COMMITTEE AGAINST TORTURE HEARS RESPONSE OF BELARUS

The Committee against Torture this afternoon heard the response of Belarus to questions raised by Committee Experts on the fourth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Friday, 11 November, the delegation of Belarus, which was led by Mikhail Khvostov, Permanent Representative of Belarus to the United Nations Office at Geneva, stressed the important difference between the legal and illegal deprivation of liberty and said that the Rapporteur had falsely described the events that occurred in Independence Square on December 12 which were assessed by the Government as a coup d’état necessitating police involvement and the detention of 600 people. All those detained by the State were assured the right to a lawyer, including during the events of December 12 but the State had not been prepared for the massive unrest and therefore was not able to provide a separate, private room for each person to meet with their lawyers at that time.

The delegation from Belarus included representatives from the Permanent Mission of Belarus to the United Nations Office at Geneva and the Ministry of Foreign Affairs.

The Committee’s next public meeting will be at 4 p.m. on Wednesday, 16 November when the Committee will meet with States parties to the Convention at the Palais des Nations.

Responses by the Delegation

MIKHAIL KHVOSTOV, Permanent Representative of Belarus to the United Nations Office at Geneva, noted that the competency of the Committee should not be focused on interpreting documents of the United Nations but on providing assessments concerning established facts. References made by the Rapporteur to documents from the Organization for Security and Co-operation in Europe were considered unsubstantiated by the delegation and the Ambassador further rejected the Committee’s statement that Belarus was not respecting the Convention by cultivating a spirit of impunity. The delegation stressed the important difference between the legal and illegal deprivation of liberty and said that the Special Rapporteur had falsely described the events that occurred in Independence Square on December 12 which were assessed by the State as a coup d’état necessitating police involvement and the detention of 600 people. The delegation further noted that it could not agree with the use of the term of human rights defenders.

The Republic of Belarus had carefully considered the Committee’s questions and noted that most were related to specific individuals and events. The consideration of individual communications from persons or their representatives was covered by Article 22 of the Convention to which the Government of Belarus had not considered itself bound. The delegation was alarmed over the fact that questions concerning individuals had not taken into account the overall context of the situation on December 12 and stressed the need for competent experts within the Committee to assist Belarus to further implement the Convention. The delegation had tried to the greatest extent possible to answer all questions from the Committee including presenting its own translation of its written replies in one of the working languages of the Committee.

The Ambassador highlighted that the official statistics provided by the Special Rapporteur on Torture Juan Mendez to the Human Rights Council stated that he had received 64 letters with allegations of torture in 35 States and 137 appeals for immediate action and only in 2 cases had these related to Belarus.

Concerning access to lawyers for defendants, all those detained by the State were assured the right to a lawyer, including those detained during the events of December 12. However, the State had not been prepared for the massive unrest in December and therefore was not able to provide a separate, private room for each person to meet with their lawyers at that time. The General Prosecutor’s Office had carried out a study on opportunities for contact between lawyers and detainees and had not found any areas of concern on this matter.

Criminal Procedure Code 41 provided that a suspect should be entitled to have a lawyer once he was informed of detention without any limit on the number and length of meetings between the accused person and their counsel; in addition close relatives would be informed of the detention. The Ministry of the Interior was constantly carrying out planned and unplanned inspections of temporary holding facilities providing for a clear mechanism for the monitoring of such facilities. A lawyer could participate in a legal case once a decree was issued on the case. The staff of the Prosecutor’s Office during inspections had held discussions with detainees on rights abuses. There were 7,150 people detained as of November 2011; 117 inspections were carried out; 10 Prosecutor’s monitoring documents were issued, which had resulted in 18 staff of the Ministry of Interior receiving disciplinary action. At least once every four years inspections of holding facilities would be carried out.

In line with legislation, once a month, representatives of the Prosecutor’s Office carried out inspections of pre-trial detention centers with a review of all documents on cases, including medical documents and all detainees were asked if they had complaints or required medical assistance. During the inspections, there were no complaints concerning conditions of detention. Family members should be notified within a 12 hour period of a person being detained and relatives of all persons detained in connection with the December events were informed of arrests and the location of their detained relatives.

Concerning individual cases, the delegation noted that Mr. Sannikov had sent 18 complaints about his condition and had received medical attention. The delegation, in response to complaints by the lawyers of Mr. Sannikov who had said they were unable to meet with their client, had found no evidence of this. Concerning the case of Mr. Neklyayev, who had received a minor head injury during detention, he had received free and full medical support for his injuries in addition to food and clothing from his relatives. Concerning the allegation by Human Rights Watch that 180 persons were beaten, the Prosecutor’s Office had no information on this. Concerning the allegations by Mr. Atroshchankau’s wife on his mistreatment during detention, Mr. Atroshchankau had refused to provide any information to support his wife’s allegations of incidents that had occurred during his detention.

