On August 5, 2021 Alexander Lukashenko signed a decree which thoroughly describes the procedure of loss of citizenship for “extremism”. The procedure is provided by the new version of the Law of the Republic of Belarus of August 1, 2002 No. 136-З “On Citizenship of the Republic of Belarus” (hereinafter – the Law on Citizenship). Now according to part 2, article 19 of the Law on Citizenship, it is possible to lose citizenship for “participation in extremist activities or for causing grievous harm to the interests of the Republic of Belarus”. Only adult citizens who have acquired citizenship not by birth can be deprived of citizenship in this way. There must be a final verdict of a national, foreign or even international court confirming their participation in such activities. Acquiring citizenship not by birth means that a person became a citizen of Belarus:
- by granting of citizenship, or
- by registration, or
- by restitution of Belarusian citizenship.
The procedure of loss of citizenship for “extremism” can be initiated by an interested state body by sending a letter to the Ministry of Internal Affairs (hereinafter – MIA). Such a letter shall be accompanied by a copy of the court ruling, which confirms the participation of a person in extremist activities or in causing grievous harm to the interests of Belarus. MIA makes its decision which is then sent to the State Security Committee and the Commission on Citizenship under the President of Belarus. The term for considering the issue of the loss of citizenship should not exceed 6 months. If the Commission considers the arguments of other state bodies sufficient, then the president signs a decision on the person’s loss of Belarusian citizenship.
Legislators do not explain what happens to a person after his or her loss of Belarusian citizenship. If a person is on the territory of Belarus, then most likely at the time of loss of citizenship he or she will be serving a criminal sentence. After the release his or her fate remains unclear, especially if the procedure for expulsion from Belarus is initiated against him or her.
It should be noted that according to Article 10 of the Constitution of Belarus “no one can be deprived of the citizenship of the Republic of Belarus or the right to change citizenship”. Similar norms are contained, among other things, in international legal acts such as the Universal Declaration of Human Rights by the United Nations (hereinafter – the UN) and the UN Convention on the Reduction of Statelessness. The Constitutional Court of Belarus during assessment of the constitutionality of part 2, article 19 of the Law on Citizenship noted that international legal acts allow deprivation of citizenship in certain cases, which means that Belarusian Law on Citizenship fully complies with the Constitution and international standards on these matters. According to the court’s opinion, loss of citizenship due to the commission by a person of guilty unlawful acts causing grievous harm to the Republic of Belarus, is not an act of arbitrariness on unlawful, unjust and socially unjustified grounds; does not constitute discrimination on various grounds (including political opinion); is proportionate to the interests protected by the Constitution; does not apply to citizens of Belarus by birth.
This procedure is not a novelty of Belarusian legislators and can be found in the laws of many countries. Nevertheless, the question arises as to how fairly and justifiably the procedure for losing citizenship for “extremism” will be applied in practice, especially given the huge number of corpus delicti recognized as “extremist”.
Next, we want to tell in more detail for which actions a person can theoretically be deprived of citizenship, and we will study the practice of applying “anti-extremist legislation”.
On Julу 26, 2021 Prosecutor General of Belarus Andrei Shved said that over 4,200 criminal cases related to extremism and terrorism have been initiated in Belarus (of these, 803 criminal cases against 1116 people have already been sent to the courts, 704 criminal cases against 955 people have been considered). Also on July 30, 2021, the Investigative Committee stated that since August 2020, 4,691 criminal cases have been initiated on the facts of “illegal mass events, riots, protests, encroachments on state sovereignty and public safety, deliberate destruction and damage to property, violence and threats against officials and members their families”. Most of such actions after the recent amendments to the law “On Counteraction to Extremism” can now also be attributed to anti-extremist legislation. This significantly expands the use of the term “extremism” as a basis for restricting freedom of expression, assembly and association for political reasons.
