Minsk – December 17, 2020
Acoording to available information, on November 18, the Investigative Committee’s office in Minsk charged Tsikhan Kliukach and Safiya Malashevich under Part 1 of Art. 342 (organization or participation in group actions that gravely breach public order) and Part 2 of Art. 339 of the Criminal Code (hooliganism committed by a group of persons). The accused have been taken into custody and are currently being held in the Žodzina pre-trial prison.
According to the charge, on September 6, Kliukach and Malashevich were demonstrating together with other unidentified persons on Pieramožcaŭ Avenue in Minsk (including on the roadway) and “deliberately took an active part in group actions that gravely breached public order.” As a result, they reportedly violated Art. 10 of the Law of the Republic of Belarus “On Mass Events”, namely of the established procedures for holding mass events “by means of public shouting of slogans, loud clapping of hands, massive, long, persistent and incessant disturbance of public peace and being in the forefront of the protest.”
Kliukach and Malashevich are also accused of “intentional damage to property” owned by military unit No. 3620 of the Ministry of Defense of the Republic of Belarus, namely by spray-painting a series of drawings and slogans on the surface of the shields installed on riot-control vehicles (BRDM-2). By doing this, they reportedly “gravely breached public order and expressed obvious disrespect for society, disregarding the rules of conduct in public places, demonstrating the ability to commit lawlessness and acting out of hooliganism intentions” (Part 2 of Art. 339 of the Criminal Code - hooliganism).
In connection with the charges, we once again note that:
Freedom of peaceful assembly is guaranteed by both the Constitution of the Republic of Belarus and international human rights law, Art. 21 of the International Covenant on Civil and Political Rights, in particular.
According to Art. 21 of the ICCPR, freedom of peaceful assembly may not be subject to any restrictions other than those established by law and necessary in a democratic society in the interests of national and public security, public order, public health and morals, or the protection of the rights and freedoms of others.
As suggested by the charges, the essence of Kliukach’s and Malashevich’s offenses is taking part in an unauthorized peaceful assembly, whose participants protested against the election results: shouted slogans, clapped their hands and marched along the roadway.
Thus, they did not take any action that could be considered in the context of the permissible restrictions on the freedom of peaceful assembly and expression.
It should be noted that demonstrations may result in certain temporary obstacles for other pedestrians, motorists and public transport. The protesters’ waling on the roadway cannot constitute a criminal offense, as the sidewalks could not accommodate the large crowds of demonstrators, and the streets, avenues, squares and boulevards themselves, being public places, can be equally used for the purposes of trade, movement of public transport, and for holding public peaceful assemblies on socially important issues, including for protests against the actions and policies of the country’s leadership.
As for the slogans and drawings spray-painted on riot-control vehicles, which blocked the avenue, these actions can not be considered hooliganism, as these inscriptions addressing law enforcement officers were an act of expression of opinion.
Restrictions on freedom of expression may be subject to certain restrictions, but they must, inter alia, comply with the principles of proportionality.
In addition, spray-painting slogans on the iron shields clearly could not lead to their malfunctioning, and the damage caused by such actions was symbolic.
In this regard, we consider the persecution and imprisonment of Tsikhan Kliukach and Safiya Malashevich to be politically motivated due to their peaceful exercise of freedom of peaceful assembly and expression, and Tsikhan Kliukach and Safiya Malashevich to be political prisoners in accordance with paragraph 3.1 (a) of the Guidelines on the Definition of Political Prisoners.
In this regard, we, representatives of human rights organizations in Belarus, call to:
- Immediately and unconditionally release Tsikhan Kliukach and Safiya Malashevich from custody and drop the criminal charges they are facing;
- Immediately release all political prisoners and put an end to political repression in the country.
Human Rights Center "Viasna"
Belarusian Documentation Center
Center for Legal Transformation “Lawtrend”
Barys Zvozskau Belarusian Human Rights House
Belarusian Helsinki Committee
Advisory center on contemporary international practices and their legal implementation “Human Constanta”