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.24-08013 (E) 100624 110624
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-ninth session, 18–27 March 2024
Opinion No. 5/2024 concerning Artsiom Zharnak (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 27 October 2023 the Working Group
transmitted to the Government of Belarus a communication concerning Artsiom Zharnak.
The Government submitted a late response on 27 December 2023 and on 15 February 2024.
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).
* Miriam Estrada Castillo did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/5
General Assembly
Distr.: General
11 June 2024
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Artsiom Zharnak is a citizen of Belarus, born on 12 April 1993. His usual place of
residence is in Minsk. Mr. Zharnak was the Chairperson of the Free Trade Union of
Metalworkers.
(i)
Context
5.
According to the source, on 9 August 2020, presidential elections were held in
Belarus. Reportedly, the campaign period before the election and the period after the
announcement of the results were marked by numerous protests, violence against protesters,
and the detention of the main presidential candidates.
6.
The source reports that more than 30,000 people were detained during 2020, the vast
majority for participation in an unauthorized mass event. Allegedly, peaceful protesters were
subjected to unjustified and unlawful violence at the time of their detention and afterwards;
between 9 August and 23 November 2020, more than 2,600 people were injured, and in
addition, at least four people were killed during the protests.
7.
The source alleges that between 2020 and 2023, the authorities failed to adequately
investigate some 5,000 complaints of torture and other acts of ill-treatment perpetrated
primarily by law enforcement agencies against peaceful protesters and others, who had been
detained for expressing their dissent.
8.
The source alleges that members and activists belonging to independent trade unions
are a distinct category of targeted persons. Reportedly, following the 2020 elections,
independent trade unions and their members participated en masse in peaceful assemblies
and strikes, exercising freedom of expression against the election results.
9.
The source explains that because the independent trade unions supported the
opposition in 2020, the authorities have targeted independent trade unions and their members.
Members of independent trade unions have been targeted for their exercise of the human
rights guaranteed under the Covenant. In July 2022, the Supreme Court, on the basis of
lawsuits filed by the Prosecutor General, ordered the closure of all independent trade unions.
(ii)
Arrest and detention of Mr. Zharnak
10.
The source explains that Mr. Zharnak was the Chairperson of the branch of the Free
Trade Union of Metalworkers at “Minsk Automobile Plant” (МАZ), a State-owned company.
Before that, he had been an activist of the Belarusian Trade Union of Radioelectronic Industry
Workers.
11.
Reportedly, after the 2020 presidential elections in Belarus, from 11 to 14 August
2020, Mr. Zharnak took part in the strike by MAZ workers. Additionally, on 17 August 2020,
he participated in a peaceful assembly of MAZ workers.
12.
The source adds that, in September 2020, Mr. Zharnak was elected Chairperson of the
branch of the Belarusian Trade Union of Radioelectronic Industry Workers established by the
MAZ workers. The union produced and distributed leaflets at the Minsk Automobile Plant
about the situation in Belarus, criticizing the electoral process and alleging violations of
human rights. It also coordinated the participation of MAZ workers in peaceful assemblies
on weekends in Minsk and organized legal aid for workers who were allegedly detained while
exercising their rights.
13.
While he was the Chairperson, in October and November 2020, Mr. Zharnak took part
in the nationwide strike that was initiated by the opposition party in Belarus, collecting
signatures of workers in support of the strike which demanded the resignation of the President
and the cessation of alleged violations of human rights. Mr. Zharnak was also allegedly one
of the administrators of the “MAZ 97%” chat group on messaging channels, in which
information about current affairs in Belarus, issues relating to MAZ employees, and activities
of the opposition to the Government was disseminated.
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14.
The source reports that in early December 2020, Mr. Zharnak was illegally dismissed
from the Minsk Automobile Plant, allegedly because of his trade union activism. Following
this event, Mr. Zharnak remained a member of the Belarusian Trade Union of Radioelectronic
Industry Workers. In that capacity, he worked to attract new members to the trade union, to
identify violations and issues concerning labour safety, and to disseminate information.
15.
In June 2021, the branch of the Belarusian Trade Union of Radioelectronic Industry
Workers at the Minsk Automobile Plant was transferred to the Free Trade Union of
Metalworkers, and Mr. Zharnak also became its Chairperson. In that capacity, Mr. Zharnak
wrote appeals to the management of MAZ about improving labour conditions, among other
tasks.
16.
The source reports that Mr. Zharnak was arrested on 17 November 2021 in his
apartment by the State Security Committee of the Republic of Belarus for Minsk. The source
emphasizes that Mr. Zharnak has been detained since then, having been deprived of his liberty
continuously for nearly two years.
17.
