19 Sep All Eyes on Switzerland: Enforced Disappearances in Belarus and the Application of the Principle of Non-Retroactivity
[Ana Srovin Coralli works as a Teaching Assistant in the International Law Department of the Geneva Graduate Institute, where she is pursuing her PhD entitled Bringing Perpetrators of Enforced Disappearances to Justice: In the Shoes of the Prosecutors]
The International Day of the Victims of Enforced Disappearances (30 August 2023) was accompanied with a true victory for accountability: an announcement of the upcoming trial for enforced disappearances committed in Belarus. The trial is scheduled to take place in the Swiss canton of St. Gallen on 19 and 20 September 2023.
The case is remarkable for at least three reasons. To begin with, it is the first trial for enforced disappearance as an autonomous crime in Switzerland and paves the way for future jurisprudence. Also, notwithstanding that the crimes at hand were committed outside Switzerland and almost 25 years ago, Swiss courts still have jurisdiction. The so-called conditional universality (conditioned by the presence of the offender on Swiss soil) gives Switzerland the possibility to prosecute the perpetrator who is currently present on its territory (for this case, see articles 6 and 185bis(2) of the Swiss Criminal Code). Finally, and in my view most remarkably, given the Swiss codification of enforced disappearance as a standalone crime only on 1 January 2017, this case unavoidably raises the question of the prohibition of retroactive application of criminal laws.
Below, I first discuss whether the facts to be adjudicated at the upcoming trial seem to fall within the elements of the crime of enforced disappearance. Then, I examine the continuous nature of the crime. I suggest that Swiss courts can apply the criminal provision of a discrete crime of enforced disappearance to cases where the fate or whereabouts of the forcibly disappeared victims have not been clarified because this implies that the crime is still ongoing.
Facts and Their Qualification as “Enforced Disappearance”
The upcoming trial in St. Gallen concerns crimes allegedly perpetrated by Yuri Harauski, a former state agent in the Belarus security forces known as the Special Rapid Response Unit (SOBR). Specifically, the defendant allegedly participated in enforced disappearances of three political opponents (Yury Zakharenka, Viktar Hanchar and Anatoly Krasouski) in Belarus in 1999. According to the information available (see e.g. here), Mr Harauski applied for asylum in Switzerland in 2018. He admitted participation in the given offences; a media outlet circulated an article in which Mr. Harauski explained certain details of the crimes’ execution. Mr. Harauski asserted that the forcibly disappeared victims had been murdered, and highlighted that he knew where they had been buried.
After Mr. Harauski’s presence was confirmed in Switzerland, the relatives of two among the three forcibly disappeared victims with the support of FIDH, TRIAL International and Viasna filed a criminal complaint. This was followed by the investigation conducted by the Office of the Prosecutor of St. Gallen, during which Mr. Harauski confessed to the alleged crimes. In May 2022, the Prosecutor of St. Gallen concluded that the alleged facts could be subsumed under the crime of enforced disappearance defined in article 185bis of the Swiss Criminal Code. Switzerland added this provision in its criminal legislation as a result of the ratification of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPED).
Pursuant to the ICPED, enforced disappearance consists of the following elements: any form of deprivation of liberty, followed by the refusal to acknowledge such a deprivation or concealment of the fate or whereabouts of the forcibly disappeared person, and the direct or indirect involvement of a state in the crime. As a consequence of the criminal conduct, the forcibly disappeared is placed outside the protection of the law (Burundi, para. 120; WGEID, para. 5; Ambos, p. 308-309; Giorgou, p. 1012).
The provision on enforced disappearance in the Swiss Criminal Code does not exactly duplicate the definition from the ICPED, see the unofficial English translation of article 185bis(1) below:
Any person who with the intention of removing a person from the protection of the law for a prolonged period of time:
1. on behalf of or with the acquiescence of a State or political organisation, deprives that person of their liberty, and thereafter refuses to give information as to their fate or whereabouts; or
2. on behalf of or with the acquiescence of a State or political organisation or in violation of a legal duty refuses to give information as to the fate or whereabouts of the person concerned.
shall be liable to a custodial sentence of not less than one year.
For instance, the Swiss criminal provision lacks reference to all possible ways of state involvement in the commission of enforced disappearance; it makes no reference to state participation through “support” or its “consent”. Moreover, the provision lacks clarity on how to interpret certain elements, e.g. the mens rea. The latter is defined following the wording used in the definition of enforced disappearance as a crime against humanity in the Rome Statute (article 7(2)(i)). In specific, article 185bis of the Swiss criminal code requires that any actus reus must be carried out “with the intention of removing a person from the protection of the law for a prolonged period of time”.
Despite certain discrepancies between the Swiss and the ICPED’s definition of enforced disappearance, the facts concerning the case of Mr. Harauski are likely to qualify as enforced disappearance within both legal frameworks. This is first, because Mr. Harauski acknowledged his participation in actus reus of the crime. Specifically, he has not contested his involvement in the deprivation of liberty. The information available also speaks of his consequent concealment of the fate or whereabouts of the three forcibly disappeared victims. However, in any case, the perpetrator of the deprivation of liberty does not need to be the one withholding the information (Werle and Jessberger, p. 432). Essentially, this means that Mr. Harauski’s participation in the first part of actus reus would be sufficient in itself.
Second, the requirement of state involvement in the crime is clearly fulfilled in the given case since Mr. Harauski was part of the state apparatus when participating in the enforced disappearances.
