in Smolensk where he stayed for two days. He was
then placed in the SIZO-1 detention centre in Smolensk and spent 17 days in quarantine. At
one point during the quarantine period, another individual was put in Mr. Moskalev’s cell
with him. This individual reportedly made a mess in the cell, broke glass, and applied force
to Mr. Moskalev by strangling him and hitting his head against the wall. While in the cell,
the individual talked about the need to sign up for the Wagner Group and “go to kill
Ukrainians”. Allegedly, the individual was purposefully placed in the cell with him by the
security forces of the Russian Federation.
29.
On 22 June 2023, Mr. Moskalev was moved to the SIZO detention centre in the Tula
Region. His appeal hearing was scheduled for 3 July 2023 and took place as planned.
Mr. Moskalev’s sentence entered into force and the judge added to the verdict a ban on him
using the Internet for two years, as well as an indication of “armed conflict” as an aggravating
circumstance of the crime. Mr. Moskalev remains in custody and will now be transferred to
a penal colony.
30.
According to the source, on 1 March 2023, Mr. Moskalev’s minor child was sent to
the Social Rehabilitation Centre for Minors in Yefremov, Tula Region, where the child
remained until 5 April 2023. During this time, the child was not able to see anyone, including
Mr. Moskalev’s lawyer.
31.
On 20 April 2023, the Commission on Juvenile Affairs in Yefremov in the Tula
Region dismissed a lawsuit seeking to restrict the rights of the parents of the child. Currently,
the child is receiving remote education and living with a relative.
(iii)
Legal analysis
32.
The source submits that the arrest and detention of Mr. Moskalev is arbitrary under
categories I, II, III and V as established by the Working Group on Arbitrary Detention.
a.
Arbitrary detention in the Russian Federation from 1 March 2023 to 28 March 2023
Category I
33.
The source recalls that detention is arbitrary under category I when it is impossible to
invoke any legal basis justifying the deprivation of liberty. The source further recalls
article 9 (1) of the Covenant, which establishes rights to liberty and security of person and
proscribes arrest or detention which are not in accordance with the law. The source also refers
to article 11 (2) of the Universal Declaration of Human Rights, which enshrines the principles
of necessity and proportionality in relation to criminal liability.
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34.
The source recalls that one of the fundamental guarantees of due process is the
principle of legality, which includes the principle of certainty.2 Moreover, the principle of
legality requires the substance of penal law to be due and appropriate in a democratic society
that respects human dignity and rights. Therefore, the penal punishment must, at a minimum,
satisfy the principle of necessity, the prerequisite of injustice and the principle of guilt in the
interest of formal and material justice.3 Punishment should fit the crime, not the criminal, and
the requirement of the principle of legality must be construed more strictly in proportion to
the severity of the prescribed punishment.4
Article 280.3 of the Criminal Code of the Russian Federation cannot qualify as lex certa
35.
The source submits that article 280.3, part 1, of the Criminal Code does not conform
to the principle of legal certainty (lex certa) because it is not formulated with sufficient
precision to allow an individual to access and understand the law and regulate his or her
conduct accordingly.
36.
Furthermore, article 280.3, part 1, is vague and broad. The provision “actions aimed
at discrediting [the Armed Forces of the Russian Federation]” can be used to deprive
individuals of their liberty without a specific legal basis and has a deterrent effect on the
exercise of rights and freedoms of individuals because it has the potential to cause abuse,
including arbitrary deprivation of liberty.
37.
The source submits that article 280.3, part 1, is used solely to silence anti-war
expressions, such as displaying signs or elements of clothing with phrases such as “No to
war”, “Peace”, “Fascism will not pass”, or taking part in anti-war rallies or silently supporting
them, displaying Ukrainian flags, green ribbons or anti-war badges on clothing, posting,
commenting or liking any anti-war posts on social media, or opposing State-promoted
pro-war symbols (such as “Z” used on military vehicles).
Article 280.3 of the Criminal Code of the Russian Federation cannot qualify as lege apta
38.
The source further submits that article 280.3, part 1, does not prescribe prison terms
which are necessary or proportionate to the stated offence. The provision prescribes prison
terms of up to five years of deprivation of liberty for harmless actions that are neither
necessary to protect public or private interests from injury, nor proportionate to the guilt
established under the law.
39.
Mr. Moskalev was arrested, detained, and sentenced to two years’ imprisonment
under article 280.3, part 1, for his social media posts, which were found after he was
investigated on account of an anti-war drawing by his minor child at a school art lesson.
40.
The source therefore concludes the following: article 280.3, part 1, is vaguely and
broadly worded and cannot qualify as either lex certa or lege apta; article 280.3, part 1,
violates the due process of law undergirded by the principle of legality in article 11 (2) of the
Universal Declaration of Human Rights; and proceedings based on the article are arbitrary
for the purpose of article 9 of the Universal Declaration of Human Rights.
41.
In view of the above, the source argues that Mr. Moskalev’s arrest, detention and
sentencing to two years’ imprisonment lack legal basis and are thus arbitrary under
category I.
