Freedom of media and sustainable development — Belarus

In July 2022, Belarus pre­pared its sec­ond Vol­un­tary Nation­al Review on the imple­men­ta­tion of the Sus­tain­able Devel­op­ment Goals. Unfor­tu­nate­ly, this review does not address the tar­get on pub­lic access to infor­ma­tion, despite the fact that glob­al indi­ca­tor 16.10.2 is at Lev­el I, which demon­strates the pri­or­i­ty of report­ing on it.  How­ev­er, offi­cial­ly pub­lished data reports the fol­low­ing sta­tis­tics for nation­al indi­ca­tors in rela­tion to tar­get 16.10:

• Num­ber of con­firmed cas­es of killing, abduc­tion, enforced dis­ap­pear­ance, arbi­trary deten­tion and tor­ture of jour­nal­ists and asso­ci­at­ed media rep­re­sen­ta­tives, trade union­ists and human rights defend­ers in the last 12 months — (0).^[1]

In the con­text of this indi­ca­tor, it should be stressed that the offi­cial sta­tis­tics do not cor­re­spond to the actu­al state of affairs. Accord­ing to the mon­i­tor­ing data of the Belaru­sian Asso­ci­a­tion of Jour­nal­ists (here­inafter — BAJ), 481 cas­es of arbi­trary deten­tion of media rep­re­sen­ta­tives were record­ed in 2020^[2], 113 cas­es were record­ed in 2021^[3], and 43 cas­es were record­ed in 2022^[4].

• Num­ber of legal acts pro­vid­ing guar­an­tees of cit­i­zens’ access to infor­ma­tion (1).^[5]

Regard­ing this indi­ca­tor, it seems nec­es­sary to note that the cur­rent Law «On Infor­ma­tion, Informa­ti­za­tion and Infor­ma­tion Pro­tec­tion» does not pro­vide suf­fi­cient and effec­tive leg­isla­tive guar­an­tees to cit­i­zens, while the nec­es­sary poli­cies and oth­er insti­tu­tion­al mea­sures to imple­ment SDG 16.10 have not been adopt­ed in Belarus.

Investigative journalism in Belarus

Inves­tiga­tive jour­nal­ism in Belarus, which is key to achiev­ing the Sus­tain­able Devel­op­ment Goals, faces numer­ous chal­lenges — includ­ing the risk of crim­i­nal pros­e­cu­tion of jour­nal­ists, state reprisals against media out­lets and forced relo­ca­tion of media rep­re­sen­ta­tives.

• the case of Dzia­n­is Ivashyn

Dzia­n­is Ivashyn^[6] is a Belaru­sian inves­tiga­tive jour­nal­ist and polit­i­cal pris­on­er sen­tenced to 13 years and 1 month of impris­on­ment. Ivashyn is known for his inves­ti­ga­tions into the influ­ence of the «Russ­ian world» on Belarus and Syr­ia, the scan­dalous devel­op­ment in Kuropaty, as well as the tran­si­tion of for­mer Ukrain­ian Berkut offi­cers into the secu­ri­ty ser­vices of Belarus. Dzia­n­is Ivashyn was charged under Arti­cles 356 (trea­son against the state) and 179 (ille­gal col­lec­tion and dis­sem­i­na­tion of pri­vate infor­ma­tion) of the Crim­i­nal Code of the Repub­lic of Belarus for his pro­fes­sion­al activ­i­ties.

• the case of Siarhei Sat­suk

Siarhei Sat­suk^[7]  is a Belaru­sian inves­tiga­tive jour­nal­ist and polit­i­cal pris­on­er sen­tenced to 8 years of impris­on­ment. One of Sat­suk’s most high-pro­file inves­ti­ga­tions, after the pub­li­ca­tion of which he faced prob­lems with the offi­cial author­i­ties, was the mate­r­i­al about large-scale cor­rup­tion in the med­ical indus­try in Belarus. Siarhei Sat­suk was charged under Arti­cles 130 (incite­ment of enmi­ty or dis­cord), 426 (exceed­ing pow­er or offi­cial author­i­ty) and 430 (bribery) of the Crim­i­nal Code of the Repub­lic of Belarus for his pro­fes­sion­al activ­i­ties.

