October 2016 / N° 683a
Death Penalty in Belarus:
Murder on (Un)lawful
Grounds
Cover photo:
Death row cell in Pretrial detention centre No. 1 in Minsk. Source: Human Rights Centre “Viasna”
TABLE OF CONTENTS
INTRODUCTION 4
I. LEGAL REGULATION 14
I.1. INTERNATIONAL COMMITMENTS OF BELARUS RELATED TO DEATH PENALTY APPLICATION 14
I.2. SHORTCOMINGS IN LAWS ON THE USE OF DEATH PENALTY IN BELARUS 24
II. VIOLATIONS OF RIGHTS RELATED TO THE APPLICATION OF DEATH PENALTY IN BELARUS 35
II.1. RIGHTS’ VIOLATIONS DURING ARREST AND INVESTIGATION OF DEATH ELIGIBLE CRIMES 35
II.2. TRIAL IN FIRST INSTANCE COURT 40
II.3. JUDICIAL REVIEW OF DEATH SENTENCES 49
II.4. PRESIDENTIAL PARDON AND COMMUTATION TO LIFE IMPRISONMENT OR ANOTHER
FORM OF PUNISHMENT 54
II.5. DEATH PENALTY AND MENTAL DISORDER 57
II.6. INHUMAN DETENTION CONDITIONS 58
II.7. EXECUTION 64
II.8. POST-EXECUTION. VIOLATION OF THE RIGHTS OF RELATIVES: ″THE WORST IS NOT KNOWING″ 66
CONCLUSION 70
RECOMMENDATIONS 73
ANNEXES 78
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
4
INTRODUCTION
″If you, a degenerate scumbag, go and repeatedly commit a crime, if you commit murder, what right
do you have to live on this earth? I’m not bloodthirsty, but the punishment must t the crime. Take
control of this. Otherwise we will never establish order and bring down this fever in society. These
are grave, especially grave offenses: if you are guilty, you must pay the ultimate price.″
Aliaksandr Lukashenka
President of the Republic of Belarus
November 2013
1
″Many people today do not think about the fact that people are shot right here in Minsk, on
Valadarski Street, and that people who enforce sentences and thereby commit legalised murder
walk among us and take the same public transportation. Those who hand down death sentences,
forensic medical experts who certify death, and those who pull the trigger - they all live around us.″
Andrei Paluda
Coordinator of the campaign
″Human Rights Defenders against the Death Penalty in Belarus″
In June 2016, FIDH and its member organisation in Belarus, the Human Rights Center ″Viasna″
(HRC ″Viasna″), conducted an international fact-nding mission on the issue of the death penalty
in Belarus. Members of the mission included Andrei Paluda, coordinator of the campaign ″Human
Rights Defenders against the Death Penalty in Belarus″, Aida Baijumanova, Deputy Chairwoman of
the Management Board of the ″Bir Duino Kyrgyzstan″ Human Rights Movement, and Julia Ouahnon,
FIDH Eastern Europe and Central Asia Programme Ofcer.
The subject of the death penalty in Belarus is shrouded in high secrecy. On the whole, even detention
conditions in Belarusian prisons have been the subject of very little research, but the subject of
″death rows″ is especially closed. There are no published ofcial sources of information on this
subject. There is practically no citizen oversight over the places where death-row inmates are held.
Thanks to the tireless efforts of human rights defenders and journalists, some statistics on the
enforcement of sentences are available. However, the information civil society has access to is far
from complete.
Participants of the FIDH-HRC ″Viasna″ mission met with former prisoners, relatives of persons
sentenced to death and executed, lawyers, journalists, experts and activists of non-governmental
human rights organisations.
Acknowledgments
FIDH thanks its member organisation in Belarus, HRC ″Viasna″, and the employees of HRC ″Viasna″
for their assistance in preparing the international fact-nding mission on the death penalty in
Belarus and for consultations during work on the report, in particular Andrei Paluda, coordinator of
the campaign ″Human Rights Defenders against the Death Penalty in Belarus″, and lawyers Pavel
Sapelka and Valiantsin Stefanovic.
FIDH also thanks all those who agreed to be interviewed during the mission, in particular the families
whose relative was executed or sentenced to death, without whose rst-hand accounts our research
could not have been complete.
1. Lukashenka, speaking about the killer of a girl in Homiel: ″What right do you have to live on this earth?″ Homiel Today,
11/15/2013, see: http://Homieltoday.by/rus/news/Homiel/47860/, in Russian only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
5
Political Context
The Republic of Belarus is a country in the center of Europe with an area of 207.6 thousand km
2
and a population of about 9.498 million people. Belarus is the last country in Europe and the last of
the post-Soviet countries in which the death penalty is legally codied and that continues to apply
death sentences.
The use of the death penalty (execution by shooting) in Belarus is provided for by Art. 24 of the
Constitution of the Republic of Belarus as an exceptional measure of punishment for the most
serious crimes.
Apart from the very fact of taking a person’s life, which is not only cruel, but also ineffective in
ghting and preventing crime, the use of the death penalty in Belarus is accompanied by many gross
human rights violations. Physical and psychological pressure is used for the purpose of obtaining a
confession of guilt, and many other due process violations lead to the imposition of a death sentence
in unfair trials. While on death row, death convicts are under tremendous psychological pressure
due to the uncertainty of their fate; their contacts with family and their right to defence are severely
circumscribed; and their correspondence is controlled by the administration of the pretrial detention
center, which frequently restricts it; during the few meetings with family that are allowed, convicts
are brought out in degrading conditions.
According to evidence obtained, persons sentenced to death are kept in total isolation, they are
forbidden to take walks, and prison staff treat them as if they are no longer ″among the living.″
Isolation makes them especially vulnerable to physical and psychological coercion. Conditions of
detention on death row have repeatedly led to suicide attempts. The bodies of executed persons are
not released to their families, and the time and place of execution, as well as the place of burial are
kept secret, leaving relatives in a state of uncertainty, unable even to bury the body in accordance
with family traditions and beliefs.
Soviet authorities in Belarus used the death penalty extensively to suppress political dissent.
It was used as a punishment not only for murder, but also for economic crimes, such as
producing counterfeit money, bribery and speculation, as well as crimes against the state and
counterrevolutionary acts, including high treason and espionage.
Contemporary Belarus, which has preserved many repressive practices of the Soviet Union, is a
successor to Soviet traditions, including the use of the death penalty. After the dissolution of the
USSR and Belarus’s independence in 1991, and up until 1999, when the new Criminal Code was
adopted, Belarus continued to apply – with several amendments – the ″Soviet″ Criminal Code, which
prescribed the use of the death penalty for over 30 crimes. The Constitution of the Republic of Belarus,
adopted in 1994, preserved the death penalty for particularly grave crimes ″until it is abolished″. It
should be noted that the initial draft of the Constitution of the Republic of Belarus in 1991 did not
provide for the death penalty, but a constitutional majority needed to adopt it could not be achieved.
After long debates and several votes in Parliament, a constitutional majority (243 deputies) voted on
30 November 1993 in favour of Art. 24 of the Constitution, allowing the death penalty.
2
During the infamous referendum of 1996, initiated by Aliaksandr Lukashenka to introduce
amendments and additions to the Constitution that would substantially broaden the powers of
the president and turn Belarus from a parliamentary-presidential republic into a presidential one,
the country’s citizens were offered a chance to express their opinion on a number of other issues of
2. ″The Death Penalty in Belarus″, HRC ″Viasna″. 2016 https://spring96.org/les/book/en/2016-death-penalty-b
elarus-en.pdf, p. 53-55.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
great public interest. According to ofcial results (not recognised by the international community,
since the referendum was conducted with gross procedural violations), 80.44% of Belarusians
(4,972,535 people) voted against the abolition of the death penalty, and only 17.93% (1,108,226
people) voted in favour thereof.
Hary Pahaniayla, Chairman of the Legal Commission of the Belarusian Helsinki Committee
(BHC), experienced lawyer, former judge and former president of the Union of Belarusian Defence
Attorneys,
3
explained to the FIDH-HRC ″Viasna″ mission: ″The outcome of the voting on the abolition
of the death penalty during the 1996 referendum should be seen as a result of the political struggle
between Aliaksandr Lukashenka and the Parliament. The President enjoyed broad support among the
population, unlike the Parliament. As a result, people voted in accordance with the President’s opinion
on matters put forward by the President, including with respect to the death penalty. They also voted
against the proposals supported by the Parliament″.
4
Both then and later, Aliaksandr Lukashenka
repeatedly spoke out in favour of the death penalty.
5
Due to serious violations during the referendum, its results were declared unlawful and not
recognised by international organisations, including the OSCE (Organisation for Security and
Cooperation in Europe), Council of Europe and the European Union. (For example, the referendum
campaign used an image of a ″properly completed″ sample ballot showing the option ″against″ the
abolition of the death penalty checked). However, the Belarusian authorities continue to justify the
use of the death penalty by citing the need to respect the people’s will. It must also be emphasized
that at the time of the referendum, the crime rate in the country was rather high, while the maximum
punishment provided for in the Criminal Code - and an alternative to the death penalty - was 15
years of imprisonment. Longer prison terms and life imprisonment were introduced only in 1999.
Furthermore, the referendum was advisory in nature as regards the death penalty, and the
Constitution of Belarus contains a clause allowing for a moratorium or full abolition. It is also
important to recall the 2004 decision of the Constitutional Court of Belarus, pursuant to which
it is not mandatory to call a referendum to abolish the death penalty.
6
Based on its analysis of
Art. 24 par. 3 of the Constitution, the Constitutional Court found that ″the matter of abolishing this
type of penalty or, as a rst step, declaring a moratorium on its use may be decided by the Head of
State and the Parliament″.
Human rights defenders and journalists ghting for the abolition of the death penalty refer to a new
reality, noting that 20 years after the referendum, laws, society and, accordingly, public opinion on
the question of the death penalty have changed. FIDH member organisation HRC ″Viasna″ leads
a campaign called ″Human Rights Defenders against the Death Penalty in Belarus″,
7
launched in
2009 jointly with the Belarusian Helsinki Committee, with the aim of gaining public support for the
abolition of the death penalty in Belarus. In addition to awareness-raising activities, the campaign is
focusing on legal aid to family members of death convicts. Human rights defenders have observed
noticeable changes in public opinion concerning the use of the death penalty.
According to a public opinion survey conducted in 2016 by the Independent Institute of Socio-
3. Hary Pahaniayla was disbarred in Belarus in 1997 for participating in the defence in high-prole political cases.
Throughout his career as a lawyer, Harry Pahanyayla represented defendants accused of death eligible crimes and
lodged individual complaints with the UN Human Rights Committee.
4. FIDH-HRC ″Viasna″ mission interview with Hary Pahaniayla, 30 June 2016.
5. ″Lukashenka: I will never agree to a moratorium on the death penalty, because I am a servant of my people,″ from the
annual address to the Belarusian people and to the National Assembly, http://news.tut.by/politics/288026.html, in
Russian only.
6. “The Use of the Death Penalty as a Form of Criminal Punishment”, http://mvd.gov.by/main.aspx?guid=9091, in Russian
only.
7. ″Human Rights Defenders Launch Campaign against the Death Penalty″, http://dp.spring96.org/en/news/26884.
6
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Economic and Political Studies (IISEPS), approximately 37% of the population supports the abolition
of the death penalty – almost twice as many as 20 years ago.
8
The number of people who support
the death penalty dropped during the same period by almost 30 percent.
9
Research conducted in
2014 by the public survey rm ″Satio″, commissioned by the Belarusian Helsinki Committee and
Penal Reform International shows that the number of abolitionists is even higher: according to the
results of a general survey of Belarusians’ attitudes toward the death penalty, 43.3% supported the
immediate or graduate abolition of the death penalty in Belarus.
10
In an interview conducted during the FIDH-HRC ″Viasna″ mission, human rights defenders and
journalists mentioned that the authorities do no awareness-raising work with the public in this area.
According to the above-cited study, a third of the Belarusian population is unaware that the death
penalty is used in their country.
11
Furthermore, government ofcials – rst and foremost the President Aliaksandr Lukashenka – and
state-owned media promote the development of positive attitudes toward the death penalty by focusing
the attention of public opinion on the gravity of crimes committed by death convicts. They subsequently
use the favourable public opinion to their advantage, claiming that society is not ready for the abolition.
Another argument frequently used by the authorities in favour of the death penalty is an unfounded
assertion that the death penalty reduces crime rates. In fact, the number of especially grave
offenses in Belarus continues to grow: in 2015, the Ministry of Internal Affairs reported 4,018 such
offenses
12
– an increase of 17% compared to 2014 (3,417) and an even higher increase compared
to 2013 (2,190) or 2012 (1,686).
13
″Speaking of the supposedly deterrent effect of the death penalty, it should be recalled that Belarus
remains among the countries with the highest homicide rates″,
14
noted Hary Pahaniayla in his interview
with the FIDH-HRC ″Viasna″ mission.
The interviews conducted during the mission attest to a lack of political will to tackle the societal
problems that lie at the heart of a high crime rate. For example, Adarya Gushtyn, a journalist, lawyer
and coauthor of the book ″The Death Penalty in Belarus″,
15
stated:
″The state does not do enough to combat domestic violence, the high level of alcohol and drug use, and
poverty – factors that are directly linked with the high homicide rate″.
16
The secrecy surrounding death sentences and their enforcement obviously contradicts the
authorities’ argument that maintaining the death penalty is necessary in order to reduce the crime rate.
8. ″Survey: 51,5% of Belarusians favour keeping the death penalty in Belarus, April 4, 2016, http://4esnok.by/obshhestvo/
opros-515-belorusov-vystupayut-za-soxranenie-v-strane-smertnoj-kazni/, in Russian only.
9. Ibid.
10. ″Crime and Punishment: ″Societal Perception, Assessments and Attitude,″ report by the Sato Group of Companies
ordered by Penal Reform International and the Belarusian Helsinki Committee, http://belhelcom.org/sites/default/
les/Итоговый%20отчет2014_исправлен(2).pdf, in Russian only.
11. ″Research Shows: Belarusians Fear Innocent People May Be Executed by Firing Squad. Opinions ″For″ and ″Against″
the Death Penalty are Divided,″ http://news.tut.by/society/369588.html, in Russian only.
12. The website of the Ministry of Internal Affairs, General Statistics for the year 2015, http://mvd.gov.by/main.
aspx?guid=256493, in Russian only.
13. ″Criminal Belarus: There Were Fewer Thefts, but More Especially Serious Offenses in 2014.″ http://news.tut.by/
society/433456.html, in Russian only.
14. FIDH-HRC ″Viasna″ mission interview with Hary Pahaniayla, 30 June 2016.
15. ″The Death Penalty in Belarus.″ HRC ″Viasna.″ 2016. https://spring96.org/les/book/en/2016-death-penalty-belarus-en.pdf.
16. FIDH-HRC ″Viasna″ mission interview with Adarya Gushtyn, 28 June 2016.
7
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
There have been at least three cases where authorities did not communicate the handing down
of a death sentence. The public would not have learned of these death sentences unless human
rights defenders and journalists had not made individual inquiries and research on these cases.
″The authorities pursue a policy of withholding information about executions. Therefore the argument
that using the death penalty prevents future crimes does not stand up to criticism, since the public is
deliberately deprived of information on death sentences. As a result, the statistical data that we have
concerning the imposition of death sentences is incomplete, because it is not corroborated by ofcial
information. It is even harder to get information on executions″, said Adarya Gushtyn.
17
In May 2016, for example, human rights defenders learned of the execution of Siarhei Ivanou, the
killer of a girl in Rečyca, from a statement made in court by Siarhei Khmialeuski, another death-row
inmate, who had shared a cell with Ivanov. As Khmialeuski explained in the Supreme Court during
the hearing of his appeal, he was unable to sleep that night, awaiting his cellmate’s return and hoping
that perhaps he had been taken out for some reason other than execution. In the morning, though,
prison employees ordered Khmialeuski to hand them all of Ivanov’s belongings; they accompanied
their order with comments insinuating that Ivanov would no longer be needing those things.
Finally, the evidence gathered by the mission allows to conclude that the legal system in Belarus on
the whole is neither free nor independent, and that torture and cruel treatment in closed institutions
and in the Belarusian system of law-enforcement agencies remain an endemic problem. Solving
this problem is possible only in conditions when all incidents of cruel treatment are impartially
investigated and those responsible are held accountable.
18
A detailed study of the system of justice and the use of torture and cruel treatment in Belarus,
however, is beyond the scope of this report, which is devoted to topics directly related to the use of
the death penalty in Belarus. Nevertheless, the fatality and unlawfulness of confessions obtained
under torture obviously lead to unfair sentences and potentially to the execution of the innocent.
In February 2010, a parliamentary Working Group was formed in the Belarus National Assembly
to study problems associated with the death penalty.
19
Mikalai Samaseika, then Chairman of
the Commission on Foreign Affairs, put forward an initiative to study the possibility of restoring
the Belarusian Parliament’s special guest status to PACE (the Parliamentary Assembly of the
Council of Europe). In Deputy Samaseika’s opinion, this would have contributed to a more effective
parliamentary diplomacy in promoting national interests and developing bilateral contacts.
Lukashenka supported the proposal and ordered the matter be studied.
Meanwhile, Mikalai Samaseika repeatedly emphasized that it was not among the Working Group’s
objectives to persuade citizens either in favour of the abolition or against it.
″The objective of the Working Group is not to persuade citizens to support or to oppose the abolition of
the death penalty, but only to raise awareness of the problems that are associated with the use of this
type of punishment″, he said, for example, on 7 February 2014 before the closing conference of UNDP
(United Nations Development Programme), ″Facilitating the Improvement of the Court System in
Belarus through the Development of the Specialization of Courts″.
20
17. FIDH-HRC ″Viasna″ mission interview with Adarya Gushtyn, 28 June 2016.
18. See Report on the Results of Monitoring of Detention Facilities in the Republic of Belarus. HRC ″Viasna,″ 2015
https://spring96.org/les/book/ru/2013_prison_conditions_ru.pdf, in Russian only.
19. ″Persons Sentenced to Life″, http://www.b-info.by/news/15133/index7.html. In Russian only. See also http://house.
gov.by/index.php/,1,24363,1,,0,0,0.html, in Russian only.
20. ″The Working Group on the study of the issue of the death penalty does not aim to persuade citizens on the necessity
8
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
According to him, the Working Group’s program includes ″participation in various talk shows, seminars
and round tables″.
In 2013, for example, the Working Group, jointly with the Council of Europe, held a round table, ″Religion
and the Death Penalty″; and with support from the European Union and the Moscow Ofce of the
organisation Penal Reform International - a round table ″Crime and Punishment: Public Perception″.
In reply to a question from BelaPAN (the Belarusian Private News Agency) about what would be the
result of the Working Group’s activity, the Mikalai Samaseika answered, ″We are not going to announce
deadlines. The result should be some kind of a summary document presented as recommendations to
either the House of Representatives – for instance, a proposal to conduct parliamentary hearings on
the subject, or to other public institutions, or to the head of state, or it should be a summary document
concluding whether the Republic of Belarus is or is not prepared to abolish the death penalty″. Herewith
he added that the result of the work could also be something else.
