National pressure records / Article
Closed courts, non-disclosure agreements, physical impossibility of filing complaints: how systemic denial of justice affects access to international remedies
Published August 21, 2023
This view of the relationship between sovereignty and state responsibilities has been generally accepted since at least 1923, when the Permanent Court of International Court of Justice spoke on this issue in the Wimbledon case: "as for the Chamber, it refuses to consider the fact of the conclusion of any treaty, according to which states undertake to carry out or refrain from certain actions as a renunciation of sovereignty; on the contrary, the right to conclude international agreements is one of the attributes of state sovereignty."
see Article 31(1) of the Vienna Convention on the Law of Treaties, to which Belarus has been a party since 1986: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the object and purpose of the treaty. »
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
See paragraph 4 of General Comment No. 33: http://hrlibrary.umn.edu/russian/gencomm/Rhrcom33.html
See General Comment No. 32:
The right to have one's conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court, and, at least in the court of first appeal where domestic law provides for several instances of appeal, 104 also to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal. 105 The effectiveness of this right is also impaired, and article 14, paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of paragraph 3 (c) of the same provision. 106
A system of supervisory review that only applies to sentences whose execution has commenced does not meet the requirements of article 14, paragraph 5, regardless of whether such review can be requested by the convicted person or is dependent on the discretionary power of a judge or prosecutor. 107
http://hrlibrary.umn.edu/gencomm/hrcom32.html
The right to have one's conviction reviewed can only be exercised effectively if the convicted person is entitled to have access to a duly reasoned, written judgement of the trial court, and, at least in the court of first appeal where domestic law provides for several instances of appeal, 104 also to other documents, such as trial transcripts, necessary to enjoy the effective exercise of the right to appeal. 105 The effectiveness of this right is also impaired, and article 14, paragraph 5 violated, if the review by the higher instance court is unduly delayed in violation of paragraph 3 (c) of the same provision. 106
A system of supervisory review that only applies to sentences whose execution has commenced does not meet the requirements of article 14, paragraph 5, regardless of whether such review can be requested by the convicted person or is dependent on the discretionary power of a judge or prosecutor. 107
http://hrlibrary.umn.edu/gencomm/hrcom32.html
See View on Communication No. 1784/2008 Vladimir Shumilin v. Belarus: "The Committee also takes note of the State party's objections in this regard, in particular the statistical data cited to show that supervisory review has been effective in a number of cases. However, the State party has not demonstrated whether the supervisory review procedure has been successful or how often it has been successfully applied in cases involving freedom of expression."
clause 1, 2 art. 198 Code of Criminal Procedure of the Republic of Belarus:
1. Data from a preliminary investigation or inquiry are not subject to disclosure. They can be made public only with the permission of the investigator, the person conducting the inquiry, and only to the extent that they consider possible, if the disclosure does not contradict the interests of the preliminary investigation and is not associated with a violation of the rights and legitimate interests of participants in the criminal process. If, in the course of criminal proceedings, information constituting state secrets is received, the investigator or person conducting the inquiry immediately takes measures to protect them in accordance with the requirements of the legislation on state secrets.
2. The investigator, the person conducting the inquiry has the right to warn the defense lawyer, the victim, the civil plaintiff, the civil defendant, representatives, the representative of the deceased suspect, the accused, the person to be brought in as a suspect, an accused, a witness, an expert, a specialist, a translator, and other party present during investigative and other procedural actions, about the inadmissibility of disclosing information available in the case without their permission. These persons are given a gag order with a warning of liability in accordance with Article 407 of the Criminal Code of the Republic of Belarus
1. Data from a preliminary investigation or inquiry are not subject to disclosure. They can be made public only with the permission of the investigator, the person conducting the inquiry, and only to the extent that they consider possible, if the disclosure does not contradict the interests of the preliminary investigation and is not associated with a violation of the rights and legitimate interests of participants in the criminal process. If, in the course of criminal proceedings, information constituting state secrets is received, the investigator or person conducting the inquiry immediately takes measures to protect them in accordance with the requirements of the legislation on state secrets.
