Joint statement: Eduard Palchys Recognized Political Prisoner

Min­sk, Octo­ber 5, 2016

Eduard Palchys, edi­tor of the 1863x.com web­site, is accused of com­mit­ting crimes under Part 1 of Art. 130 (incite­ment to racial, nation­al or reli­gious enmi­ty or dis­cord) and Part 2 of Art. 343 (dis­tri­b­u­tion of porno­graph­ic mate­ri­als) of the Crim­i­nal Code.

In Novem­ber 2015, Palchys was detained by KGB offi­cers and lat­er released on recog­ni­zance, after which he moved to Ukraine. In Jan­u­ary 2016, Palchys was detained in the Russ­ian Fed­er­a­tion, and in late May he was extra­dit­ed to Belarus, where he was tak­en into cus­tody.

On August 25, the court of Cen­traĺny dis­trict of Min­sk found in a closed ses­sion that nine entries post­ed on the web­site con­tained extrem­ist mate­ri­als.

Human rights activists insist­ed on the need to con­duct an inde­pen­dent analy­sis of the texts and did not rule out polit­i­cal motives for Palchys’s pros­e­cu­tion.

Rep­re­sen­ta­tives of the country’s human rights orga­ni­za­tions with the assis­tance of spe­cial­ists in var­i­ous fields of sci­ence ana­lyzed the nine texts post­ed on the 1863x.com web­site. As a result of this analy­sis, we note the fol­low­ing:

In accor­dance with Art. 19 of the Inter­na­tion­al Covenant on Civ­il and Polit­i­cal Rights, every­one has the right to hold opin­ions with­out inter­fer­ence. Every­one has the right to free­dom of expres­sion; this right includes free­dom to seek, receive and impart infor­ma­tion and ideas, regard­less of fron­tiers, either oral­ly, in writ­ing or in print, in the form of art or through any oth­er media of his choice.

The use of this right car­ries spe­cial duties and respon­si­bil­i­ties. The right, respec­tive­ly, may be sub­ject to cer­tain restric­tions, but these shall only be such as pre­scribed by law and are nec­es­sary:

a) For respect of the rights or rep­u­ta­tions of oth­ers;

b) For the pro­tec­tion of nation­al secu­ri­ty or of pub­lic order (ordre pub­lic), or of pub­lic health or morals.

In addi­tion, the per­mis­si­ble restric­tions on free­dom of expres­sion are con­tained in Arti­cle 20 of the Covenant, which pro­hibits advo­ca­cy of nation­al, racial or reli­gious hatred that con­sti­tutes incite­ment to dis­crim­i­na­tion, hos­til­i­ty or vio­lence.

Giv­en these estab­lished per­mis­si­ble restric­tions on free­dom of expres­sion, the analy­sis of the texts, which were post­ed on the web­site 1863x.com, had to deter­mine whether these mate­ri­als fell under the per­mis­si­ble restric­tions.

The researchers con­clud­ed that the nine arti­cles do not con­tain evi­dence of incite­ment to war, vio­lence or state­ments in favor of racial, nation­al or reli­gious hatred, nor do they pose a threat to nation­al secu­ri­ty, pub­lic order or pub­lic health or morals. The pub­li­ca­tions are noth­ing more than the author’s views on cer­tain his­tor­i­cal events, facts, con­tain­ing crit­i­cism of geopo­lit­i­cal con­cepts and the for­eign pol­i­cy of some states. The author does not have the pur­pose of humil­i­at­ing rep­re­sen­ta­tives of any spe­cif­ic eth­nic or racial groups.

It should be not­ed that it is the analy­sis of the con­text[1] that is extreme­ly impor­tant in assess­ing whether a par­tic­u­lar state­ment calls for dis­crim­i­na­tion, hos­til­i­ty or vio­lence. A con­tex­tu­al analy­sis aims to put the state­ment in the social and polit­i­cal con­text that pre­vailed at the time when this state­ment was made or dis­trib­uted.

In this regard, we believe that the pub­li­ca­tions authored by blog­ger Eduard Palchys, which were post­ed in the nine arti­cles on the 1863x.com web­site, are a per­mis­si­ble form of expres­sion and, accord­ing­ly, may not be pros­e­cut­ed under the law.

At the same time, we stress that the use of free­dom of expres­sion impos­es spe­cial duties and respon­si­bil­i­ties, includ­ing moral and social ones. The pro­hi­bi­tion of dis­sem­i­na­tion of porno­graph­ic images and mate­ri­als is a per­mis­si­ble restric­tion on free­dom of expres­sion, as it aims to pro­tect pub­lic morals. How­ev­er, we believe that the one-time use of an illus­tra­tion fea­tur­ing a porno­graph­ic image, which, accord­ing to Palchys, was to demon­strate unac­cept­able approach­es to pre­sent­ing infor­ma­tion by some web resources, is short-sight­ed step, but should not result in a penal­ty of impris­on­ment. In this case, Palchys did not pur­sue any self­ish or oth­er evil pur­pos­es. An analy­sis of law enforce­ment in a num­ber of sim­i­lar cas­es shows that the pun­ish­ment of impris­on­ment is nev­er applied by the courts.

In our view, the court should take into account Palchys’s motives when con­sid­er­ing the crim­i­nal charges brought against him.

We believe that the pros­e­cu­tion of Eduard Palchys has a polit­i­cal motive, which aims to sanc­tion his pub­lic activ­i­ties, or force him to change its char­ac­ter.

In this regard, we state the fol­low­ing:

Eduard Palchys’s deten­tion and polit­i­cal­ly moti­vat­ed per­se­cu­tion by the Belaru­sian author­i­ties allow us to call the blog­ger a polit­i­cal pris­on­er.

We demand to:

- release Palchys from cus­tody, since ensur­ing his appear­ance in court can be guar­an­teed by oth­er pre­ven­tive mea­sures, which are not con­nect­ed with the defendant’s iso­la­tion;

- drop the crim­i­nal charge against Palchys (under Part 1 of Art. 130 of the Crim­i­nal Code);

- ensure an open tri­al with all the guar­an­tees of a fair tri­al.

Human Rights Cen­ter «Vias­na»

Belaru­sian Asso­ci­a­tion of Jour­nal­ists

Cen­ter for Legal Trans­for­ma­tion

Barys Zvozskau Belaru­sian Human Rights House

Belaru­sian Doc­u­men­ta­tion Cen­ter

Com­mit­tee for Pro­tec­tion of the Repressed «Sol­i­dar­i­ty»

[1] Rabat Plan of Action on the pro­hi­bi­tion of advo­ca­cy of nation­al, racial or reli­gious hatred that con­sti­tutes incite­ment to dis­crim­i­na­tion, hos­til­i­ty or vio­lence (Con­clu­sions and rec­om­men­da­tions ema­nat­ing from the four region­al expert work­shops organ­ised by OHCHR, in 2011, and adopt­ed by experts in Rabat, Moroc­co on 5 Octo­ber 2012).

Recent­ly it’s been announced that the case of Eduard Palchys would be con­sid­ered in a closed hear­ing.