Arrest and placement in pretrial detention of a potential candidate for presidential elections without reasonable restrictions

Facts

The case of Viktar Babaryaka is noteworthy as it illustrates political suppression through legal tactics in Belarus. Arrested on charges of money-laundering and tax evasion as he was gaining momentum in the 2020 presidential election, Babaryaka’s detention prevented his candidacy. Within Belarus, this was perceived as an overt government crackdown on dissent, igniting widespread protests and underscoring the importance of international oversight in protecting democratic processes and human rights.

The author of the communication, Mr. Viktar Babaryaka, is a national of Belarus, a known banker and a public figure who publicly expressed his intention to contest the presidential elections in 2020. The author’s group collected over 400,000 signatures in his support, the highest number of signatures collected by any candidate. The author became the main challenger to the incumbent President, Alexander Lukashenko. Shortly after, Alexander Lukashenko publicly accused one of the presidential candidates—without naming anyone—of fraud concerning a company with which the author had collaborated in the past. Within a week, the Department of Financial Investigations of the State Control Committee announced that they had initiated criminal proceedings against the author on allegations of money laundering and tax evasion. Soon after, one day before the deadline for collecting signatures for candidates’ nominations and before the Elections Commission began registration of the candidates, the author and his son, Eduard Babaryka, were arrested by the Department of Financial Investigations. Their arrest occurred suddenly, while the author was on his way to the Elections Commission to hand over sheets of paper with the signatures he had collected. He was not allowed to appear before the Department of Financial Investigations to defend himself, or to notify his lawyers and family about his arrest for 24 hours. Later, the author was placed in a pretrial detention facility and was not permitted to communicate confidentially with his lawyers, who were also made to sign non-disclosure agreements. The author stated that he was not brought before a judge or any other authority since his arrest.

As a result, the author claims that his arrest and placement in pretrial detention were arbitrary, within the meaning of article 9 (1) of the Covenant, because they were the result of his expression of his political opinions and the exercise of his rights and freedoms under articles 19, 25 and 26 of the Covenant. No suspicions or charges had been put forward against him by law enforcement authorities until the public announcement of his presidential ambitions and the sharp increase in his ratings as a potential candidate for the elections.

The author had also requested the Committee to adopt interim measures and ask the State party to not prevent him from standing in the elections and that he has access to the media, voters and his campaign team, but the request was denied.

Admissibility

Contrary to the State party’s argument on the author’s failure to exhaust domestic remedies, the Committee held that the party did not provide any information to demonstrate that the supervisory review appeals before the judicial and prosecutorial authorities would have constituted an effective remedy. Therefore, while considering the author’s claims regarding violation of his rights of his freedom of expression, and by placing him in arbitrary detention and also noting that availing the domestic remedies would not be effective, the Committee concluded that the same were sufficiently substantiated.

Merits

The State party argued that the author’s arrest and remand in custody were compliant with domestic legislation. While rejecting this argument, the Committee found that it was not necessary and proportionate to arrest the author as it noted that despite the announcements which pointed to the imminence of the author’s prosecution, the author did not attempt to flee but, to the contrary, remained on the territory of the State party and continued to actively campaign for the presidential elections. As a result, it did not appear to the Committee that in the decisions of the national jurisdictions, the author’s placement in pretrial detention was necessary to prevent him from fleeing, committing an offense or interfering with the investigation was justified. Furthermore, it also did not appear that the national authorities considered less restrictive alternatives to the author’s pretrial detention. The Committee therefore held that the fact that the author was arrested one day before the opening of registration for candidates for the election, without any visible motives, presents elements of inappropriateness, injustice and lack of predictability incompatible with the prohibition of arbitrary detention violating his rights under article 9 (1) and (3) of the Covenant.

The Committee noted that the complaint against the author’s remand in custody was submitted on 21 June 2020 but was only considered by judicial authorities nine days later. Not only did these delays significantly exceed 48 hours, which, according to the Committee, is the maximum time permissible under article 9 of the Covenant, but they also contradict the State party’s affirmation that the author’s arrest and pretrial detention were compliant with domestic legislation, which provides for judicial review within 24 and 72 hours following the submission of a complaint. The Committee further observed that the author was not allowed to attend the court hearings on his complaints and was not brought before a judge until his trial, eight months after his arrest. The Committee noted that the author’s counsels were obliged to sign non-disclosure agreements, which prevented them from enclosing all relevant documents in the author’s communication to the Committee, creating obstacles to the author’s attempts to defend his rights under article 9. Therefore, on this claim, the Committee concluded that the State party has violated the author’s rights under article 9 (1), (3) and (4) of the Covenant.

Recommendations

The State party is obligated to:

a) Provide the authors with adequate compensation for the violation suffered;

b) Prevent similar violations from occurring in the future.

Implementation

Deadline for implementation: 10 April 2024

More information on the case:

— OHCHR – Rising trend of violating freedom of expression and political rights, UN Human Rights Committee finds

— EEAS – Belarus: Statement by the Spokesperson on the health of political prisoner Viktar Babaryka