RUSSIAN FEDERATION AND BELARUS: ARBITRARY DETENTION OF ALEXEY MOSKALEV

The International League Against Arbitrary Detention urges the Governments of the Russian Federation and Belarus to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 76/2023 concerning Alexey Moskalev, asking the Governments of the Russian Federation and Belarus to immediately and unconditionally release Alexey Moskalev and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Alexey Moskalev (Russian Federation and Belarus): Opinion No. 76/2023.

RUSSIAN NATIONAL ARRESTED FOR ANTI-WAR STATEMENTS

M. Moskalev is a citizen of the Russian Federation, born in 1968. He usually resides in Yefremov, in the Tula region of Russia and he is the father of a 12-year-old minor child.

Mr. Moskalev first came to the authorities’ attention after his child drew an anti-war picture at school on 24 April 2022. The following day, Mr. Moskalev was found guilty of an administrative offense, punishing people discrediting the armed forces of the Russian Federation, under Article 20.3.3 of the Code of Administrative Offenses and was fined 32,000 rubles. On 27 December 2022, a criminal case was opened against him under Article 280.3 of the Criminal Code, often used together with the administrative offence to silence anti-war expression, for allegedly discrediting the Russian Armed Forces via social media posts.

On 30 December 2022, he was summoned to the Federal Security Service building, where he was reportedly subjected to beatings and other mistreatment. Fearing for his and his child's safety, he moved to another city. On 1 March 2023, he was arrested without a warrant in Uzlovaya, in the Tula Region. He was detained for a day before being placed under house arrest, while his child was sent to a state-run facility.

On 27 March 2023, Mr. Moskalev stood trial at the Yefremov Interdistrict Court. The following day, he was sentenced in absentia to two years in prison. On 30 March 2023, he was arrested in Minsk in Belarus, at the request of Russian authorities. While in detention, he was reportedly subjected to severe beatings, which caused lasting injuries, and was forced to sign a statement declaring he had no grievances against the security forces.

On 12 April 2023, Mr. Moskalev was extradited to Russia. He was initially held in pretrial detention in Smolensk under harsh conditions before being transferred to Tula. On 3 July 2023, his appeal was rejected, and the court upheld his conviction, imposing an additional two-year internet ban. He remains in detention and is awaiting transfer to a penal colony.

Meanwhile, his child remained in a state facility until 5 April 2023, after which he was placed in the care of a relative. On 20 April 2023, the Commission on Juvenile Affairs rejected an attempt to restrict Mr. Moskalev’s parental rights.

Despite the Working Group transmitting the allegations to the Governments of the Russian Federation and Belarus, they chose not to respond.

ARRESTED WITHOUT A WARRANT AND HELD INCOMMUNICADO

According to the source, Mr. Moskalev was arrested in the Russian Federation on 1 March 2023 without a warrant and without being informed of the reasons for his detention. The following day, he was placed under house arrest for 26 days, during which he was subjected to restrictive measures, including electronic monitoring and a prohibition on leaving his apartment. Furthermore, his minor child was forcibly taken from him and placed in a children’s home, despite an investigator’s prior decision allowing the child to remain with him. The Working Group considered that these facts established a clear violation of international legal protections and that his initial arrest violated article 9(1) of the Covenant and articles 3 and 9 of the Universal Declaration of Human Rights.

Moreover, the source stated that following his forcible transfer from Belarus to the Russian Federation on 12 April 2023, Mr. Moskalev’s whereabouts remained unknown until 3 May 2023, and he was denied any communication with his lawyer or family. During this period, he was unable to challenge the legality of his detention or seek legal assistance. The Working Group considered that the period during which he was held incommunicado, amounted to enforced disappearance and constitutes an aggravated form of arbitrary detention, in violation of articles 9(1), 9(3), and 9(4) of the Covenant, as well as articles 3 and 9 of the Universal Declaration of Human Rights. The denial of his right to judicial oversight and access to legal counsel further contravened article 9(4) of the Covenant.

Additionally, the Working Group accepted the source’s allegation that Belarusian authorities arrested Mr. Moskalev on 30 March 2023 without a warrant and subsequently subjected him to an irregular transfer to the Russian Federation on 12 April 2023, bypassing legal extradition procedures. It concluded that the failure to follow due process in his transfer violated article 9(1) of the Covenant and articles 3 and 9 of the Universal Declaration of Human Rights. Furthermore, the Working Group considered that his inability to challenge his detention before a court in Belarus violated article 9(4) of the Covenant and article 8 of the Universal Declaration of Human Rights.

Finally, the Working Group also found that Mr. Moskalev was denied access to legal counsel throughout his detention in both Belarus and the Russian Federation, in violation of article 14(3)(b) of the Covenant and articles 9 and 11 of the Universal Declaration of Human Rights.

Given the cumulative impact of these violations, the Working Group concluded that Mr. Moskalev’s deprivation of liberty lacked a legal basis and was therefore arbitrary under Category I.

ARBITRARILY DETAINED FOR EXERCISING HIS FREEDOM OF EXPRESSION

The source submitted that the Russian Federation violated Mr. Moskalev’s right to freedom of expression by arresting, detaining, prosecuting, and sentencing him to two years of imprisonment solely for his peaceful anti-war expressions. The Working Group recalled that article 19 of the Covenant and article 19 of the Universal Declaration of Human Rights guarantee the right to freedom of expression, which includes the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers. The Working Group has affirmed that this right extends to political opinions, including those critical of government policies.

