Belarus: Rule of Law Dimensions of 2020 Presidential Elections

Tatsiana Ziniakova

World Justice Project

"I feel empty. I do not understand what I can do because the whole election process shows that law does not work in Belarus. Arrests for standing in line at the grocery store, arrests for waiting for a protocol at the polling station, arrests for coming to detention centers to get information about apprehended relatives, arrests for taking friends to emergency rooms. Arrests for everything."

– Project manager from Minsk, Belarus, for TJournal¹

"Nobody used or will use any repressions in violation of law. Follow the law and there will be no talks about repressions. Law and only law. If you violate the law, you will be held responsible."

– Alexander Lukashenko, in response to question from DW²

In personalistic autocracies, the rule of law, properly understood,³ rarely prevails. It is interpreted, amended, and bent in ways that benefit the incumbent ruler.⁴ For the past twenty-six years of its post-Soviet history, Belarus, controlled by Alexander Lukashenko, has seen many affronts to justice and the rule of law – from politically motivated murders⁵ to routine falsifications of voting protocols and figures.⁶ The Belarusian political crisis capturing the world's attention today is part of a larger story in which key dimensions of the rule of law may help us understand the drivers of change.

Since the World Justice Project (WJP) began measuring the rule of law in the country, Belarus has slipped in its global rankings, from 50th place out of 102 countries in 2015,⁷ to 68th place out of 128 countries in 2020.⁸ According to the most recent assessment, Belarus scores above both global and regional averages on such rule of law factors as the absence of corruption, order and security, and civil justice. On both global and regional scales, however, it ranks very low on such elements as constraints on government powers (118/128), open government (112/128), and fundamental rights (94/128).⁹ According to WJP's survey-based data, Belarus rates particularly poorly for respect for lawful transition of power, civic participation, freedom of expression, and respect for due process. Such entrenched rule of law deficits on accountable governance and human rights may have created the conditions for frustrated citizens to mobilize for more fundamental change, as seen in the streets of Minsk today.

Although Belarus has ratified and formally implemented most of the key universal human rights instruments,¹⁰ including the International Covenant on Civil and Political Rights, the human rights violations committed before, during, and after the presidential election this year are unprecedented in their scale. The right to life, the right to be free from torture, the right to vote, the freedom of peaceful assembly, and the right to a fair trial are under threat.

While the violations of domestic and international legal rules come as little surprise, this campaign is a historic example of Belarusians reclaiming their fundamental rights. The awakened civil society¹¹ has questioned the lawfulness of Belarusian authorities’ conduct both through formal appeals and direct action. The situation, characterized as "the rule of no law,"¹² has now culminated in street protests violently suppressed by the police, where at least two protesters were killed, hundreds injured, and thousands detained.¹³ Recently, professional communities in government-controlled spheres have begun striking in support of the demand for new elections.¹⁴

Pre-election

The rule of law red flags of the presidential race were raised at its very beginning. None of the three most popular independent challengers who initially intended to run was able to register as a candidate:

• Syarhey Tsikhanouski – a Youtube-blogger, most known for touring small Belarusian towns and showcasing the concerns of the locals – was arrested for allegedly violating public order and using force against police.¹⁵ His arrest was caught on tape and raised concerns of being a pre-meditated provocation of authorities.¹⁶ Due to Tsikhanouski's non-registration and subsequent arrest, his wife Sviatlana Tsikhanouskaya took over the campaign and was eventually registered as a presidential candidate.
• Viktar Babaryka – a former banker and philanthropist – was arrested for a series of alleged financial crimes.¹⁷ Preceding the arrest, state authorities searched the bank Babaryka used to work for and put it under temporary state administration.¹⁸ Friends and former colleagues of Babaryka were arrested as well.¹⁹ Babaryka's lawyers were not allowed into the building where he was taken for questioning²⁰ and were denied access to detention facilities "due to epidemiological situation,"²¹ despite the absence of any official state-wide quarantine, Lukashenko's earlier claims that "the virus does not exist,"²² and the holding of mass public events.²³ While no trial has taken place, state TV channels were publicizing documents in the criminal case file and calling Babaryka a criminal, calling the presumption of innocence principle into question.²⁴
• Valeryy Tsapkala – a former diplomat and the founder of Belarusian Hi-Tech Park – fled Belarus with his two children for fear of arrests, shortly after a significant part of signatures collected to support his candidacy were rendered invalid by the Central Election Commission on vague grounds.²⁵

