Participants of the Russian-Ukrainian war are not welcome in Belarus.

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Belarusian authorities worry about the possibility of returning to the country of people having practical military experience and certain ideological position. At the same time this position isn’t interesting for Belarusian authorities at all. They fear that people who are ready to kill for their political views can appear in Belarus.

Aliaksandr Lukashenka has repeatedly stated that in respect of the citizens of Belarus, who took part in the war in the Ukraine (doesn’t matter on which side) and returned to Belarus, strict measures will be taken. Meanwhile, the media report that people who fought on the side of the separatists return to the country and live peacefully.

But, after closer consideration, the situation looks not so clear.

“Talks” in the KGB

The patriotic part of the society was disappointed by the reports that people who fought in the pro-Russian forces were called to the KGB for some “talks”, after which there were no obvious consequences. Now the traditional accusations of the Belarusian KGB being a branch of the Russian FSB and statements that the Belarusian secret services are flooded with Russian agents, etc take place. The accusations in general are stereotypical and traditional, and they are often caused by failure of the KGB to work with public opinion, poor positioning of the agency and its unreasonable closedness.

It should be understood that the work of the security services in real life and in the movies are two different things. In the movies there are chases and shootouts, while in real life the officer spends most of the time on preparation of various documents. In fact, the security services are bureaucratic institutions, the activity of which is subject to formal procedures and each step of an employee is documented.

Based on the known information, the “talks”» of ex-separatists from “DNR” and “LNR” in the KGB were of preventive nature. But prevention can be different. They were warned about the inadmissibility of illegal behaviour and had to sign relevant statement. After that the data on these individuals got into criminological and special accounts, which entails a number of limitations. People under the KGB preventive measures have no access to any public service, as well as to any positions that are related to state secrets. In fact, they will be denied all positions where the information from the database of the Ministry of Internal Affairs is necessary for assignment (employment).

In addition, the ex-combatants will be under scrutiny of the KGB and police, including unofficial one.

The preventive “talks” in the KGB influence the close relatives and family members of the ex-combatant: they will be not allowed to serve in law enforcement agencies. This measure includes children who at the time of their parents’ participation in the war are underage.

In our country the mark of “unreliability” is significant, though not always noticeable. In case of the introduction of special legal regimes (emergency or martial law), certain categories of persons may be temporarily isolated, even if there’s nothing about that in the law.

Reaction according to the law

Participation in the war in the east of Ukraine, including indirect one, may result in legal consequences. At least in theory.

Belarusian volunteers as part of Ukrainian units. Belarusian citizens who participated in the fighting in the armed forces, acting in accordance with Ukrainian legislation, can be held liable by Belarusian state only if they have committed criminal offenses for which they were not punished in Ukraine (Part 1 of Article 6 of the Criminal Code). But the admission to the civil service (including military and equivalent to it) in another country is a ground for the loss of Belarusian citizenship, but only if the person has another citizenship or guarantees of its acquisition (Articles 19-20 of the Law “On Citizenship of the Republic of Belarus”).

Participants of terrorist organizations “DNR” and “LNR”. These organizations are recognized in Ukraine as terrorist ones. In Belarus, an organization can be recognized as a terrorist one by the Supreme Court. Although such a decision wasn’t taken on “DNR” and “LNR”, Belarusian anti-terrorism legislation does not link recognition of an organization as a terrorist one with the legal consequences for its participants.

Belarusian Criminal Code provides for a number of crime-related terrorist activities, which can be applied in this case:
— Art. 126 “The act of international terrorism”;
— Art. 287 “Creating an illegal armed formation”;
— Art. 290-2 “Facilitating terrorist activities”;
— Art. 290-3 “Participation in training to take part in terrorist activity”;
— Art. 290-4 “Creation of an organization for terrorist activity or participation in it”.

Art. 3 of the Law of Belarus “On combating terrorism”, among other things defines the following:
— International terrorist activity — terrorist activity carried out by a terrorist or terrorist organization, the citizens of one state against the citizens of another state;
— Terrorism — the socio-political criminal phenomenon, which is the ideology and practice of violence or threats of violence in order to influence decisions of the authorities, obstructing political or other public activities, provoking international tension or war, terrorizing the population, destabilizing the social order;
— An act of terrorism — direct perpetration with the aim of terrorism of an explosion, arson attack, use or threat of use of nuclear explosive devices, radioactive, chemical, biological, explosive, toxic, poisonous, virulent substances; destruction, damage or seizure of means of transport or other objects; damage to information systems, command and control systems; attempt on the life of a government or public official, representative of a national, ethnic, religious or other group in society; taking and/or keeping hostages, kidnapping; endangering the life, health or property of an unlimited number of people by the creation of conditions [likely to lead] to accidents, technical catastrophes or the real threat of the creation of such danger; dissemination of threats in any form and by any means; perpetration of other acts endangering the life and health of people, widespread damage or the onset of other socially harmful consequences;
— Terrorist activity — activity which includes the organisation, planning, preparation and execution of an act of terrorism; incitement to [commit an] act of terrorism, to the use of violence against citizens or organisations, to the destruction of material objectives with terrorist aims; propaganda of terrorism, distribution and (or) provision of material or information calling for terrorist activities or substantiating or justifying the necessity of such activity, information or otherwise aiding and abetting in the planning, preparation or perpetration of an act of terrorism; the organisation of illegal armed formations, the creation of criminal organisations, of an organised group to perpetrate an act of terrorism, and also participation in such an act; recruitment, arming, training and use of terrorists, financing of known terrorist organisations or terrorist groups or other assistance to them.

