Procedural protection of the rights of detainees in custody

The National Report for the Universal Periodic Review (second cycle), prepared by the Ministry of Foreign Affairs, has been published.

As noted in paragraphs 166 and 167 of the National Report to the Universal Periodic Review (second cycle), "to ensure the rule of law and respect for the rights of the detainee, the inquiry agency or investigator must inform the prosecutor of a detention within 24 hours. When considering the appropriateness of keeping a person in custody the prosecutor is obliged to examine all materials containing grounds for the application of such preventive measures, and in some cases personally interview the suspect or the accused. Moreover, prosecutors are required to verify the legitimacy and validity of the detention of citizens, conditions and procedures for their temporary detention on a quarterly basis.

In accordance with Article 108 of the Code of Criminal Procedure, a person suspected of committing a crime may be detained by the prosecuting authority acting within its competence. Detention can take place before instituting criminal proceedings. According to the general rule, the detention may not exceed 72 hours. However, a person may be detained for up to ten days on suspicion of committing a number of very serious crimes.

In accordance with the International Covenant on Civil and Political Rights [further referred to as Covenant] (Article 9), everyone who is arrested shall be informed at the arrest of the reasons for his arrest and shall be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.

As a rule, detention on suspicion for more than 48 hours is recognized as an infringement of Article 9 of the Covenant. Thus, in responseto a personal communication by Zhanna Koush, (Abramava) from Belarus, United Nations Human Rights Committee noted that in the context of examining the reports of the States party submitted under article 40 of the Covenant, it had repeatedly recommended that the period of detention of a person by the police prior to delivery of such person to Judges should not exceed 48 hours. To comply with the provisions of paragraph 3 of Article 9 of the Covenant, any excess of that period shall require special justification, which, however, would not distort the sense of this guarantee. Such rules are implemented and contained in the Criminal Procedure Law of the majority of Belarus's neighboring countries. Thus, in accordance with the Code of Criminal Procedure after 48 hours from the moment of arrest the suspect must be released, unless a preventive measure in the form of detention was chosen for him or the court extended the period of detention. In Poland, Lithuania, Latvia, detention can last up to 48 hours.

In some countries these rules are even tougher: in the UK the police can detain an individual on their initiative for up to 36 hours, after which the detainee must be brought before the court. In France, the detention lasts 24 hours and can be extended for 24 hours by the public prosecutor. In Germany, the rules of detention are reduced to the fact that the detainee must be brought before a judge after the detention, but not later than the following day.

Unfortunately, Belarus has not taken measures (and sees no need for this, obviously) to ensure the use of the preventive measure in the form of detention (arrest) on decision of the judge. The prosecutor is not the person that has the right to exercise judicial power according to the sense of Article 9 of the Covenant. That is why the Human Rights Committee of the UN has found a violation of Article 9 of the Covenant in a number of cases (Smantser against Belarus, Bialiatski against Belarus, et al.), which in itself is an objective assessment of the state of legislation in this regard.

We believe that in Belarus the law has not improved in Belarus in this respect. On the contrary, a degradation of these rights can be observed: since the beginning of 2010 a preventive measure in the form of detention (arrest) can be ordered not only by the prosecutor or his deputy, or the body of inquiry or investigator on a warrant of a prosecutor or his deputy, but also by the Chairman of the Investigative Committee of the Republic of Belarus, Chairman of the State Security Committee of the Republic of Belarus (KGB) or persons performing their duties.

In accordance with part 4 of Art. 9 of the Covenant, "Everyone who is deprived of liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." The report [1] states that the detainees in custody and convicts have the right to seek judicial review of detention, incarceration, house arrest or confinement in psychiatric institution, actions and decisions of the body conducting the criminal proceedings. Complaints are immediately passed to court by the administration of the detention facility: withing one day for detainees and withing three days for prisoners.

It needs to be commented. Indeed, the Criminal Procedure Code of Belarus provides for the possibility of challenging the legality, and since January 2010 – the reasonableness of the use of arrest, detention, house arrest or extension of detention or house arrest.

Complaints of persons held in custody are passed to court through the administration of the place of pre-trial detention facility. The administration of the pre-trial detention facility is obliged to file an appeal to the body which conducts criminal proceedings, within 24 hours after its receipt. The latter shall pass the appeal to court within 24 hours if it has been filed by a detainee, and withing 72 hours if filed by a prisoner, with attaching the materials of the criminal case confirming the legality and validity of detention, the use of remand in custody, house arrest or extension of detention or house arrest.

Judicial inspection of the legality and validity of detention shall be conducted within 24 hours; inspection of detention, house arrest or extension of detention or house arrest – within 72 hours since its receipt by court, by a single judge.

Thus, the minimum period after which the complaint will be considered, taking into account the time of delivery of documents to the body conducting the criminal proceedings, is at least three days in the case of detention, after which the complaint makes no sense at all. The law will not be violated if an appeal against detention is considered 8-10 days after it was filed.

Consideration of the complaint in court takes place in a closed court hearing, usually without personal involvement of the detainee, which is permitted by the law. Thus, we can definitely state a violation of fair trial standards when considering the legality and validity of the detention or arrest. Review of the judgment is carried out without the participation of the interested person.

The wording of the law does not allow filing a repeated complaintagainst the choice of a preventive measure in the form of detention (this, in particular, was stated by the judge in 2011 when considering the repeated complaint about the detention of presidential candidate Andrei Sannikau;the complaint was filed again, as in the course of the proceedings there were discovered new circumstances affecting the keeping the accused person in custody). This provision of the law also does not protect prisoners in the sense of Article 9 of the International Covenant on Civil and Political Rights.