2008 10/09

Аляксей Лапіцкі, 2007What runs the show in Belarusian courts: ideological expediency or the Law?

A number of Zhodzina human rights activists have submitted a claim to the Un Human Rights Committee to protect their civil and political rights.

The UN office in Belarus has considered the claim and submitted it for the further consideration of the Geneva-based Human Rights Committee.

The claim deals with the ban of the 23 September 2006 rally in Zhodzina featuring a number of famous Belarusian politicians – ex-presidential candidate Aliaksandr Milinkevich and the BPF leader Vintsuk Viachorka.

According to the claimants, the ban imposed by the town authorities is illegal.

Let us dwell on the issue.

Why are Belarusian citizens opposed by local judicial and executive bodies, and as a result have to address an international structure? The question seems easy – the implementation of personal rights is based on the guarantees by the state.

However, there are various opinions on the matter.

Human Rights. Evaluations and conscious choice by the opposition.

So why does not the universal priority unite the society? And why does not the state, as the guarantor of constitutional rights and freedoms facilitate the process?

Perhaps, the state takes the side of the inactive individuals and artificially forms a sluggish electorate, monopolized mass media, controllable NGOs and trade unions, and thus creates its own new order… The implementation of the desire to play ‘righteous democracy’ solely on its own ‘official field’ and ‘under its own flexible rules’ would secure the highest degree of control over the society by any totalitarian regime. However, it would mean the highest degree of unfreedom for every citizen with all the pro-democratic slogans, popularized by state-owned mass media.

At the same time, it seems quite natural when people tend to adopt an independent position of their own, formed by their personal criteria of rightness and objectivity, connected with such moral categories as truth, justice and, perhaps, law and order…

The principle of gregariousness keeps functioning, but mainly for those who are indifferent and weak, having no personal beliefs and unable to make a choice.

The latter is the essential thing, since it is the free and conscious choice and possibilities to implement one’s ideas in an open civil society, influence the cultural, economic and political life of the country, elect and be elected, that are the main criteria of freedom in a democracy, as well as components of well-being and the quality of life.

All this is within the sphere of human rights, both civil and political and socio-economic ones.

The former cannot exist without the latter. While the minimum of the latter may secure hope for happiness in a most terrible prison, provided the necessary amount of information on the ‘island of happiness’ is available.

Information and the Unified Treatment of Terms are the Conditions of a Conscious Choice

In any case, many citizens of Belarus have grown conscious about evaluating the events according to their understanding of morals, objectiveness and legality. Therefore, it is absolutely natural that different opinions on social, economic and political issues are mainly conditioned by the amount of information the citizens receive, or due to different treatment of these or those terms or definitions.

Different world-views, cultural and national priorities do not often cause disagreement on obvious issues.

Thus, every evaluation and discussion is based on complete and true information, necessary for the formation of an independent opinion.

As for the issue of freedom of peaceful assembly, let us consider two contradictory opinions.

Opposite Views and a Search for Understanding

Everybody would agree that violations of the right to peaceful assembly is a topical issue for today’s Belarus – the issue tackled by courts and ignored by law enforcement institutions, being under the ideology pressure of the state.

Some would say that bans on peaceful rallies are not a big problem, courts and supervising bodies functioning within the limits of the law.

Moreover, they could be absolutely confident that, by doing this, the state acts are legal, since they ban dangerous meetings.

They think that it is those who criticize the regime and ignore its measures to improve the situation by reinforce the state sovereignty who are mistaken.

The legislation itself is perceived as ‘progressive’, since it contributes to law and order and stability, which meets the ‘right’ ideology priorities.

Many would also be absolutely sure that only due to total control from the state over these ‘secondary’ issues the highest level of sustainability of the whole system may be achieved. The system itself, as the Soviet Communist Party, is fine-tuned and works for the sake of peace and well-being of the Belarusian people.

In this situation, it is not essential whether there is any ideology control or minor violations of the law, since they are deliberately sacrificed to more vital priorities – stability, security, peace and the gradual growth of social well-being.

However, the truth is sometimes hidden in trifles. It is always modest and laconic. The truth is based on reality.

‘Ye shall know them by their fruits’, said Jesus to help people differentiate between the truth and the lies.

Opposite Views and Human Rights – No Extremes

To see the roots of the two opinions and determine the amount of their legality, let us mention several facts, quotes and examples from life and legislation.