The source reports that Mr. Zharnak was arrested on suspicion of committing the
crime defined in article 361-1 (1) of the country’s Criminal Code.
18.
The source further reports that during the arrest, security officers arrived at
Mr. Zharnak’s apartment and demanded that he open the door, but he refused. It is reported
that Mr. Zharnak called another member of the Free Trade Union of Metalworkers to advise
of his arrest.
19.
The source alleges that the officers were only able to enter Mr. Zharnak’s apartment
after obtaining the keys to the property from one of Mr. Zharnak’s relatives. Reportedly,
officers exerted psychological pressure on the relative and threatened to hurt Mr. Zharnak.
20.
Reportedly, the officers presented Mr. Zharnak with a search warrant and a ruling to
initiate criminal proceedings against him, but a copy of the documents was not given to him
or his relatives. According to the source, Mr. Zharnak demanded the presence of his lawyer
during the arrest and the search of his apartment, but that request was not granted.
21.
The source adds that on 24 November 2021, the State Security Committee issued a
resolution on the initiation of a criminal case against Mr. Zharnak, on the basis of
article 342 (1) of the Criminal Code, which refers to the crime of organizing and preparing,
or actively participating in, actions that seriously violate public order. Further changes in the
grounds for the criminal prosecution have not been publicly reported by the authorities.
22.
The source reports that after the expiration of the period of arrest, a pretrial preventive
measure in the form of remand in custody was determined for Mr. Zharnak.
23.
The source asserts that, on 13 October 2022, Mr. Zharnak was sentenced to four years
of imprisonment under three articles of the Criminal Code, namely article 361 (3), which
prohibits calls for actions aimed at harming the national security of Belarus, article 342 (1),
which refers to organizing and preparing, or actively participating in, actions that seriously
violate public order, and article 361-1 (1), which prohibits setting up or taking part in
extremist formations.
24.
It is reported that Mr. Zharnak has appealed the verdict to the Supreme Court, but the
outcome of the appeal has not been disclosed. The source states that given that Mr. Zharnak
remains deprived of his liberty in Correctional Colony No. 1 in Belarus, the Supreme Court
has left the sentence intact.
(iii)
Legal analysis
25.
The source argues that Mr. Zharnak’s arrest and detention violate articles 9, 14, 19,
21, 22 and 26 of the Covenant and are, thus, arbitrary, falling under categories I, II, III and V
of the categories used by the Working Group when considering cases submitted to it.
26.
Firstly, the source asserts that Mr. Zharnak was a victim of violations of article 9 (1)
and (3) of the Covenant, which would amount to arbitrary detention under categories I and II
of the Working Group.
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27.
The source asserts a lack of legitimate justification and legal basis for the pretrial
detention of Mr. Zharnak. In this regard, the source recalls that under article 9 of the
Covenant, detention must be reasonable and necessary in all circumstances,2 and that the use
of detention automatically, without the need to justify its reasonableness and necessity, does
not meet these criteria. Relevant legislation must comply with article 9 of the Covenant.
28.
Arrest is applied on the basis of article 126 of the country’s Criminal Procedure Code.
Although the exact justification for the arrest of Mr. Zharnak is unknown, under article
126 (1) he could have been arrested as a person suspected or accused of committing a crime
“for which the law provides a penalty in the form of imprisonment for a term of more than
two years ... provided that the goals of criminal prosecution cannot be achieved by applying
a milder measure of restraint”. Also, as Mr. Zharnak was suspected or accused of committing
a crime against the State, under article 126 (1) he could have been remanded in custody solely
on the basis of the gravity of the imputed crime.
29.
The source argues that if Mr. Zharnak was arrested on the first possible ground, his
pretrial deprivation of liberty was arbitrary because the authorities could not possibly have
demonstrated that he posed a “present, direct and imperative threat” and that this threat could
not have been “addressed by alternative measures”.3 Mr. Zharnak was accused or suspected
of actions which effectively were the exercise of the freedoms of expression, peaceful
assembly, and association. Thus, the pretrial deprivation of liberty imposed on him for the
exercise of those rights was inherently in violation of article 9 (1) of the Covenant.4 It was
arbitrary under category II.
30.
Moreover, it is argued that if Mr. Zharnak was arrested “solely on the basis of the
gravity of the imputed crime”, his pretrial deprivation of liberty was arbitrary because this
legal provision does not comply with article 9 (1) of the Covenant, as it permits the automatic
detention of persons, without the need to justify the reasonableness and necessity of detention
in a specific case. It is argued that since the national law does not comply with article 9 (1)
of the Covenant, any arrest based on that law lacks legal basis. Accordingly, if Mr. Zharnak
was indeed arrested “solely on the basis of the gravity of the imputed crime”, the deprivation
of liberty was arbitrary under category I.