Category II
42.
The source submits that 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 freedom of association.
2 Opinion No. 10/2018, para. 50.
3 Ibid., para. 53.
4 Ibid., para. 54.
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43.
The source recalls that article 19 of the Covenant and article 19 of the Universal
Declaration of Human Rights extend to ideas that offend or disturb the State and “protect
peaceful political discourse and commentary on public affairs via the Internet, including the
expression of ideas that may be regarded as offensive” as a core value of political rights in a
free and democratic society.5
44.
The source further notes that that although speech may be limited according to
article 19 (3) of the Covenant and article 29 (2) of the Universal Declaration of Human
Rights, the mere fact that it may be criminalized under domestic law does not deprive
individuals of their right to freedom of speech under international law. 6 Furthermore,
offences should not be so vague, broad or imprecise that they grant officials unfettered
discretion to criminalize the peaceful exercise of the right to freedom of expression.7
45.
The source recalls that restrictions on freedom of expression must be absolutely
necessary in a democratic society.8 States cannot rely pretextually on the enumerated grounds
in article 19 (3) of the Covenant and article 29 (2) of the Universal Declaration of Human
Rights and must show in a specific and individualized fashion the nature of the threat posed
by the speech in question and a direct and immediate connection between this threat and the
expression in question.9
46.
The source notes that the Working Group has found that criminal sentences are
disproportionate for offences such as damaging the State’s reputation or weakening national
morale. The Working Group has considered “the broad lack of proportionality between the
power and impact of the work and activities carried out by a single individual … and the
power and impact of an entire State machinery, with its executive, legislative and judicial
organs and its armed forces, police and security agents”.10
47.
More specifically, unsubstantiated references to national security concerns are
insufficient to show that a detention based on the exercise of freedom of expression meets
the article 19 (3) requirements,11 and limitations based on a national security justification
must follow strictly the requirements of necessity and proportionality, which means that
governments must show that: (a) the expression is intended to incite imminent violence; (b) it
is likely to incite such violence; and (c) there is a direct and immediate connection between
the expression and the likelihood or occurrence of such violence.
48.
The source recalls that peaceful political and social discourse cannot be restricted on
the basis that it represents a threat to national security,12 and that the right to freedom of
expression cannot be restricted merely to muzzle advocacy of democratic tenets or human
rights.13 Limitations on free speech cannot be justified by merely referencing disturbances to
public order. The documentation must show that the restriction is necessary to preserve the
interest of maintaining public order,14 detention as a response to peaceful expression being
invalid.15
5 Opinion No. 13/2011, para. 9.
6 Opinion No. 39/2015, para. 22.
7 Opinion No. 38/2015, para. 73.
8 Opinion No. 15/2004, para. 14.
9 Human Rights Committee, general comment No. 34 (2011), para. 35; and opinion No. 23/2011,
para. 24. See also the Working Group’s deliberation No. 8 (E/CN.4/2006/7, sect. II) on deprivation of
liberty linked to/resulting from the use of the Internet.
10 Opinion No. 24/2008, para. 22.
11 Opinion No. 4/2005, para. 13.
12 Opinion No. 50/2015, para. 22.
13 Ibid., para. 6.
14 Opinion No. 25/2011, para. 29.
15 Opinions No. 20/1996, para. 7; and No. 25/2011, para. 29.
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49.
The source recalls that government institutions such as the military are not immune
from criticism and that detention as punishment for criticizing16 or demoralizing the military
is arbitrary.17
50.
According to the source, Mr. Moskalev was arrested, detained, prosecuted, and
sentenced to two years’ imprisonment in the Russian Federation to punish him for his social
media posts discovered after a criminal case was opened against him after his child drew an
anti-war drawing at a school art class.
51.
The crime with which Mr. Moskalev was charged under article 280.3, part 1, of the
Criminal Code of the Russian Federation, and the conduct of the subsequent trial, is evidence
of a reprisal against him for his expression of a peaceful political opinion. Therefore, his
detention must receive heightened scrutiny and a heightened standard of review.
52.
The source submits that allowing anti-war expression to be prohibited under the guise
of preventing “discrediting” of the use of the Armed Forces of the Russian Federation would
negate the meaning of the Covenant, in particular article 20 (1), which states that “any
propaganda for war shall be prohibited by law”.
53.
Furthermore, the source alleges that article 280.3, part 1, of the Criminal Code of the
Russian Federation was adopted solely to silence speech related to the armed conflict.
54.
The source submits that a sentence of two years’ imprisonment for peaceful posts on
social media related to the armed conflict in Ukraine is a dramatically disproportionate
restriction on the right to freedom of expression.
55.
Therefore, the source submits that article 280.3, part 1, of the Criminal Code is used
to target persons engaged in peaceful critical expression, falls short of international standards,
is aimed at suppressing debate of public interest concerning the armed conflict in Ukraine
and creates a chilling effect on freedom of expression.
56.