Arbitrary arrests were not only practiced in respect of alternative candidates themselves. Members of the challengers' initiative groups, political bloggers, as well as citizens, spontaneously organizing into "solidarity chains" following Babaryka's arrest, were promptly detained and jailed.²⁶ The ultimate non-registration of Babaryka and Tsapkala catalyzed many Belarusians to submit formal complaints to the Central Election Commission. However, the kilometer-long line of people waiting to register their complaints with the Commission within the business hours was considered an "unsanctioned public gathering" by the police once the working day was over.²⁷ When the complaints were summarily rejected, the teams of Tsikhanouskaya, Babaryko, and Tsepkalo joined forces,²⁸ making Svyatlana Tsikhanouskaya the only independent candidate in the presidential race.

Mid-election

Many Belarusians seized available legal mechanism to get involved in the election process. Those who tried to become members of electoral vote-counting commissions were rejected on a massive scale.²⁹ Independent observers were severely limited in their ability to meaningfully observe the process – they were asked to leave the rooms where the electoral commissions were sitting and observe from the outside. Attempts to submit complaints about any violations often resulted in threats to call the police and actual arrests.³⁰ For the first time in the history of Belarusian presidential elections, observers from the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which routinely monitors elections in all its member states, were not timely invited to participate.³¹ Voting ballots were reported to be intentionally invalidated.³²

According to state authorities, early voting turnout exceeded a staggering 41.7% of eligible voting population – in contradiction with voters counted by independent observers.³³ The official election results, announcing a landslide 80.1% victory of Alexander Lukashenko, are contradicted by audio recording of commissions being pressured to falsify the results,³⁴ multiple pictures of voting protocols from various polling stations showing Tsikhanovskaya's victory,³⁵ exit polls abroad (since in Belarus exit polls can only be conducted by a governmental institution),³⁶ alternative digital vote-counting platforms,³⁷ and white ribbons worn by Belarusians to symbolize a protest vote and assess the true numbers of opposition.³⁸

Post-election

Ample evidence of election fraud and falsification has led to street protests in Minsk. Peaceful protesters, as well as journalists,⁴⁹ have been met with flash grenades, rubber bullets, and water cannons,⁴⁰ and at least two deaths have been confirmed.⁴¹ The Internet has been shut down all across the country, making it almost impossible to share updates on protests other than through Telegram channels.⁴² Belarusian authorities, meanwhile, blamed both the organization of the protests and Internet outages on foreign influence.⁴³

Graphic reports of harsh treatment of detainees reveal that individuals have been brutally beaten allegedly by special police teams and tortured in detention facilities.⁴⁴ The conditions of detention are reported to be inhumane. Up to 60 people were held in cells meant for four, with no access to water, food, or hygiene essentials.⁴⁵ The trials against the arrested protesters were held in detention facilities, with SWAT teams being the only witnesses of the alleged "wrongdoings" and "unauthorized public events."⁴⁶ While Belarusian authorities were quick to open a criminal investigation into mass rioting and use of force against the police, no investigation of police brutality was initiated.⁴⁷

The affronts to justice and the rule of law witnessed at all stages of the latest Belarusian presidential election must remain a high priority of the international community. Allowing them to go unnoticed threatens to foster a climate of impunity and to undermine the rule of law globally. When human rights to live, elect and be elected, peacefully assemble, and enjoy fair trial guarantees are violated, it is essential that international and local actors react, upholding the universal value of such rights.

