1.   About monitoring

From January 25 to February 5, 2021, Minsk City Court heard a criminal case against blogger Pavel Spirin, accused of committing a crime under Part 1 of Article 130 of the Criminal Code of the Republic of Belarus (“Incitement of racial, national, religious or other social enmity or hatred, rehabilitation of Nazism”) for posting two video clips on his Youtube channel, entitled “A terrible secret of the Prosecutor General of Belarus. Carte blanche for sadism” and “Edge”. By the verdict of the court, Pavel was sentenced to four and a half years in a medium security prison (out of the maximum 5) and the collection of 1,010 rubles as procedural costs.

Human rights organization Human Constanta, within its non-discrimination practice, analyzes the application of anti-extremist legislation, including through monitoring court sessions under Article 130 of the Criminal Code in order to comply with international standards in the field of the right to freedom of expression and legal restrictions on this right.

In this case, we monitored the trial with full-time attendance at court hearings in the court of first instance. We also previously paid attention to the film “Edge” in the annual review at the end of 2019 and covered the arrest of Pavel in the review for July-October 2020.

The monitoring tasks were to determie:

– how incitement to hostility and / or hatred is proven and understood;

– to what extent the criteria for limiting freedom of expression are taken into account;

– to find out what the charge is based on.

The preparation and conduct of trial monitoring were carried out on the basis of the Guidelines for Practitioners “Trial Monitoring” from the OSCE / ODIHR. Observers received specialized training on fair trial standards, organization of legal proceedings, rules of conduct in courts, as well as on anti-extremist legislation. When conducting the monitoring, they adhered to the principles of observation: non-interference, professionalism, objectivity and impartiality, personal safety. During the monitoring, audio recording of the process and daily filling out of the monitoring questionnaire took place.

2.   Description of the case and certain aspects of the trial

The trial was chaired by Judge Dina Kuchuk. On the first day of the court hearings, about 70 people could not get into the courtroom. State Prosecutor Anton Tyumentsev indicated 2 episodes as grounds for charges:

1. Uploading a 1 minutes 14 seconds long video with the title “Edge 2019. Film by Pavel Spirin” on “Pavel Spirin” Youtube channel on June 14, 2019, namely:

“Having intention of inciting other social hatred on the basis of a different social affiliation, spreading the idea of hostility and intolerance to an indefinitely wide range of people … towards state officials of the Republic of Belarus, employees of the Ministry of Internal Affairs of the Republic Belarus, expressed in deliberate, substantiating and asserting statements, incitement to commit violent acts against representatives of groups united on the basis of professional affiliation (prosecutors, judges, deputies, senior officials of the Republic of Belarus and employees of the Ministry of Internal Affairs), wishing to spread these ideas in relation to the indicated representatives of groups, that is, acting on the grounds of inciting other social hostility and hatred on the basis of a different social background, … for the purposes of storage, distribution, public demonstration and possible copying to an unlimited number of persons, posted a video made with a 31 minutes 14 seconds long video with the title “Edge 2019. Film by Pavel Spirin,” after which, wishing to attract the attention of the widest possible audience … June 17, 2019 , … Pavel Spirin deliberately placed an link to the aforementioned video on Odnoklassniki social media page for the purposes of storage, distribution, public demonstration and possible copying by an unlimited number of people, which by a decision of the Central District Court of the city of Minsk, was recognized as extremist materials in terms of inciting social hostility or hatred in relation to employees of the central apparatus of the Ministry of Internal Affairs of the Republic of Belarus and civil servants (prosecutors, deputies, judges), containing statements of an inciting nature on causing harm by one group of persons in relation to another group of people united on the basis of serving in the police, the Ministry of Internal Affairs, as well as calling for violence against representatives of certain groups (prosecutors, members of Parliament, judges, other officials), … the video was seen by at least 313 thousand users, leaving negative comments that share the author’s ideas regarding the aforementioned persons. By performing these actions, Spirin committed a crime under Part 1 of Art. 130 of the Criminal Code of the Republic of Belarus”.

