Representative of Sviatlana Tsikhanouskaya on Legal Affairs, presented a draft Act, according to which Belarusians, persecuted on political grounds, can be amnestied and rehabilitated.
You can download the Act and the Explanatory Note in pdf format, comment on them on this page below or send a mail at legal@tsikhanouskaya.org.
Act on Exemption from Liability and Restoration of the Rights of Persons Persecuted on Political Grounds
Article 1.
1. To exempt from criminal liability persons convicted under articles 130, 191, 200, 293, 309, 310, 342, 356, 357, 361, 361-1, 361-2, 363, 364, 365, 366, 367, 368, 369, 369-1, 369-2, 369-3, 370, 391 of the Criminal Code of the Republic of Belarus, in respect of which proceedings have been instituted since May 8, 2020.
2. To terminate criminal proceedings instituted as from May 8, 2020, under the articles of the Criminal Code of the Republic of Belarus referred to in paragraph 1 of this article, for which no sentences had been handed down as of the date of entry into force of this Act.
3. Persons who are serving a sentence, detained or detained in connection with the cases referred to in paragraphs 1 and 2 of this article shall be released from their places of detention within two days of the entry into force of this Act.
Article 2.
1. Persons convicted under articles 147, 188, 190, 209, 210, 218, 235, 243, 285, 289, 290, 290-1, 290-2, 290-3, 290-4, 290-5, 295, 295-1, 339, 341, 349, 362, 371, 407, 430, 434, 435, 436, 437 of the Criminal Code of the Republic of Belarus, cases on which were initiated starting from May 8, 2020, are subject to release from criminal liability by the sentencing authority if the prosecution was politically motivated. The procedure for reviewing such cases is regulated by a separate law.
2. Criminal cases initiated starting from May 8, 2020, under the articles of the Criminal Code of the Republic of Belarus specified in paragraph 1 of this article, the sentences on which were not passed on the date of entry into force of this Act, shall be terminated if the initiation of this case was politically motivated.
3. The enforcement of sentence in relation to persons convicted in the cases specified in paragraph 1 of this article, with their consent, shall be subject to a postponement until the entry into force of the decision made as a result of the review of such a case. For the period of the postponement of the enforcement of the sentence, such persons are not subject to the restrictions provided for by the current legislation for persons held criminally liable.
A preventive measure in respect of persons who are detained in connection with the cases referred to in paragraph 1 of this article shall be replaced with a recognizance not to leave the place and proper behavior.
The persons specified in parts 1 and 2 of this paragraph are subject to release from their places of detention no later than 2 days from the date of entry into force of this Act.
Article 3.
1. To exempt from administrative liability persons against whom orders have been issued under article 23.4., 23.34. of the Code of Administrative Offenses of the Republic of Belarus of April 21, 2003, and articles 24.3., 24.23 of the Code of Administrative Offenses of the Republic of Belarus of January 6, 2021, on which proceedings were instituted since May 8, 2020.
2. To terminate cases of administrative offenses initiated since May 8, 2020, under the articles of the Codes of the Republic of Belarus on administrative offenses referred to in paragraph 1 of this article, orders on which were not issued as of the date of entry into force of this Act.
3. Persons who are serving a sentence or who are detained in connection with the cases referred to in paragraphs 1 and 2 of this article shall be released from their places of detention no later than the day following the date of entry into force of this Act.
4. Fines paid in the cases referred to in paragraph 1 of this article shall be refunded from the budget in the procedure prescribed by a separate law.
Article 4.
1. Persons convicted under articles 17.1., 18.1., 18.14. of the Code of Administrative Offenses of the Republic of Belarus of April 21, 2003, and articles 18.1., 18.13., 19.1. of the Code of Administrative Offenses of the Republic of Belarus of January 6, 2021, on which proceedings were instituted since May 8, 2020, are subject to release from administrative liability by the sentencing authority if the prosecution was politically motivated. The procedure for reviewing such cases is regulated by a separate law.
