BELARUS: ARBITRARY DETENTION OF BELARUSIAN HUMAN RIGHTS DEFENDER

The International League Against Arbitrary Detention urges the Government of Belarus to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 54/2024 concerning Maria Rabkova, asking the Government to immediately and unconditionally release them and to accord them an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Maria Rabkova: Opinion No. 54/2024.

ARREST OF A HUMAN RIGHTS DEFENDER

Maria Rabkova is a citizen of Belarus born in 1995. She is a human rights defender and a coordinator of the Volunteer Service at the Human Rights Centre “Viasna”, a leading human rights organization in Belarus, liquidated in 2003 purusant to an order of the Supreme Court of Belarus, which was found to be in violation of article 22 of the Covenant according to the Human Rights Committee.

She was arrested and assaulted on 17 September 2020 as she was walking home by masked officers of the Main Directorate for Combating Organized Crime and Corruption of the Ministry of the Interior. They also searched and seized computers and telephones in her home. She was held for 72 hours and interrogated at the temporary detention facility of the Main Directorate of Internal Affairs of Minsk City Executive Committee. She was officially placed in pre-trial detention on 19 September after a decision of the investigator and the authorization of the prosecutor and transferred to Pretrial Detention Centre No. 1 in Minsk, where she was held until 13 March 2023. All her appeals against the decisions to extend her pretrial detention were rejected after being held in closed-door sessions and family visit were denied.

On 20 September 2020, a pro-government Telegram channel published a video suggesting that she was an anarchist who trained others in vandalism. In 2021, the Ministry of the Interior released a statement alleging that Ms. Rabkova had publicly called for violence against the authorities and committed so-called acts of direct action. An article in State-owned media was published that same year mentioning Ms. Rabkova as an anarchist. She was firstly formally charged on 23 September 2020 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”. More charges were added in February and November 2021.

Her lawyer and others involved in this case were allegedly forced to sign non-disclosure agreement and two lawyers were arrested for not respecting these agreements in September 2022.

Mrs. Rabkova's closed trial started on 25 April 2022 and she was found guilty on 6 September 2022 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. She 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 confirmed the verdict but reduced her sentence by three months.

The Working Group transmitted the allegations to the Government of Belarus, which responded on 1 July 2024.

ARRESTED WITHOUT AN ADEQUATE WARRANT, DENIED PROMPT APPEARANCE BEFORE A JUDGE AND SUBJECTED TO PRE-TRIAL DETENTION WITHOUT AN INDIVIDUALIZED DETERMINATION

According to the source, Ms. Rabkova was showed an arrest warrant at the moment of her arrest; however, the warrant did not specify which alleged acts by Ms. Rabkova constituted corpus delicti. In that regard, the Working Group recalled the jurisprudence of the Human Rights Committee stating that an arrest warrant must invoke legal basis and apply it to the circumstances of the case. The Government did not provide any additional information on this matter, so the Working Group considered that Ms. Rabkova’s situation was in violation of article 9 (2) of the Covenant as she was arrested without any legal basis due to the lack of factual information regarding her arrest.

Moreover, the source submitted that Ms. Rabkova was not presented to a judge until 18 months after her arrest. The Working Group recalled that prompt presentation before a judge is mandatory and that the delay is set at 48 hours by the Human Rights Committee. Therefore, the Working Group found a violation of article 9 (3) of the Covenant given that she was placed outside the protection of the law.

According to the source, Ms. Rabkova was not allowed to to appear in person at hearings held to review the legality of her detention. Once again, the Working Group recalled the jurisprudence of the Human Rights Committee about the physical presence of detainees at hearings and the fact that it serves as a safeguard for the right to security of person. Based on these allegations of the source which were not refuted by the Government, the Working Group concluded to a violation of article 9 (4) of the Covenant.

Lastly, the pre-trial detention of Ms. Rabkova was allegedly extended more than seven times by the prosecution. The Working Group recalled its own jurisprudence and the one of other UN bodies about the exceptional status of pre-trial detention and that it must be based on an individualized determination. As the Government failed to justify Ms. Rabkova’s pre-trial detention, her pre-trial detention lacked an individualized determination which the Working Group found to be in violation of article 9 (3) of the Covenant.

Hence, the Working Group found that the arrest and detention of Ms. Rabkova lacked a legal basis, thus, her deprivation of liberty qualified as arbitrary under category I.

