HUMAN RIGHTS IN BELARUS

Mikhail Pastukhov

Minsk

TABLE OF CONTENTS

Introduction.....................................................................................3

Postscript......................................................................................4

The Legal Basis for the Ruling Regime: the Illegitimate Constitution...................4

The Legal Status of the Individual in Belarus..............................................5

Empty Declaration of Rights with No Freedom: Belarus Today...........................10

Violation of Human Rights Through Presidential Decrees................................17

The Courts: Agencies of Oppression against Opponents of the Regime

or Guardians of Civil Liberties?..............................................................34

Restoration of Legality and Democracy: the Only Way out of the Crisis...............39

Appendices (Statements Made in Defense of Human Rights) [Not included in translation].

"The individual is the highest value of society and the state. The state is responsible to the citizen for creating the conditions for a free and adequate development of the individual."

(Art. 2 of the Constitution of the Republic of Belarus)

"Ensuring he rights and liberties of citizens of the Republic of Belarus is the highest aim of the state. The state guarantees the rights and liberties of the citizens of Belarus enshrined in the Constitution, laws, and required by the international obligations of the state."

(Art. 21 of the Constitution of the Republic of Belarus)

"The state is obliged to take all available measures to create the domestic and international system necessary for the full exercise of the rights and freedoms of citizens of the Republic of Belarus, envisioned in the Constitution."

(Art. 59 of the Constitution of the Republic of Belarus)

INTRODUCTION

After the so-called referendum was held in Belarus in November 1996, and the new version of the Constitution was unlawfully enacted, the human rights situation rapidly deteriorated. Seizing total power in the government, President Alexander Lukashenko launched a wide-scale offensive against all his political opponents using all available means, from policemen's truncheons to fines of newspapers totaling many millions of rubles.

The police were particularly brutal in retaliating against participants in mass public demonstrations on March 23, which was the 79th anniversary of the formation of the Belarusian People's Republic, and on April 2, when demonstrators expressed protest against the unification of Belarus and Russia. Hundreds of people were beaten and detained. Among the victims were young and elderly people, women, journalists, and foreigners.

In dispersing the peaceful protests, the police widely deployed rubber truncheons, tear gas, and physical force. Policemen did not stopped even when journalists or members of parliament showed their identification. Mass protests against the Belarusian-Russian union took place in May 1997 as well.

For several months now in Belarus, the peaceful demonstrators have been facing trials. Hundreds of citizens have been sentenced to fines and administrative arrests for "violation" of the President's Decree No. 5 of March 5, 1997, "On Meetings, Rallies, Street Processions, Demonstrations and Pickets in the Republic of Belarus." [Henceforth referred to as the March 5 Decree on Demonstrations.]

A harsh police regime has essentially been installed in Belarus, where human rights lose their meaning, retreating in the face of the force of the punitive agencies.

POSTSCRIPT

On May 23, 1997, the treaty on the Union of Belarus and Russia was signed. Will it lead to an improvement in the human rights situation? And how long-term and effective will this Union be? These questions will probably be answered soon.

Human rights have always been seen as the foundation of the freedom of the individual and an indicator of the well-being of a society. In that sense we have nothing to brag about. Citizens' lack of rights and the absence of freedom have become characteristic features of Belarusian society. And yet the path to well-being lies through progress, democracy, and freedom. When will Belarus take this path?

THE LEGAL FOUNDATION FOR THE RULING REGIME: THE ILLEGITIMATE CONSTITUTION

In the summer of 1996, President Alexander Lukashenko advocated holding a national referendum on a number of issues of importance to the state and society. Chief among these was the question of amendments and additions to the Constitution of the Republic of Belarus of 1994 [the 1994 Constitution]. The proposed amendments and additions affected most of the articles of the Constitution. The new redaction introduced a section on the government. Not only the structure and procedure for forming government agencies were changed, but also the powers of these agencies.

A leading role in the new system of government agencies was accorded to the president who was declared the "head of the state, the guarantor of the Constitution of the Republic of Belarus, the rights and liberties of the person and the citizen." By comparison with the 1994 Constitution, his powers are significantly broadened, and his authority is made virtually unrestricted. In my view, that was the true purpose and exigency for holding the referendum.

For two weeks (from November 9-24, 1996), there was a national vote in Belarus on the questions contained in the referendum. A lot has been written about the manner in which the Belarusian plebiscite was conducted. There is every reason to concur with the opinion of Semyon Sharetsky, the chairman of the Supreme Soviet of the Republic of Belarus (13th Session), who called the November 1996 referendum "a farce and an abuse of the people."

Because of the numerous violations of the law and the blatant falsification of the vote count, the "referendum" was not recognized by the Presidium of the Supreme Soviet of the Republic of Belarus, the democratic community of Belarus, the State Department of the United States, and also major international organizations (the Organization for Security and Cooperation in Europe [OSCE], the Council of Europe, the European Union, and the International Helsinki Federation for Human Rights).

As a result, the new redaction of the Constitution that was put to a national vote must be considered illegitimate. The following reasons serve to confirm this fact.

First, by its decision of November 4, 1996, the Constitutional Court ruled that on the issue of amendments and additions to the Constitution, the referendum could only be a recommendation. Despite the Court's decision, which is final and must be executed, President Lukashenko issued two decrees (dated November 5, 1996, no. 455, "On the Procedure for Enforcement of Decisions of Republican Referenda on Amendments and Additions to the Constitution of the Republic of Belarus" and November 7, 1996, no. 459, "On Guarantee of the Constitutional Right of the Citizen to Participate in the Referendum"), which established the binding nature of the referendum on the issue of amendments and changes to the Constitution. (After the signing on November 22, 1996, of the Accord on the Socio-Political Situation and on Constitutional Reform in the Republic of Belarus, in which the binding nature of the referendum is established regarding amendments and additions to the Constitution, President Lukashenko revoked his decrees of November 5 and November 7, 1996. However, on the following day, accusing the Supreme Soviet of not fulfilling the terms of the Accord, he again put them into effect).

Second, numerous violations of the law were committed in the preparation and conducting of the referendum. The mere fact that V. Gonchar, the chairman of the Central Commission on Elections and National Referendums, was dismissed from his post (Decree No. 469 of November 14, 1996) puts the referendum's legitimacy in question. Moreover, from November 15 through November 24, the Central Commission was blocked by armed men from the president's guard.

Third, there are valid reasons to distrust the officially proclaimed results of the vote. According to figures from various sources, 20 to 50 percent of the votes were falsified during the counting of ballots. Moreover, to this must be added about 20 percent of the citizens who voted in advance with absentee ballots, since the procedure for absentee ballots was egregiously violated.

Ignoring the ruling of the Constitutional Court and basing himself on the dubious figures from the Central Election Commission, President Lukashenko declared the new version of the Constitution of the Republic of Belarus to be adopted and ordered that it be considered binding for enforcement.

According to the findings of a mission of experts who studied materials on the legality of the November 1996 referendum, the Council of Europe passed a special resolution in which it acknowledged that "the Constitution of 1994 remains the only legitimate supreme document of the Republic of Belarus, and the parliament, elected on the basis of this Constitution, is the legitimate legislative body."

Thus, there are sufficient legal and factual grounds to assert that the new version of the Constitution is illegitimate, and the activity of the government bodies formed upon its basis (the National Assembly of the Republic of Belarus, the Constitutional Court, the Supreme Court, the Supreme Economic Court, and the Committee for State Control) are unlawful. The President of the Republic of Belarus, who under cover of the so-called referendum, thus committed the most ordinary of coup d'état, has also lost his legitimacy.

THE LEGAL STATUS OF THE INDIVIDUAL IN BELARUS

The 1994 Constitution of the Republic of Belarus guarantees a wide spectrum of civil rights and liberties: individual (civil), political, socio-economic, and cultural. These fully conform with the universal standards for human rights in the 1948 Universal Declaration of Human Rights, the 1966 International Covenants on Human Rights, and other international standards.

It is characteristic that regarding human rights, the new version of the Constitution (the "constitution" of 1996) has not undergone any substantive changes and essentially reiterates the fundamental civil rights and liberties that are proclaimed by the 1994 Constitution.

Taking as our basis the legitimate 1994 Constitution of Belarus, let us examine the rights and liberties defining the legal status of the individual in Belarus, while contrasting them with the amendments and additions proposed in the "constitution" of 1996.

The 1994 Constitution contains the following individual (civil) rights and liberties:

• the right to life (Art. 24);
• the right to the liberty, inviolability, and dignity of the individual (Art. 25);
• the right to judicial review of the lawfulness of detention or arrest in the event of imprisonment under custody (Art. 25);
• not to be subject to torture or cruel, inhuman, and degrading treatment or punishment (Art. 25);
• not to be considered guilty of commission of a crime if guilt has not been proven through due process and confirmed by a court sentence in force (Art. 26);
• not to be forced to give testimony and depositions against oneself, family members or close relatives (Art. 27);
• the right to protection from unlawful interference in one's personal life, including infringement of the privacy of correspondence, telephone or other communications, and of honor and dignity (Art. 28);
• the right to inviolability of the domicile and other lawful possessions. Furthermore, no one has the right without a legal basis to enter a home or other lawful property of the citizen against his will (Art. 29);
• the right to freedom of movement and to choice of one's residence within the Republic of Belarus, the right to leave and return without hindrance (Art. 30);
• the right to independently determine one's attitude toward religion, alone or with others to confess or not to confess any religion, to express and disseminate convictions related to religion, to take part in religions cults, rituals, or ceremonies (Art. 31);
• the right to voluntarily enter into marriage and start a family upon attaining the lawful age for marriage (Art. 32);\
• the right to special care and assistance for maternity and children (Art. 32).

These rights and liberties are textually repeated in the new version of the Constitution. An addition has been made only in Art. 32 regarding the protection of marriage, the family, maternity, paternity, and children. Three new standards have been added in particular. According to the first, children can be removed from their family against the will of their parents and other guardians only by court order if the parents or guardians do not perform their duties. Another new addition concerns providing women with opportunities equal to men to receive an education and professional training in labor and advancement in careers (work) in the socio-political, cultural and other spheres of activity. The third addition guarantees to young people that the necessary conditions will be created "for a free and effective participation" in political, social, economic and cultural development.

In my view, these innovations add nothing to the legal status of the individual. The first two norms are contained in the relevant section of the law (family, labor, etc.) and the guarantees for youth are not backed by anything.

Citizens of Belarus are provided the following rights and liberties in order to participate in political (state and civic) activity:

• freedom of opinions, convictions, and their free expression (Art. 33);
• the right to receive, retain, and impart complete, accurate and timely information about the operation of government bodies, public associations, on political, economic, and international affairs, and the state of the environment (Art. 34);
• freedom of meetings, rallies, street processions, demonstrations, and pickets which do not violate law and order and the rights of other citizens (Art. 35);

• the right to freedom of assembly (Art. 36);
• the right to participate in deciding matters of state both directly and through freely elected representatives (Art. 37);
• the right to freely elect and be elected to government bodies on the basis of a universal, equal and direct right to vote with a secret ballot (Art. 38);
• the right to equal access to any positions in government bodies in accordance with ones abilities and professional training (Art. 39);
• the right to send personal or collective appeals to government bodies (Art. 40).