2. A analogous charge in connection with uploading a 18 minutes 41 seconds video entitled “The Terrible Secret of the Prosecutor General. Carte Blanche for Sadism” on August 22, 2020, including “the statement: “People now ask me a lot of questions – where did the OMON officers get such incredible bestial cruelty? How can you rape a person with a baton, and then force to lick it? How can you cripple people so that it later leads to amputation of limbs? OMON, on the orders of the generals, beat and maimed people, they did not do because they supported the idea of curbing the protest in such manner: some did it to get housing from the state, others – for the sake of satisfying their sadistic inclinations”, and the statement “When a bastard with an OMON patch puts a police baton into your anal passage, do you have to endure, smile and be silent?”.

Pavel Spirin did not admit his guilt, insisting that he was  expressing his opinion and had no intent to appeal to violence. During the court hearings he claimed that before the ongoing criminal prosecution, the authorities refused to initiate a criminal case against him based on the film “Edge”, although the film was included in the Republican list extremist materials list back in October 2019. None of the officials complained against his film and or testify about any threats.

In regard to the comments under the video, Pavel noted that the state prosecutor only gave a selection of several dozen comments, and under each video there were more than three thousand of them. According to Pavel, the prosecution took separate extreme comments and wants to pass them off as the opinion of the majority of the viewers. He also stated that  the prosecution did not provide any evidence that all negative comments could not have been left by the same person, but belonged to separate individuals. Also, Pavel mentioned that the questioning of one of the witnesses who left comments (witness Bludov) determined that the commentators did not want to say anything “terrible” with their statements. Moreover, Pavel mentioned that he was physically unable to monitor the status of comments and promptly remove hostile and offensive ones under his videos due to their huge number (several thousand).

Spirin emphasized that his videos were not an incitement to hostility, but only harsh criticism. Moreover, Pavel mentioned that his channel contains not only videos of criticism, but also videos that can have a positive effect on society. He also believed that the aforementioned videos should be evaluated in conjunction with all his videos on the channel, since, for example, on his channel there was a video about OMON, in which no one saw incitement to hostility and the message of which, on the contrary, that OMON was not the evil. Pavel also stated that the aforementioned statements about OMON do not apply to all representatives of this group, but only to those who could not bear the psychological stress (after ideological work with them) and those who are capable of the terrible acts described above in his statements. Pavel also mentioned that the purpose of his video was to achieve justice and consensus in society. With his videos, Pavel did not intend to provoke a negative reaction towards the aforementioned groups – he tried to take into account the interests of all citizens.

Pavel clarified that the issues that he raised in the above videos were a hot topic and their relevance was not lost.

Spirin also pointed out that the crime provided for in Article 130 of the Criminal Code is listed under Chapter 17 “Crimes against the peace and security of mankind”, however, in his opinion, he did not cause any harm to peace and security.

Also, according to the Prosecutor, in the video “The Terrible Secret of the Prosecutor General”, Pavel casted doubt on the effectiveness of the peaceful nature of the protest. Pavel argued that a peaceful protest was useless, since the protesters can simply be beaten up. However, Pavel did not mention the violent protest in the video due to inadmissibility of such references on the platform.

2.1 Witnesses

The main witness for the prosecution in the trial was Polyanin, who did not appear at the meeting himself, but his testimony was made public: after watching the video “Edge”, Polyanin concluded that it contained a call for violent actions against a certain circle of persons, as well as statements that offend honor and dignity of individuals and groups based on professional affiliation. It was the reason for his appeal to law enforcement agencies. He got the impression that the video had an extremist character. He did not leave comments under the video.

Vasily Belmach acted as a witness for the defense, who noted that the video “Edge” had a positive impact on him and his friends. He fully agreed with the author’s opinion, expressed in the video, that drugs were evil, that many sentences under Article 328 of the Criminal Code were unfair and that there was not enough information on the fight against drugs. Belmach said that criticism of the Ministry of Internal Affairs indeed took place, but it was not an  incitement to social hostility. Regarding the video “The Terrible Secret of the Prosecutor General”, the witness noted that he provided information to the blogger during its creation. Belmach also said that he did not see the incitement of hostility towards the riot police, but only criticism of them. When asked by the public prosecutor about whether the views of the witness regarding deputies, judges, and prosecutors changed after watching the film “Edge”, Belmach replied that his opinion remained the same as before watching the video (his opinion was only confirmed). Regarding the film “The Terrible Secret of the Prosecutor General”, the witness said that his opinion about OMON did not change under the influence of Pavel Spirin’s video, but “changed thanks to what he saw with his own eyes.” The witness also noted that there can be no incitement in this video, since otherwise the video hosting YouTube would have blocked the video data on its resource.