• Inde­pen­dent media pub­lish­ing inves­tiga­tive jour­nal­ism

In Belarus, a num­ber of inde­pen­dent media out­lets that pub­lish inves­tiga­tive jour­nal­ism have also faced state repres­sion fol­low­ing 2020. For instance, the largest media por­tal TUT BY^[8] was forced to cease its activ­i­ties due to state harass­ment in the form of numer­ous search­es of the edi­to­r­i­al office, block­ing of the web­site, crim­i­nal cas­es against its staff, depri­va­tion of media sta­tus and recog­ni­tion as an ‘extrem­ist organ­i­sa­tion’. Anoth­er illus­tra­tive exam­ple in this regard is the BELSAT TV chan­nel^[9], whose web­site is blocked on the ter­ri­to­ry of Belarus, with employ­ees fac­ing admin­is­tra­tive and crim­i­nal pros­e­cu­tion. More­over, BELSAT is offi­cial­ly recog­nised as an «extrem­ist for­ma­tion» and its con­tent as «extrem­ist mate­ri­als» whose dis­tri­b­u­tion is pro­hib­it­ed.

Details of oth­er reprisals against inde­pen­dent media out­lets can be found at the fol­low­ing link.^[10]

• Belaru­sian Inves­tiga­tive Cen­ter

Belaru­sian Inves­tiga­tive Cen­ter is a project launched in 2019 that brings togeth­er inves­tiga­tive jour­nal­ists and aims to expose cor­rup­tion schemes and vio­la­tions of the law at the high­est lev­el. Since April 2022, Belaru­sian Inves­tiga­tive Cen­ter has been a mem­ber of the Organ­ised Crime and Cor­rup­tion Report­ing Cen­tre (OCCRP). After a search of the pro­jec­t’s  office in 2021 and an active crack­down in the media space, the project team was forced to relo­cate and con­tin­ue to con­duct inves­ti­ga­tions from abroad.

Challenges for independent media and journalists in Belarus

1. Key chal­lenges in the field of poli­cies and oth­er insti­tu­tion­al mea­sures.

Cur­rent­ly, the main chal­lenges for inde­pen­dent jour­nal­ism in Belarus in the field of pol­i­tics and oth­er insti­tu­tion­al mea­sures include crim­i­nal pros­e­cu­tion of media rep­re­sen­ta­tives, admin­is­tra­tive deten­tions and search­es of inde­pen­dent jour­nal­ists, appli­ca­tion of «anti-extrem­ist» leg­is­la­tion, admin­is­tra­tive mea­sures to restrict access to infor­ma­tion, as well as dif­fi­cul­ties for jour­nal­ists to access infor­ma­tion held by the state and a clear dis­ad­van­tage com­pared to state-owned media.  It should be empha­sised that all of the above chal­lenges are com­pound­ed by the lack of effec­tive reme­dies in Belarus, which could allow inde­pen­dent jour­nal­ists and media to defend their rights and inter­ests.

• crim­i­nal pros­e­cu­tion of jour­nal­ists

To date, accord­ing to BAJ mon­i­tor­ing data, 31 media rep­re­sen­ta­tives in Belarus have been sub­ject­ed to crim­i­nal pro­ceed­ings and remain behind bars. The max­i­mum sanc­tion applied to blog­ger and free­lance con­sul­tant Ihar Losik^[11] is 15 years of impris­on­ment in a high-secu­ri­ty colony. Each of the cas­es of crim­i­nal pros­e­cu­tion of media rep­re­sen­ta­tives is polit­i­cal­ly moti­vat­ed while among the incrim­i­nat­ed arti­cles pre­dom­i­nate Arti­cle 342 (orga­ni­za­tion and prepa­ra­tion of actions that gross­ly vio­late pub­lic order or active par­tic­i­pa­tion in them), Arti­cle 361–1 (estab­lish­ment or par­tic­i­pa­tion in an extrem­ist for­ma­tion), Arti­cle 369 (insult­ing a rep­re­sen­ta­tive of the author­i­ties), Arti­cle 357 (plot or oth­er actions aimed at seiz­ing state pow­er) and Arti­cle 130 (incit­ing hatred or dis­cord) of the Crim­i­nal Code of the Repub­lic of Belarus.

