Belarus (translates as White Russia) is located in Eastern Europe between Russia, Ukraine, Poland, Lithuania and Latvia. It is the smallest of three Slavic republics (Belarus, Ukraine and Russia) that constituted the Soviet Union. Belarus first time declared independence as e Belarusian People’s Republic in March of 1918. However, the statehood lasted until the 1st of January 1919, transforming into Belarusian Soviet Socialist Republic as part of the Soviet Union.
Belarus declared independence in 1991 following the collapse of the Soviet Union. In the same year, the Republic of Belarus was officially formalised through constitutional law on the 19th of September.
In 1994 the country’s constitution was adopted and Lukashenko was elected as the first president of the republic who has been at the office since then.
Type of Legal System
Belarus practices the civil law system. In brief, it means that the main source of the legal system is the constitution, written statutes and other legal codes, which sanction and regulate, among other things, the jurisdiction of the courts, legal procedures and sentencing.
The judicial system in Belarus is ruled by the constitutional court and general or universal jurisdiction courts. The constitutional court ensures the conformity of the laws, statutes and legislations with the constitution while the universal jurisdiction courts deal with civil, criminal, administrative and economic disputes.
Six constitutional court judges are appointed directly by the president of the country and another six by the Council of the Republic.
The universal courts consist of the Supreme Court, oblast or regional courts, Minsk city court, town courts, economic courts for Minsk and for “oblasts” (regions).
The legal aid situation in Belarus
Under article 62 of the country’s constitution, everyone has the right to legal assistance. The same article also mentions that no one can be denied legal assistance and it shall be provided at the expense of the state ‘in the instances specified by law’.
The Belarusian Republican Bar Association provides free online legal advice and initial assistance available in different languages: Belorussian, Russian, English, German, French, Polish and Spanish.
There are also several NGOs that offer free legal assistance, mainly in Eastern Europe, e. g. Human Rights House Foundation (https://humanrightshouse.org).
i. National Sources of defendant’s rights
The constitution of the country ‘guarantees and respect of human and civil rights.'
Article 2 of the constitution protects the citizens’ individual rights and freedoms and declares them as ‘the supreme value and goal of the society and the state’.
Article 22 pronounces everyone equal before the law without discrimination.
According to article 23, these rights can be restricted in case of ‘national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons’.
The following article of the Constitution states that everyone has the right to life and the republic shall protect the life of every individual against any unlawful infringements’. However, capital punishment may be still executed in accordance with the law for particularly grave crimes.
Article 25 guarantees to safeguard the personal liberty, inviolability and dignity of the individuals. In case of detention of a person, the article provides the right to a judicial review to challenge the legality of the arrest or detention. It categorically states that ‘No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment…
Article 26 acknowledges the presumption of innocence.
Article 27 protects the rights of individuals from self-incrimination as well as against their family members or close relatives.
The Code of Penal Procedure of the Republic of Belarus provides a more detailed explanation of the rights of individuals. Article 1, paragraph 4. recognises the obligations under the international treaties stating that ‘The international agreements of the Republic of Belarus determining rights and freedoms of man and citizen in the criminal procedure are applied along with this Code’.
ii. International Sources of Defendant’s Rights
Belarus ratified a number of international treaties that protect among other things, the human and civil rights of all individuals within the jurisdiction.
CAT – Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment; CCPR – International Covenant on Civil and Political Rights; CEDAW – Convention on the Elimination of All Forms of Discrimination against Women; CERD – International Convention on the Elimination of All Forms of Racial Discrimination; CESCR – International Covenant on Economic, Social and Cultural Rights; CRC – Convention on the Rights of the Child; CRPD – Convention on the Rights of Persons with Disabilities.
There are also international treaties that Belarus is not a member-state or have not yet ratified, e. g. European Convention of Human Rights, CED – Convention for the Protection of All Persons from Enforced Disappearance, including a number of the optional protocols of the UN treaties.
2. Rights of the Accused
Right Against Unlawful Arrests, Searches and Seizures
The Constitution, article 25: The State shall safeguard personal liberty, inviolability and dignity. The restriction or denial of personal liberty is possible in the instances and under the procedure specified by law.
The Criminal Procedure Code, articles 108, 109, 208, 211 define that the police must have sufficient information to conduct a search and sufficient factual evidence for the arrest of a person.
Right Against Unlawful Detention The Constitution, article 25: A person who has been taken into custody shall have the right to a judicial review of the legality of his detention or arrest.
