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.25-03798 (E) 170325 170325
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 54/2024 concerning Maria Rabkova (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 30 April 2024 the Working Group
transmitted to the Government of Belarus a communication concerning Maria Rabkova. The
Government replied to the communication on 1 July 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).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/54
General Assembly
Distr.: General
18 March 2025
Original: English
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1.
Submissions
(a)
Communication from the source
4.
Maria Rabkova, also known as Marfa Rabkova and Maryia Rabkova, is a national of
Belarus born on 6 January 1995. She is a human rights defender and a coordinator of the
Volunteer Service at Human Rights Centre “Viasna”. She usually resides in Minsk.
(i)
Context
5.
The source explains that Viasna is a leading human rights organization in Belarus. It
was ordered liquidated in 2003 by the Supreme Court of Belarus, a ruling found by the
Human Rights Committee to be in violation of article 22 of the Covenant.2
6.
According to the source, Viasna continued to operate without being registered, in
accordance with the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms and the Covenant. Since the retraction of its registration, however,
its activists have been subjected to constant harassment by the authorities. 3 Moreover,
judicial harassment and persecution of civil society in Belarus have intensified since the 2020
presidential election campaign, leading the Special Rapporteur on the situation of human
rights in Belarus to declare that, as a result of the reintroduction of criminal liability for
participation in the activities of unregistered organizations, no human rights defender could
operate legally in the country.4
7.
As a human rights defender and volunteer coordinator at Viasna, Ms. Rabkova
reportedly coordinated the volunteer network responsible for monitoring the administrative
and criminal trials of peaceful protesters and dissidents arising from the 2020 presidential
election. She was also reportedly engaged in monitoring peaceful assemblies and
documenting evidence of torture and ill-treatment of detained protesters.
(ii)
Arrest and detention
8.
On 17 September 2020, as she was walking home at night, Ms. Rabkova was
reportedly arrested by masked officers of the Main Directorate for Combating Organized
Crime and Corruption of the Ministry of the Interior. According to the source, the officers
physically assaulted her, pushing her face into the ground. Ms. Rabkova was subsequently
informed that she was being arrested in relation to a criminal investigation opened against
her under article 293 (3) of the Criminal Code of Belarus for “training or other preparation
of persons to participate in riots, or funding such activities.” The police then searched her
home, confiscating computers and telephones.
9.
According to the source, Ms. Rabkova was held for 72 hours at the temporary
detention facility of the Main Directorate of Internal Affairs of Minsk City Executive
Committee, 24 hours of which she was held incommunicado. During that time, she was
allegedly interrogated without the presence of her lawyer in relation to a criminal case
handled by the Minsk City office of the Investigative Committee. The source adds that it was
possible to determine her whereabouts only on the evening of 18 September 2020.
10.
On 19 September 2020, Ms. Rabkova was allegedly placed in pretrial detention upon
the decision of the investigator and the authorization of the prosecutor, in conformity with
article 126 (4) of the Criminal Procedure Code, on suspicion of having committed an offence
under article 293 (3) of the Criminal Code. She was then transferred to Pretrial Detention
Centre No. 1 in Minsk, where she was held until 13 March 2023.
11.
The source notes that article 127 (3) of the Criminal Procedure Code provides for the
extension of pretrial detention to be decided by the prosecuting authority. Ms. Rabkova’s
pretrial detention was reportedly extended more than seven times, on the orders of the Deputy
Prosecutor of Minsk, and exceeded two years and five months. According to the source, all
2 See Belyatsky et al. v. Belarus (CCPR/C/90/D/1296/2004).
3 See Pinchuk v. Belarus (CCPR/C/112/D/2165/2012).
4 A/HRC/53/53, para. 7.
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her appeals against the decisions to extend her pretrial detention were rejected, despite
medical reports submitted to the Court indicating that Ms. Rabkova’s father was sick and that
the aim of her provisional release would be for her to care for him. The source notes that all
hearings on those appeals were held in closed-door sessions, in accordance with article 144
(2) of the Criminal Procedure Code, and in Ms. Rabkova’s absence. According to the source,
Ms. Rabkova’s requests for family visits were also denied.
12.
On 22 September 2020, a pro-government Telegram channel reportedly published a
video titled “One of Maria Rabkova’s days”, depicting Ms. Rabkova leaving her home,
hooded individuals throwing an object at a Belarusian Television and Radio Company
building, and then Ms. Rabkova returning home. The video then reportedly showed press
excerpts on hooliganism and her arrest, suggesting that she was an anarchist who trained
others in violent acts of vandalism.
13.
On 25 September 2020, Ms. Rabkova was formally charged under article 293 (3) of
the Criminal Code for “the training or other preparation of persons to participate in riots, or
the funding of such activities” and for administering the Internet resources of the anarchist
movement Revolutionary Action, allegedly “containing calls for violence against
representatives of the authorities”. The source notes that all parties to the current criminal
proceedings involving Ms. Rabkova, including her lawyers, were forced to sign non-
disclosure agreements requiring them not to disclose any information about the case to any
persons or entities that were not party to the proceedings or face criminal liability under
article 198 (2) of the Criminal Procedure Code. In September 2022, two defence lawyers in
the case were reportedly arrested by the Main Directorate for Combating Organized Crime
and Corruption on accusations of leaking information about the case.
14.
On 29 January 2021, the Ministry of the Interior reportedly released a statement titled
“Anarchists brought to criminal responsibility for participation in a criminal organization”,
claiming that the purpose of the Revolutionary Action criminal organization’s cell, which
allegedly included Ms. Rabkova and other defendants, was the violent change of the
constitutional order or territorial integrity of Belarus, the seizure and retention of power,
terrorism, mass disorder, incitement to social hatred or hostility, obstructing the legitimate
activities of government agencies and officials and financing extremist activities. The
statement reportedly alleged that the defendants had committed so-called acts of direct action
and coordinated them, and that Ms. Rabkova had publicly called for violence against the
authorities. According to the source, the statement was followed by a video that repeated the
claims that she had administered extremist Internet resources and had taken part in the
activities of an international criminal organization.
