2011 15/11
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The trials conducted in the aftermath of the 19 December 2010 presidential election in Belarus highlighted the need for a substantial reform of the country’s justice system.

This opinion was expressed in the report of the OSCE Office for Democratic Institutions and Human Rights (ODIHR). The report was presented in Warsaw on November 10, BelaPAN news agency reports.

From March to July, ODIHR observed 12 trials involving a total of 41 defendants, including five presidential candidates, who had been charged for their participation in a demonstration in Minsk on election night.

“Our monitoring revealed a number of significant concerns in the application of fair trial standards,” Ambassador Janez Lenarčič, the Director of the OSCE/ODIHR, said. “These concerns point to systemic shortcomings in Belarus’ justice system that need to be addressed.”

Lenarčič stressed that ODIHR stands ready to work with the Belarusian authorities in addressing the identified shortcomings and expressed the hope that the recommendations included in the report will be considered seriously.

The 114-page report noted pervasive influence of the executive in judicial proceedings and structural bias in favour of the prosecution that contributed to a 100 per cent conviction rate in the monitored trials.

“Foremost among the difficulties was the pervasive influence of the executive in matters that are normally the reserved purview of the judiciary. Manifestations of a too-close relationship between the prosecutor and the judge lent credence to suspicions of judicial bias as did the statistics related to motions and sentencing,” the report reads.

Experts thinks that the difficulties in structural independence centre on the appointment and dismissal procedures, tenure, discipline, and access to benefits, interference of the executive, and bias in favour of the prosecution. The presence of Ministry of Interior and, reportedly, KGB personnel at the trials may have influenced the judges, lawyers and, in general, the conduct of the proceedings. Many judges showed patterns that may be interpreted as prosecutorial bias,” the report stresses.

ODIHR notes that the prosecution enjoys a number of legal and procedural powers that are not available to the defence. “These structural differences whereby the prosecutor, rather than the judge, acted as a gatekeeper to defence’s use of experts, searches and compelled testimony translated into an advantage for the prosecution. In fact, many of the monitored cases revealed shortcomings with regard to genuine procedural equality between prosecution and defence, contributing to the 100 percent conviction rate for the prosecutors in the monitored trials.”

“During the monitoring of the trials, significant concerns emerged over the right to the presumption of innocence, raising doubts as to whether the defendants were in fact presumed innocent until proven guilty. Factors contributing to this assessment include the posture of the executive and judicial branches with respect to the trials, the provisions of the criminal and criminal procedure codes themselves, as well as the treatment of the defendants during the trials,” the report reads.

Besides, expert note that judges often failed to follow up allegations that statements were obtained under duress, intimidation, inhuman treatment and possibly torture. Defence motions to exclude evidence based on alleged maltreatment were ignored or denied. Judges relied heavily on written pre-trial witness affidavits instead of oral testimonies, which in many cases deprived defendants of their right to examine witnesses.

The report notes that the authorities made an effort to ensure the right to a public hearing by allowing access to the trials for members of the public and the media. But the exclusion of some non-governmental observers and the lack of public access to verdicts contradicted public trial standards.

OSCE experts also stress that though every defendant was represented at trial by counsel, the exercise of this right to defence was hampered by the revocation of licences of some defence counsel, and some lawyers were denied access to their clients for prolonged periods while they were held in the KGB detention centre.

The report includes 33 detailed recommendations on how to address these shortcomings, in particular, to reform and improve the system of judicial self-governance with a view to freeing it from executive/Presidential decision making on issues such as discipline or benefits and bonuses by establishing an independent judicial council for selection, promotion and disciplining of judges; in particular eliminate the power allowing the President to impose any disciplinary measure on any judge without instituting disciplinary proceedings.

It’s also recommended to remove any influence from the executive branch on detention decisions and revamp the lawyer licensing regime and remove the role of the Ministry of Justice in licensing the legal profession.

The OSCE/ODIHR recommends to amend Criminal Procedure Code provisions related to detention so as to provide that judges, and not prosecutors, render detention decisions in the first instance; conduct hearings regarding detention on remand and make such hearings open and the defendant’s participation mandatory; remove provisions that permit detention based solely on the gravity of the charge.

Experts recommend to amend the CPC obliging prosecution to deliver all exculpatory evidence in its possession – not only that which will be included in the file – to the defence, with clearly and narrowly defined exceptions (matters of state security, witness protection, etc.) Judges should oversee the redaction of sensitive material and ensure that the remainder is delivered to the defence.

Experts urge to take additional steps to eliminate prosecutorial bias, and in particular, eliminate the practice whereby the trial judge is exposed to the entire prosecutor’s case file, particularly the evidence, prior to the beginning of the trial.

It is also recommended to amend the CPC to permit only judges to authorize wiretapping and similar investigative measures that violate privacy and compel the in-court testimony of important witnesses, especially those deemed necessary by the defence, as a means of safeguarding the right to confrontation. If their attendance cannot be compelled, remove their affidavit from the case. The OSCE also calls to eliminate the practice of keeping defendants in cages during the trial.

The full version of the OSCE/ODIHR report is available on the OSCE website.

Source: spring96.org

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