Part 2 of Article 4 of the Law clearly indicates that Belarus prosecutes persons involved in terrorist activities. And the fact that “DNR” and “LNR” are not recognized as terrorist organizations in Belarus doesn’t matter.

The participants of “DNR” and “LNR” may be prosecuted for crimes against life and health, order of governance, arms traffic rules, committed in the territory of Ukraine.

At the same time the crimes committed by “DNR” and “LNR” participants, by virtue of Art. 64 of the Criminal Code are recognized as committed in the circumstances.

A punishment for some of the above torts is the death penalty. However, since Ukraine abolished the death penalty, the upper limit of punishment stipulated by Ukrainian legislation is life imprisonment.

It should be noted that calling a person to account for mercenary service seems difficult in practice: it is rarely possible to prove mercenary end for participation in the war. As far as we know, in our country there were no such precedents.

The complication of the situation is that the crimes are not just committed on the territory of another state, but in the regions which are not controlled by the authorities of that state. And there it is impossible to conduct investigative actions. This creates an obstacle for finding evidence of guilt. Photos in social networks are questionable evidence: while a usual man sees a militant with weapon, a lawyer sees a man dressed in clothes of camouflage colours with the object looking like weapon. The fact that it is a weapon can be proved only during the expertise and in no other way. An exception may be when there is a marking/number of weapons the picture, which is known to fell into illegal trafficking – for example, it was stolen from storage.

Therefore, the close cooperation of Belarusian law enforcement officers with the Ukrainian colleagues is of great importance. The operational information concerning the citizens of Belarus who took part in terrorist organizations “DNR” and “LNR”, received by the competent authorities of Ukraine and legalized in accordance with the Belarusian law can be used as the evidence.

A political issue. On January 14, 2016 Aliaksandr Lukashenka spoke strongly against the presence in Belarus of militants who fought in Ukraine on both sides. He also demanded the security forces to investigate the situation immediately. Although formally in Belarus participants of the war on both sides are not welcome, mainly the issue is connected with the participants of pro-Russian separatist groups. At least for the reason that the people fighting on Ukrainian side are not going to come back. For many Belarusian volunteers of Armed Forces of Ukraine and National Guard of Ukraine the military service in the neighbouring country has become a great social elevator.

As far as we know, the Ukrainian side has previously put before the Belarusian authorities the issue of the prosecution of Belarusian participants of terrorist organizations “DNR” and “LNR”. The official Minsk couldn’t go for it because of the fear of complications in relations with Russia, especially because of the uncertain prospects for the allocation of new Russian loans.

Apparently, the prospect of getting money from Moscow vanished like a mist. Therefore, Belarusian authorities can act more freely and start to force out of the country the participants of “DNR” and “LNR”. Time will show whether it will be a demonstrative prosecution, after which all will understand everything correctly, or the authorities will do everything without fanfare.

In any case, if a political decision with regard to the Belarusian members of “DNR” and “LNR” has been taken in Minsk, the legal issues are to be pushed to the sidelines, and approaches to the recognition of valid and sufficient evidence are, let’s say, flexible.

Humanitarian aid as a crime. As a final point of the material it’s necessary to focus on gathering and sending the humanitarian aid to the territory controlled by “DNR” and “LNR”. From a legal point of view we should mention two points. Firstly, the legitimacy of the crossing by Belarusian citizens of the Russian-Ukrainian border in the area not controlled by the legitimate authorities in Kiev. And secondly, the recipients of humanitarian aid. In the transfer of property (absolutely any, not just money, even medicine) and any property rights to armed groups “DNR” and “LNR” (their representatives or participants) one can see the signs of the offense under Art. 290-1 “Financing of terrorism”: the provision or collection of funds by any means to be used in terrorist activities, material support or other support known to the perpetrator of terrorists, terrorist groups and terrorist organizations” — from eight to fifteen years with confiscation of property.

The war in Donbass and the involvement of the citizens of Belarus in it poses judicial system of the country a number of legal and practical issues. The first criminal cases and lawsuits against members of “DNR” and “LNR” will in fact be precedents, and the punishment for them will be hard.

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