31.
The source further argues that there were procedural violations during the pretrial
detention of Mr. Zharnak. It states that after being arrested, on 17 November 2021,
Mr. Zharnak was placed in pretrial detention. After the arrest, he was not brought before a
judge “promptly”, and his pretrial detention was not authorized by a judge. Thus, the pretrial
detention was arbitrary under category I.
32.
It is recalled that article 9 (3) of the Covenant determines that anyone arrested or
detained on a criminal charge is to be brought promptly before a judge or other officer
authorized by law to exercise judicial power. This condition applies in all cases without
exception and does not depend on the choice of the detainee or whether the detainee has the
opportunity to demand that it be complied with.5 Forty-eight hours is usually sufficient to
transport the individual concerned, as well as for the preparation of a court hearing; any delay
beyond 48 hours must be exceptional and justified by specific circumstances.6
33.
The source asserts that, in violation of article 9 (3) of the Covenant, Mr. Zharnak did
not appear before a judge or other officer authorized by law to exercise judicial power within
48 hours. That happened because the country’s criminal law does not provide for the
immediate delivery of a detainee to a judge. Mr. Zharnak was detained by the security officers
on 17 October 2021, but physically appeared before a judge for the first time almost a year
later, on 13 October 2022. This did not comply with the requirement of bringing a detainee
before a judge “promptly”.
2 Human Rights Committee, general comment No. 35 (2014), para. 12.
3 Ibid., para. 15.
4 Ibid., para. 17.
5 Ibid., paras. 32 and 34.
6 Ibid., para. 33.
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34.
Moreover, the source recalls that in accordance with the Human Rights Committee’s
jurisprudence, a prosecutor cannot be considered an official authorized to exercise judicial
power in accordance with article 9 (3) of the Covenant.7
35.
In the present case, the source adds that it is unknown which authority authorized the
pretrial arrest of Mr. Zharnak. According to article 126 (3) and (4) of the Criminal Procedure
Code, the arrest could, allegedly, have been authorized either by a prosecutor or the
Chairperson of the State Security Committee. However, the source argues that neither of
these authorities is a judge or a body with judicial power, and that therefore, any pretrial
deprivation of liberty by these authorities would be in violation of article 9 (3) of the
Covenant.
36.
Moreover, the source asserts that the detention was imposed on Mr. Zharnak because
of his exercise of rights guaranteed by articles 19, 21 and 22 of the Covenant. It argues that
the imprisonment for the crimes stipulated in articles 342, 361 and 361-1 of the Criminal
Code, even in the absence of the text of the verdict, indicates that Mr. Zharnak is being
detained because of his exercise of freedoms guaranteed under articles 19, 21 and 22 of the
Covenant, namely the freedoms of expression, peaceful assembly, and association.
37.
According to the source, since 2020, the Belarusian authorities have been extensively
using article 342 (1) of the Criminal Code (“organizing and preparing, or actively
participating in, actions that seriously violate public order”) to punish participants in the
peaceful protests of 2020 and 2021. The source submits, however, that this article should not
be considered as “law” within the meaning of article 9 (1) of the Covenant, as it does not
comply with the provisions, aims and objectives of the Covenant. 8 In particular,
article 342 (1) of the Criminal Code permits penalties for peaceful exercise of the rights
guaranteed under articles 19, 21 and 22 of the Covenant.
38.
The source states that Mr. Zharnak was not charged with committing violent acts, and
there is no evidence whatsoever that any of his actions have been violent. Thus, his continued
detention for violation of article 342 (1) of the Criminal Code lacks legal basis and falls under
category I. Presuming that Mr. Zharnak was sentenced under this article for taking part in a
peaceful assembly, his detention also falls under category II.
39.
The source uses the same reasoning to discuss Mr. Zharnak’s detention for the crime
set out in article 361-1 (1) (setting up or taking part in extremist formations) of the Criminal
Code. According to the source, this provision is used by the authorities to detain their critics,
who merely exercise their right to freedom of opinion, protected by article 19 of the
Covenant.
40.
Reportedly, Mr. Zharnak was prosecuted for the crime set out in article 361-1 (1) of
the Criminal Code for allegedly calling for international sanctions against Belarus. It is
reported that calls for sanctions were almost the only non-violent means of protecting human
rights. Thus, even if Mr. Zharnak had called for international sanctions, these statements
would have been protected by article 19 of the Covenant. Accordingly, his continued
detention for violation of article 361 (3) of the Criminal Code is arbitrary under category II.
41.
