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BY 2020.10.26 Harry Pogonyailo. JUSTICE. The payback for cruelty and torture is inevitable.

Lawyer, former judge, advocate, now chairman of the legal commission of the Belarusian Helsinki Committee, authorized by Svetlana Tikhanovskaya, People’s Ombudsman for Human Rights of the Republic of Belarus.

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Harry Pogonyailo
https://belhelcom.org/en/news/pahaniaila-summoned-explanations

Generals of power structures, senior officers and their subordinates, prosecutors, investigators, and judges today revel in their impunity, but at the same time, they teach citizens to observe the law and public order. They apparently hope that the current government is eternal and the guarantor, who took responsibility for the murders of peaceful protesters, arbitrary detentions, disproportionate use of force, unlawful imprisonment, detention, acts of cruelty, and torture, will allow them to avoid responsibility for their actions.

Probably, they have forgotten or believe that the universal and fundamental
principle of the inevitability of punishment does not apply to them.

Everyone understands that, in this case, we are talking about the latest events and crimes that shook the country and the entire civilized community. And if the authorities of Belarus are inactive and demonstrate a mocking attitude toward the victims of violence, then the international community has unequivocally and clearly adopted a position of condemnation and demands an end to violence, respect for human dignity, human rights, and freedoms.

Human rights organizations of the country, in their appeals to the authorities and officials, come out with similar demands: to initiate criminal cases and bring to justice those responsible.

At the same time, we drew attention to the fact that, in accordance with international law and national legislation, no exceptional circumstances, including internal political instability, can serve as a justification for torture and orders of higher officials or representatives of state authorities were criminal in themselves and were not subject to implementation. … Ignorance of these provisions of the law cannot serve as an excuse and does not absolve the perpetrators from responsibility.

Today we have every reason and sufficient data, as well as evidence that the authorities are inactive. None of the applications of citizens (and, according to the Investigative Committee, there are about 2 thousand of them) about the use of torture and acts of cruelty, including those resulting in the death of victims, causing grievous and less grievous bodily harm, have cases have been initiated. The applicants receive bureaucratic replies, and their belief that the requests for prosecution will be implemented in accordance with the law in the established procedural order and terms is running out.

Instead of compassion for the victims and taking prompt measures to restore their rights, the authorities demonstrate a vile and cynical approach: they initiate administrative cases against victims for illegal participation in mass actions and disobedience to police officers, pass them through obedient courts that are, make citizens guilty for in order to subsequently refuse to initiate criminal cases and to whitewash the criminals on the basis of court orders.

Moreover, according to the Prosecutor General, the territorial bodies of the Investigative Committee have opened about 400 criminal cases against the protesters and are preparing them for transfer to the courts.

In these conditions, human rights defenders not only call for the fight against impunity, reparation, prevention, and prevention of repeated gross violations of human rights and serious violations of international humanitarian law but also actively use the entire arsenal of international legal mechanisms in the field of ensuring and protecting human rights (High Commissioner UN Human Rights, Thematic Special Rapporteurs, and UN Committees).

For the second time in the history of modern Belarus, the OSCE Moscow Mechanism has been involved. A special expert appointed by the member states of this regional organization and his staff will conduct a deep and objective investigation of the facts of torture, cruel, inhuman, and degrading treatment of citizens detained at mass peaceful protests.

With similar tasks, the Committee of the Parliamentary Assembly of the Council of Europe on legal issues and human rights proposed to establish an international investigative committee on crimes committed in Belarus during and after the elections.

Representatives of the Belarusian authorities and civil society are expected to be involved in cooperation in the investigation. At least, human rights defenders are ready to send all the information and evidence available on these facts to the interested parties.

The most important thing in this work is that the results of special investigations will be published and presented to national and international law enforcement agencies that are willing and ready to prosecute those responsible for the massive crimes against humanity committed by officials of Belarus in official status.

