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22 June 2000
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22 June 2000
The following text summarizes the activities of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Dato Param Cumaraswamy, during his recent visit to Belarus:
The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, completed a week-long visit to Belarus on 17 June 2000. The purpose of his visit was to gather information first hand to understand the situation facing judges and lawyers in Belarus. During his mission in Belarus, Mr. Cumaraswamy met with a wide cross-section of actors in the administration of justice, including judges from the Constitutional Court, Supreme Court, Higher Economic Court, District Court, lawyers from bar associations, the Deputy Procurator General, legal educators and representatives from the Ministry of Justice and Presidential Administration. He also met with representatives of non-governmental human rights organizations, associations for journalists and for businesspeople, and the Minister of Foreign Affairs.
The Special Rapporteur noted that Belarus society is going through a period of transition which is affecting the legal system. He was grateful for the co-operation and warm reception he received in all meetings.
Mr. Cumaraswamy looked into the developments of 1996, when the President introduced a new constitution through a controversial referendum. The 1996 Constitution concentrated considerable power in the hands of the President.
Within the parameters of his mandate, the Special Rapporteur focussed on three areas of concern:
The judiciary
The independence of judges is threatened by the Presidential power to appoint and dismiss most judges. Judges must also pass a probationary period of five years after being appointed, leaving them uncertain of their tenure during this extended period. Such probationary appointments are inconsistent with independent judiciary. This problem is widespread, considering that 40% of all judges have worked for less than three years. Low salaries for judges also leave them open to the possibility of corruption.
Of further particular concern to the Special Rapporteur is the procedure of the appointment of judges to the Constitutional Court. The President not only appoints six of the twelve judges at his own discretion, but also appoints the chairman. The chairman can recommend the names of the other six candidates for appointment by the Parliament. Hence, the Constitutional Court, which is the most important court, with powers to interpret the constitution and the legality of laws, cannot possibly seen to be independent of the executive.
Recent statements by the President with regard to his influence on judges in the determination of sentencing, do a great disservice to the perception of independence of the judiciary in Belarus and abroad. The judiciary must not only be independent, but must be seen to be so. Only then can it command the respect of the people and the international community. So long as the laws remain as an impediment to such independence, the judiciary will remain and be seen to remain an extension of the executive.
The legal profession
The Special Rapporteur is also concerned regarding the independence of attorneys. All attorneys came to be required to be members of the bar association in 1997, and the practice of private attorneys was made illegal. Admission to the bar is heavily controlled by state officials from the Ministry of Justice and other agencies, including the State Security Service. Attorneys are further required to be re-licensed every five years, which can include an oral exam, making it difficult to appeal its results.
Private notaries have endured unprecedented persecution. In 1997, the institution of private notaries was abolished and those who had legally practiced as private notaries were required to give to the state all income they had received, some going back to 1993, including taxes that they had already paid. Those who refused, were barred from even working as state notaries and had their property taken by court order.
These developments affecting attorneys and notaries were introduced by Presidential decree. In these circumstances, the legal profession in Belarus cannot be seen as independent.
State of the laws
Under the 1996 Constitution, Presidential decrees were given equal status to laws. In addition, the President was given the power to issue temporary decrees of "special necessity". The meaning of this term is undefined. The President has used this power to issue more than 70 decrees, on subjects ranging from control of housing for judges and procurators to confiscation of property without a court decision. While these temporary decrees must be submitted to Parliament in three days following their issuance, they remain law until rejected by Parliament. In order to overturn such a decree, a two-thirds majority must vote against the Presidential decree, from the total number of members from both the upper and lower chambers of parliament. Temporary decrees have now been in force for more than three years, many are in contradiction to the Constitution and laws of Belarus.
A constitutional provision allowing Parliament to delegate legislative power to the President under certain conditions has not been enacted as law. The President continues to legislate by way of temporary decrees which are only meant for circumstances of special necessity.
The Special Rapporteur noted that one particularly worrying example of a Presidential temporary decree is Decree 40, on "Measures regarding harm carried out against the State", 23 November 1999. This decree allows for the confiscation of property in cases of suspicion of a harm against the state committed by an individual or legal entity. "Harm" is apparently not defined by this decree or by any law. In such cases, property is taken by the Ministry for State Property and Privatization, "if something different is not established by the President." The confiscation of property under Decree 40 may be appealed to a court, which may return the property or its monetary equivalent. Confiscation of property without a court decision is in violation to the Belarus Constitution and Civil Code, as well as international human rights norms.
