Belarus advocacy for the Day of Endangered Lawyer

Hello! My name is Anaïs Marin and since November 2018 I have been holding the mandate of UN Special Rapporteur on the situation of human rights in Belarus. This mandate was established by the UN Human Rights Council in 2012. Regrettably, the human rights situation in Belarus has gone from bad to worse since then.

This is particularly evident in the context of the judiciary. For decades the rule of law in Belarus – or rather lack of it – has been a serious issue of concern for the UN system. The Belarusian judiciary is marred by procedures for the appointment, tenure and removal of judges that undermine their independence. The due legal process is often violated by politically-motivated procedural violations and disciplinary sentencing, with almost no respect for presumption of innocence and the right to a fair trial.

One of the greatest challenges stems from the fact that the legal profession is under considerable, systematic pressure, and tightening control. Let me remind of a number of institutional features that specifically endanger lawyers in Belarus.

The Belarusian legislative framework effectively limits the independence of lawyers, whose activities are under excessive control of the Ministry of Justice, via the Belarusian National Bar Association, an institution which has lost the features of an independent self-governing body able to defend the interests of its members. In order to exert their profession, lawyers must receive a licence delivered by the Ministry of Justice, following an examination by a Certification Commission, which is itself controlled... by the Ministry. There is still no effective mechanism for lawyers to appeal the Certification Commission’s decisions. In other words, lawyers are “certified” not by their peers, but by the executive – which violates the fundamental principle of the separation of powers.

Although licenses are issued for life, Belarusian lawyers have to undergo certification inspections every five years, while the authorities can request ex prompt inspections at any time. It appears that they do so in a selective way, and most inspections are politically motivated. This aims at putting pressure on lawyers perceived as being critical of the Government either because of earlier statements they made in court, or because of the type of clients they defend.

Especially concerning is the fate of lawyers who protect human rights defenders, or defendants in so-called “political cases” (such as opposition leaders, civic activists, peaceful protesters, independent journalists, bloggers, etc.): the authorities reportedly use laws and procedures selectively to silence or intimidate lawyers who work on such sensitive cases, with the consequence that defendants, who are oftentimes victims of human rights violations themselves, are left without a proper defence. The fact that the state attacks lawyers to bar access to justice for those expressing dissent or criticism of the government and its policies leads lawyers to self-censorship, and adds to people’s distrust in judicial institutions.

In addition to these structural deficiencies, which I highlighted in my 2020 report to the UN General Assembly, over the past 18 months lawyers themselves have regularly been subjected to arrests, detention, and criminal prosecution in the context of the ongoing crackdown.

According to the International Federation for Human Rights (FIDH), at least 23 Belarusian lawyers have been disbarred in the year that followed the contested August 2020 election. In March last year, seven lawyers were requested to take an examination to re-certify their qualification, a move justified by their alleged “improper performance of their professional duties”. Only one of them passed the examination, three had their licences suspended for six months, and three more lawyers were disbarred altogether.

The arbitrary disbarment of Belarusian lawyers has created a protection gap for their dependent relatives, notably children, when lawyers are prevented from earning a living to take care of their family. In addition to targeting lawyers individually, in 2021 the Law on the Bar and Advocacy was amended to restrict even more the rights and independence of Belarusian lawyers, while increasing the Justice Ministry’s control over bar associations.

This contributes to the serious erosion of the commitments to international law and its institutions that we have observed in Belarus since 2020.

Let me remind that the harassment, intimidation and prosecution of lawyers for carrying out their professional activities goes against principles 14 and 20 of the UN Basic Principles on the Role of Lawyers. It also restricts the rights to freedom of opinion and their expression, and the right to counsel and equality before the courts, as guaranteed by the International Covenant on Civil and Political Rights which Belarus has ratified.

Yet in Belarus the judiciary has become an integral part of the repressive arsenal used by the authorities to crack down on dissent. The overall institutional and legal setup not only limits the independence of lawyers – it literally endangers them, professionally and often personally.

I would like to use this opportunity to call upon the international community to do more to safeguard the ability of Belarusian lawyers to exercise their activities without interference, which is especially vital in the context of the crackdown on human rights and civic space currently under way in Belarus.

Thank you.