The footnotes to Article 19 of the Law on Citizenship say that participation in extremist activities or causing grievous harm to the interests of the Republic of Belarus means the commission of crimes provided for in Articles 124-126, 130-133, 287, 289-2905, 293, 356, 357, 359 –3613 of the Criminal Code of the Republic of Belarus (hereinafter – the Criminal Code). That is, you can only lose your citizenship for criminal offenses. Such administrative “extremist” offenses as displaying, making or distributing Nazi symbols (article 19.10 of the Code of Administrative Offenses or distribution, production, storage, transportation of extremist materials (article 19.11 of the Code of Administrative Offenses) are not sufficient grounds for deprivation of citizenship.
Most of the articles of the Criminal Code listed above are used by law enforcement and judicial authorities to suppress any form of self-organization in society, punish for expressing an opinion that is objectionable to the authorities, as well as for criticizing representatives of the authorities. Let’s consider in detail the practice of using each of the articles.
Articles 124 (“An act of terrorism against a representative of a foreign state or an international organization”), 125 (“Attack on internationally protected institutions”) and 126 (“International terrorism act”) are connected to crimes against the peace and security of mankind, responsibility for which is provided not only by national, but also by international law. Illegal acts within the framework of these articles are one of the most serious crimes, which are included in the Criminal Code. It provides for liability up to the death penalty. Crimes with such a composition on the territory of the Republic of Belarus have not yet been recorded.
The code also classifies article 130 of the Criminal Code (“Incitement to racial, national, religious or other social hostility or hatred”), which since August 2020 has become one of the most popular articles used to suppress freedom of opinion and punish citizens who respond negatively about the current authorities, to the same group of crimes. Now public criticism of the actions of the authorities or the security forces is often interpreted by law enforcement officers as “inciting social hostility towards representatives of the professional group”. This article became a popular news item of police reports – news about bringing people to justice for “inciting social hostility” can be found almost every day. Now a huge list of actions can be considered as incitement of “social hostility” towards government officials, police officers, military personnel and other officials, such as:
- harsh critical messages or comments on the Internet to the current de facto authorities and law enforcement agencies; less often – less radical criticism (“the formation of a hostile socio-psychological attitude”);
- calls for aggressive actions or violence against such persons;
- de-anonymization of such persons and the transfer of their personal data to the Internet (for example, Beltelecom employees, an employee of the cadastral agency and a bank employee who transmitted the data of the security forces representatives);
- calls for demolition, arson, destruction of property, violence and armed resistance to government officials;
- blogging with an opposition agenda (as in the case of Pavel Spirin, Roman Protasevich, Anton Motolko, Igor Losik and many others).
Many opposition representatives from various spheres are accused under this article of the Criminal Code: for example, politician Sergei Tikhanovsky; singer Angelica Agurbash, who demonstrated solidarity with Belarusians; ByPol representatives Oleg Talerchik and Igor Loban, and many others. Under the same article, a criminal case was opened against the Mayor of Riga Martins Stakis and the Minister of Foreign Affairs of Latvia Edgard Rinkevich for publicly replacing the official state flag of Belarus with a white-red-white one. However, it is worth noting that this particular case is about inciting “national hostility”. It is also known about the recent 4-year verdict of probation) for inciting hostility on ethnic grounds for various negative statements in relation to the Russian nationality (“Russians are robbers and murderers”, “a good Muscovite is a dead Muscovite”, “my favorite fruit for you, Muscovites, is a nuclear mine”).
More recently, article 1301 (“Rehabilitation of Nazism”) appeared in the Criminal Code, in which the rehabilitation of Nazism was separated into a separate composition (since 2019 it was in article 130 of the Criminal Code). Law enforcement officers place the main emphasis while using the article for the rehabilitation of Nazism in 2021 on socio-educational and cultural initiatives within the framework of the “fight against glorification” of persons whom the authorities consider to be collaborators. This article of the Criminal Code especially affected various Polish initiatives: for example, in March, the Brest Prosecutor’s Office opened a criminal case on the fact of “glorification of war criminals” against the staff of the Brest Forum of Polish Local Initiatives and the “Polish School”. The reason for this was an educational event where various historical figures were discussed.
