Despite the declared purpose of "anti-extremist legislation," including Article 130 of the Criminal Code, to counter calls for hate crimes against groups of the population in need of additional protection, such legislation is increasingly being used by the Belarusian authorities to put pressure on political opponents. After the presidential elections in 2020, Article 130 of the Criminal Code became one of the most common tools for full-scale repression against people who speak out against the actions of the authoritarian regime.

The purpose of this article is to analyze the provisions of the methodological recommendations in order to gain an understanding of the methods used by the the authorities, assess the risks of applying the article to various forms of speech, and correlate the interpretation of the recommendations on incitement of hatred by the Investigative Committee (IC) with the requirements of international law. For the corresponding analysis, we examine the International Covenant on Civil and Political Rights of 1966 (as a treaty which norms are binding for Belarus), General Comments to this covenant (as a means of additional interpretation), a number of documents containing expert recommendations (not having binding forces for Belarus, however, representing authoritative recommendations for the interpretation of the norms of the above-mentioned Covenant), the European Convention on Human Rights and the practice of the European Court of Human Rights (cannot be directly applied to Belarus since the country is not a member of the Council of Europe, but has research value due to many analogies between the anti-extremist legislation of Belarus and Russia, in respect of which a number of precedent decisions have been made; in addition, can be used to interpret international law, and has also the most progressive view of the human rights system), as well as some documents published within the framework of the activities of international organizations.

At the very beginning of the analyzed document, it is indicated that Article 130 of the Criminal Code has an international legal nature, after which links are provided to a list of international legal acts that are recommended to be used to interpret the provisions of the article. Thus, the document contains references to the Universal Declaration of Human Rights (hereinafter referred to as the UDHR), the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights (hereinafter referred to as the Covenant), the International Convention on the Elimination of All Forms of Racial Discrimination, and even to the Council of Europe Convention For the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the ECHR), which is not binding for Belarus.

Indeed, Article 130 of the Criminal Code is not some specific Belarusian invention. It was to be introduced into national legislation as part of the implementation of Article 20 of the Covenant, which states that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." At the same time, analyzing other norms of the above-mentioned acts, it can be noted that the interpretation of Article 130 of the Criminal Code by courts and law enforcement officers, as well as the subsequent practice of its enforcement, immediately violates a number of norms of international legal acts referred to by the Criminal Code:

● the article is used to punish comments criticizing the authorities and calls for resistance, for opinions displeasing the regime about socio-political events and the historical past, for publishing information about human rights violations - thereby violating the right to freedom of expression (Article 19 Covenant, Article 19 UDHR, Article 10 ECHR). Let us remind you that international acts provide for a very few number of cases when freedom of speech can be limited.
● Article 130 of the Criminal Code is used exclusively for the criminal prosecution of opponents of the authorities, while attempts to bring supporters of the authorities to justice under this article are ignored by law enforcement agencies – thus, the right not to be discriminated against on the basis of political opinions is violated (Article 26 Covenant, Article 7 UDHR, Article 14 ECHR);
● during investigative and judicial proceedings under this article (as well as under other "political" articles), the accused often do not have sufficient time and adequate opportunities to familiarize themselves with the case materials. Security forces use physical and psychological violence against the accused to force them to give false testimony against themselves. Courts almost never include independent examinations in cases and do not take into account the arguments of suspects. Almost all hearings under this article are held behind closed doors on far-fetched grounds. During the trial, the accused are caged and often handcuffed, in violation of the presumption of innocence – thus, the right to a fair trial is violated (Article 14 Covenant, Article 10 UDHR, Article 6 ECHR);
● during investigative actions under Art. 130 of the Criminal Code (as well as under other political articles), law enforcement agencies often conduct searches without an appropriate warrant, unreasonably resort to means of intercepting correspondence and surveillance in general, and use physical and psychological violence to gain access to the electronic devices of suspects. Security forces publish "repentance videos" in which detainees, including the arrested under this article, under pressure confess to crimes they did not commit; Also, such video recordings often disclose personal correspondence of detainees and intimate facts of their personal lives – thus, the right to a private life is violated (Article 17 Covenant, Article 12 UDHR, Article 8 ECHR);
● the use of violence and the practice of using "repentance videos" by law enforcement officers in criminal proceedings can in certain cases be interpreted as the use of torture - the right not to be subjected to torture is violated (Article 7 Covenant, Article 5 UDHR, Article 3 ECHR).

