A/HRC/26/44
V.
Human rights concerns
A.
Independence of the judiciary
33.
In November 2013, Presidential Decree No. 6 on improving the judicial system of
the Republic of Belarus was adopted. This saw some positive institutional developments:
the merger of the Supreme Court and the Supreme Economic Court, with the functions of
the latter transferred from the Ministry of Justice to the former, the abolishment of military
courts and the removal of all district courts from the jurisdiction of the Department of
Justice to that of regional courts. It is still too early to assess the impact of the Decree. It is
hoped that it will bring some independence to the judiciary from the executive, and a more
consistent interpretation and application of the law. However, the President remains directly
responsible for appointing, dismissing and determining the tenure of judges.
34.
In cases where the authorities are found to be responsible for a human rights
violation, practice shows that courts rarely award non-pecuniary compensation for
damages. Although the obligation to prove the legality of the action lies with the authorities
against which the claim was filed,9 court decisions often argue that it is the applicant who
must prove that the authorities acted unlawfully.
35.
Of particular note is that criminal cases retain an accusatory bias, as recognized by
the Supreme Court in its reviews.10 Judicial practice still presumes the credibility of the
testimony of a police officer, despite the removal of this provision in 2007 from the
amended law on internal affairs agencies.
36.
The Special Rapporteur again emphasizes his concern at the lack of independence of
the judiciary, which is inconsistent with an environment necessary for the exercise of
human rights (E/C.12/1/Add.7/Rev.1, para 12). For many years, the United Nations human
rights mechanisms have expressed that procedures relating to the appointment, tenure,
disciplining and dismissal of judges do not comply with the principle of independence and
impartiality of the judiciary.11 There also seems to be a failure on the part of the executive
to respect the decision of the Constitutional Court and thereby observe the rule of law.12
B.
Independence of lawyers
37.
The United Nations human rights mechanisms have repeatedly called on Belarus to
respond to concerns of defence lawyers and address the pattern of intimidation against
lawyers and of interference in their work (A/HRC/15/16, paras. 50 and 98.26). The
continued failure to address this issue has a chilling effect on the independence of
lawyers.13 Like other Special Procedures mandate holders, the Special Rapporteur is
concerned by the frequent targeting of lawyers who work on human rights cases.14 He
9
10
11
12
13
14
Constitution of the Republic of Belarus, Article 60
(http://www.belarus.net/costitut/constitution_e.htm#Article%2060).
http://court.by.justice_RB/ik/obzor/2010/e439740565c86a62.html.
CCPR/C/79/Add.86, para. 13; E/C.12/BLR/CO/4-6, para. 6; CAT/C/BLR/CO/4,
para. 12; E/CN.4/2001/65/Add.1, paras 106–114; E/CN.4/2005/6/Add.3, para. 44; E/CN.4/2005/35,
paras. 29–31; A/HRC/23/52, para. 61; A/68/276, para. 83.
CCPR/C/79/Add.86, para. 13; E/CN.4/2001/65/Add.1, paras. 29–3; A/HRC/4/16, para. 14.
CAT/C/BLR/CO/4, para. 12(a); A/HRC/17/30/Add.1, para. 101; A/HRC/20/8, para. 75(i);
A/HRC/23/52, para. 64; A/68/276, para. 76; A/HRC/25/55/Add.3, para. 61.
E/CN.4/2001/65/Add.1, para. 117; A/68/276, para. 97.
7
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