The second innovation concerns Art. 38, guaranteeing the right of the Belarusian citizen to freely elect and be elected to government bodies on the basis of a universal, equal and direct right to vote with a secret ballot. The 1996 "constitution" proposed holding the elections not only on the basis of the direct but also indirect right to vote, which is a retreat from the democratic principles of the electoral system which leaves the way open for abuse. In particular, this was seen during the elections to the Soviet of the Republic of the National Assembly of the Republic of Belarus [the parliament] which was conducted according to the rules established by the presidential decree of December 11, 1996, "On the Approval of the Resolution on Election of Members of the Soviet of the Republic of the National Assembly of the Republic of Belarus."

The 1994 Constitution guarantees the following rights and liberties in the area of socio-economic and cultural affairs:

• the right to work as the most worthy means of self-affirmation of the person (Art. 41);
• the right of the unemployed to training in new professions and upgrading their skills while taking into account social demands, and also to unemployment assistance (Art. 41);

• the right of workers to defend their economic and social interests, including the right to join trade unions, to conclude collective bargains (agreements) and the right to strike (Art. 41);
• the right of persons hired to compensation for work done in accordance with its quantity, quality, and social significance, but no lower than the minimum amount established by the government (Art. 42);
• the right of workers to vacation (Art. 43);
• the right to property, that is the right to own, use, and dispose of property both individually and together with other persons (Art. 44);
• the right to protection of health, including free treatment in state health facilities (Art. 54);
• the right to a decent environment and to compensation of harm that causes violation of this right (Art. 46)

• the right to social security in old age, in the case of illness, disability, loss of ability to work, loss of the family provider and in other cases [provided by law] (Art. 47);
• the right to housing (Art. 48);
• the right to education (Art. 49);

• the right to preserve ethnic affiliation and also not be forced to determine or indicate ethnic affiliation (Art. 50);
• the right to speak one's native language and choose the language of communication (Art. 50);
• the right to participate in cultural life (Art. 51);
• the right to freedom of artistic, scientific, and technical creativity and teaching (Art. 51).

These socio-economic and cultural rights and liberties are provided in the new version of the Constitution. There are only some clarifications. Thus, in Art. 42, guaranteeing persons working for hire the right to compensation for work performed, there is a phrase concerning the "fair amount of compensation for the economic results of the labor" and "not lower than the level guaranteeing them and their families a free and decent existence." But what kind of "fair" amount of compensation can be meant here, when according to the analyses of economists, the majority of the population of Belarus lives under the poverty line?!

Art. 44 of the Constitution has also been revised, as follows: "Property acquired lawfully is protected by the state." From a legal perspective this version of the law must be considered unsubstantiated. It essentially assures a presumption of guilt regarding all property owners. Government agencies (customs, tax, financial, etc.), following this norm, can make claim to the property of citizens, commercial banks, and firms, and if these entities do not provide convincing proof of their right to the property, it will be subject to confiscation.

A change to par. 3 of Art. 44 seems insignificant at first glance. It provides for the possibility of forcible removal of a citizen's property: instead of the word "in accordance with a court sentence," the phrase is rendered "in accordance with the a court order." In practice this can lead to an increase in the forced removal of property in particular through confiscation. Something like this is already going on. Various state agencies have confiscated items banned for import across the boarder; foreign currency, which a citizen was intending to sell by bypassing the official currency exchanges; and the white and red flags of demonstrators. The reference to an "established norm" can become a legal form of confiscating property from citizens on any pretext that the president deems appropriate in his decrees.

The last part of Art. 44 should be seen as an unjustified restriction of the right to property: "the exercise of the right to property must not contradict public welfare and safety, cause damage to the environment, historical and cultural valuables, or infringe on the rights and lawful interests of others persons."

An addition to Art. 48 has been made for strictly populist purposes: citizens who "need social protection" are given housing free or for an affordable payment in accordance with law.

Under the Constitution of Belarus, the so-called rights-guarantees make up a separate group of civil rights: the right to judicial defense (Art. 61) and the right to legal aid, including the right to use the assistance of lawyers and other representatives at any time (Art. 62). To these rights-guarantees are added the obligations of government bodies, officials and others entrusted with executing state functions to take, within the limits of their jurisdiction, the necessary measures to enforce and protect the rights and liberties of the individual (Art. 60).

President Lukashenko's numerous violations of the Constitution and the laws of the Republic of Belarus justified the initiating of impeachment procedure by 73 deputies of the Supreme Soviet. On November 19, 1996, the Constitutional Court began a proceeding in the case entitled "On the violation of the Constitution of the Republic of Belarus by the president of the Republic of Belarus A. G. Lukashenko ." However, on November 26, 1996, it suspended the proceeding "in connection with the absence of the relevant party in the case".

After the unlawful enforcement of the new version of the Constitution, human rights abuses in Belarus became en mass. Most of all, the authorities increased their attack on freedom of expression and information, obstructing the activity of the independent media in every way possible. Government distribution agencies refused to sign contacts with independent publications; tax authorities hit such periodicals with unfair fines, and they were constantly given prosecutors' warnings for publishing critical materials. Popular newspapers like Narodnaya volya, Belorusskaya delovaya gazeta, Imya, and Belorusskaya gazeta were unable to gain access to printing presses within Belarus and were forced to publish abroad. Repressive measures were also taken against independent radio station and television companies. The following were closed on various pretexts: Radio 101.2 FM in Minsk; Radio NBK in Grodno, and TV Channel 8 in Minsk.

Another obstacle for the independent press was a decree from the Council of Ministers of the Republic of Belarus, dated March 18, 1997, no. 218 "On the Imposition of Prohibitions and Restrictions on Transport of Items Across the Customs Border of the Republic of Belarus." In violation of international standards and the existing domestic law, the list of items prohibits for transport across the customs border includes "printed and audiovisual materials and other information carriers containing information that could cause harm to the political or economic interests of the republic, its state security, and publish health and morals." Essentially, this decree was the imposition of censorship at the border since the customs agencies can prohibit the import and export of printed matter, cassettes and other information carriers if they, in their opinion, they "can cause harm to the political or economic interests of the republic." A similar ban was already in place, for example, on the import of newspapers printed in Lithuania.

Independent journalists, including Russians covering Belarus, are subjected to deliberate persecution and discreditation. In an unprecedented case, Alexander Stupnikov of Russia's independent NTV, was accused of broadcasting "tendentious information," stopped of his accreditation and expelled from Belarus.

A wide spectrum of human rights violations was seen during the mass public demonstrations in March and April of 1997. Many of the demonstrators and even accidental passers-by were subject to beatings by police officers, detained without sufficient cause, and then tried and convicted. Constitution Day, the government holiday, was no exception, when more than 100 people were detained for taking part in a holiday demonstration. According to information from the Belarusian Helsinki Group, for taking part in street processions, demonstrations, rallies, and pickets during this period (March-April 1997), 386 people were detained, including 15 minors, 29 women, 14 journalists, and deputies of the Supreme Soviet of the Republic of Belarus. The legal basis for such a massive violation of the human rights of participants in public demonstrations was the anti-Constitutional presidential Decree No. 5 of March 5, 1997, "On Meetings, Rallies, Street Processions, Demonstrations, and Pickets in the Republic of Belarus."

In the new edition of the Constitution, the rights-guarantees added to Art. 61, ensure the right of every individual to appeal to international organizations to defend rights and liberties, if all available domestic governmental means for legal defense have been exhausted. Despite all its attractiveness, this article only restates what was already achieved: in September 1992, the Republic of Belarus signed the optional protocol to the International Covenant on Civil and Political Rights and Belarusian citizens received the right to appeal directly to the UN Human Rights Committee with complaints about the violation of rights proclaimed in the Covenant.

The legal status of the individual is also characterized by the presence of duties imposed on citizens. Thus, citizens of Belarus and persons who live temporarily or permanently on the territory of the Republic are obliged to observe the Constitution and laws and respect national traditions; to respect the dignity, rights, freedoms, and lawful interests of other persons; to preserve the historical and cultural legacy and other cultural values; and to conserve the environment. Moreover, citizens of the Belarusian state must participate in funding government expenses through payment of taxes, duties, and other fees; and they must defend the Republic of Belarus.

In completing our examination of the question of the legal status of the individual in Belarus, let us note Art. 21 of the Constitution, which proclaims: "Guarantee of the rights and liberties of the citizens of Belarus is the highest aim of the state. The state guarantees the rights and liberties of the citizens of Belarus enshrined in the Constitution and laws and stipulated by the international obligations of the state."

The first part of this article presupposes that the state, all its agencies, and all officials must apply all their efforts to create the conditions necessary for the implementation of rights and liberties. From the perspective of the Constitution, facts of violation or infringement of civil rights and liberties are not permissible.

The second part of the article means that the Republic of Belarus, as a member of the world community, fully acknowledges for its citizens the rights and liberties accepted in the international acts that it has ratified. This group of rights and liberties, in the sense of the Constitution, is a component of the legal status of the citizen of Belarus. Citizens have the right to demand the implementation of these rights from state agencies by appealing if necessary to the court as well as to international bodies for the protection of their rights.

Thus, the rights and liberties of citizens of Belarus have three sources of guarantees: the Constitution, the laws, and international legal acts ratified by the republic. They are self-enforcing mechanisms requiring from the relevant government agencies and officials the necessary measures to implement the defense of rights and liberties. Restriction of individual rights and liberties can be permitted only in instances provided for by law and only in the interests of natural security, public order, the protection of public health and morals, and the rights and liberties of other persons (Art. 23 of the Constitution). There can be no sublegal acts, including the decrees and orders of the president, resolutions of the government, internal ministerial instructions. Prohibitions and exceptions cannot be established on the exercise of rights and liberties. Each such incident must be viewed as abuse by the government and persecution of the people which justifies appropriate measures against the violators.

EMPTY DECLARATION OF RIGHTS WITH NO FREEDOM: BELARUS TODAY

After his election in July 1994 as president of Belarus, Alexander Lukashenko repeatedly violated civil rights and liberties by abusing his official position. For example in March 1995, in violation of existing legislation, he removed Iosif Seredich, editor in chief of the parliamentary newspaper, from his position. Seredich now publishes Narodnaya Volya independently. In August 1995, he cracked down on striking metro workers. In September 1995, he took pensions away from pensioners who worked, as well as other benefits provided by law for whole other segments of the population. In December 1995 he reduced the staffs of the local Soviets of Deputies, or elected representatives. Despite Constitutional guarantees and the laws of the Republic of Belarus, President Lukashenko arrogated to himself the right to appoint the highest officials, at a time when this required the preliminary consent of the Supreme Soviet [parliament]. Moreover, he published a decree (dated July 13, 1995, no. 271) which established the amounts of wages for officials who were not under his official jurisdiction (heads of courts, the prosecutor's office, staff and deputies of the Supreme Soviet, the chairman of the Central Election Commission, the chairman of the board of the National Bank, and so on).

Evaluating the status of Constitutional legality in the Republic of Belarus in 1995, the Constitutional Court acknowledged that the state of human rights in the country was not satisfactory. In that regard it stated that "norms of the Constitution are largely declarative, including the guarantee of the rights and liberties of citizens, defense of their economic and social interests, and the labor and compensation for work perform, to social security in old age and to participation in deciding matters of state both directly and through their freely elected representatives, and to obtain full, accurate, and timely information on the operation of state agencies." In its Memorandum, the Court cited a number of facts of human rights violation in the president's decrees and noted that repeated attempts to discredit the Constitutional Court had been made by the executive branch, which even raised the question of dismantling the Constitutional Court.