Let us also see the basic principle worked out by the world practice and obligatory for implementation by countries as a universal means of protecting civil peace and achievement of high life quality with no need for violating the universally recognized standards of law, the inherent rights and freedoms of other groups of citizens, ethnic or cultural communities, civil and political organizations of the country.

According to Belarusian human rights activists, repeatedly criticizing the situation in the field of human rights in Belarus, it is essential to follow the provisions of the existing binding treaties dealing with restrictions of the right to peaceful assembly. How are they treated and used around the world? And how do we differ from the rest of the world?

Indeed, in case of any disputable situation it is vital to refrain from extremes and search for a moderate position.

Refraining from extremes would mean a ban on any extremist and illegal measures used as ‘right’ means and an attempt to be committed to the superiority of law.

Meanwhile, similar destructive pattern by both sides could stand for the absolutization of either human rights or the authority of the state. However, under regular legal and democratic conditions human rights do not contradict the authority of the state. They are not contradictory but complementary categories of one integral predictable system of interrelations freely elected by the society.

It is especially important when they are united by universal legal objectives. The question is what rules they have to use while interacting, what values are their priorities and measures are used. Still, the main condition and the actual basis of this unity and mutual understanding in the society are the Constitution and the international treaties, as the only guarantee of the country’s peace, cooperation and mutual respect.

The Belarusian Constitution of 1996 and the international treaties ratified by the government (the Covenant on Civil and Political Rights, in particular) provide a number of binding standards of direct action, which are the real basis of the Constitutional system, as the highest standard of quality and judicial remedy, as well as the guarantor of its development and national security. Therefore, all the subjects of all, officials and state bodies must work for the sake of improving the basis as the only guarantee of genuine law and order, peace and well-being in the country, stability and legality of the overall state system of administration.

Dispute between the Law and the Absolute Power. The International Standards and the Shortsightedness of Belarusian Justice

So who is right: human rights activists or representatives of the state system?

Let us try to see what is actually going on in today’s Belarus, at least by the example of the Zhodzina rally ban.

What are official decisions based on? What is essential in the interrelation between the state and the society – the authority and its competence or the court and its obligations to secure law and order?

It is obvious that in case the claim by Zhodzina residents is considered by the UN Human Rights Committee and the Committee finds that their rights have been violated, the Belarusian authorities will receive an authoritative decision concerning the legal basis of the violations and will have to independently work out further actions in the framework of the international obligations.

Meanwhile, Article 27 of the Vienna Convention on the Law of Treaties, signed by the Republic of Belarus, directly states that the parties to the treaty ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’

Article 4 (2) of the Covenant on Civil and Political Rights determines the procedures of jus cogens, having an imperative character of legal standards, which admit of no derogation as justification for a failure to perform the treaty.

The above-mentioned legal personality of every citizen in case human rights and freedoms are restrained is one of the imperative standards.

Assuming that in this situation the ban on the rally was legal, the town authorities should have produced an actual evidence of its inability to avoid the restriction due to extreme civil security and superior goals within the provisions of the law.

However, Zhodzina authorities, just like in the majority of similar cases across Belarus, failed to do so.

All the rallies the local authorities failed to provide independent legal explanations, confining themselves to mentioning trivial and absurd reasons.

E.g. one of the rallies was banned after the authorities found it ‘unnecessary’ due to the fact that it was aimed at ‘supporting the independence of the Republic of Belarus.’ According to the local ideology department, there is no need to support independence, since a similar rally has already been held earlier that year.

It is absolutely evident that similar arguments are illegal grounds for restricting the right to peaceful assembly.

This is how the authorities try to build a bizarre system, remote from the internationally recognized standards of law and constitutional legality.

One cannot mention that the extreme means of restricting the right of the citizens to peaceful assembly can be used in the situation provided by the law. However, the Zhodzina case representatives of the town authorities failed to produce any actual grounds for the ban except for their absolute power to make any decisions concerning mass actions. Thus, one can arrive at a conclusion that the practice of bans on peaceful assemblies and their further appeals is an evidence of the absolute irresponsibility of the Belarusian justice and the guaranteed legal untouchableness of the executive power.

Legal Imperatives vs. the Diktat of Ideology. No Milk from the Sacred Cow.

