26 October 2020
Ms. President, Excellencies, Distinguished Delegates, Ladies and Gentlemen,
I have the honour to present to you my second thematic report, which covers the period up to 15 June 2020. This report focuses on the administration of justice in Belarus, in particular juvenile justice, and on the judicial harassment of members of civil society.
Regrettably and as in previous years, the Government of Belarus has continued its policy of non-recognition and non-cooperation with my mandate. More than ever, I believe it is the time for the Authorities to reconsider their position and engage with the Special Procedures in order to address the numerous human rights issues on the table.
The independence of the judiciary is one of the cornerstones for sustainable democracy. For almost three decades, Belarus has failed to ensure the independence of its judiciary, implying that the rule of law remains unguaranteed, and human rights - unprotected. This is evidenced, inter alia, in the procedures for appointment, tenure, and removal of judges. In stark contradiction with the principle of separation of powers, in Belarus the President retains absolute discretion to appoint or remove judges, and to prosecute or dismiss a judge without triggering any disciplinary proceedings. The principle of non-removability, which is crucial to guarantee the independence of judges, is violated as well; according to available data, 93% of judges in Belarus are appointed for a limited term, and their tenure is not guaranteed in practice.
The excessive control of the executive branch also extends to prosecutors, which amounts to undue interference, and manifests itself in prosecutions being undertaken, or prevented from being launched, for political reasons. Moreover, prosecutors can extend detention periods without a judicial control. In fact, prosecutors enjoy legal and procedural powers that are not available for the defence to the same extent. They often act as gatekeepers against the defence's use of experts, searches and compelled testimony. This translates into an advantage for the prosecution that violates the principles of the right to a fair trial, and presumption of innocence.
The independence and impartiality of the legal profession also remains a concern. The Belarusian legislation significantly limits the independence of lawyers, whose licencing and activities, including within the Bar Association, are tightly controlled by the executive. For example, lawyers can see their licence withdrawn following an attestation process, which a Qualification Commission can launch at any time. The threat of being disbarred is used to arbitrarily pressure those lawyers who are perceived as being critical of the Government because of the type of clients they defend. This often leaves human rights defenders without a lawyer to defend them in court. A recent example concerns Aliaksandr Pylchenka, a lawyer who defends detained opposition leaders Viktar Babaryka and Marya Kalesnikava, and whose licence was withdrawn on 15 October. I would like to remind that the harassment, intimidation and prosecution of lawyers for their professional activities contradict principles 14 and 20 of the UN Basic Principles on the Role of Lawyers.
Since my appointment two years ago, I have paid specific attention to violations of children's rights. Hence, my report also raises a number of concerns about the legislative framework pertaining to juvenile offenders, especially children convicted for non-violent drug offences under article 328 of the Criminal Code. Although some children benefited from the latest amnesty laws, many others remain detained, or are still being sentenced, for disproportionately long prison terms. I am also alarmed by the low standard of healthcare available for children in detention, notably in times of the COVID-19 pandemic. Another worrying trend that affects children's health is forced labour in places of detention, a practice that continues, in clear violation of international standards.
In my 2019 report, I noted there was a risk of a further deterioration of the human rights situation during the current electoral cycle. Regrettably, I was right. Since the completion of the current report, the situation has significantly worsened, especially after the 9 August presidential election. The systemic deficiencies my predecessor and I have been alerting this Assembly about were yet again echoed in the systematic and widespread violations of the rule of law this year.
In the pre-election period, from May to July, hundreds of people have been arrested or fined for trying to participate in public life. Since 9 August, Belarusians have massively taken to the streets to protest what they see as a manipulated vote in favour of the incumbent. The protest marches were joined by civil and political activists, medical workers, human rights defenders, journalists, bloggers, but also women, students, teachers, and most recently retirees. They remained largely peaceful to date; yet they have been violently repressed by anti-riot police and unidentified individuals who lawlessly abducted people in the streets.
According to NGO and Interior Ministry sources, at least 20,000 persons have been detained in August and September alone, for peacefully exerting their constitutional rights to freedom of assembly and expression. Hundreds were reportedly beaten, intimidated, tortured or ill-treated while in detention. Most of them ended up facing administrative or criminal charges too – since 9 August over 400 criminal cases have been launched against protesters. Allegations of torture in detention are not being thoroughly investigated, which sends perpetrators the signal of impunity. Rubber-stamping such serious and massive human rights violations is unacceptable however. Justice will have to be done.
For now, the Belarusian legislation is selectively used to intimidate or harass dissenting voices, including increasingly female ones. Single mothers who take part in protest marches are particularly vulnerable, due to the discriminatory way Presidential Decree Nr. 18, "on state protection of children in dysfunctional families", is implemented. Should the targeted judicial harassment of peaceful protesters continue, many children in Belarus are at risk of being taken away from families labelled as being "in a socially dangerous situation", only because their parents face prosecution for having exerted their right to freedom of assembly.
Ladies and Gentlemen
In the absence of an independent national human rights institution, the deeply-rooted, systemic deficiencies of the judiciary, which I highlight in my report, imply that the fundamental freedoms and human rights of Belarusians are not only being violated on a daily basis: they are left unprotected. Promoting them is our collective responsibility.
The Belarusian Government must promptly stop repressing its own people. Dissenting voices should not be silenced, but should instead be listened to, because their main claim is, after all, that rule of law be respected in Belarus. In this regard, I urge the Authorities to release all those still in detention for exercising their right to peaceful assembly and expression, and to allow all those forced to exile to safely return to Belarus, so that a constructive, inclusive and transparent dialogue with all representatives of civil society can be engaged, in order to jointly overcome the current political crisis. Establishing an independent judicial system should top the agenda for future reforms: I call on all stakeholders to act upon the recommendations reflected in my report for that purpose.
Thank you for your attention and your support.