Natalia Matskevich: Any dialogue with representatives of the regime should begin with the question: “Why are people being tortured in Belarus?”

— You worked in the Belarusian legal field for many years, witnessing the consistent erosion of law and legality. After the presidential elections of 2006 and 2010 in Belarus, brutal crackdowns on peaceful demonstrations were already occurring. Back then already, presidential candidates who were rivals to Lukashenka found themselves in prison and these were obviously politically motivated processes. It appeared as though the authorities were continually testing the waters and pushing the boundaries of lawlessness … Then came the 2020 elections. Lukashenka's main rivals, Tsikhanouski and Babaryka, were arrested even before registration. Members of their headquarters were detained, tens of thousands of people were taken into custody, and thousands were sentenced to imprisonment. To what extent do you think your clients, Viktar Babaryka and Syarhey Tsikhanouski, were aware of the possibility of criminal prosecution? Did they ever imagine that they could be sentenced to such lengthy terms – 14 and 19.5 years?

Natalia:

— It appears that even if they, in their own ways, acknowledged the possibility of arrest, they did not anticipate that it would turn into reprisal. After all, both Syarhey Tsikhanouski and Viktar Babaryka were newcomers in politics.

Viktar:

— In March 2019, Syarhey Tsikhanouski launched the YouTube channel “Country for Life”, which was initially focused on entrepreneurship topics. Later, he broadened his content by traveling to different cities and discussing various issues. He started by addressing common daily problems that plagued people such as neglected areas, decaying infrastructure and other related topics … He highlighted these issues with the idea of bringing these problems to the authorities' attention. At first, he held the belief that discussing these issues might prompt the government to take action. Back then he believed it was possible. As time went on, people started approaching him with different troubles. He began sharing stories of illegal detentions, spending time in courts and police stations and it became evident that the government was not really listening to the people. He came to realize that economic problems wouldn't be resolved without a change in leadership.

Natalia:

— Actually, during his blogging period, Tsikhanouski maintained communication with the established Belarusian opposition. He conducted interviews with them and even created a documentary about “Ploshcha 2010”, which featured eyewitness accounts of the events. For these reasons, when he became involved in the election process, he was generally aware of the possibility of arrest. At the same time, he remained well confident in his abilities and believed that overwhelming support from the people would shield him.

As for Viktar Babaryka, it is somewhat strange, but it seems to me that he did not anticipate this possibility at all. Babaryka did not know anyone from the old opposition. In my opinion, he relied on management and was confident that an honest and competent election campaign could ensure success. His son Eduard recruited a team of young professionals, who really worked very competently thanks to their good education and skills. I think Babaryka, as a manager, calculated the objective factors: that he was able to assemble a team, formulate the ideas of the election campaign and that people were ready to support him. But apparently he did not take into account the subjective element – the sledgehammer that can break all logic.

I have to mention that I met Tsikhanouski when he was already detained. Regarding Babaryka, my colleagues and I, as criminal lawyers, visited the office of his election headquarters to discuss agreements before he was arrested. Not everyone at the headquarters welcomed our presence. My colleague explained to Viktar Dmitrievich how to behave during the first interrogation, what could happen after the arrest, what clothes should be prepared and so forth. Some members of his team would say, “What are you lawyers doing here, walking around and scaring us with all these warnings? We maintain a positive outlook and address issues constructively.” But we, from our end, were prepared for anything.

Viktar:

— I understand Viktar Dmitrievich’s logic. The man is the head of the largest bank (“Belgazprombank” – Ed.) – a robust and powerful institution that operates meticulously within the bounds of the law. All its operations and transactions are law-based and efficiently managed, which is the reason why the bank is thriving. Someone who lives with the belief that everything should be governed by the law naturally assumes that the same principles apply at the state level as well.

Natalia:

— Indeed, Babaryka’s pre-election rhetoric was very positive and it was not really based on direct criticism of the authorities. He only focused on the changes needed to make the country better. He was also cautious in his choice of words.

— What line of reasoning did you use when defending Tsikhanouski and Babaryka in court?