• admin­is­tra­tive deten­tion and search­es of jour­nal­ists

As men­tioned above, accord­ing to BAJ mon­i­tor­ing, there were 481 cas­es of arbi­trary deten­tion of media rep­re­sen­ta­tives in 2020, 113 cas­es were record­ed in 2021, and 43 cas­es of deten­tion and 55 search­es occurred in 2022. It should be stressed that the decrease in the num­ber of arbi­trary deten­tions does not indi­cate a soft­en­ing of state repres­sion, but is caused by a decrease in the num­ber of jour­nal­ists stay­ing in Belarus (high num­ber of media rep­re­sen­ta­tives were forced to re-locate for secu­ri­ty rea­sons or to quit their pro­fes­sion­al activ­i­ties).

• appli­ca­tion of «anti-extrem­ist” leg­is­la­tion

Anti-extrem­ist leg­is­la­tion is one of the key tools of the state’s strug­gle against inde­pen­dent media and is active­ly used as a basis for restrict­ing access to inde­pen­dent media con­tent as well as for pros­e­cut­ing any involve­ment in their activ­i­ties. Accord­ing to the BAJ mon­i­tor­ing, in 2022, 9 inde­pen­dent media out­lets were labelled as ‘extrem­ist for­ma­tions’, the media por­tal TUT BY was declared an ‘extrem­ist organ­i­sa­tion’, while around 1500 web resources were recog­nised as ‘extrem­ist mate­ri­als’. It should be empha­sized that this has led to mass pros­e­cu­tion of inter­net audi­ence of inde­pen­dent media for dis­tri­b­u­tion of «extrem­ist» media con­tent.

• admin­is­tra­tive mea­sures to restrict access to infor­ma­tion on the Inter­net

One of the key instru­ments used by the state to con­trol infor­ma­tion is an arbi­trary restric­tion of access to Inter­net resources. Accord­ing to offi­cial data, in Jan­u­ary-Novem­ber 2022 alone, the state restrict­ed access, ful­ly or par­tial­ly, to 3 002 Inter­net resources. It should be stressed that the block­ing of Inter­net resources in Belarus is done out-of-court and is with­in the com­pe­tence of the Min­istry of Infor­ma­tion and the Pros­e­cu­tor’s Office.

• сhal­lenges to jour­nal­ists’ access to infor­ma­tion

In the course of their pro­fes­sion­al activ­i­ties, Belaru­sian inde­pen­dent jour­nal­ists con­stant­ly face exclu­sion from pub­lic court hear­ings and offi­cial events, as well as unjus­ti­fied refusals to pro­vide infor­ma­tion when con­tact­ing state bod­ies. More­over, it should be high­light­ed that state author­i­ties do not seek to proac­tive­ly post pub­lic infor­ma­tion offline and online, the pub­li­ca­tion of which is not direct­ly pro­vid­ed for in the law.

• the dis­ad­van­tage in com­par­i­son to state media

In order to estab­lish total con­trol over infor­ma­tion, the state uses both legal and polit­i­cal meth­ods to main­tain a monop­oly over the pro­pa­gan­da media in the fields of radio, tele­vi­sion and print media. It should be stressed that the man­age­ment staff of state media, who are appoint­ed on a non-com­pet­i­tive and non-trans­par­ent basis, must show absolute loy­al­ty to the author­i­ties. More­over, state-owned media are direct­ly sup­port­ed from the state bud­get and have oth­er finan­cial pref­er­ences, which is clear evi­dence of dis­crim­i­na­tion in access to finan­cial sup­port com­pared to non-state media. More­over, since 2020, the author­i­ties have deprived inde­pen­dent print media of the pos­si­bil­i­ty to print and dis­trib­ute their con­tent, rein­forc­ing the monop­oly of the state-owned press.

