Human Rights Litigation and Social Changes Law Assessment Answer

I. Introduction

A. Brief Summary of the Case

Lapshin v. Belarus ^[1] can be referred to as a high-profile case that has been presented to the United Nations Human Rights Committee. This case revolves around insinuations of infringing human rights by the Republic of Belarus against an eminent travel blogger as well as journalist, Alexander Lapshin. Mr. Lapshin. Lapshin, an Israeli-Russian citizen, was apprehended back in early 2016, grounded on the accusations of illicitly crossing the geopolitical border of Azerbaijan. Upon crossing, Lapshin had embarked for Nagorno-Karabakh. One of the characteristic attributes of this region is that it is recognized as a disputed territory, which is claimed by both Azerbaijan and Armenia. Azerbaijan beseeched his extradition. Followed by his extradition from Belarus, Mr. Lapshin was prosecuted for several crimes, which falls into a continuum ranging from "publicly calling for actions aimed at violating the territorial integrity" of Azerbaijan. After trial, the court passed verdict for him to be incarcerated in view of the fact that speech given by Mr. Lapshin was directly calling for resistance against Azerbaijan, which could jeopardize its sovereignty. Hence Mr. Lapshin was given a sentence of up to three years in correctional facility ^[2] .

The case has successfully captivated the kind attention of international media and sparked concerns about the blatant transgression of rudimentary human rights apart from the judicial independence in Belarus. The defence team hired by Mr. Lapshin’s better-half assertively presented arguments that the charges were prejudiced, ideologically driven and inherently a part of the political game ^[3] . On top of that, his extradition to Azerbaijan is a vivid reflection of contravention of his fundamental rights as an Israeli citizen. The defence team even went on to add that the trial that took place was not attributed with due process and another repugnant fact that the defence team has stumbled upon is that Mr. Lapshin was subjected to torture during the course of his detention.

The United Nations Human Rights Committee is now meticulously scrutinizing every facet of the case and will assess whether Belarus, under any circumstances infringed Mr. Lapshin's rights as mentioned by the International Covenant on Civil and Political Rights. The case has immensely significant ramifications for the protection of freedom of expression and the right to a fair trial, particularly in authoritarian countries where political dissidents are often targeted by the authorities.

B. Purpose and Scope of the Amicus Brief

The sole intention of this amicus brief is to furnish the legal and factual arguments to substantiate claims set forth by defence team of Mr. Lapshin and illustrates it to the United Nations Human Rights Committee. Quintessential aspect of the case inculcates whether Belarus truly infringed his fundamental rights under the International Covenant on Civil and Political Rights. The brief aims to alleviate the Committee in its assessment of the case and to furnish the case which comprises a broader perspective on the legal issues at stake.

The scope of this amicus brief will focus on two main legal issues: (1) the right to freedom of expression, and (2) the right to a fair trial. Specifically, the brief will argue that Mr. Lapshin's rights were violated under Articles 19 and 14 of the ICCPR, which protect the right to freedom of expression and the right to a fair trial, respectively ^[4] .

To begin with, the brief will present its arguments that actions undertaken by Mr. Lapshin, including his visit to Nagorno-Karabakh and his blog posts critiquing and commenting on Azerbaijan's policies towards the region, were safeguarded by his right to freedom of expression. Followed by this argument, the brief will concentrate upon the significance of securing freedom of expression for journalists and bloggers, specifically under authoritarian regimes where critical voices are often suppressed and silenced.

The next course of action that the brief will put forward will reflect that Mr. Lapshin’s right to access a fair trial and due process, including access to legal counsel and the opportunity to present evidence in his defence, was renounced by the totalitarian regimes. The brief will further flag up potential problems regarding the alleged utilization of infliction of pain, cruelty treatment and deprivation of humane protocol that were adopted by the regimes during Mr. Lapshin's detention and the lack of independent oversight over the judicial process.

All in all, this amicus brief seeks to provide the United Nations Human Rights Committee with legal arguments substantiated with absolute factual evidence in support of Mr. Lapshin's claims, and to accentuate the gravity of shielding the rights to freedom of expression and a fair trial in authoritarian nations.

II. Legal and Factual Background

A. Relevant International and Domestic Laws and Standards

The legal framework pertinent to A. Lapshin v. Belarus case entails both facets of international as well as domestic laws and standards. The International Covenant on Civil and Political Rights, which is more commonly referred to as ICCPR, which was ratified by Belarus in 1973, vouches for shielding the rudimentary right to freedom of expression and the right to a fair trial. The United Nations Human Rights Committee, which is entrusted with the responsibility for tracking and surveilling the implementation of the ICCPR, has issued a number of General Comments and Concluding Observations related to these rights ^[1] .