Natalia:

— Syarhey Tsikhanouski was tried precisely for his words as a blogger. There was nothing more – just words! So, according to the Investigative Committee, everything he said in his videos and public speeches amounted to incitement of hatred and calls for mass riots. Nearly everything he expressed since 2019 – and it turned out he said a substantial amount – was labeled as extremism by the prosecution. They claimed that his words “led to mass riots.” The prosecution's logic was as follows: Tsikhanouski had been making statements from 2019 until his arrest on May 30th, 2020 and under this influence mass riots occurred on August 9th.

Although, as we all remember, Tsikhanouski did not call for protests let alone for riots. He wouldn't say, “Vote and then hit the streets.” He would say, “Don't go to the polls! Let everyone see that the elections failed to take place. Let's not vote.” He said, “Let's not go to the polling stations and let's see how they manage to count the votes if we weren't there.” That was his idea.

Later, when he was already in prison, people collected signatures, went to the polls, voted, and then took to the streets. This was done primarily in response to the authorities' use of violence. So, speaking of the protests, it is not easy to see how Tsikhanouski's words relate to these actions.

According to international practice, imprisonment can typically be justified only for violent actions. When people are imprisoned for their words, it almost always constitutes a violation of freedom of expression and excessive punishment. Therefore, Tsikhanouski's defense is fundamentally a human rights issue, which was evident from the moment he was detained at a peaceful picket.

Babaryka's defense presented a more challenging case. He hadn't said anything that could in any way be considered criticism or incorrect statement. This is the reason why he was arrested on alleged corruption charges. A significant part of the defense strategy was to challenge the economic elements of the crime, which was mainly handled by my colleagues. My role was to demonstrate that the criminal prosecution was not intended to punish Babaryka for any criminal act but rather to eliminate him from the elections. This is what the Western justice system terms “malicious prosecution,” where a person is persecuted not for their actions but for who they are.

— In this situation, you were on a slippery slope – someone had to be caught with malicious intent...

Natalia:

— We cannot blame specific individuals since we are guided by the presumption of innocence. But I presented evidence, including from the media, which demonstrated the public exchanges between Lukashenka and Babaryka: what Lukashenka said, how Babaryka responded and how Lukashenka, in turn, responded to that. For a while they were engaged in a de facto political debate and, remarkably, it coincided with Babaryka's arrest. For instance, Lukashenka made statements alleging that Babaryka received money by fraudulent means. During a meeting devoted to personnel issues Lukashenka claimed, “With the money of Russian oligarchs, this so-called radical opposition of Belarus is being brought to power in the country,” and warned that he would not surrender the country to anyone. The next day, Babaryka responded, stating that “no one has the right to appropriate our country.”

Furthermore, at the trial, I spoke about the way in which the investigation was executed, highlighting how procedural rights were grossly violated, how versions of innocence were not taken into account, how the investigation pursued an accusatory path, denying the opportunity for Babaryka to defend himself and ignoring all evidence that confirmed his innocence.

My speech was not political. I spoke the language of the law. The process was open and we demonstrated to people the extent to which the economic accusations were unfounded and how obvious the political context was. In this and other similar processes, people believed the voice of lawyers more than the accusations and guilty verdicts … it seems to me that precisely because of this these processes ceased to be open. The trial in the Tsikhanouski case, which began in June 2021, took place already within the walls of the Gomel pre-trial detention center.

— And you got disbarred.

Natalia:

— All the lawyers who worked with Babaryka no longer have licenses. Maxim Znak was sentenced to 10 years in prison. Alexander Pylchenko was deprived of his license in 2020. Dmitry Laevsky, Evgeniy Pylchenko, and myself lost our licenses in the summer and autumn of 2021, after the trial. Viktar Matskevich was disqualified in December 2022. The “last” lawyer of Babaryka was detained in March 2023, after which he left both the legal field and the country.

The defenders of Tsikhanouski have also been removed: Olga Baranchik failed to obtain certification in the spring of 2021, I was ousted from the process in October 2021 and Viktar Matskevich was disqualified a year later. Inessa Olenskaya was detained on March 20th 2023 and she did not pass the professional certification.

