Observatory for the Protection of Human Rights Defenders Annual Report 2005 - Belarus

Restrictive legislation4

New law on "Public Associations"

On 1 August 2005, amendments to the Law on "Public Associations" of 4 October 1994 came into force after being signed on 22 July 2005 by the President of the Republic, Mr. Aleksandar Lukashenko. These amendments, drafted without any consultation with independent civil society, comprise the provisions of several decrees, regulations and customary laws already adopted or applied by the authorities in the past.

Registration of NGOs

The new amended law incorporates the provisions of several presidential decrees that stipulate in particular the prohibition of nonregistered civil society organisations (Article 7) and especially restrictive registration conditions. For example, an association wishing to apply for registration must provide the authorities with a list of its founding members as well as their full personal and professional addresses, the list of all members of the elected bodies of the organisation, within one month following the registration, and a document confirming the registered address of the organisation. This last condition is especially difficult to fulfil, as the State, the main landlord of premises, exerts great pressure on individuals to dissuade them from renting their offices to associations. As a consequence, they are finding it increasingly difficult to find premises and frequently have to set up their offices in the homes of their members.

In addition, the body responsible for examining registration applications from organisations is the Republican Commission for Registration. This commission, established in 1999 by presidential decree and whose members are appointed by the President of the Republic, must "give its opinion as to whether an association can be registered or not and send its conclusions to the authority responsible for processing the registration" (Article 14). This authority, in this case the Ministry of Justice or one of its local departments, decides on the basis of these conclusions.

Suspension of NGOs

The amended law provides that the activities of an organisation may be suspended by court decision for a period ranging from one to six months, following application to the court by the authorities responsible for the registration, when: the authorities have already issued a written warning to the organisation; the organisation has not remedied the violations relating to its activities or its structure within the time-limit notified to it; or where it has failed to advise the relevant authorities that it has remedied these violations (Article 28).

The law stipulates that the authorities can issue a written warning for every breach of the legislation, no matter what that might be. These written warnings may be appealed.

Dismantling of NGOs

The new law reiterates the former reasons for dismantling: when an organisation has committed acts aimed at the "violent change of the constitutional system", "propaganda for war" or "inciting social, national, religious or racial hatred"; when an organisation has violated a legal provision after receiving a written warning in the same year; or when, on the registration of the organisation, its founding members have perpetrated serious or repeated violations of a legal provision – which is in particular a repetition of Article 57 of the Civil Code of Belarus, on the basis of which many NGOs were wound up by court over the last few years.

The law also adds other reasons for dismantling an organisation when: its composition or its affiliation do not comply with the conditions stipulated by the law; the organisation fails to remedy the violations leading to its suspension within the given time-limit; the organisation commits a breach of the law on public meetings or on the use of foreign funds.

Control over the activities and funding of NGOs

According to the law, organisations must provide an exhaustive annual report on their activities, their members, their possible affiliations to international NGOs and on events organised over the year.

In addition, Article 6 stipulates that "the involvement of State organs or officials in the activities of civil societies [...] is prohibited, except in cases stipulated by the law". Article 24 of the law, however, gives the authorities responsible for the registration of organisations the right to participate in their demonstrations, to ask for and receive information about their activities and to "familiarise themselves" with their documents and resolutions. Organisations must also inform these same authorities about any meeting of their directors, at least seven days in advance, and also about any change in the composition of their elected organs.

Furthermore, Article 25 provides that the economic and financial activity of the organisation is controlled by State organs or other State organisations within the limits on their competence, without however specifying what these bodies are.

Finally, with regard to the receipt of funds, the new law is particularly vague: indeed, apart from sums from membership fees and possible business dealings, associations can only receive funds from "other sources of income not prohibited by law".

Restrictive amendments to the Criminal Code5

On 23 November 2005, Mr. Lukashenko submitted to the Lower House of Parliament, as a matter of urgency, a series of extremely restrictive amendments to the Criminal Code (adopted in 1960), regarding freedoms of association, assembly and expression.

After they were passed by Parliament on 8 December 2005, Mr. Lukashenko proceeded to sign them on 13 December 2005. They came into force on 30 December 2005.

Criminalisation of human rights defenders' activities

These amendments to the Criminal Code criminalise the organisation for any activity carried out by a suspended or dismantled organisation. Such activities may be punished by a fine or a six-month prison sentence; in the most serious cases (for which there is no definition), these sentences can be up to two years of "restriction of freedom"6 (Article 193-1).

In addition, any person offering training or any other type of education aimed at participating in "mass activities", or who finances these activities, faces a sentence of up to six months in prison, or a "restriction of freedom" for three years (Article 293). Any person offering training or any other type of education aimed at participating in a "group activity causing serious disturbance to the public order", or who finances or in any other way supports such activities, may be sentenced to a maximum of six months' imprisonment or a "restriction of freedom" for a period of three years (Article 342). However, there is no clear definition of the "mass" or "group" activities.