DETAINED FOR EXERCISING HER RIGHT TO FREEDOM OF OPINION AND EXPRESSION

According to the source, Ms. Rabkova was detained for exercising her right to freedom of expression and opinion as protected by articles 19 and 22 of the Covenant due to her connection to the anarchist movement and her human rights defender status.

The source pointed out that Ms. Rabkova was convicted on multiple counts under articles 342 and 361 of the Criminal Code which are linked to her freedom of speech and freedom of conscience. The Working Group recalled that the right to freedom of expression and opinion of human rights activists includes the right to criticize or openly and publicly evaluate their Government without fear of interference or punishment as recognized by the Covenant. Although permissible restrictions exist under the protection of rights of others or of national security, the Venice Commission already concluded that article 342 of the Criminal Code criminalized group behaviour of a non-violent character relating to a mass demonstration. Due to the lack of new elements presented by the Government of Belarus and the absence of evidence suggesting permissible restrictions of Ms. Rabkova's right, the Working Group found the situation in violation of articles 19 and 20 of the Universal Declaration of Human Rights and articles 19 and 22 of the Covenant.

In light of the above, the Working Group concluded that Ms. Rabkova’s detention was arbitrary within the meaning of Category II.

NO TRIAL BEFORE COMPETENT, IMPARTIAL TRIBUNAL, NO ACCESS TO LEGAL ASSISTANCE OF CHOICE, TIME OR FACILITIES TO PREPARE THE DEFENSE

The source submitted that Ms. Rabkova was not allowed to communicate with a lawyer for the first two days of her detention. In that regard, the Working Group recalled that access to a lawyer must be granted promptly and that any laws trying to undermine this right are contrary to international norms. As the Government failed to address this concern, the Working Group considered that the late access to legal assistance amounted to a violation of her right to communicate with counsel of her own under article 14 (3) (b) and (d) of the Covenant and articles 10 and 11 of the Universal Declaration of Human Rights.

According to the source, Ms. Rabkova’s was not offered enough time to prepare her defense as the 20 days delay to consult the 160 volumes of the file was too little and copies were forbidden. The Working Group pointed out that the Covenant stipulates that, to prepare their defense, access to arguments and findings are mandatory for a sufficient amount of time and resources, evaluated on a case-by-case basis.  The Government once again failed to address this concern. Thus, the Working Group found that Ms. Rabkova’s right to adequate time and facilities for the preparation of her defense as guaranteed in article 14  (3) (b) of the Covenant was violated.

Furthermore, the source submitted that public statements were made regarding Ms. Rabkova, which portrayed her as guilty of various crimes. Moreover, the Working Group referred 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, also denying defendants their right to the presumption of innocence. Thus the Working Group found that Ms. Rabkova’s right to a fair hearing by an independent and impartial tribunal and to the presumption of innocence, as guaranteed in article 14 (1) and (2) of the Covenant and articles 10 and 11 (1) of the Universal Declaration of Human Rights, were violated.

According to the source, Ms. Rabkova was convicted during a trial under closed session. In that regard, the Working Group noted that close trial is an exceptional measure and that no reasons were given to justify this decision by the Government, in violation of Ms. Rabkova’s right to a fair and public hearing, as guaranteed in article 14 (1) and (2) of the Covenant and article 10 of the Universal Declaration of Human Rights.

Therefore, considering all the above, the Working Group found that the violation of the right to a fair trial and due process of Ms. Rabkova had been of such gravity as to render her deprivation of liberty arbitrary under category III.

DETENTION BASED ON POLITICAL AND OTHER OPINIONS

The source submitted that Ms. Rabkova’s political opinions and status were at the centre of her case. It claimed that there was an emblematic pattern of the misuse of the judiciary to justify repercussions against journalists, publishers, human rights defenders and political opponents in Belarus and that Ms. Rabkova was arrested to be prevented from her activists’ activities. As it welcomed the source's unrefuted submissions, the Working Group considered that Ms. Rabkova’s deprivation of liberty was on the ground of her political opinions and activism, which constituted a violation of article 26 the Covenant.

Hence, the Working Group found Ms. Rabkova’s deprivation of liberty to be arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Maria Rabkova was arbitrary and fell under categories I, II, III and V because her deprivation of liberty was 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.

The Working Group recommended that the Government of Belarus take the necessary steps to remedy the situation of Maria Rabkova without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release her immediately and accord her an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Maria Rabkova and to take appropriate measures. Lastly, it requested the Government to bring its laws into conformity with the recommendations of the opinion.