The situation did not improve in 1996. Because of counteractions by presidential offices, the 13th Supreme Soviet could not effectively engage in legislative activity. The president's decrees became the chief form of legal regulation of social relations. They affected virtually all spheres of the government's activities. Some of them contradicted the norms of the Constitution and the laws of the Republic of Belarus. Thus, in 1996, the Constitutional Court pronounced unconstitutional (in whole or in part) four decrees: No. 464 of November 14, 1995, "On the Creation of a Personnel Register for the Head of state for the Republic of Belarus"; No. 476, November 29, 1995, "On Approval of the Statute on the Chairman of the Regional and Minsk Municipal Executive Committee [government]; No. 519, December 26, 1995, "On Some Matters of Guaranteeing the Operation of Local Soviets of the Republic of Belarus"; No. 233 of June 28, 1996, "On the Reorganization of the Editorial Board of the Newspaper Narodnaya gazeta." Several other presidential decrees were under review by the Court (in particularly, no. 208 of May 24, 1996, "On Some Measures to Regulate the Activity of Subjects of the Economy"; no. 455 of November 5, 1996, "On the Procedure for Enforcing Decisions of Republican Referenda on the Amendment and Addition to the Constitution of the Republic of Belarus' no. 459 of November 7, 1996, "On Guarantee of the Constitutional Rights of Citizens to Take Part in a Referendum") but the Court did not manage to complete and deliver all of its findings. In all, the Constitutional Court declared 29 presidential legal acts as inconsistent with the Constitution and the laws of the Republic. Almost all of them concerned civil rights and liberties.

Proof of the authorities' abuses (specifically police officers and others who detained demonstrators) can be seen in the hundreds of appeals to the Belarusian Helsinki Committee. We cite several of them as examples:

L., age 18, writes in a complaint: "On February 14 at 19:40 on Varvasheni Street, unidentified persons in plainclothes grabbed me and threw me into a car. There were two uniformed policemen and one plainclothes person inside. I was pushed roughly, and the door was shut on my footThe minute they detained me I began to beg them to let me go. But I only heard insults in reply. At the Central District Department of Internal Affairs [district police precinct] I was taken to a filthy room where there were other detaineesI was interrogated by three people. Then I was once again taken back to the room where I waited from 22:00 to 00.30. After that the deputy police chief wrote out a summons for me and said that if I did not appear at the time indicated I would be brought in forcibly and given 13 days in jail."

An excerpt from a complaint from D.: "I was detained at the Main Post Office building by people in plainclothes. Without displaying any identification, they dragged me into a car parked nearby. A teen-age girl was also in the car with me. The policemen indulged in unprintable swear words during the trip. After we were taken to the October District Department of Internal Affairs to process our papers, people were taken who had not attended opposition events. The police reports were written up under dictationWe were held in the cell all time. We were not fed the whole time we were held and only rarely allowed out under guard to use the toilet. We were constantly yelled at, the familiar form of ‘you' was used in conversation, and we were sworn at."

Sh., a student in the eleventh grade: "On March 10, I was coming back from the library. On Volodarsky Street a man in plainclothes fell upon me from behind. He spoke very rudely to me. When I complained that my back hurt, he struck me, and said "Is that better?" He took me to the police station. There I was held for four hours and then handed over to my parents.The man who detained me did not show me any identification and at first I thought he was a mugger or a sexual predator."

Ch., age 18: "On April 2 my friends (K. and Ya.) and I were returning home at about 24:00 on Mendeleyev Street. The bus didn't come for a long time and we decided to take a taxi. To hail a cab I stepped off the sidewalk and raised my arm. At that moment a police car stopped nearby. Three people jumped out and without saying a word grabbed me and shoved me into the car. When I asked "What am I guilty of?" one of the policemen struck me sharply with a truncheon. Then they turned into some side street and asked me to get out in order to go home. When I stepped out, one of the policemen stuck his leg out to trip me. I fell, and they began to beat me. They beat me for a long time, with truncheons, and kicked me. When I tried to defend myself from the blows, they put handcuffs on me. After that I was brought to the Partisan District Department of Internal Affairs, where an arrest citation was written. When I was asked to sign it I refused, and then was beaten once again."

Policemen displayed particular brutality to demonstrators on April 2, 1997, when several thousand people marched to the Russian Federation Embassy in order to protest the signing of the Treaty on the Union of Belarus and Russia. Hundreds of citizens were beaten for no reasons, and more than 150 people were detained. V. Shchukin, a journalist, and deputy of the 13th Supreme Soviet of Belarus, wrote about the police brutality most expressively. He himself was severely beaten and hospitalized.

On May 22, 1997, when democratically-oriented youth staged a picket in protest against the Belarusian-Russian Union, the police once again resorted to bully clubs. More than 40 people were detained during the dispersal of the group, and almost half of them were later tried in court.

The right of citizens to elect freely and be elected to government bodies was repeatedly violated by the president and his entourage. Thus, after the "victorious" results of the November 1996 referendum were announced, the president forbade holding second-round run-off elections for deputies of the Supreme Soviet and local soviets in the electoral districts where they had not taken place. The Central Commission for Elections and Republican Referenda in violation of existing law refused to register even those candidates to the Supreme Soviet who had gathered the necessary number of votes.

Presidential Decree No. 2 of December 11, 1996, "On Amendments and Additions to the Law of the Republic of Belarus on the Election of Deputies to Local Soviets of Deputies of the Republic of Belarus," has substantially restricted the right of residents of the city of Minsk to have representatives in the city soviet, or representative body of government. This unlawful decree reduced the number of deputies of the Minsk city soviet from 84 to 55. This action was necessary so that the illegitimate number of elected deputies of the Soviet (only 36 deputies were elected) could have the appearance of a lawful body of government, and to give it the right to take part in the election of members of the Soviet of the Republic of the National Assembly [parliament].

By virtue of this protectionist personnel policy, the right of citizens to have equal access to any positions in the government's bodies has been violated. The cadres are chosen by the president under strict control and personal guidance. Thus, as early as November 1995, by president decree (No. 464, "On the Creation of a Personnel Register for the Head of State of the Republic of Belarus), special lists of offices of top officials in government agencies were approved and could only be appointed with the consent of the "head of state." The following offices were included in the register: the chairman of the Supreme Soviet and his deputies; the chairmen of the supreme courts, their deputies and members; the Prosecutor General and his deputies; the chairman of the board of the National Bank; the heads of government universities; the editors in chief of national newspapers and journals; and the chairmen of the regional and Minsk city soviets of deputies. Despite the fact that this decree was pronounced unconstitutional, the president has preserved his monopolistic right to the "cadres." This right became absolute after the enaction of the new version of the Constitution.

Fundamental social and economic rights and freedoms of citizens are also not enforced, including the freedom to choose one's work with acceptable labor conditions and receive appropriate compensation for work performed. In many branches of the economy the wages are below the minimum consumer budget and consist of an average of US. $50-60 per month. According to estimates from the Belarusian Independent Association of Industrial Trade Unions, more than half of hired workers live below the poverty line. Almost a fourth of laborers work at factories which do not meet sanitary and hygienic standards. People's impoverished material condition lead to insufficient or monotonous diet, and increase in diseases and premature death.

It should be noted that there is a secret ban on hiring the deputies of the Supreme Soviet who did not recognize the "presidential" constitution, as well as other representatives of the opposition who have been fired from their jobs for not accepting the president's line. Such persons are on the appropriate "watch" list and the way is barred for them to work in any government agency, organization, or university.

Unemployment is growing in Belarus. As of April 1, 1997, the government employment agency recorded 178,000 on its rolls, or 3.2 per cent of the whole able-bodied population. Under Presidential Decree No. 7 of March 17, 1997, "On Additional Measures to Provide Employment for the Population," the number of unemployed persons must be kept below 130,000. Unemployment assistance is to be paid only if workers work a certain numbers of hours of community service, which grossly violates the Belarusian Constitution as well as ILO conventions. According to figures from the independent trade unions, however, hidden unemployment involve up to 40 percent of the total number of workers.

In violation of the Constitution and the law, authorities obstruct the development of the independent trade union movement. Thus, for a year the Ministry of Justice has refused to register the Congress of Democratic Trade Unions of Belarus. In doing so, the Ministry cites the unconstitutional presidential decree No. 336 of August 21, 1995, "On Some Measures to Provide Stability and Law and Order in the Republic of Belarus," under which the activity of the Free Trade Union of Belarus was suspended (and virtually banned). The Appeal to the International Community by the Belarusian Independent Trade Union is evidence of the violation of civil rights to defend economic and social interests, including the right to joint in trade unions.

The following rights are guaranteed at an extremely low level: the right to protect health, the right to housing, to education, to social security in old age, and in case of illness, disability, or loss of ability to work and other instances stipulated by law. People are virtually compelled to live in regions polluted by radiation, which is not consistent with the right of citizens to a decent environment.

The failure of the government to provide socio-economic rights to works leads to universal impoverishment of the population. People's abilities and professional training are increasingly going to waste. Young people do not have faith in the future. Elderly people are finishing out their days in poverty, and they now make up a quarter of the population.

Individual (civil) rights and liberties are losing their significance in Belarus. The authorities blatantly ignore civil rights and liberties. A person is essentially unprotected both from the president's abuse, with his anti-constitutional decrees and orders, and the fury of the ordinary policeman with his truncheon. Without any grounds, a citizen can be detained, beaten, and then tried. Policemen, as keepers of order, have virtually been given an "indulgence" to use force on citizens disloyal to the regime.

Many individual (civil) rights and liberties are grossly violated in practice, including the right to freedom and the inviolability and dignity of the person. In police precincts, as well as other detention facilities, citizens are subjected to cruel, inhuman, and degrading treatment. Instead of the presumption of innocence, everywhere the principle reigns of "each detainee or arrestee must be tried."

The right to the inviolability of the home and the right to protection from unlawful interference in privacy are violated left and right. Police and "persons in plainclothes" without any warrants conduct searches at the headquarters of opposition parties, and break into the apartments of persons who have taken part in rallies, street processions, and demonstrations.

An egregious instance of violation of civil rights was the case of Valery Shchukin , deputy of the Supreme Soviet of the Belarusian Republic. On May 15, 1997 at 22:00, two policemen came to the apartment of V. Schukin's son, where he was at the time, and demanded that he collect his belongings and come with them. The deputy said that he wasn't going anywhere for the night and promised to come in the morning. The policemen left, and V. Shchukin took a sleeping tablet and went to bed. In about an hour, seven policemen came to the apartment. They roused the deputy from his bed and pushed him into a police van undressed. First Shchukin was taken to the Moscow District Department of the police, but since the police in that district did not have any claims against Schukin, he was taken to the Central District Department. "All of that time I was under the influence of a sedative and know what happened to me only from the accounts of witnesses," Shchukin told a correspondent. He awoke in pain, lying on a cement floor, to find a police lieutenant kicking him. The policeman then grabbed him by the beard and dragged to a room for detainees. Other policemen came and tried to write up a citation for taking part in an unauthorized procession on May 14. Shchukin refused to provide testimony. After holding the deputy for three hours at the police station and unable to get any testimony from him, the policemen were forced to drive Shchukin back home.