The Special Rapporteur noted that it is a requirement of a democratic state that laws should be certain and stable. Further, the right not to be unfairly deprived of property is fundamental. The confiscation of property before a court proceeding has taken place can prejudice a court, particularly because Presidential acts have a presumption of constitutionality. Unfortunately, it appears that Decree 40 contains a presumption of guilt.
Any uncertainty of the law will cause confusion in the minds of the people and the business community, who have to organize their affairs with some certainty. Stability of the laws is also important to attract foreign investors who look for such stability in laws and government policies.
Human Rights Defenders
Several lawyers expressed concern to Mr. Cumaraswamy that they have been harassed by the Government for their human rights defense activities. The Special Rapporteur recently addressed a formal communication to the Belarus Government on the cases of Vera Stremkovskaya and Oleg Volchek, whose separate offices were broken into, and their computer equipment and files stolen. The requirement of re-registration has led to many NGOs losing their registration, allegedly for political motives. Cases of journalists from non-state media being barred from certain court proceedings were also of concern to Mr. Cumaraswamy. The beating and arbitrary detention of hundreds of demonstrators and journalists, including monitors during a demonstration in March was also disturbing. The refusal to open criminal proceedings against the authorities in related cases called into question the independence of the procuracy. The Special Rapporteur calls on the Government to investigate these cases and ensure that human rights defenders are protected in Belarus, in accordance with the UN Declaration on Human Rights Defenders, of which Belarus was a co-sponsor.
The Special Rapporteur found positive provisions in the laws. The provision of the Constitution requiring domestic law to be in accordance with international norms was particularly good. The Special Rapporteur on Judges and Lawyers encourages Belarus to ensure that all of their laws do conform to international standards in writing as well as in practice.
The Special Rapporteur will prepare a more detailed report with conclusions and recommendations for presentation to the 57th Session of the United Nations Commission for Human Rights next year.
The following text summarizes the activities of the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Dato Param Cumaraswamy, during his recent visit to Belarus:
The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, completed a week-long visit to Belarus on 17 June 2000. The purpose of his visit was to gather information first hand to understand the situation facing judges and lawyers in Belarus. During his mission in Belarus, Mr. Cumaraswamy met with a wide cross-section of actors in the administration of justice, including judges from the Constitutional Court, Supreme Court, Higher Economic Court, District Court, lawyers from bar associations, the Deputy Procurator General, legal educators and representatives from the Ministry of Justice and Presidential Administration. He also met with representatives of non-governmental human rights organizations, associations for journalists and for businesspeople, and the Minister of Foreign Affairs.
The Special Rapporteur noted that Belarus society is going through a period of transition which is affecting the legal system. He was grateful for the co-operation and warm reception he received in all meetings.
Mr. Cumaraswamy looked into the developments of 1996, when the President introduced a new constitution through a controversial referendum. The 1996 Constitution concentrated considerable power in the hands of the President.
Within the parameters of his mandate, the Special Rapporteur focussed on three areas of concern:
The judiciary
The independence of judges is threatened by the Presidential power to appoint and dismiss most judges. Judges must also pass a probationary period of five years after being appointed, leaving them uncertain of their tenure during this extended period. Such probationary appointments are inconsistent with independent judiciary. This problem is widespread, considering that 40% of all judges have worked for less than three years. Low salaries for judges also leave them open to the possibility of corruption.
Of further particular concern to the Special Rapporteur is the procedure of the appointment of judges to the Constitutional Court. The President not only appoints six of the twelve judges at his own discretion, but also appoints the chairman. The chairman can recommend the names of the other six candidates for appointment by the Parliament. Hence, the Constitutional Court, which is the most important court, with powers to interpret the constitution and the legality of laws, cannot possibly seen to be independent of the executive.
Recent statements by the President with regard to his influence on judges in the determination of sentencing, do a great disservice to the perception of independence of the judiciary in Belarus and abroad. The judiciary must not only be independent, but must be seen to be so. Only then can it command the respect of the people and the international community. So long as the laws remain as an impediment to such independence, the judiciary will remain and be seen to remain an extension of the executive.
