The document further describes the general scheme of investigations into crimes of "inciting hatred." We propose to consider the prescribed investigative tactics through the prism of the Rabat Plan of Action to prohibit the promotion of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence
. The Rabat Plan recommends using a six-part test to determine speech that should be restricted and criminalized.
(should place the statement within the social and political context prevailing at the time the statement was made or disseminated).
The Methodological Recommendations do not contain a recommendation to analyze the context of a statement when investigating cases of "incitement to hatred", which does not meet the standards of the Rabat Plan.
(it is necessary to take into account the position or status of the speaker in society, including in relation to the intended audience of the statement).
The Methodological Recommendations mention the need to thoroughly study the personality of the person suspected of "inciting hatred." In particular, it is recommended to interrogate relatives, acquaintances, colleagues, classmates, and work colleagues who may have been aware of "the possible intolerance and hostility of the offender" towards certain groups. It is proposed to tap the suspect's phone and analyze conversations for the presence of "extremist views and beliefs" on the suspect, as well as conduct an examination of the suspect to determine tattoos of "extremist content" on the body. In all these cases, only the personal views of the suspect are analyzed regarding whether the person is an adherent of "extremist" ideologies and whether one is generally capable of committing "extremist" crimes." At the same time, the international standard provides for studying the personality of the speaker from a completely different perspective - not from the point of view of whether one has spoken before on the same topic or whether one supports any ideology, but from the point of view of one's position in relation to the desired audience of the statement. For the Investigative Committee, which conducts an investigation on the basis of the Methodological Recommendations, it will not matter whether the statement was made by a popular politician with a large audience supporting him and ready for any action, or whether it was made by an unknown person, far from social-political agenda, who decided to leave a single comment on the Internet. Thus, the recommendations specified in the document do not comply with the requirements of the Rabat Plan.
(analysis of the intent, since negligence and recklessness are not sufficient grounds for prosecution);
The Methodological Recommendations indicate that the subjective side of a crime under Article 130 of the Criminal Code is characterized by guilt in the form of direct intent
, that is, in the case when a person was aware of "the social danger of one's action or inaction, foresaw one's socially dangerous consequences and desired their occurrence," as well as one's "special alternative purpose
" was to incite hostility. Consequently, in this case, the obligation is fixed to analyze the "intention" criterion, which formally corresponds to the requirements of the Rabat Plan. In judicial Belarusian practice, the presence or absence of intent does not affect the desire to punish a person. Many people who were accused of "inciting hatred" during the trial stated that with their statements they only wanted to express their critical opinion on socio-political topics, most often driven by emotions caused by massive violations of human rights in Belarus. At the same time, people did not imagine that security forces and courts use such a broad interpretation of the provisions of Article 130 of the Criminal Code according to which any comment with a negative connotation about any social groups can be considered "inciting hatred." We remind you that predictability of law enforcement is one of the principles of law.
For example, cultural manager Mia Mitkevich was sentenced
to 3 years in prison, despite the fact that in court she stated that she "wanted to express an opinion and throw out emotions without any consequences" with her comments, "did not pursue the goal of harming anyone" or incite social hostility or provoke someone to take active action," and also added that she did not know about the existence of a "sign of social affiliation" in this crime.
● Content or form
(analysis of how direct and provocative the statement was; consideration of form and style, the nature of the arguments put forward by the speaker, balance of argumentation);
The need to conduct forensic linguistic and psychological examinations in each criminal case is indicated, which generally correlates with the recommendation of the Rabat Plan to analyze the form and style of statements. However, it should be noted that in all cases, forensic examinations are carried out by employees of government agencies, in particular experts from the State Committee for Forensic Examinations of the Republic of Belarus. Such experts support the political course of the Belarusian regime, including its vision of the "danger" for the state of certain statements related to politics, and also tend to interpret
various theses extremely broadly: for example, often harmless calls, for example, "to resolve issues with authorities within the framework of the law" can be interpreted as "a call for the murder of government officials." Moreover, directly during the trial, judges always reject requests to include research done by independent experts into the case on various procedural grounds. Thus, the practice of investigating Article 130 of the Criminal Code does not meet the requirements of the Rabat Plan in the context of taking into account the "content and form" of statements.
