The case of Andrey Gnyot continues to sparkle interest among both the domestic and foreign public. It is an example of so-called transnational repression, a mechanism used by autocratic regimes to crack down on human rights activists, journalists, dissidents, opposition activists, academics who are not located on the territory of the country carrying out the repression, and can include various methods (e.g. murders, kidnappings, enforced disappearances, unlawful removals, online harassment, the use of digital surveillance including spyware, targeting of family members, and abuse of diplomatic and consular facilities).
Interpol can also be used as a tool of transnational repression, to enable the placing of dissidents on Interpol's so-called wanted list. Although Interpol has made some progress in improving its screening process, states continue to abuse its system by requesting the publication of baseless arrest warrants and distribution of Red Notices and Diffussions seeking the extradition of individuals who have fled abroad, often on false charges. This leaves these individuals vulnerable to arrest and return to their country of origin for further persecution, even after they have fled to seek safety abroad.1
Andrey Gnyot left Serbia on 31 October, when his detention expired, and is currently in Berlin. Although he is no longer in detention, his problems are not over. First and foremost, it is necessary for the international community to provide him with a status that will allow him to continue his life normally, as well as for the proceedings in Serbia to be finalised in his favour, so that there is a final and binding court decision confirming that there was a persecution, which could used in other countries.
However, it is necessary to talk about why and how Andrey Gnyot found himself in this situation.
Andrey Gnyot initially left Belarus due to his political engagement, being an opponent of the regime of Alexander Lukashenko, and fearing of persecution, i.e. of inhuman treatment towards him, given the numerous international reports and the bad experiences of his friends and colleagues. He first went to Moscow, and then to Thailand. He was one of the founders of the Free Association of Athletes of Belarus - SOS BY (Association), for which he worked on video production, being a director and journalist by profession.
The results of his work could be seen on the Association's YouTube and Instagram channels, as well as in photos and videos from 2020 where he was filmed with Belarusian athletes, who joined the Association and publicly expressed their opposition to the results of the August 2020 presidential elections and the regime of Alexander Lukashenko in general. In the videos, the athletes criticized the brutality of law enforcement agencies towards peaceful protesters, who opposed the results of the 2020 Belarusian presidential elections, called on fellow athletes to express their position and stand up for law and justice, i.e. to present a political alternative to the current president.
The association had more than 2,000 members, including prominent Belarusian athletes and other professionals from the sports industry, who were given the opportunity to express their views on the situation that arose after the announcement of the preliminary results of the 2020 presidential election. The official announcement of the presidential election results immediately sparked protests in many cities and towns across Belarus, which lasted for several months, almost daily, across the country, starting in August 2020. The authorities responded to the protests with a broad and systematic attack on all dissenters, including opposition movements and initiatives. Also, in response to the peaceful expression of protest and the demand for new elections, the authorities used military equipment and special means (silent grenades, gas, rubber and plastic bullets).2
The election results were not recognized by many countries, including the US and the EU. In August 2020, the Association published an open letter demanding that the Belarusian authorities declare the elections invalid, hold new, fair elections, release detained protesters, rehabilitate all political prisoners, investigate the brutal actions of the police and security forces against the protesters, and hold those responsible accountable. More than 2,000 Belarusian athletes and sports representatives signed an open letter demanding that the violence in the country stop and new, fair elections be held. In response, the Association's supporters began to suffer persecution by the Belarusian authorities for their stance and were subjected to arbitrary arrests, detentions, dismissals, and other punitive measures against protesters, as well as athletes who signed the open letter. The Association also informed the International Olympic Committee of the above in October 2020.3
As a result, Andrei Gnyot was summoned in June 2021 to appear before the State Security Committee (KGB) as a witness without a formal explanation of the article of the law to which the summons referred. Mr. Gnyot was hidding outside Minsk for some time. Since many of his friends and acquaintances received similar summons, after which they were subjected to various acts of persecution, he left Belarus.4
Meanwhile, the Belarusian authorities initiated criminal proceedings for alleged tax evasion, and given that AndreyGnyot was no longer in the country, published an international arrest warrant, by manipulating it in a way by requesting Interpol to place Gnyot in the Interpol database, i.e. wanted persons list, which effectively requires every member state to arrest him if they identify him upon entering or leaving a country.
After that, due to his business engagement as a director, he went to the Republic of Serbia, where he was arrested on an Interpol warrant.
The fundamental question that arises is how is it possible that Interpol allowed Andrey Gnyot to be on the wanted list at all and why did it not conduct any proper checks before placing him on the wanted list, especially considering the country from which such a request came through official channels?
