On 28 April 2022, the National Legal Portal published the draft law on amendments to the Belarusian Criminal Code. This draft law provided that the grounds for imposing the death penalty could be expanded for attempted acts of terrorism. Previously, such a penalty could only be applied for the fact of committing an “act of terrorism” with aggravating circumstances (e.g., acts committed by an organized group; or with the use of nuclear energy objects; or with the use of radioactive substances or nuclear materials, potent, toxic chemical or biological substances; or resulting in murder under Article 289-3 of the Criminal Code).

Belarus is the only European country still using the death penalty in its criminal justice system. Capital punishment is systematically criticized by civil society and human rights defenders. Expanding the application of death penalty amid ongoing political repressions and no fair trial guarantees implies another risk to the civil society, some representatives of which are already equated to “extremists” and “terrorists” in the rhetoric of the Belarusian de facto authorities.

The Human Rights Committee while interpreting the International Covenant on Civil and Political Rights (hereinafter – the Covenant) in its General comment No. 36 pointed out that: 

the death penalty cannot be reconciled with full respect for the right to life, and the abolition of the death penalty is both desirable and necessary for the enhancement of human dignity and progressive development of human rights. According to the Committee, States which have not abolished the death penalty can only apply it in a non-arbitrary manner, with regard to the most serious crimes. It is contrary to the object and purpose of article 6, enshrining the right to life, for States parties to take steps to increase the rate and extent to which they resort to the death penalty, or to reduce the number of pardons and commutations they grant.

Human Constanta agrees with the position of its colleagues who strongly condemn the expansion of the death penalty in Belarus. In this commentary, Human Constanta also seeks to analyze possible scenarios for the application of the Criminal Code’s new standard, taking into account the political context in Belarus.

Subjects to the new standard

Belarusian de facto authorities’ copmplicity in Russia’s military aggression against Ukraine sparked the the anti-war movement, which took a variety of forms, including participation in protest actions and humanitarian aid collection. One of the resistance forms included sabotaging the railway tracks in order to stop the advancement of the Russian army’s military equipment on the territory of Belarus. Although such actions entailed no human casualties and were merely aimed at damaging equipment, law enforcement agencies began to actively prosecute the so-called “rail guerrillas” with firearms and classify their actions under the most severe articles of the Criminal Code. 

On the night of 1 to 2 March 2022, two residents of Staŭbcy were detained for setting fire to logs on the railway tracks in order to prevent the movement of trains with Russian equipment through Belarus to participate in the offensive in Ukraine. On 2 March 2022, the detention of a Žodzina resident was reported. The detained had tried to damage railway tracks as well. On 4 March 2022, three residents of Svietlahorsk were detained. According to the Ministry of Internal Affairs (MIA), they had doused the relay cabinet of the signal installation with a flammable liquid and set it on fire, which led to the railway equipment falling into disrepair. On 6 March 2022, a resident of Vitebsk was detained for preparing for an act of terrorism. According to the MIA, he had intended to disable the railway safety systems. On 22 March 2022, an Asipovičy resident was also detained for preparing for an attempt to damage the railway. On 6 April 2022, 3 more people were detained for “terrorist attacks” in the Babrujsk and Barysaŭ districts. Some of them were purposefully shot in the knee joints despite the fact that they did not resist. 

In absolutely all the cases, the detainees’ actions were classified as acts of terrorism. In addition, the authorities decided to tighten the “anti-terrorist” legislation as a response to anti-war activities. The new law on amendments to the Belarusian Criminal Code states that the death penalty can be imposed not only for committing a crime directly but also for preparing for crimes or attempting to commit the following crimes provided for by the Criminal Code: 

• Article 124-2 (“Act of terrorism against a representative of a foreign state or an international organization”);
• Article 126-3 (“Act of international terrorism”); 
• Article 289-3 (“Act of terrorism”);
• Article 359-2 (“Act of terrorism against a state or public figure”).

Not all actions related to “terrorist” activities under these articles can become grounds for the death penalty – only those that involve a number of aggravating circumstances. Thus the death penalty under Articles 124 and 359 of the Criminal Code can be imposed only if the act of terrorism resulted in the murder of the target (a representative of a foreign state, or international organization, or a state, or public figure respectively). The death penalty under Articles 126 and 289 of the Criminal Code may be applied if an act of terrorism was committed by an organized group; or with the use of nuclear energy objects; or with the use of radioactive substances or nuclear materials, potent, toxic chemical or biological substances; or if it resulted in murder.

It is most likely that the authorities, in order to elevate penal responsibility and increase the scale of repressions, will resort to the argument that all the actions of the rail guerrillas were committed by an organized group. Indeed, the people sabotaging the railway tracks rarely acted independently. In this regard, it is important to distinguish the classifications of crimes committed by a “group” and by an “organized group,” due to the fact that only the latter falls under the new changes in the Criminal Code. Crimes committed by a specifically organized group have a greater number of the criteria necessary for it to be recognized as such. 