The Criminal Code, art. 397 explains the legal liabilities for intentional unlawful arrests and detentions.
Right Not to be Tortured or Ill-Treated
The Constitution, article 25: No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment, or be subjected to medical or other experiments without his/her consent.
The Criminal Procedure Code, article 11, para. 3.: No one participating in the criminal proceedings shall be subjected to violence, other cruel or degrading treatment of human dignity, as well as to be subjected to medical and other experiments without his consent.
Right to Medical Care
The Constitution, art. 8: The Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith.
And as mentioned earlier, the Criminal Procedure Code, art.1, para. 4. recognises the obligations under the international treaties stating.
Belarus is a member-state of the International Covenant on Economic, Social and Cultural Rights, which states in article 12, paras. 1. and 2. d): 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: d) The creation of conditions that would assure all medical service and medical attention in the event of sickness.
The Criminal Code, art. 161, criminalises the failure to provide medical care to a sick person.
The Criminal Procedure Code, art.1321 recognises the right of suspects or accused (who have been ordered not to leave the state) to receive medical treatment outside of Belarus if the appropriate medical care cannot be provided within the country.
Right to be Informed of Charges
The Criminal Procedure Code, art. 41, para. 2. provides a list of rights of a suspect that must be met, inter alia, being informed what s/he is suspected of, being presented with a copy of the order for initiation of a criminal case, including in case of the preventive measures.
Para. 2. of art. 42, similarly lists the rights of an accused, inter alia, being informed what s/he is suspected of and charged with, being presented with a copy of the order for initiation of a criminal case, including in case of the preventing measures.
The Criminal Code, art 3, paras. 2., 5.: No one can be found guilty of committing a crime and subjected to criminal liability except by a court, whose judgment must be in accordance with the penal code of the republic.
Right to Presumption of Innocence
The Constitution, art. 26: No one may be found guilty of a crime unless his guilt is proven under the procedure specified by law and established by a court sentence that has come into legal force. Accused persons shall not be required to prove their innocence.
The Criminal Procedure Code, art. 16: 1. A person accused of committing a crime shall be considered innocent until his guilt in committing a crime is proved in the manner prescribed by this Code and is established by a court verdict that has entered into legal force.
Right Against Self-Incrimination
The Constitution, art. 27: No one shall be compelled to be a witness against oneself, members of his family or close relatives. Evidence obtained in violation of the law shall have no legal force.
The Criminal Procedure Code, art. 10 (Ensuring the protection of the rights and freedoms of citizens): 4. No one should be forced to give evidence and explanations against himself, his family members, close relatives.
Right to Counsel and Effective Assistance
The Criminal Procedure Code, art. 17: 2. The body of criminal prosecution and the court are obliged to explain to a suspect/accused their rights and to ensure the possibility of defending themselves by means and methods established by law, as well as to ensure the protection of their personal and property rights.
The Criminal Procedure Code articles 41 and 43 paras. 1., rights of a suspect and an accused: A suspect/accused has the right to defence. The prosecuting authority is obliged to ensure that a suspect/accused is able to exercise their right of defence by all legal means and methods.
Right to a Present a Defence The Criminal Procedure Code, art. 17: 1. The suspect, the accused have the right to defence. They can exercise this right both personally and with the help of a defence lawyer in the manner prescribed by this Code.
Right to Due Process The Criminal Procedure Code, art. 7: 1. The objectives of the criminal process are to protect the individual, his rights and freedoms, the interests of society and the state by promptly and fully investigating crimes, socially dangerous acts of an insane individual, exposing and prosecuting the perpetrators; ensuring that the law is correctly applied so that everyone who committed a crime is punished in accordance with the law and no innocent person is prosecuted or convicted.
Art. 8: 1. The court, the body of criminal prosecution during the proceedings on the materials and the criminal case shall be obliged to precisely fulfil the requirements of this Code. 2. Violation of the law during the proceedings on the materials and the criminal case is unacceptable and entails the legal liability and annulment of legal decisions. 3. Evidence obtained in violation of the procedure established by this Code has no legal force and cannot be the basis for criminal charges and sentencing.
Right to Equal Protection of the Laws The Criminal Procedure Code, article 20. guarantees equality of citizens before the law and equality of protection of their rights and legal interests.