The legal profession
The Special Rapporteur is also concerned regarding the independence of attorneys. All attorneys came to be required to be members of the bar association in 1997, and the practice of private attorneys was made illegal. Admission to the bar is heavily controlled by state officials from the Ministry of Justice and other agencies, including the State Security Service. Attorneys are further required to be re-licensed every five years, which can include an oral exam, making it difficult to appeal its results.
Private notaries have endured unprecedented persecution. In 1997, the institution of private notaries was abolished and those who had legally practiced as private notaries were required to give to the state all income they had received, some going back to 1993, including taxes that they had already paid. Those who refused, were barred from even working as state notaries and had their property taken by court order.
These developments affecting attorneys and notaries were introduced by Presidential decree. In these circumstances, the legal profession in Belarus cannot be seen as independent.
State of the laws
Under the 1996 Constitution, Presidential decrees were given equal status to laws. In addition, the President was given the power to issue temporary decrees of "special necessity". The meaning of this term is undefined. The President has used this power to issue more than 70 decrees, on subjects ranging from control of housing for judges and procurators to confiscation of property without a court decision. While these temporary decrees must be submitted to Parliament in three days following their issuance, they remain law until rejected by Parliament. In order to overturn such a decree, a two-thirds majority must vote against the Presidential decree, from the total number of members from both the upper and lower chambers of parliament. Temporary decrees have now been in force for more than three years, many are in contradiction to the Constitution and laws of Belarus.
A constitutional provision allowing Parliament to delegate legislative power to the President under certain conditions has not been enacted as law. The President continues to legislate by way of temporary decrees which are only meant for circumstances of special necessity.
The Special Rapporteur noted that one particularly worrying example of a Presidential temporary decree is Decree 40, on "Measures regarding harm carried out against the State", 23 November 1999. This decree allows for the confiscation of property in cases of suspicion of a harm against the state committed by an individual or legal entity. "Harm" is apparently not defined by this decree or by any law. In such cases, property is taken by the Ministry for State Property and Privatization, "if something different is not established by the President." The confiscation of property under Decree 40 may be appealed to a court, which may return the property or its monetary equivalent. Confiscation of property without a court decision is in violation to the Belarus Constitution and Civil Code, as well as international human rights norms.
The Special Rapporteur noted that it is a requirement of a democratic state that laws should be certain and stable. Further, the right not to be unfairly deprived of property is fundamental. The confiscation of property before a court proceeding has taken place can prejudice a court, particularly because Presidential acts have a presumption of constitutionality. Unfortunately, it appears that Decree 40 contains a presumption of guilt.
Any uncertainty of the law will cause confusion in the minds of the people and the business community, who have to organize their affairs with some certainty. Stability of the laws is also important to attract foreign investors who look for such stability in laws and government policies.
Human Rights Defenders
Several lawyers expressed concern to Mr. Cumaraswamy that they have been harassed by the Government for their human rights defense activities. The Special Rapporteur recently addressed a formal communication to the Belarus Government on the cases of Vera Stremkovskaya and Oleg Volchek, whose separate offices were broken into, and their computer equipment and files stolen. The requirement of re-registration has led to many NGOs losing their registration, allegedly for political motives. Cases of journalists from non-state media being barred from certain court proceedings were also of concern to Mr. Cumaraswamy. The beating and arbitrary detention of hundreds of demonstrators and journalists, including monitors during a demonstration in March was also disturbing. The refusal to open criminal proceedings against the authorities in related cases called into question the independence of the procuracy. The Special Rapporteur calls on the Government to investigate these cases and ensure that human rights defenders are protected in Belarus, in accordance with the UN Declaration on Human Rights Defenders, of which Belarus was a co-sponsor.
The Special Rapporteur found positive provisions in the laws. The provision of the Constitution requiring domestic law to be in accordance with international norms was particularly good. The Special Rapporteur on Judges and Lawyers encourages Belarus to ensure that all of their laws do conform to international standards in writing as well as in practice.
The Special Rapporteur will prepare a more detailed report with conclusions and recommendations for presentation to the 57th Session of the United Nations Commission for Human Rights next year.