The source argues that the Russian Federation has violated Mr. Moskalev’s freedom
of expression guaranteed by article 19 (2) of the Covenant and article 19 of the Universal
Declaration of Human Rights by arresting, detaining and prosecuting him and sentencing him
to two years’ imprisonment, rendering his detention arbitrary under category II.
Category III
57.
The source recalls article 9 of the Universal Declaration of Human Rights and
article 9 (2) of the Covenant, which prohibit arbitrary arrest and detention and require
authorities to inform arrested individuals of the reason for the arrest at the time of the arrest,
and of the charges against them.
58.
The source submits that Mr. Moskalev was arrested on 1 March 2023 without a
warrant, and was subsequently detained, under house arrest. The source recalls that house
arrest may be compared to deprivation of liberty if it is carried out in closed premises that the
person is not allowed to leave.18
59.
The source recalls that detentions that are in response to the exercise of freedom of
opinion and freedom of expression require a particular vigilant review of the application of
fair trial guarantees.19
60.
Moreover, the source submits that laws that restrict freedom of speech may have
legitimate means but are prone to abuse, and that violations of such laws should not be
punished by detention since such punishment is disproportionate.20
16 Opinions No. 53/1992, No. 28/1998 and No. 50/2011.
17 Opinion No. 3/1994.
18 E/CN.4/1993/24, para. 20.
19 Opinion No. 4/2010, para. 21.
20 Human Rights Committee, general comment No. 34 (2011), para. 47.
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61.
The source submits that in the present case, Mr. Moskalev’s house arrest from 2 to
28 March 2023 and his sentence of two years’ imprisonment resulted solely from his peaceful
expression of anti-war opinions.
62.
The source submits that Mr. Moskalev’s arrest falls within category III and that no
house arrest and trial should have taken place. The source also submits that Mr. Moskalev’s
sentence was disproportionate and excessive.
63.
Therefore, the source concludes that the violation of Mr. Moskalev’s due process
rights is of such gravity as to render his deprivation of liberty arbitrary under category III.
Category V
64.
The source recalls articles 2 and 7 of the Universal Declaration of Human Rights and
articles 2 (1) and 26 of the Covenant, which guarantee human rights and equality to all
persons without distinction based on political or other views.
65.
The source further recalls that when a detention results from the active exercise of
civil and political rights, there is a strong presumption that the detention also constitutes a
violation of international law on the grounds of discrimination based on political or other
views.
66.
The source recalls that the Working Group has stated that sentencing and detention
for expressing anti-war sentiments using a legal basis established solely to target those who
criticize the Government and Armed Forces of the Russian Federation regarding the armed
conflict in Ukraine violates the international obligation not to discriminate against people on
the basis of their political opinions.21
67.
The source therefore argues that Mr. Moskalev’s detention has been imposed on a
discriminatory basis due to his anti-war political opinion. His detention constitutes a violation
of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of
the Covenant, rendering his deprivation of liberty arbitrary under category V.
b.
Arbitrary arrest in Belarus on 30 March 2023 and extraordinary rendition to the Russian
Federation on 12 April 2023
Category I
68.
The source submits that on 12 April 2023, following his arrest in Belarus on 30 March
2023, it became known that Mr. Moskalev had been transferred from Belarus to the Russian
Federation. However, his whereabouts were not precisely identified, and he did not have a
chance to contact his attorney or his family until 3 May 2023.
69.
The source recalls that where transfers from one State to another are too irregular or
informal, they constitute extraordinary rendition rather than extradition. 22 Furthermore,
extraordinary rendition constitutes government-sponsored abduction and extrajudicial
transfer of a person from one country to another, which is not compatible with international
law because it is aimed at circumventing procedural safeguards.
70.
The source submits that because Mr. Moskalev was arrested in Minsk, Belarus,
without an arrest warrant, and was subsequently transferred illegally to the Russian
Federation, the international legal procedures regarding extradition for the purpose of
arresting, detaining and returning individuals to face criminal proceedings were blatantly
ignored.
71.
The source therefore argues that Belarus is jointly responsible with the Government
of the Russian Federation for the arrest and detention of Mr. Moskalev and his deportation to
the Russian Federation, which took place in complete disregard of legal procedures and thus
falls under category I.
21 Opinion No. 78/2022, para. 92.
22 Opinion No. 11/2007, para. 15.
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Category III (secret detention in the Russian Federation following transfer from Belarus)
72.
The source recalls that no one should be held in secret detention, and that secret
detentions de facto constitute enforced disappearances, which are defined by “government
refusal to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside the protection
of the law”.23
73.
The source also recalls that secret detention facilitates torture and other ill-treatment
because it denies detainees the legal safeguards and communication with the outside world
that would normally dissuade or prevent the detaining powers from acting in such a way.
74.
On 12 April 2023, it became known that Mr. Moskalev had been transferred from
Belarus to an unknown location in the Russian Federation. His whereabouts were not
precisely identified until 3 May 2023, and he was unable to contact his attorney or his family
during the weeks between 12 April and 3 May 2023.
75.
The source therefore argues that the Russian Federation violated its international
obligations by imposing secret detention on Mr. Moskalev, which placed him outside the
protection of the law, rendering his deprivation of liberty arbitrary under category III.