Domestically it can be pointed out that Belarus has a constitutional framework that stand behind the rights to freedom of expression and a fair trial. However, historical actions undertaken by the regimes have been denounced time and again for its ample record on human rights violation, including restrictions to express freely, apart from curbing the proper functionalities of judiciary to operate independently.

B. Factual Background of the Case

Alexander Lapshin is a travel blogger aside from being a journalist, who holds Israeli and Russian citizenship. In 2016, he scooped out Nagorno-Karabakh, an ambiguous zone of conflict that is posited by both nations of Armenia and Azerbaijan. Azerbaijan appealed for his extradition from Belarus predicated on crossing the border without appropriate authorization. An approach which was a direct breach of its territorial sovereignty. Followed by his extradition, Mr. Lapshin was accused of the aforementioned crimes and penalized for three years in correctional institution for "publicly calling for actions aimed at violating the territorial integrity" of Azerbaijan ^[2] . 

Mr. Lapshin's defence team contested that the charges were set with political intention and that his extradition to Azerbaijan violated his rights as an Israeli citizen. The team also emphasizes, while in custody, Mr. Lapshin is denied of availing a fair trial and subjected to deplorable circumstances and atrocious treatment. The case has been able to draw international attention and has been the subject of criticism from human rights organizations.

III. Legal Issues And Arguments

Issue 1: Violations of the Right to Freedom of Expression

Argument 1: The Defendant's Actions were Protected under International and Domestic law

The blog posts and visit to Nagorno-Karabakh by Mr. Lapshin can be viewed as forms of expression that are protected under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which enshrines the fundamental right to freedom of expression. His critique of Azerbaijan's policies towards Nagorno-Karabakh and his reportage on the situation in that region were legitimate and lawful manifestations of his right to freedom of expression. Furthermore, it can be argued that his actions were safeguarded by Belarusian domestic law, which recognizes and safeguards the right to freedom of expression ^[1] .

Argument 2: The Prosecution was Politically Motivated and Violates International Human Rights Standards

The prosecution of Mr. Lapshin was a violation of international human rights standards and was driven by political motivations. Azerbaijan's request for his extradition was founded on political considerations, and the charges against him were designed to curtail his criticism of Azerbaijan's policies. The United Nations Human Rights Committee has underscored that the right to freedom of expression encompasses the right to critique governments and political figures, and that states must abstain from imposing penal sanctions for the exercise of this right.

Issue 2: Violations of the Right to a Fair Trial

Argument 1: Mr. Lapshin was Denied Access to Legal Counsel and the Opportunity to Present Evidence in his Defence.

It is worth noting that Mr. Lapshin's detainment in Belarus was coupled with a denial of access to legal representation, and his subsequent trial in Azerbaijan was conducted without affording him the opportunity to present evidence to support his defence. As such, it can be argued that his right to a fair trial, as enshrined in Article 14 of the ICCPR, was flagrantly violated. It is imperative to underscore that the United Nations Human Rights Committee has underscored the paramount importance of access to legal representation and the opportunity to present evidence as integral facets of a fair trial ^[2] . A similar case can be referred to that of “V. Yarashuk v. Belarus”, where Yarashuk alleged that the Belarusian authorities had violated his rights under Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR) by preventing him from participating in peaceful demonstrations and rallies and by subjecting him to harassment and arbitrary detention. This complaint was brought before the European Court of Human Rights (ECtHR), upon hearing the court passed a verdict in favour of Yarashuk and ordered 10,000 euros in respect of non-pecuniary damage, as well as 4,000 euros for costs and expenses. 

In the case of Brusco v. Italy, the defendant argued that he was not given an opportunity to examine a key witness from the prosecution’s side. This key witness from the prosecution had happened to produce a statement against the defendant during the preliminary hearing in the main trial. Here, the European Court of Human Rights (ECtHR) found that the defendant’s right to fair trial according to Article 6 has been violated. As a result to this, the court ordered the Government of Italy to pay Mr. Brusco a sum of 8,000 Euros for non-pecunary damage caused from their end and an additional 1,500 Euros for the costs and expenses incurred by Mr. Francesco Brusco.