It is well known that Belarus abuses the Interpol system by sending, through the Interpol branch in Belarus (NCB), requests for arrest warrants whose verification does not meet the basic postulates of Interpol itself, including in the case of persecution on political grounds. In addition, these requests contain deliberately misleading data, such as fictitious criminal case numbers, fictitious criminal acts and incorrect information that only formally meets the criteria for verification through INTERPOL channels, but not substatially.5
It should be noted that Andrey Gnyot found himself in the situation he is in now precisely because of the way Interpol operates.6
The existence of an Interpol Red Notice (or in this case the so-called Diffusion) is actually what most often initiates the extradition procedure and triggers the mechanisms of international legal assistance and the application of various legal institutions, bilateral and international conventions, which are commonly used in extradition procedures, such as this one. Placing a person on an Interpol wanted list by the requesting state (in this case Belarus) is an act that is not subject to any substantive legal review and it is sufficient for an Interpol member to consider (based on their internal assessment) that it should place a certain person on such a wanted list, which is exactly what happened here and Mr. Gnoyt was placed in the Interpol wanted list database.
In practice, the moment when a person is found in a country and it is discovered that an Interpol warrant has been issued for him is the moment when the extradition procedure begins, with the detention of the wanted person. Given the aforementioned lack of transparency in Interpol's work7, it is impossible to know for sure whether a person is on wanted list or not, except by daily checking publicly available data from the internet, or relying on the latest response from Interpol, which is not reliable (secret warrants and diffusions that are less transparent predominate), nor are they updated quickly enough. It is also possible that a person is in transit, at the time of being placed on the warrant, and that upon leaving one country knows he/she is not in the Interpol file, but upon entering another, the file (Red Notice or Diffussion) gets activated, and such a person is immediately detained, which is most likely what happened in the case of Andrey Gnyot.
It is common practice for individuals to be placed on such wanted notices without any basis and without any verification.8 Interpol has discretionary authority to reject a member's request to place a specific person on a wanted notice, especially if they are political crimes, i.e. crimes committed for political motives and which are visible at first glance, e.g. sabotage, terrorism, etc. In this case, Andrei Gnyot was charged with an "ordinary" crime in the sphere of business, i.e. tax evasion, which is actually a consequence of his political affiliation and engagement, which was unacceptable for the state of Belarus, given the way they treat political dissenters. Because of the above, and especially because his persecution was "disguised" as a seemingly ordinary crime, Interpol placed Andrei Gnyot on a wanted notice, thereby causing the entire chain of events described in this article.
There are certain mechanisms that allow for the removal of individuals from Interpol wanted list, but the procedure itself is insufficiently efficient and takes too long. There is also a posiblity for a so-called preemptive request to Interpol, but this also is not a guarantee that the person can move freely.
The Parliamentary Assembly of the Council of Europe has adopted a series of resolutions calling, among other things, on Interpol to improve and enhance its internal functioning and transparency, particularly in relation to Red Notices and Diffusions.9
In this case, the request to delete the warrant was sent to Interpol back in November 2023, with the decision only being made at the end of June 2024, almost 8 months after submission, during which time Andrey Gnyot was in extradition detention.
The Higher Court in Serbia has twice made a decision on extradition to Belarus, which the Court of Appeals has reversed. The courts in Serbia, for the time being, have not taken into account the element of persecution that certainly existed in this case, as well as the strong political background, which was confirmed by the decision of Interpol to delete the notice/diffusion, from the Interpol file of so-called wanted persons. The decision to delete refers to the inconsistency of the Belarus request to put Mr. Gnyot on the wanted list, with the Interpol Constitution, which prohibits Interpol from undertaking any activities that, among other things, have a political character. In other words, Interpol has confirmed that the initial placing of Andrey Gnyot on the Interpol wanted list, i.e. the publication of the Interpol notice at the request of the state of Belarus, was actually an activity that had a political character, taking into account the nature of the case being conducted against him in Belarus.
For the above reasons, the deletion of the Interpol file should have had a certain significance for the extradition proceedings, since it indicated that the extradition request submitted by Belarus was unfounded. Although the court was not obliged to formally assess this circumstance of deletion of the warrant, it certainly had a certain weight and should have contributed to the formation of the court's position.
According to the current legal solution and the general practice of the courts, the defense was not in a position to highlight the essential allegations concerning the persecution and physical treatment of the defendant (Article 3 of the European Convention on Human Rights) in the event of extradition, although the prohibition of torture is a generally accepted rule of international law and should be directly applied in extradition proceedings, as part of the domestic legislation of the Republic of Serbia. This is because these reasons, e.g. the risk of torture, according to the current legal solution, are not assessed by the court, but by the Minister of Justice, and only after the court has issued a final decision.
It is also common to assess the guarantees that the requesting state provides to the other state, which should provide assurance that torture will not occur if the extradition occurs. In the case of Andrey Gnyot, such guarantees from Belarus did not exist, i.e. they existed, but only formally, and were not in accordance with the standards and practice of the European Court of Human Rights.