15.
On 11 February 2021, Ms. Rabkova reportedly faced additional criminal charges for
“incitement of social hostility towards the Government by a group of unidentified
individuals” and “involvement in a criminal organization” under articles 130 (3) and 285 (2),
respectively, of the Criminal Code. The source notes that, on 22 April 2021, another article
appeared in State-owned media, in which it was stated that the whole country was entangled
in a network of militant groups, mentioning Ms. Rabkova as an anarchist who had previously
served time in jail and was a suspect in a criminal case for the vandalism of State buildings.
The article further mentioned that Ms. Rabkova was one of the leaders of the local anarchists
and that she had administered anarchist groups and accounts and sent militants to block
polling stations.
16.
The source claims that, in a press statement given to a State-owned news agency on
1 October 2021, the Investigative Committee announced that Ms. Rabkova and other
defendants in the criminal case “aimed to incite social hatred and hostility and glorify
terrorism”.
17.
In November 2021, the final 12 charges against Ms. Rabkova were released, namely:
(a)
Incitement of racial, national, religious or other social hatred or hostility
(Criminal Code, art. 130);
(b)
Intentional destruction or damage to property committed in a generally
dangerous manner or causing damage on a large scale (art. 218 (3));
(c)
Creation of a criminal organization or its leadership (art. 285 (1));
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(d)
Organization of riots (art. 293 (1));
(e)
Preparation for riots (arts. 13 (1) and 293 (2)) and the funding of such activities
(art. 293 (3));
(f)
Illegal actions in relation to objects using combustible substances
(art. 295-3 (2));
(g)
Hooliganism committed by a group of persons (art. 339 (2));
(h)
Especially malicious hooliganism (art. 339 (3));
(i)
Desecration of structures and damage to property (art. 341);
(j)
Calls for actions aimed at causing harm to the national security of Belarus
(art. 361 (3));
(k)
Creation of an extremist formation, or participation in it (art. 361-1 (1)).
18.
The source notes that, on 11 January 2022, the Investigative Committee announced in
a press release that the criminal case was being transferred to the Office of the Prosecutor to
be sent to court. After the case was sent to court, all further decisions to extend Ms. Rabkova’s
detention were made by a judge.
19.
The trial reportedly began on 25 April 2022 before the Minsk City Court. A State
television channel allegedly broadcast the beginning of the trial, showing the defendants in a
metal cage and referring to them as “radicals of the anarchist movement”. The judge granted
the prosecutor’s request for a closed trial given that the case would feature materials of “an
extremist nature”. The source explains that the members of the public in attendance were thus
ordered out of the courtroom.
20.
On 6 September 2022, the Minsk City Court reportedly found Ms. Rabkova and nine
others guilty of organizing mass riots, training or otherwise preparing persons for
participation in mass riots, or financing that activity, calling for actions aimed at causing
harm to the national security of Belarus, intentionally destroying or damaging property in a
generally dangerous manner or causing damage on a large scale, desecrating structures and
damaging property, creating an extremist formation or participating in it, inciting hatred,
committing illegal actions in relation to objects using combustible substances, creating a
criminal organization or its leadership, preparing mass riots and hooliganism committed by
a group of persons, especially malicious hooliganism.
21.
Ms. Rabkova was sentenced to 15 years of imprisonment in a general security penal
colony and a fine of 22,400 Belarusian roubles (more than $8,800). On 28 February 2023,
the Supreme Court upheld the verdict against Ms. Rabkova but reduced her sentence by three
months.
22.
The source notes that Ms. Rabkova was detained in Pretrial Detention Centre No. 1
in Minsk from 19 September 2020 to 13 March 2023 in poor conditions: the cell was small,
damp and cold, with no natural light and a toilet consisting of a hole in the floor, with no
privacy partition. The source notes that daily walks took place in a small and dusty yard,
which was walled off and covered with a metal-grate roof. Showers were allowed only once
a week and cellmates were forced to shower together. She was reportedly transferred to Penal
Colony No. 4 in Homiel on 14 March 2023.
23.
According to the source, the investigative authorities repeatedly pressured
Ms. Rabkova to testify, stating that, if she did not, she would not be able to see her father.
Officers of the Main Directorate for Combating Organized Crime and Corruption reportedly
came to see Ms. Rabkova in detention almost every day for two weeks, requesting her to sign
documents and incriminate specific individuals if she wished to see her family. She was
reportedly told that her pretrial detention could be changed to a more lenient measure if she
confessed and cooperated with the investigators but Ms. Rabkova always refused.
24.
When Ms. Rabkova’s father died in August 2021, investigators reportedly told her
that she was to blame for not having seen him, as she had refused to cooperate with them.
Her request to attend her father’s funeral was reportedly rejected. The source reports that she
was allowed to see her family for the first time in October 2021, after 13 months in detention.
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25.
The source claims that Ms. Rabkova was detained in particularly bad conditions
during the trial, from April to September 2022: she was shuttled to court at 6 a.m. every
working day and held in a small cell entirely lined with metal for the first few hours. She was
then taken to court and kept in a cage all day, without any hot meals during the entirety of
the hearing.
26.
According to the source, Ms. Rabkova raised allegations of coercion to the prosecutor
during the preliminary investigation in 2021 and to the judge during the trial.
27.
The source alleges that there was practically no medical care in Pretrial Detention
Centre No. 1 and that the medical staff could prescribe medication only for minor health
problems or issue a prescription for detainees’ relatives to fill.
28.
According to the source, during her pretrial detention, Ms. Rabkova experienced
health problems, including periodic blood pressure spikes, and fainted at least twice. She was
able to obtain medical assistance only after a public statement was made about her situation.
In addition, in August and December 2021 and in early 2022, she reportedly developed
symptoms resembling those of the coronavirus disease (COVID-19), with a high fever, but
was not provided proper medical care. She reportedly continues to lose weight, suffers from
constant abdominal pain, inflamed lymph nodes in her neck, thyroid issues and a condition
requiring immediate examination and possible surgery. The source reports that the medical
staff of the detention facility initially refused to reveal Ms. Rabkova’s diagnostic results to
her and that, one day after she was finally given the results, her cell was searched and they
were seized. She reportedly began receiving limited treatment in April 2022 but it did not
include a thyroid examination. According to the source, due to poor nutrition and a lack of
dental care, Ms. Rabkova’s teeth are decaying.
