2008 20/08

Аляксей Лапіцкі, 2007‘Legal opportunities and obstacles on the way of implementing international and constitutional law in the Belarusian civil and criminal legal proceedings.’

Some would say the possibility of implementing the legal instruments of international and constitutional law in the Belarusian judiciary is nothing but a joke, for it really seems to be pure fantasy or fairy-tales…

As a matter of fact, some experts think that the legal sphere dealing with civil rights and freedoms is, for today’s Belarus, rather an ideological than a legal issue – it is normally viewed through the lenses of ideological expediency and the absolute authority of the executive power. Meanwhile, judges are perceived as appointed pro-government officials…

In spite of that, if you try to analyze the existing legal opportunities of the Belarusian law and their practical efficiency within the current judiciary system, you will have to consider at least two different sides of the issue.

There are two viewpoints on the issue, two conflicting counterpositions, each well-worth considering for it only reflects part of the matter.

So, what are the aspect ratio between the legal opportunities and obstacles on the way of protecting the civil rights and freedoms of Belarusians? Are international and Constitutional provisions efficient enough in Belarusian courts? Are there any opportunities of achieving unconditional implementation of the provisions of international and Constitutional law?

On the one hand, considering the essence of the domestic legal system with the Constitution as its basis, and international treaties, on the other hand, one can state that in today’s Belarus there exist all the necessary legal opportunities of utilizing international and Constitutional law, legislation pertaining to rights and freedoms, in particular.

In reality, the existence of the International Covenant on Civil and Political Rights only with its Optional Protocol #1, as well as the Vienna Convention on the Law of Treaties, is a perfect proof of the idea. Belarus has created a steady basis, which is necessary enough for the implementation of international standards within the national legislation.

For example, the Covenant clearly states the basic rights and freedoms, stresses the unconditional recognition of a person before the law and requires the direct implementation of the treaty by all the parties. The implementation of its provisions does not call for any additional legal acts within the national legislation. The treaty is a law in itself. The domestic legislation should, therefore, be conformed in accordance with the Covenant.

Meanwhile, 76 parties to the treaty undertook commitments to provide their citizens with superior legal guarantees in the field of human rights and freedoms.

However, due to actual obstacles on the way of implementation of the provisions, they are de facto declarative and therefore are not implemented.

Thus, the international mechanism is not respected in Belarus.

The civil and political rights, secured by the Covenant and the Belarusian Constitution, are also disrespected in the country.

The examples are numerous.

One can mention the recent lawsuit brought against Zhodzina authorities by a number of local activists, following a ban to hold a picket.

Showing utter disrespect for the Law on Mass Actions and violating the right to the freedom of association, freedom of speech and exchange of information, the local courts supported the ban.

Meanwhile, the decision was based on ‘the absolute competence of the local authorities’, allowing of no explanations or transparency of the discussion.

Similar incidents overwhelm today’s Belarus. However, people do not tend to appeal the illegal decisions.

This could be partially attributed to the above-mentioned obstacles created by the national legal system.

The legal tyranny and passivity of the law in the courts of Belarus contributes to an overall pessimism and civil apathy.

Referring to the international mechanisms of the Vienna Convention, which gave birth to the Belarusian Law on Treaties in 1991, one can state that the treaty reaffirms the superiority of the international law for the national legal systems, which is another reason for the implementation of the legal standards in Belarus.

E.g. Article 26 of the Convention, introducing the pacta sunt servanda concept, states that ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

Article 27 (Paragraph 2) of the above-mentioned Law on Treaties says that ‘norms of law provided for in the international treaties of the Republic of Belarus are a part of the legislation in force on the territory of the Republic of Belarus, subject to direct application except for cases when the international treaty provides for requirement to pass (issue) a domestic normative legal act, and has the effect of the normative legal act by virtue of which the Republic of Belarus has expressed consent to be bound by the respective international treaty.’

Meanwhile, the Constitution of Belarus in its Article 7 (paragraphs 1 and 2) declares the principle of the ‘superiority of law’, requiring that ‘the State and all the bodies and officials thereof shall operate within the confines of the Constitution and the laws enacted in accordance therewith. Legal enactments or specific provisions thereof which are deemed under procedure specified in law to be contrary to the provisions of the Constitution shall have no legal force.’ Article 8 prohibits ‘the conclusion of international treaties that are contrary to the Constitution.’

Thus, according to Article 3 of the Law on Treaties, the conclusion and implementation of international treaties in Belarus are based on ‘the Constitution of the Republic of Belarus, universally recognized principles of the international law, Vienna Convention on the Law of Treaties of May 23, 1969, other international treaties of the Republic of Belarus, the present Law and other acts of legislation of the Republic of Belarus.’

However, the situation is far from being clear, for the Belarusian legal system have always tended to confuse universally recognized concepts, which does not contribute to the efficiency of the legislation, failing to perform its functions to fully and unconditionally implement the principle of the constitutional presumption and the priorities of the international law in the Belarusian judicial system.

The Zhodzina case seems to be an excellent example of this tendency.

The Belarusian Law on Mass Actions reduces the fundamental right to ‘the freedom of mass actions.’

Thus, we can see that the law under analysis contains diluted provisions which distort the provisions of the Constitution. They are far from being concrete and do not force the State to implement the provisions of international treaties.