Witness Pugachev was ordered to conduct an inspection of  Spirin in 2019. Some of Pugachev’s statements were given in a video recording in the form of an interview (the witness denied that this was an interview, but said that it was an audio recording that Spirin made during the check, which he did not know about). The general conclusion of the video, according to Pugachev, is about drugs.

The witness Horuta is the daughter of his wife, but the court did not allow her to refuse to testify and did not recognize her as a close relative. She watched the film “Edge”, she liked how Pavel covered the topic of drugs and informed about the long prison terms for drugs.

Witness Kalinkov was with Spirin at one meeting, where the problem of drugs and anti-drug policy was discussed. He provided some data for the video (documents and information about the methods of selling drugs, the procedure for legalizing money from their sale, methods of combating drug addiction).

Witness Kotova was only a witness during the search – her testimony documented and read during the court session.

Witness Bludov, who left a comment under the videos on YouTube hosting, stated that he had watched only a part of the film “Edge”, the main messages of which, according to Bludov, were excessively long terms of imprisonment against young people under Article 328 of the Criminal Code of the Republic of Belarus. In the part of the video that he watched, Bludov did not see any negative attitude towards the Ministry of Internal Affairs.

The witness at the hearing was Pavel Spirin’s neighbor Baikovskaya, who knew him as the chairman of the housing construction cooperative group, and was also one of the attesting witnesses during the search of Spirin’s apartment. For the first time, she got acquainted with Pavel’s activities as a blogger after she saw a video about an incident at the school where her son studied, when a minor student of this school was interrogated by police officers on the school grounds without parents (this video impressed her). She was also familiar with some of Spirin’s videos (“Edge” and “Stepfather”), but did not watch his channel on an ongoing basis. The witness noted that in the video “Edge” she saw how the blogger was simply broadcasting his opinion.

Witness Anastasia Matskevich dated Spirin’s son and stayed with them for some time: she did not watch a single video of Pavel, but was interrogated by the court.

Also, his son was called directly as a witness, who periodically saw Pavel’s video, but was not interested in this topic and, like his girlfriend, did not give any facts about the essence of the videos. Pavel’s wife Irina was also summoned as a witness, but she refused to testify.

At the very beginning of the trial, Pavel Spirin made a written request to interview two more witnesses who could confirm the atrocities of OMON, about which he speaks in the video: Vitaly Shishlov (they beat him after the elections, drowned him in water, poured gas in his face, raped with a corncob) and Pavel Ovcharov (they beat him, he witnessed a knife wound by an OMON officer of one of the detainees, who did not resist). Both witnesses are in Jail-1. The prosecutor protested against calling these witnesses, since they had not watched Pavel’s films, the judge refused to grant the request. They also refused to submit Ovcharov’s affidavit.

2.2. Expertise

2.2.1. Linguistic expertise

Tatiana Lavrentyeva, an expert of the State Committee for Forensic Expertise, said that the video entitled “Edge” contained statements in which certain persons were negatively assessed on the basis of their professional affiliation – the Minister of Internal Affairs, the Minister of Health, and others. The expert also stated that the video contained provocative statements calling for violent actions aimed at causing harm by one group of persons against another group of persons who were united on the basis of being “prosecutors”, “judges”, “deputies”, “high officials” , “employees of internal affairs bodies”.

Lavrentieva also argued that while no direct incitement to violence was found in the video, the incitement to violent action was expressed by other speech techniques (indirectly, implicitly). Despite the fact that the expert agreed with the accused that the essence of various remarks (motivation or just a statement) depended on the subject of perception, she still believed that Spirin’s statements in the context of the video were of inciting nature. Pavel, however, said that he considered the conclusions made by the expert about the hidden motives, simply a speculation, and the court’s verdict, according to the criminal procedural norms, could not be based on assumptions.

