Forcing Attorneys to Sign the Papers on Non-disclosure of the Data on Preliminary Investigation as a Leverage against Them
Published on 6 July, 2022
- Legal regulation
- Practice of using non-disclosure papers during and after the 2020 election campaign
- Violations connected with the practice of using non-disclosure papers
- Lack of justification for such practice
- The lack of appropriate remedies against unsubstantiated restrictions
- Abuse of the notion of scope of information prohibited for distribution
- Discriminatory application of restrictions against attorneys
- Conclusions
One of the ways to exert pressure on an attorney is obliging them to sign the papers on non-disclosure of the data on preliminary investigation. Such measures have a strong impact on the lawyer's actions within criminal defense, as well as the right of society to be informed about the activities of law enforcement agencies and the judicial system. Let’s consider the practice of the application of this rule.
Legal regulation.
The very possibility of being obliged to sign such a paper is provided for in Article 198 of the Criminal Procedure Code of the Republic of Belarus.
Article 198. Inadmissibility of disclosure of the preliminary investigation data
1. The preliminary investigation or inquiry data is not subject to disclosure. It may be made public only with the permission of the investigator, the person conducting the inquiry, and only to the extent that they recognize it possible if 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. In the event that information constituting state secrets is obtained during the criminal proceedings, the investigator, the person conducting the inquiry, immediately takes measures to protect them in accordance with the legislation on state secrets.
2. The investigator, the person conducting the inquiry, has the right to warn the defender, the victim, the civil plaintiff, the civil defendant, representatives, the representative of the deceased suspect or accused, the person who was subject to involvement as a suspect, the accused, witnesses, the expert, the specialist, the interpreter, arrest and search witnesses and other persons present during the investigative and other procedural actions, on the inadmissibility of disclosing the information available in the case without their permission. An order of non-disclosure is issued for these persons with a warning of the ensuing responsibility in accordance with article 407 of the Criminal Code of the Republic of Belarus.
3. If there is information in the criminal case materials that constitutes state secrets or other secrets protected by law, the investigator, the person conducting the inquiry, warn the suspect, the accused, as well as the persons mentioned in paragraph 2 of this Article about the need for them to comply with the requirements of the legislation on state secrets or other secrets protected by law, as well as about responsibility for the disclosure of information constituting state secrets or other legally protected secrets; in that regard, an order of non-disclosure is issued for them.
2. The investigator, the person conducting the inquiry, has the right to warn the defender, the victim, the civil plaintiff, the civil defendant, representatives, the representative of the deceased suspect or accused, the person who was subject to involvement as a suspect, the accused, witnesses, the expert, the specialist, the interpreter, arrest and search witnesses and other persons present during the investigative and other procedural actions, on the inadmissibility of disclosing the information available in the case without their permission. An order of non-disclosure is issued for these persons with a warning of the ensuing responsibility in accordance with article 407 of the Criminal Code of the Republic of Belarus.
3. If there is information in the criminal case materials that constitutes state secrets or other secrets protected by law, the investigator, the person conducting the inquiry, warn the suspect, the accused, as well as the persons mentioned in paragraph 2 of this Article about the need for them to comply with the requirements of the legislation on state secrets or other secrets protected by law, as well as about responsibility for the disclosure of information constituting state secrets or other legally protected secrets; in that regard, an order of non-disclosure is issued for them.
Practice of using non-disclosure papers during and after the 2020 election campaign
Starting in 2020, in the vast majority of criminal cases having apparent political implications, the preliminary investigation authorities began to oblige the defenders of the accused to sign such non-disclosure papers. Such occasions cover a very wide range of criminal cases, lacking any systematicity and exceptions. So, the papers were signed:
- in the criminal case against Viktor Babariko and others (the key presidential candidate in the 2020 election). The charges were of an exclusively economic nature, including, inter alia, taking bribes and legalizing the proceeds of crime;
- in the criminal case against Katerina Borisevich (t*t.by journalist, the author of the article according to which Roman Bondarenko, who allegedly became a victim of the security forces, was sober – and, therefore, couldn’t have provoked men in plainclothes that are believed to beat him to death). The accusation concerned the disclosure of medical secrets in violation of the established procedure. At the same time, the relatives of the deceased claim that they provided permission for the dissemination of medical information;
- in the criminal case against Maxim Znak (attorney for the electoral headquarters of Viktor Babariko) and Maria Kolesnikova (activist of the electoral headquarters of Viktor Babariko). The accusation related to public calls for actions threatening national security and other related violations;
- in the criminal case against Sergei Tikhanovsky (one of the presidential candidates in the 2020 election) and others. The accusations relate to the organization of mass riots, inciting social hatred.
