OBCE Moscow Mechanism report confirms that Belarusian justice system is incapable of conducting investigations into the cases of torture, election falsification and violence against peaceful protesters. This prompted the authors of the report to suggest establishment of an independent court.
Official position towards defense counsel has changed after the events of August 2020: defense attorneys are not even allowed to make copies of the cases. But lawyers are not powerless: there were instances when they were able to gather evidence and defend their clients. Amid the events of the recent months, solidarity of lawyers and legal professional only grew.
Under the Convention on torture Belarusian law enforcement officers can be prosecuted under the universal jurisdiction — this means that they can be charged anywhere (as this Convention is ratified by most countries). What are the odds of this taking place? In 1943 no one expected there would be the Nuremberg trial. And now OBCE report added Belarus to the list which resulted in 4 tribunals — International War Crime Tribunals following the World War II: the Nuremberg trial (investigated war crimes of Nazi Germany) and the International Military Tribunal for the Far East also known as the Tokyo Trail (investigated war crimes of Nazi Japan) and investigations of genocide in Rwanda and Yugoslavia.
Reasons for the legal default in Belarus
Institutional. The power to appoint and remove every law enforcement officer is centralized. De facto there is no separation of power in Belarus. The process of personnel selection has been perfected over the decades: those who were willing to do everything to keep their position stayed and were promoted. Those who regarded law above all were forced out.
Historical. The country did not modernize its institutions after the fall of USSR, preserving characteristic practices and methods of work. Bolsheviks regarded law as the will of the ruling classes needed to control and suppress the rest. Belarusian authorities interpret the law much in the same way.
Is there a solution to address the legal default in the country and will the new constitution help?
To find a way out of the legal default, we need to change personnel and restructure all law enforcement agencies (Courts: regional, constitutional, supreme; Investigative Committee, Prosecutor’s Office, Election Commissions, Ministry of Internal Affairs). One of the reasons why Belarus finds itself in the current situation — this hasn’t been done after the fall of the USSR. If the person is ready and willing to put innocent people in jail to keep the salary and pension, do we really need him/her as a judge?
What can be done to prevent this from happening in the future? There must be a real separation of powers (today it is a fiction and the power over the law enforcement personnel decisions are concentrated in one center) and people who are not willing to follow and preserve the rule of law must be replaced.
Will the new constitution solve the problem? Short answer is no. If we will prepare five different drafts of the new constitution, but the same Election Commission will count the votes, we will only waste our time.
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