The law enforcement officers went beyond, and as a result the Grodno prosecutor’s office opened a criminal case under the same article against the head of the Center for Urban Life Pavel Mozheiko and the artist Ales Pushkin. On March 19, at the art exhibition Ales Pushkin’s portrait of the historical figure Yevgeny Zhikhar with a rifle on his shoulder, who was considered a collaborationist by investigators, was shown.
It is important to point out that the tendencies to combat the “Nazism rehabilitation” contradict international standards of the right to freedom of expression, which state that political criticism and analysis of historical themes cannot be grounds for criminal prosecution.
Hereinafter, Article 131 of the Criminal Code (“Ecocide”) states liability for the mass destruction of flora or fauna, the poisoning of air or water resources, alongside with any acts capable of causing an ecological catastrophe. Note that in order to initiate a case under this article, ecology should be harmed to a great extent. We possess no information on the application of this article on the territory of the Republic of Belarus.
Articles 132 (“Recruitment, training, financing and use of mercenaries”) and 133 (“Mercenarism”) of the Criminal Code criminalize participation in armed conflicts on the territory of a foreign state, as well as material support and use of mercenaries. The most popular application of Article 133 in the Republic of Belarus took place during the armed conflict in Ukraine – in 2016, 138 people passed under this article, regardless of the side they represented. In 2021, there was no information about any high-profile cases related to mercenarism.
Massive pressure on civil society took place in July 2021. There have been many arrests and searches, some of which were part of an unknown terrorism case. Suspicions of involvement in crimes under Article 289 (“Act of Terrorism”) became a common reason for arresting activists. Under this article, the security forces detained political figures Vasily Polyakov and Maria Voytovich, volunteers Sergei Borisov and Ilya Mironov, activist Andrei Pristavko and blogger Anastasia Pilyugina. Human rights activists Valery Putitsky and Andrei Medvedev, businessman Denis Shilenok, as well as journalists from Media-Polesye, Perviy Region, 6TV.by and other media were searched under Article 289 of the Criminal Code. Most of the people with this article were detained for 10 days for a check. This fact has been reported by the detained journalists and activists, who stayed with these people in the same cell in the isolation ward.
It is still not quite clear what kind of terrorist acts were discussed, as such events did not appear in the news reports. Perhaps this activity of the security forces is associated with the “sleeper terrorist cells”, which Alexander Lukashenko mentioned in his speeches on July 2, 2021, and journalist Oleg Gruzdilovich reported that many people stayed in a temporary detention center in connection with the mysterious “terrorist case of blowing up Vileika “.
Moreover, many detainees report the interest of law enforcement officers to the chats of the “СSDB” (Civil Self-Defense Detachments of Belarus) and “Busly Lyatsyats”, which were recently recognized as extremist (and the СSDB organization itself was recognized as a terrorist one) and which have recently been frequently mentioned in the context of “anti-terrorist operations”. Thus, it has been reported that during the searches the officers tried to find “a connection with terrorism and the СSDB” among the Zavodskoy district of Minsk inhabitants. The data provided by the Viasna human rights center indicates that within the framework of Article 289, searches were carried out at chat participants’ places, which were identified by the security forces. Moreover, the Frunzensky District Court sentenced the Minsk resident to 10 years in a strict regime colony on charges of setting a T-72 tank on fire at a railway station by throwing a Molotov cocktail with the inscription “СSDB”.
It is important to note that the detentions under this article have taken place since October 2020 and the use of this article in political repression is growing over time. On October 28, the so-called “Olinevich group” was detained, whose members, according to the State Security Committee, were involved in the arson of cars and administrative buildings. Likewise, in December 2020 the “Autukhovich group” was detained, 13 members (5 of them are women) are suspected in the preparation of various terrorist attacks throughout the country. All of them are already put on the list of terrorists, even before the court’s decision.