2. Cases initiated starting from May 8, 2020, under the articles of Codes of Administrative Offenses of the Republic of Belarus specified in paragraph 1 of this article, the sentences on which were not passed on the date of entry into force of this Act shall be terminated if the initiation of this case was politically motivated.
3. The enforcement of sentence in relation to persons convicted in the cases specified in paragraph 1 of this article, with their consent, shall be subject to a postponement until the entry into force of the decision made as a result of the review of such a case. For the period of the postponement of the enforcement of the sentence, such persons are not subject to the restrictions provided for by the current legislation for persons held administratively liable.
The measure to ensure the administrative process in the form of administrative detention applied to individuals in connection with the cases referred to in paragraph 1 of this article shall be canceled.
The persons specified in parts 1 and 2 of this clause are subject to release from their places of detention no later than the day following the day of entry into force of this act.
Article 5.
1. Employees dismissed starting from May 8, 2020, are subject to reinstatement if their dismissal was politically motivated, regardless of the official reason for dismissal.
Citizens and organizations whose rights have been violated by decisions of state bodies and other organizations starting from May 8, 2020, have the right to review and cancel such decisions if such decisions were politically motivated.
2. The procedure for the reinstatement of dismissed workers at work, revision, and cancellation of decisions of state bodies, organizations specified in paragraph 1 of this article shall be regulated by a separate law.
Article 6.
For the purposes of Articles 2, 4, and 5 of this Act, a sentence (ruling, decision) imposed on or affecting a particular person is recognized as politically motivated for the purposes of Articles 2, 4, and 5 of this Act, under which at least one of the following conditions took place:
a) sentence (ruling, decision) was delivered solely because of the person’s political, religious, or other beliefs, as well as the non-violent exercise of freedom of thought, conscience and religion, freedom of expression and information, freedom of peaceful assembly, and association, other rights and freedoms guaranteed by Constitution, International Covenant on Civil and Political Rights;
b) sentence (ruling, decision) was delivered solely because of non-violent activities aimed at the protection of human rights and fundamental freedoms;
c) sentence (ruling, decision) was delivered solely on the grounds of sex, race, colour, language, religion, national, ethnic, social or ancestry, birth, nationality, sexual orientation and gender identity, property status or other attributes, or on the basis of a sustainable relationship with communities linked by such attributes;
d) sentence (ruling, decision) was deliveredа on the basis of political motives for persecuting such a person, and there was a violation of the right to a fair trial; other rights and freedoms guaranteed by Constitution, International Covenant on Civil and Political Rights;
e) sentence (ruling, decision) was delivered when there were political motives to prosecute such a person, and evidence was falsified;
f) sentence (ruling, decision) was delivered on the grounds of political motives for persecuting such a person, and sanctions (negative consequences) applied are manifestly disproportionate (inadequate) to the legal basis for the sentence (ruling, decision);
g) sanctions (negative consequences) for the sentence (ruling, decision) were delivered selectively in comparison with other persons.
Article 7.
Persons released from liability in the procedure specified in articles 1-4 of this Act, workers reinstated at work, citizens and organizations, decisions on whose cases were canceled in accordance with article 5 of this Act, have the right for compensation, which is payable in accordance with the procedure, determined by a separate law.
Article 8.
This Act shall enter into force on the date of its official publication.
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Explanatory Note to the Act on Exemption from Liability and Restoration of the Rights of Persons Persecuted on Political Grounds
During 2020-2021, a huge number of Belarusian citizens were persecuted on political grounds. By the summer of 2021, the number of political prisoners in Belarus was around 500, tens of thousands were subject to administrative penalties, a large number of citizens were dismissed or forced to resign, and other sanctions were applied against citizens (confiscation of property, revocation of professional licenses, etc.).
All persons deprived of their liberty or detained on political grounds must be released, their criminal and administrative liability lifted, and decisions on dismissal and other decisions infringing the rights of citizens taken on political grounds must be rescinded.
However, there is no universal mechanism that would allow the immediate release of all political prisoners and the restoration of the rights of all repressed citizens. This is due to the following difficulties:
1. The list of political prisoners compiled by human rights organizations is not exhaustive. Unfortunately, not all cases of unlawful criminal prosecution are known to human rights defenders. Therefore, an individualized approach to the release of political prisoners and the restoration of the violated rights of citizens cannot be applied.