Finally, persons suspected of acts of "terrorism" or "vandalism", concepts that are not defined in the text, may be detained for ten days without charge.

The particularly vague meaning of these terms leads one to fear that these provisions will be arbitrarily used.

Restrictions on freedoms of information and expression

By virtue of these amendments, the transmission of false information to a foreign State or an international organisation concerning the Belarusian political, economic, military or international situation, the judicial situation of Belarusian citizens, or any decision-making body, can be sanctioned by six months' imprisonment or two years of "restriction of freedom". These amendments also state that anyone who communicates with a foreign State or an international organisation to the detriment of internal security, sovereignty or territorial integrity, or who disseminates material with such content, could be sentenced to a prison term of between six months and three years. If such information is disseminated through mass media, the "perpetrators" could be sentenced from two to five years of "restriction of freedom".

Ongoing harassment of Viasna and its members7

Although the registration of the human rights NGO Viasna had been cancelled through legal proceedings in 2003, like many other independent NGOs, its members remained active and consequently continued to be subjected to acts of harassment.

Brest Section

On 2 February 2005, judicial proceedings were instigated by the office of the local Prosecutor against Mr. Uladzimir Malei, legal adviser of the Brest section of Viasna and a member of the Council of Deputies of the Malaryta district, on the grounds that he had sent false information to the newspaper Nasha slova, regarding the president of the Executive Committee of the Malaryta district. These proceedings were related to an article on the investigation carried out by a deputy into corruption cases amongst high-ranking local officials. On 28 July 2005, the case was dropped for lack of grounds.

In addition, on 29 September 2004, the police, acting without a warrant, had surrounded the Viasna office in Brest. One hundred and thirty-seven copies of a brochure reporting cases of human rights violations perpetrated in the Brest region in 2003 and 2004 had been confiscated. By the end of 2005, the proceedings instigated against the section's president, Mr. Vladimir Vyalichkin, for "carrying out activities for an unregistered organisation" (Article 167.10 of the Administrative Code), were still pending, and the documents confiscated by the police had still not been returned.

Finally, on 7 December 2005, the section received notice that it had been refused permission to organise an assembly on the Universal Declaration of Human Rights and the difficulties of independent media on 11 December 2005.

Zhodzina section

On 18 October 2005, the Viasna office in Zhodzina, located at the home of Mr. and Mrs. Aliaksei and Mrs. Sviatlana Lapitski, members of Viasna, was attacked.

On 19 October 2005, their home was again subjected to acts of vandalism after Mr. Lapitski lodged a complaint about the previous day's events.

On 25 October 2005, several shots from a large-bore rifle were fired at the window of their home.

By the end of 2005, an inquiry into these attacks was underway.

Those acts might be related to an article published by Mr. and Mrs. Lapitski, denouncing their difficulties in letting their child study the language of Belarus.

In addition, in September 2005, the local Public Prosecutor accused Mr. Lapitski of "behaviour contrary to good morals" when Mr. Lapitski went to learn the results of a complaint he had lodged in 2004. Subsequently, the Court pronounced in favour of Mr. Lapitski, judging that the accusations brought against him were groundless.

Ongoing harassment of the Belarus Helsinki Committee for Human Rights8

Judicial proceedings against BHC

In August 2003, the Belarus Helsinki Committee for Human Rights (BHC) had received a warning from the Ministry of Justice for using letterhead paper and a stamp failing to comply with the statutes of the association.

Subsequently, at the end of an investigation carried out in August 2003 and January 2004 by the representatives of the Tax Inspection of the Moscow District in Minsk, BHC had been accused of tax fraud relating to funds received from the European Union's Technical Assistance Programme (TACIS) between 2000 and 2002. It had been ordered to pay 385,000,000 roubles (approximately 138,000 euros).

The Inspection of Taxes had based its decision on Decree No. 8, adopted in March 2001, on the "Receipt and Use of Foreign Financial Assistance and Omission to Register Foreign Financial Assistance" (Article 12). However, in accordance with the General Rules agreed by Belarus and the EU in the "Memorandum on Financing" of 10 May 2004, the funds are exempt from tax and Decree No. 8 does not apply to foreign financial assistance allocated under this programme. Also, on 23 June 2004, after several hearings, the Economic Court had dismissed the decision of the Tax Inspection of the Moscow District in Minsk and ordered it to repay the procedure costs incurred by BHC (190,000 roubles – 68 euros), stating that the latter had acted in complete legality.

On 18 October 2005, Mr. Eugène Smirnou, vice-president of the Supreme Economic Court (SEC), lodged an appeal against this verdict, as he believed that the translation of the Memorandum between Belarus and the EU had been wrongly interpreted. On 20 December 2005, SEC sentenced BHC to pay the sum of 70,000 euros for arrears of taxes and fines. BHC considered appealing against this decision, and the case was still pending by the end of 2005.