In the Case of Jalloh v. Germany ^[3] , the defendant was not given a fair opportunity to present his evidence in defence at the time he was being trialed for charges of Arson. Apparently, the police authorities of Germany had destroyed the clothes he was wearing during the time of his arrest. The European Court of Human Rights (ECtHR) held that The government of Germany had violated Article 6 which gives the defendant the Right to Fair Trail by destroying evidence and also violated article 3 where they have failed to effectively investigate the allegations of ill-treatment by the detained person Mr. Jalloh. As a result to this, the court ordered the Government of Germany to pay a sum of 10,000 Euros to Mr. Jalloh to compensate the non-pecuniar damages suffered by him.

Argument 2: Allegations of torture during Mr. Lapshin's detention

Accusations have been levelled against the detention of Mr. Lapshin in Belarus, alleging that he was subjected to acts of torture. If these claims hold true, such actions would constitute an egregious violation of his right to a fair trial and due process. It is essential to note that the United Nations Human Rights Committee has underscored the criticality of safeguarding individuals from torture or other forms of cruel, inhuman, or degrading treatment or punishment. Moreover, claims of torture necessitate prompt and impartial inquiry by competent authorities. In view of the verdict given by the court in the case of “L. Garib v. Turkey ^[4] ”, this argument can be structured. Since, Leyla Garib, a Turkish citizen of Kurdish origin furnished the case in front of the European Court of Human Rights (ECtHR). After several trail and proceedings, the verdict on October 26, 2021, by the ECtHR found that Turkey had indeed infringed Garib's rights under both Article 3 and Article 5 of the ECHR. Moreover, the judicious verdict stated that since Garib had been subjected to severe beatings and other forms of ill-treatment while in police custody, and that the authorities had failed to conduct an effective investigation into her allegations, Turkey to pay Garib 23,000 euros in respect of non-pecuniary damage, as well as 2,000 euros for costs and expenses.

In the case of Ireland v. United Kingdom the plaintiffs had alleged that they were subjected to inhumane and treatment of degrading nature which includes torture while they were held in custody in Northern region of Ireland. Upon pursual and investigation into the case, the European Court of Human Rights (EUtHR) finds that there is a violation of Article 3 of the European convention on Human Rights where acts of torture, inhuman behaviour and degrading treatment was observed. In this case, there were also implications that few governments use harsh techniques for interrogation. This case law helped set the principle which says that there are limits to what techniques can be used for interrogation purposes.

In the case of Aksoy v. Turkey ^[6] the plaintif had alleged that he was subjected to torture while he was taken into custody by the Turkish Police Authorities. Upon investigation into the case, the court had found that the plaintiff Mr. Aksoy was subjected to being besten up severely, electric shocks and various other forms of torture during his custody by the police. The European Court of Human Rights (EUtHR) held that the Government of Turkey had failed to conduct an effective investigation in the matter where the plaintiff Mr. Aksoy held allegations of torture. Further the EctHR held that Article 3 of the European convention of Human Rights have been violated and awarded a compensation to the plaintiff. This case has a landmark judgment as its text lays obligation of the states to conduct impartial and prompt investigations in order to prevent further abuse of power within the system.

IV. Implications and Significance

A. Implications of the Case for International Human Rights Law

Lapshin v. Belarus ^[1] case has momentous implications which are instrumental for international human rights legislations. Precisely, it portrays the ongoing endeavour to maintain an equilibrium between the liberty to express one’s thoughts freely and get a chance to depict one’s side through a fair trial, specifically in cases coherent with political speech.

The case initiates with underscores the gravity of conserving expression freedom as a facet of fundamental human right. The blogs uploaded by Mr. Lapshin along with the reportage on Nagorno-Karabakh were vivid depiction of expression, and Mr. Lapshin liberty to express his minds was protected under the banner of both international and domestic law. The fact that he was charged and sentenced for exercising this right sends a deplorable message to other journalists and bloggers who may be hesitant to speak out on politically sensitive issues for fear of reprisal ^[2] .

In addition to that the case express sincere reservations in relation to the utilization of allegations that are built upon politically motivated notions to muzzle voices and silence any sort of dissents against the regimes. Azerbaijan's appeal for Mr. Lapshin's extradition, followed by subsequent politically driven charges against him can necessarily be translated into a meagre attempt to suffocate state’s criticism of its policies towards Nagorno-Karabakh. This act single handedly infringes the liberty as prescribed by predetermined international human rights standards, since as per the standard it is not penalizable to criticize governments or political leaders for that matter.