2. In addition, human rights defenders keep records only of those who are recognized as political prisoners, that is, persons detained on charges of a crime. However, a huge number of citizens were subjected to administrative liability, dismissed, or had their rights violated another way. What is needed, therefore, is a mechanism for restoring rights to a much wider range of persons than just political prisoners.
3. Political convictions, administrative proceedings, dismissals, etc. were often based on the same grounds and articles under which citizens were tried fairly and lawfully. Therefore, it would not be possible to restore rights on the basis of a generalized approach (for example, release from liability of persons convicted under a specific article).
In view of the foregoing, the following principles are proposed for the restoration of the rights of persons persecuted on political grounds.
Principle 1. Citizens must be released immediately and proceedings under those articles of the Criminal Code and the Code of Administrative Offenses in which all or almost all citizens have been persecuted for political reasons must be discontinued.
These include, for example, the following articles of the Criminal Code:
– Article 130. Incitement to racial, ethnic, religious or other social hatred or discord, rehabilitation of Nazism;
– Article 293. Mass riots;
– Article 342. Organization, preparation, or active participation in acts seriously disturbing public peace;
– Article 356. Treason against the state;
– Article 357. Conspiracy or other acts committed for the purpose of seizing state power;
– Article 361. Calls for actions aimed at harming the national security of the Republic of Belarus;
– Article 361-1. Establishment of extremist groups;
– Article 363. Resistance to an internal affairs officer or other person protecting public order;
– Article 364. Violence or threat of violence against an internal affairs officer;
– Article 368. Insult to the President of the Republic of Belarus;
– Article 369. Insulting a public official;
– Article 370. Desecration of State symbols;
– some other articles.
Under this mechanism, citizens facing administrative liability will also be released from liability under articles 23.4., 23.34. of the Code of Administrative Offenses of the Republic of Belarus of April 21, 2003, and articles 24.3. and 24.23. of the Code of Administrative Offenses of the Republic of Belarus of January 6, 2021.
No additional document was required for the dismissal of such cases and the release of prisoners. All those detained and imprisoned in criminal cases will be released within 2 days and in administrative cases within 1 day.
Principle 2. Persons prosecuted under those articles of the Criminal Code and the Code of Administrative Offenses which were used to prosecute both on political and non-political grounds are not immediately exempted from liability. However, any person prosecuted under such articles will be able to request a review of the sentence(s) by an independent court. Until the case of such persons is reviewed, the enforcement of sentences in relation to such persons will be postponed, which will also allow them to be released pending trial.
Under this mechanism, cases may be reviewed under the following articles of the Criminal Code:
– Article 218. Willful destruction or damage to property;
– Article 235. Legalization (“Laundering”) of the proceeds of crime;
– Article 243. Evasion of taxes, charges;
– Article 285. Establishment or participation in a criminal organization;
– Article 339. Hooliganism;
– and some other articles.
Cases under such articles are reviewed on the application of the person charged in the first instance. The reason for the annulment of the sentence(s) is the political motivation of the original sentence(s).
The Act proposes a definition of a politically motivated sentence (ruling, decision) so that the court may restore the rights of convicted persons (sentenced) on political grounds.
Applications for review of a sentence (ruling) and review will be regulated by a separate law.
The list of articles on Principle 1 and Principle 2 could be reviewed in light of the current situation.
Principle 3. Citizens who have been persecuted on political grounds are subject to reinstatement at work and to the restoration of other violated rights (confiscation, revocation of licenses, etc.).
Such decisions will be taken by the court as soon as possible on the basis of applications from citizens, regardless of the expiry of the time limit for bringing the matter before the court.
Such decisions would be regulated by a separate law.
Principle 4. All fines paid under annulled orders shall be payable to citizens, and to citizens who have been unlawfully prosecuted or whose rights have been infringed shall be compensated.
The procedure for determining the amount of compensation and deciding whether to refund it will be regulated by a separate law.
