Analysis of changes in anti-extremism legislation (overview from the perspective of Belarus’ international obligations in the field of human rights)

Human Constanta
5 March 2021

On May 14, 2021, the Law “On Amendments to the Laws on Countering Extremism” was signed. The law will enter into force on June 14, 2021. Earlier, the government submitted the draft amendments to the parliament. On April 2, 2021, The amendments were adopted in the first reading, and in the second reading on April 2 and 16, 2021 respectively. Despite the fact that these changes affect the rights, freedoms, and obligations of citizens and legal entities, no public discussions on them were held.

Human Constanta analyzed the legislative changes, laid out both in the initial version of the draft (unofficially published in February 2021) and in the final version of the law published on the      portal on May 15, 2021. These changes have already entered into force from the date of publication, except for the first two articles, which will enter into force on June 15, 2021. We assessed the legislative changes in terms of the standards of the right to freedom of expression, freedom of assembly and association, as well as mechanisms for protecting these rights.

The Law “On Amendments to the Laws on Counteracting Extremism” introduces amendments      not only to the Law “On Countering Extremism” (hereinafter –      the Law), but also to the Civil Procedure Code of the Republic of Belarus. Under the new edition of the law     , the cases on the recognition of an organization (including foreign or international) as extremist; the prohibition of its activities on the territory of the Republic of Belarus;      its liquidation;      the prohibition of the use of its symbols and attributes;      the recognition of symbols,      attributes, information products as extremist materials will be considered in an expedited manner     .    

A     nother change has been made to the Civil Procedure Code of the Republic of Belarus       – now decisions on cases on recognizing a strike as illegal are subject to immediate execution. Thus, it can be concluded that the legislators have placed      strikes in      the sphere of application of anti-extremist legislation, although the Law does not classify strikes as “extremist activity”.

For the first time, the Law stipulates that applications for the recognition of symbols and attributes and information products as extremist materials are considered by the court in a special procedure (with a number of      procedures under Chapter 30 of the Civil Procedure Code     ).

Expanding the scope of the Law “On Countering Extremism”

Previously, human rights organizations criticized the overly broad and inaccurate definition of “extremism”, which can include both direct terrorist acts and the publication of inappropriate content on social media. The new draft Law expands the concept of extremism even more,      blurring the line between violent manifestations of extremism and any manifestations of civil position that are undesirable for the authorities.

Thus, in the proposed draft Law, in addition to political parties, public and religious organizations, the following groups may be considered      “extremists”:

  • Foreign and international organizations;
  • Trade unions;
  • Formations (communities, groups of citizens);
  • Individual entrepreneurs.

The list of “extremist activities” was supplemented with 6 items:

  • “Assistance to extremist activities, undergoing training      to participate in extremist activities” –      for the promotion of extremist activities, criminal liability will be provided in the new article of the Criminal Code (hereinafter –      the Criminal Code) 361-4, and for completing the training, liability will come under Article 361-5 ;
  • “Insulting or discrediting      public authorities and administration or           representatives thereof     are new terms in the legislation, since responsibility for insulting an official in the exercise of his official powers is provided for by Article 24.4 of the Code of Administrative Offenses (hereinafter –      the Code of Administrative Offenses), the President –      Article 368 of the Criminal Code, a representative authorities –      A     rticle 369 of the Criminal Code, judges or lay assessors – A     rticle 391 of the Criminal Code, and responsibility for insulting or discrediting a governmental body is not provided anywhere (the category of insults refers only to individuals and its application to state bodies appears      absurd). The act of “d     iscrediting” in Belarusian      legislation is found only in the Criminal Code (Article 369-1), and it refers to the      “d     iscrediting the Republic of Belarus”, and not a specific body or a representative of the government;
  • “Dissemination of deliberately false information about the political, economic, social, military or international situation in      the Republic of Belarus, the legal status of citizens in the Republic of Belarus, discrediting the Republic of Belarus” –      this is what      the new version of Article 369-1 of the Criminal Code stipulates     ;
  • “Violation of the procedure for organizing and holding mass events” –      the liability for violating this rule is provided for in Article 24.23. Administrative Code for the      first offense and Article 342-2 of the Criminal Code for the      second offense;
  • “Illegal actions in relation to weapons, ammunition, explosives for the purpose of extremist activities” –      the liability      for “illegal production and (or) distribution of methods or other materials on methods of manufacturing explosive devices and explosives” and “illegal actions in relation to firearms, ammunition and explosives “is provided for by Article 19.12 of the Administrative Code and Article 295 of the Criminal Code, while none of these articles speaks of additional liability measures,      if violations are committed with an” extremist “purpose;
  • “Illegal acts against public order and public morality, order of government, life and health, personal freedom, honor and dignity of the individual, property in order to incite hostility or hatred” –      crimes provided for in C     hapters 19, 22, 30 and 33 of the Criminal Code will be considered extremist, as well as crimes against property, if it is proven that they were committed with the motive of inciting hatred or hostility      against a particular group.