Right to Bail The Criminal Procedure Code, art. 124 (Bail), explains, inter alia, the right to bail of suspects and accused, however in para. 1. it states that: … The bail shall not be applied to persons suspected or accused of committing a grave or especially grave violent crimes.
Right Against Ex Post Facto Prosecution Constitution art 104: A law shall have no retroactive effect unless it extenuates or revokes the liability of citizens.
Criminal Code, art. 9 also confirms the illegality of post facto prosecution.
Right Against Double Jeopardy Criminal Code, art. 3: 6. … no one shall be tried twice for the same crime.
Right to a Fair Trial i. General
See above ‘i. National Sources of defendant’s rights’, for general information about right to a fair trial.
The Criminal Procedure Code, art. 9: 1. Justice in criminal cases in the Republic of Belarus is carried out only by the court. 2. No one shall be found guilty of committing a crime, as well as subjected to criminal punishment other than by a court verdict and in accordance with the law.
The Criminal Procedure Code, art. 31 (The Court): 1. The court, being an organ of judicial power, administers justice in criminal cases and ensures their correct and legal resolution. 2. A criminal case must be considered by the court on its merits only in accordance with the legal procedure established by this Code, and on the basis of: 1) compliance with the jurisdiction of specific criminal cases; 2) the formation of a legal, independent, competent and impartial composition of the court; 3) recusal of judges; 4) separation of the function of administering justice from the functions of prosecution and defence.
Article 23 declares that criminal court proceedings are open to the public. In para. 2., it underlines the exceptional circumstances for a closed trial.
The following article 24, acknowledges the equality of both sides (prosecution and defence) and assigns liability on the prosecution to prove the guilt of an accused (see article (102, para. 2.).
Article 294 (Participation of the accused in the trial) explains the exceptional circumstances when the court proceedings of a criminal case can proceed without the presence of an accused.
ii. Right to a Trial by Jury
The Criminal Procedure Code, art. 32 (the Composition of the Court): 1. Criminal cases in the court of the first instance are considered individually or by the court collegium, which is composed of a judge and two people's jurors. 3. The court collegium considers cases of: 1) crimes for which punishment is provided for by the criminal law over ten years in prison or the death penalty; 2) juvenile crimes.
iii. Right to a Speedy Trial The Criminal Procedure Code, art. 282: The trial of a criminal case shall commence in a court no later than fourteen days from the moment of its authorisation by a judge, and in cases of particular complexity – no later than thirty days.
iv. Right to an Impartial Judge See above, the Criminal Procedure Code, art. 31 (The Court), para. 2. 2) and 3).
Right to Language Interpretation The Criminal Procedure Code, art. 43 (Rights and responsibilities of an accused), para. 2. (11) that accused has the right to:
use his/her native language or services of an interpreter.
Article 300: 1. The criminal session of the court of the first instance takes place with the participation of an interpreter in the cases and in the procedural order in accordance with articles 21 and 201 of this Code. 2. If the interpreter fails to appear and it is impossible to replace him, the proceedings in the criminal case shall be postponed.
Right to Habeas Corpus The Criminal Procedure Code, art. 43 (Rights and responsibilities of an accused), para. 2. 15) that accused has the right to: appeal to a court against detention, house arrest or forced placement in a forensic psychiatric institution for expertise.
Capital Punishment The Constitution, article 23 states that everyone has the right to life and the republic shall protect the life of every individual against any unlawful infringements’. However, capital punishment may be still executed in accordance with the law for, particularly grave crimes.
Criminal Procedure Code, art. 59: 1. As an exceptional measure of punishment, the death penalty is executed for certain especially grave crimes involving intentional deprivation of a person's life under aggravating circumstances. 2. The following persons may not be given a death sentence verdict: 1) persons who have committed crimes under the age of eighteen; 2) women; 3) men who have reached sixty-five years of age by the day of the sentence. Right to Appeal. 3. The death penalty can be pardoned and commuted to life imprisonment.
Right to Appeal Criminal Procedure Code, art. 370 explains the right to appeal and which parties have the right to appeal against a judgement. 1. The accused, the defence lawyer and legal representative, the representative of the deceased accused, as well as the victim, the private prosecutor and (or) their representatives, have the right to appeal against the judgment of the first instance court, which has not entered into legal force.
3. Rights of [Defence] Counsel
Right to Provide Representation The Criminal Procedure Code, article 48 lists the rights of a counsel of an accused, e. g. the defence counsel has the right to be present at the presentation of charges; take part during an interrogation of a suspect or accused.