21
According to available information, neither the Working Group nor Mikalai Samaseika led an
activity report before the end of Parliament’s term in 2016. Moreover, the question of a sequel to
the activities of the Working Group and its new Chairman remains open in the wake of the September
2016 Parliamentary election.
Information in Belarus is protected by two laws: the ″Law on Information, Information Technology
and the Protection of Information″, and the ″Law on State Secrets″. The vague wording of these
laws empowers a competent authority to classify - with a few exceptions, such as the gold reserve
and population statistics - practically any information. There is no legal provision requiring that
information on executions be classied, in practice, however, it is held secret. Procedural regulations
on ring squads, the execution itself and the burial clearly exist but are not available to the public.
Furthermore, Aleh Alkayeu, former head of Pretrial Detention Centre No. 1 of the Penitentiary
Department of the Ministry of Internal Affairs, who from December 1996 through May 2001 headed
the ring squad (according to his testimony, 134 prisoners were executed by ring squad during
this period), claims that he acted under an instruction on executions that was in force at the time
he performed his duties. According to him, the instruction was marked ″For internal use only″. It
provided guidelines on the procedures for enforcing the death penalty.
The exact number of persons executed in Belarus is unknown. Thanks to the tireless work of
human rights defenders and journalists, the Belarusian public and the international community
nevertheless do possess some information about verdicts handed down and executions. According
to the Ministry of Justice of Belarus, 245 people were sentenced to death from 1994 to 2014.
22
Human rights defenders believe that since Belarus gained its independence in 1991, over 300 people
have been sentenced to death in Belarus and about 400 have been executed. The discrepancy
between the number of death sentences and executions may be explained by the fact that after
declaring independence, Belarus continued to execute death convicts who had been sentenced
prior to 1991, including those sentenced to death in other parts of the Soviet Union
before its collapse.
to abolish the capital punishment″, [available in Russian: http://www.open.by/country/119512].
21. ″The Death Penalty in Belarus Will Not Be Abolished under Lukashenka,″ People’s Will, http://www.nv-online.info/
by/524/society/92459/, in Russian only.
22. Quoted from ″Death Penalty in Belarus,″ p. 60, https://spring96.org/les/book/en/2016-death-penalty-belarus-en.pdf.
9
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Full ofcial statistical data on the use of the death penalty are not available, but we were able,
using various sources, to establish the following chronology:
Number of death sentences
since 1990
23
Number of persons executed since 1990
24
3 in 2016 (as of October) 1 in 2016 (as of October)
2 in 2015 0 in 2015
0 in 2014 3 in 2014
3 in 2013 0 in 2013
0 in 2012 3 in 2012
2 in 2011 2 in 2011
2 in 2010 2 in 2010
2 in 2009 0 in 2009
2 in 2008 4 in 2008
4 in 2007 1 in 2007
9 in 2006 2006 - not known
2 in 2005 2005 - not known
2 in 2004 5 in 2004
25
4 in 2003
4 in 2002
In 1999-2003 : ″not more than 7 persons a year″
26
7 in 2001
4 in 2000
13 in 1999
47 in 1998
46 in 1997
29 in 1996
37 in 1995
24 in 1994
20 in 1993
24 in 1992
21 in 1991
20 in 1990
Based on the above information it can be concluded that the number of death sentences decreased
signicantly after the sentence of life imprisonment was introduced to the Criminal Code of the
Republic of Belarus in 1999: whereas 47 death sentences were handed down in 1998, there
were only 13 in 1999, and their number has decreased since, with a recent average of two-three
sentences and two-three executions a year, with short ″breaks″ in some years.
23. Statistical data for 1990-1997 and 2010-2013: http://dp.spring96.org/en/why. Statistical data for 1998-2010, see
also http://mvd.gov.by/ru/main.aspx?guid=9091. Statistical data for 2014: ″Death Sentences and Executions in
2014, a Report by Amnesty International for 2014: https://www.amnesty.org/en/documents/act50/0001/2015/en/,
Statistical data for 2015 and 2016: information on various Internet sites.
24. Source 2007-2016: https://www.deathpenaltyworldwide.org/country-search-post.cfm?country=Belarus.
25. Source: ″Number of death verdicts in Belarus,″ http://belhelcom.org/ru/node/18624, in Russian only.
26. Source: Minister of Internal Affairs Navumau in an interview to ″Soviet Belarus″ in November 2014.
10
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
″In Belarus, the execution of two or three people a year on average seems like some form of offering″,
27
believes activist and journalist Palina Stsepanenka, one of the authors of the book ″The Death
Penalty in Belarus″.
28
Тhe political component of this very important public discussion is also obvious. Interestingly, the
Ministry of Internal Affairs of the Republic of Belarus states on its website, ″An analysis of judicial
practice enables us to conclude that progress towards limiting the use of the death penalty in the
Republic of Belarus is irreversible″.
29
Depending on the domestic situation and relations with international organisations, especially the
Council of Europe and the EU, the Belarusian authorities use different discourse concerning the
abolition of the death penalty. A comparative analysis of periods when the death penalty was not
used corroborates this nding. Although ofcial Minsk continually stresses that the issue should
not be used as a bargaining chip in relations with the West, negotiations between Belarus and its
Western partners seem to always include the topic of the death penalty. The Council of Europe
names the abolition of the death penalty as one of the conditions for restoring the special guest
status
30
of the Parliament of Belarus in the Parliamentary Assembly of the Council of Europe.
On 10 March 2016, an international conference named ″The Death Penalty: Transcending the Divide″
took place in Minsk. It was organized jointly with Belarusian authorities and the United Nations
Development Programme (UNDP) with the support of the Embassy of Great Britain. Invitees to
the conference included high-ranking Belarusian ofcials, representatives of the international
community, including EU Special Representative for Human Rights Stavros Lambrinidis, PACE
Rapporteur on the situation in Belarus Andrea Rigoni, and former Minister of Foreign Affairs
of the Czech Republic Karel Schwarzenberg. Belarus was represented by Valiantsin Rybakou,
Deputy Minister of Foreign Affairs. Human rights organisations and journalists were invited to the
conference’s opening ceremony. This initiative was an important step in bringing the issue of the
death penalty into the public sphere.
In the lead-up to the conference, however, FIDH deplored the fact that HRC ″Viasna″, its member
organisation in Belarus and a leading organisation in the area of the human rights ght against the
death penalty, had not been invited to the conference. The UNDP representative in Belarus publicly
explained the decision referring to the fact that HRC ″Viasna″ was not a registered organisation. In its
reply, FIDH expressed surprise at the UNDP’s position, given that the UN Human Rights Committee
had stated in two of its decisions that the closure of HRC ″Viasna″ in 2004 by the authorities was
arbitrary, and demanded that the registered status of the association be reinstated.
The Chairman of the Permanent Commission for International Affairs and National Security of the
Council of the Republic, Uladzimir Sianko, declared at the conference, ″The abolition of the death
penalty is a historic inevitability and an important European trend which we will join sooner or later.″
31
27. FIDH-HRC ″Viasna″ mission interview with Palina Stsepanenka, 27 June 2016.
28. ″The Death Penalty in Belarus,″ HRC ″Viasna″ p. 60, https://spring96.org/les/book/en/2016-death-penalty-belarus-
en.pdf.
29. The Use of the Death Penalty as a Form of Criminal Punishment, http://mvd.gov.by/main.aspx?guid=9091, in Russian
only.
30. See, e.g., ″Belarus is striving toward the Council of Europe exclusively by inertia,″ http://naviny.by/rubrics/
politic/2016/01/30/ic_articles_112_190863, in Russian only.
31. ″SB — Belarus Today,″ ″Speaking to the Point: 20 Years Later″ http://www.sb.by/belarus/article/razgovor-po-
sushchestvu-dvadtsat-let-spustya.html, in Russian only.
11
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
According to an interview conducted during the FIDH-HRC ″Viasna″ mission, the readiness of the
authorities to resume the dialogue on the death penalty, in conjunction with an absence of executions
in 2015 and up until April 2016, led a number of diplomats and the international community to
conclude that Belarus had imposed a de facto moratorium on the death penalty, a delusion which
formed a context to the above mentioned international conference. The execution of Siarhei Ivanou
a month after the conference – the rst since 2014 – unfortunately dashed these hopes.
In 2016, three people were sentenced to death in Belarus: Henadz Yakavitski (sentenced 5 January
2016 by the Minsk Regional Court), Siarhei Khmialeuski (sentenced on 15 February 2016 by the
Minsk Regional Court), and Siarhei Vostrykau (sentenced on 19 May 2016 by the Homieĺ Regional
Court). Hence four death convicts are now on death row, including Ivan Kulesh, who was sentenced
to death on 20 November 2015.
By the end of the year, the number of death convicts could be even higher: ″We are closely watching
at least two court proceedings in which, given the charges led, the defendants may also be sentenced
to death″,
32
human rights defender Siarhei Sys told the mission.
Belarusian authorities often resort to yet another argument in favour of preserving the death penalty:
international law in the area of human rights does not prohibit the use of the death penalty for the
most serious crimes. Since 1981, the death penalty in Belarus has been applied only for murder
committed under aggravating circumstances. One exception was a case against suspects of a
bomb explosion in April 2011 in Minsk, Uladzislau Kavaliou and Dzmitry Kanavalau (see below for
the specics of this high-prole case).
The mother of Uladzislau Kavaliou, who was executed in 2012, claims: ″Our legal system is built
on admissions of guilt, which are obtained during the rst hours after arrest in the absence of a lawyer.
Throughout his entire trial my son maintained that his confessions had been obtained during the rst
interrogations, under torture and psychological pressure. The speed with which they sentenced and
executed my son, and the fact that the Prosecutor General and the Minister of Justice were dismissed
right before the court’s judgment show that the case was purely political″.
33
Indeed, the death sentence against Kavaliou and Kanavalau in 2011 caused a massive public
outcry. Fair trial violations were obvious even to uninformed citizens, and the hasty execution and
destruction of all material evidence of the case perceptibly affected attitudes toward the death
penalty. For the rst time, representatives of the two largest Christian denominations in Belarus,
Orthodox and Catholic, spoke out publicly against the death penalty.
Thus, the Metropolitan Archbishop of Minsk-Mahilioŭ, Tadeusz Kondrusiewicz, appealed in 2011
to the President of Belarus and the legislature to impose a moratorium on the death penalty.
34
Also
in December 2011, theses on the death penalty were published by Metropolitan Philaret of Minsk
and Slutsk, Patriarchal Exarch of All Belarus.
35
Nevertheless, little is being done by religious organisations to work with the population to raise
awareness and support to the abolition of the death penalty.
32. FIDH-HRC ″Viasna″ mission interview with Siarhei Sys, 27 June 2016.
33. FIDH-HRC ″Viasna″ mission interview with Liubou Kavaliova, mother of Uladzislau Kavaliou, who was sentenced to
death on 30 November 2011 and executed in March 2012, 27 June 2016.
34. Metropolitan Kondrusiewicz called on Lukashenka to abolish the death penalty, 3 December 2011, http://telegraf.
by/2011/12/mitropolit-kondrusevich-prizval-Lukashenka-otmenit-smertnuyu-kazn, in Russian only.
35. Metropolitan Philaret of Minsk and Slutsk, Patriarchal Exarch of All Belarus: Theses on the Death Penalty, 13
December 2001, http://church.by/news/mitropolit-minskij-i-sluckij-laret-patriarshij-ekzarh-vseja-belarusitezisy-o-
smertnoj-kazni-nbsp-nbspo, in Russian only.
12
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Palina Stsepanenka, a journalist and activist in the campaign against the death penalty, told
the mission, ″When I was preparing six arguments against the death penalty, my task included
nding a religious leader in Belarus from each Christian religious community – Catholic, Orthodox
and Protestant
36
– and then interviewing them about the death penalty from the standpoint of their
respective faith. You might have expected this to be a very easy task, especially since both the Pope
and the Patriarchal Exarch of All Belarus, Metropolitan Philaret
37
of Minsk and Slutsk, had spoken out
against the death penalty. But the task proved extremely difcult. All those whose names I had been
given expressed their support for the death penalty! Furthermore, when I nally received permission
to interview a priest, the believers who were around him when I arrived at that congregation, learned
of the topic of the interview and literally attacked me and began screaming that I was protecting
pedophiles”.
38
36. 58% of Belarusian citizens consider themselves believers; 82% of believers belong to the Orthodox faith, 12% are
Catholics, and 6% belong to other denominations, the most common of which is Protestantism, http://mfa.gov.by/
upload/pdf/religion_rus.pdf, in Russian only. According to the 2009 census, those professing Judaism in Belarus
constitute 0.13% of the population; and Islam, 0.3%.
37. ″Orthodox church says ″No″ to death penalty – Belarus press review″, http://belarusdigest.com/story/orthodox-
church-says-no-death-penalty-belarus-press-review-14505.
38. FIDH-HRC ″Viasna″ mission interview with Palina Stsepanenka, 27 June 2016.
13
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
I. LEGAL REGULATION
I.1. INTERNATIONAL COMMITMENTS OF BELARUS
RELATED TO DEATH PENALTY APPLICATION
Each time the issue of the death penalty is raised with the Belarusian authorities, they regularly
remind the public and the international community that Belarus has not undertaken an international
commitment to abolish the capital punishment. However, Belarus has undertaken different
international obligations related to death penalty application. The latter are being systematically
violated by the Belarusian government.
International law does not forbid use of the death penalty. However, the International Covenant on
Civil and Political Rights (ICCPR, or the Covenant), together with other international instruments
of human rights protection, such as the European Convention on Human Rights and the American
Convention on Human Rights mention the death penalty as a carefully worded exception to
the right to life that ensures that death penalty cannot be imposed without rigorous procedural
safeguards, or against a certain category of people, such as juveniles, pregnant women and the
elderly.
39
As the abolitionist movement’s campaign claiming that the death penalty is a human rights abuse
in and of itself started to gain momentum in the 1980s, a growing number of states announced
a moratorium or abolished the capital punishment. To date, the entire human rights community
views the death penalty as a human rights violation. In more than 160 UN Member state countries,
the death penalty has been abolished, phased out or not practiced.
In 1989, 33 years after the adoption of the Covenant itself, the UN General Assembly adopted
the Second Optional Protocol to the ICCPR that gave abolition decisive new momentum.
Member States which became parties to the Protocol agreed not to execute anyone within their
jurisdictions. However, Belarus is not a party to the Second Protocol of the ICCPR.
In a series of six resolutions adopted in 2007, 2008, 2010, 2012, 2013 and 2014, the UN General
Assembly urged States to respect international standards that protect the rights of those facing
the death penalty, to progressively restrict its use and reduce the number of offenses which are
punishable by death.
It should also be noted that in 1984, the UN Economic and Social Council adopted ″Safeguards
guaranteeing protection of the rights of those facing the death penalty″. The same year, the UN
General Assembly voted in favour of the latter safeguards. In 1995, in its resolution1995/57,
the UN Economic and Social Council recommended the UN Secretary General to monitor the
implementation of the given safeguards stipulating that ″In countries which have not abolished
the death penalty, capital punishment may be imposed only for the most serious crimes, it being
understood that their scope should not go beyond intentional crimes with lethal or other extremely
grave consequences″. The safeguards expand the guarantees established by the ICCPR (they are
explained in detail below) as follows:
39. William A. Schabas ″The Abolition of the Death Penalty in International Law,″ https://books.google.
fr/books?id=LGuT_DP4_eMC&pg=PA5&lpg=PA5&dq=abolitionist +movement+to+end+death+
penalty&source=bl&ots=OeRi6r3iww&sig= AKOBDY AKOBDYaJoGD9Fuh7FVq2yfrVOcI&hl=fr&sa
=X&ved=0ahUKEwjF1Pa-yanOAhXGuBoKHUc3AZoQ6AEIVTAH #v=onepage&q=abolitionist%20movement&f=false
14
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Expansion of the categories of persons under special protection
Persons who have become insane are among those enjoying protection from death penalty along
with pregnant women and minors.
40
More explicit guidelines for due process and fair trial
The safeguards are more explicit than the ICCPR in detailing the circumstances in which capital
punishment may be applied and explain in more detail the concept of the ″competent court″: death
sentence may be imposed only when the guilt of the person charged is based upon clear and
convincing evidence leaving no room for an alternative explanation of the facts; it may only be
carried out pursuant to a nal judgment rendered by a competent court after legal process which
gives all possible safeguards to ensure a fair trial, including the right of anyone suspected of or
charged with a crime for which capital punishment may be imposed to adequate legal assistance
at all stages of the proceedings.
41
Right to appeal
Furthermore, anyone sentenced to death shall have the right to appeal to a court of higher
jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.
42
The right to seek pardon
The safeguards reiterate the right of the death convict to seek pardon, or commutation of
sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.
43
Execution of death penalty
Capital punishment shall not be carried out pending any appeal or other recourse procedure or
other proceedings related to pardon or commutation of the sentence
44
.
Minimum suffering
Finally, the safeguards stipulate that where capital punishment occurs, it shall be carried out so
as to inflict the minimum possible suffering.
45
The analysis of the present report shows that the latter safeguards are not being respected by
Belarus, or are respected formally but not in substance, as with the right to seek pardon. Therefore,
40. Par. 3 of the ″Safeguards guaranteeing protection of the rights of those facing the death penalty,″ see http://www.
ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.
41. Par. 4 and 5 of the ″Safeguards guaranteeing protection of the rights of those facing the death penalty,″ see http://
www.ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.
42. Par. 6 of the ″Safeguards guaranteeing protection of the rights of those facing the death penalty,″ see http://www.
ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.
43. Par. 7 of the ″Safeguards guaranteeing protection of the rights of those facing the death penalty,″ see http://www.
ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.
44. Par. 8 of the ″Safeguards guaranteeing protection of the rights of those facing the death penalty,″ see http://www.
ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.
45. Par. 9 of the ″Safeguards guaranteeing protection of the rights of those facing the death penalty,″ see http://www.
ohchr.org/EN/ProfessionalInterest/Pages/DeathPenalty.aspx.
15
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
the frequent claims of the Belarusian authorities that its legislation on the application of the death
penalty contains more safeguards than required by international law do not correspond to the
actual state of affairs.
* * *
Belarus gained independence after the break-up of the Soviet Union in 1991. It is nevertheless
a founding state of the United Nations.
46
However, Belarus is the only European country that is
not a member of the Council of Europe. On 12 March 1993, Belarus applied to join the Council of
Europe (COE), and the Committee of Ministers of the Council of Europe assigned it the status of
candidate country on 15 April 1993.
47
The Parliamentary Assembly of the Council of Europe (PACE)
assigned the Belarusian Parliament (then Supreme Soviet of Belarus) a special guest status on 16
September 1992. This status was suspended on 13 January 1997 as the result of a constitutional
referendum held in 1996 that was deemed anti-democratic by the international community. On
30 January 2004, the Bureau of the PACE refused to reinstate the Belarusian Parliament’s special
guest status, noting that the causes for its suspension remained valid. Belarus is also the only
country in Europe that has not acceded to the European Convention for the Protection of Human
Rights and Fundamental Freedoms and its protocols, even though it is a party to 13 other COE
instruments (in the spheres of culture, education, law, combatting corruption and human trafcking,
sports).
48
The European Convention on Human Rights is the only instrument that attempts to
compile an exhaustive list of exceptions regarding the right to life and the only instrument that
discusses the death penalty in a separate article.
Being a member to the Organisation for Security and Cooperation in Europe (OSCE), Belarus bears
commitments in the sphere of human rights, including civil and political rights and respect for the
rule of law. These commitments represent a politically enshrined promise to comply with the OSCE
standards reflected in organisation’s documents, including in the area of death penalty application.