The document also mentions that the "generic object of the crime" provided for in Article 130 of the Criminal Code is the safety of humanity. This article is indeed included in the chapter of the Criminal Code entitled "Crimes against peace and security of mankind" on a par with such particularly serious crimes as waging an aggressive war, an act of international terrorism, and genocide. In our opinion, the qualification of "incitement to hatred" as an international crime and the establishment of a corresponding extremely severe punishment (imprisonment for up to 12 years) cannot be considered justified, since only the most severe form of "hate speech", in particular incitement to genocide, which obviously is not covered by the disposition of Article 130 of the Criminal Code in the current version, may belong to this category of crimes (for example, the activities of "Radio of a Thousand Hills" during the genocide in Rwanda).

The document goes on to discuss the definition of "incitement to hatred", clarifies the terms used in the wording of the article, and also describes the elements of the crime. Thus, the document states that "incitement to racial, national, religious or other social hostility or discord, violation of the rights of citizens on the basis of race, nationality or attitude to religion, membership of a particular confession or social group are aimed at causing an outbreak of violence, undermining confidence in government, and, ultimately, weaken the state." From this formulation we can conclude that the state views Article 130 of the Criminal Code not as a tool to combat intolerance and violence against vulnerable groups in society (this may be the legitimate goal of "anti-extremist" measures according to international standards), but as a tool to protect the reputation of authorities' and government organizations' representatives, the ultimate goal of which is to strengthen the regime.

The document also makes attempts to define almost every word appearing in the disposition of Article 130 of the Criminal Code: in particular, it provides extremely broad definitions of the terms "hostility" and "discord", which in practice also do not have a clear, established meaning. The Camden Principles on Freedom of Expression and Equality state that restrictions on freedom of expression must be clearly and narrowly defined and consistent with an important public interest, and must not be overly broad, that is, not restrict freedom of speech in a broad or indirect manner. The Siracusa Principles also state that legal provisions limiting the enjoyment of human rights must be clearly stated and accessible to everyone. Predictability of law enforcement is one of the basic properties of law, which is why the legislation of democratic countries strives for clarity and unambiguity. At the same time, looking at the text of Article 130 of the Criminal Code, an unprepared person unfamiliar with the practice of its application is unlikely to be able to effectively figure out exactly what actions can be recognized as a crime. The definitions of a number of terms from Article 130 of the Criminal Code, which are given in the Methodological Recommendations of the Investigative Committee, due to their extremely broad nature, do not clarify the understanding of Article 130 of the Criminal Code for the average person. Moreover, the Methodological Recommendations are not published in the public domain, and therefore it is not possible for an ordinary person to familiarize oneself with any explanations to Article 130 of the Criminal Code as a whole. This vagueness in definitions leads to the fact that in society the boundaries of what is punishable and what is not are blurred, and therefore people prefer not to speak out on sensitive topics at all in order to avoid troubles with the law.

General Comment No. 34 to Article 19 (freedom of opinion and expression) of the International Covenant on Civil and Political Rights (paragraph 46) is a means of supplementary interpretation to the Covenant in accordance with Article 32 of the Vienna Convention on the Law of Treaties.

The document states that the actions that constitute the objective side of the crime in question include not only calls to commit violence against a certain group, but also actions not associated with violence. Thus, the crime includes not only "statements justifying the need for genocide, mass repressions, deportations, and the commission of other crimes" and equal actions, including the use of violence against representatives of any group", but also, for example, "humiliation of representatives of a particular race, nationality, religion or social group" or "dissemination of ideas, views, assessments or calls that undermine trust, respect" for representatives of a particular group. At the same time, international standards speak of the need to separate "violent" and "non-violent" extremism and that only the former should be subject to criminal prosecution. Thus, the thematic Report of the UN High Commissioner for Human Rights states that "some domestic laws and policies are aimed at combating extremism, but do not call it "violent" extremism, and "if the relevant measures are not limited to "violent" extremism, there is a danger that they will focus on the mere fact of having an opinion or belief rather than on actual action." Also, according to the standards of the Johannesburg Principles, expression of opinion should not be considered a threat to national security and be limited to it if it constitutes criticism or insult to the nation, state or its symbols, government", as well as "disapproval, on matters of religion, freedom of conscience or beliefs" unless the criticism is intended to or is likely to incite violent action.