The next day Shchukin came to the police department. The police no longer demanded any testimony from him. The duty tried to learn the name of the lieutenant who had beaten him, but the police supervisor said there was no such person working in their department. Shchukin wrote a statement to the prosecutor's office about the fact of his unlawful arrest and beating.

Despite the Constitutional guarantee of the right of citizens to freedom of movement and choice of residence, the propiska, or residence permit regimen still operates in the Republic of Belarus. It denies the citizen the opportunity to find employment in a large industrial city, to seek medical care, or to get in line for housing. A citizen can be subjected to administrative penalty for residing without a residence permit.

According to figures from the Belarusian Helsinki Committee, the most difficult human rights situation is in the provinces. The total dependency on local authorities means that people cannot hope for defense of their violated rights. The lack of rights is even greater for peasants who are in organizational or material dependency on the directors of kholkhozes and sovkhozes (collective and state farms).

Thus, despite the outward well being in the form of Constitutional norms in the Republic of Belarus, human rights are grossly and systematically violated. Instead of fulfilling its primary obligation to guarantee civil rights and liberties the executive branch headed by the president increasingly resorts to methods of force, compelling citizens to refrain from exercising their rights. In violation of the democratic principles proclaimed in the Constitution, the internal affairs agencies are expanding and growing stronger (by some estimates their numbers exceed 120,000 employees) as are the presidential security service and other special divisions whose activities are kept in secret.

VIOLATION OF HUMAN RIGHTS THROUGH PRESIDENTIAL DECREES

Under the new version of the Constitution (Art. 101), the president of the Republic of Belarus has the right to issue decrees with the force of law. In order to delegate legislative powers to the president, parliament must pass a special law which defines the subject of regulation to the president and the time period when the president has the power to issue decrees. Moreover, the delegation of powers to issue decrees does not permit amendment and addition to the Constitution or its interpretation. It also does not permit the amendment and addition of legislation for government programs; approval of the national budget and the accounting of its spending procedure; change of the procedure for election of the president and the parliament; and restriction of constitutional civil rights and liberties.

The "constitution" of 1996 permits the president "when there is a special necessity" to issue temporary decrees which also have the force of law. They are supposed to be presented for review within three days to the House of Representatives (the lower chamber of parliament) and then to the Soviet of the Republic (the upper chamber). The decision to revoke them must be taken by a majority of no less than two thirds of the votes of the full membership of each of the chambers.

Before giving a legal analysis of specific presidential decrees, the question must be asked: does the president in fact have the right to issue decrees with the force of law?

In my view, the president of Belarus does not in principle have such a right. And here is why.

First, to make a larger point, the new version of the Constitution cannot be recognized as legitimate. Thus the president' issue of decrees is nothing other than the abuse of power of office (Art. 166 of the Criminal Code).

Second, even within the framework of the new version of the Constitution, it is not lawful to grant the president the right to issue decrees with the force of law. Above all, this contradicts Art. 6, which establishes the principle of separation of powers into legislative, executive, and judicial. Under this principle, the president, while essentially the head of the executive branch, does not have the right to simultaneously fulfill the functions of the legislative branch of government and issue normative and legal acts of fundamental significance.

Granting the president the right to issue decrees with the force of law also contravenes Art. 7 of the new version of the Constitution. Art. 7 stipulates that the government and all its agencies and officials operate within the limits of the Constitution and the acts of legislation passed in accordance with it. The words "acts of legislation" are apparently used for a reason. Most likely this was for the purpose of erasing the hierarchical distinctions of normative acts, under which, after the Constitution, the law always follows, and then government regulations [podzakonnyye akty] (decrees, presidential orders, resolutions of the government, and so on). Therefore decrees as acts of the executive authority cannot be placed on the same level with laws as acts of the supreme judicial force. In that connection the notion of "decrees with the force of law" must be considered flawed, and contrary to the fundamental notion of legal scholarship and practice in the building of a state.

Nevertheless, the president, ignoring these legal prohibitions and common sense, issues unlawful decrees. Three decrees were issued by the president on December 11, 1996: No. 1, "On the Establishment of the State Holiday, Independence Day of the Republic of Belarus; No. 2, "On Amendments and Additions to the Law of the Republic of Belarus `On Elections to Deputies of Local Soviets of Deputies of the Republic of Belarus'"; No. 3 "On Approval of the Statute on the Elections of Members of the Soviet of the Republic of the National Assembly of the Republic of Belarus." The president has passed more than 10 decrees in 1997. Some of them directly related to Belarusian civil rights and liberties shall be the subject of our investigation.

DECREE NO. 1 OF FEBRUARY 5, 1997
"ON MEASURES TO ENSURE ORDER DURING FOREIGN CURRENCY EXCHANGE TRANSACTIONS"

SUMMARY

This decree was issued "for the purpose of regulating foreign currency exchange transactions and increasing the liability for violating the foreign currency laws of the Republic of Belarus."

Point 1 of the decree stipulates that transactions with the participation of physical persons in the purchase or sale and exchange of foreign currency and payment (monetary) instruments in foreign currency must be conducted only at exchange offices (cashiers) authorized by banks and other [lawful] economic entities for making foreign currency exchange transactions if they have the appropriate license from the National Bank; purchase of foreign currency can be made by physical persons with the condition that the passport information of these persons is registered.

Point 2 of the decree introduces new elements of administrative violations and sets extremely high fines or administrative arrest for committing such infractions. For example, if a person solicits citizens for the purpose of purchase, sale or exchange of foreign currency (this element in and of itself provides wide opportunities for abuse by the police) he is threatened by a fine ranging from 70 to 150 times the minimum wage or administrative arrest. If the same actions are committed again within a year after imposition of the administrative penalty, he faces a fine ranging from 150 to 300 times the minimum wage or administrative arrest.

Characteristically, if a person is prosecuted for making foreign currency transactions or other use of foreign currency without the appropriate permission, the foreign currency and other funds in the possession of the guilty party at the moment of committing the "violation" are subject to confiscation by the government.

The decree grants the Committee of State Control, the government tax agencies, and the internal affairs agencies the right to handle cases of administrative offenses.

COMPLIANCE WITH INTERNATIONAL LAW

The president's decree conflicts in many ways with international human rights law, in part with the 1948 Universal Declaration of Human Rights. With its deterrent, punitive orientation, the decree demonstrates its contempt for the very human rights enshrined in the Declaration.

International law requires that signatory governments protect civil rights by the power of the law. Despite that demand, the president's decree removes the individual from the protection of the law and puts him under the power of various government agencies. A citizen is not able to control his own property (and money is a form of property or unique good). If he does attempt to dispose of his property, he is called a law-breaker. Under threat of punishment, the state is virtually prohibiting a citizen from exercising his constitutional rights.

Meanwhile, the problem could be resolved in a different manner. It would be enough to open up more currency exchange offices and provide them with foreign currencies in cash. Then a citizen could freely exchange money for any currency. He should not have to wait merely because our government is so disorganized and itself makes a living from foreign currency. That is what we are seeing now.

The decree on confiscating foreign currency and monetary instruments in the possession of the "guilty" person at the moment he is committing the "violation" does not meet international standards. The decree is nothing other than confiscation of another's property without legal grounds.

A citizen is the owner of his property and can dispose of it at his own discretion (Art. 17 of the Universal Declaration of Human Rights). If he likes, he can put his money in the bank or buy a car or if necessary change it to foreign currency. That is his right and no one should obstruct it.

As stated in Art. 29 of the Universal Declaration of Human Rights, restrictions on civil rights and liberties are permissible "only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

COMPLIANCE WITH CURRENT DOMESTIC LEGISLATION

The decree was a "foreign body" in the law of the republic. Many of its provisions contradict even the president's "constitution". Thus, Art. 2 of the Constitution proclaims that the government is responsible to the citizen for creating conditions for the free and dignified development of the individual. Instead, the decree introduces new elements of administrative violations without any basis and establishes responsibility for them more than 30 times in excess of the usual amounts of fines. What terms are there here for the free development of the individual? And what citizen will be able to find the money to pay such a fine?

Art. 23 of the Constitution is violated as well, according to which restriction of the individual's rights and liberties is permitted only in cases stipulated by law. That means that restrictions and bans cannot be made through a regulation such as the president's decree.

According to Art. 44 of the Constitution, a citizen's property is considered inviolable. Forcibly removal of property is permissibly only for the motives of social necessity. In doing so, the circumstances and procedure defined by law must be observed.

Art. 44 does not permit the confiscation of foreign currency and other monetary instruments from those "guilty" of violating the procedure for foreign currency exchange. From the perspective of criminal law, when the state takes foreign currency and other monetary instruments in a person's possession when making a foreign currency transaction should not be considered "confiscation," but common theft or mugging which police officers are committing against citizens. It is possible to talk about exceeding authority of office (Art. 167 of the Criminal Code).

Under the Law on Property in the Republic of Belarus, the state guarantees the protection of all forms of property, including the physical persons mentioned in the president's decree. Moreover, Art. 6 of this Law says that the property owner possesses, uses, and disposes of the property belonging to him at his own discretion and has the right to make any actions with it which are not in contradiction with the law. A property owner may give up his property and also transfer it for ownership, use, and disposition by other persons.

The law does restrict the owner by stating that exercise of the right of ownership must not cause harm to the environment or violate the rights or lawful interests of other persons. Yet there should be no other restrictions for exercising property rights and the decree in that sense is no exception.

It should also be noted that in violation of the Constitution and legislative procedure, with his decree, the president has introduced new administrative violations and has established strict responsibility for committing them. This is nothing other than an undermining of the functions of the legislator and a virtual amendment and addition to the Code of Administrative Violations, where such violations can be envisioned.

In issuing this decree, the president has personally granted the right to handle cases of newly-discovered infractions to the Committee of State Control, the state tax authorities, and the internal affairs agencies. This not only exceeds presidential powers, but uses them to violate existing law. Art. 2 of the Law on the Police prohibits the police from being deployed to perform tasks not assigned to it by law. The police never had such a task nor did other government agencies, for that matter.

Moreover, the president is putting the police and government employees who must enforce this decree in a difficult position. Under the Law on the Police (Art. 24) and the Law On the Principles of Government Service (Art. 10), officials must be guided by the law. But here they are ordered (under threat of losing their jobs) to enforce a decree contrary to the Constitution and laws of the Republic of Belarus.

Point 6 of the decree states that officials and citizens, who permit the violation of the decree's demands, will be removed from their post (termination). It is a gross violation of labor legislation. Obviously, the provisions of the decree are in no way connected to an employee's performance of his official duties and therefore cannot serve as a basis for breaking his labor contract.

DECREE NO. 2 OF FEBRUARY 12, 1997

"ON THE DECLARATION OF INCOME AND PROPERTY BY PHYSICAL PERSONS IN THE REPUBLIC OF BELARUS"

SUMMARY

As noted in the introduction of the decree, it was issued "for the purpose of defending the economic interests of the government, to prevent and curtail violations of the law related to corruption, and also in the area of enterprise and other economic activity."

The decree introduces the declaration of income and property by physical persons in Belarus. The following is subject to compulsory declaration:

• the incomes of physical persons in monetary and natural form, received in the course of the calendar year on the territory of the Republic of Belarus, and for citizens of the republic, outside its borders;
• the property in the possession of physical persons, as follows:
• residential homes with additional constructions, garages, and other constructions and sites under construction, apartments, and portions (parts) of same tracts of land;
• means of transportation (except for mopeds, bicycles and animal-drawn transport);
• works of art, precious metals and precious stones, and objects made from them, if the value of the item exceeds 200 times the minimum wage;
• construction materials whose total value exceeds 500 times the minimum wage;
• monetary instruments, stocks, bonds, promissory notes, and other securities whose sum exceeds 500 times the minimum wage;
• other property, of which the unit value exceeds 500 times the minimum wage.