For example, withholding information about death verdicts and executions (see below) violates
Belarus’ commitments to the OSCE, pursuant to which countries using the death penalty should
″make available to the public information regarding the use of the death penalty″.
49
The EU-Belarus Partnership and Cooperation Agreement was signed in March 1995. However, the
ratication process has been suspended since 1997. The European External Action Service has
repeatedly expressed its concern regarding the use of the death penalty in Belarus, and this topic
has been raised by the EU during a wide range of meetings and on other international fora, such
as the sessions of the UN Human Rights Council on the question of extending the mandate of the
UN Special Rapporteur on Belarus.
In February 2016,
50
the EU suspended restrictive measures imposed on a number of Belarusian
ofcials and enterprises directly involved in large-scale repressions following the 2010 presidential
election. According to the statement issued by the EU’s Foreign Affairs Council following the lifting
of sanctions, ″tangible steps taken by Belarus to respect universal fundamental freedoms, rule of
46. When the United Nations was being created, two Soviet Republic – the Ukrainian Soviet Socialist Republic and the
Belarussian Soviet Socialist Republic – were granted the status of independent members even though they were part
of the Soviet Union because of their ″special contribution to the ght against fascism.″ In this way, the USSR, which
fully controlled both these republics, had three votes at the General Assembly, not one.
47. Council of Europe, http://mfa.gov.by/mulateral/organisation/list/a025a26a6670b494.html, in Russian only.
48. Council of Europe, http://mfa.gov.by/mulateral/organisation/list/a025a26a6670b494.html , in Russian only.
49. The Death Penalty in the OSCE Area, Background Paper, 2015, Annex on OSCE Commitments, pg. 31, http://www.
osce.org/odihr/184581?download=true.
50. ″Council Conclusions on Belarus″, http://www.consilium.europa.eu/en/press/press-releases/2016/02/15-fac-
belarus-conclusions/.
16
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
law and human rights will remain key for the shaping of the EU’s future policy towards Belarus″.
51
It is no surprise that the number of death sentences issued has started to rise again since EU
sanctions were lifted in February 2016. Abolition of the death penalty was included in a list of
desired reforms communicated by the EU to Belarus regarding the lifting of sanctions, and the
immediate rise in sentences and enforcement of the death penalty seems to conrm the position
of FIDH, HRC ″Viasna″, and that of many other human rights organisations that sanctions against
Belarus should only be lifted if the government undertakes specic obligations to promote the
rule of law.
The only international human rights treaties that are currently legally binding for Belarus are the
ones that were adopted within the UN framework.
Treaty obligations
Belarus is a party to two fundamental UN human rights protection instruments: (a) the International
Covenant on Civil and Political Rights (ICCPR); (b) and the UN Convention against Torture (CAT).
a) International Covenant on Civil and Political Rights (ICCPR)
The ICCPR is the main instrument for protecting civil and political rights since it imposes legal
liability on states that have ratied it. The Covenant and its First Optional Protocol sets up a
complaint procedure enabling individuals claiming to be victims of violations of any of the rights set
forth in the ICCPR to appeal to the UN Human Rights Committee. Belarus ratied the International
Covenant on Civil and Political Rights on 12 November 1973, it entered into effect on 23 March
1976. On 30 September 1992, Belarus went on to make a declaration regarding Art. 41 of the
Covenant recognizing the competence of the UN Human Rights Committee regarding inter-state
complaints. Finally, on 30 December 1992, Belarus ratied the First Optional Protocol enabling the
UN Human Rights Committee to receive and consider communications from individuals.
Art. 6 of the ICCPR permits the use of capital punishment in limited cases. This article also
states that ″Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant″. Below are the conditions that must be
observed for use of the death penalty:
A nal judgment rendered by a competent court
A death sentence may be enforced only in countries where courts have the authority to decide
these questions. Competence is understood as the court’s legal ″ability″ to exercise jurisdiction
over individuals or ″things″ (property) that are the subject of court proceedings.
Right to seek pardon
Anyone sentenced to death shall have the right to seek pardon or commutation. Amnesty, pardon
or commutation of the sentence of death may be granted in all cases.
51. Ibid.
17
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Protection for certain groups
A sentence of death shall not be imposed for crimes committed by persons below 18 years of age
and shall not be carried out on pregnant women.
Prevention of genocide
Under the Convention on the Prevention and Punishment of the Crime of Genocide, international
law bans states from using the death penalty in such a way that deprivation of life constitutes
the crime of genocide.
Death penalty only for the most serious crimes
The death penalty may be imposed only for the most serious crimes in accordance with the law
in force at the time of the commission of the crime and not contrary to the provisions of the
Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This
means that in death penalty cases, everyone is entitled to a fair court hearing (Art. 14, ICCPR), the
presumption of innocence (Art. 14 par. 2, ICCPR), and the right not to be subjected to torture or
inhuman treatment (Art. 7, CAT).
* * *
The UN Human Rights Committee (hereinafter - UN HRC) monitors implementation of the ICCPR.
52
As of the present time, Belarus has submitted ve reports to the UN HRC (its initial report and four
periodic reports). The fth and sixth periodic reports should have been submitted on 7 November
2001 and 7 November 2006, respectively, but the fth report was only submitted on 30 August
2016 (was not yet available to the public), while the sixth has yet to be submitted.
The fourth periodic report of the Republic of Belarus
53
, which was submitted in 1996, does not
address the issues of torture and cruel treatment, detention conditions, or the use of the death
penalty. The Belarusian government limited itself to a quotation from Art. 25 of its Constitution,
which stipulates that ″no one shall be subjected to torture or to cruel, inhuman, or degrading
treatment or punishment″.
As a result, in its Concluding Observations regarding the fourth periodic report of 6 November
1997, the UN HRC expressed its concern about numerous reports of torture by police and other law
enforcement ofcers in Belarus. Noting that investigations of such abuses are not conducted by
an independent mechanism and that the number of prosecutions and convictions in these cases
is very low, the Committee expressed concern that these phenomena could lead to impunity for
the police and other security ofcials.
The Committee also noted with concern that the supervision of places of detention is under the
competence of the Prosecutor’s Ofce, and that there exists no independent mechanism competent
to receive and investigate complaints by detainees. Moreover, the Committee expressed its concern
at the overall conditions of detention in prisons, in particular with respect to overcrowding. It
emphasized that the existence of ″punishment cells″, the fact that food rations are reduced for
52. A body of independent experts that monitors implementation of the International Covenant on Civil and Political
Rights, a multilateral treaty adopted by the UN General Assembly on 16 December 1966 and ratied as of today by
168 countries, including the Republic of Belarus (ratied in 1992).
53. Report of states parties to the UN HRC,http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.
aspx?symbolno=CCPR%2fC%2f84%2fAdd.4&Lang=en.
18
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
detainees placed in such cells, the use of pressovchiki (detainees or secret law enforcement agents
who use torture against their cellmates to obtain a confession or testimony), and the conditions
of detention of prisoners sentenced to death are matters of particular concern. Moreover, the
Committee noted with concern that the number of death sentences and the number of crimes for
which the death penalty is applicable under the Criminal Code was still very high. The Committee
recommended that State Party consider the question of abolishing the death penalty without
delay.
54
The UN HRC also examines individual complaints with regard to alleged violations of rights
enshrined in the International Covenant on Civil and Political Rights by States parties to the First
Optional Protocol to this Covenant.
As will be described in detail below, in a number of decisions on death penalty cases, the UN HRC
conrmed systemic violations of fundamental rights committed by Belarus, while six decisions
to date conrmed the violation of the right to life.
b) UN Convention against Torture
Belarus ratied the UN Convention against Torture on 13 March 1987. It entered into effect on
27 June 1987. As of today, Belarus has submitted ve reports (its initial report and four periodic
reports) to the UN Committee against Torture. The fth and most recent periodic report was
submitted in December 2015.
55
In the last report the Belarusian government states it has established stricter restrictions on the
use of the death penalty than envisaged by international law. For example, law prohibits imposition
of death penalty to women, individuals who committed a crime under the age of 18, and men aged
65 and above at the moment of the court ruling.
The report notes that the death penalty has an exceptional and temporary character and, until
it is abolished, may only be used pursuant to a court sentence as an exceptional measure of
punishment for several especially grave crimes involving premeditated murder committed under
aggravating circumstances. To support its assertion that the death penalty has an exceptional
nature, the government introduced the statistic that in the period of 2011–2014, six people were
sentenced to death. It has to be noted that the latter statistical data fail to correlate with the gure
that is carefully monitored and checked by the campaign ″Human Rights Defenders against the
Death Penalty in Belarus″, referred to in the Introduction of the present report.
The government of Belarus also notes that following the parliamentary elections of 2012, the
Working Group renewed its study of the issue of the death penalty used in Belarus as an exceptional
measure of punishment. The report states that all death convicts have the right to le a petition
for pardon with the President of the Republic of Belarus who has the authority to commute death
sentence to life imprisonment.
The report also notes that the concept of a pretrial agreement on cooperation with the suspect
(accused) was introduced into the criminal process in 2015. It states that the death penalty will not
be used in respect of individuals who have entered into such an agreement, including individuals
54. UN Human Rights Committee, Consideration of Reports Submitted by States Parties Under Art. 40 of the Covenant,
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f79%2fAdd.
86&Lang=en.
55. Committee against Torture, Fifth Periodic Report of Belarus submitted in 2015, CAT/C/BLR/5, http://tbinternet.
ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2FC%2FBLR%2F5&Lang=en.
19
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
who have committed especially grave crimes for which the death penalty is prescribed. Instead,
a sentence of life imprisonment is imposed. This may influence a future reduction in the number
of death sentences.
However, an analysis by HRC ″Viasna″ and FIDH (see below) shows that pretrial agreements can
lead to an increase in false confessions to avoid the death penalty. Additionally, the nal decision
on entering into a pretrial agreement lies solely with the prosecutor. If the prosecutor decides that
cooperation was not satisfactory, a court will hand down a sentence without taking into account
defendant’s cooperation with the investigation.
In its report, Belarus notes that death convicts are held in separate cells under maximum
security, and that in accordance with its obligations, death convicts have the rights established
for individuals held in places of detention (Art. 174 par. 1 of the Criminal Law Enforcement Code).
FIDH-HRC Viasna report will show in detail how the rights in Belarus’ Criminal Law Enforcement
Code are systematically violated.
Concerning its failure to notify relatives of the date of execution, Belarus notes that pursuant to
the provisions of Art. 175 par. 5 of the Criminal Law Enforcement Code, the administration of the
facility where the death penalty is carried out noties of the execution the respective court that
in turn shall notify a close relative. A detailed analysis of the latter provision and rights’ violations
stemming therefrom will also be presented in the present report.
Special procedures of the UN Human Rights Council
a) Universal periodic review (UPR)
The implementation of a state’s obligations to the UN are also examined as part of the Universal
Periodic Review process, a mechanism of the UN Human Rights Council that periodically analyzes
human rights situation in all UN member states. On 4 May 2015, the situation is Belarus was
considered as part of the second cycle of the UN universal periodic review regarding Belarus.
56
Belarus agreed to the following recommendations within the framework of this interactive dialogue:
to carry out public campaigns explaining the arguments in favour of the abolition of the death
penalty with the aim of ratifying the Second Optional Protocol to the International Covenant on
Civil and Political Rights (the latter document aims at the abolition of the death penalty worldwide);
and to consider imposing a moratorium on the death penalty and abolishing the death penalty.
Belarus noted but rejected the following recommendations: to take concrete steps towards the
abolition of the death penalty, including the imposition of a moratorium on its use; to ratify the
Second Optional Protocol to the ICCPR; and to change the process of carrying out executions by
notifying the family of the date of execution and burial site.
57
b) Working Group on Arbitrary Detention
Another important human rights body is the Working Group on Arbitrary Detention - a special
procedure of the Human Rights Council, whose mandate extends to all UN member states.
This Working Group visited Belarus from 16 to 26 August 2004, including visits to 15 detention
facilities: penitentiaries, prisons, pretrial detention centers (SIZOs), temporary isolation facilities,
youth custody centers, administrative detention centers, facilities for asylum-seekers, psychiatric
56. UN Human Rights Council, Universal Periodic Review, Second Cycle, Belarus, https://documents-dds-ny.un.org/doc/
UNDOC/GEN/G15/155/88/PDF/G1515588.pdf?OpenElement.
57. UN Human Rights Council, Universal Periodic Review, Second Cycle, Belarus. Report of the Working Group,
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/155/88/PDF/G1515588.pdf?OpenElement.
20
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
hospitals and police stations. Some of its visits were unannounced. It also had individual meetings,
in private and without witnesses, with more than 200 detainees.
The Working Group report, prepared for the UN Human Rights Commission,
58
notes that conditions
of pretrial detention are signicantly worse than those of convicted persons. In these conditions,
the presumption of innocence enshrined in the Constitution is seriously undermined.
From the beginning of detention, detainees are often put under strong psychological pressure to
self-incriminate. In the view of the Working Group, such practices are contrary to the principle of
international law under which no one shall be forced to testify against himself.
Moreover, the Working Group suggested that attempts to demonstrate effectiveness in combating
crime lead to the fabrication of false cases from the very beginning of detention. The system of
exercising pressure to obtain self-incrimination in pretrial detention and the over-reliance of judges
on evidence, statements and protocols originating from the investigator make it impossible to
challenge charges in this type of case. Lack of effective internal and external controls, such as
that exercised by independent institutions, nullify the possibility of holding those fabricating cases
to account.
The Working Group was informed that grave crimes (terrorism, organized crime, and the trafcking
of drugs, arms and persons, etc.) and matters affecting politicians are usually entrusted to the KGB,
whose agents act under the supervision of the Prosecutor.
59
The Working Group has noticed that
in practice no authority exercises any control over the situation of persons held in KGB detention
centers. The Working Group stresses that for those detainees, the risk of abuse is high and
remedies are only hypothetical. Here, it should be recalled that Kanavalau and Kavaliou, executed
in 2012 (see below), were held in a KGB detention center during investigation.
c) Mandate of the Special Rapporteur on the situation of human rights in Belarus
The mandate of the Special Rapporteur on the situation of human rights in Belarus was rst
established by the Human Rights Council in resolution 2004/14. Adrian Severin was appointed
Special Rapporteur for Belarus. In this resolution the Commission requested the Special Rapporteur
to establish direct contact with the Government and the people of Belarus, with a view to examining
the situation of human rights in this country. In June 2007, the Human Rights Council decided
not to extend the Special Rapporteur’s mandate despite the fact that on 17 May 2007 Belarus’
candidacy for election to the Human Rights Council was rejected due to mass human rights
violations in the country.
Mr. Severin submitted his rst report on 11 March 2005.
60
The Government of Belarus did not
respond favourably to his request to visit the country and did not wish to cooperate with him in
the fulllment of his mandate. To gather the required materials, the Special Rapporteur was forced
to meet with his own correspondents, including Belarusian attorneys, human rights defenders,
media representatives, associations, and independent unions in other countries.
58. Report of the Working Group ″Civil and Political Rights including the Questions of Torture and Detention″, https://
documents-dds-ny.un.org/doc/UNDOC/GEN/G04/166/25/PDF/G0416625.pdf?OpenElement.
59. Aside from the Investigative Committee, KGB investigators may investigate some cases. No other bodies, including
the Ministry of Internal Affairs, have investigative units. Since 2011, under the law KGB investigators may investigate
criminal cases regarding the crimes stipulated in articles 124–126, 229, 289–290-5, Art. 294 par. 4, Art. 295 par.
4, Art. 309 par. 4, Art. 311 par. 3, Art. 322 par. 3, Art. 323 par. 3, Art. 324 par. 3, Art. 333 par. 2, and Art. 356–361-3,
373–375 of the Criminal Code of the Republic of Belarus.
60. ″Report of the Special Rapporteur on the situation of human rights in Belarus, Adrian Severin″, https://documents-
dds-ny.un.org/doc/UNDOC/GEN/G05/129/94/PDF/G0512994.pdf?OpenElement.
21
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
In his report, the Special Rapporteur described several instances of the use of torture allegedly
committed by representatives of the Belarusian government. Owing to the nature of the crime
of torture and severe restrictions on access to victims in detention centers, death row facilities
and the military, the Special Rapporteur believed that the relatively few cases that have come to
light only represent the tip of the iceberg. He was particularly alarmed by the absence of reliable
information, and the allegation that judges are systematically forced by the executive body to
ignore evidence of torture and pass judgments based on confessions extracted through methods
that include torture.
The Special Rapporteur supported the conclusions of the Working Group on Arbitrary Detention
and called for the implementation of its recommendations.
61
On 6 July 2012, the UN Human Rights Council adopted a resolution on the situation of human
rights in the country and resolved again to appoint a Special Rapporteur to monitor the situation of
human rights in the country. Mr. Miklós Haraszti was appointed to this position on 28 September
2012. Since then, his mandate was extended every year due to continuing human rights violations.
However, the new Rapporteur has also not received an invitation to visit the country, and his
mandate is rejected by the Belarusian Government as ″biased″.
In his report, which he submitted to the UN General Assembly on 21 April 2016, Mr. Haraszti noted
the secrecy surrounding the death penalty.
62
The authorities do not release information about the
number of executions carried out. Prisoners and relatives are not informed when an execution is
due to take place, and relatives receive no prior notication. The bodies of the executed are not
returned to relatives, but are buried in unmarked graves. This practice is maintained despite the
numerous recommendations made by United Nations bodies, among others, over many years.
He noted that the Government has continued its policy of disregarding individual complaints led
with the Human Rights Committee and proceeding with executions. The Special Rapporteur was
particularly concerned that the recommendations made at the second universal periodic review
on the ratication of the Second Optional Protocol to the ICCPR did not enjoy the support of the
Government of Belarus. He also noted that the State has made no progress on recommendations it
supported, such as on conducting public campaigns to explain arguments in favour of the abolition
of the death penalty, nor on examining recommendations with regard to the establishment of a
moratorium on the death penalty. Finally, he stated that in Belarus’ highly centralized decision-
making system, the absence of any progress on the issue of death penalty can be explained
primarily as a result of a lack of political will on the part of the authorities of Belarus.
Non-observance of UN Decisions
It is important to emphasize that Belarus increasingly ignores UN decisions. It disregards the
recommendations made by the UN special mechanisms on human rights protection but also the
decisions by the UN Human Rights Committee, the Working Group on Arbitrary Detention and
others. The Ministry of Foreign Affairs of Belarus declared that the decisions of the UN Human
Rights Committee on individual complaints are not mandatory and thus to date, none of them
has been brought into effect. Convicted prisoners on death row are being executed despite the
fact that their individual complaints were registered by the UN HRC and despite the latter's formal
requests to the authorities not to carry out death sentences while cases are under examination
by the UN HRC.
61. Ibid.
62. ″Report of the Special Rapporteur on the situation of human rights in Belarus″, http://www.ohchr.org/EN/HRBodies/
HRC/RegularSessions/Session32/Pages/ListReports.aspx.
22
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
In March 2013, following the 2012 decision of the UN Working Group on Arbitrary Detention in the
case of Ales Bialiatski that conrmed his detention since August 2011 to be arbitrary, the Belarusian
delegation ofcially declared it would not further cooperate with the latter UN mechanism.
To date, the UN Human Rights Committee has adopted eight Views
63
on death penalty cases
against Belarus. The last six found that death sentence did not meet the requirements of a fair
trial and, as a result, violated the right to life.
