Litigation Efforts

Instrument invoked to establish state responsibility

Working Group on Arbitrary Detention

The Working Group on Arbitrary Detention (WGAD) became one more special procedure within the UN System which stepped in international endeavours to remedy the human rights crisis in Belarus.

In its most recent decision, the Working Group classified the detention of Maksim Znak as arbitrary after considering the complaint, filed with the Group by Maksim Znak’s defenders. In particular, the Working Group found that Maksim Znak was arrested and detained without legal grounds as a result of the exercise of his rights to freedom of expression, freedom of association and freedom to take part in the conduct of public affairs and in violation of his right to non-discrimination on the basis of political opinion.

On 9 December 2021, it adopted Opinion No. 50/2021, concerning Roman Protasevich, a former editor of the influential independent NEXTA Telegram channel and a co-founder of “Belarus of the Brain” (“Belarus Golovnogo Mozga”) Telegram channel – both channels recognized as extremist in Belarus. The WGAD closely studied the circumstances of Roman Protasevich’s arrest and detention and classified the detention as arbitrary [1], urging Belarusian authorities to take necessary enforcement measures [2]. The assessment was carried out on the basis of the complaint, submitted to the Working Group by 7 human rights organizations.

The Working Group also considered a complaint filed by the lawyer Natalia Matskevich in defense of Siarhei Tsikhanouski, regarding the latter’s detention during a pre-election picket. The Working Group acknowledged the absence of legal grounds for the detention of Siarhei Tsikhanouski, and, consequently, its arbitrary nature, highlighting several violations of Belarus’ international obligations under the International Covenant on Civil and Political Rights, namely violations of:

• Articles 19, 20, 21 of the Covenant: Siarhei Tsikhanouski was detained for essentially exercising his fundamental human rights, which qualifies the situation as a case of political persecution;
• Article 9 (3) of the Covenant: Siarhei Tsikhanouski was not immediately brought before judicial authority, his detention being authorized by prosecutors, not entitled to exercise judicial power;
• Article 9 (4) of the Covenant: Siarhei Tsikhanouski was deprived of the right to have the lawfulness of his detention assessed in court proceedings, which was further aggravated by denying him access to a lawyer;
• Article 14 (3) (b) of the Covenant: Siarhei Tsikhanouski was deprived of the right to private communication with a lawyer, which is implied by the provision of the Covenant guaranteeing one’s right to defense and to legal assistance of one’s choosing.

In its decision, the Group requests that Belarus take measures to remedy the situation, advising the release of Sergei Tikhanovsky and granting him the right to compensation in accordance with international law as the best possible redress.

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1 Opinion No. 50/2021 concerning Raman Pratasevich (Belarus), adopted by the Working Group on Arbitrary Detention at its ninety-second session, 15–19 November 2021, 9 December 2021, https://www.ohchr.org/sites/default/files/2021-12/A_HRC_WGAD_2021_50_BLR_AEV.pdf, para. 106.

2 Opinion No. 50/2021 concerning Raman Pratasevich (Belarus), adopted by the Working Group on Arbitrary Detention at its ninety-second session, 15–19 November 2021, 9 December 2021, https://www.ohchr.org/sites/default/files/2021-12/A_HRC_WGAD_2021_50_BLR_AEV.pdf, para. 107.

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Committee against Torture

The Committee against Torture, established by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and tasked with monitoring its fulfillment by the state parties, became engaged in assessing the Belarusian context. After Vital and Uladzislau Kuznechyk asked the Swedish embassy for political asylum in a bid to avoid repressions for participation in peaceful protests, the Committee acknowledged the threat of activists facing persecution and cruel, inhuman, or degrading treatment and urged Sweden to ensure their inviolability.