Needless to say that there is no presumption of the Constitution or the international standards of law whatsoever. The practice shows that the imperative nature of the law is substituted by the untouchableness of ideology decrees, acting on behalf of the law…

However, one can say that Belarus now has its own ‘sacred cow’, which gives no milk (i.e. happiness) to the Belarusian people…

Besides, it should be observed that the Indian cow deals with traditions, which can also act as the legitimate sources of law.

Belarus, in its turn, has invented a quasi-historical principle of the ‘untouchable irresponsibility’ of every leader or the unpublished practice of double standards, borrowed from the Soviet mono-party system. This is the source of dividing the people into ins and outs, as the ‘right’ part of the people and the ‘wrong’ minority …

It seems that this is the reason of every legal provision being perverted due to the ‘right ideology context’. And as it appears, it is always the ‘sacred cow’ that wins…

In extreme cases, one could justify the extremity by some mystical awe of the regime, as far as the freedom of speech and alternative opinions to be aired at a rally are concerned.

However, it seems that there really is no need to secure the purity of the ideology dogmas. Besides, the Constitution directly prohibits the unified ideology. And the fear itself cannot be legal grounds for restricting the inherent rights and freedoms guaranteed by the state.

Moreover, the judicial system requires exact interpretations and therefore it is quite natural that the fear should not be abstract and biased.

The Criteria of Mutual Understanding: International Standards

According to the legal approach, the restrictions used by the authorities should:

1)      be provided by the law (accessibility, predictability and unambiguous treatment of the provisions);

2)      contribute to legal objectives (within the comprehensive list, provided by international standards);

3)      be essential for a democratic society (contribute to the implementation of democratic rights and freedoms, including the diversity of opinions,  instead of their contraction);

Therefore, the legal grounds for imposing a ban on an assembly should:

1)      be accurate and understandable, based on facts and correspondent to the objectives of the law;

2)      be proportional with the level of security admitting of similar extreme restrictions as provided by the international standards;

3)      be essential for a democratic society.

Thus, it is natural that any fear or a ban caused by the fear, resulting in the unwillingness to abide by the Constitution and the international commitments, may be considered as adequate and legal grounds for restricting any right, the right peaceful assembly, in particular.

As for referring to the competence and the authority, any authority should be completely within the limits of the law. So it is the regime’s duty to use the power solely for the sake of implementation of the objectives provided by the Constitution and other specific laws, along with the international treaties signed by the country, which specify all the obligations of the state to ‘take necessary measures to implement and safeguard the rights and liberties of the individual.

In other words, the competence of the state are controlled and restricted by the law. Besides, it seems absolutely logical that under the universal principle of law and democracy the rights and competence of the government end where the rights of the citizens begin.

As appears from the above, it is insufficient to ban a rally in court, depriving its organizers of their right to appeal the decision, since it is the executive power that has the necessary competence to allow or ban similar mass actions.

Moreover, we have the right use the extreme form of restriction and prohibit the implementation of the constitutional rights of the citizens.

The law demands an adequate explanation of the measure to justify that the fear is based on real facts.

As a result, the ban is inevitable, since it is ‘essential’ for a ‘democracy’ and would surely be used under similar circumstances in any other ‘democracy’, where the human personality is the supreme value. The ‘inevitability’ should not however be viewed as an exotic measure, but the peculiarity of a ‘genuine democracy.’

The ‘admissibility’ of the restriction, based on ‘necessity’, seems to be the core principle of ‘a genuine democracy’ – the basic and compulsory condition for using a feasible and legitimate restriction of civil and political rights.

Therefore, the official explanations by representatives of the local authorities, referring to their competence to ban any assembly with no legal grounds, are nothing but empty words. So is the hollow announcement of the existing competence, which cannot be viewed as the sufficient grounds for the ‘necessity’ of a ban, being an extreme measure to be used in situations based on facts.

The Legal Grounds for Finding the Bans on Peaceful Assemblies Illegal

Thus, it is evident that the example under analysis is a systematic outrage against the citizens’ right to peaceful assembly, guaranteed by Article 35 of the Belarusian Constitution and the relevant provisions of the Law on Mass Actions.

The restrictions is connected with the violation of the civil and political rights of the applicants, secured by Articles 21 and 60 of the Constitution and Article 21 of the International Covenant on Civil and Political Rights, signed by the Republic of Belarus and having a binding effect for every Belarusian subject of law.