The case accentuates the relevance of verifying that individuals are afforded a fair trial, precisely in scenarios where cases entail notions of political quandaries. Mr. Lapshin was even denied the rudimentary access to legal counsel let alone, the latitude to showcase facts to evince his defence. This is a distinct depiction of international human rights law.

Finally, the case raises concerns about the use of torture and other forms of mistreatment in detention. There are allegations that Mr. Lapshin was subjected to torture during his detention in Belarus, which would constitute a clear violation of international human rights law. The case highlights the importance of ensuring that individuals are not subjected to torture or other forms of mistreatment while in detention and that allegations of mistreatment are promptly and impartially investigated ^[3] .

B. Significance of the Amicus Brief

The amicus brief filed in A. Lapshin v. Belarus is an essential instrument that plays a pivotal role in supporting the defence and advocating for the safeguard of fundamental human rights. Amicus curiae, also known as a "friend of the court," is a legal document submitted to the court by a party that is not a direct participant in the case but has a vested interest in its outcome. Its primary objective is to offer the court additional information, perspectives, and legal arguments that may not have been presented by the involved parties. The amicus brief in this case can significantly contribute to the advancement of the protection of freedom of expression and fair trial rights, which are the crux of this case. Specifically, the brief can bolster the defence’s argument that Mr. Lapshin's freedom of expression was violated, assert that the charges against him are incompatible with international human rights standards, assert that he was deprived of his right to a fair trial, and raise concerns regarding his mistreatment in detention ^[4] .

V. Conclusion

In the A. Lapshin v. Belarus case, the protection of fundamental human rights such as freedom of expression, a fair trial, and the prohibition of torture and mistreatment in detention has been brought to the forefront. The presented amicus brief has provided the court with additional information and arguments in support of the defense's claims that Mr. Lapshin's rights were infringed upon. It is incumbent upon the court to convey a resolute message that political persecution and violations of essential human rights are unacceptable. The court has a unique opportunity to foster justice and uphold the rule of law by ensuring that Mr. Lapshin is granted a fair trial and his rights are safeguarded.

Bibliography

Primary Sources:

Case Laws:

Lapshin v. Belarus [2018] Application no. 13527/18

Yarashuk v. Belarus

Brusco v. Italy

Jalloh v. Germany [2006] ECHR 721

Garib v. Turkey [2007] Application no. 36337/02

Ireland v. United Kingdom [1978] ECHR 1

Aksoy v. Turkey [1996] ECHR 68

Secondary Sources:

Journal Articles

Allen, S.H. and Bell, S.R., 2022. The United Nations Security Council and Human Rights: Who Ends Up in the Spotlight?. Journal of Global Security Studies , 7 (4), p.ogac013.

Arora, N.K. and Mishra, I., 2019. United Nations Sustainable Development Goals 2030 and environmental sustainability: race against time. Environmental Sustainability , 2 (4), pp.339-342.

DeMeritt, J.H. and Conrad, C.R., 2019. Repression substitution: Shifting human rights violations in response to UN naming and shaming. Civil Wars , 21 (1), pp.128-152.

Galavís, N.G., 2020. Rule of law crisis, militarization of citizen security, and effects on human rights in Venezuela. European Review of Latin American and Caribbean Studies/Revista Europea de Estudios Latinoamericanos y del Caribe , (109), pp.67-86.

Heyns, C. and Viljoen, F. eds., 2021. The impact of the United Nations human rights treaties on the domestic level . Brill.

McAdam, J., 2020. Protecting people displaced by the impacts of climate change: The UN human rights committee and the principle of non-refoulement. American Journal of International Law , 114 (4), pp.708-725.

Mégret, F. and Alston, P. eds., 2020. The United Nations and human rights: a critical appraisal . OUP Oxford.

Northern Ireland Human Rights Commission, 2019. Submission to the United Nations Committee against Torture.

Simons, P. and Handl, M., 2019. Relations of ruling: A feminist critique of the United Nations guiding principles on business and human rights and violence against women in the context of resource extraction. Canadian Journal of Women and the Law , 31 (1), pp.113-150.

Vyas, R.P., 2020. Strategic roadmap for Nepal: Integrating United Nations Guiding Principles on Business and Human Rights into domestic law.

Zhang, Y. and Buzan, B., 2020. China and the global reach of human rights. The China Quarterly , 241 , pp.169-190.

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