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Human Rights Committee

A crucial stage in the sequence of legal efforts of international bodies with regard to Belarus was marked by the Human Rights Committee’s decision to register the complaint of human rights organization “Respect-Protect-Fulfill,” lodged by 3 nationals of Ukraine and 3 nationals of Belarus, by virtue of which the interim measures were indicated for Belarus. The Committee requested Belarus “not to allow the use of its territory and infrastructure to conduct military operations, which have a direct impact and causes a real risk of ill-treatment and arbitrary deprivation of life.” The complaint was based on the reports by Ukrainian officials claiming that the complainants’ cities of residence were attacked from the territory of Belarus. The described procedural measure may well set the stage for further legal classification of Belarusian authorities’ actions with regard to the war in Ukraine.

In addition, complaints registered related Belarus’ alleged violation of Articles 19 and 21 of the International Covenant on Civil and Political Rights, filed by the public organization “Legal Initiative” in defense of G.K. and A.M. in connection with the imposition of administrative responsibility for participating in a peaceful assembly in 2020.

Another recently registered complaint to the Committee was filed by Viktar Babaryka’s defenders on his behalf in February 2022. According to Dmitry Laevsky, the appeal was registered on 9 May 2022, meaning that the Committee recognized the compliance of the appeal with the admissibility criteria. The subject of the appeal included the alleged violations of Viktar Babaryka’s right to liberty and security, freedom of expression, the right to take part in public affairs and to be elected for public office, the right to effective remedy, the right to fair trial, and the freedom from dicrimination.

In July 2020, an appeal on behalf of Viktar Babaryka was already filed with the Committee. It related to the fact of his arrest and detention. The communication procedure with regard to the appeal has already been completed as well, and is pending consideration on the merits.

There are also a number of other complaints submitted to the Committee yet not registered.

An appeal, filed by the representatives of the human rights organization “Human Constanta,” relates to the recognition of the book by Igor Ilyash and political prisoner Katerina Andreeva “Belarusian Donbass” as extremist in accordance with the provisions of the Belarusian legislation on countering extremism. The applicant claims that his right to a fair trial, freedom of expression, as well as the right not to be subjected to discrimination prescribed by the Covenant were violated by the actions of the Belarusian authorities.

Several other complaints, filed by “Respect-Protect-Fulfill” are likewise pending registration, such as:

• The complaint in the case of S.L. and others against Belarus was filed by 2 employees of the “Naftan” plant, 1 employee of the Belarusian Railway, and 1 teacher, all fired from their jobs following their participation in the nationwide strike announced by Sviatlana Tsikhanouskaya in October 2021. The applicants request the Committee to assess the compliance of the measure taken against them with their right to freedom of expression, freedom of association with others for the protection of one’s interests, and the right to a fair trial.
• The complaint S.Ch. against Belarus, in which the applicant, a worker of “Belaruskali” OJSC, claims that firing him for participation in a strike is inconsistent with Articles 19 and 22 of the Covenant.
• The applicant in the case of E.L. v. Belarus alleged the violation of her right not to be subjected to arbitrary arrest, the right to freedom of peaceful assembly, the right to a fair trial, the right not to be discriminated on the basis of political beliefs as a result of sentencing her to 15-day administrative arrest and a fine for participating in 3 peaceful assemblies in August-September 2020 in Minsk.
• The complaint in the case of O.K. v. Belarus was based on the prosecution of the applicant for alleged participation in a peaceful assembly in January 2021 in Novopolotsk and imposition of a fine. The applicant denied participation in the assembly, referred to the lack of sufficient evidence and claimed that the Belarusian authorities violated her right not to be arbitrarily arrested, the right to freedom of peaceful assembly, and the right to a fair trial.
• Comparable circumstances underlie the complaint in the case of E.V. v. Belarus, in which the applicant refers to the violation of her right not to be subjected to arbitrary arrest, the right to a fair trial, the right to freedom of expression. The applicant was detained while walking down the street with red and white balloons to congratulate her daughter on her birthday and fined for participating in an “unauthorized public event”.
• The case of A.S. v. Belarus concerns the prosecution of the applicant for being featured in a video, calling on Belarusian citizens to participate in a survey on whether they want Lukashenka to start negotiations with proponents of democratic changes in Belarus. For participating in the video, the applicant was arrested for 15 days. In the complaint, the applicant stated that the Belarusian authorities violated his right not to be arbitrarily arrested, the right to a fair trial, the right to freedom of expression, the right to peaceful assembly, the right not to be discriminated on the basis of political beliefs.