Moreover, the source recalls that article 361-1 (1) of the Criminal Code (setting up or
taking part in extremist formations) criminalizes “the creation of an extremist formation ...
or the leadership of such a formation or a unit within it”. To define the concept of
“extremism”, the Criminal Code refers to Law No. 203-Z of 4 January 2007 on countering
extremism. Article 1 (1) of Law No. 203-Z provides for an extremely broad definition of the
term “extremism (extremist activity)”, which includes 18 possible forms of activity aimed at
“planning, organizing, preparing and committing encroachments on independence, territorial
integrity, sovereignty, the foundations of the constitutional system, and public security”.
42.
According to the country’s Ministry of the Interior, as at 27 September 2023 the
authorities had recognized 151 informal groups as “extremist formations”. The source
7 Likhovid v. Belarus (CCPR/C/135/D/2703/2015), para. 7.3; and Statkevich v. Belarus
(CCPR/C/133/D/2619/2015), para. 7.5.
8 Human Rights Committee, general comment No. 16 (1988), para. 3.
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submits that all of these groups are either Belarusian civil society organizations, or media, or
follow opposition social media accounts.
43.
The source notes that the “anti-extremism” legislation, including the term “extremist
formation”, is used by the authorities to persecute political opponents. The source argues that
under “anti-extremism” legislation, almost any realization of freedom of association,
peaceful assembly or expression can be interpreted as an encroachment on rather abstract
categories: “independence, territorial integrity, sovereignty, the foundations of the
constitutional system, and public security”.
44.
Therefore, argues the source, this “anti-extremism” legislation, in particular
article 361-1 (1) of the Criminal Code, lacks the necessary legal clarity to be recognized as
“law” in terms of article 9 (1) of the Covenant. Accordingly, it is submitted that anyone
sentenced under article 361-1 (1) of the Criminal Code is detained without any legal basis.
45.
It is submitted that although the exact reason for sentencing Mr. Zharnak under
article 361-1 (1) of the Criminal Code is unknown, it follows from the above that his
detention is without legal basis and thus arbitrary under category I.
46.
Additionally, the source affirms that it is believed that Mr. Zharnak was sentenced
under article 361-1 (1) of the Criminal Code also because of his participation in and
administration of the “MAZ 97%” chat group on messaging channels. It is reported that on
24 May 2022, the Ministry of the Interior determined that the members of the “MAZ 97%”
chat group constituted an “extremist formation”.
47.
The source explains that in this chat group, workers exchanged information about
daily events and organized their joint actions to protect their civil, political, social and
economic rights. Thus, it is argued that the persons in the above-mentioned chat group were
merely exercising their freedoms of expression and association with others, activities
protected by articles 19 and 22 of the Covenant. The source concludes that, even if
Mr. Zharnak was an administrator or a member of the “MAZ 97%” chat group, this activity
would have been protected by articles 19 and 22 of the Covenant. Accordingly, his continued
detention for violation of article 361-1 (1) of the Criminal Code is arbitrary under category II.
48.
Mr. Zharnak’s activity as Chairperson of the branch of the Free Trade Union of
Metalworkers at MAZ also cannot be considered to be the activity of an “extremist
formation”, since the trade union protected the rights of workers. The source argues that the
fact that after the 2020 presidential election, in addition to directly protecting the labour rights
of workers, independent trade unions also demanded the cessation of alleged violations of
human rights in Belarus, and new presidential elections, does not deprive them of the
protection of article 22 of the Covenant, since the right to freedom of association is civil,
political, social and economic. This follows from the international legal regulation of trade
unions and from the concept of the continuity and interdependence of human rights.9
49.
Furthermore, the source notes that an additional argument in favour of a broad
understanding of the subject of the representative competence of trade unions is the definition
of social justice as a common goal, the achievement of which is ensured by the International
Labour Organization (ILO) as a specialized organization. This conclusion is also supported
by ILO jurisprudence.
50.
The source also argues that Mr. Zharnak’s detention is arbitrary under category III of
the Working Group since it was imposed in violation of the principle of fair trial. The source
alleges that the detention was determined by a judge who was not independent and impartial,
and denounces the lack of a public hearing.
51.
The source firstly points out to the lack of impartiality and independence of the judge.
The source asserts that the independence of the country’s judges is not ensured at the
legislative level, which means that all judges, including the judge in the case of Mr. Zharnak,
are not independent and impartial within the meaning of article 14 of the Covenant.
52.
The source recalls that article 14 of the Covenant establishes the requirements for the
independence of judges, and asserts that these are not followed by the domestic law. Under
9 Vienna Declaration and Programme of Action, paras. 5 and 8.
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article 14 of the Covenant, the requirement of independence relates to the manner and
conditions of the appointment of judges, the guarantees of their irremovability, the conditions
governing promotion, transfer, suspension and termination of their functions, and the actual
independence of judges from political interference by the executive and legislative branches
of Government. 10 Laws should establish clear procedures and objective criteria for the
appointment, remuneration, retention, promotion, suspension and termination of judges, and
for the disciplinary sanctions applicable to them.