Thus, October 11th 2021 was the last time I attended Syarhey Tsikhanouski's trial. That very evening, I was suspended from work by order of the Ministry of Justice which initiated disciplinary proceedings. Later on, I was expelled from the bar. After the revocation of my license, Viktar Matskevich took over all the work. We had jointly defended Tsikhanouski from day one, and after I lost my status, Viktar Matskevich took responsibility for Babaryka's defense as well, continuing to represent both of them for over a year since then.

— Were there still some hopes that your clients could be helped?

Viktar:

— When I took over the defense of Viktar Babaryka, he had already been in prison for a considerable period. A complaint concerning his case had already been submitted to the UN Human Rights Committee. My role, therefore, was rather to offer him legal assistance during the punishment implementation stage. Given the special attention he received from the prison camp administration...

Natalia:

— No one in the prison camp was permitted to engage in conversation with Babaryka; approaching him was strictly forbidden under the threat of punishment. Those who attempted to help him by carrying a bag or talking to him found themselves placed in a punishment cell.

As for Tsikhanouski, he was always in solitary confinement, and so, the lawyers were the only people he saw, besides the guards. We provided him with both legal assistance and human communication.

So, until Viktar was also deprived of his license, he continued to visit both Tsikhanouski and Babaryka. He would see them and if the pressure on any of them increased, he would find ways to respond – he would approach the prosecutor or file a complaint with the court. Yes, Tsikhanouski was isolated in his cell and Babaryka was engaged in hard labor but we had the assurance that their mental and physical wellbeing were protected. Last year, the authorities nearly stopped delivering mail to Tsikhanouski and Babaryka, but at least a meager stream of letters from their relatives remained.

But what is happening to them now? Since March of this year, we no longer know anything for sure about any of them. No letters, no calls, no lawyers, no connection with the outside world. They are completely isolated. We don’t really know whether they are even alive.

— Is there really no way to get information about these prisoners? Perhaps you can use some connections with the investigative authorities, or with the administration of the prison camp?

Viktar:

— At this moment, these people, our clients, are in the power and control of the penal system. Previously, their lawyers could contact these authorities, the administration of the prison, penal facility, and higher – the departments and the Department of Corrections. I think relatives are writing to these institutions now but there is no result. More than six months have passed and there are no changes to the situation.

Natalia:

— At the beginning of July 2023, another rumor suddenly emerged about Tsikhanouski's alleged death in prison. This led a BBC correspondent to directly raise this issue with Lukashenka during a press conference. Lukashenka dismissed it as a “dead cat”. On the same evening, a short video was shared on a pro-government Telegram channel, where Tsikhanouski was filmed inside a prison cell. Despite the highly abnormal nature of the situation (why, indeed, should information about a prisoner only be obtained in this manner and not through communication with a lawyer or via letters or calls?) still, it was a bit of a relief for us. The video suggested that Tsikhanouski was in a relatively normal condition and we could see the type of clothing, dishes and furnishings in his cell. However, in the absence of regular communication, it is impossible to verify if the footage was recent.

About Babaryka, too, around the same time, Lukashenka claimed that he had supposedly called the minister who reassured him that everything was fine with Babaryka saying, “Either he is sewing something or he is working in the boiler room.” Wouldn't it be easier to let a lawyer visit the prisoner?

— And what about that April story, when Babaryka was admitted to the hospital, supposedly because he had been severely beaten? After that story, did you learn anything new about him?

Natalia:

— Nothing is known. The only objective information that the doctors shared with the relatives, until the doctors were forbidden to talk: yes, he has a pneumothorax. The reasons why this happened are unknown. It was said that they would leave him in the hospital for several days in order to examine him for other chronic diseases, but almost immediately he was taken back to the prison camp.

