UN HRC publishes concluding observations on Belarus Document

The United Nations Human Rights Committee has published its Concluding observations adopted following the consideration of Belarus’s fifth periodic report on 8 and 9 October.

While welcoming certain positive aspects, including the adoption of the inter-agency action plan on human rights, accession to the Convention on the Right of Persons with Disabilities and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, the Committee says its primary concern is that the State party “continues not to comply with its requests for interim measures, mainly in death penalty cases” and “executes individuals before the Committee concludes its consideration of their cases, arguing that such requests for interim measures are based on the Committee’s Rules of Procedure and are thus not binding.”

The Committee says it is “aware of 10 individuals executed in this way, and is concerned about the fate of 3 other individuals sentenced to death with regard to which interim measures were issued.”

The Committee moreover regrets the State party’s position that Views adopted under the Optional Protocol are merely advisory in nature, and its ensuing failure to implement any of the 104 Views adopted to date that found violations of the Covenant. The Committee also regrets the explicit refusal of the State party to fully cooperate with the Committee in the framework of individual communications.

THEMATIC CONCERNS AND RECOMMENDATIONS

National Human Rights Institution

The State party should establish, without undue delay, an independent national human rights institution with a mandate to protect the full range of human rights that is fully compliant with the Paris Principles, and which functions independently, transparently and effectively to promote and protect human rights.

Anti-discrimination framework

The State should adopt a comprehensive anti-discrimination law. It also should take vigorous steps to eradicate effectively all forms of discrimination and violence on the basis of sexual orientation and gender identity, inter alia by: (a) explicitly listing sexual orientation and gender identity among the prohibited grounds for discrimination in comprehensive anti-discrimination legislation.

Violence against women, including domestic violence

The Committee regrets that Belarus lacks legislation specifically criminalizing domestic violence and marital rape.

Enforced disappearance

The Belarusian authorities are urged to conduct a thorough, credible, and impartial investigation of the fate and whereabouts of Viktar Hanchar, Yury Zakharanka, Dzmitry Zavadski and Anatol Krasouski, who have been identified as victims of enforced disappearance.

Death penalty

The Committee regrets the lack of progress made by the State Party towards the abolition of the death penalty and ratification of the Second Optional Protocol to the Covenant.

The Committee underscores that the death penalty cannot be reconciled with full respect for the right to life, and abolition of the death penalty is both desirable and necessary for the enhancement of human dignity and the progressive development of human rights. In the light of the foregoing, and taking also due account of the temporary nature of the use of the death penalty as enshrined in the

State party’s Constitution, the State party should consider establishing a moratorium on executions as an initial step towards legal abolition of the death penalty and ratification of the Second Optional Protocol to the Covenant, commute all pending death sentences to imprisonment and increase efforts to change public perception about the necessity of maintaining the death penalty. Pending the abolition of the death penalty, the State party should:

(a) Ensure that, if imposed at all, the death penalty is never imposed in violation of the Covenant, including in violation of fair trial guarantees, and provide for an effective right of appeal against death sentences;

Torture and ill-treatment

The Committee regrets that not all acts that constitute torture are covered by the definition and the penalties for torture are not commensurate with the gravity of the crime.

The Committee is also concerned at continued allegations that: (a) law enforcement officers resort to the use of torture and ill-treatment in order to extract confessions from suspects and that such confessions are used as evidence in court; (b) allegations of torture and ill-treatment are often not investigated, and the Investigative Committee lacks the required independence to conduct effective investigations into such allegations; (c) medical units called to document injuries inflicted on prisoners are structurally part of the prison system.

Judicial control of detention

The Committee is concerned that, according to the legislation in force, pretrial detention of persons arrested or detained on a criminal charge may be authorized by a large number of individuals. It recommends that persons arrested or detained on a criminal charge are brought promptly before a judge or other officer authorized by law to exercise judicial power, ordinarily within 48 hours, in order to bring their detention under judicial control.

Preventive detention

The Committee is concerned at reports that administrative detention for the purposes of establishing the identity of a person against whom an administrative case has been opened is reportedly applied overly broadly in an abusive manner. The Committee is particularly concerned that preventive detention of individuals prior to political or social events is allegedly used routinely, especially against human rights defenders and journalists, and that it is formally based on the legal framework of administrative detention.

Such reported cases include the arrest and detention on 25 March 2017 of 57 persons attending a training session in the office of the Human Rights Center “Viasna” on monitoring peaceful assemblies in preparation for a demonstration planned for later that day, as well as the arrest and subsequent detention for 10 days of political opposition leader and former presidential candidate Mikalai Statkevich, among others, on the eve of the Freedom Day marches in March 2018.

Treatment of prisoners

The Committee remains concerned at reports of overcrowding, suicides, and deaths in custody due to lack of proper medical care. The Committee is also concerned at the reported lack of full independence and limited effectiveness of public oversight commissions.

Forced labour

The Committee is concerned that elements of forced labour continue to be enshrined in legislation and in certain policies, the particulars of which include: Presidential Decree No. 18 “On supplementary measures for affording State protection to children in dysfunctional families” and The Law “On Procedure and Conditions of Placement in Occupational Therapy Dispensaries and Conditions in them” requiring compulsory labour from persons subject to involuntary isolation and medical and social rehabilitation, including persons suffering from chronic alcoholism, drug addiction and substance abuse.