Importantly, in namely these six cases where the right to life was violated by Belarus,
64
the
Belarusian authorities proceeded with executions despite the Committee’s multiple requests not
to carry the executions while the cases were under examination. In all six cases the Committee
established confession of guilt under duress or torture, violations of the right to seek access to
lawyer and the right to be presumed innocent (see below).
The sections below detail the violations of the rights of those accused of death eligible crimes and
their family members. As accounted for by the interviewees with whom the FIDH-HRC ″Viasna″
delegation met during the mission, grave violations are being committed during all stages of
proceedings, starting from arrest to execution.
The UN HRC has also condemned legislation and law enforcement practices with respect to
secrecy surrounding the death penalty. The Committee concluded in its rst decision on the case
of death penalty against Belarus back in 2003
65
(Communication No. 886/1999, Natalia Schedko
vs. Belarus), that the secrecy surrounding the date of execution and the place of burial, and the
refusal to hand over the bodies for burial, had the effect of intimidating or punishing families by
intentionally leaving them in a state of uncertainty and mental distress that amounted to torture.
The Committee called the authorities to provide family members of the executed with an effective
remedy, including information on the burial location, and compensation for the anguish suffered,
and to prevent similar violations in the future – an obligation that Belarus continues to disregard.
63. Schedko vs. Belarus (Views adopted in 2003, Communication No. 886/1999), Dimitry Kharkhal vs. Belarus
(Views adopted in 2007, Communication No. 1161/2003), Liubou Kavaliova vs. Belarus (Views adopted in 2012,
Communication No. 2120/2011), Svetlana Zhuk vs. Belarus (Views adopted in 2013, Communication No.
1910/2009), Vasily Yuzepchuk vs. Belarus (Views adopted in 2014, Communication No. 1906/2009), Pavel Selyun
vs. Belarus (Views adopted in 2015, Communication No. 2289/2013), Oleg Grishkovtsov vs. Belarus (Views adopted
in 2015, Communication No. 2013/2010), Andrei Burdyko vs. Belarus (Views adopted in 2015, Communication No.
2017/2010).
64. Liubou Kavaliova vs. Belarus, Svetlana Zhuk vs. Belarus, Vasily Yuzepchuk vs. Belarus, Pavel Selyun vs. Belarus, Oleg
Grishkovtsov vs. Belarus, Andrei Burdyko vs. Belarus.
65. Natalia Schedko v. Belarus, Communication No. 886/1999, U.N. Doc. CCPR/C/77/D/886/1999 (1999). Views of the
Human Rights Committee under Art. 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil
and Political Rights, http://hrlibrary.umn.edu/undocs/886-1999.html.
23
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
I.2. SHORTCOMINGS IN LAWS ON THE USE OF DEATH
PENALTY IN BELARUS
Rules set forth in Art. 6 par. 2 and Art. 15 par. 2 of the law ″On the International Treaties of the
Republic of Belarus″ and in Art. 20 par. 2 of the ″Laws and Regulations of the Republic of Belarus″
provide for direct applicability of international treaties, once the ratication acts of thereof enter
into force.
Constitutional norms
The Constitution of the Republic of Belarus of 1994 adopted at a referendum on 24 November
1996, with amendments adopted at a referendum on 17 October 2004, is the Constitution currently
in effect in Belarus.
Art. 24 of the Constitution guarantees every person the right to life, but stipulates that until its
abolition, the death penalty may be applied in accordance with the law as an exceptional measure
of punishment for especially grave crimes pursuant to a court ruling. It provides for execution
by shooting for especially grave crimes of premeditated murder committed under aggravating
circumstances. This article also lists exceptions to the use of the death penalty: women, individuals
who committed a crime under the age of 18, and men aged 65 and above by the day of sentencing
may not be sentenced to death. Art. 59 par. 1 of the Criminal Code of the Republic of Belarus
addresses the possibility of abolishing the death penalty.
Art. 25 of the Constitution enshrines the principles of respect for human dignity. Art. 25 par. 3 bans
torture and cruel, inhuman, or degrading treatment or punishment.
Pursuant to Art. 25 par. 2 of the Constitution, a person who has been taken into custody is entitled
to a judicial investigation into the legality of his detention or arrest.
The right to life (Art. 24) and the ban on torture and other cruel treatment (Art. 25 par. 3) may not
be restricted even in a state of emergency (Art. 63 par. 2).
In accordance with Art. 60 of the Constitution, every person shall be guaranteed protection of
their rights and liberties by a competent, independent, and impartial court of law within the time-
frames established by law. Art. 62 guarantees legal assistance to exercise and protect civil rights
and freedoms (including free assistance in cases stipulated by law), and prohibits opposition to
the rendering of this assistance.
Art. 114 of the Constitution stipulates that all court trials shall be open; hearings in a closed court
session are only permitted in cases specied by law and in accordance with established rules of
judicial proceedings. Art. 115 enshrines the principles of an adversarial judicial system and that
of equality of arms.
Lack of Independence of the Judiciary
The analysis of the independence of the judiciary as such falls outside the scope of the present
report. Yet it is crucial to refer to certain laws that call into question the effectiveness and legality
of the administration of justice in Belarus that in death penalty cases have particularly serious
and irreversible consequences.
24
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
The status of judges
In practice and under the legislation in force, and in particular under the Code on the Judicial System
and the Status of Judges
66
(CJSSJ) and the Presidential Decree of 29 November 2013 No. 6 ″On
the Improvement of the Court System of the Republic of Belarus″,
67
the Presidential Administration
plays an active role in appointing judges. The President also has the authority to initiate disciplinary
proceedings against judges.
Judges are appointed for a term of ve years that can be extended another ve years or for life (Art.
99, par. 4 of the CJSSJ). Thus, the principle of non-removability of judges is not respected in Belarus.
When a judge goes on leave, he is replaced by a retired judge or ″other person who fullls the
requirements set for the judge position″ (Art. 100, par. 1 of the CJSSJ). The latter provision does
not require the substitute to be a candidate for a judge position, but only to ″fulll the requirements″
for candidates. Accordingly, a substitute might be appointed to a judge position without having
passed all due appointment procedures.
It is worth noting that the Code on the Judicial System and the Status of Judges was most recently
amended by the Law No. 121-Z dated 4 January 2014 (the amendments concerned the operation
of the Constitutional Court), and before that, in 2012 when amendments were introduced on the
operation of military courts. Hence the code was not legally amended or repealed, but the structure
of the courts and the authority of ofcials was amended by Presidential Decree No. 6 dated 29
November 2013 ″On the Improvement of the Court System of the Republic of Belarus″. This is a
glaring example of how laws passed by the Parliament are arbitrarily repealed or amended by a
Presidential decree, which occurs regularly in Belarus.
The 2013 Presidential decree did away with the most abhorrent rules, which made the courts
dependent on the executive branch both de jure and de facto.
″Our judges do not have de facto independence, although de jure they do appear being more or less
independent″, thinks Pavel Sapelka.
68
Under the Decree, the President may initiate disciplinary proceedings against courts of all levels.
On the whole, the status of the courts in Belarus is characterized by extraordinary dependence on
the President of Belarus and by a disregard for the principle of non-removability. In such a situation
there can be no separation of powers, no independent judiciary, and no real judicial control either
over the actions of the executive branch or over the investigators.
It is also important to note that amendments to the Code of Criminal Procedure of the Republic
of Belarus were adopted on 20 April 2016, changing the procedures by which upper courts review
court cases: the cassation review was replaced by the appellate review. An appeal is the review of
a case on broader parameters, whereas cassation is an assessment of whether a sentence is in
compliance with the law.
It must be noted that the jurisdiction of appellate courts following this year's amendments to the
Code of Criminal Procedure ended up being the same as that of the courts of cassation.
66. Code on the Judicial System and the Status of Judges, 29 June 2006 г., No. 139-З, http://etalonline.
by/?type=text®num=Hk0600139#load_text_none_1_.
67. Presidential Decree No. 3 of 29 November 2013, http://www.pravo.by/main.aspx?guid=3871&p0=Pd1300006&p1=1,
in Russian only.
68. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
25
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Criminal procedural law
The main source of criminal procedural law in Belarus is the Code of Criminal Procedure (hereinafter –
CCP) of 16 July 1999, No. 295-343, which entered into effect on 1 January 2001. Since 1999,
amendments to this Code have been made over 45 times.
The jurisdiction of regional courts, among others, includes cases on crimes against the peace and
security of mankind and crimes against the State. The Supreme Court considers criminal cases
against parliamentary deputies and judges (Art. 269 of the CCP). Regional courts and the Supreme
Court may direct the lower courts to remit cases further up for review on consideration of their merits
(Art. 268 par. 2 and Art. 269 par. 2 of the CCP). This violates the guarantee of a competent court
envisaged in Art. 60 of the Constitution.
Suspects and persons accused of a crime are guaranteed the right to an attorney’s assistance from
the moment of their arrest or upon presentation of a decision nding a person to be suspected or
accused of a crime (Art. 41 par. 2 subpar. (6) and (7) and Art. 43 par. 2 subpar. (5) and (6) of the CCP).
The suspect and the accused person have the right to appeal in court an investigator’s decision to
apply preventive measures of restraint, including a decision on preventive detention (Art. 41 para 2
subpar. (17) and Art. 43 par. 2 subpar. (15) of the CCP). However, pursuant to Art. 44 par. 7 subpar.
(2) of the CCP, the body in charge of the criminal process (junior investigator, investigator, judge) may
remove the defence attorney from a criminal case if circumstances are discovered that would allow
such a decision. Thus, there are severe restrictions on the right of a suspect or accused person to
use the defence attorney of his choice.
An investigation may be conducted by three government bodies: the prosecutor’s ofce, the KGB,
and the Investigative Committee (Art. 36 and 182 of the CCP). it is important to emphasize that
individuals who have provided condential information to help solve a crime cannot be questioned
as witnesses in a criminal case without their consent or the consent of the corresponding body of
criminal investigation (Art. 60(2)(8) of the CCP). This provision provides the investigation with a source
of evidence that cannot be tested by the defence or the court, as well as numerous opportunities
to provoke crimes and use testimony obtained through torture and other forms of cruel, inhuman,
and degrading treatment, even though a ban on the use of evidence obtained through torture is
enshrined in Art. 8 par. 3 of the CCP.
Lack of independence of lawyers
The status of lawyers is determined by the ″Law on the Bar Association and Lawyers' Activity″ of
the Republic of Belarus (30 December 2011, No. 334-3). Although Art. 4 of the given law stipulates
the independence of lawyers, the latter are in fact under the tight control of the Ministry of Justice.
Only lawyers who are members of territorial bar associations are allowed to exercise professional
activity. The institute of private lawyers' activity was abolished by the President's decree in 1997.
Pavel Sapelka in his interview to the mission noted that ″The Ministry has the right to inspect the
activities of lawyers: to study their nancial statements, to verify the quality of lawyers’ work, except for
the data that is protected by attorney-client privilege. The latter, however, is formulated in the law in a
very restricted manner. For example, previously the fact of addressing a lawyer was part of attorney-client
privilege while currently it’s not″.
69
69. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
26
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
″The Bar Association is under full control of the Ministry of Justice," - considers Hary Pahaniayla,
another lawyer disbarred for political reasons. ″The licence commission is headed by the Deputy
Minister of Justice, the qualication commission is also under control of the Ministry. The latter also
carries out attestations and prolongs lawyers’ licences.″
70
According to Art. 38 of the ″Law on Bar Association and Lawyers' Activity,″ the Ministry, in addition
to other functions, is in charge of forming the Qualication Commission and organizing its activities,
determines the procedure for certication of lawyers, carries out the state registration of the bar
associations, law rms, independent lawyers, and determines the procedure for amending the
statutes of bar associations and law rms.
Thus, the Qualication Commission on lawyers' work, which organises qualication exams for
lawyers and examines cases on lawyers' disciplinary liability, is composed not only of lawyers
but also of ″representatives of state institutions″ and of ″other law experts″ (Art. 10, par. 1). The
commission is chaired by the Deputy Minister of Justice (Art. 10, par. 2).
″Lawyers understand that they are tightly controlled. Up until their departure to study abroad. Leaving
the country is also controlled. It is all being done in order to keep lawyers under Soviet-type oversight.
As a consequence, the lawyers are afraid to go public, they are afraid to criticize the courts, investigative
committees and investigators.″
71
The management of bar associations is also under the control of the Ministry of Justice. The latter
is entitled to submit candidates for the chairman position of bar associations and to propose
withdrawal of bar associations’ chairmen.
The Ministry is given the authority to initiate disciplinary proceedings against lawyers, and to
remove them from carrying out their professional duties for a period of such proceedings. The
latter powers clearly violate the independence of lawyers. Disbarring a number of lawyers after the
Presidential elections in December 2010 for defending numerous political prisoners demonstrated
that lawyers have valid grounds for fearing their fate and career.
Liubou Kavaliova reports: ″The rst ex ofcio lawyer of my son was very afraid of publicity. She did
not try to contact me. It was horrible. After that I tried to nd another lawyer who would agree to defend
my son. But lawyers refused because they were afraid of losing their jobs. We must remember that all
this happened in 2011, immediately after the so-called presidential election and the political repression
that followed and which resulted in many lawyers being disbarred and losing their licence. Those who
didn’t were terried of losing their jobs.″
72
Thus the ″Law on Bar Association and Lawyers' Activity″ violates key international principles
ensuring independence of lawyers requiring that disciplinary action against lawyers shall be
brought either before an impartial disciplinary institution established independently by lawyers or
before a court that is subject to independent judicial supervision.
″Lawyers were quickly tamed and realised that if they don’t abide by the rules they will lose their licence.
I myself was a victim of such policy. We must not forget that roughly a dozen lawyers who defended
those prosecuted during the wave of repression in 2010 were deprived of their licence.″
73
70. FIDH-HRC ″Viasna″ mission interview with Hary Pahaniayla, 30 June 2016.
71. FIDH-HRC ″Viasna″ mission interview with Hary Pahaniayla, 30 June 2016.
72. FIDH-HRC ″Viasna″ mission interview with Liubou Kavaliova, mother of the executed Uladzislau Kavaliou, 27 June 2016.
73. FIDH-HRC ″Viasna″ mission interview with Hary Pahaniayla, 30 June 2016.
27
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
One of the lawyers deprived of his licence in the aftermath of 2011 political repressions was Pavel
Sapelka. In an interview to FIDH-HRC ″Viasna″, he drew attention to the legislative restrictions on
non-disclosure of case-related information.
Thus, in accordance with the Code of Criminal Procedure of Belarus, investigation authorities and
courts may with virtually no restrictions prevent the defence from disclosing any information on the
preliminary investigation of the case and any information on a closed trial. Any information obtained
during the preliminary investigation is considered as information related to the case. ″This means
that lawyers cannot publicly speak about anything related to the case. The nature of the prohibition is so
vague, that lawyers prefer not to go public at all.″
74
Par. 2 of the Art. 257 of the Code of Criminal Procedure stipulates that investigation authorities
and courts have the authority to request a statement on nondisclosure from the defendant and his
legal representative if a criminal case contains information containing state secrets. This is a direct
reference to cases when the investigator must request a nondisclosure statement. He retains the
latter authority in other cases, too, and uses it at his discretion. The law does not specify what data
must not be divulged. In theory, all information is equally protected: the date of the interrogation and
the content thereof, information about the dates of investigation actions and the content thereof,
information on the state of health of the accused.
Failure to abide by the signed statement on nondisclosure entails criminal liability, as well as possible
disbarment. Art. 407 of the Criminal Code provides for a punishment of up to three years, with or
without deprivation of the right to hold certain positions or engage in certain activities.
Furthermore, according to the instructions of bar associations, lawyers must coordinate their public
appearances with the bar association management.
″Violations of these instructions will not entail prosecution under Art. 407 of the Criminal Code, but a
lawyer’s public appearance without the consent of a bar association might have serious consequences
for that lawyer.″
75
In addition to the issue of the lack of independence, the mission's interlocutors raised the issue
of the professional competence of lawyers who defended those accused of death eligible crimes.
Among the mission’s ndings is the fact that ex ofcio lawyers of defendants accused of death
eligible crimes often lack necessary attorney experience and that they are all the more dependent
on the system.
″Since members of the bar have been deprived of any independence, the fairness of court sentences comes
under question. In death penalty cases, we just cannot be sure that the accused is being represented by an
attorney who is independent and free to take any action or make any judgment″, stated Pavel Sapelka.
76
Andrei Kniazkou, former convict, told the FIDH-HRC ″Viasna″ mission that ″An attorney’s work comes
down to advising his client to agree with everything the prosecution requests or to admit to everything
in the accusation. During the investigation, I was told that if I signed a document, I could go home. They
[State Anti-Drug Control ofcers] use fear tactics, because OMON ofcers are right next to them. But
they didn’t use physical force in my case, because they knew about my drug addiction and used this to
pressure me. I signed a confession before meeting with my attorney, my confession served as the basis
74. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
75. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
76. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
28
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
for the charges, and I was sentenced to eight years in prison. I could have gotten ve years if I hadn’t
signed the confession″.
77
Mission interviewees noted the poor quality of legal assistance provided by ex ofcio counsel and
a systemic lack of necessary professional experience of lawyers appointed to defend individuals
accused of death eligible crimes. Also, contrary to the commonly held opinion on free legal assistance,
appointed attorneys provide legal services for a fee: if a defendant is found guilty, he or she must
reimburse the defence’s expenses, which are set by the state.
The report published by the Legal Information Center claims that, taking into account the lack of
lawyers in Belarus and low remuneration of ex ofcio attorneys as well as the lack of minimum
standards for free legal assistance stipulated in the Code of Criminal Procedure, neither the scope
of the assistance provided, nor its nature or quality can be considered acceptable.
78
Notably, the majority of people sentenced to death were represented ex ofcio lawyers during the
preliminary investigation and in court of rst instance.
In a complaint to the UN Human Rights Committee, Andrei Paluda, legal representative of death
convict Siarhei Khmialeuski, reported: ″The relatives of Siarhei Khmialeuski could not afford to hire a
lawyer, therefore, one was appointed by the investigation authorities.
Siarhei Khmialeuski had a right to consult legal counsel only during the rst interrogation as a suspect, in
violation of the Art. 45 par. 2 of the Code of Criminal Procedure that guarantees access to a lawyer from
the moment of arrest.
As a result, Khmialeuski was thus denied access to a lawyer during 8 hours since his factual arrest and as
a result, police ofcials exerted pressure on him and applied violence.
During the initial interrogation as a suspect, Khmialeuski was denied the right to a condential meeting
with a lawyer. As a result of unlawful methods used against Khmialeuski by law enforcement ofcers, his
psychological and physical state did not allow him to think over his testimony and even to read the protocol
given to him for signature by the investigator. The latter fact was documented in minutes stating that the
protocol was read to Khmialeuski. The facts listed above reveal the violation of the right to legal defence
that lead to self-incrimination.″
A number of interviewees expressed to the FIDH-HRC ″Viasna″ mission their condence that the
prosecution systematically uses defendant’s confession as the main evidence of guilt in court.
Furthermore, appointed counsel is changed frequently during the criminal prosecution of a case for
reasons not explained to defendants. In the same complaint to the UN Human Rights Committee by
the legal representative of Siarhei Khmialeuski, it is pointed out that his ex ofcio lawyer was replaced
twice before the case was taken by a private attorney.
In certain situations, the mission found violations of the guarantee to assistance from an attorney
whose experience and competence matches the nature of the violation and who is appointed to
77. FIDH-HRC ″Viasna″ mission interview with Andrei Kniazkou, former convict of a particularly grave crime, 29 June
2016.
