COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
Committee considered the second periodic report of Belarus (CAT/C/17/Add.6)
at its 132nd to 134th meetings, on 18 and 19 November 1992 (see CAT/C/SR.132,
133/Add.2 and 134/Add.1).
report was introduced by the representative of the State party, who
declared that since the submission of the initial report there had
been momentous changes in the political, legislative, economic and
judicial life of Belarus. Those changes had found their reflection
in a draft constitution which was being considered on second reading
in the Supreme Soviet of Belarus. He emphasized that the measures
designed to protect human rights included, besides the new Constitution,
the establishment of a Constitutional Court, the separation of powers
and the parliament's decision to implement judicial reforms, among
them the introduction of a new criminal and civil code and a review
of the status of judges, as well as the ratification of the first
Optional Protocol to the International Covenant on Civil and Political
Rights. The Republic of Belarus had heeded the advice the Committee
had given it during consideration of the initial report and had given
priority to the inclusion in the Constitution of provisions of the
Convention which had not existed in the previous Constitution. On
the basis of the new Constitution, the Ministry of Justice had prepared
a Draft Code of Criminal Procedure and was reviewing the labour and
other codes, ensuring notably that they complied with the provisions
of the Convention against Torture.
representative informed the Committee that, according to the new Constitution,
no one could be subjected to torture and other cruel, inhuman or degrading
treatment and a person could not be forced to undergo medical or other
examination without his consent; the restriction of personal freedom
was subject to stringent conditions laid down by law; persons in custody
were entitled to request a judicial review or examination of their
detention or arrest; citizens were entitled to seek compensation before
the courts for any material or physical damage; they also had the
right to legal assistance paid out of State funds.
representative stated that the Republic of Belarus recognized the
primacy of international law. If any legislation of Belarus conflicted
with the provisions of an international agreement to which Belarus
was a party, the agreement took precedence. Courts were therefore
free to apply international instruments, for instance the Convention
against Torture, directly.
of the Committee stated that the oral introduction by the Belarus
delegation had helped clarify a number of queries that they had about
the supplementary report, which was somewhat short and had not provided
all the answers the Committee had hoped for. Having welcomed the changes
in legislation aimed at improving the legal system and combating torture,
they requested the delegation to provide information on whether individual
cases of torture existed in Belarus and statistics and information
on the specific measures taken to combat torture and other treatment
or punishment which was incompatible with respect for human dignity.
Members of the Committee also wanted to know what the current situation
was with regard to the death penalty and what the legal provisions
were for carrying out the death penalty. They sought further clarification
on the actual procedure followed when there was a conflict between
domestic law and an article of the Convention.
of the Committee were interested to know how the country was coping
with difficulties caused by the weight of the past; how the judicial
bodies, the police and the administration were proceeding with current
changes; whether a parliamentary commission dealing with human rights
existed in Belarus; whether Belarus intended to accede to the Second
Optional Protocol to the International Covenant on Civil and Political
Rights aiming at the abolition of the death penalty; whether Belarus
would make the declaration under articles 21 and 22 of the Convention
against Torture and whether it would consider recognizing the competence
of the Committee under article 20.
respect to article 3 of the Convention, members of the Committee asked
what was being done to implement that article and whether new provisions
were being planned to that effect.
237. In connection
with article 6 of the Convention, members of the Committee, having
noted that detention in Belarus could extend to up to six months from
the date of the arrest, drew the attention of the delegation to the
statement made at the time of the consideration of the initial report
of Belarus, according to which custody could not last more than three
days, and requested clarification on that discrepancy. They wished
to know exactly what the maximum period of detention was and whether
pre-trial detention meant that a person was detained until sentencing.