Habeas corpus could be found in Article 43 of the Criminal Procedure Code. Any interrogations of detained persons were carried out by the body responsible for criminal investigations and the names of all individuals involved in the investigation would be provided. Masks or other measures that could undermine interrogations would not be allowed. The courts must, within a 24 hour period, check the legality of an arrest; if the person was under home detention, the timeframe was 72 hours after the complaint was issued. The Prosecutor could insure the right of a citizen to contest complaints. The law obliged the court or prosecutor to deal with a complaint within 10 days of receiving the complaint. The Criminal Procedure Code provided legal guarantees to appeal to a higher court.

Correctional Facility No 14, Prison 8 and pre-trial detention facilities in Minsk had all been visited by representatives of the media. The delegation would carefully study the report issued a few days ago by the Human Rights Office of the Organization for Security and Co-operation in Europe. However, the delegation stressed that the report had been published without any consultations with the Belarusian authorities, despite this being the practice with other country reports. The Belarusian State was based on the principle of the separation of powers of the executive, judicial and legislative branches of the Government. No violations had been identified for those detained during the December 12 events in Minsk. The monitoring of the implementation of legislation was being carried out by the Ministry of Justice and could not be considered as an attempt by the Ministry of Justice to intimidate a lawyer and therefore any allegations that this was going on was not based on fact. For example, 89 lawyers had received notification of violation of their conduct, among which only 5 had been involved in the December 12 events. Mr. Sapelko’s legal license was terminated due to financial matters at the decision of the lawyers’ self management body. The law on the bar fully corresponded to international standards for real and equal access to legal services for all citizens in Belarus.

Concerning the Helsinki Committee of Belarus, the Ministry of Justice had issued a warning on their continued misuse of documents and this had been resolved. The case of Mr. Ruskin was one of espionage and he had been sentenced to ten years of deprivation of liberty after being stripped of his military rank.

Concerning the case of Mr. Bialiatski, his detention was not related to his human rights work but because he was engaged in tax fraud wherein he provided false information and had not paid his taxes. The material collected in the pre-investigation period proved that he had an undeclared income in Polish and Lithuanian accounts and taxes on these had not been paid to the Government. A final indictment against Mr. Bialiatski was handed down in September concerning tax invasion for the amount of 352 million Belarusian Rubles.

Concerning the use of illegal methods during detention, there were over 16,000 applications for investigations of which 2,000 had been considered valid and dealt with in an affirmative way.

An accused person had a right to make complaints against attacks or punishment during detention and could also present complaints on the legality of their detention. Such written allegations would be investigated within five days of receiving the complaint. The delegation noted that an Investigative Committee was established under the Ministry of Interior and the Prosecutor’s Office to consider such violations.

Concerning the events of December 12, all individuals that were in Independence Square had had the opportunity to leave the square and representatives of law enforcement had used megaphones to call upon all participants in the illegal mass gathering to leave the square. Concerning the case of Mrs. Maya Abromchick who was detained with others, upon complaints of ill health, she had been transferred to a hospital by ambulance and a current investigation of the Office of the General Prosecutor in Minsk was carrying out an investigation of this case.

A criminal investigation of the case of Mr. Alyaksei Mikhalevich had ascertained that no torture had occurred during his period of detention and that he had been provided with medical attention upon request. Mr. Mikhalevich was currently on the wanted list and therefore his criminal case was suspended until he would appear and his trial would resume.

Draft legislation was currently under consideration on the definition of torture.

During a period of 12 hours after an arrest, the Criminal Procedure Code obliged the body that carried out the investigation to contact relatives of the detainees. Concerning women detainees, the General Prosecutor’s office had received no complaints from women on threats of violence against them. Minors were kept separate from adults in detention centers.

Follow-up questions of the Experts

CLAUDIO GROSSMAN, Committee Chairperson, in reply to the delegation of Belarus, stressed that in order to comply with the terms of the Convention, there was a need for the Committee to ask about individual cases in countries under review and noted that both the legal framework of the Committee and the guidelines of the reports included concrete cases, situations and practices wherein the Convention was violated.

FELICE GAER, Committee Expert who served as Rapporteur for the report of Belarus, emphasized that the competence of the Committee included examining compliance with the Convention and as there were many allegations received from different sources on a wide range of issues, the Committee had to probe further on such issues. Concerning the delegation’s objection to the term human rights defenders, the Rapporteur said that everyone had the right to promote and protect human rights and noted that if the General Prosecutor’s Office had repeatedly issued official warnings to the Presidential candidates against holding mass demonstrations, hadn’t this constituted sufficient advanced warning for the Government to prepare more than two cells for detainees to meet with their lawyers. Could the delegation provide more information on which rules had been broken and what was the nature of the discipline that had occurred against the 18 persons working at the Ministry of Interior?

