Persons Included in the List of Individuals Involved in Terrorist Activities: What Does It Mean?
What is the List of Organizations and Individuals Involved in Terrorist Activities?
Belarusian Law № 165-Z of 30 June, 2014 (Law "On the Measures for Prevention of Legalization of Proceeds from Crime, the Financing of Terrorist Activities and the Financing of the Proliferation of Weapons of Mass Destruction", hereinafter referred to as the Law on the Prevention of Legalization) provides for measures that must be taken in order to prevent the financing of terrorist activities and the proliferation of weapons of mass destruction. One such measure is the prohibition of financial transactions involving organizations and individuals engaged in terrorist activities. In order to determine the circle of these persons and bring it to the notice of financial transaction actors, the corresponding list is maintained.
For a long time, only citizens of foreign countries (mainly Afghanistan, Iraq, the DPRK, Yemen, Libya, Rwanda, and others) have been included in the list, mainly on the basis of the Consolidated List of the UN Security Council Committee adopted by the relevant resolutions.
However, at the end of 2020, citizens of the Republic of Belarus were included in the list for the first time, and since then their number has constantly been increasing. As of June 28, 2022, out of 870 people "involved in terrorist activities", 128 are Belarusian citizens.
Who is included in the list and what are the grounds?
The procedure for defining the list is contained in the Regulation approved by the Council of Ministers (Resolution of the Council of Ministers of December 30, 2014 No. 1256 "On Approval of the Regulation on the Procedure for Determining the List of Organizations and Individuals, including Individual Entrepreneurs Involved in Terrorist Activities, Appealing the Decision to Include an Organization, an Individual, Including an Individual Entrepreneur, in Such a List and Consideration of Other Appeals of these Organizations and Individuals, Including an Individual Entrepreneur, Bringing this List to the Attention of Persons Engaged in Financial Transactions and the Financial Monitoring Body"). According to this Regulation (paragraph 3), three categories of persons are subject to inclusion in the list:
1) Organizations (regardless of registration and actual location), individuals (Belarusian citizens, foreign citizens, and stateless persons), including individual entrepreneurs, in respect of which the information is available as to:
– their participation in terrorist activities;
– their involvement in the proliferation of weapons of mass destruction;
– them being under the control of organizations, individuals, and individual entrepreneurs involved in terrorist activities or in the proliferation of weapons of mass destruction;
2) Terrorist (extremist) organizations –– that is, organizations in respect of which there are court decisions entered into force recognizing them as terrorist or extremist. The organization is recognized as a terrorist organization on the basis of the Belarusian Supreme Court decision (the Law of the Republic of Belarus № 77-Z “On Combating Terrorism” of January 3, 2002; Article 3, para. 15);
An organization registered on the territory of the Republic of Belarus is recognized as extremist, its activities are prohibited on the territory of the country, it is liquidated and the use of its symbols is prohibited based on a court decision. (Article 12, para. 1 of the Law of the Republic of Belarus № 203-Z "On Countering extremism" of January 4, 2007);
3) Organizations, individuals, and individual entrepreneurs considered to be involved in terrorist activities and (or) the proliferation of weapons of mass destruction by the United Nations Security Council Committees established by United Nations Security Council resolutions N 1267 (1999), N 1718 (2006), N 1988 (2011), N 1989 (2011), N 2253 (2015) and resolutions stemming from the mentioned ones.
In addition, the Regulation (in paragraph 5) provides specific grounds for including individuals in the list:
– the decision of the Supreme Court on the recognition of the organization as terrorist (extremist), the prohibition of its activities and the liquidation;
– a similar decision of the Supreme Court in respect of a foreign or international organization (if it has a representative office in the territory of the Republic of Belarus);
– the verdict of the court of the Republic of Belarus finding an individual guilty of committing crimes provided for in articles 124-131, 134, 287, 289-293, part 4 of Article 294, part 4 of Article 295, part 4 of Article 309, part 3 of Article 311, articles 322-324, 359, 360 and 361 of the Criminal Code of the Republic Belarus;
– decisions of the courts and other competent authorities of foreign states recognized in the Republic of Belarus;
– lists of persons compiled by international organizations or their authorized bodies (as mentioned above, previously the main source of replenishment of the Belarusian list was the Consolidated List of the UN Security Council Committee).
It follows from the above provisions of the Regulation that in order to include a person in the list, two conditions must be met: the individual has to fall under one of the mentioned categories (for example, an individual in respect of whom the information exists as to engagement in terrorist activities) and the presence of a specific reason (for example, a court decision that has entered into force).
How can an individual be included in the list?
Having approved the Regulation on the Procedure for Determining the List, the Council of Ministers has appointed the State Security Committee (KGB) in charge of the management of the list.
A person can be included in the list based on the decision of the KGB
Inclusion in the list is carried out by the decision of the KGB chairman or his deputies. The Regulation stipulates that the decision on the inclusion is made within one working day after the KGB receives the relevant information as to the grounds for such inclusion (for instance, a court decision, a ruling ordering to bring the person as an accused). The establishment of such a short period gives reason to believe that in the thinking of the Council of Ministers, the decision-making process shall be reduced to a formality, although it follows from the Provision that the KGB should, in addition to the existence of a specific ground, also get the information as to the involvement of a person in terrorist activities.
After making a decision on the inclusion of persons in the list, the KGB publishes it on its official website and sends it to state bodies that monitor the activities of persons carrying out financial transactions.
What are the consequences of the inclusion in the list?
As noted above, the list is maintained solely as a means of restricting financial transactions involving persons engaged in terrorist activities and is intended for use by persons carrying out financial transactions.