The right to handle cases of administrative violations of the decree is granted the agencies of Committee of State Control, state tax agencies, and the internal affairs agencies.

In the event of failure to provide a declaration or reporting of incomplete or false information committed after the fine is imposed for such "violations," the property of physical persons which must be declared may be confiscated by decision of a court as "an unsubstantiated acquisition."

Point 4 of the decree stipulates that government employees, officials of government enterprises, institutions, and organizations, military personnel (except for trainees and emergency military personnel), and staff and supervisors of internal affairs agencies are obliged upon hiring to provide to their place of employment (service) a declaration of their incomes and property. Failure to provide a declaration or reporting of incomplete or false information is grounds for refusal of appointment to office or disciplinary action including removal from office.

Under Point 5 of the decree, physical persons, upon performing a property transaction for a sum exceeding 500 times the minimum wage must provide a declaration of the sources of funds to be expended for these purposes, to the tax agency for the location of the transaction or the physical person's residence. If the individual lacks a written confirmation from the tax agency on the submission of the declaration, the transaction is not subject to registration or notarization and is pronounced invalid. Registration or notarization of a transaction in the absence of a confirmation from the tax agency of submission of a declaration is subject to a court-imposed fine of the persons who have registered or notarized the transaction, in the amount of 5 to 50 times the minimum wage.

It is supposed that this decree must remain in effect until the passage of a law that would regulate matters of the declaration of income and property of physical persons in the Republic. Meanwhile, the Council of Ministers of the Republic of Belarus has passed a resolution, dated March 19, 1997, the Statute on Procedure for Declaration of Income and Property and Sources of Funds of Physical Persons. It concerns the forms of declaration of income and property and also the sources for funds expended in a property transaction exceeding 500 times the minimum wage.

RELEVANT INTERNATIONAL LAW

The Universal Declaration of Human Rights proclaims that no one can be subjected to arbitrary interference in his personal and family life, to arbitrary violation of the inviolability of his home, the privacy of his correspondence, or his honor and reputation. Each individual has the right to possess property and not to be arbitrarily deprived of his property.

Despite these international standards, the president's decree essentially opens the way for interference in citizens' private lives, forcing them to disclose at the demand of state agencies the state of their finances and property. If they do not provide the required information, or make incomplete or false reports on their income and property, citizens, in addition to paying fines, risk losing their property as "an unsubstantiated acquisition."

As has been noted, under the Universal Declaration of Human Rights, civil rights and liberties can be subject "only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." The president's decree is a government regulation and has entirely other purposes. Consequently, civil rights and liberties cannot be restricted through issuing such a decree.

COMPLIANCE WITH DOMESTIC LAW

This decree contradicts the Constitution first of all. In particular, the decree differs from Art. 28 of the Fundamental Law which gives everyone the right to protection from unlawful interference in his personal life. No one has the right to infringe upon a citizen's property (Art. 44). Under Art. 58 of the Constitution, no can be forced to give a report of his income and property to government agencies.

The president's decree also differs from many laws, including the Law on the President of the Republic of Belarus, the Law on Property in the Republic of Belarus, the Law on the Principles of Government Service, the Civil Code, the Code of Administrative Violations, and the Code of Labor Laws.

Thus, the Law on Property in the Republic of Belarus establishes that the right to property in Belarus is respected and protected by law (Art. 1); a property owner possesses, uses, and disposes of his property at his own discretion, and he has the right to make any action since this property not in contradiction to the law (Art. 6). Under this law, the government must guarantee stability in property relations (Art. 61). Meanwhile, the decree imposes restrictions on transactions exceeding sums of 500 times the minimum wage, permits the possibility of confiscation of property subject to declaration.

The decree also runs counter to the Civil Code of the Republic of Belarus, which includes a special chapter devoted to protecting the right of property (Arts. 131-137).

The requirement of the decree for compulsory declaration of income and property to government employees and officials of government enterprises, institutions, and organizations contradicts Art. 7 of the Law on the Principles of Government Service, which establishes the right of all citizens of the Republic of Belarus to serve in the government regardless of their property-owning status, race, ethnic affiliation, sex, religious beliefs, and political views.

Under the Constitution and the Law on the President of the Republic of Belarus, the president does not have the right to define a group of people who can demand from physical persons information about income and property and also grant various government agencies or their employees the right to handle cases of administrative violations.

Moreover, the requirement for disciplinary action and removal from employment in cases of failure to supply a declaration of income and property, or reporting of incomplete or false information (Point 4), is not based on the statutes of the labor law.

The president's proposal, addressed to the Council of Ministers of the Republic of Belarus (Point 6.2), on establishing administrative, criminal, and other liability for failure to supply a declaration, or reporting of incomplete or false information and concealment of property and sources of funds run counter to the principles of a democratic state with the rule of law.

DECREE NO. 5 OF MARCH 5, 1997
"ON ASSEMBLIES, RALLIES, STREET PROCESSIONS, DEMONSTRATIONS AND PICKETS IN THE REPUBLIC OF BELARUS"
SUMMARY

The official purpose of this decree was to realize the Constitutional rights and liberties of citizens, to secure public safety and order during assemblies, rallies, street processions, demonstrations, pickets on the street, squares and other public places in the Republic of Belarus.

The decree establishes a procedure for obtaining permission to hold such public actions. Organizers of assemblies, rallies, street processions, demonstrations or pickets must make a statement of their intention to the local executive and management body on the territory of which the action is planned no later than 15 days before the intended date of the action.

In addition, the decree contains numerous restrictions on the holding of assemblies, rallies, and so on, for example such actions cannot be held in the subway or on rail, water or air transport or at a distance of less than 50 meters from the territory of enterprises, institutions, and organizations which secure the defense capability of the state and public life (public transport, water resources, electricity, heat, and other energy providers). Moreover, mass demonstrations cannot be conducted near the buildings of the residence of the president of the Republic, the National Assembly [parliament], the Council of Ministers, the television center and other buildings of republican agencies of governance.

The decree establishes that before receiving permission to hold assemblies, rallies and so on, the organizations cannot begin preparing for them, i.e. they cannot announce the time and place of the action in the mass media or prepare and distribute flyers, posters or other materials.

One item of particular interest is the requirement that the decree must regulate in detail the actions of public actions and even ordinary participants. Thus, the organizers of an action are prohibited from: act upon policemen with the purpose of preventing them from fulfilling their official duties; to use posters, banners or other materials containing calls for the violent overthrow of the Constitutional order or propagating war, social, national [ethnic], religious, or racial enmity, or offending the honor and dignity of officials of government bodies; to use flags or symbols not registered according to established procedures, or to use emblems, symbols, or posters whose content is aimed at causing damage to the government and social order, the rights and lawful interests of citizens, and so on.

Point 10 of the decree guarantees a norm which provides the possibility for the directors of local government executive committees and internal affairs agencies to halt, at virtually any moment, the conducting of an assembly, rally, or other action (in particular, referring to the appearance of a danger to the life and health of citizens of disruption of public order).

Following the model of Commercial Law, the decree establishes administrative liability for violating the procedure for organizing and conducting assemblies, rallies, and so on. Moreover, there is a significant variance between the norms of the decree and the articles of the Code of Administrative Violations, which regulates such matters. Particularly striking are the amounts of the fines. For example, for the use of flags and symbols which have not been registered according to established procedure, and emblems, symbols, and posters whose contents are aimed at causing damage to the state and social order and the rights and lawful interests of citizens, the president has ordered that a fine be imposed ranging from 10 to 100 times the minimum wage (for the same actions, the Code of Administrative Violations establishes a fine of up to five times the minimum wage).

Under the decree, the right to draw up protocols for such types of administrative offenses is granted to officials from the internal affairs agencies, and the review of cases is granted to the courts.

According to the decree, material damage caused to citizens, enterprises, institutions, and organizations during assemblies, rallies, and so on by their participants must be compensated by the "guilty parties" in a procedure established by law.

Another feature of the decree: it provides executive and management offices of the government with the right to regulate additionally the procedure for holding assemblies, rallies, etc. "taking into account local conditions and the requirements of this Decree."

It should be noted that up until the present time, the Statute on the Procedure for Organization and Conducting of Assemblies, Rallies, Street Processions and Demonstrations was in effect in Belarus, confirmed by a decree of the Presidium of the Supreme Soviet of the Belarusian Soviet Socialist Republic (BSSR) dated April 4, 1988 (with amendments and additions dated August 15, 1988).

This Statute does not regulate the procedure for holding pickets. Taking this into account, several local governments (in Minsk and Mogilev) passed resolutions which, in violation of the law, equate picketing with demonstrating and which established procedures for obtaining permission for such events.

With this decree (in point 18), the president declared invalid the April 4, 1988, decree of the Presidium of the Supreme Soviet of the BSSR.

COMPLIANCE WITH INTERNATIONAL LAW

By European standards, the right to peaceful assembly is one of the inalienable civil rights and a necessary condition of freedom in a society. In proclaiming this right, the International Convention for Civil and Political Rights (Art. 21) establishes that the exercise of this right is not subject to any restrictions exception those that are provided by law and which are necessary in a democratic society in the interests of state and public security, public order, health, and morals or the protection of the rights and liberties of other persons.

Government agencies should not place unjustified obstacles in the way of citizens who exercise these rights. But the president's decree, through its restrictive, prohibitive, and punitive measures, virtually strips the citizens of Belarus of their right to peaceful rallies and processions, thus violating the standards of international law.

COMPLIANCE WITH DOMESTIC LAW

The Republic of Belarus acknowledges the right of its citizens to peaceful assembly. The 1994 Constitution (Art. 35), just as the new Constitution, proclaims: "Freedom of assembly, rallies, street processions, demonstrations, and pickets that do not violate public order and the rights of other citizens of the Republic of Belarus is guaranteed by the state. The procedure for conducting such activities is defined by law."

Elementary logic and common sense dictate that if the Constitution provides for the freedom of assembly, the government accepts its obligation to secure it, and it must not prohibit the exercise of this right through restrictions. Otherwise, it must be viewed as a direct encroachment on civil rights. This is exactly what happened when the president issued Decree No. 5 of March 5, 1997.

According to Art. 30 of the Law on the President of the Republic of Belarus, the president's legal acts must not contradict the Constitution, laws, international acts ratified by Belarus, and the resolutions of the Supreme Soviet. They must not amend them or make additions to them. That means that the president does not have the right to abolish or amend acts passed by the Supreme Soviet. This means that he could not lawfully abolish the Statute on the Procedure for Organizing and Holding Assemblies, Rallies, Street Processions and Demonstrations, passed by the Supreme Soviet, and still a law in force.

In violation of the Constitution and accepted legislative procedure, the president blatantly interfered in the legislators' sphere of activity. By issuing a decree, he introduced administrative liability for violating the procedure for organizing and holding pickets, and also imposed extremely harsh sanctions for administrative offenses related to organizing and holding public assemblies of various types.