(b)
Response from the Governments
76.
On 14 July 2023, the Working Group transmitted the allegations from the source to
the Government of the Russian Federation and the Government of Belarus under its regular
communications procedure. The Working Group requested the Governments to provide
detailed information by 12 September 2023 about the current situation of Mr. Moskalev. The
Working Group also requested the Governments to clarify the legal provisions justifying his
detention, as well as its compatibility with the States’ obligations under international human
rights law, and in particular with regard to the treaties ratified by both States. Moreover, the
Working Group called upon the Governments to ensure Mr. Moskalev’s physical and mental
integrity.
77.
The Working Group regrets that it did not receive a response from the Government of
the Russian Federation or from the Government of Belarus to this communication. The
Governments did not request an extension of the time limit for their reply, as is provided for
in the Working Group’s methods of work.
78.
Noting that allegations have been made against the Government of the Russian
Federation and the Government of Belarus, the Working Group will proceed to examine these
separately.
2.
Discussion
79.
In the absence of a response from the Government of the Russian Federation and the
Government of Belarus, the Working Group has decided to render the present opinion, in
conformity with paragraph 15 of its methods of work.
80.
In determining whether Mr. Moskalev’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 presented 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.24 In the present case, the Governments have chosen not to challenge
the prima facie credible allegations made by the source.
23 Opinion No. 23/2020, para 57.
24 A/HRC/19/57, para. 68.
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(a)
Allegations against the Government of the Russian Federation
(i)
Category I
81.
The source submits that Mr. Moskalev was arrested on 1 March 2023 without a
warrant and was subsequently detained under house arrest from 2 March to 28 March 2023.
His child, who is a minor, was sent to a children’s home.
82.
In the absence of any submission from the Government, the Working Group considers
that the source has presented a credible prima facie case that Mr. Moskalev’s detention is
without any legal basis, in violation of article 9 (1) of the Covenant. Pursuant to article 9 (1)
of the Covenant, no one is to be deprived of liberty except on such grounds and in accordance
with such procedure as are established by law. To establish a legal basis for deprivation of
liberty, the authorities must invoke that legal basis and apply it to the circumstances of the
case.25 The international norms on detention include the right to be presented with an arrest
warrant or the equivalent, except for arrests that are made in flagrante delicto, under articles 3
and 9 of the Universal Declaration of Human Rights, article 9 (1) of the Covenant26 and
principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. Any form of detention or imprisonment should be
ordered by, or be subjected to the effective control of, a judicial or other authority under the
law, whose status and tenure should afford the strongest possible guarantees of competence,
impartiality and independence, in accordance with principle 4 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment. The authorities
also deprived Mr. Moskalev of his right to challenge the legality of his detention, in violation
of article 8 of the Universal Declaration of Human Rights and articles 2 (3) and 9 (4) of the
Covenant.
83.
The source submits that during Mr. Moskalev’s house arrest, he was subject to
restrictive measures commonly imposed on individuals under house arrest in the Russian
Federation; he had an electronic monitor placed around his leg, and he was prohibited from
leaving his apartment. His minor child was sent to a home, as the Commission on Juvenile
Affairs reportedly believed that Mr. Moskalev would not be able to exercise parental control
over his minor child, despite an investigator allowing Mr. Moskalev’s child to be returned to
him.
84.
In this regard, the Working Group recalls its position that house arrest may be
compared to deprivation of liberty if it is carried out in closed premises which the person in
question is not allowed to leave.27 The Working Group’s deliberation No. 128 on house arrest
also states that in all other situations, it will devolve on the Working Group to decide, on a
case-by-case basis, whether the case in question constitutes a form of detention, and if so,
whether it has an arbitrary character. As the Working Group has found, the deprivation of
liberty is not only a question of legal definition, but also a question of fact, and if a person is
not free to leave a place or establishment, all appropriate safeguards that are in place to
prevent arbitrary detention must be respected.29 The Working Group notes that Mr. Moskalev
was deprived of his liberty in closed premises, he was not allowed to leave, and his child was
sent away. In these circumstances, the Working Group finds that his house arrest was
tantamount to deprivation of liberty.
85.
Moreover, according to the source’s unrebutted submission, following the illegal
transfer of Mr. Moskalev from Belarus, his whereabouts were not precisely identified, and
he was unable to contact his attorney or his family between 12 April and 3 May 2023. The
Working Group thus finds that Mr. Moskalev was subjected to enforced disappearance,
25 Opinions No. 9/2019, No. 33/2019, No. 46/2019 and No. 59/2019.
26 Opinion No. 88/2017, para. 27.
27 Opinions No. 13/2007, para. 24; No. 37/2018, para. 25; and No. 11/2023, para. 49; and see the
Working Group’s deliberation No. 1 (E/CN.4/1993/24, sect. II).