According to Article 18-1 of the Criminal Code, a crime is recognized as committed by an organized group if it is committed by two or more persons who have previously united into a controlled, stable group for joint criminal activity. The criteria outlined in the Criminal Code seem to be quite broad and vague, and therefore it is worth referring to the judicial practice of applying this article, which is summarized in the Resolution by the Plenum of the Belarusian Supreme Court No. 9 on judicial practice in cases of crimes related to the forming and activities of organized groups, gangs and criminal organizations (Resolution) as of 25 September 2003.

The document defines the essence of the criteria underlying the classification of crimes as those committed by an organized group:

• “Preliminarity” refers to purposeful actions to organize a group, form its structure, define the place and role (distribution of functions) of each participant, which may be evidenced by the actions on planning criminal activity and coordinating the actions of accomplices (paragraph 2 of the Regulation).
• “Manageability” of the group refers to the presence of a leader in its composition coordinating the criminal activities of the group, managing it, and preserving internal discipline (paragraph 3 of the Regulation).
• “Stability” of the group refers to the consistency in composition of the group or its core members, as well as the duration of criminal activity, the close relationship between its members, the ability of the group to continue its activities in case individual participants leave the group (paragraph 3 of the Regulation).
• “Purpose” of an organized group is conducting joint criminal activity, planned, as a rule, for a long period of time and the indefinite period of the commission of various crimes or one, but continuing crime (paragraph 4 of the Regulation).

The rationale of the document and Article 18 of the Criminal Code implies that in order to classify an act as committed by an organized group, such an act is required to meet all of the aforementioned criteria simultaneously. Besides, paragraph 4 of the Regulation states that a sporadic act of committing a crime that required lengthy preparation can be recognized as an act committed by an organized group only if there is evidence that its participants intended to continue joint criminal activity in the future.

Consequently, regardless of the fact that most of the “rail guerillas” did not act individually, their actions can hardly be classified as actions within an organized group, since those individuals having committed acts of sabotage, are not members of any stable group with a clearly defined structure and leadership. Without fulfilling all the criteria, such actions can only be classified as a preparation of crime or attempted crime by an ordinary group, which cannot entail penalty in the form of the death penalty.

Nevertheless, it can easily be assumed that the authorities will employ the widest possible approach in classifying the actions of the “partisans.” For example, it is likely that law enforcement officers, as before, can claim that the acts were provoked by “the influence of destructive extremist Telegram channels,” often referring to the most popular opposition channel NEXTA, recently recognized as an extremist formation, and later as a terrorist organization. Taking into account that in case of extremist formations, subscribers of Internet resources, labeled as such, can be recognized as the members of the formation, it is highly likely that individual offenders can be classified as members of actual organized groups.

It is often reported on state media resources that acts of sabotage carried out by the “rail guerillas” are coordinated by the opposition organizations BYPOL or the Office of Sviatlana Tsikhanouskaya, many members of which, including Tsikhanouskaya herself, are recognized as persons involved in terrorist activities. Thus, “rail guerrillas” can be recognized as perpetrators of crimes (Part 3 of Article 16 of the Criminal Code) committed by an organized group.

It is quite possible that the authorities may claim that the actions of the “rail guerrillas” are characterized by a high degree of public danger and could have led to the death of a person (station staff, train crew, etc.) if they had not been not intercepted in time. As soon as the amendments to the Criminal Code are adopted, not only the immediate death of a person as a result of an “act of terrorism” can serve as a ground for the imposition of death penalty, but the preparation or attempted actions may potentially entail such consequences as well.

Currently, 42 Belarusians are included in the List of persons involved in terrorist activities, most of whom have been charged specifically with “commission of an act of terrorism by an organized group” under part 3 of Article 289 of the Criminal Code. It is also known that 18 listed persons, including Sviatlana Tsikhanouskaya, Pavel Latushka, Anton Matolka, were accused under the mentioned article exactly in conjunction with allegations of an “attempted crime” under Article 14 of the Criminal Code. On 16 May 2022, the case against members of the so-called “Avtukhovich group” is to be considered. Allegations against the members of the group related to part 3 of Article 289 of the Criminal Code as well, which prompts the concerns of the civil society representatives about punishment in a form of death penalty to be potentially imposed.

Nevertheless, such an outcome is impossible: according to part 1 of Article 9 of the Criminal Code, the criminal nature of the act and liability for its commission and liability of shall be prescribed by law in effect at the time of the commission of this act, and part 3 of Article 9 of the Criminal Code establishes that a law that provides for a graver punishment or otherwise worsens the position of the individual who committed the act has no retroactive effect. Consequently, death penalty for preparing for terrorist activities can be applied as punishment for actions that will be committed only after the corresponding amendments take effect, and people who have already been charged with terrorism earlier are to be prosecuted under Criminal Code provisions in effect as of the time when the respective actions were conducted.

Conclusions and consequences

In the absence of the rule of law in Belarus and in context of the ongoing mass political repressions, the existence of the death penalty in general and the expansion of its scope always implies the risk of arbitrary use of the law. The worst-case scenario would be the arbitrary application of the new provisions of the Criminal Code to physically eliminate activists on made up and politically motivated grounds. The ongoing legislative developments are incompatible with the obligations of the Republic of Belarus in the field of human rights, and such amendments shall be revised.