Third, nothing in the facts shared with the public suggests that Mr. Harauski tried to deny his intent “to remove the person from the protection of the law for a prolonged period of time”. Even if this had been the case, the circumstances in which the forcibly disappeared victims were deprived of liberty (i.e. abduction) indicate the existence of an intent to deprive them from the protection of the law (Burundi, para. 120). Moreover, the reference period of “prolonged” should always be understood as short as possible (Ambos, p. 310). In fact, despite that the forcibly disappeared victims were allegedly killed after the enforced disappearance, the facts could qualify under this crime. This is because forcibly disappeared persons cannot be presumed dead only based on Mr. Harauski’s confession and his statements need to be verified. Also, the crime of enforced disappearance is not conditioned by any temporal element (WGEID, para. 36; see also recent call and inputs on the WGEID’s future statement on short-term enforced disappearances). Most importantly, the intention “to remove the person from the protection of the law for a prolonged period of time” can be manifested by the awareness of the likelihood that the deprivation of liberty would link to the refusal to share information on the fate or whereabouts of the forcibly disappeared victims (Ambos, p. 311-312). Given that Mr. Harauski has been vocal about his involvement in acts and policy of the SBOR, his awareness is almost self-explanatory.
Cessation of the Crime: Key Moment for the Principle of Non-Retroactivity
Enforced disappearance is a continuous, permanent or continuing crime (depending on the language and nature of the source, these terms tend to be used to describe that the crime is extended through a certain period). In a nutshell, this characteristic implies that the actus reus is partially committed in the past, whereas other parts of the actus reus continue until this day (see e.g. Casación No. 38957, p. 89; Ambos, p. 792).
Acknowledging enforced disappearance as continuous is essential for attributing accurate criminal consequences flowing from the commission of the crime. Such consequences include the application of the criminal legislation which came into force after the crime has begun without violating the prohibition of retroactive application of laws (Villegas Namuche, para. 26; Salsench i Linares, p. 472; for in-depth discussion, see also here). The principle of non-retroactivity functions as one of the fundamental safeguards in criminal proceedings. It dictates that criminal conduct can be subjected to the laws which exist at the time of its occurrence, unless the law in force after the commission of the crime prescribes a more lenient sanction (lex mitior). When applying non-retroactivity to crimes with a continuous character, the principle should be interpreted in a manner as to be applied only when a crime comes to an end.
Bearing in mind the above, the key question is how to determine the relevant moment for the cessation of the crime of enforced disappearance. The well endorsed view is that the crime of enforced disappearance only ends when the fate or whereabouts of the forcibly disappeared person are determined (Marco Antonio Monasterios Pérez, Section II; Ambos, p. 305; Currat, 2006, p. 516-517; International Commission of Jurists, p. 38-43; McCrory, p. 553-554). In case of death, this would include finding and identification of human remains (see e.g. article 13 of the Mexican General Law on Disappearances). Numerous sources even support the idea that the fate and whereabouts must be determined “with certainty” (Citroni, p. 5; De Frouville, p. 39-40). Only in instances where the facts on the fate or whereabouts are unambiguous and the identification of the forcibly disappeared victim is clearly established, the crime would be considered as ended (see WGEID, para. 5, which suggests that “the crime cannot be separated and the conviction should cover enforced disappearance as a whole”).
Specifically in the case of Mr Harauski, one might suggest that sharing information on the location of the allegedly murdered victims testifies to his willingness to stop the criminal conduct and thus represents the relevant moment of the termination of the crime. However, such a conclusion is unconvincing, as his statement cannot substitute the actual determination of the identity of the forcibly disappeared victims. Moreover, since the facts have not been yet verified, one cannot preclude the possibility that Mr. Harauski is providing false information. If this is the case, his behaviour would amount to a refusal to provide information (Werle and Jessberger, p. 432). At the same time, even if one follows the belief that sharing information terminated Mr. Harauski’s participation in the crime, the information was provided to the Swiss authorities after 1 January 2017, when the crime of enforced disappearance was already enshrined in the Swiss legislation. Consequently, the application of article 185bis would not trigger violation of the principle of non-retroactivity because at the moment when the provision entered into force, Mr Harauski was still implicated in the commission of the crime and thus the latter was still ongoing.
Finally, an accurate determination of the end of an enforced disappearance is essential for the application of the statute of limitations; the latter may apply only when the crime ceases (article 98(c) of the Swiss Criminal Code; see also Kok, para. 114). As explained above, this would entail the moment when the fate or whereabouts of the forcibly disappeared victims are determined or when they reappear alive. In the case of Mr. Harauski, prescription cannot be a relevant or possible obstacle to the prosecution or trial as the crime is still ongoing. What is more, the statute of limitations also poses no issue to the prosecution if one considers the end of the crime to be conditioned to the moment in which Mr. Harauski shared the information in Switzerland, since the applicable statute of limitations for enforced disappearance is fifteen years’ time (article 97(1)(b) of the Swiss Criminal Code).
Opportunity for Switzerland to Contribute to Fight against Impunity
Throughout history, enforced disappearance has been accompanied by impunity. Oftentimes, this has been the direct result of a profound lack of understanding of continuity as an inherent characteristic of the crime and the implications for the principle of non-retroactivity. The adjudication of the case in St. Gallen will be significant for future cases of enforced disappearance in Switzerland, but also elsewhere. Thus, it is the court’s responsibility to accurately address this crime, including by recognising its continuous nature and the inherent consequences flowing from such a characteristic.