Right to Information The Criminal Procedure Code, article 48: 1. The counsel has rights to: 1) know what the person, whose interests he is defending, is suspected or accused of.
Right of Access to the Client and Right to Confidential Communication The Criminal Procedure Code, article 48: 1. The counsel has right to: 2) communicate freely with his/her client in private and confidentially without limiting the number and duration of conversations.
4. Means of Protecting or Enforcing Rights
Exclusionary Rule and Nullity of Procedure According to the Criminal Procedure Code, article 8, para. 3., the evidence does not bear legal power if it has not been obtained lawfully.
Article 105 further clarifies the validity requirements for evidence. It reiterates (para. 4.) that evidence collected through violation of the constitutional and rights of freedom are inadmissible.
Article 303 determines the conditions of termination of criminal proceedings in a court session if there are, inter alia, serious procedural errors or violations involved.
Article 390 explains when the verdict is recognised as inconsistent with the provided evidence: 1) not based on presented evidence to the court; 2), the court did not consider the circumstances that could significantly influence its conclusions; 3) in the presence of conflicting evidence, the court privileged one evidence over the other without clarifying the grounds of its decision.
The following article (391) lists the procedural circumstances when a verdict is subject to cancellation.
Petitions (or Motions) Articles 135, 136, 137 state that persons (or parties) participating in the criminal proceedings are eligible to file the petition at any stage, including to resubmit one in case of its dismissal. The articles also determine the terms and times of the petition.
Contempt of the Court The Criminal Code article 189 defines the insult and article 391 says that insulting a judge or people's juror in connection with the administration of justice – is punished with a fine, or correctional labour for a term of up to two years, or arrest, or restraint of liberty for a term of up to three years.
The Criminal Procedure Code, article 307, explains measures that can be taken against a violation of a court order during proceedings.
The Criminal Procedure Code, articles 52 to 59 explain, inter alia, the rights and responsibilities of a civil plaintiff and a civil defendant.
Chapter 17 (articles 148 to 157 of the same Code) provides rules and guidance for a civil lawsuit in criminal proceedings.
Chapter 48 (articles 460 to 468) talks about indemnification caused by a governmental body, leading criminal proceedings.
'5. Pretrial Procedures
Article 88 (Criminal Procedure Code) states that evidence is factual information obtained or provided lawfully. Sources of evidence about a criminal act can be a suspect, accused, witness, victim, material evidence, images, video-audio recordings and other things.
Following articles: 91, 92, 93, 94 clarify that evidence may be given in a verbal or a written form. Article 94, para. 2., explains that a witness must be able to disclose a source or sources of the evidence for its validity and lawfulness.
ii. Arrest, Search and Seizure Laws
Right to Search According to articles 208 and 211 (the Criminal Procedure Code), the police has a right to conduct a search of a person or place if there is sufficient information to believe that an instrument of a crime or any potential evidence can be extracted.
Right to Arrest The Criminal Procedure Code, article 108, para 1. explains, inter alia, on what grounds and which force can make an arrest.
Competent law enforcement representatives can arrest a suspect in situations when there is sufficient witness or factual evidence. However, the same article states that in the absence of factual evidence, a suspect still may be arrested as stipulated in Chapter 13 Preventive Measures, if there are sufficient grounds to believe that the individual would go into hiding. In this instance, law enforcement agents must have an arrest warrant issued by one of the competent investigative or ministerial departments of the Republic of Belarus (see article 108 for the detailed list).
Article 109 states that every citizen has the right to use force to capture or arrest the suspect for a crime, during or after committing it. A citizen can also search for a suspected weapon to seize it.
Pretrial Detention The Criminal Procedure Code, article 127, during preliminary investigations accused may be kept in custody for 2 months and over 2 years under preventive measures. Paragraphs 3. to 5. determine the time-frame and authorisation requirements for prolonged custodial detention of an accused. Following Para. 6., protects against further detention, stating that it is prohibited during the preliminary investigation, and the decision of the prosecutor to extend the period of detention in custody may be appealed in court under article 143 of this Code.
Enforcing the Rules (Protection form Illegal Police Procedures) See above article 25 of the Constitution for a citizen’s right to appeal against the arrest or detention, and article 397 of the Criminal Code for the criminal liability against the intentional unlawful arrest and detention.