Concerning Mr. Sannikov’s case, Ms. Gaer noted that there had been many different types of complaints, including a denial to meet face to face with his attorney for three months, torture, beatings, and threats made by people in masks against him and his family and requested detail on the investigation of Mr. Sannikov’s case. Concerning habeas corpus, Ms. Gaer reiterated her earlier request for data on how habeas corpus was being applied, including what violation was involved and the court’s decisions. Concerning the case of Ms. Maya Abromchik, was her accusation of unlawful use of force, including the use of batons, against the riot police and had there been a wider investigation of the disproportionate use of force by the riot police? Ms. Gaer said there appeared to be a lack of basic safeguards for both a fair trial and protection against the use of torture, would the delegation consider conducting an open investigation, including allowing the Special Rapporteur against Torture and other human rights mechanisms to enter Belarus to help resolve the discrepancies of what had happened both in the square and afterwards during the detention process.

Ms. Gaer concluded by noting that judges must decide on matters impartially without inappropriate influence and pressure. Without an independent judiciary and oversight of the criminal process, there was a structural problem that needed to be addressed in Belarus for the protection of basic rights for defendants.

NORA SVEAASS, Committee Expert, said that the dialogue with Belarus was part of an international oversight system and that it was critical for the Committee to understand how investigations into allegations of torture were being conducted and how had the victims of such abuses been compensated and treated? Concerning the Watchdog Commission, how independent was it, what was the criteria and time period for appointment to the Commission and under what conditions would media and social society be included in the Watchdog Commission? What were the regular mechanisms for the oversight in psychiatric hospitals? The delegation stated that a body within the Prosecutor’s Office carried out investigations of torture, although there was no clarity on the actual number of cases of torture and Ms. Sveaass asked if a lack of definition of torture in the Constitution had led to such ambiguity on the actual number of cases in Belarus. What were the conditions on death row? Concerning situations where women had reported acts of sexual violence or threats of sexual violence, Ms. Sveaass said the Committee had come across such complaints all over the world and questioned the response of the delegation which stated that there were no such complaints in Belarus.

FERNANDO MARINO MENENDEZ, Committee Expert, asked if there was an exclusive use of the Belarusian language in legal proceedings or if Russian was also allowed. Were human rights and human rights instruments taught in universities?

ALESSIO BRUNI, Committee Expert, asked about the 38 visits conducted by the national Watchdog Commission and what conclusions or actions had resulted in these visits? Concerning the improvement of prisons, there had been a prior commitment by the Government to do this and what had been achieved in this area and was there any progress made in a moratorium on the death penalty in Belarus.

ESSADIA BELMIR, Committee Expert, said it was critical that the justice system allowed citizens to defend their rights. Concerning the scope of powers of prosecutors versus judges, was there a sufficient balance between the two or was there more power on the prosecutor’s side?

Responses by the Delegation

MIKHAIL KHVOSTOV, Permanent Representative of Belarus to the United Nations Office at Geneva, said he fully agreed with the Chairman’s comments and despite the difficult and sharp questions that were raised today, the delegation would address all the questions. Belarus was a responsible member of the international community. It had taken the country a long time to decide whether or not to participate in the Convention against Torture as indicated by the reservations it placed and finally removed in 2001. The Ambassador stressed that there had not been enough experience in the legal system of Belarus, which had only existed for 20 years as an independent State, to fully integrate and learn from the international community on the correct measures to use in the country.

Belarus was not against the term of human rights defenders but rather stressed that the justice system could not deal differently with human rights defenders if these individuals violated the law. It was clear that the Convention against Torture was part of the law that the Government applied even if there was no specific definition of torture in the country’s constitution. The Ambassador further stressed that the mass demonstrations in December had had the objective of overthrowing the Government and the courts were obligated to deal with such an unconstitutional forceful change of power in the country decisively. Concerning Mr. Sannikov, the delegation again asserted that the prosecution of his case had been an open one with participants from many countries in the courtroom who were able to witness what was actually happening. No threats were made against Mr. Sannikov or against his wife and family.

The judiciary in Belarus was not an Anglo Saxon system and was in the beginning of implementing the habeas corpus process which occurred at the pre-trial process and changes and amendments would continue to be made to the judicial and criminal system.

Batons had been used during the December events and the police force had the right to use them; the police had not used rubber bullets or water cannons. Concerning the acts of the riot police, the delegation said it was created to address special circumstances, as had occurred in London and other European countries. There had been no reprisals against the Helsinki Committee and all questions related to this had been resolved. Concerning the case of Mr. Ruskin, there was no information on a refusal to allow him to file a complaint and the case had been carried out according to the same practices that existed in other countries for cases of espionage.

Belarus was a full fledged member of the Organization for Security and Co-operation in Europe and therefore had the right to contribute to any report that considered it. Concerning the case of Mr. Bialiatski, this was a simple case of tax evasion and had no bearing on whether or not he was involved in human rights work or associated with an unregistered organization. There were two official languages in the country, Russian and Belarusian; all laws were issued in both languages and court proceedings were carried out in the language chosen by the person under investigation. There were special courses in legal universities on human rights and human rights mechanisms.

During the Universal Periodic Review process, Belarus had noted that it was doing its best to make changes despite the fact that it faced the problem of a lack of financial resources.


For use of the information media; not an official record

CAT11/043E