In addition, by the end of the year, proceedings for "tax evasion", instigated on 17 March 2004 and based on the same charge against Mrs. Tatsiana Protsko, BHC president, and Mrs. Tatsiana Rutkevitch, chief accountant, were also pending.

Furthermore, BHC continued to be subjected to a financial investigation by the Ministries of Justice, Taxes, Economy and Foreign Affairs.

Harassment of Mr. Garry Pogoniaïlo

On 23 November 2004, the Public Prosecutor's office in Minsk had instigated proceedings for "defamation" against Mr. Garry Pogoniaïlo, BHC vice-president, on the grounds that he had accused the President of the Republic of having committed "serious crimes", in an interview he had given on 18 August 2004 on the Swedish television channel TV4. Mr. Pogoniaïlo had condemned the likely involvement of the President of the Republic into the disappearance of several opposition members, and also the lack of precision in the inquiries. The videotape containing the interview had been confiscated from the TV4 journalist by customs officers when he was leaving Belarus, examined by the KGB and then sent to the Public Prosecutor's office.

On 2 March 2005, the Prosecutor suspended proceedings against Mr. Pogoniaïlo, believing that these acts did not constitute a crime.

On 23 May 2005, the case was re-opened and finally closed at the end of November 2005.

Obstacles to the freedom of movement of Mrs. Vera Stremkovskaya9

On 28 November 2005, Mrs. Vera Stremkovskaya, a lawyer and a human rights activist, received notice that she was prohibited from leaving Belarus. She had been planning to visit Tbilisi (Georgia) on 3 and 4 November 2005, in order to take part in a conference organised by the Organisation for Security and Cooperation in Europe (OSCE) on the "role of defence lawyers in guaranteeing a fair trial". Mrs. Stremkovskaya was to speak on the need for change in Belarusian law to guarantee the independence of lawyers and the judicial system.

For this reason, she asked for the authorisation of the Minsk Bar Association to travel abroad, in accordance with the law, which stipulates that lawyers must request leave in advance in order to leave the country. Mr. A.V. Gambolevsky, deputy president of the Minsk Bar Association, based his refusal on the "possible need for extra lawyers for big criminal cases in other regions of Belarus".

Release of Mr. Yuri Bandazhevski10

Mr. Yuri Bandazhevski, an internationally renowned scientist specialised in medical research on nuclear radioactivity and former director of the Medical Institute in Gomel, had been sentenced on 8 June 2001 to eight years' imprisonment on the grounds that he had sought bribes from the parents of pupils of the Gomel Institute. His research had revealed the harmful effects of the Chernobyl disaster on the population, contradicting the official claims made by the authorities. He had also criticised the misuse of Health Department funds, which he had said should have been used for research in this area.

On 31 May 2004, his prison sentence had been commuted, for good conduct, into a "restriction of freedom" sentence by the Belarus Criminal Court. Mr. Bandazhevski had been taken to Gyzgany, in the Grodnensk region, where he had been forced to work as a guard on a local collective farm (kolkhoz).

On 5 August 2005, Mr. Bandazhevski was released under judicial supervision, in accordance with the Code of Criminal Procedure that allows such a release for convicted persons who completed two thirds of their sentence and did not commit any breach of prison regulations.

Nevertheless, Mr. Bandazhevski remained liable for a sum of 35 million roubles (approx. 13,600 euros) in damages to the State, and was still prohibited from holding any administrative or executive office in public institutions.

Mr. Bandazhevski submitted a paper to the United Nations Human Rights Committee objecting to his detention. This complaint, pronounced admissible on 7 July 2003, should be examined at the next session of the Committee in March 2006.

Civil Initiatives' dissolution remains in force11

On 17 June 2003, the NGO Civil Initiatives had filed a complaint with the United Nations Human Rights Committee following its judicial dismantling.

In spring 2004, the Human Rights Committee had requested the Belarusian government to justify the dismantling of this NGO. However, by the end of 2005, the Committee had still not received any reply and this organisation remained therefore closed. The Committee was to pronounce on this case at its July 2006 session.

[Refworld note: This report as posted on the FIDH website (www.fidh.org) was in pdf format with country chapters run together by region. Footnote numbers have been retained here, so do not necessarily begin at 1.]

4. See Annual Report 2004.

5. See Press Releases, 1 and 14 December 2005, and Open Letter to the Belarus authorities, 9 December 2005.

6. The term "restriction of freedom" means that those who are sentenced are sent to villages where they are forced to live, work and regularly present themselves at the police station, or else to closed labour camps, often under very harsh conditions.

7. See Annual Report 2004.

8. Idem.

9. See Urgent Appeal BLR 001/1105/OBS 110.

10. See Annual Report 2004.

11. Idem.


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