53.
According to article 84 (10) of the Constitution of Belarus, judges of the general courts
are appointed by the President. By virtue of article 81 (3) of the Code on the Judiciary and
the Status of Judges, the President appoints judges for a period of five years and then may
reappoint them indefinitely or not reappoint them. In its concluding observations on Belarus,
the Human Rights Committee drew attention to the fact that five years is too short a period
to comply with the guarantee of irremovability of judges under the Covenant. In addition, the
Code on the Judiciary and the Status of Judges does not provide for the possibility to appeal
against the decisions of the President.11 Moreover, article 81 (3) of the Code on the Judiciary
and the Status of Judges does not set out clear and objective criteria on the basis of which
judges may be reappointed, nor does it set out the criteria governing the term of office of
reappointed judges.
54.
Furthermore, the source explains that judges may be subject to disciplinary sanctions
taken by the President, in accordance with article 102 of the Code on the Judiciary and the
Status of Judges. Here too, the Code does not provide for the possibility to appeal against the
decisions of the President.
55.
The source recalls that under the Covenant, laws should establish clear procedures
and objective criteria for the remuneration of judges.12 It is noted that in Belarus, the salary
of judges is not determined by a specific law, but by a decree of the President. The Human
Rights Committee has expressed concern about this practice in its concluding observations
on Belarus.13
56.
The source notes that this context and the role of the President in the appointment of
judges has been analysed and criticized by United Nations experts and the Human Rights
Committee. On this matter, the Committee has pointed out that the President’s role in the
appointment of judges hinders the independence of the judiciary in Belarus and has called on
the State to reconsider its role in this process in order to comply with article 14 of the
Covenant. Additionally, in 2020, the Special Rapporteur on the situation of human rights in
Belarus noted that “for almost three decades, Belarus has failed to ensure the independence
of its judiciary” due to excessive control of the judiciary by the executive, which is evident
in the appointment, tenure and dismissal procedures for judges.14
57.
The source adds that, in 2022, the Special Rapporteur on the situation of human rights
in Belarus also reported that while the country’s judiciary had never been fully independent,
in 2021 the authorities had further strengthened their control over the judiciary and the court
system: the administration of justice had deteriorated, as the authorities systematically
violated the right to a fair trial and used the judiciary and courts as repressive tools to suppress
dissent.15 This situation was also observed by the United Nations High Commissioner for
Human Rights in 2023.16
58.
The source concludes that the combination of the above-mentioned factors allows for
the conclusion that judges in the country are not independent, and that, consequently, the
judge who sentenced Mr. Zharnak was not impartial and independent. This is a direct
10 Human Rights Committee, general comment No. 32 (2007), para. 19.
11 CCPR/C/BLR/CO/5, para. 39.
12 Human Rights Committee, general comment No. 32 (2007), para. 19.
13 CCPR/C/BLR/CO/5, para. 39.
14 See https://www.ohchr.org/en/press-releases/2020/10/belarus-establishing-independent-judicial-
system-should-top-agenda-future?LangID=E&NewsID=26423.
15 A/HRC/50/58, para. 82.
16 A/HRC/52/68, para. 26.
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indication of this judge’s dependence on the executive, which resulted in this member of the
judiciary not ruling impartially.
59.
Furthermore, it is argued that there was no public hearing, as, reportedly, the court of
first instance tried and sentenced Mr. Zharnak in camera. The exact reason for hearing the
case in a closed session is unknown. Under article 14 of the Covenant, the right to a public
trial may be restricted for reasons of morals, public order or national security, or where the
interests of the private lives of the parties so require, or, to the extent strictly necessary in the
opinion of the court, in special circumstances where publicity would prejudice the interests
of justice.17 Taking into account the nature of Mr. Zharnak’s activities and the charges, there
were no such circumstances in the present case. Therefore, the source concludes that holding
the trial in camera was manifestly unjustified.
60.
The source affirms that even in instances where the public is denied access to the trial,
the judgment, including the main findings, the evidence and the legal reasoning, must be
made public. Reportedly, in the case of Mr. Zharnak, only the operative part of the judgment,
from which no main findings, evidence or legal reasoning were discernible, was announced,
at a trial with limited public access. Thus, the source argues that Mr. Zharnak’s right to a
public trial, guaranteed by article 14 (1) of the Covenant, was violated.
61.
The source concludes that rights of Mr. Zharnak to a fair trial were therefore violated,
making his detention arbitrary under category III of the Working Group.
