Human rights activists present alternative report on torture
On April 5, a human rights coalition presented its alternative report on the implementation by Belarus of the UN Convention against Torture.
At the start of the meeting, Viktoryia Fiodarava, head of the NGO "Legal Initiative", spoke about the mechanism of consideration of reports at the 63rd session of the UN Committee against Torture.
In particular, the Committee is composed of ten independent experts who are appointed by the states, but act in a personal capacity.
Belarus submitted its report back on December 9, 2015, however, due to delays in the consideration of the report within the United Nations system, both reports, the official one and the alternative paper, will be considered from April 23 to May 16.
According to the established procedure, representatives of the government agencies will present their report first, then the NGOs will present their comments and alternative report, communicating to the members of the Committee their recommendations, which they wish to be passed to the government. After that the Committee will discuss this part of the recommendations, and the authorities will agree with them, take note or consider them unacceptable.
Siarhei Ustsinau of the initiative "Human Rights Defenders against Torture" drew attention to the major problems of the Belarusian legislation and noted that the Criminal Code still does not include an article providing for responsibility for all acts of torture.
“Despite the fact that the Criminal Code has two articles providing for responsibility for the abuse of power and official authority and coercion to testify, however, there is still no article of torture,” he stressed.
Siarhei Ustsinau said that the government stated in its report that it introduced the notion of torture, but it is obvious that the authorities are misleading the human rights international bodies by failing to introduce responsibility for all acts of torture. Furthermore, the authorities have never publicly condemned the use of torture. On the contrary, the media from time to time feature statements by senior officials arguing that torture is “not that bad.” A few years ago, the President of Belarus said when commenting on the problem of drug-related offenses (Art. 328 of the Criminal Code) that the convicts had to be placed in such conditions in prisons that would make them “ask for death.”
The legislation also contains no provisions on the right of a prisoner to examination by an independent doctor or an expert in the case of torture.
“The successful investigation of torture is based on an urgent and proper fixation of signs of torture. If the doctor employed within the Interior Ministry system examines a prisoner and does not document properly the signs of torture, later it will be extremely difficult to prove anything,” concluded the human rights activist.
Another problem highlighted by experts is the investigating authorities’ power to decide on the person’s pre-trial detention.
“In accordance with international standards, detention is ordered by a court, and all European countries are guided by this standard. The same practice is used in Ukraine and Russia. If we look at the statistics, 90% of requests for pre-trial detention are granted in Russia, in Ukraine — about 60%. In Belarus, the decision is taken by the investigator, which is then authorized by the prosecutor, Chairman of the KGB or Chairman of the Investigative Committee,” Ustsinau said.
Another issue raised in the report is the work of police officers without a uniform, in particular, during peaceful protests, when unmarked people take away protesters. In this connection, the human rights defenders’ recommendation to the state is that all law enforcement officers should wear uniform and distinctive marks when policing peaceful protests.
Siarhei Ustsinau said that the biggest problem is the lack of independent public monitoring of places of unfreedom. The Ministry of Justice has public monitoring commissions, but they are not independent. In addition, the commissions cannot visit prisons without notice, are not allowed to visit pre-trial prisons, detention centers and a number of closed-type institutions, cannot talk with the prisoners in private or receive from them written requests, including complaints of torture. Conditions and procedure for the formation of the commissions are not transparent. Looking at the composition of the commissions, one can see that there are members of the KVN Club (“Club of the Funny and Inventive People”, international humor competition) and the GONGO "Rus", and members of veterans’ organizations, but human rights activists get there very rarely.
For example, Siarhei Ustsinau three times applied for membership in the National Monitoring Commission and received three rejections.
In addition, the human rights activist said that the state still has not agreed to a visit by the UN Special Rapporteur, although it has been discussed for over 10 years and there was originally some progress, but no steps are being made in this direction.
At the same time, investigations of torture reports are extremely slow, probes take months, and failing to open a criminal case in the shortest possible time limits the powers of the investigator. Police officers involved in torture reports are never suspended. This is contrary to international standards, which state that the investigation of torture should be efficient, open, with the rapid initiation of a criminal case, so that the victim of torture and their representatives could have access to the probe file.
Also, the judges do not respond to allegations of torture during the preliminary investigation. Often, they just ignore these statements, although the trial, in accordance with international standards, should be suspended until the torture report is properly investigated.
“In addition, confessions extracted under torture should not be used as evidence, and what we see is that the first evidence obtained under torture forms the basis of the sentence,” Ustsinau said.
