Representatives of the Belarusian human rights community call to decriminalize defamation, put an end to judicial harassment and release all political prisoners convicted of slandering or insulting officials or the president, as well as insulting state symbols
In response to an increase in the number of cases of conviction and imprisonment of individuals under a number of defamatory articles of the Criminal Code, as well as for insulting state symbols of the Republic of Belarus, we, representatives of the Belarusian human rights community, reaffirming our repeated calls to decriminalize defamation and to refrain from imposing terms of imprisonment for insulting officials, the state, government agencies and symbols, note the following:
Article 19 of the International Covenant on Civil and Political Rights guarantees the right to freedom of expression. At the same time, in order to protect the rights and reputation of others, permissible restrictions on this right may be imposed.
Decriminalization of defamation offenses is a standard formulated and substantiated in the decisions of a number of international organizations. International bodies, the UN and the OSCE, have recommended repealing laws criminalizing defamation, or at least not depriving of liberty for defamatory offenses, using civil prosecution as the standard. The OSCE Parliamentary Assembly has called for the repeal of all laws criminalizing defamation of public figures, the state or its bodies. The UN and OSCE Representatives on Freedom of Expression have stated that criminal prosecution for defamation is not a justified restriction on freedom of expression; all laws on criminal prosecution for defamation shall be repealed and replaced, where necessary, by civil liability measures.
In accordance with the Johannesburg Principles (Principles 15 and 16), the peaceful exercise of freedom of expression should not be seen as a threat to national security or subject to restrictions or punishment. Expression of opinion that does not pose a threat to national security include, but are not limited to, statements that criticize or insult the nation, state or its symbols, government, government agencies, or government and public figures.
No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agency, unless this criticism is intended to incite imminent violence or is likely to incite such violence.
Restrictions on freedom of expression should not be linked to the official position of the persons about whom the information is disseminated.
In General Comment No. 34 of the UN Human Rights Committee of September 12, 2011, the Committee deplores the existence of laws on such acts as insulting a senior official, contempt of court, disrespect for the authorities, disrespect for the flag and symbols, slander against the head of state, and protection of the dignity of public officials. It also notes that the law should not impose more severe penalties solely in relation to the position of an individual whose reputation has allegedly been questioned.
Thus, the level of protection against defamatory forms of expression (encroachments on the honor, dignity and reputation of a person through the dissemination of derogatory information or insults) for state officials, including the president, prosecutor or judge, should not be higher than for any other individuals.
We believe that officials who have been recognized as victims in criminal cases on charges of insult or slander should be provided with other measures of legal protection of their honor and dignity, including in civil law on an equal footing with other persons.
At the moment we know about the following persons imprisoned for insulting officials, the president and insulting state symbols:
Aliaksei Ramanau — sentenced by the court of Chojniki district to one year in prison under Art. 368 of the Criminal Code;
Mikalai Charniauski — sentenced by the court of Haradok district to a year and a half in prison under Art. 369 of the Criminal Code.
In addition, we are aware of about a dozen sentences passed under Art. 368 and Art. 369 of the Criminal Code, which imposed on the convicts penalties of restricted liberty in open-type penitentiary institutions. These sentences are not final and the convicts were released pending appeal hearings. In the event that these sentences become final, all those sentenced to restricted liberty will be recognized as political prisoners.
In this regard, we consider the persecution and imprisonment of Aliaksei Ramanau and Mikalai Charniauski as politically motivated in connection with the peaceful exercise of their views, and the convicts as political prisoners in accordance with paragraph 3.1 (a) of the Guidelines on the Definition of Political Prisoners.
We, therefore, call on the Belarusian authorities to:
- immediately release political prisoners Aliaksei Ramanau and Mikalai Charniauski.
- take measures aimed at decriminalizing defamation offenses and repealing articles of the Criminal Code that provide for liability for insulting the state and state symbols, namely Articles 188, 189, 367, 368, 369, 369-1, and 370 of the Criminal Code, and stop all ongoing criminal cases under these articles.
- immediately release all political prisoners and end political repression.
Human Rights Center "Viasna"
Belarusian Helsinki Committee
Belarusian Association of Journalists
Barys Zvozskau Belarusian Human Rights House
Center for Legal Transformation “Lawtrend”
Advisory center on contemporary international practices and their legal implementation “Human Constanta”
Belarusian Documentation Center