62.
Lastly, according to the source, the detention of Mr. Zharnak was determined on the
basis of discriminatory grounds, which makes it arbitrary under category V of the Working
Group.
63.
The source argues that Mr. Zharnak was detained because of his affiliation with and
active membership of independent trade unions: the Belarusian Trade Union of
Radioelectronic Industry Workers and the Free Trade Union of Metalworkers.
64.
Reportedly, since 2020, the authorities have been targeting independent trade unions
and their members. As a consequence, noting all of the above, and especially the fact that
Mr. Zharnak is being detained for the peaceful exercise of his rights guaranteed under the
Covenant, his detention is based on discrimination resulting from his political opinion and
his status as an active member of an independent trade union, in violation of article 26 of the
Covenant. This deprivation of liberty is therefore arbitrary under category V of the Working
Group, concludes the source.
(b)
Response from the Government
65.
On 27 October 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 26 December 2023, detailed information about the
current situation of Mr. Zharnak and to clarify the legal provisions justifying his continued
detention, as well as its compatibility with the obligations of Belarus under international
human rights law, and in particular with regard to the treaties ratified by the State. Moreover,
the Working Group called upon the Government to ensure his physical and mental integrity.
66.
The Government submitted its response on 27 December 2023 and on 15 February
2024, that is, after the established deadline. The response is therefore considered late, and the
Working Group cannot accept the response as if it had been presented within the time limit.
The Government did not request an extension of the time limit for its response, within the
deadline, as is provided for in paragraph 16 of the Working Group’s methods of work.
2.
Discussion
67.
In the absence of a response from the Government within the deadline, the Working
Group has decided to render the present opinion, in conformity with paragraph 15 of its
methods of work.
17 Human Rights Committee, general comment No. 32 (2007), para. 29.
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68.
In determining whether Mr. Zharnak’s deprivation of liberty 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. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.18 In
the present case, the Government has chosen not to challenge the prima facie credible
allegations made by the source within the prescribed time limit.
69.
The source has argued that the detention of Mr. Zharnak is arbitrary and falls under
categories I, II, III and V. The Working Group will proceed to examine these in turn.
(a)
Category I
70.
The Working Group notes the source’s submission, not refuted by the Government in
its late response, that Mr. Zharnak’s pretrial detention, prolonged several times, was based
solely on the gravity of the charges against him.
71.
In this respect, the Working Group recalls that it is a well-established norm of
international law that pretrial detention is to be the exception and not the rule and that it
should be ordered for as short a time as possible.19 Article 9 (3) of the Covenant provides that
it is not to be the general rule that persons awaiting trial are detained, but release may be
subject to guarantees to appear for trial and at any other stage of the judicial proceedings. It
follows that liberty is recognized as a principle and detention as an exception in the interests
of justice. Moreover, although the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the need to continue the deprivation of
liberty cannot be assessed from this purely abstract point of view, taking into consideration
only the gravity of the offence and using a stereotyped formula without addressing specific
facts or considering alternative preventive measures.
72.
In the present case, the Working Group considers that by failing to address specific
facts or consider alternative preventive measures and by relying essentially on the gravity of
the charges, the authorities have failed to properly justify Mr. Zharnak’s pretrial detention
which lasted approximately 11 months. In the absence of any argument to the contrary, the
Working Group finds his detention to be in violation of article 9 (3) of the Covenant.
73.
Moreover, according to article 9 (3) of the Covenant, anyone arrested or detained on
a criminal charge is to be brought promptly before a judge. As the Human Rights Committee
has stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing a detainee
“promptly” before a judge following his or her arrest, and any longer delay must remain
absolutely exceptional and be justified under the circumstances. 20 In the present case,
Mr. Zharnak was arrested on 27 November 2021 and according to the Government was not
brought before a court until 7 December 2021. The Working Group considers that such a
delay is contrary to article 9 (3) of the Covenant.
74.
Accordingly, the Working Group concludes that the detention of Mr. Zharnak was
arbitrary, falling under category I.
(b)
Category II
75.
The source alleges that the persecution of Mr. Zharnak was motivated by his opinions
and his participation in peaceful assemblies. It refers to the imputation of the crimes under
articles 342 and 361 of the Criminal Code, and stresses that it is a widely known fact that
these provisions of the Criminal Code are used to persecute critics of the authorities.
18 A/HRC/19/57, para. 68.
19 Opinions No. 8/2020, para. 54; No. 1/2020, para. 53; No. 57/2014, para. 26; No. 49/2014, para. 23;
and No. 28/2014, para. 43. See also Human Rights Committee, general comment No. 35 (2014),
para. 38; and A/HRC/19/57, paras. 48–58.