28 E/CN.4/1993/24, sect. II.
29 Opinion No. 50/2022, para. 79.
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which is an aggravated form of arbitrary detention.30 As a result, he was unable to effectively
exercise his right to challenge his detention so that a court could decide without delay on its
legality in accordance with article 9 (3) and (4) of the Covenant. Given that Mr. Moskalev
was unable to challenge his detention, his right to an effective remedy under article 8 of the
Universal Declaration of Human Rights and article 2 (3) of the Covenant was also violated.
In these circumstances, the Working Group finds that his right to contact with the outside
world was denied, contravening rule 58 of the United Nations Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules)31 and principles 15 and 19 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
86.
For these reasons, the Working Group considers that the deprivation of liberty of
Mr. Moskalev lacks legal basis and is thus arbitrary, falling under category I.
(ii)
Category II
87.
The source submits that the Russian Federation has violated Mr. Moskalev’s freedom
of expression by arresting, detaining and prosecuting him and sentencing him to two years’
imprisonment, rendering his detention arbitrary under category II.
88.
The Working Group recalls that freedom of opinion and freedom of expression as
expressed in article 19 of the Covenant are indispensable conditions for the full development
of the person and are essential for any society and in fact constitute the foundation stone for
every free and democratic society.32 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.33 It protects the holding and expression
of opinions, including those which are critical of, or not in line with, government policy.34
89.
However, the Working Group notes that, whereas speech may be limited according to
article 19 (3) of the Covenant and article 29 (2) of the Universal Declaration of Human
Rights, the mere fact that it may be criminalized under domestic law does not deprive
individuals of their right to freedom of speech under international law. In this respect, the
Human Rights Committee has emphasized that the form of expression is highly relevant in
assessing whether a restriction is proportionate. As stipulated by the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression, certain types
of expression should never be subject to restrictions, such as “discussion of government
policies and political debate” and “peaceful demonstrations or political activities, including
for peace or democracy”.35 The Committee has also called upon States to refrain from
imposing restrictions under article 19 (3) of the Covenant that are not consistent with
international human rights law.36
90.
The Working Group considers that Mr. Moskalev’s online posts fall within the right
to freedom of opinion and expression protected under article 19 of the Universal Declaration
of Human Rights and article 19 of the Covenant and that he was detained for exercising this
right. Mr. Moskalev’s messages, as reported, did not call for violence or war.
91.
The Working Group recalls that in a joint declaration on freedom of expression and
“fake news”, disinformation and propaganda, adopted in Vienna on 3 March 2017, several
experts (including the Special Rapporteur on the promotion and protection of the right to
30 Human Rights Committee, general comment No. 35 (2014), para. 17. See also opinion No. 37/2021,
para. 65.
31 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.
32 Human Rights Committee, general comment No. 34 (2011), para. 2.
33 Ibid., para. 11.
34 Opinions No. 79/2017, para. 55; and No. 8/2019, para. 55.
35 See A/HRC/14/23, para. 81 (i); and
https://www.ohchr.org/Documents/Issues/Expression/JointDeclaration3March2017.doc,
para. 2 (a). See also opinions No. 46/2020, para. 54; and No. 77/2020, para. 73.
36 Human Rights Committee resolution 12/16, para. 5 (p).
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freedom of opinion and expression) stated that general prohibitions on the dissemination of
information based on vague and ambiguous ideas, including false news or information, are
incompatible with international standards for restrictions on freedom of expression and
should be abolished.37 In this regard, the Working Group has called upon States to refrain
from using anti-disinformation laws to prosecute individuals for the dissemination of
information in the course of their work and to abolish prohibitions on the dissemination of
information based on vague and ambiguous ideas, including “false news” or “fake news”.38
The Working Group recalls that the Committee has also expressed deep concern about the
amendments to the Criminal Code of the Russian Federation made in March 2022, including
article 280.3, for unduly restricting freedom of expression.39
92.
In the absence of a substantive response from the Government addressing these
allegations, the only plausible explanation for Mr. Moskalev’s arrest and detention is that he
is being punished for the exercise of his rights to freedom of expression under article 19 of
the Covenant and article 19 of the Universal Declaration of Human Rights. The Government
did not present any argument or evidence to the Working Group to invoke any of the
limitations prescribed under these rights, nor did it demonstrate why bringing charges against
Mr. Moskalev was a legitimate, necessary and proportionate response to peaceful anti-war
expressions.
93.
The source submits that article 280.3 of the Criminal Code cannot qualify as lex certa,
since it is vague and broad. The provision “actions aimed at discrediting [the Armed Forces
of the Russian Federation]” can be used to deprive individuals of their liberty without a
specific legal basis, and has a deterrent effect on the exercise of the rights and freedoms of
individuals because it has the potential to cause abuse, including arbitrary deprivation of
liberty. The source submits that article 280.3, part 1, is used solely to silence anti-war
expressions, such as displaying signs or items of clothing with phrases on them.
94.
As the Working Group has previously stated, the principle of legality requires that
laws be formulated with sufficient precision so that the individual can access and understand
the law and regulate his or her conduct accordingly.40 It has also found that offences must not
be too vague, too broad and too imprecise as to grant officials unfettered discretion to
criminalize the peaceful exercise of the right to freedom of expression.41 Vague criminal
offences include offences of “enemy propaganda” 42 and of “broadcasting false or
exaggerated news that would affect the morale of the country”.43
95.