Also, two items of the list have been expanded:

  • incitement of racial, national, religious or other social enmity or hatred was supplemented with the phrase “including committing, for the indicated purposes, illegal acts against public order and public morality, order of administration, life and health, personal freedom, honor and dignity of the person” – earlier in this version, the lawmakers also wanted to afford special protection to property and the “way of family relations,” but in the final version of the Law, these words disappeared. Responsibility for such violations is provided for in Article 130 of the Criminal Code;
  • the organization and implementation of mass riots, hooligan actions and acts of vandalism was supplemented with the words “associated with damage or destruction of property, seizure of buildings, other actions that grossly violate public order, or active participation in them” based on racial, national, religious or other social enmity or discord, political or ideological enmity.

In the new version of the Law, some definitions have also changed. Extremist materials now include materials      that not only contain appeals to      extremism, but also promote involvement in it     . It should be noted that an interesting innovation is the appearance in the L     aw of the definition of extremist symbols and attributes as ones “used for the purpose of carrying out extremist activity or its propaganda, including through a public demonstration, and when calling for extremist activity,      flags, hymns and other musical works, attributes of uniforms, swastikas, emblems, symbols, graffiti, logos, pennants, badges and other items of distinction      or their copies, other similar objects, including objects that are or may be objects of copyright, related rights, industrial property rights, including Nazi symbols and attributes, as well as any images of persons in respect of whom there is a court verdict that has entered into      force in connection with the commission of actions provided for by “extremist articles”.

In the definition, the legislators      tried to expand the forms in which “extremist materials” can be embodied,      once again equaled such      materials with Nazi symbols (although liability       for the      storage and distribution of Nazi symbols is already prohibited under a separate A     rticle 19.10 of the Administrative Code), and also effectively      banned the public display of portraits of convicts and political pirosners,      which were actively used in the media and during solidarity actions.

Several      more points on      the Law’s new wording:

  • An organization “… providing other assistance to extremist activity” can now be recognized as an “extremist organization” –            currently               any action can fall under this definition;
  • the term “extremist formation” appeared, meaning      a group of citizens carrying out extremist activity, or providing other assistance to extremist activity, or recognizing the possibility of its implementation in its activity, or financing extremist activity, in respect of which a decision was made by the Ministry of Internal Affairs or the State Security Committee on recognizing it as extremist –      the main difference from the “     extremist organization”      is the lack of registration and recognition of such a formation as extremist in an extrajudicial procedure by the Ministry of Internal Affairs or the State Security Committee;

All terms related to Nazism were removed from the Law. However, on May 14, 2021, the Law “On Preventing the Rehabilitation of Nazism” was signed, which is similar in structure to the analyzed one.

New procedural aspects of the Law

In the new version of the Law, the mechanism of using an official warning has become regulated by Article 9 –           it can now be      issued only to citizens (earlier it could also      be      issued to the founder (participant), head, other official of the governing body of the organization, individual entrepreneur, founder of the mass media). The article also clarified which authorities can issue warnings: internal affairs bodies, state security, prosecutors. The appeal procedure remains the same –      the warning can be appealed to a higher authority or a court.

As before, an order to eliminate the violations is issued to the founder (participant, owner of property), head (governing body) of the organization, individual entrepreneur, if signs of “extremism” are detected in their activities     . Now more bodies will be able to issue orders (previously, only the prosecutor’s office had such authority), and a repeated order becomes the basis for the termination of the activities of organizations and individual entrepreneurs.

An order to ban extremist activity is issued no later than seven days from the date of receipt of information about a violation     , and within three days is sent to the subjects. Repeated formal warnings and orders may serve as      grounds for liquidating      of the organization.

The suspension of the activities of registered organizations, representative offices of foreign and international organizations and individual entrepreneurs is more extensively regulated – now this can happen not only by a decree of the Prosecutor General, but also by prosecutors of regions and the city of Minsk.

If an organization registered on the territory of the Republic of Belarus is recognized as extremist, its activity on the territory of the Republic of Belarus is prohibited and it is liquidated on the basis of a court decision. Now the Law additionally prohibits the use of symbols and attributes of such an organization. Such decisions can be made not only by the Supreme Court (at the request of the Prosecutor General), but also by regional courts and the court of the city of Minsk –      at the request of the relevant prosecutors. In their application, prosecutors may ask to seize the property of the organization. A similar procedure is spelled out in the Law for recognizing extremist and prohibiting the activities of an individual entrepreneur (Article 13).

For organizations and individual entrepreneurs whose activities are suspended, an additional ban is introduced on:

  • holding congresses, conferences, general meetings;
  • participation in the work of state bodies;
  • use of their symbols and attributes.

It is worth noting that the new amendments to the Criminal Code will stipulate liability for non-execution of a court decision recognizing an organization as extremist, up to imprisonment for up to three years (Article 423-1).

The new version of the Law provides for a simplified procedure for recognizing a group of citizens as an extremist formation –      a decision of the Ministry of Internal Affairs or the State Security Committee is issued on this and on the prohibition of its activities, which can be appealed in court (Article 15 of the Law). Most likely, this rule will work for criminalizing neighbours’ Telegram      chats, solidarity initiatives and other local initiatives.