78. ″Subsidised legal aid in Belarus: current state of affairs, perspectives for development″, http://www.lawtrend.org/wp-
content/uploads/2014/12/Covremennoe-sostoyanie_DBPP.pdf, in Russian only.
29
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
provide effective legal assistance free of charge, if the accused person cannot afford a private
attorney. The latter guarantees is enshrined in international laws.
79
Legislation on death penalty application in Belarus
The scope of death eligible crimes has been reduced in 1999, the year of the adoption of the new
Criminal Code that introduced life imprisonment as a second measure of exceptional punishment
and as an alternative to death penalty. While the number of crimes punishable by death was reduced
from 30 to 14, including two war-time crimes (Art. 122 and 135, see below), as explained in the
book ″Death penalty in Belarus″, the humaneness of the Criminal Code in force should be carefully
assessed. Instead of comparing the number of death eligible crimes in the Soviet and current Criminal
Codes, one should analyze instead the most frequently applied articles, i.e. Art. 100 of the CC of 1960
and Art. 139, par. 2 of the CC of 1999.
80
Both provide for the use of the death penalty for murder with
aggravating circumstances. Art. 100 of the Soviet-era Criminal Code contained eight paragraphs on
aggravating circumstances, while Art. 139, Part 2 of the Criminal Code currently in force contains
as many as 16 paragraphs. Researchers thus have long claimed that the current Criminal Code is
stricter compared to the previous one.
81
With the amendments to the Criminal Code dated 5 January 2016 No. 356-З that included removal of
Art. 365 par. 2 (state treason coupled with murder), the number of death eligible crimes was reduced
to 13. However, the amendments should not be interpreted as an attempt to reduce the scope of
the application of the death penalty crimes since the crime previously stipulated by the par. 2 of the
Art. 365 is still punishable by death by the Art. 356 and Art. 139 par. 2.
Death eligible crimes
Unleashing of war and the conduct thereof (Art. 122, par. 2 of the CC)
Punishable by deprivation of liberty from 7 to 20 years, life imprisonment or death penalty. This law
appears to address wars against other nations rather than wars against Belarus.
Murder of a representative of a foreign state or an international organisation (Art 124, par. 2 of the CC)
Murder of a representative of a foreign state or an international organisation for the purpose of
destabilizing the world order or provoking a war is punishable by deprivation of liberty from 10 to 25
years, life imprisonment or death penalty.
International terrorism (Art. 126 par. 3 of the CC)
An act of terrorism described as explosion, arson, flooding and other acts susceptible to cause
casualties or injuries, destruction or damage of buildings, structures, transport and communication
routes and other property committed in a foreign state or on a foreign state territory within the
Republic of Belarus for the purpose of provoking international tension, war or destabilization in a
foreign country, murder, injury or property damage inflicted on a foreign state or public ofcial for
the purpose of international terrorism are punishable by deprivation of liberty from 10 to 25 years
or life imprisonment or death if conducted:
79. ″Basic principles on the role of lawyers″, http://www.ohchr.org/EN/ProfessionalInterest/Pages/RoleOfLawyers.aspx.
80. Abolition of the Death Penalty in Belarus. Collection of scientic articles. p. 47, quoted from ″Death penalty in Belarus,″
p. 53, https://spring96.org/les/book/en/2016-death-penalty-belarus-en.pdf.
81. Ibid. P. 32.
30
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
a) by an organized group or
b) with the use of nuclear, toxic, biological or chemical materials, or
c) caused death of a representative of a foreign state.
Together with the art. 128 on crimes against human security, the latter provision in the Criminal
Code permits death penalty for a crime not resulting in death committed during peace-time.
Genocide (Art. 127 of the CC)
Punishable by deprivation of liberty from 10 to 25 years, life imprisonment or death penalty.
Crimes against human security (Art. 128 of the CC)
Deportation, illegal detention, enslavement, mass or systematic extra-judicial executions,
abductions, followed by disappearance, torture, genocide and atrocities committed in relation
to race, nationality, ethnicity, political beliefs or religious faith of the civilian population are all
punishable by deprivation of liberty from 7 to 25 years, life imprisonment or death.
Use of weapons of mass destruction (Art. 134 of the CC)
Use of weapons of mass destruction banned on the territory of Belarus is punishable by deprivation
of liberty from 10 to 25 years, life imprisonment or death penalty.
Violation of the laws and customs of war (Art. 135, par. 3 of the CC)
Willful homicide of persons protected by the international humanitarian law is punishable by
deprivation of liberty from 8 to 25 years, life imprisonment or death penalty.
Murder (Art. 139 par. 2 of the CC)
Deliberate deprivation of life is punishable by deprivation of liberty from 6 to 15 years. The following
aggravating circumstances inflict stricter punishment ranging from deprivation of liberty from 8
to 25 years, life imprisonment or death penalty:
1) Murder of two or more individuals;
2) Murder of a minor, provided the age was known to a defendant; murder of an elderly person or
a person in a helpless state;
3) Murder of a woman who is known by a defendant to be pregnant;
4) Murder involving abduction or hostage taking;
5) Murder that may inflict danger or damage to the public;
6) Particularly cruel murder;
7) Murder involving rape or sexual violence;
8) Murder committed for the purpose of concealing another crime or facilitating its commission;
9) Murder committed for the purpose of obtaining the organs or body parts of the victim;
10) Murder of an individual or his relatives in connection with his public duty or the discharge
thereof;
11) Murder of an individual or his relatives in connection with his or her refusal to partake in a crime;
12) Murder committed for material gain, out of mercenary motives, or involving violent robbery,
extortion or banditry;
13) Murder for hooligan reasons;
31
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
14) Murder committed out of racial, national, religious hatred or enmity, or of hatred or enmity with
respect to a particular social group;
15) Murder committed by a group of persons;
16) Murder committed by a person previously convicted of murder, except for those convicted
for murder of an unborn child, murder in a state of affect, murder of a crime suspect and murder
exceeding the defence limits.
It should be noted that while the provision above details the aggravating circumstances for
homicide crimes, a separate article, Art. 64, lists circumstances that aggravate liability for any
crime. While for the most part, it reiterates the situations discussed above, it includes several new
ones (listed below) that, due to the vague wording of the Code, might allow a court to consider the
latter situations as aggravating liability for homicide crimes as well.
Circumstances aggravating criminal liability (Art. 64 of the CC):
1) Murder committed by a person previously convicted of a crime, provided that the statute of
limitations has not expired and conviction has not been quashed or removed. The court has a right
not to consider the latter circumstance as aggravating;
2) Commission of a crime against an individual who is in a state of material, service or other
dependence on the perpetrator;
3) Commission of a crime by an individual in violation of an oath taken by him or her;
4) Commission of a crime causing grave consequences;
5) Commission of a crime of a minor or a person suffering from a mental disorder, provided the
age or the mental disease was known to a defendant;
6) Commission of a crime with the use of public calamity or a state of emergency;
7) Commission of a crime by negligence following a conscious violation of established safety rules;
8) Commission of a crime in a state of intoxication or in a state caused by consumption of narcotic
drugs, psychotropic substances, their analogues, toxic or other intoxicating substances. Depending
on the nature of the crime, the court may not recognise the latter fact as aggravating.
Circumstances attenuating criminal liability (Art. 63 of the CC):
1) Confession;
2) Sincere repentance for the crime committed;
3) Active assistance in investigating the crime, apprehending the accomplices and searching for
illegally acquired property;
4) Provision of medical or other assistance to a victim immediately following the crime; voluntary
compensation for damages, payment of proceeds obtained through criminal means, and
elimination of harm caused by the crime; and other actions aimed at reparation for such harm;
5) Commission of a crime by an individual who has a minor child;
6) Commission of a crime due to a coincidence of grave personal, family, or other circumstances;
7) Commission of a crime under threat or coercion or owing to material, ofcial, or other
dependence;
8) Commission of a crime under the influence of the victim’s illegal or amoral actions;
9) Commission of crime through a breach of lawful conditions for necessary urgency, acting
among accomplices to a crime under special assignment, justied risk, or the execution of orders
or instructions;
10) Commission of a crime by a pregnant woman;
11) Commission of a crime by an elderly person.
32
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Terrorism (Art. 289, par. 3 of the CC)
An act of terrorism described as explosion, arson, flooding and other acts that may cause casualties
or injuries or a danger thereof committed for the purpose of exerting pressure on the authorities
in their decision making or with the purpose of impeding political or public activity, threatening
the population or destabilising public order is punishable by deprivation of liberty from 8 to 15
years. Repeated acts of terrorism coupled with injuries or committed by a person previously
convicted of certain crimes is punishable by deprivation of liberty from 8 to 20 years. Finally, an
act of terrorism is punishable by deprivation of liberty from 10 to 25 years, life imprisonment or
death if it is committed:
a) by an organized group,
b) with the use of nuclear, toxic, biological or chemical materials, or
c) if it resulted in death.
Illegal seizing of state power (Art. 357, par. 3 of the CC)
Conspiracy and acts aimed at seizing power using unconstitutional means are punishable by
deprivation of liberty from 8 to 12 years. Illegal seizing and maintaining of power is punishable
by deprivation of liberty from 10 to 15 years, if coupled with death or murder - 10 to 25 years of
deprivation of liberty, life imprisonment or death.
Act of terrorism against a public gure or statesman (Art. 359, par. 2 of the CC)
Murder or attempted murder of a state or public ofcial committed in connection with his or
her public ofce aiming to destabilize public order, to exert pressure or to impede certain state
decision-making, or to impede certain political or public activity or in revenge thereof is punishable
by deprivation of liberty from 10 to 25 years, life imprisonment or death.
Diversion (Art. 360 par. 2 of the CC)
An act of explosion, arson, flooding and other acts susceptible to cause casualties or injuries or
material damage to buildings or structures, transport and communication routes or other property
with the purpose of inflicting damage to the country’s economic independence or its security
(diversion) is punishable by deprivation of liberty from 10 to 15 years, if committed by an organised
group causing death or other grave consequences - by deprivation of liberty from 10 to 25 years,
life imprisonment or death.
Murder of an internal affairs ofcer (Art. 362 of the CC)
Punishable by deprivation of liberty from 10 to 25 years, life imprisonment or death penalty.
* * *
An analysis of the articles in the Criminal Code determining criminal liability for crimes listed above
reveals a remarkably large spectrum of sentences ranging from deprivation of liberty for seven
years to the death penalty. The administration of a sentence is left at the discretion of a judge.
Legal restrictions are only placed on a penalty type and minimum and maximum penalties. The
Criminal Law Enforcement Code provides for the following principle of evidence evaluation based
on a judge’s inner conviction (Art. 19):
33
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
″1. Court and prosecutorial authority assess evidence guided by law and inner convictions that are
based on comprehensive, full and impartial investigation of all circumstances of the criminal case.
2. No evidence is predetermined to pretrial investigation authorities, investigator, prosecutor or
court.″
The Plenum of the Supreme Court claried: ″Punishment is determined on the basis of court's
assurance of punishment's necessity and sufciency for the correction of an individual who
committed a crime, for the prevention of new crimes by the convict and by other individuals and
for restoration of social justice. Only a fair punishment will result in effective implementation of
criminal liability.″
Persons interviewed during the FIDH and HRC ″Viasna″ mission noted the lack of clear criteria in
handing down death sentences.
Thus, Aleh Hulak, Chairman of the Belarusian Helsinki Committee, is of the opinion that ″The
discretion left to the judge is too high. Sanction for murder with aggravating circumstances may vary
from 8 years imprisonment to the death penalty and there are no criteria prescribed in legislation to be
applied.″
82
Palina Stsepanenka, a journalist and activist in the campaign against the death penalty, noted: ″The
criteria used to choose from all the accused those who would be sort of ″sacriced,″ and thus executed,
are not clear. The convicts who serve life sentences are not in any way ″better″ or ″worse″ in terms of
the crimes committed. There are a number of cases where people who committed crimes, similar to
those committed by death convicts, get life imprisonment.″
83
82. FIDH-HRC ″Viasna″ mission interview with Aleh Hulak, 30 June 2016.
83. FIDH-HRC ″Viasna″ mission interview with Palina Stsepanenka , 27 June 2016.
34
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
II. VIOLATIONS OF RIGHTS RELATED
TO THE APPLICATION OF DEATH
PENALTY IN BELARUS
II.1. RIGHTS' VIOLATIONS DURING ARREST AND
INVESTIGATION OF DEATH ELIGIBLE CRIMES
The risk of using torture and ill-treatment is particularly high during the arrest and the period that
follows shortly thereafter, since law enforcement ofcials may coerce a statement or confession
from an arrestee in order to justify the arrest, before he or she has had a chance to seek legal
representation.
According to the Art. 45, par. 1 of the Code of Criminal Procedure, participation of a lawyer in all
criminal proceedings is mandatory in criminal cases involving particularly grave crimes. If a person
is suspected of committing a death eligible crime, legislation guarantees him the right to legal
defence from the moment of factual arrest.
A crime suspect may be detained up to 12 hours prior to initiation of criminal proceedings against
him, or released.
Preventive measure of restraint (most often – preventive detention) against a crime suspect must
be applied during 72 hours following the factual arrest. Preventive measures of restraint against
a person suspected of committing a particularly grave crime under Art. 124 par. 2, Art. 126, Art.
139 par. 2, Art. 285 par. 1, 2 and 3, Art. 286, Art. 289, Art. 357 par. 3, Art. 359, 360, 362, and Art. 339
par. 3 of the Criminal Code must be applied within 10 days from the factual arrest, or a suspect
must be released.
According to Pavel Sapelka, ″In Belarus, contrary to international standards, detention merely on
suspicion of committing a death eligible crime can last up to 10 days, whereas a recognised standard is
48 hours. Contrary to international standards, preventive measure of restraint – in Belarus, this would be
preventive detention in most of the cases - may be imposed not only by a judge, but also by a prosecutor,
chairman of the investigative committee and the chairman of the KGB (state security committee).″
84
Based on documents that formed the basis for the description of cases presented in this report, as
well as based on the testimonies of persons interviewed by the FIDH-HRC ″Viasna″ mission, self-
incrimination is extracted from suspects namely during the rst 12 hours of detention. Moreover,
as evidenced by the documents and testimonies on the case of Henadz Yakavitski, the detention
report is drawn up several hours after the factual arrest. As the case of Siarhei Khmialeuski
demonstrates, the legal rights were not explained to the suspect, including the right not to testify
against himself, and not to testify in the absence of legal counsel.
It is noteworthy that in a number of cases presented in the report, legal counsel was not present
during the initial interrogation by the police, as in the case of Henadz Yakavitski for example. In
the case of Uladzislau Kavaliou and Dzmitry Kanavalau, lawyer was also absent during the rst
84. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
35
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
interrogation, in violation of Belarusian law and in spite of the gravity of the charges against them
and the wide coverage of the case (detailed description of the latter cases is below).
Torture and ill-treatment
As noted above, torture and ill-treatment are systemic problems in Belarus and are used not only in
investigating death eligible crimes. The issue of torture in Belarus is raised by the non-governmental
organisations and international actors who keep urging the Belarusian authorities to eradicate
the problem. Interviews conducted by FIDH-HRC Viasna mission demonstrate that torture and
ill-treatment are systematically used to extort self-incrimination shortly after the arrest.
Human rights defender Siarhei Sys noted that ″The analysis shows that in cases, where physical force
is not applied, law enforcement applies psychological pressure, as for instance, a promise that in case
of self-incrimination, a suspect merely risks serving several years in prison, and threats of a severe form
of punishment in case of refusal to admit guilt.″
85
In the case of Uladzislau Kavaliou and Dzmitry Kanavalau, physical force was used against them
following their arrest. During a visit with his mother, Uladzislau Kavaliou told her that he was beaten
to confess guilt and that he was subjected to physical and psychological pressure. Employees of
the Main Directorate for Combating Organized Crime talked to him in the absence of a lawyer. As a
result of the pressure, Kavaliou made a confession, which later formed the basis for his conviction.
″Before the cross-interrogation of other defendant in the case, the investigator threatened my son with
the death penalty or life imprisonment if he changed his testimony during court hearings, and if he pled
guilty, he would serve a limited imprisonment,″ the mother of Uladzislau Kavaliou reported to the
FIDH-HRC ″Viasna″ mission.
86
In court, Uladzislau Kavaliou withdrew his self-incrimination claiming it was extorted under pressure.
He was executed within record time: less than 4 months following the entering into force of the court
verdict.
The case of Kavaliou is not an exception hereby conrming that torture and ill-treatment is systematically
used in Belarus to force an admission of guilt and self-incrimination. As established by the UN Human Rights
Committee in six cases on death application in Belarus, the latter violated its international commitment
under Art. 7 of the ICCPR on the prohibition of torture. In these six cases the Committee established the
violation of the right to life (cases of Uladzislau Kavaliou (in UN decision Vladislav Kovalev), Pavel Sialiun (in
UN decision Pavel Selyun), Vasil Yuzepchuk (in UN decision Vasily Yuzepchuk), Andrei Zhuk, Andrei Burdyka
(in UN decision Andrei Burdyko) and Aleh Hryshkautsou (in UN decision Oleg Grishkovtsov) and concluded
that physical and psychological torture had been used by law enforcement agents against the defendants
to force them to make a confession that subsequently formed a basis for conviction.
Torture in death penalty cases in Belarus - Excerpts from the UN
Human Rights Committee Views
In all cases listed below, the UN Human Rights Committee (HRC) established facts of torture
and, subsequently, a violation of Art. 7 of the ICCPR. The UN HRC claried that the State party
85. FIDH-HRC ″Viasna″ mission interview with Siarhei Sys, 27 June 2016.
86. FIDH-HRC ″Viasna″ mission interview with Liubou Kavaliova, mother of the executed Uladzislau Kavaliou, 27 June 2016.
36
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
has not presented any information to demonstrate that it conducted any effective investigation
into the torture allegations.
Liubou Kavaliova (in UN decision Lyubov Kovaleva) vs. Belarus (Views
adopted in 2012, Communication No. 2120/2011)
[...] Mr. Kovalev subsequently retracted his confession during the court hearings, claiming
that he was innocent and had made self-incriminating statements under pressure. [...] the
law enforcement authorities claimed that Mr. Kovalev’s bodily injuries attested during the
investigation (bruise marks on his head on the right temple and on the chin, bruises on
his hands resulted from rigid blunt objects, as well as on his shoulders and knees) were
sustained as a result of the force used in the course of the arrest operation. The authors
claim, however, that no such force was used, since Mr. Kovalev was asleep when he was
arrested. In substantiation of their argument that Mr. Kovalev had not sustained any bodily
injuries during his arrest, the authors refer to a picture of him taken on 12 April 2011 following
his arrest (part of the materials of the preliminary investigation), as well as to his videotaped
testimony broadcasted on ofcial television channels after his arrest, depicting him sitting
on the floor of the apartment with his hands handcuffed behind his back. None of the
injuries attested on 13 April 2011 by the forensic medical examination are visible either on
the picture or on the videotape, which conrms the fact that Mr. Kovalev was subjected
to pressure after his arrest, in violation of the prohibition of torture and his right not to be
compelled to testify against himself or to confess guilt.
Sviatlana Zhuk (in UN decision Svetlana Zhuk) vs. Belarus (Views
adopted in 2013, Communication No. 1910/2009)
[…] Mr. Zhuk was subjected to physical and psychological pressure with the purpose of
eliciting a confession of guilt and [...] that his confession served as a basis for his conviction.