Respect-Protect-Fulfill in social networks: Facebook and Instagram

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International Court of Justice

Following elections-related discourse, Belarus also appeared in the spotlight in connection with the Belarus-European Union border crisis when thousands of migrants were heading to the EU states from Minsk. In that connection, Lithuania looked into the possibility of taking legal action against Belarusian regime in the UN principal judicial body – the International Court of Justice – under the jurisdictional clause of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. No details of the further course of events are known.

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European Court of Human Rights

Although Belarus is not a member of the Council of Europe, the European Court of Human Rights (ECtHR) has still taken several decisions related to the situation in the country.

These decisions concerned the application of interim measures against Russia, according to which Russia should not extradite citizens of Belarus because there is a risk of torture in relation to them. Such cases include, for example, the case of Dmitry Podlobnikov, an activist and protest participant in Belarus [1], and Alyaksei Kudzin, an MMA fighter and also an activist in Belarus [2]. Interim measures were taken with respect to both of them, but despite this, Russia extradited the activists to Belarus. By adopting such decisions, one more human rights body has confirmed the existence of the threat of torture against political activists in Belarus.

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1 Perild (Media), Russia extradited Belarusian Dmitry Podlobnikov to his homeland, 10 January 2022.

2 Human Rights Centre Memorial, Russian authorities violated the UN Convention on Refugees in extraditing Alyaksei Kudzin, a citizen of Belarus, 27 July 2021.

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Instruments invoked to establish individual responsibility

International Criminal Court

The International Criminal Court (ICC) mechanism was attempted to be invoked by a number of non-governmental organizations requesting the ICC Prosecutor to investigate alleged crimes committed by Belarusian authorities. Recognizing the absence of jurisdiction of the Court on the ground of Belarus not participating in the Rome Statute, the filing stakeholders, with due account of the Myanmar/Bangladesh precedent, called for an investigation of crimes committed on the territory of Belarus’ neighboring countries. 

Earlier, in September 2020, the petition to launch an investigation was filed with the ICC by the Belarusians of the World and friends of the Belarusian people under the coordination of the Belarus-Canadian alliance and Vasilki Initiative of Belarusians in Toronto and signed by more than 8 thousand people. Apparently, the initiative was more of a public outcry demonstrating indignation and readiness to action rather than a formalized procedure capable of producing legal consequences.

Universal jurisdiction cases

One of the few procedures having the potential to result in establishing actual responsibility for the perpetrators are universal jurisdiction procedures. 

Having assumed the elements of the crime against humanity under the Lithuanian criminal code in the claim presented to the prosecution service, Lithuanian Prosecutor General launched a pre-trial investigation. The appeal was filed by a Belarusian citizen fleeing from Minsk to Vilnius due to political repressions and violence, committed by the representatives of the Belarusian Main Directorate for Combating Organized Crime and Corruption (GUBOPIK).

Frivolous violence of Belarusian law enforcement agencies became the subject of an investigation by the prosecutor’s office in Poland. The procedure concerned the arrest, beating, and torture of three Polish citizens, arrested in Minsk on 9 August 2020.

The notorious forced landing of the Ryanair plane, heading from Athens to Vilnius with Roman Protasevich and Sofia Sapega on board, also gave rise to an investigation by Prosecutor’s offices both in Poland and Lithuania. 

In Germany, on 5 May 2021, ten Belarusians brought the case under universal jurisdiction over crimes against humanity, committed by Belarusian authorities during a crackdown on anti-government protests, with Germany’s federal prosecutor. The claim was filed by 4 German lawyers on behalf of 10 Belarusian citizens and referred to instances of “spurious arrests, torture, and abuse” occurring during their detention in Minsk. At the end of the month, it was reported that the Prosecutor’s office did not reply in the positive to the appeal but set up an “observation process” over excessive brutality of Belarusian police, which is a stage preceding potential formal investigation.