Also, see above paragraphs: ‘Exclusionary Rule and Nullity of Procedure’ and 'Right to Habeas Corpus'.
iii. Lineups and other identification procedures
The Criminal Procedure Code, 224 explains the procedure for the presentation of subjects and objects for identification. E. g. 1. A person is presented for identification together with other persons, if possible, similar in appearance to the identifiable person with no less than three photographs of other persons, if possible, similar in appearance to the identifiable person. 3. In circumstances when the presentation of a person for identification is unavailable, identification may be executed by the photograph, presented simultaneously with no less than three photographs of other persons, if possible, similar in appearance to the identifiable person. 6. If a victim or a witness is the identifying person, before identification they are warned of criminal liability for refusal or evasion to testify and for knowingly giving false testimony, about which a note is made in the protocol.
iv. Interrogation Before Formal Charge in Court - 41, para 2. 5); 43, para 2. 4) According to the Criminal Procedure Code, article 215, para. 1., the interrogation is carried out at the place of the preliminary investigation. An investigator or a person conducting the inquiry, has the right, if necessary, to conduct an interrogation of a suspect at their location.
Article 216 explains procedures for summoning a person or suspect for interrogation. The following articles 217-224, cover procedural formalities of interrogation, confrontation and identification of suspects, including particularities involving minors.
After Defendant is formally charged Criminal Procedure Code, article 244 explains the procedures of the interrogation of the accused. Para. 1. states that the investigator is obliged to interrogate the accused immediately after the charge has been brought against him. If the accused refuses to testify about this, a note should be made in the protocol of interrogation. Para. 4. provides that if there are more than one accused they must be interrogated separately. And according to para. 5. the investigator, at the beginning of the interrogation must learn whether the accused pleads guilty fully or partially.
Enforcing the Rules (procedures to protect against illegal interrogation) The Criminal Procedure Code (art. 215, para. 2.). The interrogation cannot last continuously for more than 4 hours.
Article 217, para. 2., obliges the investigating body to explain to a person summoned for interrogation, their rights and obligations, including the right to refuse to testify against themselves, their family members and close relatives, about which a note is made in the protocol. A person summoned for interrogation as a victim or witness is warned of criminal liability for refusing or evading to testify and for knowingly giving false testimony.
6. Court Procedures
i. Charging Instrument
The Criminal Procedure Code, articles 240-245 explain the process and procedures that must be followed in order to charge a suspect officially. E. g. article 241 states that the charging resolution must include, inter alia, a place and time of its production; name of a person who produced it; name and birth of the accused; description of the criminal charges, place and time of the crime, including the criminal law (clause, part, article), covering the accountability for the given crime.
Article 240, para. 3. emphasises that the presence of a defence lawyer is mandatory (in accordance with article 45) during the official charge of a suspect.
According to article 255: 1. Having determined that all investigative actions are completed and sufficient evidence is collected to pass a criminal case to the prosecutor for referral to the court – the investigator notifies the accused, his legal representative, defence lawyer, if he is participating in the case, and explains to them their right to familiarise with the criminal case both personally and with the help of a defence attorney. 4. The investigator sets the time when the involved parties can appear for familiarisation with the case. 5. The criminal case must be presented to the accused for familiarisation no later than one month before the expiry of the custodial time limit established by paragraph 4. of Article 127 of this Code.
Article 262: 1. After the investigator signs the decree on the transfer of the criminal case to the prosecutor for referral to the court, the case shall be sent to the supervising prosecutor within 24 hours.
ii. Procedural and Jurisdictional Requirements
The Criminal Procedure Code, article 264, para. 1. explains that the prosecution has to make one of the following decisions on the submitted criminal case within a period of no more than five days, and in complex cases – no more than fifteen days: a) transfer the case to the court; b) terminate the preliminary investigation against all the accused; c) or return the case, with instructions, to the investigator.
The Criminal Procedure Code, article 276, para. 1., presents the obligations for a judge to conduct further assessment of the submitted case before passing one of the following orders, inter alia, a) on the suspension of the proceedings; b) on the approval of a preliminary court session; c) on the appointment of a trial…. Para. 3., determines the time-frame of the decision: which must be made before 14 days expire, and a month for the cases within the jurisdiction of the supreme court.
iii. Preliminary Hearing The Criminal Procedure Code, article 2771 establishes the grounds for a judge to appoint preliminary trial meetings: para. 1., at the request of the parties or under his/her own initiative; para. 2., the preliminary hearing proceeds if there are grounds for returning the case to the prosecutor or terminating the criminal proceedings.