Violations connected with the practice of using non-disclosure papers
Lack of justification for such practice
Despite the fact that the norm cited above looks as if the preliminary investigation authorities have the right to impose such restrictions arbitrarily and without observing any conditions, this is not the case.
According to paragraph 4 of Article 1 of the Criminal Procedure Code of the Republic of Belarus, international human rights treaties to which the Republic of Belarus is a party shall be applied in criminal proceedings along with the Code.
The International Covenant on Civil and Political Rights is such an international treaty for the Republic of Belarus: it was ratified by the Decree of the Supreme Council of the Belarusian Soviet Socialist Republic, dated by 15 November 1973. In accordance with the First Optional Protocol to the Covenant, ratified by the Republic of Belarus in 1992, Belarus recognizes the competence of the Human Rights Committee to consider individual complaints.
Article 19 of the Covenant enshrines freedom of expression (freedom of speech). The Human Rights Committee (as well as the European Court of Human Rights, for additional information see the article "Review of Decisions of the European Court of Human Rights Issued in Cases Affecting Lawyer’s Freedom of Expression" (written in Russian)) consider restrictions on the freedom of speech of lawyers as an isolated example of restriction of general freedom of speech. It is recognized that there are no reasons and grounds for a special restriction of a lawyer's freedom of speech as compared with the ordinary notion of freedom of speech. As a general rule, freedom of speech of lawyers can be restricted only on special occasions.
According to paragraph 4 of Article 1 of the Criminal Procedure Code of the Republic of Belarus, international human rights treaties to which the Republic of Belarus is a party shall be applied in criminal proceedings along with the Code.
The International Covenant on Civil and Political Rights is such an international treaty for the Republic of Belarus: it was ratified by the Decree of the Supreme Council of the Belarusian Soviet Socialist Republic, dated by 15 November 1973. In accordance with the First Optional Protocol to the Covenant, ratified by the Republic of Belarus in 1992, Belarus recognizes the competence of the Human Rights Committee to consider individual complaints.
Article 19 of the Covenant enshrines freedom of expression (freedom of speech). The Human Rights Committee (as well as the European Court of Human Rights, for additional information see the article "Review of Decisions of the European Court of Human Rights Issued in Cases Affecting Lawyer’s Freedom of Expression" (written in Russian)) consider restrictions on the freedom of speech of lawyers as an isolated example of restriction of general freedom of speech. It is recognized that there are no reasons and grounds for a special restriction of a lawyer's freedom of speech as compared with the ordinary notion of freedom of speech. As a general rule, freedom of speech of lawyers can be restricted only on special occasions.
The International Covenant on Civil and Political Rights, Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
The provisions of Article 19 of the Covenant are commented in detail by the Committee itself in General Comment No. 34, CCPR/C/GC/34 of 12 September 2011. The Committee periodically issues General Comments based on the practice of examining reports of violations by the participating States.
In particular, the Comment indicates that paragraph 3 of Article 19 expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason two limitative areas of restrictions on the right are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals. However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed.
At the same time, restrictions may be imposed only if the special conditions provided for in paragraph 3 of Article 19 of the Covenant are met: : the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.
The Committee emphasizes that a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expressions are properly restricted and what sorts are not.
Based on everything above mentioned, the exercise by the preliminary investigation authorities of unlimited discretionary powers without sufficient grounds and justification of proportionality, as well as without indicating how the restrictions imposed correspond to the goals set out in paragraph 3 of Article 19 of the Covenant, is an obvious violation of the International Covenant on Civil and Political Rights, which, under Article 1 of Belarusian Code of Criminal Procedure is subject to application in criminal proceedings (the Covenant would be subject to application, regardless of such an indication in the Code, such a reference is rather a tribute to the positivist tradition of the post-Soviet legal system). At the same time, in accordance with general principles, the provisions of the Covenant take precedence over national legislation.
In violation of these rules, the orders issued by the preliminary investigation authorities as to non-disclosure of the materials of such investigations do not contain any consideration of the balance of the interests of society and the interests of the preliminary investigation authorities in cases of public interest. Such orders contain only a reference to the Code of Criminal Procedure establishing a respective rights and a rather vague indication of the interests of the investigation. Therefore, these actions are unsubstantiated.
In particular, the Comment indicates that paragraph 3 of Article 19 expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason two limitative areas of restrictions on the right are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public) or of public health or morals. However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed.
At the same time, restrictions may be imposed only if the special conditions provided for in paragraph 3 of Article 19 of the Covenant are met: : the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.
The Committee emphasizes that a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expressions are properly restricted and what sorts are not.
