WGAD considered the detention of Ales Bialiatski as 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 Working Group 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.”

The decision of Working Group on Arbitrary Detention underlined the fact 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 deregistered and taken steps to dissolve”.

“The WGAD also emphasizes, that criminal liability cannot be based on prior government action to deregister and dissolve the non-governmental organization Viasna, in violation of article 20, paragraph 1, of the UDHR and Article 22 of the ICCPR”.

It was stressed by the Working Group 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 noted 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 made a conlusion that “the criminal provisions as applied to Mr. Bialatski did not take account of the aforementioned standards” and that Belarus was thus not respecting its international commitments.  

Finally, the Working Group considered detention of Mr. Bialiatski as arbitrary for it was a consequence of the exercising of his universally recognised human rights, and that it fell under category II of the arbitrary detention categories referred to by the WGAD for consideration of 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 Working Group also 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 highlighted that “there was no support for such a review being undertaken by the domestic authorities in the present case”.

Florian Irminger, Head of International Advocacy and Human Rights House Foundation Geneva Office, accented the signiicance of this decision: “It is important that until now Belarusian authorities argue that Ales Bialiatski did something illegal and his imprisonment is a consequence of his illegal activities.What this decision changes is the statement that detention of Ales Bialiatski is consequence of his human rights activities and he was sentenced to 4,5 years of imprisonment because of his human rights defending.This detention was a symbol for the government as an example what they can do with the most famous human rights defender of Belarus. This decision is one of these steps that had been created by many international and Belarusian NGOs to highlight the violations in Belarus. For example, it was important to renew the mandate of the UN Special Rapporteur on Belarus, now we have this decision of the United Nations Working Group on Arbitrary Detention. And we should proceed working with the issues concerning the human rights situation in Belarus.”

The decision of the United Nations Working Group on Arbitrary Detention is based on international law and was adopted by an international monitoring body composed of independent experts, according to a contradictory procedure with the Republic of Belarus. This decision will be used as a basis for the demands for the release of Mr. Ales Bialiatski.

In making its decision, the WGAD considered the response of the Republic of Belarus, which alleged that the detention and sentencing of Mr. Bialiatski was legal and in accordance with the national law and did not violate its international commitments.

***

In August 2011, Ales 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 Pershamayski 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 Roubles (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 roubles (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.

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