«Viasna» demands that the Parliament repeal Article 411 of the Criminal Code

Human rights defenders continue to insist that no one should be punished twice for the same action.

April 3 the Human Rights Center "Viasna" April 3, on behalf of the head of the organization Ales Bialiatski, filed an appeal to the House of Representatives of the National Assembly of the Republic of Belarus, which poses the elimination of Article 411 of the Criminal Code "Deliberate disobedience to the correctional institution administration, which executed deprivation of freedom".

Human rights activists have repeatedly drawn attention to the problem of the existence of this article in the criminal law, and it has received a considerable attention in connection with its use against political prisoners.

Justifying the need for the repeal of Article 411 of the Criminal Code, experts appeal to such phenomena as legal disciplinary prejudice. Its essence lies in the fact that the act becomes a crime if it is made within one year after the imposition of punishment for the same offense. The experts emphasize that the crime is not asum of such offenses.

This means that the corpus delicti defined by Article 411 of the Criminal Code is not a crime, because it lackssuch a basic characteristic feature for a crime as public danger. "This corpus delicti is the only case in the legislation of Belarus which provides criminal penalty conditioned by the disciplinary prejudice, i.e. a disciplinary offense. Meanwhile, there is a common trend of refusing even from administrative prejudice as a condition for criminal penalty," explain the human rights defenders in their appeal, recalling the well-known principle of human rights and criminal law "non bis in idem”, which means that no one should be punished twice for one offense. Despite the fact that this principle is enshrined in the Criminal Code of Belarus, the penalty under Article 411 is be imposed for the same offenses for which the convicted have already been punished in the disciplinary procedure. For example, for some acts of disobedience to the administration a prisoner may be punished with solitary confinement or transfer to a cell-type facility, and then – also receive an additional term of imprisonment as a result of conviction under Article 411, for the same acts of disobedience. Human rights activists point out that in this case the deprivation of liberty (and it is the only kind of penalty provided for in Article 411) is contrary to the principles of criminal law and criminal responsibility - justice and humanism, the more that an easier penalty can be imposed on the convicted persons for more serious crimes (fine, corrective labor, restriction of freedom).

The problem is further complicated by the fact that the penalty for violations listed in Article 411 shall be imposed out of court by officials in prisons and penal colonies who are officers of the Ministry of the Interior. This gives rise to the practice of arbitrary and selective application of article 411 – for example, against the prisoners who are on bad terms with the prison administration or are subjected by political persecution on the part of authorities.

Claiming the arbitrary nature of imprisonment for disobeying the lawful demands of prison administration, albeit malignant, human rights activists insist: "The punishment of perpetrators must be confined to disciplinary measures, the more that the range of the measures provided for by the penal legislation, is sufficiently wide and varied. Accordingly, Article 411 should be excluded from the Criminal Code."

This article is also contrary to paragraph 7 of Article 14 of the International Covenant on Civil and Political Rights, which states that "no one shall be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure right of each country."

In addition, the experts of "Viasna" pay attention to the fact that the principle of humanity is inextricably linked with the idea of justice. "The punishment or other sanctions should not be too hard and based solely on deterrence of other potential perpetrators. It is impossible to achieve the goals of general prevention of crime by overly punishing individuals. It is well known that the efficiency of the criminal policy is not in its rigidity, but in the ability to ensure the inevitability of punishment", emphasizes the appeal.