Next, the document moves on to its most problematic part, namely those social groups that should be protected by Art. 130 of the Criminal Code. The document states that a "social group" should be understood as "a set of people united by common socially significant characteristics and interests, whose life activities are aimed at achieving goals useful for society and the state. Also, investigators recognize as a "social group" only those groups that have a state-defined status, legal capacity and legal personality (being legal persons), and whose existence is recognized by the state due to historically established traditions. Thus, in Belarus, only those groups of society which existence is desirable and useful to the regime and which values do not run counter to the authoritarian political course, as well as only groups which status is regulated by Belarusian legislation, can be protected from hostility. Accordingly, for example, representatives of the LGBTQ+ community, which in the legal systems of democratic countries would undoubtedly be considered a social group in need of additional protection, in Belarus will not be considered a social group under Article 130 of the Criminal Code and will not be legally protected from manifestations of hatred, since the state considers this group hostile to its ideological order. Also, from the practice of applying the article, we can conclude that representatives of many professional groups will not be protected: for example, independent journalists who have not passed state accreditation, or lawyers who have been deprived of their lawyer's license, since in fact they were deprived of their "state-defined status".

The authors of the document provide examples of groups of people that can be considered "social groups". Groups are listed for which there is indeed a consensus in international law on the need for additional protection: for example, groups of people with restricted abilities (people with disabilities) and age groups (children). It is mentioned that "social groups" are various "unions", for example "Women's Union" (state organisation), while women as a whole are not mentioned as a "social group". In the scope of this concept, investigators in practice include professional groups: officials, law enforcement officers (police officers, including special units; prosecutors; state security officers), investigators, judges, pro-state journalists and activists; that is, in fact, only groups that ensure the existence of the regime. People who left critical comments regarding such groups in the context of their massive violations of human rights in Belarus or who disseminated personal data of representatives of groups suspected of such violations are subject to criminal prosecution.

The European Court of Human Rights, in its landmark decision in the case "Savva Terentyev v. Russia", indicated that law enforcement officers cannot be considered a vulnerable social group in cases where "incitement to hatred" is expected, and do not need increased protection from harsh comments, especially in circumstances where such comments constitute legitimate criticism of unreasonable or unlawful conduct of public officials. According to the Johannesburg Principles, opinions that "constitute criticism or insult to a nation, state or its symbols, government, strike departments or state and public figures," if there is no incitement to violence, expressions of opinion that "are aimed at communicating information about alleged violations of international human rights standards" cannot be restricted.

The text of the document provides examples of groups of people who should not be considered a social group in relation to Article 130 of the Criminal Code, in particular, "alcoholics, drug addicts, persons without a fixed place of residence, engaged in vagrancy, begging, prostitution." Firstly, it should be noted that the authors of the document use incorrect language that creates a negative image among the groups described. So, for example, it is correct to mention not "alcoholic" and "drug addict", but "a person with alcohol or drug addiction"; not "prostitution", but "sex work". Secondly, these groups are more susceptible than other groups of the population to social exclusion and hatred based on many destructive stereotypes and prejudices against them. Despite the fact that the definition of "vulnerability" has not yet been enshrined in international law, and its criteria have not been formulated, it can be said with confidence that these groups are at risk of oppression, discrimination and the inability to fully enjoy their rights and freedoms and, on the contrary, should be subject to additional legislative protection as "another social group" under Article 130 of the Criminal Code.

Protection by Article 130 of the Criminal Code of social groups with "power" and independent protection mechanisms contradicts the very essence of the protected interest - not to make the life of already oppressed and limited groups even more difficult. This article should protect the "weak", not the "strong".