¹ Sergey Zvezda, "I feel both pride for my people and fear:" monologues of Belarusians on elections, protests, and future, TJournal, 11 August 2020,  https://tjournal.ru/analysis/197313-ya-odnovremenno-ispytyvayu-gordost-za-svoy-narod-i-uzhas-monologi-belorusov-o-vyborah-protestah-i-budushchem?fbclid=IwAR2PQ25ZlEnryEKxZX3P75zyIT3TKbZt5XLy7VIrca_Xjt5RWMdHSAbgMug
² Uncomfortable questions to Alexander Lukashenko from DW correspondent about 2020 election in Belarus/ Неудобные вопросы Александру Лукашенко от корреспондентки DW про выборы 2020 в Беларуси, DW in Russian/ DW на русском Youtube channel, 11 August 2020, https://www.youtube.com/watch?v=IOvvh6YnbS8
³ "The rule of law is a durable system of laws, institutions, norms, and community commitment that delivers: accountability, just laws, open government, accessible justice." See What is the Rule of Law?, World Justice Project, https://worldjusticeproject.org/about-us/overview/what-rule-law
⁴ "Modern autocratic leaders abuse and corrupt other sources of power, including those that we recognize in democratic systems such as political competition, the rule of law, public debate, and access to open information." Torrey Taussig, The rise of personalist rule, Brookings Institution, 23 March 2017, https://www.brookings.edu/blog/order-from-chaos/2017/03/23/the-rise-of-personalist-rule/
⁵ https://www.dw.com/en/belarus-how-death-squads-targeted-opposition-politicians/a-51685204
⁶ OSCE/ODIHR Election Observation Mission Final Report, Presidential Election in the Republic of Belarus, 11 October 2015, https://www.osce.org/files/f/documents/0/0/218981.pdf; OSCE/ODIHR Election Observation Mission Final Report, Presidential Election in the Republic of Belarus, 19 December 2010, https://www.osce.org/files/f/documents/6/4/75713.pdf; OSCE/ODIHR Election Observation Mission Final Report, Presidential Election in the Republic of Belarus, 19 March 2006, https://www.osce.org/files/f/documents/4/c/19395.pdf; OSCE/ODIHR Election Observation Mission Final Report, Presidential Election in the Republic of Belarus, 9 September 2001, https://www.osce.org/files/f/documents/4/c/19395.pdf.
⁷ Rule of Law Index 2015, https://worldjusticeproject.org/sites/default/files/documents/roli_2015_0.pdf
⁸ Rule of Law Index 2020, https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2020-Online_0.pdf
⁹ Rule of Law Index 2020, p. 44, https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2020-Online_0.pdf
¹⁰ Status of ratification of universal human rights treaties per country, United Nations Office of the High Commissioner for Human Rights, https://indicators.ohchr.org/
¹¹ "Belarusian society has awoken to a freedom struggle that will not go away any time soon." See Katsiaryna Shmatsina, In Belarus, Alexander Lukashenko will do anything to cling on to power, The Guardian, 10 August 2020, https://www.theguardian.com/commentisfree/2020/aug/10/belarus-alexander-lukashenko-presidential-elections?CMP=Share_iOSApp_Other&fbclid=IwAR39BaqXp4GXrIJsncyM7eEKbY46pBvWWannxq7-mtH1IVgJrWHcFrlk9HQ
¹² Maksim Karliuk, Yuliya Miadzvetskaya, The Kafkaesque Edifice of Law, Verfassungsblog, 7 August 2020, https://verfassungsblog.de/the-kafkaesque-edifice-of-law/?fbclid=IwAR3Sqg23BP2mZ_vNaO9VKEdMcSayevPrw61jwYBxNdXLPEJf7sVMdjgTLyY
¹³ Second night of protests: Police violence, more injuries, death confirmed, Human Rights Center Viasna, 11 August 2020, https://elections2020.spring96.org/en/news/98957; "They did not allow me to see my son’s body." A 25-year old died following detention in Homel/ «Мне адмовіліся паказваць цела сына». У Гомлі пасьля затрыманьня памёр 25-гадовы хлопец, RadioFreeEurope/ RadioLiberty, 12 August 2020, https://www.svaboda.org/a/30780258.html?fbclid=IwAR1ntxmBrgNF-2hmUhyaQjrAV1kJxtibF9IRQdq-gNJrwhOvRBGEL1-SVSg
¹⁴ Max Seddon, Belarus workers strike as anger over crackdown mounts, The Financial Times, 13 August 2020, https://www.ft.com/content/8a3d24d9-de05-4d5c-972e-8278d6c8a6e8