Lavrentieva concluded that the statement “You can kneel down near the new building of the Supreme Court, where the judges will not pay attention to you, or you can solve problems within the law. But who can solve the problems? The answer is simple: those who allow such situation to happen, those whom you can reach at a place of reception. If your child was beaten, planted with drugs on the territory of the city of Minsk, you can talk to senior officials. They live in the Central District on Tikhaya Street and the neighboring ones. Come to talk to any resident, there are no uninvolved people here” has an incentive character. This phrase consisted of two options for actions, the first of which (“kneeling”) was deemed unfavorable, undesirable (non-benign), prompting the viewer to choose the second option (“resolve issues”, “go to a resident to talk”), more favorable (beneficial), which is the incitement.

Also, before the aforementioned statement, there was an example of citizen Koloev, who committed the murder of an air traffic controller, through whose fault his family crashed in a plane crash. Nevertheless, some time after the murder was committed, Koloev was appointed to one of the leading positions. This opinion, according to the expert, was presented as a positive example, which covertly complemented the option “to visit” of the previous statement (this example, according to the expert, makes this option more favorable) and together with it represented an incentive to commit violence. Also, there were no corrective insertions, remarks or markers in the statements (for what purpose he gave this example). Due to the fact that the author gave the example of Koloev, the subsequent remark “to resolve issues” acquired a violent character.

Pavel, in the course of the judicial debate, stated that his film presented many options for action and the main emphasis is on actions within the framework of the current legislation, and also stated that he did not understand how the option with Koloev would be desirable if “the judges of the Supreme Court behaved decently and considered cases in accordance with current legislation. ” During the trial, the prosecutor noted that Lavrentyeva was sure that the statements could not be interpreted in an ambiguous manner .

The judge also asked why the author did not seek to impart at least some negative color to Koloev’s actions (that Koloev had been punished for his act; that, in general, such acts are punishable). Pavel replied that “ignorance of the law does not absolve responsibility” and in his statements with this description, he only made a comparison with children convicted under 328 of the Criminal Code (“that all is not yet lost”), and also once again indicated that he just wanted to show that you should not drive people to despair.

Pavel Spirin said that he put the following meaning in the example with Koloev: one should not drive a person to despair, otherwise in such a state he is ready for anything. Also, in the course of answering the questions of the prosecutor, Pavel said that if the law did not work in relation to everyone who seeks justice, making people ignore the law – Koloev’s example was a proof of this. The expert did not see such a meaning in her examination.

Pavel also argued that a request (the phrase mentions “asking people”) would not lead to a solution to the problem, some action was needed, including a legal one. If people felt that they have received an unfair sentence, then, according to Paul, such people had the civil right to more actively defend their rights.

The concept of “visit at a place of reception” was also analyzed. The expert noted that the reception should an official one in order to avoid understanding this expression as committing violence. Although the expert mentioned that the such statement is generally characteristic of ordinary speech, she believes that any statement is corrected by the context, which did not happen in the video, as there were no corrective remarks (according to the expert, the remark “within the law” is not corrective). The expert pointed out that Pavel did not mention the purpose of this “visit” (that, for example, one needs to come for a dialogue), which also lead to the fact that such a statement could take the form of an incitement to violence in an appropriate context. The expert clarified that the appeal, in her opinion, was aimed at the murder of representatives of the aforementioned groups.

2.2.2. Socio-psychological expertise 

Expert psychologist Dmitry Akalovich, an employee of the Department of Forensic Psychiatric Examinations in the Minsk Region, in the result of his examination found out that the video recordings “The terrible secret of the Prosecutor-General of Belarus: carte blanche for sadism” and “Edge” form a hostile socio-psychological attitude in the Internet user. It is expressed in the negative attitude, recognition of the correctness and acceptability of violent actions performed by a representative of a group of people united by professional affiliation through justification and approval of these actions. In the first video, such a group is riot police officers, and in the video “Edge” the expert established a hostile attitude not only to the groups of individuals (indicated in the primary charge), but also to specific appointed officials, for example, to the ex-Minister of Internal Affairs Igor Shunevich. 