Based on everything above mentioned, the exercise by the preliminary investigation authorities of unlimited discretionary powers without sufficient grounds and justification of proportionality, as well as without indicating how the restrictions imposed correspond to the goals set out in paragraph 3 of Article 19 of the Covenant, is an obvious violation of the International Covenant on Civil and Political Rights, which, under Article 1 of Belarusian Code of Criminal Procedure is subject to application in criminal proceedings (the Covenant would be subject to application, regardless of such an indication in the Code, such a reference is rather a tribute to the positivist tradition of the post-Soviet legal system). At the same time, in accordance with general principles, the provisions of the Covenant take precedence over national legislation.
In violation of these rules, the orders issued by the preliminary investigation authorities as to non-disclosure of the materials of such investigations do not contain any consideration of the balance of the interests of society and the interests of the preliminary investigation authorities in cases of public interest. Such orders contain only a reference to the Code of Criminal Procedure establishing a respective rights and a rather vague indication of the interests of the investigation. Therefore, these actions are unsubstantiated.
The lack of appropriate remedies against unsubstantiated restrictions
Obliging a person to sign a paper on non-disclosure of the data of the preliminary investigation is an action on the part of a specific body conducting the criminal process (the body of inquiry, the investigator, the head of the preliminary investigation body or the prosecutor). Therefore, like any other action of the body conducting criminal proceedings, it can be appealed within the general procedure provided for in Articles 138-142 of the Code of Criminal Procedure.
Under Article 139 of the Code, complaints about the actions and decisions of the body of inquiry, the person conducting the inquiry, and the investigator are submitted to the prosecutor; complaints about the actions and decisions of the investigator can also be submitted to the head of the investigative unit. Complaints against the actions and decisions of the prosecutor are submitted to the higher prosecutor, whereas complaints against the actions and decisions of the head of the investigative unit are to be submitted to the higher head of the investigative unit.
Thus, appeals against the mentioned actions can be filed only within the law enforcement system itself, judicial protection of this right is not provided. Taking into account that at the time of the appeal there is already a ban on the disclosure of the preliminary investigation data, and the appeal takes place without any public procedure, the fact of the appeal being filed also won’t be known to the public. At the same time, the very effectiveness of such an appeal is extremely low.
In the vast majority of cases, even in those of a non-political nature, prosecutors prefer not to interfere in any conflict situations between the participants in the criminal process and the body conducting it, limiting themselves to general replies to any complaints. Moreover, the procedure for appealing the actions of the investigator to the head of the investigative unit proves ineffective, since in almost all cases any significant actions of the investigator are coordinated with the chiefs, and, speaking of cases of a political orientation, such actions are most often formalized in the form of specific verbal or written instructions to the investigator from the chief, which are mandatory for the investigator.
Therefore, there is no effective system of appealing against the actions of the body conducting the criminal process as to forcing to sign a non-disclosure of the data of the preliminary investigation in Belarus.
Under Article 139 of the Code, complaints about the actions and decisions of the body of inquiry, the person conducting the inquiry, and the investigator are submitted to the prosecutor; complaints about the actions and decisions of the investigator can also be submitted to the head of the investigative unit. Complaints against the actions and decisions of the prosecutor are submitted to the higher prosecutor, whereas complaints against the actions and decisions of the head of the investigative unit are to be submitted to the higher head of the investigative unit.
Thus, appeals against the mentioned actions can be filed only within the law enforcement system itself, judicial protection of this right is not provided. Taking into account that at the time of the appeal there is already a ban on the disclosure of the preliminary investigation data, and the appeal takes place without any public procedure, the fact of the appeal being filed also won’t be known to the public. At the same time, the very effectiveness of such an appeal is extremely low.
In the vast majority of cases, even in those of a non-political nature, prosecutors prefer not to interfere in any conflict situations between the participants in the criminal process and the body conducting it, limiting themselves to general replies to any complaints. Moreover, the procedure for appealing the actions of the investigator to the head of the investigative unit proves ineffective, since in almost all cases any significant actions of the investigator are coordinated with the chiefs, and, speaking of cases of a political orientation, such actions are most often formalized in the form of specific verbal or written instructions to the investigator from the chief, which are mandatory for the investigator.
Therefore, there is no effective system of appealing against the actions of the body conducting the criminal process as to forcing to sign a non-disclosure of the data of the preliminary investigation in Belarus.