2. The investigator, the person conducting the inquiry has the right to warn the defense lawyer, the victim, the civil plaintiff, the civil defendant, representatives, the representative of the deceased suspect, the accused, the person to be brought in as a suspect, an accused, a witness, an expert, a specialist, a translator, and other party present during investigative and other procedural actions, about the inadmissibility of disclosing information available in the case without their permission. These persons are given a gag order with a warning of liability in accordance with Article 407 of the Criminal Code of the Republic of Belarus
On July 1, 2020, lawyer Vladimir Sazanchuk took over the defense of blogger Dmitry Kozlov. Before issuing permission to visit the client in the pre-trial detention center, the investigator demanded that V. Sazanchuk sign a non-disclosure agreement regarding the data of the preliminary investigation. V. Sozonchuk refused to sign, to which the investigator refused to grant him permission to visit D. Kozlov, and also said that he would not allow the lawyer to participate in the case. (https://www.defendersbelarus.org/news/tpost/zddo1zimv1-krizis-belorusskoi-advokaturi-kak-vernut)
Art. 407 of the Criminal Code of the Republic of Belarus: Disclosure of data from an inquiry, preliminary investigation or closed court session
Intentional disclosure of data from an inquiry, preliminary investigation or closed court session by a person who has been warned in accordance with the procedure established by law about the inadmissibility of their disclosure, without the permission of the person conducting the inquiry, the investigator, the prosecutor or the court, is punishable by a fine or arrest.
Intentional disclosure of data from an inquiry, preliminary investigation or closed court session by a person who has been warned in accordance with the procedure established by law about the inadmissibility of their disclosure, without the permission of the person conducting the inquiry, the investigator, the prosecutor or the court, is punishable by a fine or arrest.
clause 1 art. 14: 1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
See also, e.g., Kroumi v. Algeria (UN Human Rights CommiWee (HRC), CommunicaEon No. 2083/2011: Views of 7– 31 October 2014, CCPR/C/112/D/2083/2011, para 7.4, available at hWp://undocs.org/CCPR/C/112/D/2083/2011); Berzig v. Algeria (UN Human Rights CommiWee (HRC), CommunicaEon No. 1781/2008: Views of 17 October–4 November 2011, CCPR/C/103/D/1781/2008, para. 7.4, available at hWp://undocs.org/CCPR/C/103/D/1781/2008).
Phillip v. Trinidad and Tobago, HRC, Views of 20 October 1998, CCPR/C/64/D/594/1992.
Vicente et al. v. Colombia, HRC, Views of 19 August 1997, CCPR/C/60/D/612/1995, para. 5.2.
See the Corridor of Batons report on police violence (https://belarus.pytkam.net/wp-content/uploads/2021/01/doklad_web.pdf); Report of the United Nations High Commissioner for Human Rights "The situation of human rights in Belarus leading up to and following the 2020 presidential elections" (https://www.ohchr.org/en/documents/country-reports/ahrc5268-belarus- run-2020-presidential-election-and-its-aftermath-report)
See paragraph 21 of the Report of the United Nations High Commissioner for Human Rights "The situation of human rights in Belarus in the lead-up to and following the 2020 presidential elections" (https://www.ohchr.org/en/documents/country-reports /ahrc5268-belarus-run-2020-presidential-election-and-its-aftermath-report)
"The KGB pre-trial detention center is equipped with only two rooms for meetings with lawyers and investigators, despite the fact that the detention center is designed to hold about 50–60 people (the number of prisoners can increase by moving them into full cells).
Since 2020, dates are provided only in one office. No more than 3-4 lawyers manage to enter the detention center per day. Such working conditions have become the reason for queues that begin to form on the street in front of the pre-trial detention center several hours before its opening, and during periods of mass arrests - around the clock.
Since the summer of 2021, visits by lawyers to the KGB pre-trial detention center are carried out by appointment, the list is kept by a KGB employee. Visits are usually booked several weeks in advance. In such conditions, the detainee has the opportunity to meet with a lawyer only several weeks after the arrest." (https://www.defendersbelarus.org/news/tpost/zddo1zimv1-krizis-belorusskoi-advokaturi-kak-vernut)
Since 2020, dates are provided only in one office. No more than 3-4 lawyers manage to enter the detention center per day. Such working conditions have become the reason for queues that begin to form on the street in front of the pre-trial detention center several hours before its opening, and during periods of mass arrests - around the clock.