29.
The source recalls that special procedure mandate holders have called for the
immediate release of human rights defenders in Belarus, including Ms. Rabkova, and have
expressed concern specifically about her physical and psychological health because of the
detention conditions.5
30.
According to the source, while in pretrial detention, Ms. Rabkova was subjected to
restrictions on her correspondence. In addition, communications between lawyers and their
clients held in Pretrial Detention Centre No. 1 in Minsk, where Ms. Rabkova was held in
pretrial detention, are reportedly not confidential and are recorded on video. The source notes,
for instance, that videotapes of confidential meetings between a detained individual and their
lawyer were previously released by State-owned media.
31.
In the penal colony where she is currently detained, Ms. Rabkova’s family has been
unable to obtain monthly visits and her lawyer has been unable to meet with her.
(iii)
Legal analysis
32.
The source argues that Ms. Rabkova’s arrest and detention violate articles 2, 5, 7, 10,
11, 19 and 20 of the Universal Declaration of Human Rights, articles 7, 9, 10, 14, 15, 19, 22
and 26 of the Covenant and article 16 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, and are thus arbitrary under categories I,
II, III and V.
a.
Category I
33.
The source submits that Ms. Rabkova was not properly informed of the reason for her
arrest at the time of her arrest insofar as she was not informed of the specific charges against
her and could not, therefore, understand the exact reasons for her deprivation of liberty, the
actions that she was accused of, when and where they were allegedly committed and the basis
on which they were criminalized. The source argues that the arrest warrant contained only
the general wording of articles of the Criminal Code. It adds that even the final charge sheet
submitted shortly before trial did not include reliably ascertainable information about the
times and places of the alleged crimes or any information regarding the alleged
5 A/HRC/47/49, para. 65. See also BLR 8/2021 and BLR 3/2023. All communications mentioned in the
present report are available at https://spcommreports.ohchr.org/Tmsearch/TMDocuments.
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co-conspirators. According to the source, that prevented Ms. Rabkova from knowing and
understanding exactly what she was accused of and, therefore, from challenging her detention
and imprisonment and from building her defence.
34.
The source argues that the authorities violated article 9 (3) of the Covenant insofar as
Ms. Rabkova’s pretrial detention was ordered by the investigator, with the authorization of
the prosecutor, and was further extended by the prosecutor, rather than by a judge. The source
alleges that her detention was reviewed by a judge only on 22 September 2020, five days
after her detention had first been ordered. The source also alleges that the search warrant on
the basis of which Ms. Rabkova’s home was searched was not authorized by a judge but
rather by the prosecutor, in line with article 210 of the Criminal Procedure Code of Belarus.
The source claims that it is common practice in Belarus for search warrants not to specify
what items are to be found during the search, thus allowing for anything to be seized and
used as evidence for the prosecution. According to the source, that constitutes excessive
interference with the right to privacy.
35.
The source further submits that Ms. Rabkova was first brought before a judicial
authority at the start of her trial, on 25 April 2022, after more than 18 months of detention,
in violation of article 9 (3) of the Covenant.6
36.
In addition, the source submits that the rejection of the complaints made by
Ms. Rabkova’s lawyer regarding her detention, in closed-door sessions and without
Ms. Rabkova’s participation, constituted a violation of her right to habeas corpus and a
breach of article 9 (4) of the Covenant.
37.
Furthermore, the source reports that Ms. Rabkova’s pretrial detention was extended
more than seven times over 2 1/2 years. It adds that she was convicted of 12 charges, although
her arrest and initial pretrial detention were based on only one charge. The source notes that
the initial period of investigation into the charges raised at the time of her arrest was due to
expire on 16 February 2021. Shortly before the deadline, officials reportedly released a
statement with allegations of more serious crimes and, on 11 February 2021, five days before
the end of the initial investigation period, new charges were formally filed. The source notes
that the final charges did not come to light until November 2021. It argues that the
lengthening of detention by the addition of new charges and the belated disclosure of final
charges, nearly a year after Ms. Rabkova’s arrest and in the absence of effective judicial
review of her pretrial detention, constituted further violations of her right to habeas corpus
and of article 9 (4) of the Covenant.
38.
The source also argues that Ms. Rabkova’s pretrial detention was not based on an
individualized determination that it was reasonable and necessary, contrary to article 9 (1) of
the Covenant.7 It submits that the courts did not examine whether alternatives to detention,
such as bail, would render custodial measures unnecessary, in further violation of article 9 (3)
of the Covenant.
39.
The source further submits that Ms. Rabkova was detained under vague and overly
broad provisions, especially those relating to rioting and extremism. It argues that those
provisions violate the principle of legality enshrined in article 11 (2) of the Universal
Declaration of Human Rights and article 15 (1) of the Covenant.
40.
The source argues that Ms. Rabkova was detained in inhumane and unlawful
conditions and denied medical care, contrary to rules 10, 12, 22 (2), 24, 37 and 97 of the
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), principles 1, 6, 15, 19, 21 and 24 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment and article 16 of the Convention
against Torture. The source argues that the authorities therefore violated article 5 of the
Universal Declaration of Human Rights and articles 7 and 10 (1) of the Covenant.
41.
The source submits that ultimatums given to Ms. Rabkova to confess or remain in
detention demonstrate that the actual purpose of her detention is not legitimate and is contrary
to principle 21 of the Body of Principles. The source notes that the authorities ignored and
6 Opinion No. 23/2021, para. 73.
7 Human Rights Committee, general comment No. 35 (2014), para. 12.
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failed to investigate the allegations of torture and cruel and inhuman treatment and points to
other instances prior to Ms. Rabkova’s trial when the same judge ignored complaints about
torture and inhuman treatment.
b.
Categories II and V
42.