Abuse of the notion of scope of information prohibited for distribution
Belarusian legislation does not contain a clear definition of the term “preliminary investigation data”. In rule-of-law states, such a problem does not arise, since the appropriate decision-making involves taking into account the interests of society and the interests of national security, considerations of public order, health or morals, as was mentioned above. The motivation for making such decisions is clearly stated, and no issues usually arise as to the amount of information threatening the above interests. The provision by law of unlimited discretionary mandate to restrict has led in practice to the situation when the preliminary investigation authorities interpret “preliminary investigation data” as broad as possible, indicating, among other things, that the preliminary investigation data should be understood as absolutely any information related to a criminal case: what body and officials are investigating; in what status (suspect or accused) is a citizen; what specific actions are imputed to him; under what article of the Criminal Code are these actions qualified; has the citizen been charged or not; whether any preventive measure been chosen against the citizen or not; where exactly is the citizen physically located; when, where and what kind of investigative actions were carried out against the citizen; what position does the citizen take in the criminal case, etc. At the same time, it should be borne in mind that the source of obtaining such information does not matter – even if the lawyer got the information from the client, he or she is still, according to law enforcement agencies, bound by a non-disclosure agreement.
Taking into account a considerable interest in these criminal cases on the part of society and the media, attorneys are constantly faced with requests for comments, but in fact do not have the opportunity to provide at least some information, despite the fact that the client himself often wants it. At the same time, publicity can also be part of the line of defense, not to mention that information about the functioning of the justice system belongs to the matter of public interest.
Taking into account a considerable interest in these criminal cases on the part of society and the media, attorneys are constantly faced with requests for comments, but in fact do not have the opportunity to provide at least some information, despite the fact that the client himself often wants it. At the same time, publicity can also be part of the line of defense, not to mention that information about the functioning of the justice system belongs to the matter of public interest.
Discriminatory application of restrictions against attorneys
The application of restrictions in the distribution of the preliminary investigation data is obviously discriminatory. Such restrictions are applied exclusively to attorneys, witnesses, relatives of persons brought to justice – that is, those who are interested in observing the presumption of innocence.
The preliminary investigation authorities and supervisory bodies (the Prosecutor's office) comment on the progress of the investigation of criminal cases without any restrictions, communicating their position to society and the media, without any need to consider the violation of the rights and legitimate interests of the participants in the process. In particular, in their comments, the preliminary investigation authorities let themselves assert the guilt of the accused and the commission of specific actions long before the end of the preliminary investigation, most often at its very beginning, that is, without a court decision that has entered into force. Thus, there is an attempt to set up public opinion and the court against specific defendants. In contrast, the second party, represented by the defender or relatives of the person being prosecuted (the person himself is in custody in the vast majority of cases, which in itself is a systemic violation), is completely limited in comments or presentation of the defense position: the attorney cannot refer to specific facts and the position of his client.
At the same time, there have been countless cases when the suppositions of one being guilty voiced in the above-mentioned manner haven’t been confirmed later – and the final charges totally lacked the actions the impugned acts. For instance, there is a striking difference between the sentences passed against Viktor Babariko or Stepan Latypov (activist, accused of setting up opposition social media and – allegedly – resisting police during his arrest) and the charges voiced before. Practically no claims passed by the investigation authorities off as factual information were mentioned in the case when it was transferred to the court for consideration.
The preliminary investigation authorities and supervisory bodies (the Prosecutor's office) comment on the progress of the investigation of criminal cases without any restrictions, communicating their position to society and the media, without any need to consider the violation of the rights and legitimate interests of the participants in the process. In particular, in their comments, the preliminary investigation authorities let themselves assert the guilt of the accused and the commission of specific actions long before the end of the preliminary investigation, most often at its very beginning, that is, without a court decision that has entered into force. Thus, there is an attempt to set up public opinion and the court against specific defendants. In contrast, the second party, represented by the defender or relatives of the person being prosecuted (the person himself is in custody in the vast majority of cases, which in itself is a systemic violation), is completely limited in comments or presentation of the defense position: the attorney cannot refer to specific facts and the position of his client.
At the same time, there have been countless cases when the suppositions of one being guilty voiced in the above-mentioned manner haven’t been confirmed later – and the final charges totally lacked the actions the impugned acts. For instance, there is a striking difference between the sentences passed against Viktor Babariko or Stepan Latypov (activist, accused of setting up opposition social media and – allegedly – resisting police during his arrest) and the charges voiced before. Practically no claims passed by the investigation authorities off as factual information were mentioned in the case when it was transferred to the court for consideration.
Conclusions
The current practice of applying restrictions on the dissemination of preliminary investigation data completely violates the established procedure and demonstrates that the preliminary investigation authorities and criminal liability mechanisms are used as means of political pressure, aimed solely at limiting the dissemination of information related to political persecution.
