Pre-trial detention: measure of restraint or punishment?

The law enforcement agencies of Belarus have drafted a bill “On Making Addenda and Amendments to the Criminal Code, the Code of Criminal Procedures, and the Penal Code of Belarus, as well as the Code of Administrative Offences”, said Mrs. Natallia Andreyeva, head of the department of procedural control over the investigation of crimes against property of the Investigative Committee of Belarus, at a briefing with a BelTA news agency reporter.

The importance and timeliness of the bill is beyond dispute. It is however a pity that the legislator seems to have ignored the humanity of the issue; when passing the new Criminal and Criminal Procedure Codes some twelve years ago, the Parliament then spawned thousands of “criminals”... But it is not to this that I would like to draw attention.

The same news agency quoted the representative of the Investigative Committee: “We want to ensure that detention were an exceptional measure of punishment.”

I do not know who was wrong – head of the procedural control department or the reporter when quoting her – but the sincerity of the slip of the tongue deserves attention.

N.B. A Freudian slip, also called parapraxis, is an error in speech, memory, or physical action that is interpreted as occurring due to the interference of some unconscious, subdued wish, conflict, or train of thought (Wikipedia).

Perhaps, any practitioner in the field of criminal law understands that in today’s Belarus detention is a measure of punishment amounting to torture. Or just torture.

The position on the case, as a rule, determines the use of preventive measures, and the detention in the case of non-recognition of guilt is a usual consequence of attempts to protect one’s rights.

The conditions of detention in the facilities of the Department of Corrections (DC) and the Ministry of the Interior are now no secret. But the authorities do not conceal them, considering the reference to a lack of funding and the “natural” overcrowding in detention facilities a sufficient ground to justify violations of the Constitution and law in Belarus, as well as the country’s international obligations. The cells in detention center No. 1 in Minsk sometimes have to “accommodate” twice the number of beds; the prisoners sleep, smoke, eat, and ease themselves in the same room...

The authorities have their “secrets” – this is how a prisoner in custody is treated by the facility’s personnel and security forces, investigators and “stool pigeons”. The content of the first known sentence to a “stool pigeon” who tortured his cellmates, as it was proven, at the direction of the investigator, is still a mystery. The arbitrariness of security forces officers and personnel with respect to prisoners of the KGB jail in December 2010 - March 2011 is not even being investigated. Even the victims prefer not to remember the security forces’ violent raids in the cells of the DC’s facilities made with “education and training purpose”.

In accordance with the Code of Criminal Procedures, preventive measures can be applied by a body conducting the criminal proceedings only when the evidence collected in the criminal case constitutes a reasonable basis for believing that the suspect or the accused may escape from the body of criminal prosecution and trial; to hinder the preliminary investigation of the criminal case or its consideration by a court, including through the exertion of illegal influence on parties involved in the criminal process; conceal or falsify materials relevant to the case; fail to appear without valid reasons upon summons by the body conducting criminal proceedings; commit a socially dangerous act under the criminal law; resist execution of the sentence. When deciding on the need for preventive measures against the suspect or the accused it is the nature of the suspicion or allegations, the identity of the suspect or the accused, their age and health status, occupation, marital and property status, the presence of permanent residence and other circumstances that must be taken into account. The custody as a preventive measure only applies to a person suspected or accused of committing a crime for which the law prescribes a penalty of imprisonment for a term exceeding two years. The persons suspected or accused of committing a grave or especially grave crime, the measure of restraint in the form of imprisonment can be applied based on the severity of the crime alone.

According to a general rule, during the preliminary investigation the measure of restraint in the form of imprisonment can be applied by prosecutor or his deputy, or the chairman of the Investigative Committee of the Republic of Belarus, Chairman of the State Security Committee of the Republic of Belarus or persons performing their duties, or a body of inquiry or an investigator with the consent of the prosecutor or his deputy, and at the stage of the proceedings – by the court.

In its Report on the monitoring of trials in Belarus (March - July 2011),the OSCE’s Office for Democratic Institutions and Human Rights pointed out that Belarus had violated the provisions of Article 9 (3) of the International Covenant on Civil and Political Rights. “The ICCPR makes it clear that the decision on detention should be taken by “a judge or other officer authorized by law to exercise judicial power”.

The right to liberty is a fundamental human right and is dependent on observance of the right to a fair trial, which is a guarantee against illegal and arbitrary restrictions. It is highly important that the authority in charge of taking a decision on detention, on the one hand, does not depend on the organs of criminal prosecution or investigation, and on the other – on the executive interference. The court must take into account all the factual information about this particular defendant. Detention can under no circumstances be regarded as a standard measure applied to a person suspected of committing a criminal offense: it should be only resorted to the cases when there is a real danger that the accused might abscond, destroy evidence or to re-break the law.

The ODIHR recommended the Belarusian authorities to amend the Code of Criminal Procedures in order to make the issuance of sanctions for arrest the prerogative of the judges, not prosecutors; to amend the provisions of the CCP, which would ensure that decisions on detention were based on reasonable suspicion that it is this very person who committed the offense and on an individual assessment of the possibility that the detainee may abscond, destroy evidence, influence witnesses or repeatedly violate the law (it is necessary to a decision on the detention of a person contained a specific explanation of the reasons for such findings); to reverse the provisions of the Code of Criminal Procedures, which permit detention based solely on the severity of the charges.

These amendments, of course, should apply to all persons subject to criminal prosecution, not only to so called “economic defendants”, while work to improve the law, including the criminal law and the law of criminal procedures, should not look like patching holes on the urgent demand of the head of the executive power.
 
Pavel Sapelka