Since the summer of 2021, visits by lawyers to the KGB pre-trial detention center are carried out by appointment, the list is kept by a KGB employee. Visits are usually booked several weeks in advance. In such conditions, the detainee has the opportunity to meet with a lawyer only several weeks after the arrest." (https://www.defendersbelarus.org/news/tpost/zddo1zimv1-krizis-belorusskoi-advokaturi-kak-vernut)
see, among many others, an example of the conditions of detention of human rights activist Nasta Loika: https://www.frontlinedefenders.org/en/case/woman-human-rights-defender-nasta-loika-sentenced-seven-years-prison
The authorities' rapid denunciation of the Optional Protocol to the Covenant and the need to take advantage of the remaining weeks to file complaints once again highlighted many systemic problems of the Belarusian justice system. The existing legal default impedes not only the ability to effectively use domestic remedies, but also the implementation of the right guaranteed by Article 61 of the Constitution to appeal to international organizations in order to protect the rights and freedoms of citizens. Belarusian lawyers are forced to deal with many state-imposed obstacles, both at the stage of trying to access all available national legal remedies, and at the stage of filing a complaint to the Human Rights Committee (Committee, HRC). Why does the Committee introduce the requirement of mandatory exhaustion of all national remedies, what does it consist of - and what does state sovereignty have to do with it? What prevents attorneys and their clients from accessing legal remedies, whether national or international?
- HRC and respect for state sovereignty: why there are no contradictions here
Contrary to the opinion often voiced by state representatives who do not want to take into account the Committee's views, the HRC in the very essence of its organization does not imply the possibility of violating state sovereignty. Let us dwell on this point in some detail before moving directly to the requirement of exhaustion of local remedies.
In its official communications with the Committee, the state justifies the lack of action from its side with the communication made by the HRC of the right to independently decide to what extent the opinion of the Committee members should have legal consequences for the Republic of Belarus. At the root of the rationale for this "right" is the concept of state sovereignty.
A few notes need to be made in this regard:
1. The voluntary conclusion of an international treaty (and therefore the ability to have rights and bear obligations to its participants) is a direct consequence of the sovereignty of the state, its recognition as a full-fledged subject of international relations, and not a renunciation of state sovereignty.
2. The generally accepted principle of international law - pacta sunt servanda ("treaties must be respected") - implies, among other things, the requirement for a fair interpretation of an international treaty. An interpretation that deprives the treaty of the purpose for which it was concluded cannot be considered in good faith.
In terms of interpretation of the provisions of the Covenant itself and the first Optional Protocol thereto, the example of the Russian Federation is interesting. In Ruling No. 1248-O of June 28, 2012, the Russian Constitutional Court applies the principle of pacta sunt servanda when interpreting paragraph 3 of Article 2 of the Covenant and comes to the following conclusion:
The Russian Federation has no right "to evade an adequate response to the views of the Human Rights Committee, including in cases where it believes that, due to a violation of the provisions of the International Covenant on Civil and Political Rights, a retrial of the criminal case of a person whose message served as the basis for the Committee to adopt the corresponding View", since otherwise "would call into question the Russian Federation's compliance with its voluntarily assumed obligations" and "would render meaningless the right of everyone arising from the Constitution of the Russian Federation to apply in accordance with these international treaties to the Committee on Human Rights if all available domestic remedies have been exhausted."
So, the Republic of Belarus - a full party to the two international treaties we are considering - the Covenant itself and the Optional Protocol (before its denunciation) - has undertaken, among other things, the obligation to a) recognize the competence of the Committee to receive and consider communications from persons subject to its jurisdiction who claim, that they are victims of a violation by her of any of the rights set out in the Covenant, b) communicate in good faith with the Committee during the consideration of the complaint and take into account its considerations. The permission expressed through ratification of the Protocol to resort to the Committee in the absence of an adequate response to its findings (which sometimes establish that a State has failed to comply with its obligations and still needs to provide people under its jurisdiction with an effective remedy) deprives State's participation in the Covenant and the Protocol of its purpose and meaning - as well as the State's creation of obstacles to filing a complaint to the Committee and the persecution of complainants.
If a state seeks to manifest itself as a sovereign, full-fledged actor in international relations, it should take care of a truly conscientious, non-decorative interpretation and fulfilment of its international obligations.