2. Key chal­lenges in the field of leg­isla­tive reg­u­la­tion.

As not­ed ear­li­er, the leg­isla­tive frame­work in Belarus allows for arbi­trary crim­i­nal and admin­is­tra­tive lia­bil­i­ty for media rep­re­sen­ta­tives. How­ev­er, in addi­tion to this, spe­cial atten­tion should be paid to the legal acts reg­u­lat­ing the media and access to infor­ma­tion in Belarus.

• Law «On Mass Media»

The main legal act reg­u­lat­ing the activ­i­ties of media and jour­nal­ists in Belarus is the Law «On Mass Media». The main defi­ciences of the Law include:

• lack of nec­es­sary guar­an­tees for jour­nal­ists

First­ly, it should be empha­sized that the Law uses a nar­row inter­pre­ta­tion of the term «jour­nal­ist», refer­ring only to those per­sons who have con­trac­tu­al rela­tions with legal enti­ties that have offi­cial media sta­tus (media sta­tus in Belarus is grant­ed on a per­mis­sive basis). Thus, jour­nal­ists of unreg­is­tered media and free­lancers are not con­sid­ered as «jour­nal­ists» with­in the mean­ing of the law and can­not enjoy their guar­an­tees.

Sec­ond­ly, anoth­er sig­nif­i­cant prob­lem is the need for accred­i­ta­tion, pro­vid­ed for by the Law,  which sig­nif­i­cant­ly lim­its the access of inde­pen­dent jour­nal­ists and media to infor­ma­tion. First of all, only a per­son who would be con­sid­ered a «jour­nal­ist» with­in the mean­ing of the law could apply for accred­i­ta­tion. More­over, accred­i­ta­tion in fact gives state agen­cies the right to per­mit a jour­nal­ist to cov­er their activ­i­ties.

Third­ly, although the right of jour­nal­ists to request and receive infor­ma­tion from State bod­ies is enshrined, there are no real guar­an­tees for the imple­men­ta­tion of this right in the leg­is­la­tion. In par­tic­u­lar, the Law does not take into account the cat­e­go­ry of «pub­lic inter­est» in the con­text of deter­min­ing the legal­i­ty of pro­vid­ing jour­nal­ists with infor­ma­tion.

• a blan­ket ban on infor­ma­tion

The Law pro­vides for a wide range of infor­ma­tion, the dis­sem­i­na­tion of which is pro­hib­it­ed in the media and on Inter­net resources. First of all, it is nec­es­sary to empha­size that the list of this infor­ma­tion is open, since Arti­cle 38 of the Law con­tains the vague word­ing «oth­er infor­ma­tion the dis­sem­i­na­tion of which is like­ly to harm the nation­al inter­ests of the Repub­lic of Belarus or is pro­hib­it­ed by oth­er leg­isla­tive acts». Sec­ond­ly, as a result of inno­va­tions in 2021, it is also pro­hib­it­ed to pub­lish the results of pub­lic opin­ion polls relat­ed to the socio-polit­i­cal sit­u­a­tion in the coun­try, con­duct­ed with­out obtain­ing spe­cif­ic accred­i­ta­tion. More­over, hyper­links to mate­ri­als and mes­sages con­tain­ing infor­ma­tion the dis­sem­i­na­tion of which is pro­hib­it­ed are also for­bid­den.

• arbi­trary restric­tion of access to media con­tent

First­ly, the Law gives the Min­istry of Infor­ma­tion, as well as the Pros­e­cu­tor’s Office, broad pow­ers to arbi­trar­i­ly restrict access to any Inter­net resource. Sec­ond­ly, the Min­istry of Infor­ma­tion can extra­ju­di­cial­ly sus­pend the activ­i­ties of a media out­let for up to three months. Third­ly, the Min­istry of Infor­ma­tion is also capa­ble of ter­mi­nat­ing a mass media out­let both judi­cial­ly and non-judi­cial­ly.

It should be empha­sized that in all cas­es the grounds on which the media may be sub­ject­ed to these lia­bil­i­ty mea­sures are exces­sive­ly broad and open up unlim­it­ed oppor­tu­ni­ties for abuse.