It is also known about the prosecution under Article 289 not only for committing or intending to commit any practical actions, but also for “instigation to commit an act of terrorism” – as part of this corpus delicti, the Smorgon District Court sentenced a resident of Golshan to 8 years and 1 month in colony under high security. The court regarded the statements “Tomorrow we are going to storm the local KGB (the State Security Committee)” and “Small groups with Molotov cocktails” as instigations to terrorism, although the man himself claimed that he was only “trolling” the security forces on the Internet.
It is also worth noting that on March 29 the Prosecutor General’s Office opened a criminal case under Article 289 against Svetlana Tikhanovskaya and representatives of the BYPOL initiative for alleged, in cooperation with an unknown citizen, “try to make explosions and arson on the territory of Minsk and other cities”.
Hereinafter, Articles 290-2905 of the Criminal Code also cover responsibility for terrorism and activities directly related to it. Thus, these articles state liability for the threat of an act of terrorism, financing and facilitating terrorist activities, as well as for undergoing training or creating an organization (or taking part in its work) for such activities. There is no public information about crimes under these articles on the territory of the Republic of Belarus, and the practice of “war on terrorism” is almost fully limited to the use of the aforementioned article 289.
Nevertheless, in September 2021, the security forces “remembered” another “extremist article” – article 359 of the Criminal Code (“An act of terrorism against a state or a public figure”), which the legislators decided to separate in the code from article 289, despite the fact that they have almost identical sanctions. The article states responsibility for murder, seizure, holding as a hostage, abduction, imprisonment of a state or public figure. Based on the List of Organizations and Individuals Involved in Terrorist Activities, it can be noted that a political activist and journalist Olga Karach, Dmitry Sosnovsky, who is accused of attempting murder of STV journalist Grigory Azarenko, and Denis Hofman, who according to state media, was included in “a destructive chat that recruited militants”, are investigated under Article 359. Moreover, on September 15 it became known that a whole family was detained within the framework of this article, which members are accused of attempting to set the cottage of deputy Oleg Gaidukevich on fire.
In the post-election period, the notorious article 293 (“Riots”) became “popular”. Under this article, the protesters who participated in the events of August 9-11, 2020 are still being punished. The article states responsibility for organizing, preparing persons for participation or direct participation in actions accompanied by violence against a person, demolition, arson, destruction of property or armed resistance to representatives of the authorities. As the court practice shows, people can be accused of this article even for the very fact of participation in mass events. There is also a possibility that in case of being detained at a protest rally and during a search (or during a search at your place of residence) any means that can potentially harm your health or property are found (for example, self-defense means – pepper spray, batons ; folding knives; firecrackers, etc.), the allocation of such items can be interpreted as “preparation for riots.”
Criminal liability can be given for calls for protest actions (which the investigating authorities interpreted as “organizing mass riots”). Thus, many well-known opposition politicians are targeted under Article 293: Sergei Tikhanovsky, Nikolai Statkevich, Pavel Sevyarynets and many others. The practice of using this article against opposition politicians is not new – for example, in 2011, ex-presidential candidates Andrei Sannikov, Dmitry Uss, Nikolai Statkevich and many others were convicted under this article. There are cases under this article against popular opposition bloggers as well: Stepan Putilo, Roman Protasevich, Anton Motolko, Eduard Palchis.
It is interesting that the verdict under Article 342 of the Criminal Code (“Organization and preparation of actions that grossly violate public order, or active participation in them”) is not indicated in the law as a basis for deprivation of citizenship, despite the fact that the practice of applying this article actually coincides with practice the application of the article on Riots (these articles very often appear together in one charge). Moreover, the law “On Counteraction to Extremism” classifies actions that grossly violate public order as “extremist activities”.
In this regard, it is worth mentioning that not many acts are considered by the Law on Citizenship as grounds for deprivation of citizenship, which, however, are clearly classified by the Law on Countering Extremism as manifestations of extremism. Thus, deprivation of citizenship under “extremist” articles for obstructing the work of electoral bodies (article 191), illegal actions with respect to firearms, ammunition and explosives (article 295), creation of an illegal armed group (article 287), insulting the president (article 368), insulting a representative of the authorities (Article 369), discrediting the Republic of Belarus (Article 3691) is not provided.