Financial transactions are defined as any transactions with funds, regardless of the form and manner of their execution; the range of persons engaged in financial transactions includes banks and non-bank financial institutions, commodity exchanges, insurance organizations and brokers, notaries, organizations providing real estate services, auditing organizations, postal operators, gambling organizers, organizations in charge of state registration of real estate, leasing organizations, etc.
All these persons are obliged by the legislation (Article 9-1 of the Law on the Prevention of Legalization) to:
- freeze funds (impose a ban on the use and disposal of funds) belonging to listed individuals and entities whose beneficial owner is a listed individual;
- block financial transactions (prohibiting the execution of financial transactions) in which they are parties or beneficiaries;
- provide the relevant information to the financial supervisory authority.
In other words, a listed person is, in fact, prevented from engaging in any civil transactions, especially those involving non-cash payment methods. Upon discovery that a listed person is involved in a financial transaction, the latter is to be blocked. Banks must check their clients for the inclusion in the list each time the latter is updated –– and at least once every three months –– in order to freeze their funds if the person is on the list. Persons on the list must be denied state registration of real estate, certification of a transaction, or notarial actions related to a financial transaction.
In addition, the procedure for applying measures related to the freezing of funds and (or) blocking financial transactions of persons involved in terrorist activities is contained in the relevant regulation approved by Resolution No. 735 of the Council of Ministers of the Republic of Belarus on September 16, 2016.
Are the existing procedure and the resulting restrictions legitimate?
An analysis of the Regulation on the Procedure for Determining the List approved by the Council of Ministers and of the available information on how the procedure is implemented in practice allows stating that an undue prejudice to the rights of the persons on the list takes place.
1) Violation of the presumption of innocence.
An obvious problem with the current order is that one of the grounds for inclusion on the list is the fact that charges have been brought under certain articles of the Criminal Code. Thus, a citizen placed on the list is found to be involved in terrorist activities even before a court decision, which clearly contradicts Article 26 of the Constitution of the Republic of Belarus.
It is worth noting that as of 28 June 2022, 103 out of 128 Belarusian citizens on the list were placed there based on the charges brought against them, and only 25 –– based on a court decision in force.
2) Arbitrary expansion of the grounds for inclusion in the list.
The Regulation lists a number of articles of the Criminal Code, conviction under which comprises a ground for listing. Most of these articles provide for liability for acts that are indeed covered by the concept of "terrorist activity" as formulated in the law: committing an act of terrorism (Article 289), financing terrorist activities (Article 290-1), setting up an illegal armed formation (Article 287) and so on.
At the same time, of the 25 persons added to the list on the basis of a conviction, 20 were convicted under Articles 130 and 293 of the Criminal Code.
3) Automatic inclusion in the list, lacking the satisfaction of mandatory conditions.
Among the criminalized acts, convictions for which are a basis for inclusion in the list, there are some that can be considered terrorist activity only on the basis of the facts of the case.
Indeed, the disposition of Article 361 of the Criminal Code mentions incitement to commit an act of terrorism as one of the different kinds of unlawful acts. Accordingly, inclusion in the list of persons convicted of incitement of another kind would contradict the Regulation (since the condition for inclusion in the list is not only a conviction that has entered into force but also information as to the participation of a person in terrorist activities, by which the specific circumstances of the case should be considered).
However, practice suggests that the inclusion in the list is done "mechanically", based on the article number alone, without any analysis of the factual circumstances.
This practice is illustrated by the case of Maxim Znak. Although he was convicted under Article 361 of the Criminal Code, Znak was never charged with incitement to commit an act of terrorism, and the acts listed in the verdict do not constitute terrorist activity. In other words, he is not a person involved in terrorist activities. Nevertheless, Znak is included in the list, which was done solely on a formal basis –– in connection with the conviction under Article 361.
Thus, in practice, the mandatory nature of all the conditions required for inclusion in the list is ignored, leading to an unlawful and unjustified restriction of the rights of citizens even under the current Regulation.
4) Restriction of rights takes place in violation of the Constitution.
The consequence of including a citizen on the list is a significant infringement of his or her rights –– in fact, it constitutes a complete inability to carry out financial transactions. The imposition of such restrictions in accordance with Article 23 of the Constitution is possible only on the basis of the law.
Conclusions:
As one can see, the restrictive measures per se –– the freezing of funds and blocking of financial transactions –– are indeed provided for by law. However, no less essential elements of the restrictions –– the categories of persons to whom restrictions apply and the procedure for classifying a person as belonging to one of such categories –– are provided in the Regulation approved by the Council of Ministers. This fact does not allow us to consider that the restrictions are actually established by law –– they are only mentioned in it. Their real content is determined by a subordinate act.
Moreover, restrictions on individual rights and freedoms are considered to be legitimate only when they are aimed at the goals indicated in Article 23 of the Constitution: ensuring national security, public order, protection of morals, public health, rights and freedoms of others.
But if one assesses the real effect and actual purposes of the inclusion of convicted citizens and those serving a sentence in the list, it becomes obvious that this effect is not related to the prevention of financing terrorist activities, but consists mainly in depriving these citizens of the possibility of receiving remittances in prison and promotes further stigmatization of the opponents of the current authorities. In other words, the restrictions are aimed at further limiting of rights of the citizens, rather than achieving the legitimate aims envisaged in the Constitution.
In these circumstances, it can be argued that the restrictions imposed on citizens included in the list of persons involved in terrorist activities are unconstitutional, which makes the entire procedure described above unlawful.