Raisa Mikhailouskaya of the Belarusian Documentation Center told about the situation with the legal profession and the facts of enforced disappearances of political opponents of the regime, which have not yet been investigated.
She noted that lawyers have been targeted by the government, which affects the efficiency of the lawyers themselves and reduces the degree of protection of citizens or even deprives them of their right to protection.
The report points to several facts:
- The lawyers who lost their licenses in 2010 for defending ex-presidential candidates and members of their campaign headquarters are still disbarred, which is contrary to the Committee's recommendations given to the state. To date, the lawyers have difficulty in employment.
- In the summer of 2017, the Mahilioŭ Regional Bar and the Minsk City Bar were audited, which resulted in an extraordinary attestation and two lawyers lost their licenses.
Ahead of the audit, there were opinions that the procedure was initiated by the State Security Committee (KGB) and related to the work of individual lawyers in politically motivated cases and their cooperation with human rights defenders. The situation around the Bars, which should be independent from the government, but in practice, are subordinate to the Ministry of Justice, has not changed. The Committee's recommendations in this section have not been met.
Speaking about enforced disappearances, Raisa Mikhailouskaya said that the Belarusian Documentation Center sent to the Committee against Torture a communication, which highlighted the situation of earlier investigations, including access of relatives to the investigation details, and the suspects who may be involved in these crimes.
“A few days ago we learned that the families received another notification of the extension of the preliminary investigation until June 24. They receive these messages every three months, while in May it will be 19 years since the first political disappearance. The State does not comply with the decision of the UN Human Rights Committee, which examined the individual communications of relatives of the disappeared politicians and found a violation of their right to an effective investigation, provision of comprehensive information, as well as compensation for moral and material damage,” Mikhailouskaya said.
“We recommend that the Republic of Belarus joins the Convention on Enforced Disappearances and conducts an effective and prompt investigation into the disappearance of Yury Zakharanka, Anatol Krasouski, Viktar Hanchar and Dzmitry Zavadski, arrange an independent trial and punish the perpetrators,” she added.
Dzmitry Charnykh of the Belarusian Helsinki Committee spoke about the problems in the judicial system.
He noted that the country demonstrates a poor record with the independence of judges.
To date, the appointment of judges is in the hands of the executive. The selection process takes place behind closed doors. Another problem is that judges are appointed for a term of five years, although there is a possibility of a life appointment. However, the criteria are not accurately defined, and the public cannot know why some judges are with no term limit.
A serious problem is also the fact that the President possesses tremendous opportunities for the management of the judicial system and interfering with its activity. He appoints all judges, has the right to lower the judge in the qualifying class, to fire the judge, bring him or her to justice without instituting procedures. The judge cannot appeal the decision of the President that brought him or her to disciplinary responsibility, since there are no specific bodies for this.
The judges’ salaries are not regulated by the law, but by some provisions, which are closed from the public.
“The judges are highly dependent on the executive authorities, which prevents them from functioning in the manner prescribed by the Constitution and the international commitments of Belarus,” Dzmitry Charnykh said.
A large part of the report focuses on the situation in prisons — use of torture and detention conditions, which in themselves may constitute inhumane treatment of prisoners. The human rights defenders’ powers in this area are severely limited because they do not have access to places of detention.
Lawyer of the Human Rights Center "Viasna" Pavel Sapelka stressed that the structure and content of the report are effectively an alternative response to the questions Belarus agreed to answer.
“Every time we present our vision on a particular issue, we are not limited by merely stating the fact of violation of human rights, the fact of cruel, inhuman, degrading treatment and torture, but speak about the recommendations, compliance with which would allow the state to improve the situation in this area,” he said.
Cruel or inhuman treatment, violence by members of law enforcement, brutality in prison — these problems are inherent in any society.
“The difference between a democratic and an authoritarian society is how the authorities react to this or that information and the problems posed. We are forced to note that Belarus has not come to understanding that it is necessary to take measures to investigate each case of cruel, inhuman treatment or torture, any occasion of unjustified use of physical force by law enforcement agencies, which became known. We emphasize that what we demand is not the thoughtless punishment of all those involved in a particular situation, but a proper investigation.
The state does not understand the fact that not every death in prison is a direct guilt of the prison authorities. But if this death is not investigated, then we, representatives of the civil society, have the right to say that the state violated the right to an impartial investigation,” the human rights activist said.