For its part, the Committee is organized and functions in such a way as not to exceed the powers that the states parties to the Covenant and the Protocol have voluntarily vested in it - the HRC cannot consider complaints against states that have not ratified the Protocol; the Committee takes a consistent position that it is inadmissible to involve it as a "court of fourth instance" to review all the circumstances and evidence in the case - only issues relating to the alleged violation by the state of the rights provided for in the Covenant in relation to a specific individual who was under the jurisdiction of that state are subject to consideration. The Committee respects the national judicial system and is a subsidiary body to it, which implies the requirement that all effective remedies be exhausted before approaching the HRC directly in order for the complaint to be considered admissible and to be considered on its merits.
Thus, the Committee does not attempt to interfere in the internal affairs of the state and is not an additional judicial authority for arbitrary review of any decisions made in the state. It is limited in its ability to consider complaints: not everyone passes the admissibility assessment, one of the important conditions of which is the requirement to exhaust domestic remedies.
In its official communications with the Committee, the state justifies the lack of action from its side with the communication made by the HRC of the right to independently decide to what extent the opinion of the Committee members should have legal consequences for the Republic of Belarus. At the root of the rationale for this "right" is the concept of state sovereignty.
A few notes need to be made in this regard:
1. The voluntary conclusion of an international treaty (and therefore the ability to have rights and bear obligations to its participants) is a direct consequence of the sovereignty of the state, its recognition as a full-fledged subject of international relations, and not a renunciation of state sovereignty.
2. The generally accepted principle of international law - pacta sunt servanda ("treaties must be respected") - implies, among other things, the requirement for a fair interpretation of an international treaty. An interpretation that deprives the treaty of the purpose for which it was concluded cannot be considered in good faith.
In terms of interpretation of the provisions of the Covenant itself and the first Optional Protocol thereto, the example of the Russian Federation is interesting. In Ruling No. 1248-O of June 28, 2012, the Russian Constitutional Court applies the principle of pacta sunt servanda when interpreting paragraph 3 of Article 2 of the Covenant and comes to the following conclusion:
The Russian Federation has no right "to evade an adequate response to the views of the Human Rights Committee, including in cases where it believes that, due to a violation of the provisions of the International Covenant on Civil and Political Rights, a retrial of the criminal case of a person whose message served as the basis for the Committee to adopt the corresponding View", since otherwise "would call into question the Russian Federation's compliance with its voluntarily assumed obligations" and "would render meaningless the right of everyone arising from the Constitution of the Russian Federation to apply in accordance with these international treaties to the Committee on Human Rights if all available domestic remedies have been exhausted."
So, the Republic of Belarus - a full party to the two international treaties we are considering - the Covenant itself and the Optional Protocol (before its denunciation) - has undertaken, among other things, the obligation to a) recognize the competence of the Committee to receive and consider communications from persons subject to its jurisdiction who claim, that they are victims of a violation by her of any of the rights set out in the Covenant, b) communicate in good faith with the Committee during the consideration of the complaint and take into account its considerations. The permission expressed through ratification of the Protocol to resort to the Committee in the absence of an adequate response to its findings (which sometimes establish that a State has failed to comply with its obligations and still needs to provide people under its jurisdiction with an effective remedy) deprives State's participation in the Covenant and the Protocol of its purpose and meaning - as well as the State's creation of obstacles to filing a complaint to the Committee and the persecution of complainants.
If a state seeks to manifest itself as a sovereign, full-fledged actor in international relations, it should take care of a truly conscientious, non-decorative interpretation and fulfilment of its international obligations.
For its part, the Committee is organized and functions in such a way as not to exceed the powers that the states parties to the Covenant and the Protocol have voluntarily vested in it - the HRC cannot consider complaints against states that have not ratified the Protocol; the Committee takes a consistent position that it is inadmissible to involve it as a "court of fourth instance" to review all the circumstances and evidence in the case - only issues relating to the alleged violation by the state of the rights provided for in the Covenant in relation to a specific individual who was under the jurisdiction of that state are subject to consideration. The Committee respects the national judicial system and is a subsidiary body to it, which implies the requirement that all effective remedies be exhausted before approaching the HRC directly in order for the complaint to be considered admissible and to be considered on its merits.