The Criminal Procedure Code, article 2802: 1. A preliminary court session is conducted by a judge with the participation of the prosecutor, the accused, and also his/her legal representatives….
Article 2804 (Types of decisions taken by a judge based on the results of a preliminary court session): 1. Based on the results of the preliminary court session, the judge makes one of the following decisions: 1) return of the criminal case to the prosecutor; 2) termination of criminal proceedings; 3) appointment of a trial.
iv. Pre-Trial Motions For general guidance on petitions see above articles 135, 136,137 (The Criminal Procedure Code). Articles 8, 88, 105 of the same code rule the evidence as inadmissible if it is not obtained in conformity with the law of the country. Also, article 259 explains the pretrial submission of petitions and their resolutions. Paragraph 3. states that the investigator does not have the right to refuse acceptance of the petition compliant with article 89. In case of refusal of the petition, the defence can appeal to the prosecution (para. 7., article 89).
v. Discovery See article 255 above, and articles 256 to 258 (the Criminal procedure code) for a legal obligation to present a criminal case to the involved parties, and rights for familiarisation with it and the time frame.
There is no information found in the Criminal Procedure Code about the obligation of the defence to share the evidence with the prosecution.
i. Nature of Trial
The Criminal Procedure Code, article 287, guarantees open criminal court trial, and article 292 provides equal rights to all parties of the trial: the state or private prosecutor, the accused, his/her defence lawyer and legal representative, the representative of the deceased, as well as the victim, civil claimant, civil defendant and their representatives.
Article 325: 1. The prosecution presents evidence first. The public prosecutor presents to the court evidence that, in their opinion, confirms the guilt of the accused.
As mentioned above (in subparagraph, ‘ii. Right to a Trial by Jury’), the criminal cases in the court of the first instance are considered individually or by the court collegium (composed of a judge and two people's jurors) when the punishment involves over ten years imprisonment or the death penalty.
Briefly stated, a presiding judge in Belarus, (and generally, in other civil law system countries) is more actively engaged in the court proceedings in comparison to the judges of the common law system.
ii. Defendant The Criminal Procedure Code, article 294 states that participation of an accused in the trial is obligatory. However, under exceptional circumstances, a trial can proceed without an accused, e. g. if the accused is outside the borders of the Republic of Belarus.
Article 324: 1. The trial begins with the announcement by the public prosecutor of the charge brought against the person (except for the instances envisaged in part 2 of article 455 of this Code, and in cases of private prosecution). 2. The presiding judge shall question the accused whether he/she understands the accusation, explain the essence of the accusation and clarify his/her position towards it.
Article 325: 3. The accused, with the permission of the presiding judge, has the right to testify at any time during the trial.
Article 327 provides rules and guidelines for the interrogation of an accused during the court proceedings. Para. 1., the presiding judge explains that if the accused agrees to testify: a) it can be used against him/her; b) the accused shall be questioned by the prosecution first, then by the defence, and finally by the judge. However, the clarifying questions can be asked by the court at any time during the interrogation by either side (para. 2.). As stated in the following para. 3., interrogation of one of the accused in the absence of another, is allowed at the request of the parties or under the initiative of the court. In this case, the presiding judge informs the returned accused about the testimony, given in his/her absence and grants the right to ask questions to the accused who was interrogated in his absence.
Article 246, para. 1. acknowledges the right of the last word of an accused at the end of the court proceedings, during which no questions are allowed to be posed to the accused. The court cannot provide time limitation for the last word, however, can interrupt the accused if the speech deviates from the case (para. 2.).
iii. Defence Lawyers
The Criminal Procedure Code, articles 44-48 define a defence lawyer and his rights during the criminal case. Article 44, para. 2. states that lawyers who are citizens of Belarus or citizens of other states in accordance with international treaties of the Republic of Belarus participate as defenders in criminal proceedings. According to para. 3., at the request of the accused, and by the approval of the court, one of the close relatives or legal representatives of the accused may be admitted to the court as a defence lawyer.
Article 48 lists the rights of a defence lawyer, e. g.: para. 1. 1), to know the charges; 2) to communicate freely with an accused; 9) to present the evidence, 10) to collect relevant information under own initiative; 12) participate in the court proceedings, including in the examination of evidence, as well as in the sessions of the courts of appeal, supervisory instances and in the proceedings on a criminal case on newly discovered circumstances; 13) to demand inclusion of notes in the protocol of the court proceedings; 14) to address the court and make remarks during the court hearings; 16) to file complaints against the actions and decisions of the body conducting the criminal proceedings, including appealing against the verdict or other final decision of the court.