While the right to freedom of expression may be subject to limitations under article 19 (3) of the Covenant and article 29 (2) of the Universal Declaration of Human Rights, such restrictions must be legitimate, necessary, and proportionate. The Working Group noted that the Human Rights Committee and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression have emphasized that certain forms of expression, including political debate and peaceful demonstrations, should never be restricted. In the absence of a substantive response from the Government of the Russian Federation and its failure to present any argument justifying the necessity or proportionality of the charges against him, the Working Group was of the opinion that the only plausible explanation for Mr. Moskalev’s arrest and detention was that he was being punished for exercising his right to freedom of expression.

Furthermore, the Working Group found that article 280.3 of the Criminal Code of the Russian Federation, under which Mr. Moskalev was convicted, was overly vague and broad. It established that the provision criminalized “actions aimed at discrediting” the Armed Forces of the Russian Federation, granting authorities unfettered discretion to penalize individuals for peaceful anti-war expressions. The Working Group had previously found that vague criminal provisions, such as those penalizing “false news” or “enemy propaganda,” violated the principle of legality, as laws must be formulated with sufficient precision to allow individuals to understand and regulate their conduct accordingly. Given the imprecise and expansive wording of article 280.3, the Working Group concluded that it did not qualify as lex certa and, therefore, could not serve as a legitimate legal basis for restricting freedom of expression.

The Working Group further accepted the source’s submission that the two years of imprisonment imposed on Mr. Moskalev were neither necessary nor proportionate. Under article 280.3, part 1, of the Criminal Code, individuals can face up to five years of deprivation of liberty for actions that pose no actual harm to public or private interests. The Working Group had previously determined that criminal sentences for offenses such as damaging a State’s reputation or weakening national morale were disproportionate. In this case, it was concluded that the punishment imposed on Mr. Moskalev for social media posts, which were initially investigated due to his child’s anti-war drawing at school, was an excessive response to peaceful expression.

For these reasons, the Working Group found that Mr. Moskalev’s deprivation of liberty was arbitrary under category II, as he was detained solely for exercising his right to freedom of expression.

In that light, the Working Group referred case to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and called upon the Government of the Russian Federation to repeal or amend article 280.3 of the Criminal Code to align with its international human rights obligations.

DENIED DUE PROCESS AND SUBJECTED TO EXTRAORDINARY RENDITION

The source submitted that the Belarusian authorities failed to uphold minimum international standards of due process in the arrest and transfer of Mr. Moskalev to the Russian Federation. In that regard, the Working Group has consistently affirmed that involuntary expulsion to a foreign State without a judicial hearing was incompatible with due process as international law establishes clear extradition procedures to ensure that individuals facing criminal proceedings in another country receive fair trial protections.

According to the source, no public extradition hearing was held before an independent and impartial tribunal in Belarus. Instead of following formal extradition channels, the Belarusian authorities carried out an irregular and informal transfer, constituting extraordinary rendition rather than extradition. The Working Group recalled that the practice of “renditions”, in which individuals are informally transferred between States based on negotiations between administrative authorities violated international law. It also confirmed that when a government circumvents procedural safeguards, particularly the right of the affected person to be heard, it shares responsibility for any ensuing arbitrary detention.

Furthermore, the source presented uncontested evidence that the Belarusian authorities transferred Mr. Moskalev to the Russian Federation without any apparent consideration of the risks he would face and that the Government of Belarus failed to assess the charges against him or determine whether he would receive a fair trial. In that regard, the Working Group emphasized that individuals must not be expelled to a country where they face a risk of serious human rights violations, including arbitrary detention, torture, or ill-treatment. Therefore, the Working Group found that actions of the Government of Belarus constituted a violation of the principle of non-refoulement.

In the absence of any response from the Government of Belarus rebutting these allegations, the Working Group concluded that the arrest and forcible transfer of Mr. Moskalev to the Russian Federation amounted to a denial of due process and rendered his detention arbitrary under category III.

DISCRIMINATED ON THE BASIS OF HIS POLITICAL OPINIONS

The source submitted that the detention of Mr. Moskalev was based on his anti-war political opinion, rendering his deprivation of liberty discriminatory. The Working Group reiterated that imprisonment for expressing anti-war sentiments using laws designed specifically to target those who criticize the Russian Government and Armed Forces regarding the armed conflict in Ukraine violated the international obligation to uphold non-discrimination on the basis of political beliefs.

As established in the Working Group’s analysis under category II, Mr. Moskalev’s detention resulted from his peaceful exercise of fundamental rights under international law. The Working Group recalled that when an individual is deprived of liberty for exercising civil and political rights, there is a strong presumption of discrimination based on political or other opinions.

The source further submitted that Mr. Moskalev’s persecution began following an anti-war drawing by his minor child during a school art lesson on 24 April 2022, depicting the flags of the Russian Federation and Ukraine alongside the inscriptions “No to war” and “Glory to Ukraine”. The following day, on 25 April 2022, Russian authorities convicted Mr. Moskalev of an administrative offence under article 20.3.3 of the Code of Administrative Offences and imposed a fine of 32,000 rubles.

Given the prima facie credible and uncontested evidence presented by the source, the Working Group found that Mr. Moskalev was deprived of his liberty on discriminatory grounds based on his political opinion. His detention violated articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant, rendering it arbitrary under category V.

CONCLUSIONS OF THE UNITED NATIONS WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Alexey Moskalev was arbitrary and fell under categories I, II, III and V because the deprivation of liberty of Alexey Moskalev was in contravention ofarticles 2, 3, 7, 8, 9, 19 and 29 of the Universal Declaration of Human Rights articles, and articles 2, 9, 19 and 26 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Governments of Russian Federation and Belarus take the steps necessary to remedy the situation of Alexey Moskalev 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 him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged both Governments to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Moskalev and to take appropriate measures against those responsible for the violation of his rights.