Article 356 of the Criminal Code (“Treason”) covers the responsibility for issuance of secrets, espionage, deserting, as well as helping foreign states or organizations, oriented on inflicting harm on the national security. On May 14, the judicial collegium on criminal cases of the Supreme Court of the Republic of Belarus sentenced the soldier Denis Urad to 18 years of imprisonment in the colony under high security, as well as deprived him of the title «captain». Nothing is known about the so-called-secrets issued as well as about states or organizations with whom he could cooperate, since, as a rule, the court hearings under such an article are being considered by the Supreme Court in closed mode. On August 3, it became known that in the Supreme court, according to an almost identical procedure, one more hearing against citizen Sokolov Alexander, about whom human rights activists know nothing, has begun.
It is important to mention that the article provides for liability for breach of secrets not only considering state officials and soldiers but also considering any citizens. It is also known that under this article the journalist and media-manager Andrey Alexandrov was charged.
The number of cases of using article 357 (“Conspiracy or other actions committed to seize state power”) as a pretext for repression against the opposition is increasing. Analyzing the practice of applying this article, it can be noted that it is most often applied to the most famous leaders of the Belarusian opposition movement.
One of the most discussed cases under this article was “the case of riot”, in which political scientist Alexander Feduta, lawyer Yury Zenkovich, practicing in the US, and the head of the “Belarusian Popular Front” (BPF) party Gregory Kostusyov were detained. They are accused of the armed riot preparation, the goal of which was the elimination of the main state persons, including A.Lukashenko and his family. A bit later, a 35 year old trucker from Naroch Denis Kravchuk was arrested, who is being accused in this case. Though his role in the «conspiracy» is unknown.
Under the same article charges were brought against the main opponents of Lukashenko, members of Coordination Council (CC): Sviatlana Tsikhanouskaya, Maria Kalesnikava, Maxim Znak, forced into exile from Belarus Pavel Latushko, Olga Kovalkova and Sergei Dylevsky. From the governmental reports it isn’t entirely clear which actions of the representatives of the opposition fall under the concept of “conspiracy”. It seems the very fact of the creation of the Coordination Council as an organised structure is qualified as “conspiracy”. Political columnist Valerya Kostyugova was arrested under the same article.
Further down the list, article 360 of the Criminal Code (“Sabotage”) is considered to be “extremist”. Sabotage is commission of an explosion, arson, as well as actions, creating danger of people’s deaths, inflicting them body injuries, destroying or damaging buildings, structures, facilities, ways and means of communication and other property in order to damage economical security and defence of the Republic of Belarus. We are not aware of any cases of sabotage. In our opinion it is due to the fact that very similar actions are outlawed by the article 289 which became a “favourite” for law enforcement officers.
In the post-election period we have recorded adiverse practice of the article 361 usage (“calls for actions aimed at causing harm to the national security of the Republic of Belarus”) both in relation to widely known opposition representatives and ordinary citizens.
Since August 2020, members of the Coordination Council Maria Kalesnikava, Maxim Znak, co-founder of the school of young managers in public administration Sympa and independent expert in the field of governmental management Tatyana Kuzina, the lawyer of the Victor Babariko’s headquarters Illia Salei, the founders of the “Belarusian sport solidarity foundation” Aliaksandra Herasimenia и Alexander Opeykin, the anarchist Mikola Dziadok have been charged under this article. In fact, all the cases have been filed for systematic and public criticism of the government.
Moreover, the article was used as an instrument of pressure on the media – for the publication of the interview with Svetlana Tikhanovskaya in April 2021, the check started within the criminal case against the editor of the independent Baranovichi’s newspaper Intex-press Vladimir Yankuzevuch (later the interview was recognized as an extremist material).
Part 3 of the article, which reinforces the responsibility for using the media or the Internet for “calls”, is especially popular. Thus, the article becomes an additional pretext for limiting the freedom of speech on the Internet and in public space.