Art. 12 of the decree is in direct contradiction to the Code of Administrative Offenses. It grants judges the right to review cases of the use of flags and symbols not registered in the proper manner. Under the law, this is the sphere of activity of administrative commissions. And here it is a question not of the "white-red-white" flags so beloved by many Belarusians, but of flags which have not been registered at the appropriate government agencies.

All bans and restrictive measures imposed by decree regarding procedures for demonstrations of various types must be viewed as violating the Constitution.

DECREE NO. 7 OF MARCH 17, 1997

"ON ADDITIONAL MEASURES TO SECURE EMPLOYMENT FOR THE POPULATION"

SUMMARY

The purpose of this decree is to create conditions "for the citizens of the Republic of Belarus to exercise their constitutional right to work, to secure the full employment of the population, and to stimulate active labor activity by the unemployed."

Point 1 of the decree states that unemployment compensation may be suspended in the event that the unemployed person, without a good reason, does not perform the monthly quota of hours at paid community service under the direction of the state employment agency. Moreover, unemployed persons, registered without the right to receive unemployment compensation, can be paid compensation under the condition that they participate in community service according to the procedure determined by the Council of Ministers.

The decree states that the list of community services must be established by local government employment agencies on the basis of requests from republican government offices, local government and self-government agencies, associations, enterprises, institutions, and organizations. The organization of community service is the responsibility of local government offices with the participation of government employment agencies.

Point 2 orders states that it is considered unacceptable to have the number of unemployed persons rise above 130,000 persons.

Points 3 and 4 mandate the Council of Ministers and other government bodies to determine the procedure for establishing the monthly norm and procedure for participation of the unemployed in paid community service.

The decree went into full effect on April 15, 1997.

COMPLIANCE WITH INTERNATIONAL LAW

The measures stipulated in this decree contradict the standards of the International Covenant on Economic, Social, and Cultural Rights and ILO conventions. Art. 6 of the Covenant acknowledges the right of everyone to have the opportunity to earn a living through work which is freely chosen or to which he freely consents. The participating states are obliged to take measures for the purpose of fully enforcing this right, which must include programs of professional and technical training and preparation, and ways and means to achieve consistent economic, social and cultural development and full productivity of employment under conditions that guarantee basic political and economic freedoms for people.

ILO Convention No. 105, "On the Abolition of Forced Labor," contains even more categorical standards regarding the unacceptability of forced labor. It was passed by the ILO general conference on June 25, 1957, and ratified by the Republic of Belarus on February 22, 1995. Every member of the ILO who has adopted Convention No. 105 undertakes the obligation to eliminate forced labor or compulsory work and not to resort to any of its forms:

a) as a means of political influence or education, or as measures of punishment for the presence or expression of political views or ideological convictions in opposition to the established political, social or economic system;

b) as a method of mobilizing people and exploiting them as a work force for the needs of economic development [that purpose is in fact pursued in the decree---Author]

c) as a means to maintain labor discipline;

d) as a means to punish people for participating in strikes;

e) as a measure of discrimination based on race, social and national [ethnic] affiliation or religious belief.

The establishment of a ceiling for the increase in the number of unemployed contradicts international standards in the area of protection of the right to work. This point in the decree can be viewed as a form of discrimination regarding able-bodied citizens who temporarily are unemployed. The implementation of the decree could lead to a situation where citizens who have lost their jobs will cease to register themselves at an employment agency. In fact, they will be forced to place themselves in the humiliating position of "outcasts from society," like prisoners, and go out and sweep the streets, prune trees, haul bricks on construction sites, etc. and receive very little compensation for their labor.

COMPLIANCE WITH EXISTING LAW

Like the above-mentioned decrees, Decree No. 7 contradicts the norms of the Constitution and laws of the Republic of Belarus. Art. 41 of the Constitution guarantees citizens the right to work, that is, the right to choose their profession, type of employment and work "in accordance with their calling, abilities, education, and professional preparation and taking into account social demands." Moreover the state must create conditions for the full employment of the population, and in the event of a person's unemployment through circumstances beyond his control must guarantee training in a new profession and improve his qualifications while taking into account social needs, and also provide unemployment compensation in accordance with the law.

The Constitution contains a direct ban on forced labor (Art. 41). The exceptions can only be service determined by a court order or assigned in accordance with the law in an emergency or a state of war [such a law has not been passed in Belarus---Author]. Moreover, the decree essentially introduces forced labor for such a social group as the unemployed, since each unemployed person registered without the right to receive unemployment compensation, must "work off" the compensation in community service and furthermore perform "a monthly minimum of participation" in a work program. Otherwise, he loses his compensation and remains without a means of survival.

The decree contradicts Art. 5 of the 1991 Law on Employment of the Population in the Republic of Belarus which provides state guarantees of employment for the able-bodied population. One of these guarantees is the "opportunity to take part in paid community service," that is, it is a question of voluntary labor, which for certain reasons suit the unemployed person. The decree, however, introduces compulsory labor for virtually all unemployed persons.

A gross violation of the rights of the unemployed is the suspension of unemployment compensation "in the event the unemployment does not fulfill the monthly norm of participation in paid community service without good cause." This is a direct infringement on citizens' property. The withholding of the unemployment compensation is virtually a form of government racketeering against the most vulnerable part of the population. Impoverished people, who have been without work largely through the government's fault, are being threatened by the president with abandonment entirely without any means of existence.

Such an approach is not only immoral, but impossible from the legal point of view, since a law, like any other legal act, cannot be given a retroactive force. Such a rule is enshrined in the new version of the Constitution (see Sect. 2, Article 101, and Sect. 6, Art. 104).

DECREE NO. 12 OF MAY 3, 1997
"ON SOME MEASURES TO IMPROVE THE PRACTICE OF ATTORNEYS AND NOTARIES IN THE REPUBLIC OF BELARUS"

SUMMARY

The official purpose of this decree is to "create the appropriate conditions to implement the right of every citizen to legal aid."

According to sub-point 1.1 of the decree, licenses for practice as an attorney or private notary public can be granted under the following conditions:

1) passing of a qualifying exam set by the relevant commission created by the Ministry of Justice from the number of representatives of state bodies, lawyers (notaries) and other specialists in the field of law (the chairman of the commission is determined by the deputy minister of justice);

2) payment of a fee for granting of the license equal to 10 times the minimum wage;

3) if the persons applying for a license are not in government service (from the day of applying for admission to the qualifying exam to the day of receiving the license).

It is characteristic that the license for practicing as an attorney or private notary is granted for a period of five years. The extension of the license for the next five years is made by the Ministry of Justice upon application by the citizen, taking into account his compliance with the law on attorney (or notary) activity according to the results of an attestation conducted by the relevant bar association [collegium of advocates] and the Belarusian Notary Chamber. A fee of five times the minimum wage is charged for extending the license.

If a decision is made to annul the license, the attorney (or notary) does not have the right to obtain a license for a period of five years. Essentially, the attorney (or notary) who for some reasons is stripped of his license to practice is forced to leave this work and find himself other employment.

The decree establishes that starting July 1, 1997, only persons who are members of the regional (or Minsk municipal) collegia of advocates, or official bar associations, can practice law. Thus individual (private) law practices are prohibited, although private attorney practices have become fairly widespread in Belarus (out of 1,400 attorneys in Belarus, 300 have founded their own private practices).

The decree substantially transforms private notary practice as well. (Private notary practice has been permitted in Belarus since November 1992. At the present time there are 127 private notaries in Belarus). Thus 23 percent of the state fee which is charged for performing notary actions must be included in the income of the republican budget (previously they were at the disposal of the private notaries and made up the main source of their income). Moreover, without indicating any reasons, the decree suspends for one year the granting of licenses for private notary practice.

A more strict procedure is introduced for billing for legal services. Henceforth, payment for the legal services of attorneys may be made only upon submission of an officially-approved receipt to the cashier of the bar association. If it is found that an attorney or private notary has received money from a client in violation of this procedure, the fees can be confiscated to the state treasury by decision of the state tax authorities.

In accordance with Point 2 of the decree, starting July 1, 1997, licenses for attorney or notary practices are subject to nullification if granted to persons who, during the period they were granted the licenses, held a post in the government (an exception is made only for those notaries that received licenses for private notary practices). These person (of which there are more than 80, according to figures from the Union of Advocates) must appeal through the established procedure to receive a license before January 1, 1998.

Point 4 of the decree is notable because it significantly broadens the authority of the Ministry of Justice to supervise the practices of attorneys and notaries. The ministry has the right to publish regulations affecting the practice of attorneys and notaries; to suspend the decisions of executive boards of collegium of advocates and associations of notaries which are not in compliance with the law; and to notify these representative bodies of the cancellation of their decisions; to exercise other powers related to the general and methodical governance of the attorneys' and notaries' offices; to monitor compliance with the law by all persons who are engaged in attorneys' or notaries' practices; to obtain from attorneys and notaries "information relevant to the compliance with the law on the practice of attorneys and notaries, under the condition of observance of the confidentiality of the attorney and notary"; to notify the collegium of advocates of disciplinary actions; to annul licenses for the practice of law by attorneys or notaries "if grounds are found under the law." In order to perform these new functions, the staff of the Ministry of Justice is to be increased.

The president's decree also regulates the question of possible punitive measures for attorneys who "without grounds" refuse to provide free legal aid and (or) when conducting an assigned case; raise the price of legal services "without justification"; who include in their fee the cost of extra services (procedural actions); or who commit "another disciplinary infraction." For these "bad deeds" the collegium of advocates may withhold 40 percent of the "violator's" earnings.

It is striking that with this decree, the president is trying to create in Belarus a "state service to provide qualified legal aid to indigent citizens" which is parallel to the bar (sub-point 7.5) and is also, together with the Union of Advocates, to resolve before July 1, 1997, the matter of creating a Republican [national] Collegium of Advocates, which must unite the regional (and Minsk municipal) collegia of advocates and perform the function of a republican body of attorney self-regulation (point 10).

In 1987, a comprehensive inspection of the operation of government notary offices and private notaries is scheduled, and in 1998, the collegia of advocates will be inspected. Such a "purge" of the ranks of the notaries and attorneys has one purpose: "to eliminate the violation of the law on the practice of attorneys and notaries."

The decree ends with a point stating that acts of current legislation [apparently the 1993 Law on the Bar as well---Author] are in force only if not in contradiction to this decree.

COMPLIANCE WITH INTERNATIONAL LAW

This decree does not comply with a number of international legal standards. Thus, Art. 23 of the Universal Declaration of Human Rights proclaims the right of each individual to work, to freely choose work, and to fair and decent conditions for labor and for protection from unemployment. The decree introduces unjustifiable restrictions on attorney and private notary practice and also totally prohibits private attorney practice. The suspension of the granting of a license to engage in private notary practice are not motivated in any way.

The decree contradicts Art. 8 of the Universal Declaration of Human Rights, according to which everyone has the right to effective restoration of their rights by competent national courts in the event of violation of their basic rights under the Constitution or the law. Moreover, the decree denies attorneys and private notaries the opportunity to appeal the unlawful sections of the decree through judicial procedure (with one rare exception, see sub-point 1.3 on appealing the decision to refuse the granting of a license).

The decree contradicts Art. 29 of the Universal Declaration of Human Rights as well, under which restriction on the exercise of rights and liberties can be made only by law and "only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."