One of the first recommendations from the human rights activists is to publicly and unequivocally condemn the use of all forms of torture, by addressing, in particular, to law enforcement officials, armed forces and prison officers and specifying in these statements a clear warning that any person committing or involved in similar activities bears individual criminal responsibility.
If we are talking about the situation in places of detention, the possibility of public scrutiny of the situation there is severely limited, and in the first place legally. This prompts what the improving of the situation of social control should start with — changing the law.
In addition, it is noted that the practice violates even the few rights of representatives of the public, who are allowed to inspect the places of detention. In particular, the Human Rights Center "Viasna" said about the situation of political prisoner Mikhail Zhamchuzhny, who was not allowed to meet with members of the monitoring commission during their visit to the penal colony, in spite of his formal request. The ban was explained by the fact that Zhamchuzhny was then serving a penalty in a punishment cell.
“Then we have to understand that such special places of detention as punishment cells must be the first in the focus of public scrutiny, instead of the showers and the canteens,” said Pavel Sapelka.
Thus, the human rights activists suggest establishing a fully independent body with the authority to carry out independent and effective visits to prisons without prior warning, ensuring the human rights activists’ membership on the commission, as well as professionals in the medical field who are aware of the relevant international standards and international experts and other representatives of the civil society. Members of this commission should have an opportunity to talk with the inmates in private, and the results of such monitoring, including recommendations should be openly published within a reasonable time.
The activists also say that representatives of the monitoring commissions should be allowed to visit other places of unfreedom, including police stations, detention centers, security service premises, places of detention on administrative charges, insulators of medical, mental health facilities, prisons and others.
There is a set of problems relating to deaths in prisons, which do not always receive an adequate investigation. The human rights activists recommend that prisoners must be provided with the same health-care standards that exist in society, and they should be provided with free access to essential health services.
Pavel Sapelka also raised the issue of the death penalty in Belarus. The report states that during the reporting period, the Republic of Belarus did not take any measures to change the legislation governing the use of the death penalty. Execution procedures remain intact (non-disclosure of the date and time, and the place of burial).
“One of the important points in the report is the fact that in nine cases death sentences were enforced, despite the fact that the death convicts were protected by the interim measures in accordance with the rules of the UN HRC,” Sapelka said.
Of particular concern to the human rights community is the fact that death sentences handed down by the Supreme Court cannot be appealed by the convicts. There are still no changes in the legislation on this matter. Nor are there any official statements about the possibility of ratifying the second optional protocol to the International Covenant on Civil and Political Rights, or about the possibility of a moratorium on the death penalty or its complete abolition.
The human rights activists also offered recommendations to the government on these issues.
Siarhei Drazdouski of the Office on the Rights of Persons with Disabilities noted that the government is not sensitive enough to realize that the state of human health and their special needs are behind the scenes of standards in the prison system. Absence of public scrutiny and evaluation of the prison conditions is one of the important points, because many people need additional health maintenance measures or the establishment of equal conditions for staying in these places.
“Lack of adequate medical support, shortage of doctors for certain types of medical conditions, which would enable to maintain a state of health at the same level, often leads either to death or irreversible deterioration of health,” he said.
The inability to consult the right doctor is associated with the practical impossibility of guaranteeing the prisoners’ right for a timely medical examination in order to determine the possibility of further stay of the person in prison. Sometimes it is aggravated by the negative impact of other areas of law, in particular the Law “On Psychiatric Care”, which provides for arbitrary compulsory treatment.
“This is a separate area in the alternative report: there are documented cases when the detention and confinement of the person to such institutions before trial is not regulated by any procedures, while all the actions do not offer sufficient measures to ensure equal treatment of these persons,” Drazdouski said.
He drew attention to the fact that the possibility of compulsory psychiatric treatment also causes significant criticism because it is used as a punitive method.
The report provides evidence of persons who had not had mental health problems were sent to closed psychiatric institutions, where it is practically impossible to assess their treatment.
In the final part of the event, Viktoryia Fiodarava raised the question of expulsion of foreign nationals to countries where they may be exposed to torture, and cited the case of Murad Amriev who without due process of law was passed by the Belarusian side to Russian law enforcement agencies.
Also, the report includes facts of torture in the army. The Ministry of Defense is invited to take a number of measures to ensure that military units are more open to public scrutiny and safer for the soldiers.
Viktoryia Fiodarava pointed to the fact that in addition to the prohibition on the visit of the UN Special Rapporteur, Belarus has also not made a declaration under Art. 21 and 22 of the Convention against Torture, which authorize the Belarusian citizens to appeal to the Committee against Torture in the event of violation of their rights.