The source argues that Ms. Rabkova is detained as punishment for her human rights
activism and connection with the anarchist movement, in violation of articles 19 and 22 of
the Covenant. It notes that the authorities have repeatedly accused her, in official statements
and articles in pro-government media outlets, of running the social media accounts of the
anarchist movement and the activities of Viasna. The source also notes that special procedure
mandate holders have repeatedly emphasized the link between Ms. Rabkova’s detention and
the exercise of her freedom of expression and freedom of association.8
43.
The source reports that the authorities continuously attempt to represent the activities
of Ms. Rabkova and Viasna as illegal and extremist, and followers of anarchism as dangerous
armed criminal groups. The source recalls that, in accordance with the Working Group’s
jurisprudence, interventions against human rights defenders should be subjected to
“particularly intense review”.9 It argues that the authorities did not demonstrate that Ms.
Rabkova had committed any violent act or that her actions posed a real threat to national
security, public order, the rights and freedoms of third persons, morals or public health.
According to the source, the secrecy of the investigation and of the judicial consideration of
the case, the lack of public access to information, the context of the arrest and the nature of
the accusations all point to the authorities’ desire to punish her for her human rights activism
at Viasna and alleged connection with the anarchist movement.
44.
The source therefore concludes that Ms. Rabkova’s detention violates articles 19 and
20 of the Universal Declaration of Human Rights and articles 19 and 22 of the Covenant.
45.
The source further argues that Ms. Rabkova’s detention is discriminatory, in that the
authorities detained and prosecuted her in order to pressure and punish her for her human
rights activities and her connection with anarchists, as illustrated by the public accusatory
statements made by officials against Ms. Rabkova prior to the trial, the worsening of her
pretrial detention conditions and the authorities’ failure to provide her with medical care, the
threats and blackmail to which Ms. Rabkova was allegedly subjected during the investigation,
the disproportionately harsh sentence that she received and the worsening of Ms. Rabkova’s
situation in the penal colony after it was claimed that she had been involved in terrorist and
extremist activities. The source underlines that various organizations consider Ms. Rabkova
to be a political prisoner and a prisoner of conscience and that the United Nations Deputy
High Commissioner for Human Rights and the Special Rapporteur on the situation of human
rights in Belarus have repeatedly decried the arbitrary arrests and detention on political
grounds of human rights defenders.10
46.
According to the source, Ms. Rabkova’s arrest and detention fit into a pattern of
persecution by the authorities of dissidents, including human rights defenders,11 and are based
on discrimination resulting from her political opinion and human rights activity, in violation
of articles 2 and 7 of the Universal Declaration of Human Rights and article 26 of the
Covenant.
8 A/HRC/47/49, para. 65. See also communication BLR 8/2021.
9 Opinion No. 62/2012, para. 39.
10 A/HRC/52/68, para. 23; A/HRC/53/53, para. 77; Office of the United Nations High Commissioner for
Human Rights (OHCHR), “Statement on the situation of human rights in Belarus,” 22 Sept. 2023,
available at https://www.ohchr.org/en/statements-and-speeches/2023/09/statement-situation-human-
rights-belarus; and OHCHR, “Belarus must release all detainees held on political grounds and protect
their rights: UN experts”, 30 May 2023, available at https://www.ohchr.org/en/press-
releases/2023/05/belarus-must-release-all-detainees-held-political-grounds-and-protect-their.
11 Opinion No. 24/2022, para. 55.
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c.
Category III
47.
The source argues that Ms. Rabkova’s detention is unlawful insofar as she has been
deprived of fundamental fair trial guarantees. It submits that her access to independent legal
assistance of her choice has been severely restricted, as she was denied access to a lawyer for
the first two days of her detention and the opportunity to prepare and present arguments in
her defence. In that regard, the source notes that, at the time of Ms. Rabkova’s arrest and
during her pretrial detention, no specific charge was brought against her, leaving her unable
to understand the exact reasons for her arrest. According to the source, the case file contains
160 volumes and the defence was given only 20 days to consult it, for no more than seven
hours each day, and was prohibited from making any copies of the case materials. The source
argues that that did not provide sufficient time and opportunity for Ms. Rabkova and her
lawyer to familiarize themselves with the case and prepare her defence, in violation of article
14 (3) (b) of the Covenant.
48.
Furthermore, the source notes that Ms. Rabkova and her defence lawyer signed a
non-disclosure agreement. It submits that that, and the fact that Ms. Rabkova’s trial was
conducted behind closed doors, constituted violations of her right to a fair trial.12 The source
notes that, in a previous case concerning Belarus, the Working Group recognized the
unjustified holding of a trial behind closed doors as a violation of the right to a fair and public
hearing as guaranteed by article 14 (1) of the Covenant.13
49.
In addition, the source notes that there is no evidence that Ms. Rabkova benefited from
an independent or impartial judicial authority, as required under article 10 of the Universal
Declaration of Human Rights and article 14 (1) of the Covenant. It argues that the Belarusian
judiciary is not independent from the executive and therefore cannot be regarded as
constituting adequate judicial supervision for the purposes of ordering a lawful pretrial
detention and imposing a just sentence.14 It recalls that, in 2023, the United Nations High
Commissioner for Human Rights reported that, in Belarus, investigators and State security
forces decided on whether an investigation should be opened and whether a person would be
detained, charged or convicted to prison terms.15 The source concludes that the trial of
Ms. Rabkova therefore violated article 10 of the Universal Declaration of Human Rights and
article 14 (1) of the Covenant.
50.
Furthermore, the source argues that the denial of Ms. Rabkova’s right to habeas corpus
violates the right to a fair trial under article 14 (1) of the Covenant. In that regard, the source
reiterates that Ms. Rabkova’s pretrial detention was unjustifiably prolonged and decided by
the investigator and prosecutor, rather than by a judge, and that she was not allowed to attend
the closed-door hearings to challenge the legality of her detention before a judicial authority.
51.