Articles of the Universal Declaration of Human Rights have been developed in the International Covenant on Economic, Social, and Cultural Rights and the International Covenant on Civil and Political Rights which were ratified by the Republic of Belarus. That means the president's decree contradicts these fundamental international legal acts as well.

The president's decree departs from the Fundamental Principles concerning the role of lawyers (passed by the VIII Congress of the UN in 1990 and recommended for use by the member states in their national legislation and practice). They require the governments to guarantee conditions so that lawyers "may fulfill their professional duties in a setting free from threats, obstruction, intimidation or unfounded interference." Meanwhile this decree presupposes application of a number of inadmissible actions: threats regarding attorneys disliked by the authorities, unfounded interferences in the attorney's practice (in the form of the obligation to provide information about one's practice), open interference by state agencies in the affairs of the bar and private notaries.

The president's decree also violates the Final Document of the Copenhagen Conference of the Organization for Security and Cooperation in Europe (1990). The participating states recognize that "every one should have an effective means for legal defense against administrative decisions in order to guarantee respect for basic rights and to prevent damage to the justice system" (5.10). From all indications, the president's decree relates to the category of administrative acts. Its implementation will lead to the massive violation of the rights of attorneys and private notaries and will cause significant damage to the whole legal system.

The following point is especially highlighted in the Final Document: "the independence of attorneys is recognized and protected, in particular, regarding the terms for hiring and practice" (5.13). The presidential decree, however, directly infringes upon the independence of the bar, establishing control over it by government bodies. The government has gained access to the process by which the conditions for the hiring and practice of attorneys are determined.

COMPLIANCE WITH DOMESTIC LAW

The decree contradicts the Constitution and other Belarusian laws. First of all, it restricts the constitutional right of citizens on legal assistance by depriving them of an opportunity to use the service of private attorneys. Second, it introduces excessive requirements for those applying for a notary or attorney license. The package of restrictive and prohibitive measures found in the decree can be considered as an "obstructing provision of legal assistance", which is strictly prohibited by the Constitution (part 2 of article 62).

The legal deficiency of the decree becomes even more evident after it is compared with the Law on the Bar that regulates the structure and activity of Bar Associations, which should be independent, self-controlled organizations of attorneys providing legal assistance to citizens and institutions. The Law does not limit the period of attorney or notary license validity. It issues a license once without a term limit. From this perspective the decree's provision on issuing a license for 5 years only contradicts the Law and severely violates the rights of attorneys.

The Law secures the right of citizens who obtained the license to practice either by joining a bar association or starting private practice (by means of establishing firms, bureaus or individually) (Article 13). As was previously noted, the decree allows only members of regional (oblast) collegia to practice. This is another violation of the Law on the Bar and attorneys' rights.

Article 16 of the Law states that an attorney works independently, subjected only to the Law. It is forbidden to infringe into his or her activities, particularly to demand disclosure of "legal secrets". Despite that provision, the decree gives the Ministry of Justice powers, which must be seen as an interference in bar activities.

A specific article of the Law is dedicated to the issues of disenfranchising the attorneys and revoking their licenses (Article 24). The Law notes the specific grounds. Nevertheless, it is impossible to revoke a license, without cause, as it is done in the decree. Making such a provision, especially by means of a decree, retrospectively, is prohibited in jurisprudence. This is a human rights violation.

The last chapters of the Law, which determine the principles of relations between attorneys and State, promulgate the notion of the independence of attorneys. They also stipulate the powers of the Ministry of Justice in relation to attorneys (Article 31). In particular, the Ministry must assist attorneys in post-educational training; collect and study the statistical data on bar activities; protect attorneys from persecution, groundless restrictions and encroachments; and issue and revoke licenses on practicing law. These powers, unlike those in the presidential decree, do not restrict the independence of the bar. Yet the increasing powers of the Ministry must be considered illegal, since legal amendments and additions can only be introduced by the legislature through the appropriate procedure.

The presidential decree contradicts other laws as well. Article 4 of the Belarusian Criminal Code specifies that at a criminal trial a defendant can use as his or her attorneys not only members of the lawyers collegia, but also close relatives, persons with power of attorney or other persons who are admitted to the bar. The decree illegally restricts the persons whom a defendant may use as a lawyer.

The Law on the President of Belarus does not give the president the power to suspend the licensing of any activities (the relevant provision of the decree is itself a violation of the civil right to work). The President has no right to determine a fee on notaries services, and to revoke the licenses received by citizens legally. Thus he exceeds his authority violating the Constitution and the laws of Belarus.

An analysis of presidential decrees lead to the conclusion that they do not comply with international human rights law, the Belarusian Constitution and domestic law. Besides, the new version of the Constitution does not permit the president to issue decrees restricting civil rights and liberties.

THE COURTS:
AGENCIES OF OPPRESSION AGAINST OPPONENTS OF THE REGIME
OR GUARDIANS OF CIVIL LIBERTIES?

The 1994 Belarusian Constitution guarantees citizens the protection of their rights and liberties by a competent, independent, and impartial court within periods defined by law (Art. 61). Similar wording is contained in the new version of the Constitution (Art. 60).

Indeed, a court must be competent, independent, and impartial. Only then will justice and legality reign in a country. And each citizen must be able to rely on a court to protect his or her rights in the event they are violated. Moreover, it should not matter who violates these rights: a policeman who beats a citizens; a director who fires a disliked employee; or a government official who issues an unlawful legal act.

The right of citizens to judicial defense is enshrined in a special law on the courts, the Law on the Composition of Courts and the Status of Judges in the Republic of Belarus, passed on January 13, 1995. Art. 6 of the Law proclaims the right of a citizen to judicial defense from encroachment on his or her life and health, honor and dignity, personal freedom and property, other rights and liberties, and also from the unlawful action of government agencies and officials.

It is important to note that in this fundamental act, the subordination of courts to the law only (Art. 9) is acknowledged as one of the principles for the functioning a court. Moreover, among the requirements of judges in exercising judicial authority is rigorous adherence to the Constitution and laws of the Republic of Belarus (Art. 61).

From the articles of the law cited, it follows that courts must be grounded only in the law in performing justice. Government regulations, including presidential decrees, cannot serve as the legal basis for judicial decisions.

However, as reality has illustrated, many judges in Belarus have "forgotten" about their judicial duty and have begun to subordinate themselves not to the law, but to the president's directives. They base their rulings on administrative liability for participants in public actions on the president's Decree No. 5 of March 5, 1997 on demonstrations. That means that the courts have turned from agencies of justice to agencies of oppression of peaceful demonstrators. They obediently fulfill the will of the president and the government agencies subordinate to him.

The Bulletin of the Belarusian Helsinki Committee enables us to see a vivid chronicle of human rights violations in the spring of 1997, including violations by judges.

March 10. A picket and an unauthorized procession to protest plans to integrate Belarus and Russia. About 100 persons were detained. Of these, more than 40 were sentenced to various terms of administrative arrest (from three to 10 days) and to fines of up to 300,000 to 5,000,000 rubles. One marcher, V. Sadovsky, was given a suspended sentence of one year of deprivation of freedom.

March 14. Democratic youth planned to conduct a procession called "Belarus into Europe–2". About 500 people gathered at Svaboda [Freedom] Square in Minsk. Massive detentions began even before the march, and accidental passers-by were also seized. About 150 persons were detained and sentenced to terms ranging from 3-15 days and from 1,300,000 to 6,000,000 rubles in fines.

March 15. Celebration of Belarusian Constitution Day. Street marches and rallies in Minsk, Vitebsk, Gomel, Grodno, Mogilev, Pinsk and other cities. About 100 persons were subsequently sentenced for participation in an unauthorized procession along an avenue in Minsk. Among those arrested: Mechislau Grib, chairman of the 12th Supreme Soviet and deputy of the 13th Supreme Soviet (fined 20,000,000 rubles); Stanislav Sharetsky, chairman of the Supreme Soviet (fined 5,000,000 rubles) V. Novikov, first deputy chairman of the 13th Supreme Soviet (fined 5,000,000 rubles). Genadz Karpenko, deputy chair of the 13th Supreme Soviet, but his trial was postponed due to his hospitalization. Yury Zakharenko, former Belarusian Foreign Minister, was fined 2,600,000 rubles. Vasily Shchukin, deputy of the Supreme Soviet, was fined 22,500,000 rubles. Several other deputies were tried as well.

The Supreme Soviet deputies were tried in violation of existing law guaranteeing them immunity as members of parliament.

March 20. At the initiative of the student's coordinating committee called Students in Action, a picket was staged against the compulsory assignment of graduates of government universities to work in the Chernobyl contaminated zone. More than 40 demonstrators were detained, including P. Znavets, Supreme Soviet deputy. Four police warrants were drawn up regarding his participation in the picket and four court hearings were held. As a result, P. Znavets was fined 13,000,000 rubles and jailed for 15 days. Student leaders S. Martelev and P. Karnazytsky were sentenced to 10 days of administrative arrest. For taking part in the picket, S. Martelev was expelled from Belarusian State University.

March 23. A march and rally in honor of the 79th anniversary of the formation of the Belarusian People's Republic. Authorities permitted a rally on Yakub Kolas Square, but banned a march alone F. Skorina Avenue. About 5 to 10 thousand people nevertheless turned out for the march. Police engaged in massive beating of demonstrators and some resistance was shown. Unidentified plainclothesmen took part in the detention of the protesters, and persons far from the location of the action were detained. About 90 persons were punished for participation in the march. Some court trials took place in the absence of the defendants (thus, L. Borshchevsky, leader of the Belarusian Popular Front, was tried in absentia and sentenced to 10 days of administrative arrest).

The city prosecutor's office opened criminal cases regarding resistance to the police. Four people were charged (A. Bondarev, G. Kiyko, A. Koval, and A. Tishuk). V. Lysko was arrested on the same charges on May 1, 1997, for taking part in an action March 23 and fined 2,600,000 rubles.

April 1. Protest rally against the unification of Belarus and Russia, called "Harbuz-97." More than 50 persons were detained.

April 2. Rally and procession against the Russian-Belarusian Union. About 5,000 people took part in the action. Police blocked the approach to the Russian Embassy in Minsk. Marchers were squeezed into courtyards, where mass detentions and brutal beatings took place. About 200 persons were detained. 92 demonstrators were subsequently sentenced to administrative arrest and fines.

April 26. The annual Charnobylski shlyakh, or Chernobyl march, took place. About 15 to 20 thousand people took part. It was a rare occasion when there were no marchers detained, except for some vandals who smashed store windows. For organizing and holding the Chernobyl rally in Gomel, V. Starchenko and V. Karnienko, leaders of the democratic movement, were each fined 22,500,000.

May 14. A rally permitted by authorities took place on Yakub Kolas Square regarding the issue of the unification of Belarus and Russia. Afterward, a column of young people organized a procession along the avenue. For taking part in it, three persons were subjected to administrative arrest, and several others were fined (A. Chakholsky and N. Antipovich, as organizers of the rally, were fined 22,500,000 rubles.)

The court trials against "violators" of Presidential Decree No. 5 remind one of a kind of conveyor belt, where everything has been brought to the point of an automatic procedure. The judge reads a record of the administrative offense with the standard accusation ("took part in an unsanctioned procession, shouted, waved his arms, and blocked the movement of public transport"); the detainee listens to the explanation; and then "witnesses for the accusation" are brought in one or two policemen. After their contradictory testimony is given , the decision is read out: administrative arrest or a fine.