Also, on July 15, 2021, a hearing of a criminal case under article 361 began against the administrator of Telegram channel “white robes”, who was arrested last year in November. According to the materials of the case, his Telegram channel contained repeated calls for mass dismissals of the medical staff and participation in protests and strikes. Besides, there were posts identified supporting illegal mass meetings by the medical staff and means of counteraction to the current government.
It is worth mentioning that this isn’t the only application of the article 361 of the Criminal code to punish activity on Telegram. The regional Court of Grodno began consideration of the case under part 3, article 361 of the Criminal code against a 29-year-old man from Grodno. The man was accused of public appeals to violence and committing acts of terrorism, allegedly posted by him in advance in one the Telegram chats in October or November 2020. At the trial, the accused stated that he had been participating in the discussions and had been expressing his civil position, he’d given emotional speeches against police forces and had never written the most radical from the comments below (“take picks, press them with the help of MAZes, BelAZes”). Also, Anton Motolko is prosecuted under this article.
There is a rising amount of prosecutions under article 3611 (“Creation of an extremist group or participation in it”). The Investigative committee has repeatedly stated that the administrators of the opposition courtyard chats will be responsible under the 1st part of article 3611 of the Criminal code. Thus, law enforcement officers assimilate usual courtyard chats to real extremist groups. The practice of this connection is completely ambiguous: some chats administrators, who were successfully identified by the law enforcement officers, are made to record “confession” video, others are punished for “violating the order of organizing or holding mass events” (article 24.23 of the Code of Administrative Offences), and some are detained within criminal cases “of insult” or “incitement of social hostility”. Though, there are cases of chats’ and channels’ administradors being brought to liability under this article. So, under this article, Olga Zolotar, a mother of five children, has been under arrest since March 2021, who, according to the Ministry of Internal Affairs, was an administrator of the local courtyard chat and arranged “tea parties”, “walks” and “concerts”. Anton Boyarsky, the alleged administrator of the popular Telegram channel “Maya kraina Belarus”, is also accused of similar acts.
Also, under this article, together with article 357, charges were brought against the aforementioned members of the main structure of the Coordination Council, including Sviatlana Tikhanovskaya. Probably the Coordination Council is considered to be an «extremist group» by the police forces, and their members are seemed to be judged for its creation. Moreover, the case that was indicted against Anton Motolko includes this article as well for unknown reasons.
We are also aware of two cases of application in practice of article 3612 of the Criminal code (“financing of extremist activities”). Thus, in July, volunteers of Country to live foundation, Marina Dubrovskaya, Anton Stashevskiy, Yulya Syryh and Tatyana Ostrovskaya were charged under this article. They were forming food parcels for detainees. It is important to mention that criminalization of such a voluntary activity violates the right for freedom of association. Also, a case under this article was instituted against the founders of BYSOL (an initiative that helps with the payment of fines for participation in protests) Andrey Strizhak and Alexey Leonchik. Thus, any support for the protesters or repressed ones can now be considered as “financing extremis” by the police forces.
So far, no cases have been initiated under article 3613 (“participation on the territory of a foreign state in an armed formation or armed conflict, hostilities, recruitment or preparation of persons for such participation»), article 3614 («promoting extremist activities”), as well as article 3615 (“undergoing training or other training to participate in extremist activities”). However, considering the expansion of applying “anti-extremist legislation” practice suppressing any opposition and activists manifestations, it can be assumed that these articles could soon be used for repressive purposes.
On the basis of the analysis being conducted we see that the practice of using “extremist” articles of the Criminal code is mainly limited to political cases. It becomes obvious that part 2, article 19 of the Law on Citizenship was adopted not as a measure to combat the real dangerous manifestations of extremism and terrorism, but possibly as one more instrument for repression against people whose activity is unwanted for the authorities. With the entry into force of A.Lukashenko’s decree, which regulates in detail the procedure for deprivation of citizenship for “extremism”, we risk to assume that in the near future the authorities will begin to actively use this instrument for deepening repressions against civil society and as a result this will lead to even greater deterioration of the situation with human rights in Belarus.