The document further provides instructions on how to classify certain actions as "inciting hatred," including examples of which examples do not fall under this concept. Thus, it is stated that "criticism of political parties (organizations), public, ideological and religious associations, political, ideological or religious beliefs, national or religious customs in itself should not be considered as an action aimed at inciting racial, national, religious or other social hostility or discord." This thesis of the analyzed document generally complies with international legal standards, but in practice it is still used for repression: people who criticized members of pro-government military-patriotic clubs and criticized people who support Lukashenko's regime in general were subject to criminal prosecution under Article 130 of the Criminal Code. It is also stated that "it is not a crime under Art. 130 of the Criminal Code, expressing judgments and conclusions using the facts of interethnic, interfaith or other social relations in scientific or political discussions and texts and not pursuing the goal of inciting ... discord." At the same time, in practice, statements during political discussions, for example against Russian aggression, are often equated to inciting "national hatred."

The document further describes the general scheme of investigations into crimes of "inciting hatred." We propose to consider the prescribed investigative tactics through the prism of the Rabat Plan of Action to prohibit the promotion of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The Rabat Plan recommends using a six-part test to determine speech that should be restricted and criminalized.

● Context (should place the statement within the social and political context prevailing at the time the statement was made or disseminated).

The Methodological Recommendations do not contain a recommendation to analyze the context of a statement when investigating cases of "incitement to hatred", which does not meet the standards of the Rabat Plan.

● Actor (it is necessary to take into account the position or status of the speaker in society, including in relation to the intended audience of the statement).

The Methodological Recommendations mention the need to thoroughly study the personality of the person suspected of "inciting hatred." In particular, it is recommended to interrogate relatives, acquaintances, colleagues, classmates, and work colleagues who may have been aware of "the possible intolerance and hostility of the offender" towards certain groups. It is proposed to tap the suspect's phone and analyze conversations for the presence of "extremist views and beliefs" on the suspect, as well as conduct an examination of the suspect to determine tattoos of "extremist content" on the body. In all these cases, only the personal views of the suspect are analyzed regarding whether the person is an adherent of "extremist" ideologies and whether one is generally capable of committing "extremist" crimes." At the same time, the international standard provides for studying the personality of the speaker from a completely different perspective - not from the point of view of whether one has spoken before on the same topic or whether one supports any ideology, but from the point of view of one's position in relation to the desired audience of the statement. For the Investigative Committee, which conducts an investigation on the basis of the Methodological Recommendations, it will not matter whether the statement was made by a popular politician with a large audience supporting him and ready for any action, or whether it was made by an unknown person, far from social-political agenda, who decided to leave a single comment on the Internet. Thus, the recommendations specified in the document do not comply with the requirements of the Rabat Plan.

● Intent (analysis of the intent, since negligence and recklessness are not sufficient grounds for prosecution);

The Methodological Recommendations indicate that the subjective side of a crime under Article 130 of the Criminal Code is characterized by guilt in the form of direct intent, that is, in the case when a person was aware of "the social danger of one's action or inaction, foresaw one's socially dangerous consequences and desired their occurrence," as well as one's "special alternative purpose" was to incite hostility. Consequently, in this case, the obligation is fixed to analyze the "intention" criterion, which formally corresponds to the requirements of the Rabat Plan. In judicial Belarusian practice, the presence or absence of intent does not affect the desire to punish a person. Many people who were accused of "inciting hatred" during the trial stated that with their statements they only wanted to express their critical opinion on socio-political topics, most often driven by emotions caused by massive violations of human rights in Belarus. At the same time, people did not imagine that security forces and courts use such a broad interpretation of the provisions of Article 130 of the Criminal Code according to which any comment with a negative connotation about any social groups can be considered "inciting hatred." We remind you that predictability of law enforcement is one of the principles of law.

For example, cultural manager Mia Mitkevich was sentenced to 3 years in prison, despite the fact that in court she stated that she "wanted to express an opinion and throw out emotions without any consequences" with her comments, "did not pursue the goal of harming anyone" or incite social hostility or provoke someone to take active action," and also added that she did not know about the existence of a "sign of social affiliation" in this crime.