Indeed, according to Articles 21 and 60 of the Constitution, ‘the State shall guarantee the rights and liberties of the citizens of Belarus that are enshrined in the Constitution and the laws, and specified in the state’s international obligations’ and ‘everyone shall be guaranteed protection of one’s rights and liberties by a competent, independent and impartial court of law within time periods specified in law.

The essence of Article 21 of the Covenant deals with the absolute recognition of the right of peaceful assembly and the prohibition of any restrictions of the right, except for ‘those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Therefore, the above-mentioned examples can provide a clue to one of the key issues – a search for a ‘golden mean’. The compulsory provisions of law specify a list of admissible criteria for legitimate restrictions of the right to peaceful assembly, which can be extended under no circumstances.

Any reference to the absolute right of the state, which is not based on the law, has no legal grounds and is therefore absolutely intolerable.

According to Zhodzina human rights activists, ‘under these circumstances Belarusian judges usually ignore the law and make decisions in favour of the state, repeatedly banning mass actions without any legal reasoning.

It is hard to believe that the judges do it consciously and do think that similar actions are legitimate, since the practice shows that the judicial verdicts are usually based on primitive ideology expediency, instead of the legal standards. They would normally refer to the absurd reasons provided by the authorities or the incorrect treatment of the legal provisions, which is an outrage against the standards of the Constitution and the international law.

Why do Courts Sacrifice Freedom? Courts as Accomplices in Abuse of Power by the State!

Can one say that the priority of the law is sacrificed to the national stability? Is there a secret agreement to counteract opponents of the state? The answer is obvious.

Indeed, it is easy to explain why ideology departments exercise control over the judicial system. The judges, in their turn, take into consideration absurd reasons or the above-mentioned competence to ban any rally.

Thus, in case local authorities have such a competence, its decisions to ban peaceful assemblies are legitimate.

Courts of appeal would normally repeat the verdict. This is where human rights end! It is a deadlock. The provisions of the law do not function, the courts support ideology departments, who, in their turn, are ruled from above. Meanwhile, all the verdicts are formally group decisions. The ‘masterpieces’ are aimed at being ‘the fig leaves’ to disguise ‘the shame of personal irresponsibility’ of the executive power of Belarus.

Thus, the system keeps deceiving and robbing the citizens of Belarus, the courts being an integral an obedient part of the system.

The idea can be proven by the Report of the Special Rapporteur on the independence of judges and lawyers, Param Cumaraswamy of 2000, stating that the judicial system of Belarus is not independent. Instead, it is absolutely dependable of the executive power. The Report states that ‘executive control over the judiciary and the manner in which repressive actions are taken against independent judges appear to have produced a sense of indifference among many judges for the importance of judicial independence in the system.’ It also mentions the use of ‘flawed appointment, promotional and disciplinary procedures and service conditions’, which ‘violate international and regional minimum standards for an independent judiciary.’ ‘The guarantees of independence are systematically undermined by the Government’s and, in particular, the President’s attitude to the judiciary.  In 1996, the President is reported to have stated that:  “Under the Constitution, the judiciary is in essence part of the Presidency.  Yes, the courts are declared to be independent, but it is the President who appoints and dismisses judges.  Thanks to this, it is easier for the President to pursue his policies through the judiciary.’ The Report concludes that ‘the pervasive manner in which executive power has been accumulated and concentrated in the President has turned the system of government from parliamentary democracy to one of authoritarian rule.  As a result, the administration of justice, together with all its institutions, namely, the judiciary, the prosecutorial service and the legal profession, are undermined and not perceived as separate and independent.  The rule of law is therefore thwarted.’

Certain Peculiarities of the Regime and the Mass Consciousness

Many citizens would never believe that the native and caring executive power may be involved in some dirty business.

They are used to perceiving themselves and the state as an integral body. So their sincere hearts and minds cannot imagine that the best power in the world, the fairest courts and the most truthful mass media can be primitive and cynical liars.

The Belarusian regime is based on the principle of double standards, is capable of abrupt violations of its citizens’ rights and manipulating the public opinion to pursue its supreme goal – exercising eternal power.

As for the Belarusian public opinion, with its endless love for the state and prejudices against human rights, there are certain factors which are essential for the matter.

Due to certain peculiarities of the regime formed by the President, the country still has strong traits of indifference, when the past is idealized, including the models of thinking, advertised by the state propaganda, and the emerging post-Soviet pan-Slavic revanchism.