Articles 295 (Participation of a defence lawyer in court proceedings) states that during the court proceedings, a defence lawyer presents evidence, justifies his/her argument and reasoning (para. 1.). And the following para. 2. says that if a defence lawyer is absent at the court hearing, it is postponed.
iv. Expert Witnesses The Criminal Procedure Code, article 61: 1. An expert is a person who has no interest in the outcome of a criminal case, who has special knowledge in science, technology, art, craft and other fields of activity, who is entrusted with the examination.
Article 334: 1. At the request of the parties or under the own initiative, the court has the right to appoint an expert examination. The examination is carried out by experts who gave their opinion during the pre-trial proceedings, or other experts appointed by the court.
Article 335: 1. After the announcement of the expert's conclusion, given by him in the course of pre-trial proceedings or at the court session, the expert may be interrogated for explanation or clarification of the conclusion. 2. Questions to the expert first asked by the party at whose request the expert examination was appointed. The court has the right to ask the expert questions at any time during the interrogation.
The Criminal procedure code, art. 32 (the Composition of the Court): 1. Criminal cases in the court of the first instance are considered individually or by the court collegium, which is composed of a judge and two people's jurors. 3. The court collegium considers cases of 1) crimes for which punishment is provided for by the criminal law over ten years in prison or the death penalty.
According to the articles 292 and 324, the presiding judge manages, inter alia, the court proceedings and its procedural aspect, also conducts examination of evidence and interrogation of witnesses, including of an accused.
Article 288 emphasises that the composition of the court (judges) is not permitted to be changed. Nevertheless, if one of the judges cannot continue a trial, the judge is substituted by another and the trial resumes from the beginning (para. 2.).
According to the following article 289, during a lengthy collegial trial, a substitute judge and people’s juror can be summoned.
Article 325: 2. The procedure for examining evidence is determined by the judge in agreement with the parties. On the issues of establishing or changing the procedure for examining evidence, the court issues a ruling.
vi. Victims The Criminal procedure code, art. 296, para 1. says that a criminal case trial begins with the participation of a victim and (or) his/her representative. When a victim is unable to attend a trial, the court may decide to continue the proceedings if determines that it would be possible to fully clarify all aspects of the case and protect the rights and legal interests of a victim para.2.). And the following paragraph explains that at the request of a victim, the court may release him/her from attendance at the court sessions, except the times when a victim is required to testify.
The Criminal procedure code, article 350 states that the verdict is recognised as legal if it is determined based on the law and in compliance with all its requirements para. 1. 1.); and, the verdict is recognised as just if it is under an article of the Criminal Code of Belarus, that imposes legal responsibility for the committed criminal act (para. 4.).
Article 352 lists a number of questions that are required to be examined by the court before passing a verdict, e. g. whether it has been proven that: a) a criminal act has been committed; b) it has been committed by an accused; c) whether this act is a crime and which article of the Criminal Code of Belarus provides liability for it; whether the accused is guilty of committing the criminal act.
Article 356: 1. A guilty verdict shall be passed on the condition that during the trial the guilt of the accused of committing a crime is confirmed by the totality of the evidence examined by the court. The verdict cannot be based on assumptions.
Article 357, lists a few conditions when an accused is pronounced not guilty: 1) if there is no socially dangerous act that constitutes a crime by the criminal law; 2) if there is no corpus delicti in the act of the accused; 3) if the participation of the accused in the commission of the crime has not been proven.
According to article 358, following examination of the questions provided in article 252, the court begins the composition of a verdict. A judge, who has a dissenting opinion, does not sign the verdict, about which the mark “dissenting opinion” is made in front of his/her name.
Finally according to article 365 para. 1, after signing the verdict, the court returns to the courtroom and the presiding judge announces the verdict. In case of the death penalty sentence, the presiding judge explains to the accused the right to petition for pardon after the verdict enters into legal force.
Appeals can be made against the verdict before it enters into legal force by the persons and parties listed in article 370 of the Criminal Procedure Code.
Criminal Procedure Code, article 374: 1. Appeals against the judgment of the first instance may be filed within ten days from the date of the announcement of the judgment, and for an accused in custody, within the same period, from the date when a copy of the judgment is provided to the accused.
i. Right to Counsel
Right to counsel is a right that has every individual before and during the trial, and after conviction (article 8 of Criminal-Executive Code of Belarus; also see above section ‘Right to Counsel and Effective Assistance’).
