Open Letter to the Minister of Foreign Affairs: Request to implement the decision of the UN Working Group on Arbitrary Detention on the case of human rights defender Ales Bialiatski

Minister of Foreign Affairs

Ministry of Foreign Affairs

ul. Lenina, 19

Minsk 220030

Republic of Belarus

By Email: mail@mfa.gov.by

Paris-Geneva, May 16, 2013

Re: Request to implement Decision A/HRC/WGAD/2012/39 of the UnitedNations Working Group on Arbitrary Detention on the case of human rightsdefender Ales Bialiatski

Dear Minister,

At its 64th session, the United Nations (UN) Working Group on ArbitraryDetention (WGAD) adopted Decision A/HRC/WGAD/2012/39, published on November 23,2012, in which it found in particular that the detention of Mr. AlesBialiatski, President of the Human Rights Centre (HRC) “Viasna” and FIDHVice-President, was arbitrary, “being in contravention of Article 20, paragraph1, of the Universal Declaration on Human Rights (UDHR) and Article 22 of theInternational Covenant on Civil and Political Rights” (ICCPR). The WGADemphasised that “the adequate remedy is to release Mr. Bialiatski and accordhim an enforceable right to compensation pursuant to Article 9, paragraph 5, ofthe [ICCPR]”.

On March 5, 2013, during the 22nd session of the UN Human Rights Council(HRC) held in Geneva, the Delegation of the Republic of Belarus challenged theauthority of the WGAD to investigate and adopt an opinion on the detention ofMr. Ales Bialiatski and described the investigation and opinion as aninterference into the internal affairs of Belarus.

The Observatory recalls that UN Special Procedures (including the WGAD)are subsidiary bodies of the UN. They were set up by and report back to the UNHRC. The members of the WGAD are selected by a Consultative Group appointed bythe UN HRC, on the basis of their “expertise and experience in the area of themandate, integrity, independence and impartiality”[1].Their “legal opinions”, such as the above-mentioned decision on Mr. AlesBialiatski, are UN decisions. The Republic of Belarus as a UN Member State hasan obligation to cooperate with all UN bodies and mechanisms (as provided forin Article 56 of the UN Charter), and it is also bound by treaties, inparticular the ICCPR, which Belarus ratified in 1973.

WGAD is entrusted by the Human Rights Council with the mandate toinvestigate “alleged cases of detention imposed arbitrarily or otherwiseinconsistently with the relevant international standards set forth in theUniversal Declaration or in relevant international legal instruments acceptedby the States concerned”[2].

The WGAD assesses information collected under an adversary procedure ina transparent manner and uses a standard of “convincing evidence” to determinewhether a detention is arbitrary or inconsistent with the applicableinternational standards or whether the information available is not sufficientto make such determination. The working practices of the WGAD were approved bythe UN Commission on Human Rights on April 15, 1997[3].

Being an independent mechanism[4],it has the discretion to act on any information or individual case it deemsappropriate. The Observatory emphasises that the WGAD has acted in fullcompliance with its prerogatives. In that respect, we recall that the WGAD“evaluate[s] all information in the light of internationally recognized humanrights standards relevant to their mandate, and of international conventions towhich the State concerned is a party[5]”.

In that case, the WGAD held that laws in forced applied to prosecute anddetain Mr. Bialiatski contradicted international human rights standards bindingthe Republic of Belarus.

In light of all these elements, the Observatory respectfully urges youto comply with the aforementioned international obligations and, moreparticularly, to implement Decision A/HRC/WGAD/2012/39 of the UN WGAD on thecase of Mr. Ales Bialiatski, in particular by:

- releasing himimmediately and unconditionally, and accord him an enforceable right tocompensation (paragraph 53 of the Decision) ;

- conforming with the“negative obligation “of Belarus “not to interfere with the founding ofassociations or their activities”, but also with the “positive obligation” ofthe State “to ensure and provide […] measures such as facilitatingassociations' tasks by public funding or allowing tax exemptions for fundingreceived from outside the country” (paragraph 48 of the decision).

Finally, the Observatory takes note with appreciation of the Republic ofBelarus' commitment to cooperate in a constructive manner with the Human RightsCouncil and its thematic special procedures and urges it to extend a standinginvitation to all UN Special Procedures and invite the UN Special Rapporteur onthe situation of human rights defenders as manifestations of this significantcommitment.

We hope that you will take all these elements into account and remain atyour disposal for further discussions,

Yours sincerely,

Souhayr Belhassen

Gerald Staberock

President of FIDH

Secretary General of OMCT

[1] SeeCHR/RES/2004/76 “Human rights and Special Procedures”; Report of theinter-sessional open-ended Working Group on Enhancing the Effectiveness of theMechanisms of the Commission on Human Rights (E/CN.4/2000/112, paras.7 and 10);and the Regulations Governing the Status, Basic Rights and Duties of Officialsother than Secretariat Officials and Experts on Mission (ST/SGB/2002/9).

[2] SeeCHR/RES/1991/421, March 1991, 103, para. 2.

[3] SeeE/CN.4/RES/1997/50, April 15, 1997.

[4] SeeHRC Resolution, UN Document HRS/RES/5/2, June 18, 2007 and Article 3(a) of theCode of Conduct.

[5] SeeArticle 6(c) of the Code of Conduct.