In addition, the source argues that the authorities violated Ms. Rabkova’s right to be
presumed innocent as guaranteed by article 11 (1) of the Universal Declaration of Human
Rights and article 14 (2) of the Covenant. It recalls that the video and statements published
on and after 29 January 2021 portrayed Ms. Rabkova as guilty of dangerous crimes and
stated, prior to her trial, that she and others had already been tried. Furthermore, the source
recalls that Ms. Rabkova was taken to the courtroom in handcuffs and kept in a metal cage
during the trial, suggesting that she was a dangerous criminal. It notes that the authorities did
not justify the need to confine Ms. Rabkova in a metal cage and that the court did not address
that issue during the hearings.
52.
The source submits that Ms. Rabkova was proclaimed to be an individual involved in
terrorist and extremist activities and that such decisions were taken by the executive branch
of the Government extrajudicially and behind closed doors, without the participation of the
interested parties. The source argues that the fact that the decision to label Ms. Rabkova as a
terrorist and extremist was taken by the executive authorities rather than in court constitutes
a violation of the presumption of innocence guaranteed by article 11 of the Universal
Declaration of Human Rights and article 14 (2) of the Covenant.
12 Human Rights Council, general comment No. 32 (2007), para. 29.
13 Opinion No. 24/2022, paras. 100 and 101.
14 See A/75/173 and A/HRC/52/68.
15 A/HRC/52/68, para. 26.
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9
53.
The source concludes that the violations of the right of Ms. Rabkova to a fair trial and
due process are of such gravity as to render her detention arbitrary under category III.
(b)
Response from the Government
54.
On 30 April 2024, 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 1 July 2024, detailed information on Ms. Rabkova’s current
situation and to clarify the legal provisions justifying her continued detention and 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 her physical and mental integrity.
55.
In its response, dated 1 July 2024, the Government details each of the charges of which
Ms. Rabkova was convicted by the Minsk City Court, including organizing and managing a
criminal organization, leading extremist organizations, inciting social discord and making
public calls to overthrow the Government and destabilize national security, and the resulting
sanction for each one.
56.
The Government states that, based on article 72 (3) and (6) of the Criminal Code, for
the totality of her crimes, Ms. Rabkova was sentenced on 6 September 2022 to 15 years of
imprisonment with a fine totalling 22,400 Belarusian roubles. In a ruling issued on
28 February 2023, the Supreme Court of Belarus reduced the sentence on appeal to 14 years
and 9 months, to be served in a general security penal colony. The Government points out
that Ms. Rabkova had the right to file a supervisory appeal against the decision of the
Supreme Court but had chosen not to.
57.
The Government stresses that, in accordance with article 22 of the Constitution,
everyone is equal before the law. In addition, article 26 of the Constitution recognizes the
presumption of innocence and that guilt must be proven in accordance with the procedure set
out in the law and established by a court. Moreover, article 60 guarantees an independent and
impartial judiciary. The Government specifies that the appointment, termination, extension
and conduct of judges is regulated, ensuring their independence.
58.
The Government maintains that Ms. Rabkova’s defence rights were not violated and
that her interests were represented at trial by professional lawyers. Her guilt was confirmed
by the evidence, which was comprehensively and objectively reviewed in accordance with
article 105 of the Criminal Procedure Code.
59.
The Government also states that measures of restraint may be applied only if there are
sufficient grounds to believe that the suspect or defendant may escape the prosecuting body
and the court, hinder the investigation, influence persons participating in the proceedings,
interfere with evidence, fail to appear when summoned, commit a socially dangerous act or
oppose the execution of the sentence. It further maintains that individual circumstances are
taken into account when considering measures of restraint. The Government explains the
circumstances under which pretrial detention as a measure of restraint can be applied and
specifies that the decision to do so falls to the Prosecutor General, regional and local
prosecutors, the Chairman of the Investigative Committee or the Chairman of the State
Security Committee. The decision to extend pretrial detention is taken by the court in front
of which a case is pending.
60.
The Government states that Ms. Rabkova’s detention was extended by the Minsk City
Court on 12 January, 3 February, 3 March, 4 April, 4 May, 3 June, 4 July and 3 August 2022.
She did not avail herself of the right to challenge any of those decisions before the Supreme
Court.
61.
The Government submits that closed trials are allowed in limited instances and on
reasoned decision by a court. It submits that, in the present case, the Minsk City Court was
satisfied that a closed trial was necessary. The Government underlines, nevertheless, that the
rights of the prosecution and the defence would have continued to be respected in the closed
trial.
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62.
The Government sets out in considerable detail the conditions of detention in Belarus
under Law No. 215-3 of June 16, 2003.16 In particular, inmates are grouped together based
on their personal and psychological compatibility. Cells are equipped with a separate sanitary
unit, a place for eating, radio receivers and ventilation and may even contain a refrigerator
and television. Storage space is provided for personal hygiene products, writing materials,
clothing, bedding and food. Each individual is entitled to at least 2 1/2 m2 of space and enjoys
at least a two-hour walk daily and eight hours of sleep at night. Pretrial detention facilities
are equipped with bathing and laundry facilities and free food is provided. In addition, the
Government states that persons in custody benefit from medical care and that their sanitary
and epidemiological well-being is overseen by the head of the administration of the place of
detention, in accordance with standards established by the Ministry of Health.
63.
The Government further explains that, in accordance with Law No. 215-3, persons in
pretrial detention have the right to submit petitions and statements regarding their detention,
without censorship, and are protected from reprisals. They can also communicate freely,
confidentially and without restrictions with their lawyers.
64.
As for those who have been sentenced to imprisonment, the standard living space is
no less than 2 m2 and includes an individual sleeping place, bedding, seasonal clothing, shoes
and personal hygiene products. The nutritional regime of prisoners is established by the
Council of Ministers and the President of the Republic and medical care and sanitary
conditions are established by the ministries of the interior and of health. Depending on the
detention regime, individuals may also receive parcels and visits. The Government further
states that convicted persons may present complaints, which would not be subject to
censorship and are forwarded to their intended recipient within 24 hours on working days.
65.
The Government notes that Ms. Rabkova’s sentence would be completed on 21 March
2034, though she may be eligible for parole after 14 July 2030 and for a more lenient penalty
after 20 April 2029.