● Content or form (analysis of how direct and provocative the statement was; consideration of form and style, the nature of the arguments put forward by the speaker, balance of argumentation);

The need to conduct forensic linguistic and psychological examinations in each criminal case is indicated, which generally correlates with the recommendation of the Rabat Plan to analyze the form and style of statements. However, it should be noted that in all cases, forensic examinations are carried out by employees of government agencies, in particular experts from the State Committee for Forensic Examinations of the Republic of Belarus. Such experts support the political course of the Belarusian regime, including its vision of the "danger" for the state of certain statements related to politics, and also tend to interpret various theses extremely broadly: for example, often harmless calls, for example, "to resolve issues with authorities within the framework of the law" can be interpreted as "a call for the murder of government officials." Moreover, directly during the trial, judges always reject requests to include research done by independent experts into the case on various procedural grounds. Thus, the practice of investigating Article 130 of the Criminal Code does not meet the requirements of the Rabat Plan in the context of taking into account the "content and form" of statements.

The topic of challenging the content and form of a statement, as well as justifying the incorrectness of examinations and the incompetence of experts, is an independent complex topic that is very difficult to cover in detail within the framework of this material. It is recommended that you actively apply the standards set out in this article and use all available legal remedies. Ultimately, the accumulation of a critical mass of understanding of the incorrectness of the practice of applying liability under this and other articles will yield results.

● Degree of publicity (analysis of the accessibility of the statement, the nature of the addressee, the significance and size of the audience);

The Methodological Recommendations do not contain any theses on analyzing the degree of publicity of a statement. Sometimes the case materials contain information in this regard (the number of views on an "extremist" video, the number of subscribers of the accused blogger), but we assume that in practice this information has virtually no effect on the course of trials under Article 130 of the Criminal Code. In practice, both statements made in personal correspondence, small or even closed chats, as well as statements by bloggers with an audience of thousands and their videos are subject to criminal prosecution.

● Likelihood of the call being implemented, including imminence (analysis of the likelihood that the statement could provoke actual action against the target group).

The requirements for materials provided to investigative units by investigative bodies indicate the need to collect "information about persons who have become familiar with posted extremist materials (for example, who have read relevant messages on a social network, instant messenger), as well as explanations from these persons": in this case, there is an attempt to study the likelihood of the call being realized (what the user who read the statement was thinking about; what urge one saw in it; whether one was ready to take any actions based on this statement). However, in practice, security forces and courts believe that almost any comments containing criticism of government officials can most likely become the cause of outbreaks of violence in society. Thus, in the framework of the "Zeltzer case," a resident of Brest was sentenced to 3 years in prison for the comment "That's what these regime creatures need. I feel sorry for the guy" - the prosecution considered that this comment could "cause an outbreak of violence against law enforcement officers." Also, an ex-journalist from Baranavichy was sentenced to 3 years in prison for a comment in which he called a deceased employee of the State Security Committee a "dog" and added that security forces will continue to die if they "continue to come to the apartments of honest Belarusians" - according to investigators, the commentary contains "statements aimed at increasing anti-state sentiment, approval and propaganda of violent resistance to law enforcement officers of the Republic of Belarus." Also, in many cases, people are persecuted for comments that were left several months or even years before the start of the trial, when it becomes obvious that during this time period no socially dangerous acts were recorded that have a direct cause-and-effect relationship with the statement.

It follows from the logic of the Rabat Plan that in order to criminally punish a person for speaking out, all of the above criteria must be analyzed simultaneously. In order to impose restrictions on speech (in our case, criminal prosecution), the results of the analysis of each of these criteria must collectively demonstrate that the speech poses a threat of an outbreak of violence. So, if a person directly and harshly calls for violence against any religious group, does this in one's kitchen in a country where interfaith conflicts have not been observed for many years, while all recipients of the statement have no respect for this person and are not ready to follow one's advice or calls, then in this situation, within the framework of the "content and form" criterion, the statement may seem dangerous, at the same time, through the prism of analyzing criteria "degree of publicity", "context", "speaker" , "the likelihood of the call being implemented", such a statement does not pose a danger, and therefore, we can conclude that based on the totality of the results of the analysis of each of the criteria separately, this statement should not be subject to restrictions, and the speaker should not be subject to criminal prosecution. Also in this regard, it is worth adding that the criteria of the Rabat Plan are recommended for use not as a "formula" for calculating the amount of punishment for any statement (for example, the smaller the audience - the lesser the punishment), but in order to determine whether this or that statement is a crime at all.