The Criminal Procedure Code, article 370 lists the individuals and parties that can appeal against the verdict, including a defence lawyer or legal representative of an accused/convict before it enters into legal force.
ii. Ineffective Assistance of Counsel
There is nothing specific in the Criminal Procedure Code, whether the verdict may or may not be appealed on the grounds of ineffective assistance of counsel.
iii. Other Grounds for Appeal
There are no specific grounds listed that allow an appeal against a criminal verdict. However, the appeal can be made on any ground, which may prove the verdict inaccurate or wrong.
The Criminal Procedure Code, article 372, lists and explains the required content for appeals, e. g. in para. 1. 4), it says that it should include the arguments of a person who filed an appeal, indicating the incorrectness of the verdict and what the request is.
7. Rights in prison
i. Right to Humane Conditions of Confinement The Criminal-Executive Code, article 48, describes living conditions in prison (open-type). E. g. convicts serving their sentence in an open-type correctional institution shall be provided with the necessary living conditions, such as an individual bed and bedding; a living space, which cannot be less than three square meters per convict.
Article 94: 1. Persons serving a sentence in correctional institutions shall be provided with the necessary living conditions corresponding to rules of sanitation and hygiene.
The same article, also mentions living space requirements in different types of prisons and correctional institutions, including individual bed and bedding; clothes with shoes; and personal hygiene products.
Article 10, lists the rights of convicted persons, which protects them against cruel, inhuman or degrading treatment (para. 2.).
ii. Immigrant’s Rights in Detention The Criminal-Executive Code, article 10, para. 1. states that all convicted persons have the right to receive information about their rights and obligations of criminal responsibility. The institution executing criminal responsibility is obliged to provide convicts with the specified information, as well as to acquaint them with all its changes.
Convicted persons, including foreign citizens and stateless persons, have the right to contact the court, the prosecutor's office with proposals, statements and complaints in Belarusian, Russian or in other languages that they speak, if necessary, use the services of an interpreter. Convicted persons are given answers in the language of appeal (article 10 para. 5.).
Article 63: 3. Foreign nationals serving sentences in correctional institutions in Belarus may be sent for further serving their sentences to the states of which they are citizens, in accordance with the procedure established by international treaties of the Republic of Belarus.
iii. Right to Medical Care in Prison The Criminal-Executive Code, article 10, para. 6. acknowledges the right of convicted persons to medical care.
iv. Restriction of rights According to the Criminal-Executive Code, article 8, para. 1. the state guarantees the protection of the rights, freedoms and legitimate interests of convicted persons during the application of punishment and other measures of criminal liability. Para. 4. explains that the rights and obligations of convicted persons, as well as their limitations, are determined on the basis of the procedure and conditions for the execution and serving of sentences and other measures of criminal responsibility.
vi. Rights of Special Populations
The Criminal-Executive Code, article 189: 1. Convicted pregnant women and women with children under the age of three who are serving a sentence of imprisonment may be granted a deferral of serving the sentence by the court for the period when they can be released from work due to pregnancy, childbirth and until the child reaches the age of three. 2. Deferral of serving the sentence does not apply to women sentenced for more than five years, for a grave or especially grave crime.
Article 95, presents privileges and rights in providing material and household support for convicted pregnant women, nursing mothers and women with children
2. LGBT Prisoners
No special rights are provided in the Criminal-Executive Code.
3. Mentally Ill Prisoners
The Criminal-Executive Code, article 16: 1. In relation to convicted persons suffering from chronic alcoholism, drug addiction, substance abuse, or persons suffering from mental disorders (diseases), the institutions executing punishment, apply compulsory safety measures and treatment appointed by the court.
2. If a mental disorder (illness) is established, which deprives the convicted person to be aware of his actions, the death sentence is not executed and the protocol of the medical examination is sent to the court that passed the sentence.
Chapter 24 of the Criminal-Executive Code, discusses the application of enforced educational measures and preventive supervision towards juveniles, including encouragement and disciplinary measures.
The Criminal-Executive Code, article 185: 3. A juvenile with a conviction involving the use of compulsory educational measures, has the right to appeal against the decision of an official, on the application of a penalty, to a superior official, a prosecutor or a court. In the event of such an appeal, its execution is not suspended.