On the basis of Article 19 of the Law, lists of organizations, formations, individual entrepreneurs and citizens involved in extremist activities will be maintained                by the Ministry of Internal Affairs.    

Such lists will include:

  • organizations and formations recognized as extremist, individual entrepreneurs, whose activities are recognized as extremist;
  • citizens in respect of whom there is a final court verdict in connection with the commission of “extremist actions”. The Law does not provide for separate articles of the Criminal Code, which refer to “extremist”.

The procedure for maintaining and publishing lists, including the procedure for appealing decisions on inclusion in these lists, is not established at the level of the Law, but can be formulated by the Council of Ministers of the Republic of Belarus.

Citizens included in such a list, for five years, even after the cancellation or removal of a criminal record, will not be able to engage in the following activities:

  • activities related to the circulation of drugs, psychotropic substances, their precursors;
  • activities related to the circulation of weapons, ammunition, explosives;
  • publishing activities
  • pedagogical activity (in terms of the implementation of the content of educational programs);
  •      public office;
  •      military service.

The financial transactions of such people are placed under special control. Thus, citizens who have served their sentences under “extremist articles” are limited in a number of rights for a long time. At the moment, the Law does not provide for a procedure for early removal of a person from the list, only in connection with the cancellation of sentences or death.

It is important to note that in Belarus since 2014, the State Security Committee has been keeping a “List of organizations and individuals involved in terrorist activities” on the basis of the Resolution of the Council of Ministers of the Republic of Belarus No. 1256 dated December 30, 2014. In our review on this topic, we pointed out that one of the reasons for including people in this List is the existence of sentences or charges under a number of articles, including those articles that are considered “extremist.” Such articles can definitely be considered A     rticle 130 of the Criminal Code (“Incitement to racial, national, religious or other social hostility or hatred, rehabilitation of Nazism”), article 293 of the Criminal Code (“Riots”) and article 361 of the Criminal Code (“Calls to actions aimed at inflicting harm to the national security of the Republic of Belarus “). That is, if a person has a charge under any of these articles, he can be included in the list of “terrorists”, and after the entry into force of the court verdict –      also on the list of “extremists”. It is difficult to understand how the division or synchronization of these lists will take place, especially since “carrying out terrorist activities” is included in the concept of “extremist actions” in accordance with the Law.

The new version of the Law expands the list of government bodies that act as subjects of countering extremism: it includes republican government bodies in the field of culture, education, bodies for religious and ethnic affairs, the National Academy of Sciences of Belarus, justice bodies, financial investigation bodies, local executive and regulatory bodies.

A new way      of countering extremism appeared in the Law: in addition to preventive measures, Article 4 now includes      a measure on “civil and patriotic education of children and youth, the formation of spiritual and moral values, civic consciousness and patriotism among citizens.”

Article 19 of the Law prohibits the use of “national historical and cultural values”, as well as state symbols and official heraldic symbols for “propaganda of extremism”, as well as “calls for extremist activity” (for example, we can talk about the depiction of the historical coat of arms of Pogonya [the Chase]).

What this might mean in practice and what is wrong with the Law

In 2020, the use of anti-extremist legislation became the basis for combating dissent and a mechanism for limiting the rights to freedom of expression, freedom of assembly and association, guaranteed by the International Covenant on Civil and Political Rights. The proposed changes will make it possible to call      not only any forms of manifestation of peaceful protest, but also all activities of civil society“extremist” –      primarily because of the broad formulations and a wide range of powers of state bodies. The emphasis on “formations” that can be recognized as extremist by the decision of the Ministry of Internal Affairs or the State Security Committee jeopardizes any opportunities for self-organization and solidarity of citizens, including in response to repression and gross violations of human rights.

A     ny attempt to use the white-red-white flag and the emblem of the Pogonya is likely to      be prosecuted, and all those convicted of “mass riots” or for repeated participation in actions will be included in the list of “extremists” with a number of restrictions on their rights for 5 years after serving their sentence.

In this regard, we consider it unacceptable to adopt amendments to anti-extremist legislation and demand to:

  • abandon the practice of persecuting citizens for any manifestation of dissent in a peaceful manner;
  • release political prisoners, guarantee the rights to freedom of expression, freedom of assembly and association;
  • bring national legislation in line with international standards in order to prevent arbitrary application of restrictions on the right to freedom of expression by abolishing the “anti-extremist” laws in their current form (declare invalid the Law “On Countering Extremism”, decriminalize the actions provided for in Part 1 of Article 130 CC, Articles 361-1, 362-2 and all defamatory articles (Articles 188, 189, 367, 368, 369, 369-1, 391 and 370 CC);
  • when determining the admissibility of restrictions on freedom of expression, be guided by the international legal obligations of the Republic of Belarus – primarily Article 19 of the International Covenant on Civil and Political Rights, the OSCE commitments, taking into account their interpretation by the UN Human Rights Committee and the European Court of Human Rights, and take into account the provisions of the Camden Principles on Freedom of Expression and Equality, the Rabat Action Plan to Prohibit the Promotion of National, Racial or Religious Hatred that constitutes incitement to discrimination, hostility or violence, and the Johannesburg Principles of National Security, Freedom of Expression and Access to Information.
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