¹⁵ Sergey Romashenko/ Сергей Ромашенко, In Belarus Syarhey Tsikhanouski faces criminal charges/ В Беларуси предъявлены обвинения блогеру Тихановскому, DW, 9 June 2020, https://p.dw.com/p/3dUCN
¹⁶ https://www.rferl.org/a/video-shows-strange-circumstances-of-belarusian-politician-s-arrest/30663547.html
¹⁷ Linas Jegelevicius, Victor Babariko, main rival of Alexander Lukashenko, barred from Belarus presidential election, Euronews, 30 July 2020, https://www.euronews.com/2020/07/14/victor-babariko-main-rival-of-alexander-lukashenko-barred-from-belarus-presidential-electi
¹⁸ National Bank temporarily takes over Belgazprombank, Euroradio, 15 June 2020, https://euroradio.fm/en/national-bank-temporarily-takes-over-belgazprombank
¹⁹ Would-be presidential candidate’s friend and team member arrested in Minsk, BELSAT TV, 16 June 2016, https://belsat.eu/en/news/would-be-presidential-candidate-s-friend-and-team-member-arrested-in-minsk/
²⁰ EU Calls On Belarusian Authorities To Release Viktor Babariko And His Son, BelarusFeed, 19 June 2020, https://belarusfeed.com/eu-calls-belarusian-authorities-release-viktor-babariko/
²¹ Lawyers for arrested Belarusian opposition leader Babariko claim arrest was unlawful, as arrests continue across the country, bne IntelliNews, 24 June 2020, https://www.intellinews.com/lawyers-for-arrested-belarusian-opposition-leader-babariko-claim-arrest-was-unlawful-as-arrests-continue-across-the-country-186132/
²² Andrew E. Kramer, ‘There Are No Viruses Here’: Leader of Belarus Scoffs at Lockdowns, The New York Times, 10 August 2020 https://www.nytimes.com/2020/04/25/world/europe/belarus-lukashenko-coronavirus.html
²³ Thousands on the streets of Belarus to mark Victory Day despite pandemic, DW, 9 May 2020, https://www.dw.com/en/thousands-on-the-streets-of-belarus-to-mark-victory-day-despite-pandemic/a-53378268
²⁴ Dmitry Bobkov/ Dmitry Bobkov, State TV showed a «special investigation” on Belgazbrombank. A lawyer analyzed the story in detail/ ГосТВ показало «спецрасследование» по Белгазпромбанку. Юрист подробно разобрал сюжет. TUT.BY, 11 July 2020, https://finance.tut.by/news692270.html
²⁵ Prominent Belarusian opposition figure Valery Tsepkalo flees to Russia amid arrest fears, Euronews, 30 July 2020,  https://www.euronews.com/2020/07/29/prominent-belarusian-opposition-figure-valery-tsepkalo-flees-to-russia-amid-arrest-fears
²⁶ Over 360 People Detained For Chains Of Solidarity In 19 Belarusian Cities, BelarusFeed, 31 June 2020, https://belarusfeed.com/people-detained-fined-chains-solidarity-belarus/
²⁷ People were standing in the line for half the day to submit their appeals to the Central Election Commission (CEC). After it closed, detentions started/ Люди полдня стояли в очереди, чтобы подать жалобы в ЦИК. После его закрытия начались задержания, TUT.BY, 15 July 2020, https://news.tut.by/economics/692878.html
²⁸ Naira Davlashyan, Belarus presidential elections: Meet the three women teaming up to take on 'Europe's last dictator', Euronews, 6 August 2020, https://www.euronews.com/2020/07/31/belarus-presidential-elections-meet-the-three-women-teaming-up-to-take-on-europe-s-last-di
²⁹ Only 0,04% of "honest people" were included in local election commissions/ Только 0,04% «честных людей» были включены в участковые комиссии, qwerty.gdn, 26 June 2020, https://rb.gy/cidsc7
³⁰ Independent Election Monitors Detained In Belarus During Early Voting, RadioFreeEurope/ RadioLiberty, 5 August 2020, https://www.rferl.org/a/independent-election-monitors-detained-in-belarus-during-early-voting/30767918.html; Belarus election: Protesters clash with police after disputed presidential vote, Euronews, 10 August 2020, https://www.euronews.com/2020/08/09/belarus-presidential-election-police-storm-opposition-headquarters-as-vote-begins
³¹ ODIHR will not deploy election observation mission to Belarus due to lack of invitation, Organization for Security and Cooperation in Europe Office for Democratic Institutions and Human Rights, 15 July 2020, https://www.osce.org/odihr/elections/457309 