Thus, the Committee does not attempt to interfere in the internal affairs of the state and is not an additional judicial authority for arbitrary review of any decisions made in the state. It is limited in its ability to consider complaints: not everyone passes the admissibility assessment, one of the important conditions of which is the requirement to exhaust domestic remedies.
2. What is covered by the requirement to exhaust local remedies?
The Optional Protocol requires the exhaustion of "all available domestic remedies" before the Committee can be referred to. In case where it appears impossible or potentially ineffective to exhaust all means provided for by the legal system of the state, these considerations must be substantiated when filing a complaint - the Committee may recognize the relevant means as not required to be exhausted. Thus, the requirement of complete exhaustion is removed in the case of unreasonable delay in the procedure due to the fault of government bodies, or a general lack of legal remedies for certain situations. Read this resource to learn more about practical advice on exhaustion: what is important to keep in mind to ensure the admissibility of a complaint.
The Committee has repeatedly expressed its views on the effectiveness of legal remedies that the Belarusian state considers mandatory for exhaustion: in particular, the need for supervisory review of a judicial decision and a petition to the President for a pardon have not been recognized as effective and accessible legal remedies that must be exhausted before filing a complaint. To change the situation, the Belarusian state, whose practice consistently demonstrates the absolute ineffectiveness of appealing sentences through the supervisory review procedure, needs to prove that an attempt to use this remedy could have had an adequate chance of success. The key reason for recognizing an appeal to a supervisory authority as an ineffective remedy is the fact that filing a supervisory complaint in itself does not entail automatic judicial proceedings. The initiation of a review procedure lies within the discretion of a court official or prosecutor's office; the applicant cannot influence the adoption of this decision.
However, the problem of the impossibility or ineffectiveness of exhausting all possible means or providing information about such exhaustion in Belarus today, unfortunately, cannot be reduced to the listed issues.
The Committee has repeatedly expressed its views on the effectiveness of legal remedies that the Belarusian state considers mandatory for exhaustion: in particular, the need for supervisory review of a judicial decision and a petition to the President for a pardon have not been recognized as effective and accessible legal remedies that must be exhausted before filing a complaint. To change the situation, the Belarusian state, whose practice consistently demonstrates the absolute ineffectiveness of appealing sentences through the supervisory review procedure, needs to prove that an attempt to use this remedy could have had an adequate chance of success. The key reason for recognizing an appeal to a supervisory authority as an ineffective remedy is the fact that filing a supervisory complaint in itself does not entail automatic judicial proceedings. The initiation of a review procedure lies within the discretion of a court official or prosecutor's office; the applicant cannot influence the adoption of this decision.
However, the problem of the impossibility or ineffectiveness of exhausting all possible means or providing information about such exhaustion in Belarus today, unfortunately, cannot be reduced to the listed issues.
3. Problems faced by applicants filing complaints against Belarus
The following are systemic problems that prevent the exhaustion of all available domestic remedies or the provision of information to the Committee regarding such exhaustion. All of them are due to either the arbitrary use of restrictive mechanisms by the state (taking away a non-disclosure agreement, holding closed court hearings), or the creation of conditions in which recourse to internal means seems impossible or completely futile.
A. Gag orders and closed court hearings
A gag order, a tool originally designed to ensure due process and the right to the presumption of innocence, has been widely used since 2020 as a mechanism for limiting the dissemination of information about the process. The Criminal Procedure Code of the Republic of Belarus already prohibits the disclosure of data from a preliminary investigation or inquiry, but a gag order presupposes the possibility of criminal prosecution under Art. 407 of the Criminal Code in the event of disclosure - as practice shows - of virtually any information about the case, while the order is given to all participants in the process, including witnesses.
According to a study conducted by our project, in 2022, 31.4% of lawyers surveyed faced being forced to sign a gag order of preliminary investigation data exclusively in cases of a political nature, while 82.8% of lawyers are confident that such practice is more often practiced specifically in matters of this nature. There are already known cases of sanctions against lawyers who refused to provide a gag order - for example, on this basis, Vladimir Sazanchuk, who defended Nikolai Statkevich and Dmitry Kozlov, was deprived of his license.
