The International League Against Arbitrary Detention urges the Government of Belarus to take all necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 64/2023 concerning Vitali Braginiec asking the Government of Belarus to immediately release and accord him enforceable rights to compensation and other reparations in accordance with international law.
Read the full WGAD Opinion concerning Vitali Braginiec (Belarus): Opinion No. 64/2023.
A HUMAN RIGHTS DEFENDERS' LAWYER ARBITRARILY ARRESTED AND DETAINED
Vitali Braginiec is a national of Belarus born in 1973, and a lawyer at the Minsk Regional Bar Association. The source noted that Mr. Braginiec's detention case is to be understood within the broader context of arbitrary detentions in Belarus of lawyers who represented political opponents of the current regime or dissenting voices. Indeed, prior to his arrest, Mr. Braginiec was representing human rights defenders, political prisoners, philosophers and lawyers who were protesting the rigging of the results of the presidential election of 9 August 2020.
On 23 May 2022, Mr. Braginiec was arrested at his home by forces from the Department of State Security Committee for Minsk and the Minsk Region. After being escorted to the local police department, he was charged with disobedience of a lawful order for having refused to follow officers to a police building and for other defiant behaviour and shouting. Two days later, Mr. Braginiec was found guilty and sentenced to 15 days of administrative detention at the Minsk City Detention Centre, which was subsequently renewed once.
In June 2022, Mr. Braginiec was transferred to the pre-trial detention centre as criminal charges were brought against him. In September 2022, Mr. Braginiec was allegedly found to be a part of the “Belarusian advocates” Telegram chatroom which the Belarusian Government considered to be an “extremist formation”. In January 2023, it became known that Mr. Braginiec was charged with committing different crimes, including inciting enmity or discord, harming national security, taking part in extremist formations and violating public order.
On 2 February 2023, Mr. Braginiec was found guilty of all charges by the Minsk City Court and sentenced to 8 years in prison in a strict regime penal colony. Though an appeal was lodged, it was dismissed by the Supreme Court on 5 May 2023. The Government was given the opportunity to contest these allegations, which it did not.
HELD IN ARBITRARY ADMINISTRATIVE AND PRE-TRIAL DETENTIONS
First, following his arrest, Mr. Braginiec was held in two consecutive administrative detentions, lasting 15 days each, following which he was immediately detained based on several criminal charges brought against him. In this light, the Working Group considered that the two administrative detentions of Mr. Braginiec were in fact pre-trial detention in a criminal case. In these circumstances, the procedural rights of Mr. Braginiec as a suspect were violated, as such violating his rights to security of person and not to be arbitrarily detained, enshrined in articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the Covenant.
Besides, following his arrest, Mr. Braginiec was only informed of the administrative charges against him, not the criminal ones. Considering the above-mentioned finding that his administrative detentions constituted a part of his criminal detention, the Working Group found that his right to be promptly informed of the charges, enshrined in article 9 (2) of the Covenant, was violated as well.
Lastly, Mr. Braginiec was held in pre-trial detention for 10 months, from May 2022 to February 2023, and without alternative preventive measures being examined. The Working Group recalled that pre-trial detention should be exceptional, and thus found this situation in violation of article 9 (3) of the Covenant.
Therefore, considering all the above, the Working Group concluded that the arrest and detention of Mr. Braginiec were arbitrary under category I.
DETAINED FOR EXERCISING HIS RIGHTS TO FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY
According to the source, the provisions of the Criminal Code used to charge Mr. Braginiec would often be used to prosecute critical voices. The Working Group notably recalled previous UN findings concerning articles 342 and 361-1 of the Criminal Code, the former being used to criminalise group's behaviour of a non-violent character relating to mass demonstrations, and the latter to restrict the exercise of fundamental freedoms. Considering this in light of the context of Mr. Braginiec's arrest, as well as his uncontested peaceful behaviour, the Working Group considered that the reason for Mr. Braginiec’s arrest and detention was in fact the exercise of his rights of freedom of expression and freedom of peaceful assembly, in violation of articles 19 and 20 of the Universal Declaration of Human Rights and articles 19 and 21 of the Covenant.
The Working Group therefore concluded that the detention of Mr. Braginiec was arbitrary under category II.
MULTIPLE VIOLATIONS OF HIS RIGHT TO A FAIR TRIAL
First of all, by placing Mr. Braginiec in administrative detention to ensure his availability for questioning as a criminal suspect, the authorities failed to ensure his procedural rights as a criminal suspect. As established by the Working Group, this notably included his right to get a defense guaranteed by article 14 (3) (b) of the Covenant, which was thus violated.
Besides, the Working Group recalled previous UN findings according to which the independence of judges has been systematically restricted in Belarus due to the interferences from the General Prosecutor, in charge of implementing the executive's repressive policy of harshly punishing dissent. This has been increasingly the case since the 2020 Presidential elections. Additionally, the authorities closed Mr. Braginiec’s trial to the public and the media. In this light, considering the similarities of this case with its recent jurisprudence on Belarus and the lack of response from the Government, the Working Group considered that Mr. Braginiec's rights to be tried by an independent and impartial tribunal and to have a public hearing, guaranteed by article 10 of the Universal Declaration of Human Rights and article 14 (1) of the Covenant, had been violated.
Henceforth, the Working Group concluded that the violations of Mr. Braginiec’s right to a fair trial were of such gravity as to render his detention arbitrary under category III.
DISCRIMINATED FOR HIS POLITICAL VIEWS AND PROFESSIONAL ACTIVITY AS A LAWYER
The Working Group recalled previous UN findings according to which, prior to and following the 2020 Presidential elections, human rights have been restricted in Belarus. In this context, numerous opposition or dissenting voices against the Government have been arrested and subjected to arbitrary detention, and lawyers working on politically sensitive or in relation to human rights violation cases have been persecuted. In this light, the Working Group found that the detention of Mr. Braginiec followed a clear pattern of discrimination against individuals who expressed certain political opinions, as well as against lawyers representing such individuals. Thus, the Working Group considered that Mr. Braginiec's detention resulted from his political views and status as lawyer for the opposition, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2(1) and 26 of the Covenant.
As a consequence, the Working Group established that his detention was arbitrary under category V.
CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION
In the light of the foregoing, the UN Working Group Against Arbitrary Detention considered that the deprivation of liberty of Vitali Braginiec was arbitrary under categories I, II, III and V as it contravenes Articles 2, 3, 7, 9, 10, 19 and 20 of the Universal Declaration of Human Rights and Articles 2, 9, 14, 19, 21 and 26 of the International Covenant on Civil and Political Rights.
The Working Group considered that, taking into account all the circumstances of the case, the appropriate remedy would be to immediately release him and accord him an enforceable right to compensation and other reparations, in accordance with international law.
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