Having analyzed the provisions of the Methodological Recommendations through the prism of the Rabat Plan, we can conclude that some of the analyzed provisions of the document, despite formal compliance with the standards of the Rabat Plan, have a repressive nature of application in practice. Also, the Methodological Recommendations do not contain obligations to analyze the context and degree of publicity of the statement. Thus, we can conclude that the Methodological Recommendations do not fully comply with the standards recommended for use by the Rabat Plan.

A defender in a trial under Article 130 of the Criminal Code, who wishes to operate with the norms of international legal standards, in particular the Rabat Plan, can argue for the need for the court to take into account its norms, and also refer directly to its norms as follows:

Also, in the context of the description of the investigation process, it is indicated that in each criminal case "the causes and conditions that contributed to the commission of the crime must be identified", while "without waiting for the end of the investigation, measures must be taken to prevent the distribution, production, storage of media products containing calls for extremist activity." Thus, the document apparently contains recommendations for limiting access to any materials that, according to investigators, could incite a person to make any "prohibited" statements, as well as restrictions on access to the statements themselves. Moreover, these measures are recommended to be taken before trial and, accordingly, before a person is found guilty of a crime, and one's statements are illegal. The text of the document contains many theses about the investigation process (i.e. when a person is in the status of a suspect or accused), which grossly contradict the principle of the presumption of innocence. Thus, the document mentions the following theses that violate this principle:

● "inspection of computer equipment, tablets, mobile phones used by the perpetrator";

● "interrogations...of people aware of the possible intolerance and hostility of the criminal";

● "search at the place of registration, residence, work of the person who committed the crime."

We remind you that paragraph 2 of Article 14 of the International Covenant on Civil and Political Rights of 1966 states that everyone accused of a criminal offense has the right to be presumed innocent until proven guilty according to the law. According to paragraph 30 of General Comment No. 32, which interprets the above-mentioned article of the Covenant, persons charged with a criminal act should be treated in accordance with the principle of innocence, and all public authorities are obliged to refrain from prejudging the outcome of the trial, e.g. from public statements alleging the guilt of the accused.

At the end of the document it is indicated that the bodies of inquiry, when considering allegations of "inciting hostility" and collecting evidence, "unjustifiably rarely use the opportunities provided to them by the current legislation to conduct operational-search activities". In particular, recommendations are made to more often use monitoring of suspects in telecommunication networks, and a detailed list of special methods that can be used to identify a person who may be involved in "inciting hatred" is also provided:

● auditory control of telecommunications (listening and recording); control of postal communications,

● seizure of postal, telegraph or other correspondence;

● conducting a phonoscopic examination of recordings of the suspect's conversations;

● conducting handwriting and author-editing examinations of the text written by the suspect;

● conducting searches at the person's place of registration, residence, or work;

● sending international orders to provide legal assistance to obtain information about the owner, date, time, IP addresses of registration of user pages on the social network and posting of materials from the owners of web resources. In this case, there is a mention of obtaining information on the basis of agreements between the internal affairs bodies of Belarus and Russia.

Thus, recommendations are issued for expanding the use of various technologies of total surveillance of people expressing their opinions on socio-political issues in Belarus, and virtually all means of communication are subject to control: the Internet, telephone, postal and telegraph communications, any formats of written or printed communications.

The document mentions that often "in the materials of inspections received by the departments of the Investigative Committee to resolve the issue of initiating a criminal case, there are no explanations of the persons in respect of whom the inspection is being carried out", and there are only "reports from employees of the investigation agency, which indicate the inappropriateness obtaining such explanations in view of the fact that these persons can destroy information materials, equipment, or hide from the criminal prosecution authority." Thus, investigators confirm the tendency to actually fabricate cases based only on considerations of the investigative bodies, without taking into account any arguments or explanations on the part of the suspected person, using various far-fetched reasons for not listening to the testimony of the suspect.

The Investigative Committee's recommendations for investigating the crime of "inciting hatred" are actually guidelines for the repressive application of "anti-extremist legislation," which has more than once been recognized as an instrument for unlawfully restricting the right to freedom of expression. The authors of the document put an equal sign between inciting hatred and "weakening the state" - a conclusion that makes virtually impossible any statement critical of the de facto elected government.