The Functioning of the Judicial System in Belarus and Its Impact on the Right to a Fair Trial of Human Rights Defenders
Despite the fact that the Constitution of Belarus guarantees the balance of powers within the government’s scope of authority, the practical application of these provisions raises concern. Several civil society activists and international organizations, such as the Helsinki Foundation for Human Rights, Netherlands Helsinki Committee and Human Rights Watch, have highlighted the lack of independence of the prosecutor and judiciary from the executive branch in Belarus. The government engages prosecutors and judges to discredit critical voices and uses the criminal justice system as a tool to persecute human rights defenders, journalists and NGOs.
Legislation and legal practice that relate in Belarus to the organisation and functioning of the prosecution organs and the judicial system as well as to the pre-trial and court proceedings raise doubts as to their compliance with the standards of fair trial. The creation, reorganisation and liquidation of public prosecution bodies is effected by the President of Belarus upon a motion from the Prosecutor General. The relevant legislation does not specify any preconditions for such decisions, giving broad, even unlimited discretion to the Prosecutor General.
According to international standards, such as the UN Guidelines on the Role of Prosecutors, public prosecutors must enjoy independence to exercise their duties. However, the system of public prosecution bodies is centralised and is headed by the Prosecutor General. Although the President should nominate the Prosecutor General with the consent of the Council of the Republic, one of the chambers of the Parliament, the nomination process remains in the hands of the President solely, with no participation nor consultation involving any other institution or bodies. Similarly, removal of the Prosecutor General from office actually depends on the President as his decision may be taken not only in several clearly identified situations (committal of an offense established by a final court judgment, inability to perform duties for health reasons, own volition) but also “on other grounds set out in legislative acts”, what is a broad category subject to extensive interpretation. Other prosecutors and employees of the prosecution bodies are nominated the Prosecutor General acting either in agreement with the President or independently, or upon a motion from heads of structural divisions of prosecutor’s offices. Removal of the prosecutors from office can be grounded on reasons that are not precisely defined. No democratically legitimised prosecutorial council or a board of senior prosecutors is involved in the decisions. Analogous structural problems concern the promotion process and disciplinary sanctions which can be imposed by the President or the Prosecutor General. All in all, the prosecution in Belarus lacks the rudimentary guarantees of independence, enabling the executive power to manually steer the prosecution in politically sensitive cases, including those of human rights defenders.
Judges are appointed by the President either upon a proposal of the President of the Supreme Court (judges of general courts) or in consent with the Council of the Republic (judges of the Supreme Court). The relevant legislation does not set out the grounds for refusal to appoint a candidate by the President. In emerging democracies there should exist precise and transparent rules precluding that the nomination decisions would not be influenced by any reasons other than those related to the objective criteria. Moreover, judges of general courts are appointed for a term of five years, and can then be either reappointed for a new term or indefinitely. This mechanism does not safeguard independence and impartiality of the judiciary. Several Human Rights Committee decisions, including the decision in Ales Bialiatsky case, show that the prosecution of human rights defenders lacks evidence to arrest, detain and substantiate the charges against them. Courts usually embrace the prosecution’s (written) submissions, which, according to the Committee, limits the judiciary’s role to one of mere automatic endorsement of the prosecution’s requests.
Disciplinary sanctions are specified by judicial boards in the procedures that meet requirements of procedural justice. On the other hand, boards decisions are merely recommendations. Finally sanctions are imposed, depending on their character, either by President of the Supreme Court and presidents of the courts, or by the President; they are subject to appeal procedures. But the legislation also assumes that there exist situations in which the grounds for sanctions are evident and gives the President a right to impose “any disciplinary sanction on any judge without instituting disciplinary proceedings”. In such situations only dismissal of a judge can be appealed. Hardly is this procedure compatible with the principle of independence of the judiciary.
Detention as a pre-trial preventive measure is widely implemented, especially towards human rights defenders and journalists; it suffices that a given act is considered serious (grave) what means it is penalised by more than two years of imprisonment. Decisions to apply detention are taken, as a principle, by a person who cannot be considered as a court (judge), i.e. by a functionary in charge of an inquiry or investigation, or by a prosecutor. This practice was held by the UN Committee of Human Rights to constitute a violation of the right to personal freedom and security. Furthermore, the UN Committee also identified other practices that may or must have adverse consequences for the rights of defendants: keeping them in metal cages during court proceedings, and comments by public figures (including the President) and/or State-controlled media on politically and publicly resonant pending cases.
It has also been observed that the right to access to a lawyer can be limited in politically sensitive cases. A number of disbarments of lawyers dealing with human rights defenders cases have been recorded in the last years. Moreover, the access to case file, in order to prepare a proper defence is often severely restricted to defendants and their lawyers.
Both organisation and structural shortcomings in the organisation and functioning of the prosecution and of the court as well as procedural defects widespread in the country affect adversely the rights of human rights defenders to a fair trial.