20 Human Rights Committee, general comment No. 35 (2014), para. 33; and CAT/C/GAB/CO/1,
para. 10.
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76.
The Government states in its late reply that Mr. Zharnak has actively participated in
destructive activities and unauthorized mass events with the objective of bringing about an
unconstitutional change of power in Belarus. The Working Group notes that these imprecise
submissions, which do not mention any concrete fact capable of justifying a restriction on
his freedom of speech and freedom of conscience, only support the source’s allegations.
77.
The Working Group also notes that the charges against Mr. Zharnak were brought
under articles 342 and 361 of the Criminal Code, and, in this regard, recalls that in its
jurisprudence,21 it has relied on the report of the European Commission for Democracy
through Law (the Venice Commission), in which the Commission emphasized that article
342 of the Criminal Code criminalized group behaviour of a non-violent character, related to
a mass demonstration, and stressed that the mere fact that the demonstration caused
inconvenience to the public did not suffice to criminalize the participation of a person in such
an event.
78.
Equally, the Working Group has relied in its previous jurisprudence22 on the report by
the United Nations High Commissioner for Human Rights in which the High Commissioner
noted that article 361 of the Criminal Code – another provision under which Mr. Zharnak
was charged – had broadened the scope for persecuting those expressing dissenting views,
and concluded that that provision had been used against those seeking to exercise their rights
to freedom of expression, peaceful assembly and association and their right to participate in
public affairs.23
79.
In its late response, the Government has not submitted any new elements that would
lead the Working Group to depart from its previous findings. Furthermore, the situation of
Mr. Zharnak cannot be viewed in isolation and should be viewed against the backdrop of the
arbitrary arrest and detention of government critics, civil society activists and human rights
defenders in Belarus, as has recently been addressed in numerous opinions of the Working
Group.24
80.
In the absence of any explanation to the contrary and following the pattern identified
by the Working Group and different human rights bodies, it is quite clear to the Working
Group that in fact the basis for the arrest and subsequent detention of Mr. Zharnak was his
exercise of freedom of expression and freedom of assembly, guaranteed by articles 19 and 20
of the Universal Declaration of Human Rights and articles 19 and 21 of the Covenant,
following the pattern identified by the Working Group. No indication of any violent
behaviour on his part was presented to the Working Group.
81.
The Working Group concludes that the arrest and detention of Mr. Zharnak is arbitrary
and falls under category II. The Working Group refers the present case to the Special
Rapporteur on the promotion and protection of the right to freedom of opinion and expression
and the Special Rapporteur on the rights to freedom of peaceful assembly and of association,
for appropriate action.
(c)
Category III
82.
Given its finding that the deprivation of liberty of Mr. Zharnak is arbitrary under
category II, the Working Group wishes to emphasize that no trial should have taken place.
Nevertheless, as the trial took place, and Mr. Zharnak was convicted, the Working Group will
proceed with examination of the source’s submissions concerning the denial of fair trial rights
to Mr. Zharnak.
83.
The source submits that Mr. Zharnak was not tried by an independent and impartial
tribunal and that he did not have a public hearing. In its late reply, the Government merely
asserts that the court concerned examined Mr. Zharnak’s case objectively.
21 Opinion No. 64/2023.
22 Opinions No. 24/2022 and No. 64/2023.
23 A/HRC/49/71, para. 68.
24 See, for example, opinions No. 76/2023, No. 64/2023, No. 52/2023, No. 45/2023, No. 50/2021,
No. 23/2021 and No. 39/2012.
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11
84.
In this context, the Working Group recalls that an independent and impartial tribunal
is a sine qua non for the right to a fair hearing enshrined in article 10 of the Universal
Declaration of Human Rights and article 14 of the Covenant. The notion of the separation of
powers between the political organs of the Government and the judiciary, as well as the notion
of safeguarding the independence of judiciary, have assumed growing importance. In this
regard, the Working Group again refers to the report of the Special Rapporteur on the situation
of human rights in Belarus, submitted to the Human Rights Council, covering the period at
stake, pointing to the systemic restrictions on the independence of judges in Belarus, with
judges being expected to implement the requests of the Prosecutor General, whose role is to
implement the executive’s repressive policy of harshly punishing dissent. Judges therefore
often conduct a prosecution trial, denying defendants their rights to the presumption of
innocence or to present witnesses in their defence. In the context of arrests and deprivation
of liberty, consistent testimonies about delays in obtaining access to a lawyer and to other
legal and procedural safeguards increase concerns. Lawyers are obliged to sign a non-
disclosure agreement, which makes it difficult to have information on articles and charges.25
85.