article 7 of the Convention, members of the Committee sought further
information on the rights of the defence and in particular asked how
that complex problem was covered in the new draft code of criminal
procedure; whether there were cases in which no defence counsel was
present and whether the presence of a lawyer was compulsory in cases
article 8 of the Convention, members of the Committee noted that no
information had been given about the question of extradition and asked
whether legislation was in line with the relevant provisions of the
respect to article 10 of the Convention, members of the Committee
wished to know what efforts were being made to disseminate information
on the Convention in the population and among detainees; what training
was being provided to jurists, to prison staff in corrective labour
institutions and to the medical personnel; and whether there had been
any exchanges in the courses taught in faculties of law to include
questions of human rights and, in particular, efforts to combat torture.
article 14 of the Convention, members of the Committee wished to know
what results had been achieved in terms of rehabilitation of the victims
of repression during the period of the personality cult. They also
requested further details on the compensation of victims of repression.
In addition, they asked who was responsible for compensation; whether
the victim could initiate proceedings to obtain compensation, and
to bring an action against the State and against the person who had
tortured him; what measures were being taken to bring former torturers
to justice; what measures had been taken to ensure medical rehabilitation
of the victims of torture.
reference to article 16 of the Convention, members of the Committee
wished to know under what circumstances a person could be held in
isolation; what the relevant legal provisions were in this respect
and whether the isolation was a preventive measure or was applied
once a final judgement had been pronounced; what the minimum and maximum
period of detention in isolation cells was and who decided whether
to place persons in isolation cells.
243. In reply,
the representative of the State party described his country's three
categories of courts, remarking in particular that in judicial matters
an effort was being made to avoid a sudden break with the past and
to emphasize the gradual reform of institutions, phased over a period
of one or two years. Now judges were elected for life and their independence
was guaranteed, which had not been the case in the past. The competence
of the Public Security Committee had been strictly defined and limited
and measures had also been taken to restrict the possibilities of
intervention by the Ministry of the Interior. The Government Procurator's
Office was being transformed into an independent organization that
would no longer be able to bring pressure on the courts. However,
the entire reform process was complicated by the difficult economic
situation and its consequences, especially the increase in criminality.
Under a draft law currently before Parliament, the constitutional
court would consist of 10 judges elected by the Parliament. Should
that court detect any irregularity or incompatibility, it could amend
the texts in question and it would even be empowered to annul any
unlawful decisions of the Supreme Council of the Republic. At its
first session, the Supreme Council had established a Standing Parliamentary
Commission on transparency, the media and human rights.
1975, the number of capital offences had declined considerably; capital
punishment was rarely carried out and was regarded above all as a
deterrent. Under the draft criminal code currently being examined,
capital punishment would be retained for a total of four major crimes,
namely homicide with aggravating circumstances, high treason, genocide
and acts of terrorism.
law took precedence over domestic law. In the event of a conflict
between international rules and the provisions of domestic law, international
law prevailed. That principle was embodied in the Republic's declaration
of sovereignty. The law of 25 August 1991 contained a declaration
that international instruments were applied directly. The courts were
required to use ratified international conventions as models and to
ensure that they were applied. He would not fail to raise with his
country's competent authorities the question of the Committee's concern
regarding the declarations provided for under articles 21 and 22 of
article 1 of the Convention, he explained why the legislation of Belarus
did not contain a definition of torture: in particular, the definition
set out in the Convention, while applicable in Belarus, did not, in
the opinion of his country's experts, cover all possible cases. In
such circumstances, the courts could, in his view, be called upon
to determine for themselves, on a case-by-case basis, whether an act
article 4 of the Convention, he said that in 1992 the courts had sentenced
five torturers, four of them to deprivation of liberty for one to
four years. In addition, disciplinary measures had been taken against
300 officials of the Government Procurator's Office in the Ministry
of the Interior who had been found guilty of abusing their powers.