International Treaties as a Binding Instrument of Direct Effect

One cannot but mention the basic and universal principle of the recognition of the dignity of the human person as the state’s supreme value.

Considering that, each state is obliged to promote respect for and observance of civil rights and freedoms (the freedom of speech, assembly, association, exchange of opinions and information) within  its territory.

Civil and political rights, unlike social and economical rights, should be immediately and fully implemented. The criteria of restricting the rights are accurately specified and uniformly treated by all the State Parties. In case a violation or a disagreement is declared, the final decision should be taken by the International Structures (the European Court, the UN Human Rights Committee). Besides, the Covenant provides for the instruments of the case law to work out unified and impartial approaches to the consideration of suits within the national judiciaries.

The Principles of Subsidiary Liability and International Personality

Guided by the principles of subsidiary liability and international personality, provided by Article 61 of the Belarusian Constitution and Article 16 of the International Covenant on Civil and Political Rights, ‘everyone shall have the right in accordance with the international instruments ratified by the Republic of Belarus to appeal to international organizations to defend their rights and liberties, provided all available interstate means of legal defence have been exhausted.’ The state, in its turn, shall within the limits of internal law enforcement and judicial system consider and solve the issue according to the active universal principles and legal standards.

It is essential that the universally recognized criteria of restricting the rights and freedoms of citizens have equal effect within every State Party.

It is the executive power, its political will and professional skills who can directly influence the situation, having all the necessary instruments and competence.

Ordinary people tend to refer to stereotype ideas advertized by mass media, rather than to some personal experience or facts.

Lacking special knowledge, ordinary people are guided by the official propaganda. So it is the duty of specially trained officials to protect their rights, guided by their competence and the law. They also have to contribute to the implementation of the universal principle of the supreme nature of the human person and its rights.

Unless all the above-mentioned conditions are guaranteed, there could be no efficient pro-democratic mechanisms, when the state is the real servant of the people.

Generalizations. Political Will is the Necessary Condition of the Implementation of People’s Rights

One can state that today’s Belarus lacks effective and democratic legal system. The state fails to secure its commitments to secure the implementation of human rights and freedoms.

One cannot protect one’s rights without this legal basis.

Lacking an efficient judicial and law enforcement system, it is the regime that always wins. The possibilities of public control and reelection of authorities are extremely limited.

In fact, the state uses the presumption of ideology and politically motivated arguments, instead of abiding by the law.

Thus, despite the ‘genuine independence, democracy and public peace’, advertized by the state, the executive power resorts to brutal and systematic violations of the law, including the provisions of the Belarusian Constitution and the country’s international commitments.

The right to peaceful assembly is one of the essential parts of the international standards, which should have direct effect in Belarus. It does not require any social expenses, instruments or reforms… It is the political will to implement the undertaken obligations that can guarantee its promotion within the country.

Conclusion

When a country, as a subject of the international law, refuses to follow the provisions of a treaty and adopts them to its temporary needs by substituting the provisions with its own interpretations, no respectable partner will dare risk its resources to establish relations with such country.

In order to become prosperous, Belarus has to learn to respect and observe its own international commitments, the rights of its citizens, and become a reliable and predictable partner and a democratic and a law-based state, which would enrich the potential of partnership and peace in its neighbouhood, instead of searching for enemies and teaching the world with hostile propaganda and inconsistency.

There could be no real well-being in Belarus, as long as it keeps ignoring the human dignity and the laws of social development. The state will not make its citizens happy as long as it treats them as the biological stuff or a herd, viewing the concept of happiness according to its own post-Soviet or agricultural understanding.

The free people can have more than is given to them by the existing totalitarian regime. Democracy was not invented by beggars…

Every Belarusian is worth being called a human person, i.e. being free, rich and happy to implement the supreme value of being the actual ruler of the country.

It is quite possible that after the claim is considered by the Human Rights Committee, certain Belarusian officials start to think of the necessity for the compulsory implementation of the Constitution and the international law.

Let us hope for the best. For otherwise it would result in further aggravation of the situation in Belarus and the decrease of Belarus’ international reputation.

As yet, the Belarusian courts are ruled by ideology expediency, the law being purely declarative or punitive, as a means of harassing the opponents of ‘the only right idea.’

Aliaksei Lapitski,

Zhodzina

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