In this regard, the Committee recalls that, once a complaint about ill-treatment contrary to
Art. 7 has been led, a State party must investigate it promptly and impartially.
Pavel Sialiun (in UN decision Pavel Selyun) vs. Belarus (Views
adopted in 2015, Communication No. 2289/2013)
[...] The Committee notes the claims under Art. 7 of the Covenant that the author was beaten
by several police ofcers and subjected to physical and psychological pressure to force him
to confess guilt in a number of crimes. The Committee observes that those allegations have
not been refuted by the State party.
Aleh Hryshkautsou (in UN decision Oleg Grishkovtsov) vs. Belarus
(Views adopted in 2015, Communication No. 2013/2010)
[...] The Committee notes the author’s claims under articles 7 and 14 (3) (g) of the Covenant
that he was subjected to physical and psychological pressure to force him to confess to a
number of crimes and that his confession served subsequently as a basis for his conviction
by the courts. [...] The Committee notes [...] clear signs that the author was tortured [...],
and complaints by his mother [...] and the author himself in this connection, the State party
has not presented any information to demonstrate that its authorities have conducted an
effective investigation into those specic allegations.
37
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Andrei Burdyka (in UN decision Andrei Burdyko) vs. Belarus (Views
adopted in 2015, Communication No. 2017/2010)
[...] The Committee notes the author’s claims [...] that he was subjected to physical and
psychological pressure to force him to confess guilt in a number of crimes and that his
forced confessions served subsequently as a basis for the establishment of his guilt and
his conviction by the courts. The Committee also notes that those allegations have not
been refuted by the State party.
Lack of independence of the investigation
Suspects are often held by the same institution that is tasked with the investigation of the alleged
crime and which is itself under pressure to ‘deliver results’.
Contrary to other countries, the system of pretrial detention centers in Belarus is under control of
the Ministry of Internal Affairs. Moreover, temporary detention facilities for suspects are managed
by local internal affairs units whereas pretrial detention facilities are under the control of the
Penitentiary Department of the Ministry of Internal Affairs.
Pavel Sapelka claried to the mission: ″A person nds himself in a detention facility where police
ofcers working on his case can ″visit″ him at any moment. They can come and conduct an interrogation,
even at night. Not a procedural interrogation duly recorded, but an off the record ″interrogation″ in order
to pressure the detainee to admit guilt.″
87
Cases are investigated by an Investigative Committee controlled by the President. The Investigative
Committee is also partly dependent on the police - several ofcers of the Ministry of Internal Affairs
were transferred to leadership positions of the to-be-established Investigation Committee in 2011-
2012. Moreover, the Investigation Committee recruits from the Police Academy of the Ministry of
Internal Affairs of Belarus.
Liubou Kavaliova shared with the mission: ″The head of the investigative group of the case was Deputy
Prosecutor General Andrei Shved, and the prosecutor was another Deputy Prosecutor General who, one
could say, sat in the same ofce with A. Shved. As a result, we have a situation when a prosecutor would
not go against an investigator and a judge would not go against a prosecutor.″
88
Denial of access to legal aid
Access to lawyer is not only a key safeguard for a fair trial, but also for the prevention of torture
and ill-treatment.
As mentioned above, the law guarantees access to a lawyer from the very detention of a suspect
in a death eligible crime. Participation of defence counsel in such cases is particularly important
in all stages of criminal proceedings, particularly during the investigation and trial. As evidenced
by the examples given above, however, the right of access to a lawyer to suspects of death eligible
crimes is systematically violated by law enforcement bodies of Belarus.
87. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
88. FIDH-HRC ″Viasna″ mission interview with Liubou Kavaliova, mother of the executed Uladzislau Kavaliou, 27 June 2016.
38
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
While legal counsel is absolutely vital in cases on death eligible crimes, the abuses vary from denial
of access to a lawyer of defendant’s choice, restriction to access to a lawyer during the pretrial
investigation and trial, absence of lawyer during initial interrogations, replacing ex ofcio lawyers
without giving proper explanation to the defendant or his family, absence of a lawyer during the
majority of the investigative actions, such as cross-examinations and interrogations.
Furthermore, the violations to the right to legal defence are of a systemic character, as demonstrated
in decisions issued by the UN Human Rights Committee. In ve out of eight Views handed down so
far by the UN Human Rights Committee on cases related to the death penalty in Belarus, suspects
were conrmed to have been restricted in their rights to access to lawyer which resulted in an
assessment of the proceeding a against the applicants as violating the standards of a fair trial.
As reported by Liubou Kavaliova, mother of Uladzislau Kavaliou executed in 2012, ″During the
investigation, a lawyer was allowed to meet with my son only once. And during the trial, there were always
obstacles: apart from one consultation in the pretrial detention centre, they could talk to each other only
for a few minutes before the start of the hearing. During one hearing, my son requested a meeting with
a lawyer to which the judge replied ″during the break, and at the discretion of the convoy.″ The lawyer
also had limited access to the case le, he was constantly told that a large number of victims wanted
to consult the les and that the queue was long.″
89
Violation of the right to access to legal defence in death penalty cases
in Belarus - Excerpts from the UN Human Rights Committee Views
In all cases listed below, the UN Human Rights Committee established the violation of Art. 14 of
the CCPR on the right to a fair trial.
Liubou Kavaliova (in UN decision Lyubov Kovaleva) vs. Belarus (Views
adopted in 2012, Communication No. 2120/2011)
[...] Mr. Kovalev was visited by his lawyer only once during the pretrial investigation [...] the
condentiality of their meetings was not respected [...], they did not have adequate time to
prepare the defence and [...] the lawyer was denied access to him on several occasions. […].
The Committee is of the view that the conditions, <...> in which Mr. Kovalev was assisted by
his lawyer during the pretrial investigation and in the course of court proceedings adversely
affected his possibilities to prepare his defence.
Sviatlana Zhuk (in UN decision Svetlana Zhuk) vs. Belarus (Views
adopted in 2013, Communication No. 1910/2009)
[...] The Committee further notes the author’s allegations that her son has only been allowed
to see a lawyer for ve minutes and has effectively been deprived of legal assistance during
the initial phases of the investigative proceedings, and that he was forced to participate in
investigative actions without legal advice, despite his requests for a lawyer, in violation of
the domestic criminal proceedings. The Committee also notes that these allegations were
not refuted by the State party.
89. FIDH-HRC ″Viasna″ mission interview with Liubou Kavaliova, mother of the executed Uladzislau Kavaliou, 27 June 2016.
39
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Pavel Sialiun (in UN decision Pavel Selyun) vs. Belarus (Views
adopted in 2015, Communication No. 2289/2013)
[...] The Committee further notes the author’s allegation that, during the pretrial investigation
stage, he was not afforded the effective and continued assistance of a lawyer, and that he
was able to hire a privately retained lawyer only in the framework of the preparation of his
cassation appeal. In this context, the Committee notes, for example, that, during more than
six months of pretrial detention, the author did not have effective and continued access to
his lawyers, and that the majority of the investigative actions, such as cross-examinations
and interrogations, took place in the absence of a lawyer. The Committee also notes that
these allegations have not been refuted by the State party.
Aleh Hryshkautsou (in UN decision Oleg Grishkovtsov) vs. Belarus
(Views adopted in 2015, Communication No. 2013/2010)
[...] The Committee notes the author’s allegation that, during the investigation stage, the trial
and the appeal procedures, he was not afforded assistance of a lawyer, in violation of his
rights under Art. 14 (3) (d). The Committee notes, for example, that, during the ve months of
pretrial detention, the author did not have effective access to legal assistance, while during
this period of time he confessed guilt under duress, and that, during the preparations for
the cassation appeal, he was not allowed to meet with his lawyer privately.
Andrei Burdyka (in UN decision Andrei Burdyko) vs. Belarus (Views
adopted in 2015, Communication No. 2017/2010)
[...] The Committee notes the author’s allegation that, during the pretrial investigation stage,
<Andrei Burdyko> was not afforded effective and continuous assistance of a lawyer, in
violation of his rights under Art. 14 (3) (d). The Committee, for example, notes that, during
the ve-month pretrial detention, the author did not have effective access to legal assistance,
while during this period of time he confessed guilt under duress, and that he was not allowed
to meet with his lawyer privately.
″To visit his client for the rst time, a lawyer must receive a notice from the investigator which is still
commonly called ″permission″. The correspondence with the client is censored. If a lawyer comes to
see his client when the investigators are ″savaging″ a suspect, let's say with questions, he cannot meet
the client until they're done,″
90
explained to the mission Pavel Sapelka.
II.2. TRIAL IN FIRST INSTANCE COURT
Lack of procedural guarantees in criminal proceedings of death eligible
crimes
Under Art. 268 of the Code of Criminal Procedure, crimes punishable by death are being prosecuted
in regional courts and in Minsk City Court. Moreover, under Art. 269, par. 2 of the same Code, the
Supreme Court has the right to consider any case referred to it by the Prosecutor.
The Supreme Court of Belarus is the highest judicial authority and its verdicts are nal: they take
effect immediately after being pronounced, and they may not be appealed. A Supreme Court verdict
90. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
40
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
may be only reviewed on a supervisory basis to the Presiding Judge of the Supreme Court or the
Prosecutor General. Such an appeal is not an effective means of defence, however, because it does
not suspend the verdict’s taking into effect. In other words, a death convict sentenced in Supreme
Court may be executed without awaiting the supervisory review decision (the aforementioned
ofcials may suspend the enforcement of the death verdict but are under no obligation to do so).
Moreover, the supervisory review does not result in a new court hearing. In some cases persons
sentenced to death by the Supreme Court have been executed within less than four months after
the pronouncing of their sentence (as in the cases of Kavaliou and Kanavalau, Marozau, Harbaty,
and Danchanka).
Aleh Hulak, Chairman of the Belarusian Helsinki Committee, explained to the mission: ″The death
penalty is imposed under the very same criminal proceedings as other penalties. In death penalty cases
a judicial mistake is irreversible and yet there are no additional guarantees. The only real difference is
that cases under articles stipulating the death penalty are heard by a regional court as the rst instance
court. In other words, a case cannot be heard by a district or city court as the rst instance court. This
is something of a guarantee, but it’s important to know that if a case is heard by the Supreme Court, the
accused person does not even have the right to appeal.″
91
Under Art. 32 par. 3 of the Code of Criminal Procedure, court proceedings involving capital cases
must involve a ″collegial consideration,″ consisting of one judge and two People’s assessors. The
selection of People’s assessors is a closed process. Candidates' lists are formed by respective
district, city and regional executive committees for a term of ve years from citizens who have
the right to participate in elections, referenda and in voting on dismissal of deputies. Inclusion on
the list of People’s assessors is carried out only with the consent of the concerned citizens. They
are subsequently approved by the respective regional or Minsk City Councils (in the case of the
lists of district, city, regional and Minsk city court People’s assessors). People’s assessors of the
Supreme Court are approved by the President.
The level of preparation and professionalism of the People’s assessors is usually very low.
As Pavel Sapelka explains: ″The participation of People’s assessors is just a mock participation of the
people in administering justice. People’s assessors are being selected by the executive authorities. It’s
a closed process.″
92
″I call the People’s assessors the ″nodders,″ said Hary Pahaniayla, former judge and former lawyer,
ironically, ″they sit in court and nod or sleep .″
93
Under Art. 354 of the CPC, the death penalty can only be handed down unanimously.
The lack of independence of judges
As Andrei Kniazkou, former convict sentenced for a particularly grave crime, reported ″Judges only
call witnesses listed in the investigator’s document. Even if I or my lawyer led a motion to call other
witnesses, the court would not take this motion into account.″
94
91. FIDH-HRC ″Viasna″ mission interview Aleh Hulak, 30 June 2016.
92. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
93. FIDH-HRC ″Viasna″ mission interview with Hary Pahaniayla, 30 June 2016.
94. FIDH-HRC ″Viasna″ mission interview with Andrei Kniazkou, former convict of a particularly grave crime, 29 June
2016.
41
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Motions by defence lawyers are rejected in the majority of cases. The trial of Dzmitry Kanavalau
and Uladzislau Kavaliou, both charged with a particularly grave crime - explosion in Minsk subway
that resulted in a large number of victims - should have answered all questions the victims had
about the crime. Yet the judge seemed unwilling to nd the truth. ″The judge had the same answer to
any question from the defence attorneys: I am withdrawing the question. For example, my son’s attorney
led a motion to investigate detention and ownership of a SIM card found in the apartment where the
arrest was made. The motion was denied. The same thing happened with one of the victim’s motions
to question workers he saw in the subway station on the day preceding the explosion who were doing
repair work. There was a wagon that the victims wanted to inspect, but the judge denied the motion. All
the motions that could have provided answers to our questions were rejected.″
95
″There are no guarantees for a trial to be fair and the principle of equality of arms does not exist,″
96
- is of the opinion Pavel Sapelka.
The case of Aliaksandr Hrunou is a glaring example of the extent to which judicial decisions lack
independence from the executive branch. The Supreme Court of Belarus overturned the death
verdict of the Homieĺ Regional Court dated 24 December 2013 and ordered a retrial. However,
immediately thereafter the President of Belarus, Aliaksandr Lukashenka demanded, during a
meeting with Prosecutor General Aliaksandr Kaniuk, that law enforcement, supervisory and judicial
authorities treat such criminals more harshly
97
. As a result of the retrial, the Homieĺ Regional Court
handed down the very same sentence: capital punishment in the form of death by ring squad. A
further cassation appeal by Aliaksandr Hrunou to the Supreme Court and a subsequent clemency
plea to the president were predetermined and hence fruitless.
In general, the Belarusian society has a very low level of trust in the law enforcement and the
judiciary. The results of an online poll on the website of the Supreme Court of the Republic of
Belarus (the authors of the report took into account the low number of respondents and thus
consider the poll as not fullling the criteria of representativity of all Belarusian society) on the
topic of citizens' condence or lack thereof in the judicial system showed that the respondents
consider the courts in Belarus to be inefcient: less than eight percent fully trust courts and would
appeal to a court to protect their rights.
98
Aliaksandra Yakavitskaya, daughter of a sentenced prisoner on death row Henadz Yakavitski,
(Henadz Yakavitski has already been sentenced to death in the past but the sentence was
commuted to 15 years in prison), accounts: ″As far as the judicial process itself is concerned, I think
it was a circus. I attended court hearings with my mother - we were in shock. The witnesses were in
an inadequate state, they gave up to four different versions of their testimony. They didn’t remember
anything. Even the judge noted that their testimony was constantly changing. Roughly speaking, one is
supposed to read the following meaning in between the lines of the court verdict: ″There's no one else who
could have committed the crime.″ There were many questions that were left unanswered. It could not be
excluded that someone else could have entered the house where everything happened, since none of the
witnesses could remember anything. A sweater belonging to an unknown person was found on the gate
of the house. It had traces of blood on it that did not belong to my father, the witnesses, or the victim.
Also, a blanket with traces of blood was found on the brazier. None of these objects were examined and
no answers were ever provided to the questions of who they belonged to or how they ended up there.″
99
95. FIDH-HRC ″Viasna″ mission interview with Liubou Kavaliova, mother of the executed Uladzislau Kavaliou, 27 June 2016.
96. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
97. Lukashenka, speaking about the killer of a girl in Homiel: ″What right do you have to live on this earth?″ http://
Homieltoday.by/rus/news/Homiel/47860/, in Russian only.
98. ″Ludmila Kuchura: our judicial system makes us living in ″a zone″, http://spring96.org/ru/news/83222 in Russian only.
99. FIDH-HRC ″Viasna″ mission interview with Aliaksandra Yakavitskaya, daughter of convict on death row Henadz Yakavitskii, 29 June 2016.
42
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
The Case of Henadz Yakavitski
Henadz Yakavitski, who had previously committed murder, was arrested on 31 July 2015 on
suspicion of a murder committed on 28 July 2015. During a quarrel Henadz Yakavitski hit
Tatsiana Vitaliyeuna Apanasionak several times. Later he and the victim went into the next
room, where he fell asleep. Due to severe intoxication, he does not recall what happened next.
When he awoke, he found Apanasenok lying next to him on the sofa, dead, with a broken jaw
and wearing no outer garments. He dressed her in her jeans that had bloodstains on it that
had not been there before. He himself notied the police.
A defence attorney was provided to Henadz Yakavitski during the drafting of the arrest report
that took place more than six hours after his factual arrest. For six hours, from the time he
was actually arrested to the time the arrest report was drafted, investigators interrogated
Yakavitski and subjected him to psychological pressure; the details of the interrogation were
not ofcially recorded. Yakavitski was not given the opportunity to meet privately with his
defence attorney without the investigator being present.
During hearings in the Minsk Regional Court, the confession Henadz Yakavitski made during
the rst hours of his arrest under pressure and without access to lawyer served as the main
basis for his conviction. At the same time, throughout the trial Henadz Yakavitski did not
admit to being guilty of a premeditated murder.
On 5 January 2016, the court sentenced Henadz Yakavitski to death. On 8 April 2016, a
Supreme Court panel rejected Henadz Yakavitski’s appeal and upheld the death sentence.
Henadz Yakavitski is currently on death row in the Pretrial Detention Facility No. 1 in Minsk.
In April 2016, he led a clemency plea addressed to the President of the Republic of Belarus.
A representative of the Prosecutor's Ofce, Alena Dziamko, revealed her biased attitude
toward the accused when she stated during the trial that Yakavitski was irredeemable.
For his rst conviction, Henadz Yakavitski had been sentenced to three years in prison
at age 17 for stealing a bottle of wine from a passerby. This was followed by a series of
convictions, including his rst death sentence in 1989, which was later commuted to 15
years of imprisonment.
Yakavitski’s lawyer pointed out to the court that a forensic examination had found traces
of unidentied blood under the nails of the victim. The investigation did not even attempt
to determine the identity of that person. In lawyer’s opinion, capital punishment cannot be
used in cases where a court failed to establish guilt beyond reasonable doubt and left many
questions unanswered.
The mass media, taking its cue from state ofcials, cultivated negative public sentiments
against Yakavitski and influenced attitudes toward this case. Before the hearing of the appeal
in cassation, the court was subject to influence from the mass media, in which opinions
were expressed about Yakavitski’s guilt. Distorted or utterly inaccurate facts were published
before the sentence took effect.
During the trial in the court of rst instance, relatives of the victim stated that they opposed
the use of the death penalty for Henadz Yakavitski yet the court did not take their arguments
into account.
43
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
Negative consequences of the institute of the pretrial agreement on
cooperation with the prosecution
Amendments to the Criminal Code and to the Code of Criminal Procedure introduced in 2014
(entered into effect in January 2015) the term ″pretrial agreement on cooperation with the
prosecution″. In exchange for a commuted sentence, an accused may decide to assist investigators
in the investigation of a crime and in exposing accomplices. Under Art. 69 (1) par. 2 of the Criminal
Code, if the accused is charged with particularly grave crimes punishable by death, the death
sentence is not applied if a pretrial agreement on cooperation is concluded.
The suspect is required to plead guilty, to specify the actions he intends to undertake to assist
investigators and to expose accomplices, to return illegally acquired property, to compensate
for property damage caused, and to report information known to him about other crimes and
perpetrators. The last requirement is optional.
The nal decision on the conclusion of the pretrial agreement on cooperation is left entirely to the
discretion of the prosecutor. If the latter decides that the cooperation was insufcient, the accused
shall be handed down a sentence irrespective of his cooperation with the investigators.
″The problem with the institute of the pretrial agreement is that many might choose self-incrimination
in order to avoid death penalty. However, no guarantees are given to suspects as in the end all depends
not on the court but on the decision of the prosecutor who decides whether the suspect cooperated
well enough,″
100
explained Pavel Sapelka.
So far, none of the persons accused of crimes punishable by death entered into a pretrial agreement
on cooperation with the prosecution. Moreover, journalists and lawyers with whom FIDH-HRC
″Viasna″ met during the mission expressed their reservation concerning the new amendment to
the Criminal Code and its potential consequences on death sentences.
In the opinion of journalist Adarya Gushtyn, ″The provision of the pretrial agreement and its emphasis
on the exposure of accomplices are formulated in a way that renders it potentially applicable only in
cases with crimes committed by an organised group. The impact of the amendment on the number
of death sentences cannot be yet estimated since the provision has still not been applied in a case
involving the death penalty″.
101
Systemic violation of the presumption of innocence
The right to be presumed innocent until proven guilty in court is often being curtailed in Belarusian
courts and is systemic in death penalty cases. In violation of the international standards on the
presumption of innocence, people accused of death eligible crimes are brought to justice in a cage
and in handcuffs. As another example, before the court verdict entered into effect in the case of
Henadz Yakavitski, he was forced to wear prisoner clothing with an abbreviation of ″Exceptional
measure of punishment″ (In Russian ″ИМН″) and in prison, a four-person convoy transferred him
from and to his cell in a special position – with his body bent down so that his head was at the
level of knees.
Public ofcials in Belarus often make public statements containing unambiguous acknowledgement
of guilt of the accused ahead of the court verdict. Media publish accusatory articles, disclose
100. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
101. FIDH-HRC ″Viasna″ mission interview with Adarya Gushtyn, 28 June 2016.
44
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
investigative material and publish photos and video shots degrading to a person who has not
been yet convicted.
Violation of the presumption of innocence in death penalty cases -
Excerpts from UN Human Rights Committee Views
In all cases listed below, the UN Human Rights Committee established the violation of the
presumption of innocence:
Liubou Kavaliova (in UN decision Lyubov Kovaleva) vs. Belarus (Views
adopted in 2012, Communication No. 2120/2011)
[...] The Committee [...] considers that the presumption of innocence of Mr. Kovalev [...] has
been violated. Several State ofcials made public statements about Mr. Kovalev’s guilt before
his conviction by the court and mass media made available to the public at large materials
of the preliminary investigation before the consideration of his case by the court. Moreover,
he was kept in a metal cage throughout the court proceedings and the photographs of him
behind metal bars in the court room were published in local print media.
Sviatlana Zhuk (in UN decision Svetlana Zhuk) vs. Belarus (Views
adopted in 2013, Communication No. 1910/2009)
[...] Several State ofcials made public statements about her son’s <Andrei Zhuk> guilt before
his conviction by the court and because mass media made materials of the preliminary
investigation available to the public at large before the consideration of his case by the
court. Moreover, he was kept in a metal cage throughout the court proceedings and the
photographs of him behind metal bars in the courtroom were published in the local media.
Pavel Sialiun (in UN decision Pavel Selyun) vs. Belarus (Views
adopted in 2015, Communication No. 2289/2013)
[...] The Committee further notes the author’s allegations that the principle of presumption
of innocence was not respected in his case, because he was shackled and kept in a metal
cage during the court hearings, and was forced to walk with his head close to his knees.
Aleh Hryshkautsou (in UN decision Oleg Grishkovtsov) vs. Belarus
(Views adopted in 2015, Communication No. 2013/2010)
[...] The Committee further notes the author’s allegations that the principle of presumption
of innocence was not respected in his case, because he was shackled and kept in a metal
cage during the court hearings. Moreover, the photographs of him behind metal bars in the
courtroom were published in the media.
Andrei Burdyka (in UN decision Andrei Burdyko) vs. Belarus (Views
adopted in 2015, Communication No. 2017/2010)
[...] The Committee [...] notes the author’s allegations that the principle of presumption of
innocence was not respected in his case, because he was shackled and kept in a metal
cage during the court hearings. Moreover, the photographs of him behind metal bars in the
court room were published in the mass media.
45
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
46
Wrongful convictions
One of the key arguments against the death penalty is that it cannot be reversed in case of a
judicial error. Indeed, with the course of time, even indisputable convictions seem less obvious,
new testimonies and evidence may emerge and in some cases the true perpetrator comes to light
only many years after.
The Case of Ivan Famin: Executed for Another’s Guilt
102
In 1998, the mother of Ivan Famin, who had been sentenced to death, contacted Human
Rights Center ″Viasna,″ which was then still called ″Viasna-96″. She gave human rights
defenders letters that her son had written on death row, which had made their way out
through the ″prison post″, thereby evading censorship.
In one letter Ivan wrote that he had been convicted for a cruel murder of a taxi driver, which
in fact he had not committed.
Ivan Famin’s mother claimed that criminals had forced her son to take the blame for someone
else’s crime, or else they would kill Ivan's mother and sister.
Human rights defenders learned more about the case of Ivan Famin in 2012 during shooting
of the lm ″Left according to the verdict″ (″Ubyl po prigovoru″). The activists of the campaign
″Human Rights Defenders against the Death Penalty in Belarus″ traveled to Berlin to interview
Aleh Alkayeu, head of the Pretrial Detention Centre No. 1 in Minsk from 1996 to 2001.
Campaign activists had with them the letters of Ivan Famin.
Aleh Alkayeu, who beside heading the Pretrial Detention Centre No. 1, was also in charge of
the ring squad, said that he remembered Ivan Famin well. He also conrmed that Ivan Famin
was executed for a murder he had not committed. ″Everyone there knew,″ said Alkayeu, ″that he
had taken the blame for someone else’s crime and incriminated himself during the investigation
and in court.″ And even though ″everyone knew,″ Ivan Famin was executed.
The confession of the defendant should not preclude investigators from conducting all necessary
investigative actions. Even in cases where the accused admits his guilt, the task of the court
remains a full and impartial assessment of the collected evidence. In Belarus, however, courts seem
to over-rely on confessions and do not conduct due evidence assessment. In such conditions, the
possibility of executing an innocent person is highly probable.
The case of Mikhail Hladki, who was wrongly convicted of murdering his brother, is one of the
best examples of a severe judicial error. In the end, Mikhail Hladki avoided death, but his case is a
prime example of what happens when the Belarusian judicial system issues sentences based on
false confessions that are not properly investigated.
102. Based on the materials http://dp.spring96.org/ru/news/71152, in Russian only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
47
The Case of Mikhail Hladki
On 13 March 2003, Mikhail Hladki was sentenced by the Court of Minsk District and Zaslaŭje
to 8 years in a strict-security penitentiary for murdering his brother, Viktor Hladki.
On 10 October 2002, Mikhail Hladki came to see his mother who was living with Mikhail’s
brother, Viktor Hladki. The latter had recently been released from prison. According to Mikhail
Hladki’s testimony, he found his mother dead and his brother sleeping. Because Viktar Hladki
had beaten his mother on more than one occasion in the past, Mikhail Hladki gured that
he had killed her. In a highly emotional state, he grabbed an axe and struck his recumbent
brother several blows to the head. He later called the police and emergency services.
The court and the investigation paid no attention to serious inconsistencies in Hladki’s
testimony. Moreover, witnesses testied that they had seen a man come to the house on
the day of the murder (it was Eduard Lykau, as it later turned out), but this event, too, was
insufciently examined. The origin of the words ″Kill me″ written on the mirror over the vanity
table remained unknown.
Mikhail fully admitted his guilt in court, served 5 years in the penitentiary and spent a year
and seven months performing correctional labor.
The real killer of both, Hladki’s brother and mother, Eduard Lykau, was arrested in 2011 on
suspicion of having murdered Mikalai Hryharenka. During the investigation, after meeting
with a Catholic priest and sincerely repenting, he confessed to having murdered four other
people, including his rst murders – Mikhail Hladki’s mother and brother in 2002. Their
murder took place less than 24 hours before Mikhail Hladki was to visit his mother, on 9
October. In spite of Lykau’s confession and cooperation with the investigation that resulted
in exoneration of an innocent man and investigation of two more murders, Eduard Lykau
was sentenced to death in November 2013 and executed.
Since 2014, Mikhail Hladki has been trying in vain to obtain a compensation for material and
moral damages of unlawful punishment. He has been refused thereof for having ″voluntarily
incriminated himself.″ His efforts to bring those responsible for his wrongful conviction
brought no result as well. All level courts up to the Supreme Court and the Investigative
Committee and the Prosecutor General had refused to initiate disciplinary procedures
against the ofcials who deemed the confessions of the accused sufcient to decide the
criminal case in court.
The Maščanica Case
103
On the night of 31 May to 1 June 2005, a family of six, among them two small children, was
murdered in the village of Vialikaja Maščanica, in the Bialyničy District. Two days later, ve
young men ranging in age from 18 to 24 years old, from the same village, were arrested
and charged with murder. The investigation of the case lasted nearly a year and a half, the
trial took place in the Mahilioŭ Regional Court under Presiding Judge Mikhail Melnikau. The
prosecutor requested capital punishment – execution by shooting – for two of the accused,
and life imprisonment for the other three.
103. ″The Maščanica Case: How Innocent People Were Almost Executed,″ http://spring96.org/ru/news/43706, in Russian
only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
48
More than two years later, however, on 2 November 2007, the judicial panel of the Mahilioŭ
Regional Court acquitted all ve men due to failure to prove guilt. One of the defendants,
Aliaksandr Klepcha, was released from custody in the courtroom, while the other four were
sentenced to prison terms ranging from 4 years to 10 years and 2 months for other offenses:
theft, sexual relations with minors, attempted rape, and hooliganism. The verdict was upheld
in Supreme Court.
In 2008, three convicts in the ″Maščanica case″ were released: Henadz Salauyou and Siarhei
Yushkevich were released under an amnesty in late May 2008, and Mikalai Rakutsin was
released early on parole from the Veina Penitentiary on 26 September 2008. By 2011, only
Pavel Pauliuchenka, the last of the former defendants in the murder case, who pursuant to
the court’s decision received a term of ten years and two months for a number of offenses,
remained in detention.
This case received high public visibility. In Autumn 2008, human rights organisation Amnesty
International met with the accused who had almost been executed for a crime that they
did not commit. Stories of the accused about the abuses and degrading treatment that
they had been forced to endure during their detention were documented and conrmed
in cross-examination by the mother of the former suspects and the grandmother of Pavel
Pauliuchenka.
The question of who committed this terrible crime remains unanswered.
The Vitsiebsk and Mazyr Cases
As far back as the 1980s, two sensational cases demonstrated the high probability of a
wrongful conviction and just how irreversible it is when it leads to execution.
In 1971, women began to go missing in the Polatsk District of the Vitsiebsk Region and in
the adjacent rural area. They were later found strangled. These crimes led women living
in rural areas to refuse to go out in the evening. The real killer, Henadz Mikhasevich, was
arrested only in 1985. By then he had killed at least 36 women. Fourteen innocent people
were convicted for crimes they had not committed: one of them was executed, one went
blind in prison, two spent fteen years in detention, one served a ten year prison sentence,
while the real murderer went on to kill again and again.
Each suspect was found guilty according to the same pattern: the suspect would be detained
for several days, supposedly for hooliganism. Meanwhile investigators used physical and
psychological torture to extract a confession, on which they then built an accusation. The
accused frequently renounced their initial confessions in court, but their testimony did
nothing to change the course of the investigation of the case. Moreover, suspects who
did not admit their guilt, even under torture, were also sentenced to lengthy prison terms,
despite an absence of material and other evidence.
Mechyslau Hryb, Director of the Internal Affairs Directorate of the Vitsiebsk Regional
Executive Committee, who headed the investigation in the case of Henadz Mikhasevich
in 1985, named in his book two reasons for such a protracted search of the real criminal:
″corruption and very strict demands on investigators to solve criminal cases at any cost.″ It is
worth noting that the very investigators who found the real murderer ″fell into disfavour with
higher authorities. As if they were guilty of having uncovered all the violations committed by
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
49
law enforcement and had cast doubt on the authority of their own ministry,″ wrote Mechyslau
Hryb. He hinted that it would have been better for them if Henadz Mikhasevich had died
before the trial, for example, while attempting a prison break. But the case went to court and
the offender was executed. None of those who participated in the successful investigation
of his crimes received an award for their work.
104
Citizens of what was still the USSR learned of the Mazyr case from Mikalai Matukouski
article ″Shadow of Error,″ published in the newspaper Izvestiia. In summer 1981 the corpses
of a Mazyr District shing inspector and of a local investigator were found in a lake in the
Homieĺ Region. Charges were brought against ve suspects, who had been engaged in
poaching activities in the district. There was no direct evidence of their involvement in the
crime. In spite of that, the Public Prosecutor of the Republic asked for all ve of the accused
to be handed down the death penalty. Several witnesses, including Mikalai Ihnatovich, a
future people’s deputy and First Prosecutor of the independent Republic of Belarus, who
called for the case to be closed for lack of evidence, were removed from the case. In April
1982, the accused were sentenced to lengthy prison terms. They avoided the death penalty
by confessing to the crime they did not commit. Physical force had been used repeatedly
on the accused during the investigation.
The real murderers were found two years later. The investigators who fabricated the case
against the ve poachers were never held to account.
II.3. JUDICIAL REVIEW OF DEATH SENTENCES
Review of a sentence issued by the Minsk City or Regional courts as rst
instance courts
Death sentences issued by the Minsk City Court or regional courts as rst instance courts may be
appealed with the Supreme Court. According to Art. 383 par. 3 of the Code of Criminal Procedure,
death convict and his defence attorney participate in the hearing of the criminal case in appeal.
The appeal court rarely commutes death sentences issued by rst instance courts. As demonstrated
by the case of Siarhei Khmialeuski, the appeal court may even hand down a harsher verdict. A
rst instance court sentenced him to life imprisonment, but the Supreme Court overturned this
sentence and returned the case for retrial by the same rst instance court. As a result of the retrial,
Siarhei Khmialeuski was sentenced to death.
The Case of Siarhei Khmialeuski
On 19 August 2015, the Minsk Regional Court found Siarhei Khmialeuski (previously convicted
of murder) guilty of the premeditated murder of two people with particular cruelty and murder
out of negligence of a witness thereof. He was also found guilty of repeated premeditated
embezzlement, deliberate failure to comply with the requirements of preventive supervision,
attempted premeditated destruction of property on a large scale, committed in a manner
dangerous to the public, and of arson.
The prosecutor asked that the accused be sentenced to capital punishment, but the court
instead sentenced him to life imprisonment. The Supreme Court overturned the life sentence
104. Grib, M.I. Belarusian Bridge: History, Facts, Events. Pg. 49. Cited in the book ″The Death Penalty in Belarus,″ p. 30,
https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
50
and ordered a retrial of the case. In retrial, the charges were brought by the same state
prosecutor who had previously deemed the sentence of life imprisonment too lenient and
whose objection was upheld by the Supreme Court of the Republic of Belarus. As a result of
the retrial, Siarhei Khmialeuski was sentenced to execution by shooting.
The retrial verdict was predetermined by the ruling of the Supreme Court, which stated, ″since
Khmialeuski has been proven guilty of the crime, <...> the sentence of life imprisonment that
was imposed is clearly unjust owing to its leniency″; this clearly can be interpreted as a direct
order to impose capital punishment in retrial.
The court set itself a goal of conducting the retrial as quickly as possible. Having reclassied
the third murder from ″murder by negligence″ to ″premeditated murder, in order to conceal
the previous murders″, the court handed down a death verdict without looking deeply into
the circumstances or taking into consideration Khmialeuski’s own partial disavowal of guilt.
The retrial of the criminal case was assigned to judge S.A. Yepikhau, who one month earlier
had handed down the death sentence to Henadz Yakavitski.
The case of Siarhei Khmialeuski is revealing in the sense that the Supreme Court of the
Republic of Belarus, having predetermined the outcome of the case in the second trial,
rendered the appeal stage meaningless.
Furthermore, for about eight hours from the actual arrest of Siarhei Khmialeuski on 19 August
2015, no defence attorney was provided. This made possible a situation in which ofcers
pressured him, used force, and inflicted physical injuries, as a result of which Khmialeuski
incriminated himself. Contrary to Belarusian law, during the initial interrogation Khmialeuski
was not given the opportunity to meet privately with a defence attorney. Khmialeuski testied
that he was subject to torture and other unlawful methods of persuasion, which as a result
led to his false confession. His claims were not investigated.
Siarhei Khmialeuski has led a clemency plea addressed to the President of the Republic of
Belarus. If it is denied, he will learn only seconds before his execution.
Before the death verdict entered into force, Siarhei Khmialeuski was forced to wear a prison
uniform with a label on the back saying "EMP" (Exceptional Measure of Punishment) and a
four-man escort led him around like a death-row inmate, in a special pose, hunched toward
the ground, ″head to knees,″ in which his head is lower than his waist.
Review of a sentence issued by the Supreme Court as the first
instance court
Sentences issued by the Supreme Court as the rst instance court cannot be appealed. They can
only be reviewed by the Chairman of the Supreme Court, his deputy, the Prosecutor General, or his
deputy. If the latter nd that there are grounds to protest the verdict, the Presidium of the Supreme
Court shall reconsider the case.
Pavel Sapelka notes that ″Cases that the government wants to end quickly are heard by the Supreme
Court. This relates to cases that resonate, like the cases of Kavaliou and Kanavalau.″
105
Obviously, there
might be various reasons for the investigation and prosecution to hurry closing a criminal case.
105. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
51
The Case of the Marozau Gang
An organized criminal group known as the Marozau Gang terrorized the Homieĺ Region for
over 15 years. A unique document – a special ruling by the Supreme Court on the criminal
case of Marozau and his accomplices sent to the Prosecutor General and the Minister of
Internal Affairs - states the following reasons for such a long period of impunity:
1) The corruption of individual law enforcement ofcials in the Homieĺ Region, including top
ofcials of the Internal Affairs Directorate, and their participation in criminal organisations;
2) A lack of proper coordination of actions among the services of the Internal Affairs
Directorate of the Homieĺ Regional Executive Committee and the inefcacy of their work;
3) Improper prosecutorial supervision of preliminary investigations conducted by law
enforcement and that of investigation conducted by the prosecutor's ofce;
4) Ties between criminal organisations and civil servants not disclosed or suppressed.″
106
The Supreme Court handed down the rst sentence in the case of the gang on 1 December
2006. For a variety of grave and especially grave offenses, three leaders of the gang – Siarhei
Marozau, Valerii Harbaty and Ihar Danchanka – were sentenced to capital punishment
(execution by shooting). The remaining members of the gang were sentenced to various
prison terms – from 2 to 20 years of imprisonment. A total of 46 people were targeted in
the case of this criminal organisation.
On 9 October 2007, the judicial panel for Criminal Cases of the Supreme Court of Belarus
pronounced a sentence in another criminal case against the members of the gang. In the
latter trial, Marozau and Danchanka were again sentenced to death.
107
The public learned about the execution of Marozau, Harbaty and Danchanka in early February
2008. The execution took place in spite of the fact that Marozau was a defendant in two
other criminal cases that were brought to the Supreme Court in January 2008.