These grave acts are deepened and deliberate and must be condemned by states as a violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention against Torture, and other international human rights instruments that Belarus recognizes, ratified, and therefore has undertaken obligations to comply with them and bear responsibility.

In this regard, I would like to remind you that the Republic of Belarus is one of the co-founders of the UN (1945). The founding fathers of modern Belarus, in Part 1 of Art. 8 of the Constitution, enshrined that the state “recognizes the priority of the generally recognized principles of international law and ensures the compliance of legislation with them.”

Being consistent in its striving to show the world community that it follows these principles, the law “On international treaties of the Republic of Belarus” establishes that the generally recognized principles of international law and the norms of international treaties of the Republic of Belarus that have come into force are part of the law in force in Belarus ( Article 15).

Therefore, it is quite logical and reasonable to consolidate in the Criminal and Criminal Procedure Codes of the Republic of Belarus (entered into force on January 1, 2001) the rules that: the Criminal Code is based on the Constitution of the Republic of Belarus and generally recognized principles and norms of international law (Art. 3); and the Code of Criminal Procedure – that “international treaties of the Republic of Belarus, defining the rights and freedoms of a person and a citizen, are applied in criminal proceedings along with this code”.

Thus, Belarus implemented at the legislative level its commitment to ensuring the rights and freedoms of citizens and implemented (introduced) the established international standards into its national legislation.

But in practice?

Today, an increasing number of our citizens monitoring the emerging situation, assessing it from the standpoint of ensuring and actually implementing the rights and freedoms of citizens, which, according to the Constitution, are declared the highest value and goal of society and the state, come to a well-grounded and bitter conclusion for them: a legal default reigns in the country …

The state tore up the constitutional treaty and disclaimed responsibility for creating conditions for truly free and dignified development of the individual (Article 2) and freed itself from guarantees of ensuring the rights and freedoms of citizens enshrined in the Constitution, laws, and provided for by Belarus’ international obligations (Article 21) …

Among numerous international obligations of Belarus, an important place is occupied by the fight against torture or acts of cruelty, illegal detention, systematic executions without trial, and kidnapping, followed by their disappearance, committed, inter alia, in connection with political convictions. The listed acts in pursuance of international treaties of the Republic of Belarus are enshrined in Article 128 of the Criminal Code in Chapter 17 (Crimes against the peace and security of mankind).

In accordance with Part 5 of Art. 12 of the Criminal Code of Belarus, these crimes, by the nature and degree of public danger, are particularly serious since the law provides for punishment in the form of imprisonment for a term of over 10 years, life imprisonment or the death penalty. Along with this, the statute of limitations for the commission of these crimes does not apply (Article 85 of the Criminal Code).

It should be emphasized that the novelty of the current Criminal Code is that the offenses contained in Chapter 17 are prosecuted, regardless of whether they were committed in our territory or outside of it, if the acts committed are recognized as crimes in the state on the territory of which they were committed, and the perpetrators did not incur criminal responsibility in this state (Art. 6 of the Criminal Code).

In this case, we are talking about the so-called universal criminal jurisdiction, which is enshrined in criminal law on the basis of an international treaty binding on the Republic of Belarus.

Similar rules on the operation of criminal law in space and time are enshrined in most countries, including the countries of the European Union, the Council of Europe, the OSCE region, and others. They are in line with the fundamental principle “aut dedere aut punire” (or extradite or punish) the perpetrator of an international crime. This is the adherence to the above-mentioned principle of the inevitability of punishment.

Thus, the criminal legislation in this part almost fully meets the emerging practice of public international law and allows at the national level to prosecute, regardless of citizenship and place of residence, any person who has committed a crime against humanity.