The expert stated that Pavel’s statements about OMON officers were a negative assessment of their professional activity, which was related to the execution of their professional duties, however, once the assessment was presented publicly, it stopped being a personal assessment. Also, when the expert was asked whether he saw a specific call to action in this assessment, he replied that he did not evaluate this aspect. 

During the court pleading, Pavel said that he did not understand how he could incite hostility towards the employees of the Ministry of Internal Affairs, if in the same video, he directly addressed employees who consider themselves honest, whom Spirin asked not to quit their job, but to continue protecting people, so, he actually encouraged those employees.

2.2.3. Independent expertise 

Pavel Spirin made a motion to include the independent examination of Dmitry Dubrovsky – a specialist in conducting special forensic examinations in the field of hate speech and hate crimes, in the case file. The expert noted that the video “Edge” contained negative assessment of people on the basis of falsification of drug cases, but these groups of people did not represent social groups that should be protected by the law. Regarding the film “The terrible secret of the Prosecutor-General,” the expert also noted that it contained negative assessment of people (generals; riot police officers who used torture) on the basis of their use of unlawful violence and torture against civilians. Nevertheless, according to the expert, both films lack statements containing linguistic signs of incitement to violent actions against a group of people or any social group, and also did not contain any signs of justifying the use of unlawful actions against any social group. 

3. International standards of freedom of expression 

In proving guilt, the court did not take into account a number of factors described in the Camden Principles on Freedom of Expression and Equality (2009) and the Rabat Action Plan to Prohibit the Promotion of National, Racial or Religious Hatred that constitutes incitement to discrimination, hostility or violence (2012). According to these documents, when determining the threshold for the severity of the statement, 6 factors should have been taken into account: 

1. The context of the statement. Here it is important to assess whether there is a conflict in the society, whether there is institutional discrimination against certain social groups that are affected by the statement, what is the media and political landscape.

The examinations and statements of the prosecution did not raise questions about whether there was social tension in the society and why there was a danger specifically for these groups, as well as with what it was connected to. In addition, Pavel refered to a number of his other videos on the channel, the content of which was not taken into account in the court pleadings. In the injunction of the European Court of Human Rights of 28 August 2018 regarding the case No. 10692/09 “Savva Terentyev against Russia”, the Court did not find any arguments as to why police officers represent a “social group” and why they need enhanced protection, and did not recognize them as such. 

• Who the author is, to what extent he influences the audience and whether he has the authority, what is the degree of vulnerability and fear among the communities. 

In his statements the prosecutor dis not focus on the number of Pavel Spirin’s subscribers, he only confirmed with witnesses whether he could be considered a video blogger, the prosecutor did not assess the audience coverage, including the social networks. It was not anyhow stated in the court that Pavel was a confident of the candidate Svetlana Tikhanovskaya during the presidential elections; 

• Intention – apart from the intention to carry out the propaganda of hate and to make a certain group a target, it is important to understand the consequences of your actions, that is, whether words can lead to violent consequences. 

As soon as Pavel learned from the mass media that the film “Edge” had been recognized as extremist, he immediately removed links to the film from all social networks. The prosecutor tried to find out the motives for creating those videos. There was no evidence presented in the court that Paul had any intention of inciting hatred against the professional groups mentioned above;

• Content, form and manner of the statement, direct and indirect calls for discrimination, argumentation of how the audience understands the statement.

In this case, the content was assessed through expert examinations, and the state examination and the independent one came to different conclusions. During the court hearing, the prosecutor recommended to not take into account the conclusions of the independent expert examination because of the fact that the expert had historical and not linguistic education, and therefore he is incompetent to examine this issue.