The tendentious nature of such court procedures can be seen in the fact that the judges are not inclined to summon and hear testimony from witnesses on behalf of the persons accused. Lawyers are present for only some of the cases. Moreover, the request of a detainee to invite an attorney often turns against him; until an attorney is able to take part in the case, a person continues to be held in a special lock-up at the police department.

As an example, and for the historical record, a typical decision in a case of administrative offense is cited below:

Resolution

On March 24, 1997, Judge E.N. Lukhverchik of the Soviet District Court in the city of Minsk, having reviewed the materials received from the chief of the Soviet ROVD [District Department of Internal Affairs, or police] on P. [his identification information follows],

Has Established

On March 23, 1997, at about 11:50, P. took part in an unauthorized procession on the pedestrian sidewalk of Skorina Avenue, no. 46, shouted, waved his hands, threw snow at a car, and did not react to repeated demands by police to stop his unlawful actions, by which he violated the established procedure for holding street processions.

Upon questioning, P. did not admit his guilt.

Despite this, the guilt of P. is proven by testimony from witnesses A.V. Mikulch and V.P. Kalenkevich.

Upon questioning, the witness A.V. Mikulich testified that on March 23, 1997, P., at about 11:50, was taking part in an unauthorized procession, shouting, throwing show balls at an police car of the Minsk government police department. After the rally was over he was detained at 14:00.

Upon questioning, the witness V.P. Kalenkevich testified that on March 23, 1997, at about 11:50, P. was taking part in an unauthorized rally, was shouting, and throwing snow balls at a car.

Upon questioning, the witness P. testified that his son P was at home on March 23, 1997, and left the house at about 12:30.

In evaluating the testimony of witnesses A.V. Mikulich and V.P. Kalenkevich I consider that they are truthful, complement one another, and do not place them in doubt.

In evaluating the testimonies of witness P, I consider that they are fabricated, since they are refuted by the testimony of witnesses A.V. Mikulich, V.P. Kalenkevich, and the written materials of the case.

In seeing in the actions of P. signs of the violation of part 1, point 12 of the Decree of the President of Belarus No. 5 "On Assemblies, Rallies, Street Processions, Demonstrations and Picketing in the Republic of Belarus," and guarded by this Decree,

I have ruled:

To subject P. to a fine to be paid to the state in the amount of 3,250,000 rubles (three million two hundred fifty thousand rubles).

This ruling is final and is not subject to appeal.

Judge/Signature/

Copy is trueJudge

Secretary

Monitors from the Belarusian Helsinki Committee who attended the trials of demonstrators noted the following basic violations of the law allowed by the judges:

1) the "offender's" petition to have a lawyer present and to summon witnesses is denied;

2) public defenders are not allowed to appear in court, and in several instances, observers from the Belarusian Helsinki Committee were denied access;

3) the judges make threats and disrespectful remarks to the persons accused of administrative offenses;

4) the "offenders" are not informed of their rights before the start of the proceeding;

5) the judges openly "solidarize" with the police witnesses and give priority to their testimonies;

A vivid example of the accusatory tendency in reviewing administrative cases can be seen in the case of N.N. Belotserkovets, disabled since childhood. Judge E.I. Kuzmenkova of the Partisan District in Minsk fined him 6,500,000 rubles. The court ruling states that citizen N.N. Belotserkovets "took active part in an unauthorized assembly, where he publicly discussed and expressed his dissatisfaction with the action of the president and government concerning the signing of the treaty with Russia."

Meanwhile, the mother of the "offender" said the following in her statement to the Belarusian Helsinki Committee: "My son was detained on April 2, 1997. He was held at the police station overnight. But since childhood he has been a second-group disabled person and is registered at the psychiatric neurological dispensary. The boy is 34 years old, but in developmental terms, he is a child. He had identification with him showing that he is disabledKolya returned home on April 2. He could not say anything coherent because of his nervous stress and just kept repeating over and over: "Mama, mamochka! It's horrible. They're more horrible than the fascists!" When I bathed him in the tub, I discovered that he had been severely beaten."

Slavomir Adamovich also submitted a testimony about his court case (in a statement sent to the chairman of the Belarusian Helsinki Committee).

The trial of S. Sharetsky, chairman and deputy of the Supreme Soviet, was described particularly vividly by L. Maslyukova, a political commentator for the newspaper Narodnaya volya:

Thus, the campaign of persecution of dissenters, assigned to the courts from the very top and supported by Prosecutor General O. Bozhelko, is being obediently followed by rank and file judges and is virtually complete. On May 15 the two-month period for the information from so-called "administrative offenses" expired. A trail of files about them lie in the archives as abundant material for future researchers of the period of cynical violation of human rights in the Republic of Belarus and the unlawful show trials of the opposition. Speaker Semyon Sharetsky emphasized this when he said to Judge Alexander Bragin that the decision he has delivered will be declared a dishonor to the justice system.

On May 14, 1997, there was yet another trial in absentia of a member of an unsanctioned public action, A. Lebedko, deputy of the Belarus Republic Supreme Council, who was notified in time of the day of his hearing. As a sign of protest against this judicial abuse, the deputy held a press conference at the Central District Courthouse in Minsk, titled "Stalin's Troikas Pass the Banner to Lukashenko's Singletons." Lebedko told journalists about his trial, the terrorizing of his relatives and other violations of the law.

Why have the courts then stopped fulfilling their intended function (which is to judge according to conscience, truth, and the law) and have transformed themselves into agencies of harassment of the citizens of Belarus, who are exercising their constitutional right to freedom of expression, rallies, processions, demonstrations and pickets?

In my view, the explanation for this transformation can be found in the dependence of the judges at all levels on the president and his vertical line of command. By giving himself the right to appoint and remove from office all the judges of the Belarus Republic, and also to determine the financial and material and technical outfitting of the courthouses, the president has gained the possibility of running the courts. The latter have turned into an appendage of the administrative system of power, fulfilling the public function of the presidential office. Having lost their independence, they have largely ceased being organs of justice.

Do the citizens and society of Belarus need such courts? I think each person would answer, No! Everyone understands: a court must be independent from any state agencies and officials. Only with that condition can it be a defender of civil rights and liberties.

RESTORATION OF LEGALITY AND DEMOCRACY: THE ONLY

WAY OUT OF THE CRISIS

As has been noted, the international community, except for the Russian Federation, has not acknowledged the results of the November (1996) national referendum in Belarus. The Council of Ministers of the European Union, in a special statement of April 29, 1997, called on the Belarusian authorities to create "consultative structures to discuss the proposals to change and amend the 1994 Constitution with an end to establishing a real balance in the system of separating the functions of powers.

Taking into consideration the recommendations of the European Union, the National Congress of Democratic Forces of Belarus, convened in Minsk on May 15, 1997, concluded that there is only one legal way out of the existing situation: to restore of the Constitution of 1994 and the activity of the 13th Supreme Soviet of the Republic of Belarus. Three stages for democratic reform on the road to restoring legality and democracy are outlined in a resolution, passed by the Congress, titled "On the Way Out of the Constitutional Crisis for the Republic of Belarus."

The first step would be to hold primaries for the deputies of the Supreme Soviet in the electoral districts where the President prohibited them in November and December 1996.

The second step would be to revise the Constitution of the Republic of Belarus on the basis of procedures contained within it.

The third step would be to hold immediate parliamentary and presidential elections on the basis of new electoral laws passed by the Supreme Soviet.

As noted in the resolution of the II National Congress of Democratic Forces of Belarus, all the actions proposed are aimed at dismantling the dictatorial regime in the Republic of Belarus and establishing democratic forms of government.

I believe that the participants of the Congress have proposed an intelligent and civilized way out of the legal crisis in which the country finds itself after the enforcement of the "presidential" constitution. It is quite logical, that in order to guarantee the rule of law we must return to its original legitimate foundation. That is the 1994 Constitution of the Republic of Belarus. It should serve as the basis for instituting democratic reforms.

In order to prepare the amendments and additions to the Constitution, it is necessary to convene, on a democratic basis, a constitutional commission made up of authoritative legal scholars and not those who have compromised themselves. That commission must within a brief time draft the constitutional amendments and send them for discussion to the legitimate Supreme Soviet of the Republic of Belarus.

Given that the 1994 Constitution envisions the necessity for a double discussion of amendments to the Constitution, the deputies of the Supreme Soviet must approve the Constitutional amendments and additions in the first reading, and then must convene again no earlier than three months (this time period for a second discussion is set by Art. 148 of the Constitution). And only after discussing the amendments and additions to the Constitution for the second time may the deputies pass them by a qualified majority of votes.

What if President Lukashenko does not enter into a dialogue with the Supreme Soviet deputies and does not agree to recognize the legitimacy of the 1994 Constitution? This is the most likely option. In that case, the opposition within Belarusian society will continue: on the one hand, the president, his team, the law-enforcement agencies, and on the other hand, the democratic forces. It can be supposed that as the regime grows more harsh, the democratic movement will consolidate and broaden. This process can already be observed in Belarus. Political parties, movements, civic organizations protesting against abuse and lawlessness, are uniting around the platform of defending the rule of law and human rights.

Thus, 146 civic organizations support the Human Rights Convention whose purpose is to consolidate the forces of society to defend civil rights and liberties and gather and disseminate information about all instances of human rights violations by the authorities. A Council has been formed for this human rights coalition, a president elect, three vice-presidents, an executive committee, a monitoring committee, and review and mandate commissions. On May 12, 1997, the Human Rights Convention issued a statement, "On the Status of Independent Civic Organizations in Belarus," which notes that the government of Belarus is conducting a brutal and systematic attack on independent civic organizations and that this is a massive form of human rights and liberties.

Hundreds of citizens, patriots of Belarus, have placed their signatures on the Declaration in Defense of the Rule of Law and Human Rights. The Declaration calls on citizens and civic organizations to unite on the basis of a common platform of action (see the attachment to this report).

On April 24, 1997, the Deputies' Assembly of the 13th Supreme Soviet discussed the human rights situation and passed a resolution, "On the Gross Violation of Human Rights in the Republic of Belarus." In particular, the resolution states that as a result of the so-called referendum and the unlawful enforcement of the new version of the Constitution in Belarus, a dictatorship has virtually been established. The resolution cites numerous instances of the rights and liberties of the citizens of Belarus and condemns as impermissible the continuation of the practice of violating civil rights and liberties by government agencies, the police, the prosecutor's office, the courts, and other officials who have passed legislative acts. The Deputies' Assembly of the Supreme Soviet ordered the Commission on Human Rights along with the Commission on Legislation and State Construction to draft a law regarding the non-application of statutes of limitation on the commission of crimes by officials concerning civil rights and liberties.

In order to consolidate all political parties, movements and civic associations, on May 15, 1997, the II National Congress of the Democratic Forces of Belarus was held in Minsk, titled "In Defense of Sovereignty and Democracy." More than 280 delegates took part representing 33 parties and movements. On of the chief documents passed by the Congress was the statement "On the Union of Belarus and Russia," in which the proposed Russian-Belarusian Union is characterized as "the effort of President Lukashenko to save his bankrupt regime and escape responsibility for the lawlessness he has committed." The statement also notes that "in the republicabuse and lawlessness reign, and human rights are violated."

Thus, there is hope that, as the democratic forces of Belarus consolidate and strengthen, the crisis will be overcome and the rule of law and democracy will triumph in the republic.

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