In view of these findings, as well as the Working Group’s earlier jurisprudence
covering the same context,26 the Working Group concludes that Mr. Zharnak was not tried by
an independent and impartial tribunal, contrary to article 10 of the Universal Declaration of
Human Rights and article 14 (1) of the Covenant.
86.
Furthermore, article 14 (1) of the Covenant provides that, in the determination of any
criminal charge, everyone is to be entitled to a public hearing. Article 10 of the Universal
Declaration of Human Rights similarly guarantees the right to a public hearing. As the Human
Rights Committee has explained, the publicity of hearings ensures the transparency of
proceedings and thus provides an important safeguard for the interest of the individual and
of society at large.27 Although the right to a public hearing is not absolute, it may only be
restricted for reasons of morals, public order or national security in a democratic society, or
when the interest of the private lives of the parties so requires, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would be
prejudicial to the interest of justice, and, in the absence of such exceptional circumstances, a
hearing must be open to the general public, including members of the media, without entrance
being limited to a select group of people.28
87.
It is alleged by the source that the authorities closed Mr. Zharnak’s trial to the public
and the media, in violation of the above-mentioned provisions. In its late reply, the
Government merely states that the decision to conduct Mr. Zharnak’s trial in camera was
taken in accordance with the law, but provides no further explanation of this restriction. Given
that no explanation was provided by the Government, the Working Group finds that the
hearing of Mr. Zharnak’s case behind closed doors violated his rights under article 10 of the
Universal Declaration of Human Rights and article 14 (1) of the Covenant.
88.
In view of the above, the Working Group considers that the violations of
Mr. Zharnak’s right to a fair trial are of such gravity as to give his deprivation of liberty an
arbitrary character, falling under category III.
(d)
Category V
89.
Finally, the source has also submitted that Mr. Zharnak is being prosecuted and
imprisoned as a result of his role as one of the leaders of an independent trade union, which
shows that he has been deprived of his liberty for reasons of discrimination based on political
opinion. The Working Group has found, under category II, that Mr. Zharnak’s detention
resulted from his legitimate exercise of freedom of expression and freedom of assembly.
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
25 A/HRC/47/49, para. 54.
26 See, for example, opinion No. 64/2023.
27 See the Committee’s general comment No. 32 (2007), para. 28.
28 Ibid., para. 29.
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of discrimination based on political or other views. Accordingly, the Working Group will
examine the allegations under category V.
90.
In its late reply, the Government suggested that Mr. Zharnak had organized
unauthorized mass events in Minsk and disrupted the work of the public corporation MAZ,
through social networks on the Internet, which implicitly supports the source’s submissions.
91.
The Working Group observes that it has already examined a number of cases in the
context of the presidential elections in Belarus in 2020 that have been brought to its attention
concerning the arrest and detention of those who have been part of the political opposition or
who have exercised their right to speak against the incumbent President.29 It also notes that
these opinions reflect the findings of the report of the United Nations High Commissioner
for Human Rights on the situation of human rights in Belarus in the run-up to the 2020
presidential election and in its aftermath.30
92.
The Working Group thus observes a clear pattern of attitude displayed by the
authorities towards Mr. Zharnak on the basis of his political opinion and of him acting as an
opposition human rights defender. Noting all of the above and especially its findings under
category II, the Working Group finds that the arrest and detention of Mr. Zharnak was based
on discrimination resulting from his political opinion, in violation of article 26 of the
Covenant. His detention is therefore arbitrary under category V. The Working Group refers
the present case to the Special Rapporteur on the situation of human rights in Belarus, for
appropriate action.
3.
Disposition
93.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Artsiom Zharnak, being in contravention of articles 3, 9,
10, 19 and 20 of the Universal Declaration of Human Rights and articles 9, 14, 19, 22
and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, II, III and V.
94.
The Working Group requests the Government of Belarus to take the steps necessary
to remedy the situation of Mr. Zharnak 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.
95.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Zharnak immediately and accord him
an enforceable right to compensation and other reparations, in accordance with international
law.
96.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. Zharnak and to take appropriate measures against those responsible for the violation of
his rights.
97.
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 rights to freedom of
peaceful assembly and of association and the Special Rapporteur on the situation of human
rights in Belarus, for appropriate action.
98.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
29 Opinions No. 23/2021, No. 50/2021, No. 24/2022 and No. 43/2023.
30 A/HRC/49/71, para. 62.
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4.
Follow-up procedure
99.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Zharnak has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Zharnak;
(c)
Whether an investigation has been conducted into the violation of
Mr. Zharnak’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Belarus with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
100.
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.
101.
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.
102.
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.31
[Adopted on 18 March 2024]
31 Human Rights Council resolution 51/8, paras. 6 and 9.