66.
From 17 September 2020 to 14 March 2023, she was kept in Pretrial Detention Centre
No. 1, after which she was transferred to Penal Colony No. 4, where she has been employed
as a seamstress.
67.
She has received three outstanding and unsettled penalties so far during her sentence,
and in accordance with article 117, part 1, of the Criminal Executive Code, has been declared
to be a malicious violator of the established procedure for serving the sentence.
68.
According to the head of the medical unit of Penal Colony No. 4, her health status is
considered satisfactory and not requiring any specialized healthcare. Moreover, on 4 June
2024, she was called to see a dentist.
(c)
Additional comments from the source
69.
The source, in its further comments, notes that the Government has failed to disprove
any of the allegations submitted. It argues that the Government has made no effort to
demonstrate that the judicial proceedings complied with international fair trial standards. It
further points out that no reasons were provided for holding Ms. Rabkova’s trial behind
closed doors nor to indicate that any of the restrictions permissible under article 14 (1) of the
Covenant applied.
70.
The source submits, moreover, that the Government did not comment in any way on
the violation of the presumption of innocence, the discriminatory motives behind
Ms. Rabkova’s prosecution or the pressures to which she was subjected during the
preliminary investigation.
71.
With regard to the Government’s view that Ms. Rabkova was able to exercise her right
to a defence, the source underlines that the legal profession in Belarus is under great pressure
from the Government, with increasing numbers of lawyers arbitrarily detained or arbitrarily
disbarred.
16 Titled “On the procedure and conditions for keeping persons in pretrial detention”.
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11
72.
The source submits that Ms. Rabkova did not avail herself of her right to file
complaints, as pointed out by the Government, because, in the current circumstances, they
would have been ineffective, as there was no reason to expect they would be considered
independently and impartially or that they would not result in reprisals by the prison
administration.
2.
Discussion
73.
The Working Group thanks the source and the Government for their submissions.
74.
In determining whether Ms. Rabkova’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 established a prima facie case for breach of international law
constituting arbitrary detention, the burden of proof should be understood to rest upon the
Government if it wishes to refute the allegations. Mere assertions by the Government that
lawful procedures have been followed are not sufficient to rebut the source’s allegations.17
(a)
Category I
75.
The Working Group firstly notes the source’s claims that, while Ms. Rabkova was
presented with an arrest warrant at the moment of her arrest, the provisions of the Criminal
Code were mentioned in the warrant in general wording and the warrant did not specify which
alleged acts by Ms. Rabkova constituted corpus delicti. The Working Group recalls that
article 9 (2) of the Covenant provides that anyone who is arrested should be informed, at the
time of arrest, of the reasons for the arrest and should be informed promptly of any charges.
For a deprivation of liberty to have a legal basis, it is not sufficient that there is a law that
may authorize the arrest. The authorities must invoke that legal basis and apply it to the
circumstances of the case.18 That is typically done through an arrest warrant or arrest order
or an equivalent document.19 The reasons for the arrest must be provided immediately upon
arrest and must include not only the general legal basis of the arrest, but also enough factual
specifics to indicate the substance of the complaint, such as the wrongful act and the identity
of an alleged victim.20 It appears from the source’s submissions, which are not contested by
the Government, that those important factual details were missing. Thus, the Working Group
cannot but find that article 9 (2) of the Covenant was violated.
76.
According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal
charge should be brought promptly before a judge. As the Human Rights Committee has
stated, 48 hours is ordinarily sufficient to satisfy the requirement of bringing 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.21 Ms. Rabkova, according to
the source’s unrebutted submissions, was brought for the first time before a judicial authority
18 months after her arrest, in violation of article 9 (3) of the Covenant. Her detention on
remand was extended on several occasions by a prosecutor. As the Working Group has
previously stated, the lawfulness of a detention must be reviewed by a judicial authority, not
by a prosecutorial authority.22 Consequently, the authorities failed to establish the legal basis
for Ms. Rabkova’s detention in accordance with the provisions of the Covenant.
77.
Furthermore, Ms. Rabkova had the right to appear in person at hearings held to review
the legality of her detention. As the Human Rights Committee has stated, the physical
presence of detainees at hearings might serve the inquiry into the lawfulness of detention and
17 A/HRC/19/57, para. 68.
18 Human Rights Committee, general comment No. 35 (2014), paras. 24 and 25.
19 Opinions No. 30/2017, para. 58; No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018,
para. 39.
20 Opinion No. 85/2021, para. 69.
21 Human Rights Committee, general comment No. 35 (2014), para. 33.
22 A/HRC/45/16/Add.1, para. 35 (prosecutorial authorities do not possess the requisite degree of
independence to assess the necessity and proportionality of detention); and Human Rights Committee,
general comment No. 35 (2014), para. 32.
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serves as a safeguard for the right to security of person.23 That important habeas corpus right,
as submitted by the source and not refuted by the Government, was denied to her, in breach
of article 9 (4) of the Covenant.
78.
The Working Group further notes the source’s submission, again unrefuted by the
Government, that Ms. Rabkova’s pretrial detention was extended more than seven times by
the prosecution, with new charges added and without any individualized assessment. The
Working Group recalls that it is a well-established norm of international law that pretrial
detention should be the exception and not the rule and ordered for as short a time as possible.24
Article 9 (3) of the Covenant provides that it is not to be the general rule that persons awaiting
trial be detained, but release may be subject to guarantees to appear for trial and at any other
stage of the judicial proceedings. It follows that liberty is recognized as a principle and
detention as an exception in the interests of justice. 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 that
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.
79.
In the present case, the Working Group considers that, by failing to address specific
facts or to consider alternative preventive measures and by adding, instead, new charges each
time, the authorities failed to properly justify Ms. Rabkova’s pretrial detention, which lasted
about two years and five months. In the absence of any argument to the contrary, the Working
Group finds her detention to be in violation of article 9 (3) of the Covenant.
80.
Accordingly, the Working Group considers that Ms. Rabkova’s detention is arbitrary
under category I.
(b)
Category II
81.