So, we, human rights activists, believed in sending appeals to the Investigative Committee of Belarus to initiate criminal cases on the basis of Art. 128 of the Criminal Code, but were refused. And then the citizens-victims of violence who went abroad, together with human rights organizations, lawyers, and government agencies of a number of countries, actively began the practical implementation of the universal jurisdiction that these countries have and where it can be effectively applied. First of all, those countries that have relevant international agreements with Belarus on the provision of legal assistance in criminal, civil, and administrative cases (Ukraine, Poland, Czech Republic, Lithuania, Latvia, and others).

In the field of combating crime, there are other international treaties concluded at the interstate level and between the relevant ministries and departments of the countries. The collection and consolidation of evidence in these cases do not present any particular difficulties for those who will conduct an investigation on a professional basis.

The only but completely surmountable obstacle may be the refusal of the competent authorities of Belarus to cooperate with foreign colleagues, including on the issue of extradition (extradition) of those guilty to those countries that will demand the fulfillment of these obligations under international treaties. Failure to comply with them may result in extremely negative consequences for the Belarusian side in the fight against crime and the extradition of persons hiding abroad who have been put on the international wanted list in Belarus through the Interpol structures.

For victims of crime, it is important:

that investigators, prosecutors, and judges, based on the results of the investigation of cases against the perpetrators, choose a preventive measure and issue international warrants for their arrest in any country;

so that the claims for compensation at the expense of state property (recall the Magnitsky Law adopted in the USA) were satisfied in the civil lawsuits of victims from Belarus.

According to the same scheme, according to the rules and procedures of universal criminal jurisdiction, criminal cases can be initiated against famous people who disappeared 20 years ago in Belarus: Y. Zakharenko, V. Gonchar, A. Krasovsky, and D. Zavadsky. Their cases in their home country were suspended by production and, in fact, have not been investigated since 2001 at the behest of Lukashenka. But in a number of Western countries, there are relatives of the disappeared who have been recognized as victims in criminal cases. One of the participants in the violent abductions and extrajudicial executions, Yury Garavsky, is ready to testify. We know about several more persons who are ready to cooperate with the investigation and other structures of foreign countries, there are also documents of the preliminary investigation of criminal cases conducted in Belarus, and all this can lead to a positive result.

I am pleased to inform you that in the neighboring countries of Belarus, where our citizens have left, fleeing persecution, the processes of initiating and investigating cases according to the procedures of universal jurisdiction they have are already underway. The authorized bodies have lists of priority persons suspected of atrocities and torture, extrajudicial executions, arbitrary arrests, and illegal detention.

These are, first of all, those who are included in the sanctions lists. Among them: the Minister of Internal Affairs of the Republic of Belarus Yuri Karaev, his deputies, heads of territorial police departments, police stations, temporary detention centers, and other places of detention where torture was used, OMON commanders, individual investigators, prosecutors, and judges who have committed crimes against justice, whose actions also fall under signs of international crimes against humanity under conditions entailing their responsibility under universal jurisdiction.

Then, when the country slipped into the use of mass repression for the freedom to express their beliefs, to peacefully protesting against violations of the rule of law when the authorities resorted to the use of criminal sanctions as an instrument in the political struggle with their opponents, I want to remind all law enforcement officials and judges of their personal responsibility.

I hope many people remember that after the well-known Nuremberg trial over war criminals in Germany, there were trials over prosecutors, investigators, and judges accused of mass repression. All of them, in their defense, referred to the fulfillment of the requirements of the then laws of Nazi Germany. 

However, the tribunals recognized that these laws and the practice of their application did not comply with the principles of a rule-of-law democratic state, that they were directed against humanity, and the executors had to be aware of this.

It was then that the concept of “criminal law” appeared and was introduced into circulation. And the perpetrators were found guilty and convicted. Someone lost their professional titles and privileges. The laws on lustration, which can be adopted in Belarus after the victory over the dictatorship, also work for these purposes.

Everyone will be rewarded according to his merits!
Harry Pahaniajla

Sources:
https://charter97.org/en/news/2020/10/26/398416/
https://belhelcom.org/en/news/pahaniaila-summoned-explanations

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