Linguistic examination showed that the incitements were indirect, the forms of incitements and their manner were sufficiently studied. The nature of the incitement, according to the expert’s opinion, was highly serious and meant to result in committing the murder of the mentioned persons. In the process of the socio-psychological examination, it was found that both videos formed a negative attitude towards certain groups of people, whereas the analysis of the presence of incitement lies outside the competence of this examination. An independent examination showed that the video represented a journalistic investigation and contains criticism of certain groups, however, there is no incitement to violent actions in Spirin’s statements.

According to the prosecutor, Paul’s statements were categorical and Paul set out the facts in his video as proven (which meant he did not question their veracity). Pavel in his turn disagreed that the psychological message of this video would result in the incitement to violent actions, the video would only motivate people not to act in the same way as riot police officers do. 

The prosecutor stated during pleadings that the court, when imposing a penalty, must take into account the nature and high level of danger of the “committed crime.” 

As a result, the court took into account only the conclusions of state experts.

• The degree and significance, publicity of the statement, by what means the statement was carried out, its intensity and scale. 

In the accusatory speech of the prosecutor, it was stated that the video was posted for “an indefinitely wide range of people living on the territory of the Republic of Belarus and abroad”. In the accusation, the emphasis was made on the very fact of publishing the video, and not on specific phrases and calls for action.

• Causing harm. If the statement led to consequences, then this may be an aggravating circumstance. 

The court did not assess the real consequences of the publication in the context of violence against the listed professional groups and its relation to the videos. 

Thus, the context of the statement, its significance and possible harm were not assessed. In this regard, it is difficult to assess the real threshold of the severity of these publications. Public status and open access to the video alone do not guarantee a certain degree of public danger. There was also no attempt made to match up the right of freedom of expression and the permissible restrictions of this right. 

According to article 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 limitation of this right must be allowed by law in connection with specific purposes: (a) to respect the rights and reputation of others; b) to protect state security, public order, health or moral principles of the population. Also, such restrictions should be necessary in a democratic society. Argumentation on these criteria was not carried out in the court. It should be noted that human rights organizations criticize the ambiguity of the wording of Article 130 of the Criminal Code, where the assessment of “incitement to hostility and/or hatred” can be carried out unreasonably, including for political reasons of persecution in the absence of the right to a fair trial. In addition, there is no clear difference between administrative liability for the distribution of extremist materials (Article 17.11 of the Administrative Violations Code) and criminal prosecution with a serious sanction of up to 5 years of imprisonment. 

4. Conclusion and recommendations

1. On the first day of the trial, the right to publicity of the trial was limited under the pretence that up to 70 people could not get to the courtroom, due to the small capacity; 
2. The trial was one-sided as the court did not take into account either the testimony of witnesses on Pavel’s side, or an independent examination conducted on Pavel’s initiative; 
3. Accusing Pavel of purposeful incitement to hate and discrimination the court did not fully take into account the international standards of freedom of expression (Article 19 of the International Covenant on Civil and Political Rights), and did not apply the Camden Principles on Freedom of Expression and Equality (2009) and The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (2012). 
4. The persecution of Pavel Spirin is politically motivated, the punishment is groundless and excessively harsh for political criticism. 

Recommendations:

To investigative bodies, expert commissions and courts:

• in the process of investigation, examination and judicial proceedings, attention should be paid to the standards of freedom of expression, including the need to be guided by the Camden Principles on Freedom of Expression and Equality and the Rabat Action Plan to Prohibit the Promotion of National, Racial or Religious Hatred that constitutes incitement to discrimination, hostility or violence, at the same time taking into account the context of the statement, the author, the intention, the content of the statement, the decree and significance, as well as the harm caused;
• assess the threshold of the right to freedom of expression and the correlation of permissible restrictions of this right. Restrict this right only in extreme cases;

To the Supreme Court of the Republic of Belarus

• the verdict of the Minsk City Court of February 5, 2021 against Pavel Spirin should be overturned and the Court should refrain from persecution for political motives;
• the practice of applying article 130 of the Criminal Code of the Republic of Belarus should be studied and a resolution of the Plenum with explanations, including the references to the international standards, should be issued. The Court should also introduce criteria for distinguishing between such criminal cases and cases of administrative offenses under Articles 17.10 and 17.11 of the Administrative Violations Code.