The source alleges that the persecution of Ms. Rabkova was punishment for her human
rights activism and connection with the anarchist movement, in violation of articles 19 and
22 of the Covenant.
82.
The Government, in reply, provided an extract from the trial court judgment,
according to which she was convicted on multiple counts, including organizing and managing
a criminal group, leading extremist organizations, inciting social discord and making public
calls to overthrow the Government and destabilize national security. She was also found
guilty of organizing, training and preparing individuals for mass riots, which involved
violence, arson and property destruction. The Working Group notes that the Government did
not identify any specific fact capable of justifying a restriction on her freedom of speech and
freedom of conscience.
83.
The Working Group also notes that the charges against Ms. Rabkova were brought
under articles 342 and 361 of the Criminal Code. It recalls that, in its previous opinions on
Belarus, 25 it relied on the report of the Venice Commission, in which the Commission
emphasized that article 342 of the Criminal Code criminalized group behaviour of a
non-violent character relating to a mass demonstrations, and stressed that the mere fact that
the demonstration had caused inconvenience to the public did not suffice to criminalize the
participation of a person in such an event. Equally, in its previous jurisprudence on Belarus,
the Working Group relied on a report by the United Nations High Commissioner for Human
Rights,26 in which he noted that legislative amendments since 2021 had broadened the scope
23 Human Rights Committee, general comment No. 35 (2014), paras. 34 and 42. See also Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles
32 (2) and 37.
24 Opinions No. 28/2014, para. 43; No. 49/2014, para. 23; No. 57/2014, para. 26; No. 1/2020, para. 53;
and No. 8/2020, para. 54. See also Human Rights Committee, general comment No. 35 (2014),
para. 38; and A/HRC/19/57, paras. 48–58.
25 Opinions No. 64/2023 and No. 3/2024.
26 A/HRC/49/71, paras. 62–68. See also opinion No. 2022/24, paras. 89 and 90.
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13
to persecute those expressing dissenting views by introducing individual criminal liability
and expanding the list of “extremists” and “extremist activities and materials”.
84.
The Government has not submitted any new elements that would lead the Working
Group to depart from its previous findings. Furthermore, Ms. Rabkova’s case cannot be
considered 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 was recently addressed in numerous opinions of the Working Group.27
85.
Absent any information to the contrary and given the general context of the case, it is
clear to the Working Group that the basis for the arrest and subsequent detention of
Ms. Rabkova was effectively her exercise of freedom of expression and freedom of
association, which are guaranteed by articles 19 and 20 of the Universal Declaration and
articles 19 and 22 of the Covenant, and follows the pattern identified by the Working Group
and different human rights bodies. No specific information on any violent behaviour on her
part was presented to the Working Group.
86.
The Working Group accordingly concludes that Ms. Rabkova’s arrest and detention
are arbitrary and fall under category II.
(c)
Category III
87.
Given its finding that Ms. Rabkova’s deprivation of liberty is arbitrary under category
II, the Working Group wishes to emphasize that no trial should have taken place.
Nevertheless, as the trial did take place and Ms. Rabkova was convicted, the Working Group
will proceed with examining the source’s submissions concerning the denial of her fair trial
rights.
88.
The source claims that Ms. Rabkova was denied access to a lawyer for the first two
days of her detention. The Government has chosen not to respond to that allegation directly
and has stated merely that she was represented by three lawyers during her trial. The
allegations of the source, however, concern the promptness of access to legal assistance, an
aspect that has not been addressed by the Government.
89.
The Working Group recalls that all persons deprived of their liberty have the right to
legal assistance by counsel of their choice at any time during their detention, including
immediately after their apprehension, and that such access must be provided without delay.28
The right to prompt legal assistance is essential to the right to a fair trial, as it serves to ensure
that the principle of equality of arms is duly observed. In the present case, it appears that
articles 10 and 11 of the Universal Declaration of Human Rights and article 14 (3) (b) and
(d) of the Covenant were violated.
90.
The source also submits that, contrary to article 14 (3) (b) of the Covenant,
Ms. Rabkova was not afforded sufficient time to prepare her defence, as the case file
contained 160 volumes and the defence was given only 20 days to consult the file, for no
more than seven hours each day, and was prohibited from making copies of the case material.
The Working Group considers that the right to an adversarial trial under article 14 of the
Covenant means that both the prosecution and the defence must be given the opportunity to
have knowledge of and to comment on the observations filed and the evidence adduced by
the other party.29 Article 14 (3) (b) of the Covenant stipulates that everyone shall be entitled
to adequate time and facilities for the preparation of their defence, ensuring that they can
present all necessary arguments to have an impact on the trial’s result. That implies having
the access that allows them to familiarize themselves with the investigative findings in order
to prepare their defence effectively. The sufficiency of the time and resources provided to the
27 Opinions No. 64/2023, para. 92; and No. 3/2024, paras. 111 and 112. See also A/78/327.
28 A/HRC/45/16, paras. 51 and 52; and 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 (A/HRC/30/37, annex), principle 9 and guideline 8. See also Basic Principles on the Role of
Lawyers, paras. 16–22.
29 European Court of Human Rights, Brandstetter v. Austria, Applications No. 11170/84, No. 12876/87
and No. 13468/87, Judgment, 28 August 1991, paras. 66 and 67; and Human Rights Committee,
general comment 32 (2007), para. 13.
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accused should be evaluated on a case-by-case basis. In the present case, the Working Group
observes that the prosecution’s case file was rather large, consisting of 160 volumes of
materials. Examination of such a large volume of evidence by the defence would inevitably
require a substantial amount of time. The Government has not submitted any information to
convince the Working Group that the period of time or the manner in which the defence was
allowed to consult the investigation file were adequate in the circumstances. The Working
Group thus finds that the source’s submissions reveal a serious issue as to the adequacy of
the time and facilities afforded to Ms. Rabkova, contrary to the requirements of article
14 (3) (b) of the Covenant.
91.
