Belarus Jailing of Journalists for Reporting on Peaceful Protest Violates International Law

A journalist addresses the court on the third day of her trial — from inside a cage. Beside her is a colleague who is her camera operator when they are working in the field and who faces a similarly severe prison sentence if convicted. “I want to direct my energy exclusively to the creation of something in Belarus … where there will be no place for political repression, where people will not be persecuted for honest journalism, for the truth,” the journalist says. “I am not asking but demanding an acquittal … Thank you.” Observers in the courtroom, including her family, break into applause.

The journalist is Ekaterina Andreeva (family name, Bakhvalova). She is a 27-year-old correspondent for Belsat TV, one of the only independent news outlets operating in Belarus, where defendants in court can be caged during their proceedings — an all too common practice that flouts guidance from the United Nations Human Rights Committee. This week, the Clooney Foundation for Justice (CFJ), where I work as a fellow, filed an amicus brief urging the Minsk City Court to overturn the convictions of Andreeva and her colleague, Daria Chultsova, on the grounds that their rights were violated under international law. How disproportionate were their convictions, just for reporting on a protest? The day after Andreeva’s closing statement in February, they were sentenced to two years in prison.

To be clear, their convictions come as no surprise. Belarus has gripped the world’s attention with massive and persistent demonstrations since August 2020, when hundreds of thousands of Belarusians took to the streets to challenge the disputed results of a presidential election that ostensibly gave Alexander Lukashenko a victory of 80.23 percent of the vote. Journalists reporting on the events have been targeted with arrests, criminal lawsuits, and police brutality. Belsat TV’s own correspondents were arrested 162 times in 2020, and just last week, two were detained for filming in the northern town of Dokshytsy. Some journalists have said the vests they wear during reporting that declare them openly as “press” feel “like a target on their backs.”

The Lukashenko government’s crackdown seems to be gaining steam. A new law being considered by the Belarusian parliament, which has long been effectively under the president’s control, could empower police to prohibit any filming or photography at protests, essentially making reporting — and the livestreaming that has been such a powerful element — illegal. Real-time windows into protests are more vital than ever for mass movements: think about citizen-journalists like Joseph Blake, who livestreamed 2020 Black Lives Matter protests to thousands in Portland, Oregon, or live videos of pro-democracy protests on television screens at bars and restaurants in Hong Kong. A common refrain on Twitter captures this reality: “The revolution will not be televised, but it will be live streamed.”

Reporting Live on Protests

For Andreeva, live reporting on protests in Belarus had become the new normal. Since the summer of 2020, she had been working as a “hot spot” reporter, attending demonstrations despite the Belarusian Ministry of Foreign Affairs’ denial of her requests for accreditation. (Because her employer, Belsat TV, is based in Poland, she requires approval to work as a “foreign” reporter. Andreeva contends that the ministry’s refusal to provide her with accreditation is an “an act of state censorship.” According to the U.N. Human Rights Committee, “general State systems of registration or licensing of journalists” are incompatible with the right to freedom of expression.

Andreeva and Chultsova were arrested while on assignment in November 2020. They had been sent to cover a Nov. 15 protest in Minsk’s “Square of Change” that was organized in response to a man’s murder a few days prior: the man had been beaten to death in the square by pro-government assailants when he confronted them for removing “white-red-white” ribbons — colors symbolizing Belarusian independence, and the anti-Lukashenko movement — from a fence. Andreeva and Chultsova set up their camera in a nearby apartment.

As the protest began, Andreeva shared what they could see, live on Belsat TV: candles, people stretched arm-in-arm in a chain of solidarity, a ‘sea’ of flowers. At one point, Andreeva described “brave” men and women, “facing these губазікаў” (security forces) without weapons. At another, she said, “I do not know how you are on the other side of the screen, but … [it’s] just incredibly impressive — people’s courage … the protest, even after all this violence, has not ceased to be peaceful.”  She reported on police using flash grenades, rounding up protesters, and using drones to surveil the surrounding apartments.