In the present case, the application of vague and overly broad provisions adds weight
to the Working Group’s conclusion that Mr. Moskalev’s deprivation of liberty falls within
category II. The Working Group calls upon the Government to repeal this law or bring it into
line with its obligations under international human rights law. In this respect, the Working
Group recalls the 2023 report of the Special Rapporteur on the situation of human rights in
the Russian Federation, who also called upon the Government, as a matter of urgency, to
repeal this law.44
96.
The source further submits that article 280.3 of the Criminal Code cannot qualify as
lege apta since part 1 does not prescribe prison terms which are necessary or proportionate
to the stated offence. The provision prescribes prison terms of up to five years of deprivation
of liberty for harmless actions, which are neither necessary to protect public or private
interests from injury nor proportionate to the guilt established under the law. Mr. Moskalev
37 Opinion No. 78/2022, para. 81.
38 A/HRC/54/51, para. 65.
39 CCPR/C/RUS/CO/8, paras. 28 and 29.
40 See, for example, opinion No. 41/2017, paras. 98–101. See also opinion No. 62/2018, paras. 57–59;
and Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,
para. 22.
41 Opinion No. 38/2015, para. 73.
42 Opinion No. 1/1998, para. 13 (a).
43 Opinion No. 10/2008, para. 25.
44 A/HRC/54/54, para. 112 (c).
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13
was arrested, detained and sentenced to two years’ imprisonment under article 280.3, part 1,
for his social media posts, which were found after he was investigated due to an anti-war
drawing by his minor child at a school art lesson. The source submits that in the present case,
Mr. Moskalev’s house arrest from 2 to 28 March 2023 and his sentence of two years’
imprisonment resulted solely from his peaceful expression of anti-war opinions. Moreover,
the source submits that laws that restrict freedom of speech may have legitimate means but
are prone to abuse, and violations of such laws should not be punished by detention as such
punishment is disproportionate.45
97.
The Working Group recalls that the principle of legality requires the substance of
penal law to be due and appropriate in a democratic society that respects human dignity and
rights (nullum crimen, nulla poena sine lege apta).46 It has previously found that penal
punishment must, at the minimum, satisfy the principle of necessity, the prerequisite of
injustice and the principle of guilt in the interest of formal and material justice.47
98.
The Working Group has found that criminal sentences are disproportionate for
offences such as damaging the State’s reputation or weakening national morale. It has
considered “the broad lack of proportionality between the power and impact of the work and
activities carried out by a single individual … and the power and impact of an entire State
machinery, with its executive, legislative and judicial organs and its armed forces, police and
security agents”.48
99.
For these reasons, the Working Group finds that the deprivation of liberty of
Mr. Moskalev is arbitrary under category II. The Working Group refers the present case to
the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression.
(iii)
Category III
100.
Given its finding that the deprivation of liberty of Mr. Moskalev is arbitrary under
category II, the Working Group wishes to emphasize that in such circumstances, no trial
should have taken place. As the issues raised by the source in relation to category III have
been addressed in category I, the Working Group makes no further findings in relation to
category III. The Working Group refers the present case to the Special Rapporteur on the
independence of judges and lawyers, for appropriate action.
(iv)
Category V
101.
The source submits that Mr. Moskalev’s detention is discriminatory because it is due
to his anti-war political opinion. The Working Group has held that detention and a sentence
of imprisonment for expressing anti-war sentiments using a legal basis established solely to
target those who criticize the Government and Armed Forces of the Russian Federation
regarding the armed conflict in Ukraine, violates the international obligation not to
discriminate against people on the basis of their political opinions.49
102.
Moreover, in the discussion above concerning category II, the Working Group has
established that Mr. Moskalev’s detention resulted from the peaceful exercise of his rights
under international law. When detention results from the active exercise of civil and political
rights, there is a strong presumption that the detention also constitutes a violation of
international law on the grounds of discrimination based on political or other views.50
103.
In this regard, the Working Group recalls the source’s submission that the persecution
of Mr. Moskalev began after Mr. Moskalev’s minor child drew a picture with the flags of the
45 Human Rights Committee, general comment No. 34 (2011), para. 47.
46 Opinion No. 10/2018, para. 53.
47 Ibid.
48 Opinion No. 24/2008, para. 22.
49 Opinion No. 78/2022, para. 92.
50 Opinions No. 75/2022, para. 91; No. 62/2020, para. 74; No. 42/2020, para. 93; No. 36/2020, para. 75;
No. 59/2019, para. 79; No. 13/2018, para. 34; and No. 88/2017, para. 43.
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Russian Federation and Ukraine accompanied with the inscriptions “No to war” and “Glory
to Ukraine” during her school art lesson on 24 April 2022, and that the next day, on 25 April
2022, Mr. Moskalev was found guilty of an administrative offence under article 20.3.3 of the
Code of Administrative Offences and fined 32,000 roubles.
104.