Independence of the judiciary and fair trial

The Committee remains concerned that the independence of the judiciary continues to be undermined by the President’s role in, and control over, the selection, appointment, reappointment, promotion and dismissal of judges or prosecutors and the lack of security of tenure of judges, who are appointed initially for a term of five years with the possibility of reappointment for a further term or for indefinite terms.

The Committee is further concerned about: (a) violation of the presumption of innocence for criminal defendants who continue to be held in glass or metal cages in court proceedings, and are sometimes required to enter and leave the courtroom shackled and in a bent position; (b) the reported failure to observe fair-trial guarantees, including the right to a public hearing, access to counsel and respect for the presumption of innocence, during the trial of opposition candidates and activists relating to the elections of 2006 and 2010.

Independence of the legal profession and harassment of lawyers

The Committee is concerned at continuous reports of pressure on, and harassment of lawyers, particularly those taking on politically sensitive cases, including though the use of the certification procedure by the lawyers’ certification commission that may issue negative assessment of lawyers’ professional knowledge, and regrets the absence of information on the availability of effective appeals against the ensuing revocation of licences. The Committee is also concerned about extraordinary inspections reportedly conducted on more than twenty lawyers in September 2017, affecting especially lawyers of the Minsk City Bar association, and about reports that the relation between the Bar Associations and the Ministry of Justice undermines the independence of legal profession.

Right to privacy

The Committee is concerned at reports that legislation provides for broad powers of surveillance and that the interception of all electronic communications, including through the system of operative investigative measures (SORM) that allows remote access to all user communications without notifying providers, does not afford sufficient safeguards against arbitrary interference with the privacy of individuals.

Freedom of religion

The State party should guarantee the effective exercise of the freedom of religion in law and in practice, including by repealing the requirement of mandatory state registration of religious communities.

Freedom of expression

The State party should take all measures necessary to guarantee the full enjoyment of the freedom of expression by everyone, including by:

(a) repealing or revising certain restrictive laws: procedure for registration as official online media outlets and the obligation for news portals to install mandatory identification of website visitors; the power of the executive to shut down media outlets and the extensive;

(b) abandoning practice of using warnings to media outlets;

(c) reviewing the broadly formulated provision of article 38 of Mass Media Act defining information the distribution of which is forbidden among mass media;

(d) considering decriminalizing defamation and, in any case, resort to criminal law only in the most serious of cases (laws prohibiting information harming the “honor and dignity” of highranking officials, including criminal responsibility for defamation of the President of Belarus (art. 367 of the Criminal Code), and defamation of the Republic of Belarus);

(e) Lifting all other undue restrictions on the exercise of freedom of expression (e.g. reported harassment and persecution of journalists working for foreign, unaccredited news outlets).

Freedom of peaceful assembly

The Committee is concerned that the State party regulates peaceful assembly in a manner than undermines the exercise of this right. It is particularly concerned about such undue restrictions as:

(a) Broad authorization requirements for holding all types of protests; the stringent conditions for granting authorization, including undertakings to arrange for public order and safety, provision of medical and cleaning services; the limitations on the conduct of assemblies, especially restricting them to certain permissible locations only, limiting the size of assemblies organized by physical persons to less than 1,000 persons, and banning spontaneous assemblies.

(b) Disproportionate enforcement of criminal and administrative sanctions against persons organizing, calling for, or participating in, mass events (e.g. the detention and criminal conviction of Dzmitry Paliyenka in 2016 following his participation in a peaceful protest on 29 April 2016 against restrictions on cyclists);

(c) excessive use of police force, mass arrests, detentions, and sanctioning for administrative offences in connection with the Freedom Day events on 25 March 2017, when police allegedly detained at least 700 persons, including about 100 journalists and 60 human rights activists, with at least 177 protestors reportedly found in violation of the Code of Administrative Offences in proceedings lacking fair trial guarantees.

The Committee regrets that the restrictions imposed on assemblies and gatherings are used to deny the political opposition the ability to meaningfully participate in public life and to influence public opinion.

The State party should revise its laws, regulations and practices, including the Mass Events Act, with a view to guaranteeing the full enjoyment of the right to freedom of assembly both in law and in practice.

Freedom of association

The Committee is concerned about the restrictive and disproportionate rules on registration of public associations and political parties – requiring inter alia relatively high numbers of founders, geographical diversity, high fees for registering non-profit associations and limits on the use of residential premises as the official address – that result in inability of many associations, including most human rights NGOs, to meet the registration requirements. It is further concerned about the criminalization of organization or participation in the activities of unregistered public associations under article 193-1 of the Criminal Code and, while noting plans to repeal that article and replace it by an administrative offence imposed by a non-judicial official, the Committee still raises concern about the necessity and proportionality of such measure.

The Committee mentions the denial of registration to public associations such as "Gender Partnership" and "Gender Center "Ruzha" because of their statutory purpose "to counteract gender discrimination", the Human Rights Center Viasna, PACT, and Lambda Human Rights Centre.

It also condemns repeated denial of registration to new political parties with no such parties registered since 2000, restrictive regulations on foreign funding, and obstacles to registering trade unions.

Participation in public affairs

The Committee remains concerned about reports of persecution, intimidation harassment and detention of opposition political candidates, including in connection with the 2010 elections; the respect for electoral rights, including the expansive interpretation of criminal sanctions for such acts as demonstrations and protests related to the electoral process; and the lack of transparency in vote counting.