The topic of challenging the content and form of a statement, as well as justifying the incorrectness of examinations and the incompetence of experts, is an independent complex topic that is very difficult to cover in detail within the framework of this material. It is recommended that you actively apply the standards set out in this article and use all available legal remedies. Ultimately, the accumulation of a critical mass of understanding of the incorrectness of the practice of applying liability under this and other articles will yield results.
● Degree of publicity
(analysis of the accessibility of the statement, the nature of the addressee, the significance and size of the audience);
The Methodological Recommendations do not contain any theses on analyzing the degree of publicity of a statement. Sometimes the case materials contain information in this regard (the number of views on an "extremist" video, the number of subscribers of the accused blogger), but we assume that in practice this information has virtually no effect on the course of trials under Article 130 of the Criminal Code. In practice, both statements made in personal correspondence, small or even closed chats, as well as statements by bloggers with an audience of thousands and their videos are subject to criminal prosecution.
● Likelihood of the call being implemented, including imminence
(analysis of the likelihood that the statement could provoke actual action against the target group).
The requirements for materials provided to investigative units by investigative bodies indicate the need to collect "information about persons who have become familiar with posted extremist materials (for example, who have read relevant messages on a social network, instant messenger), as well as explanations from these persons": in this case, there is an attempt to study the likelihood of the call being realized (what the user who read the statement was thinking about; what urge one saw in it; whether one was ready to take any actions based on this statement). However, in practice, security forces and courts believe that almost any comments containing criticism of government officials can most likely become the cause of outbreaks of violence in society. Thus, in the framework of the "Zeltzer case," a resident of Brest was sentenced
to 3 years in prison for the comment "That's what these regime creatures need. I feel sorry for the guy" - the prosecution considered that this comment could "cause an outbreak of violence against law enforcement officers." Also, an ex-journalist from Baranavichy was sentenced to 3 years in prison for a comment in which he called a deceased employee of the State Security Committee a "dog" and added that security forces will continue to die if they "continue to come to the apartments of honest Belarusians" - according to investigators, the commentary contains "statements aimed at increasing anti-state sentiment, approval and propaganda of violent resistance to law enforcement officers of the Republic of Belarus." Also, in many cases, people are persecuted for comments that were left several months or even years before the start of the trial, when it becomes obvious that during this time period no socially dangerous acts were recorded that have a direct cause-and-effect relationship with the statement.
It follows from the logic of the Rabat Plan that in order to criminally punish a person for speaking out, all of the above criteria must be analyzed simultaneously. In order to impose restrictions on speech (in our case, criminal prosecution), the results of the analysis of each of these criteria must collectively demonstrate that the speech poses a threat of an outbreak of violence. So, if a person directly and harshly calls for violence against any religious group, does this in one's kitchen in a country where interfaith conflicts have not been observed for many years, while all recipients of the statement have no respect for this person and are not ready to follow one's advice or calls, then in this situation, within the framework of the "content and form" criterion, the statement may seem dangerous, at the same time, through the prism of analyzing criteria "degree of publicity", "context", "speaker" , "the likelihood of the call being implemented", such a statement does not pose a danger, and therefore, we can conclude that based on the totality of the results of the analysis of each of the criteria separately, this statement should not be subject to restrictions, and the speaker should not be subject to criminal prosecution. Also in this regard, it is worth adding that the criteria of the Rabat Plan are recommended for use not as a "formula" for calculating the amount of punishment for any statement (for example, the smaller the audience - the lesser the punishment), but in order to determine whether this or that statement is a crime at all.
Having analyzed the provisions of the Methodological Recommendations through the prism of the Rabat Plan, we can conclude that some of the analyzed provisions of the document, despite formal compliance with the standards of the Rabat Plan, have a repressive nature of application in practice. Also, the Methodological Recommendations do not contain obligations to analyze the context and degree of publicity of the statement. Thus, we can conclude that the Methodological Recommendations do not fully comply with the standards recommended for use by the Rabat Plan.
A defender in a trial under Article 130 of the Criminal Code, who wishes to operate with the norms of international legal standards, in particular the Rabat Plan, can argue for the need for the court to take into account its norms, and also refer directly to its norms as follows: