Evgeny Pylchenko

Article 9, paragraph 1 of the Covenant establishes two main prohibitions as to the detention: the prohibition of arbitrary arrest and detention and the prohibition of unlawful deprivation of liberty.

The deprivation of liberty is unlawful, if carried out in the absence of grounds provided for by law and does not comply with the lawful procedure

"Arbitrariness" is a more complex notion. It shall not be equated with the quality of being “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. (General Comment №35, par. 12)

Based on these criteria, each fact of arrest and detention should be assessed on a case by case basis. At the same time, the concepts of "unlawfulness" and "arbitrariness" are not mutually exclusive, but “overlap, in that arrests or detentions may be in violation of the applicable law but not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful. Arrest or detention that lacks any legal basis is also arbitrary." (General Comment №35, par. 11)

In Belarusian criminal procedure legislation, the concepts of “legality” and “justification” are used to evaluate the legality of detention. The first is understood as “compliance with the norms of the criminal procedure legislation regulating the procedure for the application of preventive measures”, which generally corresponds to the content of the concept of “legality” in relation to the Covenant.

“Unjustified’ (in terms of the Criminal Procedure Code) detention can only be partially correlated with an “arbitrary” one (in terms of the Covenant).

In the Plenum of the Supreme Court’s Decision No. 12 “On the practice of consideration by courts of complaints about the use of preventive measures in the form of detention, house arrest or extension of their validity” of December 23, 2010 (hereinafter referred to as the decision of the Plenum), “validity” is defined as the presence in the materials submitted to the court of information that confirms the need to apply the preventive measure (paragraph 3). However, Belarusian legislation does not contain such a broad list of elements as is given in the Covenant to characterize “arbitrary” detention.

In this regard, the evaluation of the validity of detention is reduced in practice to checking compliance with certain provisions of the Criminal Procedure Code, and from a purely formal point of view (in particular, it is monitored whether the investigator indicates the grounds for applying a preventive measure, which will be discussed below). From the point of view of compliance with the guarantees established by the ICCPR, detention and arrest are not evaluated in practice at all.

For instance, the ICCPR clearly considers an arrest or detention to be arbitrary if they are applied as a punishment for the lawful exercise of rights guaranteed under the Covenant, including the right to freedom of opinion and expression (article 19), freedom of assembly (article 21), freedom of association (article 22), freedom of religion (article 18), and also the right to privacy (article 17). Arrest or detention on discriminatory grounds in violation of article 2, paragraph 1, article 3 or article 26 is also arbitrary in principle (General Comment №35, par. 17). However, in Belarus, the courts do not evaluate detention in terms of limitation of the mentioned rights or discrimination.

Detention may also be considered arbitrary if the treatment of detainees does not meet the purpose indicated as the basis for detention (General Comment №35, par. 17).

There are a sufficient number of examples of illegal treatment of prisoners in Belarusian practice, however, both the investigative authorities and the courts refuse to link the legality of detention with the conditions of staying there. They completely distance themselves from examining any violations, arguing that the treatment of a prisoner lies exclusively within the competence of administrations of detention facilities.

As noted in paragraph 14 of the General Comment No. 35, the Covenant does not contain a list of permissible grounds for deprivation of liberty, but the grounds and procedures prescribed by law should not undermine the right to personal freedom.

In this sense, the general grounds for the application of preventive measures provided for in article 117 of the Criminal Procedure Code (the information that the accused may abscond, obstruct a preliminary investigation, commit a socially dangerous act) are permissible. (For comparison, paragraph 38 of General Comment No. 35 states that detention should be necessary “for purposes such as preventing escape, interfering with the collection of evidence or the recurrence of a crime”).

Nevertheless, the very fact of the acceptability of the grounds provided for by the Criminal Procedure Code does not make the detention itself lawful, since these grounds are taken into account only formally in Belarusian practice.

The decision of the Plenum directly instructs the courts, when assessing the validity, “to rely on the general grounds for the application of preventive measures established by Article 117 of the Criminal Procedure Code”. This should mean that a preventive measure can be applied “only if the evidence collected in a criminal case provides sufficient grounds for believing that the suspect or the accused may escape” and commit other actions listed in paragraph 1 of Article 117 of the Criminal Procedure Code. Despite the above norms, when considering most complaints about detention, no evidence is provided to the court confirming the existence of grounds for the use of preventive measures, but the courts ignore it and consider the mentioning of article 117 of the Code in the investigator’s decision to be a sufficient ground.

It is obvious that this approach completely contradicts even the Belarusian legislation per se. Of course, detention without confirmation of the grounds for it won’t be considered lawful from the point of view of the Human Rights Committee. Thus, in the Communication № 1502/2006 (Mikhail Marinich v. Belarus), a violation of article 9 of the Covenant was established, since the State did not demonstrate the existence of a necessity factor in order to prevent escape, obstruction of the collection of evidence or the repetition of the crime. In the Communication № 1369/2005 (Kulov v. Kyrgyzstan), the Committee declared the detention unlawful, noting that the investigation had no evidence that the applicant intended to abscond or obstruct the investigation.

Separately, it should be noted that the Criminal Procedure Code does not provide for the same list of grounds for detention as for the application of preventive measures. Article 107 of the Code provides only that the detention is carried out either on suspicion that has arisen directly, or on the basis of a decision of the criminal prosecution authority and the court, however, the criteria by which the detention is deemed necessary are not given.

Thus, the national legislation does not actually contain norms that can be used as arguments in appealing detention, and in such a situation, the criteria contained in General Comment No. 35 are all the more vital for application.

Under article 9, paragraph 3, of the Covenant, “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment”. “Pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances… Courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the particular case.” (General Comment №35, par. 38). Thus, it is emphasized that detention should be an exception, and not a general practice.

The Criminal Procedure Court partly reflects the exceptional nature of this preventive measure by indicating that it is applied only in situations when “the goals of criminal prosecution cannot be achieved by way of applying a milder preventive measure.” Also, detention is not applied when the penalty related to specific accusations does not exceed two years, and some less serious crimes. In addition, article 117 of the Code establishes a general requirement when applying any preventive measure to take into account the nature of suspicion or accusation, the identity of the suspect or accused, their age and health status, occupation, marital and property status, permanent residence and other circumstances.

Nevertheless, the reality shows that the issues of applying a milder measure of restraint are usually not properly considered. Neither in the decisions on detention nor in the court decisions on complaints against the application of the measure, there are no grounds according to which detention is considered to be necessary. No reasons are also stated as to why alternative preventive measures cannot be applied. Even if the defense party directly petitions for the application of a specific milder measure and provides appropriate arguments, these arguments are not considered diligently. Information about the person and other circumstances may be included in the decision of the investigator or the court, but it is impossible to trace whether they somehow influenced the decision being made.

Moreover, the Criminal Procedure Code establishes an additional basis for detention, “based on the gravity of the crime alone” (when the charges are connected with committing a grave or especially grave crime against peace and security of mankind, the State, a war crime, a crime involving an attempt on human life and health).

This norm contradicts both the above-mentioned norm of the Covenant and the provision that a pretrial detention shouldn’t be ordered for a period based on the potential sentence for the crime charged, rather on a determination of necessity of such a measure (General Comment №35, par. 38).

Article 9, paragraph 3, of the Covenant stipulates that “anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power”. Paragraph 32 of General comment No. 35 clarifies: “That requirement applies in all cases without exception and does not depend on the choice or ability of the detainee to assert it.” Thus, detention is placed in the sphere of judicial control. At the same time, the General comment draws attention to the fact that “it is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. Accordingly, a public prosecutor cannot be considered as an officer exercising judicial power under paragraph 3 [of article 19 of the Covenant]”.

According to the Belarusian Criminal Procedure Code, pretrial detention is carried out by order of the investigator with the approval of the prosecutor. The court is excluded from this procedure, it is assigned only the function of verifying the legality and validity of the application of a preventive measure, and such verification is carried out only in the case of an appeal against detention by the accused or his defense counsel.

It follows from this that the detention procedure provided for by the Belarusian legislation directly contradicts the requirements of the Covenant. The norms of the Code, which provide for the possibility of judicial verification of the legality of detention, cannot substitute for mandatory judicial control (especially since these norms reflect another independent guarantee provided for in paragraph 4 of article 19 of the Covenant, namely, the right to proceedings on release from an unlawful or arbitrary detention).

Paragraph 34 of General comment No. 35 clarifies that “the individual must be brought to appear physically before the judge or other officer authorized by law to exercise judicial power. The physical presence of detainees at the hearing gives the opportunity for inquiry into the treatment that they received in custody and facilitates immediate transfer to a remand detention center if continued detention is ordered”.

Belarusian legislation on criminal procedure sets an almost opposite approach to the matter of participation of a detainee in a court hearing: in paragraph 2 of Article 144 of the Criminal Procedure Code, the accused (suspect) is not even mentioned among the persons having the right to participate in a court session when a complaint about the use of a preventive measure is considered, and in paragraph 3 of the same article it is provided that the judge has the right to summon him to court “if necessary”. As can be observed from practice, judges do not see such a need in the absolutely overwhelming majority of cases – even if the detainee or their defender requests this in advance in writing.

By establishing mandatory judicial control of detention, article 9, paragraph 3, of the Covenant emphasizes that an arrested or detained person must be brought to court “promptly”. In the view of the Human Rights Committee, “48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances.” (General Comment №35, par. 33).

As noted above, mandatory judicial control of detention is not provided for in Belarusian legislation, there is only the right of an individual to appeal to the court against their detention or arrest. However, the procedure for considering such a complaint does not meet the criterion of “promptness” and in the vast majority of cases exceeds 48 hours.

From the moment of filing a complaint (through the criminal prosecution body) until the court makes a decision, up to six days may pass (72 hours for the transfer of the complaint and the attached materials from the investigative body to the court and 72 hours for consideration by the court). This period is extended by another 24 hours if the detainee submits a complaint through the administration of the detention facility. At the same time, in practice, it is considered legitimate to apply the rule according to which, if the end of the term occurs on a non-working day, then the last day of the term is the first working day following it (which ignores the indication that this rule is inapplicable to cases of calculating the term during detention and arrest).

General comment No. 35 (paragraph 33) also specifically notes a particularly strict standard of promptness –– 24 hours –– which should be applied to minors. However, the Belarusian legislation does not set any special time limits for considering a complaint about detention in relation to minors.

Paragraph 35 of general comment No. 35 emphasizes that States parties should permit and facilitate access to counsel for detainees in criminal cases from the outset of their detention. The need to afford prompt and regular access to counsel during the trial on the review of the detention measure is separately specified (General Comment №35, par. 46). The lack of access to counsel is the basis for the establishment of a violation under article 9 of the Covenant.

In the decision of the Plenum, the courts, when examining the lawfulness of detention, are instructed to check whether the right of the suspect (or accused) to defense has not been violated (par. 4). However, this right is interpreted narrowly and one-sidedly: the courts only check whether a counsel was present in the course of arraignment and the conduct of investigative actions (if this was mandatory).

While the problem of the lack of access of counsel to a detainee in Belarus is extremely relevant, the courts refuse to regard it as a violation of the right to defend the facts of late admission of counsel to a client or the absence of such admission. The only possible reaction to such arguments of the defender may be an indication in the court order that access was eventually granted.

As for the participation of a counsel in a court hearing when appealing detention, such participation is not mandatory in accordance with the Criminal Procedure Code, and courts, as a rule, do not postpone sessions which the defender is unable to attend for objective reasons. And together with the fact that the detainee himself is not taken to court sessions when considering a complaint about detention, it turns out that in such a hearing he cannot defend his rights either independently or through a counsel and is actually deprived of the proper right to defense, which does not meet the standards of a fair trial.

Article 9, paragraph 3, of the Covenant establishes the right of a detainee to proceedings within a reasonable time –– or the right to be released. Persons who are not released pending trial must be tried as expeditiously as possible, to the extent consistent with their rights of defense (General Comment №35, par. 37). This requirement also ensures the right to a fair trial, since an “extremely prolonged pretrial detention may also jeopardize the presumption of innocence under article 14, paragraph 2” (General Comment №35, par. 37).

At the same time, General comment No. 35 allows for the possibility of delays in the transfer of the case to the court, and if the delays become necessary, the judge must reconsider alternatives to pre-trial detention (par. 37). In addition, there is a requirement of periodic re-examination of whether the pre-trial detention continues to be reasonable and necessary in the light of possible alternatives (par. 38).

As can be observed, in Belarusian practice, the term of detention is determined not on the basis of the rights of the detainee, but based on the interests of the investigation. The total initial period –– two months –– can be extended to a maximum of eighteen months. At the same time, the justification for the need for such a long investigation and, accordingly, the detention of a person, usually represents the statement about the impossibility of completing the investigation before the expiration of the period of detention, without specifying specific and sufficient reasons for this.

The term of detention is extended by the prosecutor, and the judicial review of the validity of the extension of this period, as originally in custody, is carried out only in connection with the filing of a complaint by the accused.

At the same time, the courts demonstrate an even more formalistic approach to assessing the lawfulness of detention. The decision of the Plenum prescribes to examine whether the circumstances that served as the basis for the decision on detention retain their significance for the extension of its term, and whether new circumstances have arisen by the time of consideration of the complaint affecting the validity of the extension of these preventive measures (para. 5). However, in practice, the courts limit themselves to stating that no new circumstances that could serve as a basis for release have arisen, and the lawfulness and validity of the initial detention, in the opinion of the courts, is not subject to verification. At the same time, although the Criminal Procedure Code explicitly provides for the extension of the period of detention in the absence of grounds for applying another preventive measure against the accused (paragraph 3 of Article 127 of the Code), no proper justification for the impossibility of applying another measure is provided either in the decisions on the extension of the term or in judicial decisions issued as a result of the consideration of appeals.

It stems from the above mentioned that the guarantees of the right to liberty provided for in article 9 of the Covenant are only partially reflected in Belarusian legislation on criminal procedure, and are even less applied in practice. However, the reference to international standards in advocacy seems to be justified and necessary. This makes it possible to use a broader list of arguments to challenge detention and arrest, not limited to the framework of national legislation and formalist approaches established in practice. In addition, the provisions of the Covenant that are still reflected in Belarusian criminal procedure legislation, in the interpretation of the General comments, provide a more holistic and comprehensive idea of the content and essence of the guarantees provided for by them. Therefore, even if the courts and investigative bodies are currently not ready to apply international standards, the appeal to them by the defense is still important: thus, there is a formation of the idea of law as a more complex system that is not reduced to procedural rules.