In the light of the source’s uncontested prima facie credible submissions, the Working
Group finds that Mr. Moskalev was deprived of his liberty on discriminatory grounds on the
basis of his political opinion. His detention violates articles 2 and 7 of the Universal
Declaration of Human Rights and articles 2 (1) and 26 of the Covenant. It is therefore
arbitrary, falling within category V.
105.
The Working Group considers that the Government of the Russian Federation is
responsible for its own actions in the arrest and detention of Mr. Moskalev, as well as the
subsequent violations of his rights in Belarus.51
(b)
Allegations against the Government of Belarus
(i)
Category I
106.
The source submits that Mr. Moskalev was arbitrarily arrested in Belarus on 30 March
2023 and subjected to extraordinary rendition to the Russian Federation on 12 April 2023.
107.
The source submits that on 12 April 2023, following his arrest in Belarus on 30 March
2023, it became known that Mr. Moskalev had been transferred from Belarus to the Russian
Federation. However, his whereabouts were not precisely identified, and he did not have a
chance to contact his attorney or his family until 3 May 2023. The source submits that because
Mr. Moskalev was arrested in Minsk, Belarus, without an arrest warrant, and was
subsequently transferred illegally to the Russian Federation, the international legal
procedures regarding extradition for the purpose of arresting, detaining and returning
individuals to face criminal proceedings were blatantly ignored.
108.
In the absence of any submission from the Government of Belarus, the Working
Group considers that the source has presented a credible case that Mr. Moskalev’s detention
is without any legal basis, in violation of article 9 (1) of the Covenant. Pursuant to article9 (1)
of the Covenant, no one is to be deprived of liberty except on such grounds and in accordance
with such procedure as are established by law. To establish a legal basis for deprivation of
liberty, the authorities must invoke that legal basis and apply it to the circumstances of the
case.52 The international norms on detention include the right to be presented with an arrest
warrant or the equivalent, except for arrests that are made in flagrante delicto, under articles 3
and 9 of the Universal Declaration of Human Rights, article 9 (1) of the Covenant53 and
principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. Any form of detention or imprisonment should be
ordered by, or be subjected to the effective control of, a judicial or other authority under the
law, whose status and tenure should afford the strongest possible guarantees of competence,
impartiality and independence, in accordance with principle 4 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment.
109.
The authorities also deprived Mr. Moskalev of his right to take proceedings before a
court in Belarus to challenge the legality of his detention, in violation of article 9 (4) of the
Covenant, articles 3 and 9 of the Universal Declaration of Human Rights and principles 11
and 32 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.54 Judicial oversight of detention is a fundamental safeguard of
personal liberty and is essential in ensuring that detention has a legal basis.55 Given that
51 Opinions No. 11/2018, para. 58, No. 42/2020, para. 69; No. 51/2020, para. 72; and No. 84/2020,
para. 59.
52 See opinions No. 9/2019, No. 33/2019, No. 46/2019 and No. 59/2019.
53 Opinion No. 88/2017, para. 27.
54 Opinion No. 33/2020, para. 56.
55 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court, para. 3.
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Mr. Moskalev had no opportunity to challenge his detention, his right to an effective remedy
under article 8 of the Universal Declaration of Human Rights was violated. His deprivation
of liberty falls within category I.
(ii)
Category III
110.
In the absence of any response from the Government of Belarus, the Working Group
finds that the authorities did not meet any minimum international standards of due process.
As the Working Group has stated, involuntary expulsion to a foreign State without a hearing
by judicial authorities cannot be in conformity with due process.56 International law regarding
extradition provides procedures that must be observed in returning individuals to face
criminal proceedings in another country and in ensuring that their right to a fair trial is
protected.57
111.
Where transfers from one State to another are too irregular or informal, they constitute
extraordinary rendition rather than extradition.58 The Working Group has previously stated
that the practice of “renditions”, that is, the informal transfer of a person from the jurisdiction
of one State to that of another on the basis of negotiations between administrative authorities
of the two countries (often the intelligence services), without procedural safeguards, is
irremediably in conflict with the requirements of international law. When a Government
eludes procedural safeguards, in particular the right of the person affected to be heard, it
cannot in good faith claim that it has taken reasonable steps to protect that person’s human
rights after removal, including the right not to be arbitrarily detained. As a consequence, it
will share responsibility for ensuing arbitrary detention.59
112.
The source has established a credible case, which was not rebutted by the Government
of Belarus, that those procedures were not observed in the present case. Mr. Moskalev was
arrested and handed over to the Russian Federation without any public extradition hearing
by an independent and impartial tribunal in Belarus. The Government of Belarus could have
transferred him through normal extradition channels, but chose to circumvent that process by
forcibly transferring him to the Russian Federation. By facilitating the transfer of
Mr. Moskalev, the Government of Belarus denied his fair trial rights.60
113.