Special Rapporteur on the situation of human rights defenders, Mary Lawlor, noted: "Non-disclosure agreements de facto criminalize the dissemination of information relating to human rights... The space for human rights work in Belarus is shrinking to the point of impossibility."
In the context of filing complaints with the Human Rights Committee, the disclosure by a lawyer of documents indicating the exhaustion of domestic remedies, subject to a non-disclosure agreement, may result in criminal prosecution against such attorney.
Article 407 of the Criminal Code also provides for the possibility of criminal prosecution in the event of disclosure of data about the case during a closed court hearing. Despite the fact that both the Criminal Procedure Code and the provisions of the Covenant provide for the possibility of holding closed court hearings, it is necessary to understand that such a court format is a limitation of the general right to a fair and public trial of the case - and therefore must be justified in each individual case from the point of view of what is permitted by the article 14 of the Covenant as legitimate grounds. The practice of the Belarusian model shows that political trials are often declared closed on arbitrary grounds, which prevents lawyers from providing the Committee with documents related to the trial (including the text of the verdict).
B. Remedies with little chance of success—or unavailability
As noted above, the Committee may consider particular remedies to be futile if there are reasonable grounds for believing that they have no prospect of success due to general defects in the legal system and the lack of guarantees for the independence of the judiciary. The Committee also noted that fear of persecution by the State for seeking legal remedies may justify the failure to indicate that all remedies have been exhausted in an applicant's complaint. In the case of torture, according to the members of the HR Committee, only criminal prosecution of the perpetrators can represent a truly effective remedy.
Since 2020, hundreds of complaints of torture and ill-treatment have been recorded, but there is no information about investigations and prosecution of those responsible for these acts. Moreover, attempts to use existing means to prosecute law enforcement officers who are actively protected by the state may result in persecution for the victims themselves - and their lawyers, as has been repeatedly noted in the reports of international bodies.
B. Lack of access to legal remedies in pre-trial detention centers
In Belarus, a practice has developed of systematically preventing lawyers from accessing administratively detained persons, with the authorities citing the lack of material conditions for exercising the right of detainees to legal assistance. Reasons used include the risk of contracting COVID-19, insufficient numbers of rooms or simply "technical reasons."
In addition, detainees are often not given copies of documents related to their process - nor the means to physically file a complaint in the place of detention. In such circumstances, it is simply not possible to exhaust all formally available legal remedies. It is logical that the state bears responsibility for creating such conditions. At the same time, the systematic nature of these cases indicates the controlled nature of the violations.
A. Gag orders and closed court hearings
A gag order, a tool originally designed to ensure due process and the right to the presumption of innocence, has been widely used since 2020 as a mechanism for limiting the dissemination of information about the process. The Criminal Procedure Code of the Republic of Belarus already prohibits the disclosure of data from a preliminary investigation or inquiry, but a gag order presupposes the possibility of criminal prosecution under Art. 407 of the Criminal Code in the event of disclosure - as practice shows - of virtually any information about the case, while the order is given to all participants in the process, including witnesses.
According to a study conducted by our project, in 2022, 31.4% of lawyers surveyed faced being forced to sign a gag order of preliminary investigation data exclusively in cases of a political nature, while 82.8% of lawyers are confident that such practice is more often practiced specifically in matters of this nature. There are already known cases of sanctions against lawyers who refused to provide a gag order - for example, on this basis, Vladimir Sazanchuk, who defended Nikolai Statkevich and Dmitry Kozlov, was deprived of his license.
Special Rapporteur on the situation of human rights defenders, Mary Lawlor, noted: "Non-disclosure agreements de facto criminalize the dissemination of information relating to human rights... The space for human rights work in Belarus is shrinking to the point of impossibility."
In the context of filing complaints with the Human Rights Committee, the disclosure by a lawyer of documents indicating the exhaustion of domestic remedies, subject to a non-disclosure agreement, may result in criminal prosecution against such attorney.
Article 407 of the Criminal Code also provides for the possibility of criminal prosecution in the event of disclosure of data about the case during a closed court hearing. Despite the fact that both the Criminal Procedure Code and the provisions of the Covenant provide for the possibility of holding closed court hearings, it is necessary to understand that such a court format is a limitation of the general right to a fair and public trial of the case - and therefore must be justified in each individual case from the point of view of what is permitted by the article 14 of the Covenant as legitimate grounds. The practice of the Belarusian model shows that political trials are often declared closed on arbitrary grounds, which prevents lawyers from providing the Committee with documents related to the trial (including the text of the verdict).
