A/HRC/32/48
Presidential decrees may overrule existing legislation on any issue, including constitutional
law.
20.
The presidential administration also overrides the principle of the separation of
powers by determining the policies of the executive, preparing draft legislation adopted by
Parliament and influencing the courts by providing conceptual instructions concerning State
policy (“directives”). The legal framework in place does not allow for change unless it is
based on the political will of the President. As a result, basic civil and political rights, like
economic, cultural and social rights, whether or not included in the Constitution or in
international treaties, are not enforceable by the citizens, even though the Government may
refer to them rights when executing the State’s policies.
21.
The Special Rapporteur remains concerned by the system of appointment of judges
and prosecutors, as described in his previous report to the Human Rights Council
(A/HRC/29/43, paras. 34-40). The President may single-handedly promote or demote any
judge or prosecutor. The absence of any separation between the judiciary and the executive
power was already underlined in the report of the Working Group on the Universal Periodic
Review in 2010 (A/HRC/15/16 98.25), and again in 2015 (A/HRC/30/3, para. 127.74-75).
In 2012, the Committee on Economic, Social and Cultural Rights urged Belarus to
guarantee the full independence and impartiality of the judiciary in line with the Basic
Principles on the Independence of the Judiciary, including by establishing an independent
body responsible for the appointment, promotion, suspension and removal of judges
(E/C.12/BLR/CO/4-6, para. 6). To the knowledge of the Special Rapporteur, such a body
had not yet been established (as at 31 March 2016).
22.
Defence lawyers, despite numerous recommendations by United Nations
mechanisms, continue to be fully dependent on the Ministry of Justice, which controls entry
to the legal profession. Arbitrary, politicized claims of violations of rules, such as
cooperation with United Nations human rights mechanisms, can lead to disciplinary
removal from the bar association at any time and without recourse to appeal.
23.
The Special Rapporteur reiterates his calls for the engagement of the Government of
Belarus in a broad reform to bring legislation into compliance with its international human
rights obligations. He recommends that the Government, inter alia, repeal article No. 193.1
of the Criminal Code, which criminalizes membership in unauthorized associations and
public events, reform its oppressive media governance, in consultation with all media and
civil society actors, and establish a legal moratorium on capital punishment with a view to
its abolishment.
III. Engagement with the international human rights system
24.
The Working Group on the Universal Periodic Review examined Belarus on 4 May
2015, for the second time. The compilation prepared by the Office of the United Nations
High Commissioner for Human Rights (A/HRC/WG.6/22/BLR/2) contained information
on the level of engagement of the authorities with the United Nations human rights system
as at 4 March 2015. Since that date, the Special Rapporteur has noted no further
engagement. The authorities refused to support recommendations to extend a standing
invitation to special procedure mandate holders (A/HRC/30/3, paras. 130.25 – 130.38).
25.
The Special Rapporteur notes that the Government of Belarus examined and
supported recommendations made by the Working Group on the Universal Periodic Review
on considering or facilitating ratification of or accession to the International Convention on
the Protection of the Rights of All Migrant Workers and Members of Their Families
(A/HRC/30/3, paras. 127.2 – 127.5) and the Convention on the Rights of Persons with
Disabilities (A/HRC/30/3, paras. 127.7 – 127.11). The Special Rapporteur points out,
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