• Law «On Infor­ma­tion, Informa­ti­za­tion and Infor­ma­tion Pro­tec­tion»

The key legal act reg­u­lat­ing the issue of access to infor­ma­tion in Belarus is the Law «On Infor­ma­tion, Informa­ti­za­tion and Infor­ma­tion Pro­tec­tion. It should be high­light­ed that accord­ing to the Glob­al Right to Infor­ma­tion Rat­ing^[12] this Law received only 38 points out of 150 pos­si­ble, which is obvi­ous­ly a  low  rate. Among the key prob­lems of the Law are the fol­low­ing:

• Lack of an effec­tive mech­a­nism for appeal­ing the refusal of a state body to pro­vide infor­ma­tion.

• Wide restric­tions on access to infor­ma­tion.

Accord­ing to the Law, in Belarus there are «pub­licly acces­si­ble infor­ma­tion» (infor­ma­tion access to which may not be restrict­ed) and «infor­ma­tion the pro­vi­sion and (or) dis­sem­i­na­tion of which is restrict­ed». How­ev­er, it should be empha­sized that the list of cat­e­gories of pub­licly acces­si­ble infor­ma­tion is closed, while the list of restrict­ed infor­ma­tion is not only exces­sive­ly broad, but also is open and may be sup­ple­ment­ed by reg­u­la­to­ry legal acts of var­i­ous lev­els.

• Lack of an inde­pen­dent autho­rized body to con­trol access to infor­ma­tion.

Key findings and recommendations

The above data clear­ly shows that inde­pen­dent media in Belarus today are one of the most vul­ner­a­ble groups from the point of view of the risk of polit­i­cal per­se­cu­tion. Inde­pen­dent jour­nal­ists and media out­lets face a whole range of leg­isla­tive and polit­i­cal chal­lenges that cre­ate extreme­ly seri­ous obsta­cles for them to car­ry out their pro­fes­sion­al activ­i­ties. In con­nec­tion with the gen­er­al state of media free­dom in Belarus, the sit­u­a­tion of inves­tiga­tive jour­nal­ists, who play an impor­tant role in the con­text of imple­ment­ing the Sus­tain­able Devel­op­ment Goals, remains extreme­ly dif­fi­cult, and two inves­tiga­tive jour­nal­ists are cur­rent­ly polit­i­cal pris­on­ers.

There­fore, BAJ can iden­ti­fy the fol­low­ing key rec­om­men­da­tions that can con­tribute to the imple­men­ta­tion of SDG Tar­get 16.10 in Belarus:

• to release inves­tiga­tive jour­nal­ists Dzia­n­is Ivashyn, Siarhei Sat­suk, and oth­er media rep­re­sen­ta­tives who remain behind bars imme­di­ate­ly;

• to stop the prac­tice of arbi­trary deten­tions and search­es of jour­nal­ists, bring­ing them to admin­is­tra­tive and crim­i­nal respon­si­bil­i­ty for their pro­fes­sion­al activ­i­ties and oth­er obstruc­tion of their work by law enforce­ment bod­ies;

• to stop the prac­tice of apply­ing «anti-extrem­ist leg­is­la­tion» to inde­pen­dent media and jour­nal­ists, as well as their audi­ences;

• to stop the prac­tice of arbi­trar­i­ly restrict­ing access to Inter­net resources, as well as sus­pend­ing and ter­mi­nat­ing the activ­i­ties of media out­lets;

• to stop the prac­tice of unjus­ti­fi­ably deny­ing jour­nal­ists access to infor­ma­tion;

• to end the pol­i­cy of monop­o­liz­ing state-owned media and to cre­ate trans­par­ent and com­pet­i­tive mech­a­nisms for financ­ing the media;

• to under­take leg­isla­tive reform in the field of free­dom of the media and access to infor­ma­tion in accor­dance with inter­na­tion­al stan­dards of free­dom of expres­sion;

• to cre­ate effec­tive legal reme­dies allow­ing jour­nal­ists and media to pro­tect their legit­i­mate rights and inter­ests.