B. Remedies with little chance of success—or unavailability
As noted above, the Committee may consider particular remedies to be futile if there are reasonable grounds for believing that they have no prospect of success due to general defects in the legal system and the lack of guarantees for the independence of the judiciary. The Committee also noted that fear of persecution by the State for seeking legal remedies may justify the failure to indicate that all remedies have been exhausted in an applicant's complaint. In the case of torture, according to the members of the HR Committee, only criminal prosecution of the perpetrators can represent a truly effective remedy.
Since 2020, hundreds of complaints of torture and ill-treatment have been recorded, but there is no information about investigations and prosecution of those responsible for these acts. Moreover, attempts to use existing means to prosecute law enforcement officers who are actively protected by the state may result in persecution for the victims themselves - and their lawyers, as has been repeatedly noted in the reports of international bodies.
B. Lack of access to legal remedies in pre-trial detention centers
In Belarus, a practice has developed of systematically preventing lawyers from accessing administratively detained persons, with the authorities citing the lack of material conditions for exercising the right of detainees to legal assistance. Reasons used include the risk of contracting COVID-19, insufficient numbers of rooms or simply "technical reasons."
In addition, detainees are often not given copies of documents related to their process - nor the means to physically file a complaint in the place of detention. In such circumstances, it is simply not possible to exhaust all formally available legal remedies. It is logical that the state bears responsibility for creating such conditions. At the same time, the systematic nature of these cases indicates the controlled nature of the violations.
What can be done?
The root of the above problems is the general crisis of the Belarusian law enforcement system; therefore, potential solutions at present can only lie in the plane of a thorough study of the applicant's circumstances, including those that make it impossible to appeal to all national authorities - and measures that remove the risk of criminal prosecution from the victims of violations and their lawyers for disclosing "closed" information.
In particular, it seems reasonable to require the state to provide documents relevant to the Committee on the applicants' cases if the participants in the process are under a non-disclosure agreement and (or) the trial was closed. It is important to consider legal remedies that may appear obligatory to exhaust but in practice remain either physically inaccessible or dangerous: if a victim of a human rights violation must weigh the risk of retaliation in the form of further harassment against the possibility of seeking a remedy whose effectiveness is in question, it is difficult to say that such remedies are available and have a chance of success, and therefore must be exhausted.
Readers of articles on legal instruments and the practices of bodies to which access is currently unavailable may question the usefulness of knowledge of such bodies and instruments.
We are convinced of the importance of knowledge about the findings and problematic situations under consideration for future law enforcement, when the situation with respect for human rights and the rule of law in the Republic of Belarus becomes different. Ideas about right and wrong in a conversation about human rights, about the real importance of international obligations and the inadmissibility of seeking the ultimate truth in the letter of national law are not formed overnight. Such articles help prepare the ground for changes in the legal community and among other participants in the justice system, as the speed and effectiveness of changes in this system depends on the attitudes and practices its participants use.
In particular, it seems reasonable to require the state to provide documents relevant to the Committee on the applicants' cases if the participants in the process are under a non-disclosure agreement and (or) the trial was closed. It is important to consider legal remedies that may appear obligatory to exhaust but in practice remain either physically inaccessible or dangerous: if a victim of a human rights violation must weigh the risk of retaliation in the form of further harassment against the possibility of seeking a remedy whose effectiveness is in question, it is difficult to say that such remedies are available and have a chance of success, and therefore must be exhausted.
Readers of articles on legal instruments and the practices of bodies to which access is currently unavailable may question the usefulness of knowledge of such bodies and instruments.
We are convinced of the importance of knowledge about the findings and problematic situations under consideration for future law enforcement, when the situation with respect for human rights and the rule of law in the Republic of Belarus becomes different. Ideas about right and wrong in a conversation about human rights, about the real importance of international obligations and the inadmissibility of seeking the ultimate truth in the letter of national law are not formed overnight. Such articles help prepare the ground for changes in the legal community and among other participants in the justice system, as the speed and effectiveness of changes in this system depends on the attitudes and practices its participants use.
