Landmark UN decision: Ales Bialiatski's detention arbitrary, release and compensation requested

BELARUS: Landmark UN decision: AlesBialiatski's detention arbitrary, release and compensation requested

Paris-Geneva, December 21, 2012. At its 64th session, theUnited Nations (UN) Working Group on Arbitrary Detention (WGAD) adopteddecision A/HRC/WGAD/2012/39, published on November 23, in which it found thatthe detention of Mr. Ales Bialiatski, Presidentof the Human Rights Centre (HRC) “Viasna” and FIDH Vice-President, wasarbitrary, “being in contraventionof article 20, paragraph 1, of the Universal Declaration on Human Rights [UDHR]and article 22 of the International Covenant on Civil and Political Rights” (ICCPR). The WGAD emphasized that “theadequate remedy is to release Mr. Bialatski and accord him an enforceable rightto compensation pursuant to article 9, paragraph 5, of the [ICCPR]”. Thisdecision follows a communication which had been addressed by the Observatory tothe WGAD on April 2, 2012 to contest the legality of Mr. Bialiatski'sdetention.

In its decision, the WGAD highlighted that “central to the case, asstated by the source, [were] Mr. Bialatski’s claims that the funds received ina bank account abroad were part of the fundraising for the non-governmentalorganization, Viasna, that the Government had deregistered and taken steps todissolve”. “The Working Group also emphasize[d] that criminal liabilitycannot be based on prior government action to deregister and dissolve thenon-governmental organization Viasna, in violation of article 20, paragraph 1,of the [UDHR] and Article 22 of the [ICCPR]”.

The WGAD further underlined that “the criminal law provisions inBelarus applied to Mr. Bialatski’s case [did] not list human rights-relatedactivities among the purposes that allow tax exemption” and that Statesparties to the ICCPR were “not only under a negative obligation not tointerfere with the founding of associations or their activities, but also undera positive obligation to ensure and provide […] measures such as facilitatingassociations' tasks by public funding or allowing tax exemptions for fundingreceived from outside the country”.

The WGAD also stated that the “fund raising undertaken by Mr.Bialatski for the purposes of allowing the very existence of Viasna andcontinuation of its activities [was] in conformity with […] articles 20,paragraph 1 of the UDHR and 22 of the ICCPR”, and concluded that “thecriminal provisions as applied to Mr. Bialatski [did] not take account of theaforementioned standards” and that Belarus was therefore in breach of itsinternational obligations.

Eventually, the WGAD found Mr. Bialiatski's detention was arbitrary asit resulted from the exercise of his universally recognised human rights, andthat it fell within category II of the arbitrary detention categories referredto by the Working Group when considering the cases submitted to it (i.e. whenthe deprivation of liberty results from the exercise of the rights or freedomsguaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the UDHR and by articles12, 18, 19, 21, 22, 25, 26 and 27 of the ICCPR).

The WGAD added that “when there are claims of human rights violations[...], including a pattern of harassment […], domestic authoritieshave a duty to investigate, and the inquiry must be independent, both institutionallyand in practice, and prompt”. The Group stressedthat “there [was] no support for such a review being undertaken by thedomestic authorities in the present case”.

“The decision of the WGAD is a landmark victory as it recognisesthat the detention of Ales Bialiatski is arbitrary under international law, andimplements the right to funding for independent human rights NGOs” FIDHPresident Souhayr Belhassen said today. “Ales Bialiatski must be releasedimmediately, Viasna must not be subject to further harassment” sheadded.

For OMCT Secretary General Gerald Staberock “this decision mustlead to an improvement of the situation of human rights defenders and NGOs, inBelarus and beyond”.

In August 2011, Mr. Bialiatski was arrested and charged with “concealmentof profits on an especially large scale” under Article 243, part 2, of theCriminal Code of Belarus. On November 24, after almost four months of pre-trialdetention, the Minsk Pervomaiski District Court sentenced him to four and ahalf years of imprisonment under strict regime conditions, confiscation ofproperty - including the premises used for Viasna's offices - and to a fine of757,526,717 Belarusian Rubles (approximately 70,000 Euros). On January 24,2012, the Minsk City Court confirmed the sentence on appeal, after all themotions filed by Mr. Bialiatski's lawyers were rejected. On March 29, 2012, thesame court issued a new decision, ordering him to pay an extra amount of140,366,151 rubles (nearly 12,700 Euros) in penalty in addition to the previousfine which had already been paid in January 2012, due to alleged late paymentof arrears.

In making its decision, the WGAD took into account the communication itreceived from the Observatory, but also the reply of the Republic of Belarus,which alleged that the detention and sentencing of Mr. Bialiatski was legalaccording to the national legislation and did not violate its internationalobligations. The WGAD further took into consideration Communication No.1296/2004 of the UN Committee on Human Rights, which concluded that thedissolution of Viasna violated its freedom of association as guaranteed byArticle 22 of the ICCPR, and quoted the Special Rapporteur on the Situation ofHuman Rights Defenders, Ms. Margaret Sekaggya, which addressed the case in herreport of February 24, 2010, as well as the report of the UN High Commissionerfor Human Rights on the situation of human rights in Belarus (dated April 10,2012), which found that the pressures on the HRC Viasna and its President wereviolating Article 22 of the ICCPR.

The decision of the WGAD is based on international law and was issued byan international monitoring body composed of independent experts, according toa contradictory procedure with the Republic of Belarus. Such decision will berelied upon to call for the release of Mr. Ales Bialiatski.

For more information on thesituation of Mr. Ales Bialiatski, please see: http://freeales.fidh.net/ and the previous Urgent Interventionsissued by the Observatory.

For more information,please contact:

· FIDH: Audrey Couprie /Arthur Manet: + 33 1 43 55 25 18

· OMCT: Delphine Reculeau:+ 41 22 809 49 39