The Working Group recalls that individuals should not be expelled to another country
when there are substantial grounds for believing that their lives would be at risk, or that they
would be in danger of being subjected to torture or ill-treatment.61 The risk of arbitrary
detention in the receiving State must be among the elements taken into consideration.62
According to the source’s uncontested allegations, the Belarusian authorities facilitated
Mr. Moskalev’s forcible transfer to the Russian Federation without any apparent regard for
the risks. Moreover, the Government of Belarus has not provided any information to suggest
that it assessed the charges and evidence against Mr. Moskalev, and whether he would receive
a fair trial. The Working Group considers that the above-mentioned elements represent a
violation of the principle of non-refoulement.63 The deprivation of liberty of Mr. Moskalev
in Belarus falls within category III.
56 Opinions No. 42/2020, para. 64; and No. 84/2020, para. 53; and A/HRC/48/55, para. 54. See also
A/HRC/48/57 and A/HRC/49/45 (reiterating that transnational transfers must comply with
international human rights law).
57 Opinions No. 33/2020, para. 63, No. 42/2020, para. 60; and No. 84/2020, para. 54; and A/HRC/48/55,
para. 54.
58 Opinion No. 11/2007, para. 15.
59 A/HRC/4/40, para. 50.
60 Opinion No. 42/2020, paras. 64−67.
61 A/HRC/4/40, paras. 44 and 45.
62 Opinions No. 11/2018, para. 54; and No. 15/2021, para. 94; and A/HRC/48/55, para. 59.
63 Opinion No. 48/2020, para. 83.
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114.
The Working Group considers that the Government of Belarus is responsible for its
own actions in the arrest and forcible transfer of Mr. Moskalev, as well as the subsequent
violations of his rights in the Russian Federation.64
(c)
Concluding remarks
115.
The Working Group recalls the unrebutted allegations of severe mistreatment and
beatings meted out to Mr. Moskalev by authorities of the Russian Federation and Belarus. It
is deeply troubled by the source’s unrefuted submission that after Mr. Moskalev’s forcible
transfer from Belarus to the Russian Federation, when he was detained in a quarantine
facility, an individual who was reportedly purposely placed in his cell by security forces of
the Russian Federation strangled him and hit his head against the wall. It is gravely concerned
for the health and well-being of Mr. Moskalev, noting the impact of such mistreatment on
him.
116.
The Working Group is thus obliged to remind the Government of the Russian
Federation of its obligation under article 10 (1) of the Covenant and rules 1, 24, 27 and 118
of the Nelson Mandela Rules: all persons deprived of their liberty must be treated with
humanity and with respect for their inherent dignity, including by being allowed to enjoy the
same standards of health care available in the community. The Working Group urges the
Government to immediately and unconditionally release Mr. Moskalev and to ensure that he
receives the medical attention required. The Working Group refers the case to the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health.
117.
The Working Group is also deeply concerned about the well-being of Mr. Moskalev’s
minor child, who was placed in care homes as a result of the actions against Mr. Moskalev,
noting that it was reportedly a child’s drawing that led to the chain of events resulting in
Mr. Moskalev’s arbitrary detention. The Working Group notes that during the periods that
Mr. Moskalev was detained without contact with the outside world, he was also unable to
contact his minor child. The Working Group reminds the Government of the Russian
Federation of its obligations under the Convention on the Rights of the Child, noting that in
all actions concerning children, the best interests of the child must be a primary
consideration.
3.
Disposition
118.
In the light of the foregoing, the Working Group renders the following opinion:
Regarding the Russian Federation:
The deprivation of liberty of Alexey Moskalev, being in contravention of articles 2,
3, 7, 8, 9, 19 and 29 of the Universal Declaration of Human Rights and articles 2, 9,
19 and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, II, and V.
Regarding Belarus:
The deprivation of liberty of Alexey Moskalev, being in contravention of articles 3,
8 and 9 of the Universal Declaration of Human Rights and article 9 of the
International Covenant on Civil and Political Rights, is arbitrary and falls within
categories I and III.
119.
The Working Group requests the Government of the Russian Federation and the
Government of Belarus to take the steps necessary to remedy the situation of Mr. Moskalev
without delay and bring it into conformity with the relevant international norms, including
64 Opinions No. 11/2018, para. 58, No. 42/2020, para. 69, No. 51/2020, para. 72, and No. 84/2020,
para. 59.
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those set out in the Universal Declaration of Human Rights and the International Covenant
on Civil and Political Rights.
120.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Moskalev immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
121.
The Working Group urges both Governments to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Moskalev and to take appropriate measures against those responsible for the violation of
his rights.
122.
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, the Special Rapporteur on the situation of human rights
in Belarus, the Special Rapporteur on the independence of judges and lawyers and the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health, for appropriate action.
123.
The Working Group requests the Governments to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
124.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Governments to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Moskalev has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Moskalev;
(c)
Whether an investigation has been conducted into the violation of the rights of
Mr. Moskalev 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 the Russian Federation and Belarus with their
international obligations in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
125.
The Governments are invited to inform the Working Group of any difficulties they
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.
126.
The Working Group requests the source and the Governments 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.
127.
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.65
[Adopted on 17 November 2023]
65 Human Rights Council resolution 51/8, paras. 6 and 9.