Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE

230. The 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).

231. The 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.

232. The 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.

233. The 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.

234. Members 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.

235. Members 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.

236. With 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.

238. Concerning 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 concerning torture.

239. Regarding 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 Convention.

240. With 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.

241. Concerning 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.

242. With 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.

244. Since 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.

245. International 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 the Convention.

246. Concerning 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 constituted torture.

247. Regarding 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.

248. Concerning 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.

249. Regarding 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.

250. Concerning 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.

251. Concerning 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.

252. With 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.

253. With 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.

254. Compensation 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.

255. Regarding 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.

256. The 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.

257. The 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.

258. The 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.

259. The 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.

260. The 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.