³² "They put a small dot on other candidates' boxes" Observers report on violations during election in Belarus/ "Ставят маленькую точку рядом с другими кандидатами”. Наблюдатели рассказывают о нарушениях на выборах в Беларуси, Current Time/ Настоящее время, 9 August 2020, https://www.currenttime.tv/a/belarus-observers-interview/30774113.html
³³ Ivan Nechepurenko and Andrew Higgins, Belarus Says Longtime Leader Is Re-elected in Vote Critics Call Rigged, The New York Times, 9 August 2020, https://www.nytimes.com/2020/08/09/world/europe/belarus-election-lukashenko.html; https://news.tut.by/economics/695976.html
³⁴ How elections were rigged in Vitebsk on August 9, 2020, Belarus Lives Matter Youtube channel, 10 August 2020, https://www.youtube.com/watch?v=DgkDrVj1qIo&fbclid=IwAR16jvFAqdWAZlH7Vp1VTRvNL8k1urYK5ghJwY1wf1cKwsplDVRl30GbELE
³⁵ See Telegram channels NEXTA, https://t.me/nexta_tv, and NEXTA Live, https://t.me/nexta_live 
³⁶ See Telegram channel Exit poll abroad/ Exit poll за рубежом, https://t.me/exitpollbelarus 
³⁷ See online platforms https://belarus2020.org/ and  https://zubr.in/ 
³⁸ Isabelle Khurshudyan, Belarusian President wins sixth term in widely disputed election, The Washington Post, 10 August 2020, https://www.washingtonpost.com/world/europe/violent-crackdown-on-belarus-protests-follows-disputed-results-showing-lukashenko-reelected/2020/08/10/cc56fb12-d9c2-11ea-a788-2ce86ce81129_story.html
⁴⁹ Belarus: Attacks on journalists mount amid protest crackdown, Amnesty International, 12 August 2020, https://www.amnesty.org/en/latest/news/2020/08/belarus-journalists-under-attack/
⁴⁰ Belarus: Police unleash appalling violence on peaceful protesters, Amnesty International, 10 August 2020, https://www.amnesty.org/en/latest/news/2020/08/belarus-election-protests-police-crackdown/; Belarus: Violence, Abuse in Response to Election Protests, Human Rights Center Viasna, 12 August 2020, https://elections2020.spring96.org/en/news/98995
⁴¹ Second night of protests: Police violence, more injuries, death confirmed, Human Rights Center Viasna, 11 August 2020, https://elections2020.spring96.org/en/news/98957; “They did not allow me to see my son’s body.” A 25-year old died following detention in Homel/ «Мне адмовіліся паказваць цела сына». У Гомлі пасьля затрыманьня памёр 25-гадовы хлопец, RadioFreeEurope/ RadioLiberty, 12 August 2020, https://www.svaboda.org/a/30780258.html?fbclid=IwAR1ntxmBrgNF-2hmUhyaQjrAV1kJxtibF9IRQdq-gNJrwhOvRBGEL1-SVSg
⁴² Maria Kolomychenko, Bye bye, Bynet Belarusian officials say foreigners are responsible for the country’s sudden Internet outages, but I.T. experts suspect the government is to blame, Meduza, 11 August 2020, https://meduza.io/en/feature/2020/08/12/bye-bye-bynet; Lily Hay Newman, Belarus Has Shut Down the Internet Amid a Controversial Election, Wired, 11 August 2020, https://www.wired.com/story/belarus-internet-outage-election/
⁴³ Maria Kolomychenko, Bye bye, Bynet Belarusian officials say foreigners are responsible for the country’s sudden Internet outages, but I.T. experts suspect the government is to blame, Meduza, 11 August 2020, https://meduza.io/en/feature/2020/08/12/bye-bye-bynet
⁴⁴ Belarus: Violence, Abuse in Response to Election Protests, Human Rights Center Viasna, 12 August 2020, https://elections2020.spring96.org/en/news/98995
⁴⁵ "They forced rammed a white ribbon into a girl’s mouth." Relatives of the detained gathered by the Temporary Detention Center at Akrestina/ «Девушке запихивали в рот белый браслет». Родные задержанных собрались у ИВС на Окрестина, TUT.BY, 12 August 2020, https://news.tut.by/society/696375.html#ua:news_geonews_minsk~1
⁴⁶ The detained are tried straight in Akrestina or in Zhodino prison/ Задержанных на акциях судят прямо на Окрестина или в тюрьме Жодино, Naviny.by, 13 August 2020, https://naviny.by/article/20200813/1597312841-zaderzhannyh-na-akciyah-sudyat-pryamo-na-okrestina-ili-v-tyurme-zhodino
⁴⁷ Belarus: Violence, Abuse in Response to Election Protests, Human Rights Center Viasna, 12 August 2020, https://elections2020.spring96.org/en/news/98995