Paris-Geneva, December 21, 2012.
At its 64th session, the United Nations (UN) Working Group on Arbitrary Detention (WGAD) adopted decision A/HRC/WGAD/2012/39, published on November 23, in which it found that the detention of Mr. Ales Bialiatski, President of the Human Rights Centre (HRC) “Viasna” and FIDH Vice-President, was arbitrary, “being in contravention of 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 “the adequate remedy is to release Mr. Bialatski and accord him an enforceable right to compensation pursuant to article 9, paragraph 5, of the [ICCPR]”. This decision follows a communication which had been addressed by the Observatory to the WGAD on April 2, 2012 to contest the legality of Mr. Bialiatski’s detention.
In its decision, the WGAD highlighted that “central to the case, as stated by the source, [were] Mr. Bialatski’s claims that the funds received in a bank account abroad were part of the fundraising for the non-governmental organization, Viasna, that the Government had de-registered and taken steps to dissolve”. “The Working Group also emphasize[d] that criminal liability cannot be based on prior government action to de-register and dissolve the non-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 in Belarus applied to Mr. Bialatski’s case [did] not list human rights-related activities among the purposes that allow tax exemption” and that States parties to the ICCPR were “not only under a negative obligation not to interfere with the founding of associations or their activities, but also under a positive obligation to ensure and provide […] measures such as facilitating associations’ tasks by public funding or allowing tax exemptions for funding received 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 and continuation of its activities [was] in conformity with […] articles 20, paragraph 1 of the UDHR and 22 of the ICCPR”, and concluded that “the criminal provisions as applied to Mr. Bialatski [did] not take account of the aforementioned standards” and that Belarus was therefore in breach of its international obligations.
Eventually, the WGAD found Mr. Bialiatski’s detention was arbitrary as it resulted from the exercise of his universally recognised human rights, and that it fell within category II of the arbitrary detention categories referred to by the Working Group when considering the cases submitted to it (i.e. when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the UDHR and by articles 12, 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 authorities have a duty to investigate, and the inquiry must be independent, both institutionally and in practice, and prompt”. The Group stressed that “there [was] no support for such a review being undertaken by the domestic authorities in the present case”.
“The decision of the WGAD is a landmark victory as it recognises that the detention of Ales Bialiatski is arbitrary under international law, and implements the right to funding for independent human rights NGOs” FIDH President Souhayr Belhassen said today. “Ales Bialiatski must be released immediately, Viasna must not be subject to further harassment” she added.
For OMCT Secretary General Gerald Staberock “this decision must lead to an improvement of the situation of human rights defenders and NGOs, in Belarus and beyond”.
In August 2011, Mr. Bialiatski was arrested and charged with “concealment of profits on an especially large scale” under Article 243, part 2, of the Criminal Code of Belarus. On November 24, after almost four months of pre-trial detention, the Minsk Pervomaiski District Court sentenced him to four and a half years of imprisonment under strict regime conditions, confiscation of property – including the premises used for Viasna’s offices – and to a fine of 757,526,717 Belarusian Rubles (approximately 70,000 Euros). On January 24, 2012, the Minsk City Court confirmed the sentence on appeal, after all the motions filed by Mr. Bialiatski’s lawyers were rejected. On March 29, 2012, the same court issued a new decision, ordering him to pay an extra amount of 140,366,151 rubles (nearly 12,700 Euros) in penalty in addition to the previous fine which had already been paid in January 2012, due to alleged late payment of arrears.
In making its decision, the WGAD took into account the communication it received from the Observatory, but also the reply of the Republic of Belarus, which alleged that the detention and sentencing of Mr. Bialiatski was legal according to the national legislation and did not violate its international obligations. The WGAD further took into consideration Communication No. 1296/2004 of the UN Committee on Human Rights, which concluded that the dissolution of Viasna violated its freedom of association as guaranteed by Article 22 of the ICCPR, and quoted the Special Rapporteur on the Situation of Human Rights Defenders, Ms. Margaret Sekaggya, which addressed the case in her report of February 24, 2010, as well as the report of the UN High Commissioner for 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 were violating Article 22 of the ICCPR.
The decision of the WGAD is based on international law and was issued by an international monitoring body composed of independent experts, according to a contradictory procedure with the Republic of Belarus. Such decision will be relied upon to call for the release of Mr. Ales Bialiatski.