And this state of affairs has already been imposed on us as the new normal. It feels like we are constantly retreating into this savagery and we have reached the very edge: we don’t know what is happening to people, what is being done to them, and we are learning to live with it. This is almost never discussed in the public space anymore... It’s as if people are slowly fading from our collective consciousness: they do exist somewhere but we have other matters to attend to, passport issues, the problems of Belarusians in exile. While all this is undeniably important, we are not the ones imprisoned.

— And we understand that this is far from normal. So, what is it then? If we strip away all the unnecessary layers, it appears that the regime is actually killing them?

Natalia:

— In any case, this constitutes torture. Holding people incommunicado (without communication with the outside world) is classified as torture under international law, even if no physical harm is inflicted. Individuals in such conditions lack legal protection; they effectively cease to be subjects of the law. This was publicly stated in May 2023 by special rapporteurs of the Human Rights Council.

“Incommunicado detention, which creates the risk of their enforced disappearance, demonstrates a strategy to punish political opponents and conceal evidence of the ill-treatment and torture that they suffered from law enforcement officials and prison authorities.”

— Can it really be that no one bears responsibility for this?

Natalia:

— There are several levels of responsibility for human rights violations. When a state breaches its international obligations, as is happening in many cases now – violations of the right to freedom, a fair trial, the right to be free from torture, discrimination based on political opinions, freedom of expression and the freedom of peaceful assembly – the state carries responsibility. The purpose of filing complaints with the Human Rights Committee is to establish these violations and the state's responsibility. This responsibility will certainly be recognized, whether now or in the future.

When it comes to the personal criminal liability of representatives of the regime, the principle of the presumption of innocence applies and it cannot be asserted that someone is guilty of committing a crime without a court decision. There must be due process in terms of investigation and trial. Actually, there are already sufficient grounds to initiate this procedure. As international institutions have indicated, there are reasons to believe that crimes against humanity are being committed in Belarus. These crimes may also involve torture (including incommunicado detention) if they occur within the certain context of a targeted, systematic, or large-scale policy.

— How realistic can the idea of an international court or tribunal be, under current conditions?

Natalia:

— It is hard to tell. International criminal procedure can be carried out in various forms: within the framework of the International Criminal Court, an ad hoc tribunal (specifically for a given case), or within the framework of universal jurisdiction (when a crime committed in one country is prosecuted in another country).

However, the implementation of this idea requires going beyond the usual boundaries. The International Criminal Court (ICC) does not have direct jurisdiction over Belarus, since the state has not signed the ICC statute. Extending its jurisdiction to acts committed in Belarus would require substantial legal work and determination, along with the application of one of the precedents that would enable other states to initiate legal proceedings. The creation of a special tribunal for Belarus – a totally separate Belarus-focused one – can only be authorized by a decision of the UN Security Council or, as I said before, through an agreement between other states.

But even if we imagine that some strong-willed, innovative actions took place that would bypass these obstacles and a tribunal was indeed created, how might this affect the potential accused who are beyond its reach?

And even if we envision the involvement of institutions like a Special Tribunal for Belarus, how, under the current conditions, would it be possible to open the prison doors and provide urgent assistance to Tsikhanouski, Babaryka, Statkevich, Kalesnikava and others who are in critical situations?

This being said, I don’t want to undervalue the idea of international justice. It is important as such for the purpose of identifying, whether in the present or in the future, the actual human rights violations, the international crimes, and the names of those who are responsible for them.

— So, what should be our course of action now?

Natalia:

— This is a question that requires a continuous search for an answer. Unfortunately, I don't see any effective ways to help our clients at the moment. At this point, all we can do is not forget about them, express our disagreement with what is occurring, and speak out against the injustices happening. Continue to share your narrative, voice it on any available platforms … Whenever anyone talks to representatives of the regime – be it in the media, politics, or business – they should start with the question: “Why are people being tortured in Belarus?” and the specific names of those affected should be named.

It's important to remember that it was Babaryka and Tsikhanouski who had the support of the people, that people were prepared to vote for them. It's clear that those who keep them in complete isolation aim to erase them from our collective memory, and so we must ensure that their legitimacy remains intact and their names don't fade away into obscurity.

Translated from Russian by Kun