King's Student Law Review

Names noted in literature are presented as written, but efforts have been made elsewhere to indicate the correct Belarusian spelling or transliteration, as Russian versions are often used.

Introduction

Internationally-recognised indices of democracy and freedom give a pessimistic picture of the freedom of the Eastern European state of Belarus. Freedom House rates Belarus as convincingly ‘Not Free’[i]. The Economist Democracy Index of 2011[ii] puts Belarus at 139 in a ranked listing of worldwide governments, ahead of China and Zimbabwe, but behind comparable countries in Central and Eastern Europe, particularly the European Union nations to its west and north, but also neighbouring Ukraine (79, which regressed a category in the EIU typography[iii]) and Russia (117).

Alyaksandar Lukashenko has been president of Belarus since 1994[iv]. Regular elections are held, but electoral fraud[v] and restrictions on freedom of speech mean that they cannot be considered to represent a meaningful choice. Three of the unsuccessful candidates in the 2010 elections, Andrei Sannikau[vi], Mikalaj Statkievič[vii] and Dźmitry Us, have been jailed for terms ranging from four to six years (Us[viii] and Sannikau have since been released[ix]: ‘With Lukashenko also fearing the country may be barred from hosting the Ice Hockey World Champioship in 2014, it is clear he is in a mood to compromise’). Lukashenko used similar tactics after the 2006 elections[x].

Ales’ Bialiatski[xi] (Алесь Бяляцкі (Belarusian)/Беляцкий (Russian)) became the chairman of Viasna in 1996, a group that was stripped of its important registration as a political group in 2003. The main charges against Bialiatski were that he committed ‘serious tax evasion’[xii] by not paying what he owed on funds held by human rights groups in Poland and Lithuania. Valiantsin Stepanovich claims that the authorities found it more advantageous to use a criminal code to prosecute Bialiatski, rather than the notorious Article 193.1 of the Belarusian penal code, a clearly political article which ‘criminalises activities “on behalf of an unregistered organisation”’[xiii]. International aid was being paid to victims of human rights violations and tax was not allegedly being paid on these funds[xiv]. Bialiatski was sentenced to four and a half years in prison in November 2011[xv].

Examining Belarus’ international obligations.

Although it is not yet a party to the Disability Rights Convention or the Convention on Enforced Disappearances, Belarus is a signatory to most of the major UN Conventions, including optional protocols to the Convention on the Rights of the Child, the ICCPR (at least the first optional protocols), and the Convention for the Elimination of All Discrimination Against Women[xvi]. Belarus is, however, not a signatory to the ECHR. This suggests that the use of Article 193.1 to prosecute Bialiatski would have been a significant problem as regards Belarus’ relationship to international treaties.

The Universal Periodic Review (UPR) system covered Belarus in 2010[xvii]. Analysing its reports proves illuminating on how much is apparently hidden from international scrutiny. The state under review makes a report and an interactive dialogue is held with members of the Human Rights Council as representatives of different monitoring states. As with the treaty bodies, however, the reports made by the country[xviii] can often be mendacious. The Belarusian report gives significant priority to social and economic rights and it is certainly good to see a country give importance to second generation rights. However, it may suggest that civil and political rights are not taken seriously by the government, and that they prefer to dwell on the achievements of the ‘lowest [unemployment rates] in Eastern Europe’[xix]. Far down the list, after women’s rights (section J), children’s rights (section I) and ‘combating the modern slave trade’ (K), comes section O, the ‘right to a fair public hearing by a competent, independent and impartial court’ and section P, the ‘right to freedom of expression’. In a country that has recently jailed three opposition presidential candidates, this is difficult to read without wondering who would actually be convinced by this rhetoric. It shows immediately the problems with the UPR system. A state can write a report that lies and confuses, without any particular compulsion to do anything about it, unless a hockey tournament is at stake.

The stakeholder reports thus make slightly more interesting reading. Immediately, NGOs are calling for an enforcement of compliance with the ICCPR responsibilities, while noting that Belarus has a good record on children’s rights[xx]. Significantly, the partiality of the judiciary is noted in B.3.29[xxi], which may indicate a propensity to abuse the criminal justice system against high profile detainees. Despite mentioning the disappearances of prominent dissidents in B.2.22[xxii], not much mention is made of other individuals or repressed groups. The timidity of the UPR documents reflects perhaps a reluctance of the UN to publicly admonish violating states. This is reasonable in order to encourage participation and compliance, but does not obtain justice for dissidents prosecuted under phoney charges or enforcement of genuine international human rights standards.

What does this suggest about the way Belarus handles its dissidents?

Perhaps the decision not to use Article 193.1 in the case of Bialiatski is a step forward – but only so far as the state recognising that overt political trials would go against international obligations. Belarus as a former republic of the Soviet Union might still share some of the USSR’s attitude towards dissent, though it is important to note that the former Communist party suffers from the same political repression as other parties[xxiii]. Louise Shelley, writing about the USSR, identifies three main types of political trials in dictatorships: ‘the show trial, human rights abuse trial, and the corruption trial’[xxiv] – or, in this situation, the trial for criminal proceedings against dissidents to mask non-compliance with fundamental principles of human rights law. This third type of trial is the closest to the use of criminal proceeding against dissidents rather than using political articles such as 193.1 to openly prosecute what the government considers sedition.

Charges of homosexuality, which was criminalised in the USSR, were used against Soviet dissidents[xxv]. Famously, this tactic was also used against Anwar Ibrahim, deputy to former president Dr Mahathir Mohamad and now main opposition leader. Anwar was recently acquitted a second time of what were generally considered politically motivated charges[xxvi]. Since it is no longer a punishable offence to be gay in Belarus[xxvii], other methods are used. One example, flagged as a politically motivated arrest, taken from a long list in the 2008 Congress Report is the case of ‘entrepreneur’ activist Sergey Parsyukevich, ‘jailed…for allegedly violating new business regulations and attacking a police officer’ while in detention[xxviii]. Shelley goes on to state that these trials are characteristic of a state apparatus trying to ‘[consolidate] power – not those of a mature political state’[xxix]. Belarus certainly is not a mature political state that can cope with pluralist democracy and respect for opposition.

With the establishment of yet another mechanism for human rights monitoring (as opposed to enforcement), the pressure on states to verbally conform to international treaties while continuing to prosecute and persecute dissent at home is only increasing. The international community thus needs to learn to distinguish the politically motivated abuse of criminal justice from ordinary prosecutions. Although Joanna Harrington criticises the UPR process for a lack of substantive, contextual analysis of supposed violations[xxx], the UN is certainly now taking a pro-active approach to standard-setting through the UPR rather than relying on periodic reports to treaty bodies, often delayed or not submitted at all. There may be a possibility, therefore, for the development of protocols to monitor criminal proceedings within a state, to make sure the heads of authoritarian regimes cannot simply dispose of dissent while claiming to be upholding the rights established in the treaties they have signed and ratified.

Louise Stanley – University of Reading