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 principle of the separation of powers
between the political organs of the Government and the judiciary and the need to safeguard
the independence of the judiciary are fundamental. In that regard, the Working Group refers
to the report of the Special Rapporteur on the situation of human rights in Belarus 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 right 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. Furthermore, the requirement for lawyers to sign
non-disclosure agreements significantly restricts public access to details of court
proceedings, including information about the charges.30
92.
In view of those findings and the Working Group’s earlier jurisprudence, 31 the
Working Group concludes that Ms. Rabkova 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.
93.
The source further argues that the authorities violated Ms. Rabkova’s right to be
presumed innocent as guaranteed by article 11 (1) of the Universal Declaration of Human
Rights and article 14 (2) of the Covenant, as some public statements by State bodies portrayed
her as guilty of dangerous crimes and she was kept in a metal cage during the trial.
94.
The Working Group emphasizes that the presumption of innocence is one of the
fundamental principles of a fair trial and is thus non-derogable. It guarantees that guilt cannot
be presumed until the charge has been proven beyond reasonable doubt. As the Human Rights
Committee has stated, it is a duty for all public authorities to refrain from prejudging the
outcome of a trial, for example by abstaining from making public statements affirming the
guilt of the accused.32 In the present case, as submitted by the source and not denied by the
Government, some statements made by public officials amounted to a declaration of
Ms. Rabkova’s guilt and a prejudgment of the assessment of the facts by the competent
judicial authority, encouraging the public to believe that she was guilty before her case had
been examined by the trial court.
95.
Furthermore, defendants should normally not be shackled or kept in cages during trials
or otherwise presented to the court in a manner indicating that they may be dangerous
criminals. 33 In the case at stake, the source had objectively justified concerns that
Ms. Rabkova’s confinement in a cage during the hearings would project a negative image to
the judges responsible for determining her criminal liability. In addition to creating anxiety
and distress, it also led to a violation of her presumption of innocence. In the absence of any
submissions to the contrary by the Government, the Working Group accordingly considers
that Ms. Rabkova’s right to the presumption of innocence under article 11 (1) of the Universal
Declaration of Human Rights and article 14 (2) of the Covenant was violated.
30 A/HRC/47/49, para. 54.
31 See, for example, opinion No. 64/2023.
32 Human Rights Committee, general comment No. 32 (2007), para. 30.
33 Ibid., para. 30.
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15
96.
Finally, 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.34 Although the right to a public hearing is not absolute, it may be restricted
only 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
interests of justice. Apart from such exceptional circumstances, a hearing must be open to
the general public, including members of the media.35
97.
The source submits that the authorities closed Ms. Rabkova’s trial to the public and
the media in violation of the above provisions. The Government states merely that the
decision to conduct Ms. Rabkova’s trial in camera was taken in accordance with the law but
provides no actual justification for that restriction. As a result, the Working Group finds that
the hearing of Ms. Rabkova’s case behind closed doors violated her rights under article 10 of
the Universal Declaration and article 14 (1) of the Covenant.
98.
Given all the above, the Working Group considers that the violations of
Ms. Rabkova’s right to a fair trial are of such gravity as to give her deprivation of liberty an
arbitrary character, falling under category III.
(d)
Category V
99.
The source argues that Ms. Rabkova’s detention fits into a pattern of dissidents,
including human rights defenders, being persecuted by the authorities in Belarus. 36 It
considers that her arrest and detention were based on discrimination resulting from her
political opinion and human rights activity. The Working Group has found under category II
that Ms. Rabkova’s detention resulted from her 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 of discrimination based on political or other views. 37
Accordingly, the Working Group will examine the allegations under category V.
100.
The Working Group observes that it has already examined a number of cases
concerning the arrest and detention in Belarus of those who have been part of the political
opposition or who have exercised their right to speak against the incumbent President.38 It
also notes that those 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.39
101.
The Working Group thus observes a clear pattern of discrimination by the Belarusian
authorities towards Ms. Rabkova based on her political opinions and her activities as an
opposition human rights defender. Noting all the above and especially its findings under
category II, the Working Group finds that the arrest and detention of Ms. Rabkova were based
on discrimination resulting from her political opinion, in violation of article 26 of the
Covenant. Her detention is therefore arbitrary under category V. The Working Group hereby
refers the present case to the Special Rapporteur on the situation of human rights in Belarus,
for appropriate action.
34 Ibid., para. 28.
35 Ibid., para. 29.
36 Opinion No. 24/2022, para. 55.
37 See opinions No. 48/2017, No. 75/2017, No. 45/2018, No. 9/2019, No. 83/2019, No. 15/2020 and
No. 66/2021.
38 Opinions No. 23/2021, para. 102; No. 50/2021, para. 102; No. 24/2022, para.109; No. 64/2023,
para. 94; No. 3/2024, para. 112; and No. 5/2024, para. 92.
39 A/HRC/49/71, para. 62.
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(e)
Concluding remarks
102.
The Working Group also notes the unrebutted allegations by the source concerning
the condition of Ms. Rabkova’s health. While the source’s submissions are sufficiently
detailed, the Government limited itself to a general statement that her health situation was
satisfactory. The Working Group takes this opportunity to remind the Government of its
obligation under article 10 (1) of the Covenant to ensure that all persons deprived of their
liberty are treated with humanity and with respect for the inherent dignity of the human
person.40
3.
Disposition
103.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Maria Rabkova, being in contravention of articles 3, 9,
10, 11, 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.
104.
The Working Group requests the Government of Belarus to take the steps necessary
to remedy the situation of Ms. Rabkova 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.
105.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Rabkova immediately and accord her
an enforceable right to compensation and other reparations, in accordance with international
law.
106.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Ms. Rabkova and to take appropriate measures against those responsible for the violation of
her rights.
107.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the situation of human rights in Belarus, for
appropriate action.
108.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
109.
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 Ms. Rabkova has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Rabkova;
(c)
Whether an investigation has been conducted into the violation of
Ms. Rabkova’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.
110.
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.
40 For example, opinions No. 46/2020, para. 64; and No. 66/2020, para. 66.
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17
111.
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.
112.
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.41
[Adopted on 12 November 2024]
41 Human Rights Council resolution 51/8, paras. 6 and 9.