The maximum punishment for persons found guilty of torture or ill-treatment
was 10 years' imprisonment.
article 7 of the Convention, he said that, under the new provisions
of article 49 of the Code of Criminal Procedure, any person who was
arrested was authorized to contact a lawyer as soon as he was charged
and, in any event, within 24 hours of his arrest. He had the right
to meet his lawyer as often as necessary and to be heard only in the
lawyer's presence. However, a detainee who refused a lawyer's assistance
would not be forced to accept it. Nevertheless, the participation
of a lawyer was mandatory when the accused was liable to a death sentence
and in a few other cases. When accused or detained persons were impecunious,
their legal aid costs were defrayed by the State.
article 8 of the Convention, he said that the constituent republics
of the Commonwealth of Independent States were currently drafting
an extradition convention. Naturally, when there was compelling evidence
that, if extradited, a person would be tortured, extradition was refused.
He quoted specific examples of recent practice in that respect.
article 10 of the Convention, he informed the Committee that the text
of the Convention and of the ratification decree had been published
and widely disseminated in Belarus. The third edition of the compendium
of all international instruments of which Belarus was a signatory
had also been published and was available in bookshops and libraries
throughout the country. Seminars on the international human rights
norms to be respected were held for officials, particularly judicial
officials, parliamentary representatives and members of the militia.
Regarding the training of medical and prison personnel, a basic and
advanced training centre had been opened at Minsk in 1988. Instruction
was given there in the rules laid down by international instruments,
particularly the obligations under the Convention against Torture.
article 11 of the Convention, he said that when detainees asked to
undergo a medical examination because they alleged torture or ill-treatment,
their request was granted.
respect to article 14 of the Convention, he said that at its first
session in 1990 the Parliament of Belarus had established a Standing
Parliamentary Commission for the rehabilitation of victims of repression.
In addition, a law had been adopted on rehabilitation procedures for
such victims. At its current session, the Supreme Council had before
it two new draft laws, one on supplementary measures for compensating
victims of repression and the other on the amounts of such compensation.
More than 120,000 cases connected with the rehabilitation of victims
of repression would be examined within the next two or three years.
respect to the rehabilitation of torture victims, a specialized hospital
had been established near Minsk in 1990 for disabled ex-servicemen,
but also for victims of Stalin's repressive policies, and persons
who had recently been victims of torture or ill-treatment. The cost
of treating victims was borne by the State. Torture victims were also
entitled to free consultations and outpatient treatment.
for victims was obtainable only through the State, which could bring
actions against offenders, whether they were members of the police
or of another body. Each request for compensation had to be addressed
to the judge trying the offence involving torture or ill-treatment.
The judge granted redress for the material injury and the moral wrong
suffered by the victim.
article 16 of the Convention, he said that a person accused of a serious
offence could, if necessary, be detained incommunicado for 72 hours.
A detainee guilty of violating prison regulations could be placed
in solitary confinement for a maximum of two months. That form of
isolation was not contrary to the relevant international rules.
authorities of Belarus were prepared to provide the Committee with
the texts of the main draft laws under discussion and would be extremely
grateful to it for any assistance it could provide in the creation
of a State based on the rule of law.
Conclusions and recommendations
Committee thanked the Government of Belarus for its timely, but incomplete
periodic report; it also thanked the representatives of Belarus for
the additional information and clarification provided.
Committee noted that the political and legal situation in Belarus
allowed for reforms that were broad and far-reaching enough to eliminate
torture and other cruel, inhuman or degrading treatment or punishment.
Committee especially congratulated the Government of Belarus on its
new plans for a modern Constitution, a Criminal Code, a Code of Criminal
Procedure and a Prisons Code, which should be in keeping with the
provisions of the Convention so as to guarantee its full implementation
in the territory of Belarus.
Committee recommended that the Centre for Human Rights of the United
Nations Secretariat should provide the Government of Belarus, at its
request, with advisory services in legal matters and the training
of the personnel referred to in article 10 of the Convention. It would
also be grateful if it could be kept fully informed of the legislative
and other measures taken and the results achieved in the implementation
of the Convention.