After their broadcast, Andreeva and Chultsova were arrested in the apartment where they were filming. They were later charged with violating Belarus’s Criminal Code. Authorities alleged that the journalists had used their broadcast to “organize” the protest, which “grossly violate[d] public order” by disrupting traffic, and also accused them of “participat[ing]” in the protest. This despite the fact that the evidence presented at the trial indicated that they were doing no more than reporting on what they were seeing in the streets below.

Amicus Brief

Andreeva and Chultsova were convicted after a four-day trial and sentenced to two years in prison. The American Bar Association’s Center for Human Rights monitored the proceedings as part of CFJ’s TrialWatch initiative, which monitors criminal proceedings around the world, grades their fairness, and advocates for individuals who are unfairly detained.

In this case, the court held that the defendants had encouraged protestors by “giv[ing] a positive assessment” of the protests, revealed “measures taken by law enforcement” by describing officers’ actions; and motivated people to drive up to the protest site to “block the equipment of law enforcement agencies” by describing cars blocking the police. But an independent expert review of the footage reveals that Andreeva was only reporting, and Chultsova was only filming, what they saw. Under international law, they should not have been arrested, let alone given a criminal sentence.

“A protest is not a criminal conspiracy, and reporting on it does not turn journalists into ringleaders,” said Beth Van Schaack, Leah Kaplan Visiting Professor of Human Rights at Stanford Law School and the TrialWatch expert who will assess the proceedings in a forthcoming report, creating an objective and public record of the fairness and legitimacy of the trial for use in further advocacy. (Van Schaack is a Just Security executive editor.) “Belarus must respect journalists’ right to report on events of public importance and stop locking them up for just doing their jobs.”

In addition to outlining the violations of Andreeva’s and Chultsova’s rights to freedom of expression and peaceful assembly, this week’s CFJ amicus brief also argues that the trial itself was unfair because the court cut off the defense team’s questioning of a key witness. Under the International Covenant on Civil and Political Rights (ICCPR) — a treaty that Belarus has ratified — those accused of a crime have a right to “examine . . . the witnesses against [them].” But here, the court cut short the defendants’ questioning of a department head from the transportation agency Minsktrans, who was testifying about the alleged stopping of traffic on Nov. 15 — a factual issue critical to the prosecution’s theory that the protest had disrupted public order.

The brief also asserts that the trial was unfair because the court convicted the defendants by means of an arbitrary judgment. Under the ICCPR, defendants have the right to “be presumed innocent until proven guilty according to law,” which — according to the U.N. Human Rights Committee — can be violated by the arbitrary evaluation of evidence. Here, the court failed to establish crucial factual elements of the charges, and flatly refused to consider key defense evidence and arguments. The court, for example, ignored expert findings that the journalists’ broadcast showed no effort to “organize” the protest. Belarus has a duty to respect these rights to a fair trial, freedom of expression, and freedom of association, and if they are violated, provide victims with a remedy.

Tomorrow, in a scheduled appeal hearing on Andreeva and Chultsova’s case, the Minsk City Court has an opportunity to address this injustice. The judges should overturn their convictions and let them go.

For Andreeva, the dangers of her profession were clear to her even before she stood in the cage during her trial, facing years behind bars. “Every time I worked, I risked not only my freedom, but also my health and life,” she explained in her closing statement, her words still — despite all attempts to silence her — finding an audience. “For my family, this meant that one day I might not come back home.”

IMAGE: Belsat TV journalists Katerina Bakhvalova (R) (reporting for the TV channel under the name of Andreeva) and Daria Chultsova, who were detained in November while reporting on anti-government protests, flash the V-sign from a defendant’s cage during their trial in Minsk on February 18, 2021. The journalists were sentenced to two years in prison on charges of organizing illegal demonstrations.  (Photo by STRINGER/AFP via Getty Images)

 

About the Author(s)

Lauren Kelly-Jones

Lauren Kelly-Jones (@laurenk_j) is a Cleary Gottlieb Legal Fellow at the TrialWatch initiative of the Clooney Foundation for Justice.