E/CN.4/2005/6/Add.3
page 2
Summary
The Working Group on Arbitrary Detention visited the Republic of Belarus
from 16 to 26 August 2004 at the invitation of the Government. It visited the capital, Minsk,
and Gomel, Grodno, Lida, Mozyr and Vitebsk. Both in the capital and in the other cities visited,
the Working Group had lengthy meetings with officials of the executive power, the legislative
power and the judiciary, as well as with representatives of civil society organizations and
individuals. The Working Group visited 15 detention centres, including penitentiaries, prisons,
pre-trial detention centres (SIZOs), temporary isolation facilities, youth custody centres,
administrative detention centres, facilities for asylum-seekers, psychiatric hospitals and police
stations. Some of its visits were unannounced. It also had individual meetings, in private and
without witnesses, with more than 200 detainees.
In its report, the Working Group stresses the level of cooperation of the Government,
which was demonstrated by the fact that the official programme of the visit was modified almost
every day at the Working Group’s request. Arrangements were made by the authorities even for
last-minute demands. With the only, regrettable, exception of the inmates and the detention
facility under the control of the State Security Committee (KGB), the Working Group was able
to visit all the other detention centres and facilities that it requested to see. In all the facilities
visited, the Working Group was able to meet with and interview whomever it wanted: pre-trial
detainees, convicted persons serving their sentences, women, minors, and even persons in
discipline quarters. The Working Group also notes the efforts made by the authorities to
improve the judicial system and legal framework inherited from Soviet times. The 1991
Criminal Code and Criminal Procedure Code have reduced the length of pre-trial detention and
established the possibility of a detainee having access to a lawyer shortly after his/her initial
detention. Presidential amnesty decrees have been issued to reduce the overcrowding in
detention facilities and other measures have been implemented to improve the conditions of
detention. In 2003, more than 20,000 inmates were released from prison through presidential
amnesties. Lastly, the situation of illegal immigrants, refugees and asylum-seekers seems to be
better than in other parts of the world.
However, the Working Group notes with concern the excessive power given to the
prosecutors and investigators during the pre-trial detention period. The decision to maintain a
person in detention or to extend the period of his/her detention is taken not by a judge but by a
prosecutor, acting on the proposal of an investigator. The whole investigation is carried out in
practise by investigators and prosecutors, without effective control by a judge. Moreover, the
Working Group expresses its concern regarding the procedure for the appointment and dismissal
of judges, which does not guarantee their independence from the executive branch, and also
regarding the lack of independence of lawyers and of the National Bar Association, as well as the
restrictions imposed on the exercise of their profession.
Another issue of concern expressed in the report is the imbalance detected between the
powers of the prosecution and the rights of the defence. This imbalance, in an inquisitorial
system, seems not to be in conformity with international standards, which require that the whole
investigation be conducted in an adversarial manner. Lawyers do not benefit automatically from
the right to examine the investigation file, to be present during the gathering of evidence, or to
look at all elements of proof against his or her client until the prosecutor formally transmits the
case to the court. Even during trial, lawyers find it hard to counter-prove certain evidence since