Thus, a tiny aspect of the Constitution does not contribute to its practical value and complicates the process of interpreting the fundamental law pertaining to the active legislation provisions.

Referring to the Belarusian Constitution once again, one can see some extra proofs of the idea that it is the Constitution that should be the legal basis of protecting human rights and freedoms in court. International treaties are, in their turn, binding and every citizen of the state party to the treaty is a full-value subject of the international law, especially pertaining to the protection of one’s rights and freedoms.

Thus, Belarusian courts should be guided by the unconditional constitutional presumption, which in terms of judicial practice means the supremacy of the Constitution and international treaties.

To prove this, one can quote Article 112 of the Constitution which directly states that ‘the courts shall administer justice on the basis of the Constitution, the laws and other enforceable enactments adopted in accordance therewith. If, during the hearing of a specific case, a court concludes that an enforceable enactment is contrary to the Constitution, it shall make a ruling in accordance with the Constitution and raise, under the established procedure, the issue of whether the enforceable enactment in question should be deemed unconstitutional.’

Article 21 (paragraph 2) of the Constitution says that ‘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.’

Meanwhile, Article 61 secures that ‘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.’

It is a grave legal mechanism which is meant to be the basis of the overall concept of the formation and functioning of legal institutes on the international level. It endows every Belarusian citizen with extra opportunities of addressing the international justice to protect one’s rights and freedoms.

Besides, Article 27 of the Vienna Convention directly states that ‘a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’

Article 4 (2) of the International Covenant on Civil and Political Rights specifies the norms of jus cogens, which have a binding legal effect even in cases of emergency, e.g. Article 16 – ‘Everyone shall have the right to recognition everywhere as a person before the law.

As for the imperative norms of jus cogens, all contradictory legal acts have no legal force, while any deviation from the standards is intolerable, which is secured by Article 53 of the Convention. In case a new imperative norm is introduced, any contradictory treaty is deemed void and therefore terminated (Article 61 of the Convention).

However, the unquestionable system of legal imperatives is breached by the existing legal system of Belarus.

The international legal standards, which have a binding character, are not reflected in Belarusian judicial regulations.

Article 4 of the Law on the Judicial System and the Legal Status of Judges states that ‘the courts shall administer justice in exact accordance with the legislation of the Republic of Belarus…’ and ‘in case of noncompliance of a legal acts with the Constitution or any other law they make decisions in accordance with the Constitution or the legislation of the Republic of Belarus and require ‘that the legal act be in accordance with the established procedure declared unconstitutional.’

Meanwhile, the Belarusian courts have nothing to do with the procedures. The judicial system lacks feedback, judges showing too much initiative, being unable to eliminate all the contradictions between the national legal acts and the international standards.

The concept of human rights being traditionally perceived as an alien element, the policy of the Belarusian state seems rather logical. The stereotype is supported and propagandized by state official, acting as the bearers of the official ideology.

Who can under these circumstances dare protect the so called bourgeois values in the ‘ideal judicial system?’

The absence of legal freedoms makes people the hostages of their own over-tolerance and pessimism, while the ever-growing fear turns them into a silent and powerless crowd…

Where there are no civil and political rights, there are no social and economic rights, the state wasting time and losing positive perspectives. Belarus is still to comprehend this, which is a powerful brake on the implementation of legal mechanisms in Belarusian courts.

Article 3 of the Law on the Judicial System and the Legal Status of Judges specifies the main functions of judges, who should protect ‘the personal rights and freedoms, social and economic rights of citizens’, guaranteed by the Constitution and the acts of the law.

However, such obscure provisions do not make judges improve the Belarusian judicial system, the protection of civil and political rights and freedoms, in particular.

Belarusian judges are not capable of taking the initiative when human rights are at risk during a trial.

Indeed, today’s judicial system of Belarus looks like a fairytale to many an activist.

However, Article 47 of the Law states that ‘the Supreme Court shall provide explanations on exercising the legislation during trials’, ‘makes proposals to the Constitutional Court of Belarus concerning the compliance of legal acts with the Constitution’ and ‘decides within its competence the issues pertaining to the international treaties of the Republic of Belarus.’

Articles 61 and 67 of the Law also have nothing to do with the international legal standards or treaties.

Nor do they specify the procedure of utilizing the standards by judges. They are utterly disrespected and disguised by the vague wording of ‘other legal acts.’

As a result, the absence of an independent judicial system in Belarus impedes the development of legal consciousness and legal culture.

     The blatant misbalance of powers was highlighted by the UN Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, in his Report ‘CIVIL AND POLITICAL RIGHTS, INCLUDING QUESTIONS OF: INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION OF JUSTICE, IMPUNITY.’ Mr. Cumaraswamy arrived at a decision that the Belarusian judicial system is not independent. ‘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.’ says the Report.

    Thus, any obstacles, which impede the implementation of the existing legal possibilities of the Belarusian legislation, are absolutely inadmissible in Belarus.

It is the obstacles, not the Belarusian civil activists or oppositional politicians, who minimize the role of the country on the international level.                   

    All this makes Belarus an unpredictable partner, which eventually has a powerful economic effect.

    Therefore, Belarus should adhere to the values of the free Europe and the UN human rights standards in order to break the international isolation of the country and gain itself world-wide respect, by abiding by the key concept of the contemporary civilization – FREEDOM.



            Aliaksei Lapitski,

            Zhodzina, Belarus.

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