Based on the announced charges under part 1 of Art. 361-4 of the Criminal Code, attorney A. Danilevich is also being prosecuted for an interview on legal issues that he gave to a media resource on the Internet.
Criminal prosecution for attorney's exercise of the right to free expression contradicts the law and the international obligations of the Republic of Belarus to ensure fundamental individual rights.
According to part 1 of Art. 33 of the Constitution of the Republic of Belarus, everyone is guaranteed freedom of opinion, expression and their free expression.
According to paragraph 23 of the Basic Principles concerning the Role of Lawyers, lawyers, like other citizens, have the right to freedom of expression, belief and assembly. In particular, they have the right to take part in public debate on matters relating to law, the administration of justice and the promotion and protection of human rights, without being subject to restrictions on their professional activities.
By virtue of paragraph 2 of Art. 19 of the International Covenant on Civil and Political Rights
, everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The Republic of Belarus is a party to the Covenant and therefore is obliged to ensure citizens the rights provided for in it and not violate them.
Based on clause 3 of Art. 19 of the Covenant, any restriction of the right to free expression (and criminal prosecution and criminal liability are such restrictions) must comply with the criteria of legality established by paragraph 3 of Art. 19 of the Covenant: restrictions must be established by law and can only be applied in the interests of national security, public order, the protection of morals, public health, the rights and freedoms of others, and they must strictly meet the requirement of necessity (and proportionality - which is explained in detail by the Human Rights Committee).
The Human Rights Committee, established in accordance with the Covenant and empowered to interpret it, explaining the issue of criteria for the legality of restrictions on freedom of expression in General Comment No. 34
, September 12, 2011 (paragraphs 34, 35), indicated that:
- restrictions should not be overly broad. Restrictive measures must comply with the principle of proportionality; they must be appropriate to fulfill their protective function; they must represent the least restrictive means by which the desired result can be achieved; and they must be proportionate to the interest protected. The principle of proportionality must be respected not only in legislation that provides for restrictions, but also by administrative and judicial authorities in the process of applying legislation;
- when a State party invokes legal grounds when imposing restrictions on freedom of expression, it must demonstrate clearly and in detail the specific nature of the threat, and that the adoption of specific measures meets the criteria of necessity and proportionality, in particular by establishing a direct and immediate connection between form of expression and threat (for the values listed in paragraph 3 of Article 19 of the Pact).
From the charges brought against attorney A. Danilevich, it is clear that the restriction of his right to free expression does not meet the criteria of legality, is unfounded and disproportionate.
In particular, the specific real nature of the threat from A. Danilevich's interview to the values protected by paragraph 3 of Art. 19 of the Covenant wasn't presented by the prosecutors. In addition, it has not been substantiated whether the restriction already applied to A. Danilevich in the form of a criminal charge is necessary and proportionate to the protected values (interests). That is, the state has not justified why it is necessary to criminalize an interview that does not contradict the law and was done in the correct form. At the same time, it is obvious that criminal charges and detention of A. Danilevich for an interview do not correspond the "least restrictive means" term.
In paragraph 23 of the above-mentioned General Comment No. 34, the Human Rights Committee notes that the restriction of the right to free expression under paragraph 3 of Art. 19 of the Covenant cannot serve as a justification for silencing any defenders of democratic principles and human rights. Aggression against a person exercising his right to free expression, including arbitrary arrest, is incompatible with Art. 19 of the Covenant.
Accordingly, under the stated circumstances, A. Danilevich's interview cannot be considered a criminal act, since it is an exercise of the right to free expression, within the limits established by the Covenant.
In subparagraph c) of paragraph 77 of the report of the UN High Commissioner for Human Rights A/HRC/46/4
dating February 15, 2021, "The situation of human rights in Belarus in the context of the 2020 presidential elections," the High Commissioner recommended that the Government of Belarus, among other things, immediately and unconditionally release all those unlawfully or arbitrarily detained for the peaceful exercise of their freedoms of expression, including attorneys, and cease any administrative or criminal judicial action against citizens for exercising their human rights, including the right to freedom of expression.