The defense in these proceedings emphasized that it was necessary to conduct such an assessment of the risk of torture, but also to assess the validity of the Belarusian guarantees, especially considering the practice of the European Court of Human Rights, but also the most recent practice of the Court of Appeal in Belgrade in another proceeding in which the defence participated, concerning the Russian Federation. This position of the Court of Appeal, in that proceeding, for the first time in the practice of courts in Serbia in extradition proceedings established the obligation of the court to conduct an assessment of the risk of torture and to assess the validity of guarantees, so it is not clear why this has not happened in the Andrey Gnyot case. Therefore, it is important that the court in the Andrey Gnyot case finally takes a position on the issue of persecution and the risk of torture, for the reasons explained at the end of the text.
The case of Andrey Gnyot confirmed that it is necessary to specify and strengthen the role of the court in extradition proceedings. The current legal regime places too much focus on the Ministry of Justice, as the executive body, to assess the conditions for extradition (e.g. the risk of torture or persecution), which in most countries, but also under the European Arrest Warrant, are assessed by the court. These conditions must be subject to challenge by the person whose extradition is requested, and the defense, and consequently verified directly by the second-instance court.
This exposes the Republic of Serbia to the risk of being subject to possible proceedings for violations of international obligations arising from ratified international treaties, as well as generally accepted rules of international law. If it was prescribed that a court examine such allegations, the possibility of violations of binding international norms would be significantly reduced, although it could not be ruled out. It is therefore necessary to completely shift the examination of all extradition conditions to the jurisdiction of the court. This would ensure judicial control of the fulfillment of all extradition conditions and allow the defense to highlight these allegations and then challenge the court's subsequent position.
In the specific case of Andrey Gnyot, the court did not deal with these issues or international law at all, but rather viewed the matter from a purely procedural, i.e. formal aspect.
The Higher Court in Serbia twice made a decision on extradition to Belarus, which the Court of Appeals reversed, firstly due to a lack of evidence. This was what was most important matter for the court, adhering to a strictly formalistic approach and the lack of evidence in the extradition request, i.e. the lack of evidence of the existence of a reasonable suspicion that Andrey Gnyot committed the act he is charged with. Specifically, in the case files there was only a claim by the Belarusian prosecution authorities that he committed a criminal offense, without providing and citing specific evidence, which is most likely a consequence of the political background, i.e. his political activities.
However, such a court's position, unfortunately, does not provide for a more permanent protection of Mr. Gnyot in other states, as Belarus may initiate new extradition proceedings in other states as well. However, if the court were to take the view that the extradition of Andrey Gnyot would be contrary to fundamental human rights principles, e.g. the prohibition of torture, such a decision could be used in other states as well. According to the prevailing view of the European Criminal Bar Association (ECBA), the position of a state court on such a ground for refusal of exradtion that is fundamental in nature (e.g. when it concerns the risk of a violation of the European Convention on Human Rights) should be recognised throughout Europe and in other states, enabling the person whose extradition is sought to exercise his/her right to freedom of movement without risk of arrest and extradition unless the requesting state proves that the risk identified by the court no longer exists.10
In the meantime, and given the involvement of the international community in this process, Andrey Gnyot has left the country through diplomatic channels, as he himself has described on several occasions, given that his house arrest has expired.11 The extradition process itself is still ongoing, and it is necessary for the proceedings to be concluded in his favor in a final and binding manner, so that there is a court decision confirming that persecution occurred, which he could use in other countries, in accordance with established international practice.
Footnotes
1. https://www.hrw.org/news/2024/06/12/qa-transnational-repression
2. https://www.nytimes.com/2024/08/09/world/olympics/belarus-athletes-lukashenko.html
3. https://www.voiceofbelarus.com/belarusian-athletes-appeal-to-the-global-community-about-the-situation-in-the-country/
4. https://sotaproject.com/story/andrei-gnet-do-i-posle-politicheskogo-aresta-v-serbii
5. https://tsikhanouskaya.org/en/news/ef4b3b0a9a4d951.html
6. https://www.fairtrials.org/app/uploads/2022/01/Dismantling-the-tools-of-oppression.pdf
7. https://www.nytimes.com/2024/02/20/world/europe/interpol-strongmen-abuse.html
8. https://hir.harvard.edu/weaponizing-the-police-authoritarian-abuse-of-interpol/
9. https://www.europarl.europa.eu/thinktank/en/document/EXPO_STU(2019)603472
10. https://ecba.org/content/index.php/publications/statements-and-press-releases/850-ecba-statement-on-mutual-recognition-of-extradition-decisions-june-2022
11. https://sotaproject.com/story/andrei-gnet-do-i-posle-politicheskogo-aresta-v-serbii
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