108
It was only
on 11 March 2009 that is became known that pending criminal cases against Marozau had
been ″dismissed in connection with his death.″
109
It should be noted that one of the Homieĺ lawyers who participated in the trial in the case of
the ″Marozau gang″ reported that Marozau had been recalling new criminal episodes and
promising to name high-ranking ofcials at regional and national levels who had helped the
gang avoid punishment for so long.
110
Analysts believe that this is what hastened Marozau’s execution.
106. ″Secrets of the Marozau Gang Are Taken to the Grave,″ http://naviny.by/rubrics/disaster/2015/05/06/ic_
articles_124_188822, in Russian only.
107. ″The leader of the ″Marozau Gang″ and His Accomplice Are Sentenced to Death,″ http://naviny.by/rubrics/
disaster/2007/10/09/ic_articles_124_153247/, in Russian only.
108. ″Three ″Marozau People″ Are Executed,″ http://naviny.by/rubrics/disaster/2008/02/05/ic_articles_124_155366/, in
Russian only.
109. ″Supreme Court Hands Down Sentence to Three More ″Marozau People,″ http://naviny.by/rubrics/
disaster/2008/03/11/ic_news_124_287248/, in Russian only.
110. ″Three ″Marozau People″ Are Executed,″ http://naviny.by/rubrics/disaster/2008/02/05/ic_articles_124_155366/, in
Russian only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
52
In the case of Uladzislau Kavaliou and Dzmitry Kanavalau, the Supreme Court death verdict could
not be appealed. However, a flagrant violation was their execution while the attorney of Uladzislau
Kavaliou was preparing a supervisory appeal and the Presidium of the Supreme Court was duly
notied thereof.
″Submission of a supervisory appeal in cases where an appeal in court is not possible does not suspend
the enforcement of the verdict. Despite this fact, the Belarusian authorities continue to claim to the
UN Human Rights Committee that a supervisory review is an efcient means of legal defence,″
111
said
Pavel Sapelka.
The ofcial reply from the Supreme Court of the Republic of Belarus to the supervisory appeal
submitted by the attorney of Uladzislau Kavaliou was eventually received by Liubou Kavaliova
on 23 November 2012, more than seven months after the execution of her son in March 2012. It
upheld the death sentence.
The Case of Uladzislau Kavaliou (in UN decision Vladislav Kovalev)
and Dzmitry Kanavalau
The high-prole case of Dzmitry Kanavalau and Uladzislau Kavaliou, like litmus paper,
exposed all the shortcomings of the Belarusian judicial system.
Accused of a series of explosions in Minsk and Vitsiebsk in 2005-2011, including an
explosion in the Minsk subway on 11 April 2011 that resulted in death of 15 people, Dzmitry
Kanavalau and Uladzislau Kavaliou were sentenced to death on 30 November 2011 by the
Supreme Court, which found they ″represented an exceptional danger to society.″
Kanavalau was found guilty of malicious and especially malicious hooliganism; premeditated
destruction of property; unlawful acquisition, storage and transportation of explosive
substances and explosive devices; and terrorism coupled with murder. Kavaliou was
found guilty of malicious and especially malicious hooliganism, premeditated destruction
of property, unlawful acquisition, storage and transportation of explosive substances and
explosive devices, failure to report an especially grave crime in the making, and complicity
in terrorism.
The prosecution rested entirely on Dzmitry Kanavalau’s confession. In the beginning of
the trial, a recorded video interrogation was shown in which he confesses to committing
a terrorist act (he refused to testify in court). In the video, Kanavalau briefly relates that he
arrived in Minsk on 10 April 2011 with a large bag holding a bomb, the following day went
down to the subway, rode as far as the ″October″ station, placed the bag next to a seat and
pushed a button. According to his testimony, he had manufactured the bomb himself in
his apartment in Vitsiebsk .
Uladzislau Kavaliou testied in court that during the preliminary investigation he had
incriminated himself under pressure.
Human rights defenders, journalists and the public noted serious procedural violations
during the pretrial investigation and during court proceedings. Claims of the accused about
the physical and psychological pressure used on them during the preliminary investigation
111. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
53
were not properly investigated. The right to defence was severely restricted. The majority of
defence motions were unjustiably denied and as a result, inaccuracies and contradictions
related to the evidence were not claried. The presiding judge refused to summon to court
either subway employees or a certain Kudrin, who on the Internet claimed responsibility for
the terrorist act, or the special forces operatives who had arrested Kanavalau and Kovalev.
The trial was abruptly and unexpectedly declared concluded.
The authors of Uladzislau Kavaliou individual appeal to the UN Human Rights Committee
convincingly demonstrated the evidence of the use of torture against Uladzislau Kavaliou.
On the last day of the trial, Kavaliou's lawyer Stanislav Abrazey requested a repeated
screening of the videotape extracted from the subway surveillance cameras showing
silhouettes of two people with a large bag in their arms. The motion was denied. The
investigators claimed that namely the latter videotape allowed identifying and arresting
Kavaliou and Kanavalau. However, the arrest took place on 12 April 2011, whereas the
extraction of the videotapes took place on 19 April 2011. A photomodel of the criminals were
in fact drawn when Kavaliou and Kanavalau were already in the pretrial detention facility.
On 13 April 2011, i.e., the day after the arrest, President Aliaksandr Lukashenka announced
that the terrorist attack had been solved. A month before the pronouncement of the
sentence, on 31 October 2011, the President bestowed national awards for the investigating
the terrorist attack in the Minsk subway. In violations of the presumption of innocence,
statements on Kavaliou and Kanavalau’s guilt were widely broadcast by state media.
Dzmitry Kanavalau and Uladzislau Kavaliou were executed in March 2012, even though the
UN Human Rights Committee had registered the appeal submitted by Uladzislau Kavaliou’s
mother. The Belarusian authorities disregarded the ofcial request addressed to them by
the Committee demanding not to proceed with the execution before the Committee had
considered the complaint. In November 2012, the Committee declared that Belarus had
violated Uladzislau Kavaliou’s right to life.
During the trial, several victims expressed doubt that Kanavalau and Kavaliou had been
involved in the terrorist incident while tens of thousand of Belarusians signed a petition
against sentencing Kavaliou and Kanavalau to death. The public outcry at the death
sentence was reflected in the nationwide survey conducted by the Independent Institute of
Socio-Economic and Political Studies (IISEPS) in September 2011, as cited in the
Introduction.
112
The sociological data attest: only 21.2% of respondents believed that the
crime was committed by ″a lone terrorist and his accomplice, with no one behind them.″
A further 32.4% of Belarusians believe that Kanavalau and Kavaliou were involved in the
explosion in the metro, but on someone else’s instruction. And nally, 36.7% believe that
the terrorist act was not committed by Kavaliou and Kanavalau.
112. ″Execution ‘at One’s Own Request,’″ http://gazetaby.com/cont/print_rdn.php?sn_nid=41042, in Russian only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
54
II.4. PRESIDENTIAL PARDON AND COMMUTATION TO LIFE
IMPRISONMENT OR ANOTHER FORM OF PUNISHMENT
Pursuant to Art. 59 of the Criminal Code, the death penalty may be commuted to life imprisonment
in court or through pardon provided for in the Presidential Order No. 250 of 3 December 1994.
After an appeal of a death sentence is rejected in Supreme Court, legislation provides for a
presidential pardon procedure that in practice constitutes an illusionary chance for mercy. The
Pardon Commission automatically reviews all death penalty cases regardless of whether or not
the convict submitted a clemency plea. Thus, theoretically, the death sentence of a convict who
did not petition for a pardon may be commuted to life imprisonment.
The decision not to grant a pardon is kept secret from the death convict, his attorney, and his
relatives until the very execution.
Order No. 250 (as amended by Order of the President of the Republic of Belarus of 11.01.2014 No.
17) establishes the procedures for the work of the Presidential Pardon Commission.
The current members of this Commission are:
Mitskevich, Valery Vatslavavich – deputy head of the Administration of the President of Belarus
(chair of the Commission);
Kolos, Dzianis Heorhiyevich – head of the Main Department for Cooperation with Legislative and
Judicial Bodies on Matters of Citizenship and Pardon of the Administration of the President of the
Republic of Belarus (deputy chair of the Commission);
Maroz, Liliya Frantsauna – chair of the Standing Commission of the Council of the Republic of the National
Assembly of the Republic of Belarus on Legislation and State-Building (deputy chair of the Commission);
Barkou, Aliaksandr Uladzimiravich – deputy director for research and methodology, Institute for the
Advanced Professional Training of Judges, Prosecutors, and Legal Professionals of the Belarussian
State University;
Rabtsau, Leanid Mikhailavich – Constitutional Court judge;
Mikhalkova, Ludmila Stsiapanauna – chair of the Standing Commission on Legislation of the House
of Representatives of the National Assembly of the Republic of Belarus;
Chaichyts, Viktar Ivanavich – chair of the National Bar Association.
The Commission also includes the chair of the Supreme Court, the Prosecutor General, the head
of the Investigative Committee, the Minister of Internal Affairs, the Minister of Justice, and the
head of the KGB. Where the participation of one of the latter individuals is not possible, deputies
thereof ensure the replacement.
113
.
As Pavel Sapelka noted in an interview with the mission, ″All members of the commission are
professional jurists; many are former judges. And this predetermines how petitions for pardon will be
considered. They are considered by jurists as a legal problem, whereas the Commission should be guided
by the principles of humanism. Why then don’t they let social gures, philosophers, writers, historians,
musicians and poets participate in its work?″
114
113. Order of the President of the Republic of Belarus of 03.12.1994 No. 250 ″On the Approval of Regulations on
Procedures in the Republic of Belarus for Pardoning Convicts and Releasing Individuals Helping to Solve a Crime
and Eliminate the Consequences of a Crime from Criminal Liability.″ Text of this legal act with amendments and
additions of 1 January 2014: http://pravo.newsby.org/belarus/ukaz4/uk528.htm, in Russian only.
114. FIDH-HRC ″Viasna″ mission interview with Pavel Sapelka, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
55
The Commission’s work is just as opaque as the work of other state bodies in Belarus. The format
of their decisions is unknown, and the decisions are not published: ″Commission decisions on
petitions for pardon are adopted by a simple majority of votes by members present, are entered
into the minutes, and signed by the members.″ It can be assumed that the decisions do not even
have a specic blank for providing justication for granting or rejecting a pardon. Legislative acts
regulating the decision making within the Commission are not public either.
Representatives of the Belarusian Helsinki Committee (BHC) have noted that access to the
Commission’s work is extremely limited. On several occasions, the BHC has requested to be
included in Commission’s work, yet all their requests were so far rejected:
″We have contacted the Presidential Pardon Commission three or four times in recent years with a
request to be included in the Commission, since the Presidential Decree does provide for inclusion of civil
society Commission’s work. However, each time we received the response that we would be summoned
if necessary,″ Aleh Hulak, BHC chair, explained to the mission.
Art. 24 of the ″Regulations on the Procedures for Granting a Pardon″ states that ″Information
about the Commission’s work and the decision of the head of state on pardoning convicts shall
be regularly made public in the media″. Yet the latter provision is not being brought into effect.
The website of the Ministry of Internal Affairs cites statistics on commutation of death sentences
in 1998-2010:
115
Year 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
No. of convicts
in detention
whose death
sentence was
commuted
to life
imprisonment
32 27 24 20 18 5 5 6 5 4 3 3 4
These cases seem to refer to reversals of death sentences in courts and not under presidential
pardon. For example, in the period 1998-2000, a number of sentences were reversed in courts in
connection with the introduction of the new Criminal Code in 1999.
The BELTA News Agency quotes Dzmitry Savatsimau, head of the Life Imprisonment Department,
as citing two cases he is aware of when death penalty was commuted to life imprisonment: ″Since
Belarus introduced life imprisonment, the sentences of two death convicts were commuted to
life sentence. Their psychological state changed dramatically. They were in seventh heaven from
happiness, from getting a chance. For them their current life is very good, much better than death,
and they openly admit it,″ he said.
116
The Baranovichi news portal Intex-press.by quotes the MP Mikalai Samaseika who provided
different information:
″Over the past 20 years, the President of Belarus pardoned a death convict only once. As stated to
the Inter-press reported by Mikalai Samaseika, chair of the Standing Commission on Legislation
and Legal Issues of the House of Representatives of the National Assembly of Belarus, it occurred
115. The website of the Ministry of Internal Affairs, ″Use of the Death Penalty,″ http://mvd.gov.by/main.aspx?guid=9091,
in Russian only.
116. ″Sentenced to live″, http://www.b-info.by/news/15133/index7.html, in Russian only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
56
in 1999: a livestock specialist at an agricultural enterprise convicted of murder out of jealousy
faced execution. His death sentence was commuted to life imprisonment″.
117
The portal http://naviny.by/ asserts that ″Over the 17 years of President Lukashenka’s presidency,
only one death convict was granted Presidential pardon. His death penalty was commuted to 20
years imprisonment. It occurred in 1996.″
118
The secrecy surrounding the issue of the death penalty is also applicable for pardon and
commutation. In 1998, HRC ″Viasna″ received a letter from the prisoner Siarhei Pratsirayeu stating
that he had been sentenced to death. Communication with him was lost until he made contact
again in 2001, when he reported from the Penal Colony No. 13 in Hlubokaye that his death sentence
had been commuted to life imprisonment. According to available information, he was transferred
to Correctional Colony No. 5 in Ivantsevichi. There is no ofcial information available whether his
death sentence was commuted as a result of a pardon, nor about the reasons for the decision.
The case of Siarhei Pratsirayeu also demonstrates the scale of work conducted by human
rights defenders not only to abolish the death penalty, but also to provide society with access to
information on death penalty. Since 2009, when the campaign of ″Human rights defenders against
the death penalty in Belarus″ was launched, activists’ work to expose possible death penalty cases
and to uncover violations of the rights of convicts and their relatives have raised awareness of
the society.
The case of Dzmitry Kharkhel (in UN decision Dimitry Kharkhal)
Upon the request of the Belarusian authorities, Dzmitry Kharkhel, born in 1970 and previously
convicted, was arrested on 17 September 1997 in Saint Petersburg (Russia) under charges
of theft and other crimes committed in Belarus. On 18 September 1997 he was transferred
to Minsk. On 21 April 1999, he was sentenced by the Minsk city court to 13 years in prison
for theft and murder attempt. On 20 March 2002, the same court found him guilty of two
murders, committed in Minsk on 3 November 1994, and for misappropriation of property
belonging to the victim that included a car, jewelry and other objects and condemned him
to death. On 30 August 2002, the Supreme Court of Belarus conrmed the death sentence.
The investigation of Dzmitry Kharkhel case lasted almost six years, the case was several
times sent for additional investigation. In the meantime, human rights defenders submitted
an individual complaint to the UN Human Rights Committee.
In 2003, the Supreme Court commuted his sentence to 15 years in prison.
119
Euroradio
journalist who visited the penitentiary colony where Dmirti Kharkhel served his sentence
was told in 2013 that Dzmitry was pardoned after serving 14 years and released one year
ahead of his term. He gave the following comment to the Euroradio journalist regarding the
commutation of his death sentence: ″The Belarusian authorities made such a decision...I
am not aware of how exactly they came to such a decision, I can only tell facts... The court
simply commuted my sentence.″
117. ″Life imprisonment″, http://www.intex-press.by/ru/895/incidents/9506/?tpl=13, in Russian only.
118. ″Over the past ve years, at least 14 people have been executed in Belarus″, http://naviny.by/rubrics/
society/2012/03/17/ic_articles_116_177209, in Russian only.
119. ″Death penalty does not deter or scare anyone″, http://euroradio.fm/ru/pomilovannyy-smertnik-smertnaya-kazn-
nikogo-ne-pugaet-i-ne-ostanavlivaet ″Death penalty does not deter or scare anyone″, in Russian only.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
57
II.5. DEATH PENALTY AND MENTAL DISORDER
Art. 92 of the Criminal Code provides for conditions for commuting sentences. A convict diagnosed
with a mental disorder after a court conviction is relieved from serving a sentence. The goal of such
a provision is to ensure that a convict realises the meaning and the very fact of his punishment.
In such cases, court may order treatment to an individual in question.
According to Art. 176 of the Criminal Law Enforcement Code of the Republic of Belarus on
suspending execution, "upon detection of signs of a mental disorder (illness), the facility’s
administration should arrange for a medical examination of a convict by a commission of three
specialist doctors". If "a mental disorder (illness) is diagnosed and deprives a convict of his ability
to understand the implications of his actions, the death sentence shall not be enforced and the
medical examination report shall be sent to a respective court".
The latter shall suspend execution in respect of the convict and assign compulsory measures
for the convict’s safety and treatment following the procedures established by the Criminal Code.
Should the convict regain his health, the question on execution or commutation of the death
sentence shall be decided by a respective court.
However, despite human rights defenders reports about psychological torture and inhuman
detention conditions of death convicts, their mental disorders proved by medical documents and
reports of disorderly behavior of some convicts in death row, the mental state of convicts, whose
death sentence had entered into effect, have never been examined.
″Vasil Yuzepchuk was reported to roll on cell's floor and sing,″ Siarhei Sys told the mission.
120
According
to medical diagnosis No. 190, Vasil Yuzepchuk was ofcially diagnosed with an intellectual
disability. He was illiterate and could not explain on what day and in what month events took place,
he could only refer to ″summer″ and ″winter″ as time indicators. During the trial he claimed to have
been given during interrogations unknown pills and alcohol and to have been subjected to torture.
″However, none of these circumstances were taken into account either by court, by punishment execution
bodies or the Presidential Pardon Commission″.
121
″Pavel Sialiun had been hospitalized in a facility treating psychiatric disorders. Aliaksandr
Hrunou had been registered in the local psychoneurologic dispensary,″ says activist Palina
Stsepanenka. ″They were all declared of sound mind by the court medical expertise, although
severe doubts persist as to their state of mind at the moment of the crime.″
122
Their mental
state following the court sentence’s entry into effect has not been examined either.
The case of Vasil Yuzepchuk (in UN decision Vasily Yuzepchuk)
On 29 June 2009, 34-year-old Vasil Yuzepchuk was convicted of murdering elderly women,
as well as of theft and robbery, and was sentenced to death. He was executed in March
2010 in violation of Belarus international commitment to halt executions until the convict's
complaint is being reviewed by the UN Human Rights Committee.
123
120. FIDH-HRC ″Viasna″ mission interview with Siarhei Sys, 27 June 2016.
121. FIDH-HRC ″Viasna″ mission interview with Siarhei Sys , 27 June 2016.
122. FIDH-HRC ″Viasna″ mission interview with Palina Stsepanenka, 27 June 2016.
123. ″The Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 65.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
58
Vasil Yuzepchuk reported having been regularly subjected to physical and psychological
torture during the preliminary investigation with an aim to self-incrimination. He claimed
to have been kept in solitary connement for prolonged periods of time, was denied food
and forced to take unknown pills and alcohol, which affected his ability to think clearly.
Police ofcers were also reported to have threatened to incarcerate his close relatives. The
prosecutor's investigation of V. Yuzepchuk claims of ill-treatment refuted these claims. Yet
the investigation failed to question witnesses, to obtain copies of the footage of the video
surveillance of his cell and did not examine entries in the medical journal of the medical
unit of the detention centre.
124
The UN Human Rights Committee's Views adopted in 2014 - four years after the execution
of V. Yuzepchuk - conrmed that V. Yuzepchuk's right to life had been violated by Belarus
since he was sentenced to death in an unfair trial.
His guilt was proven only by his testimony during the preliminary investigation, as well as
the testimony of another participant in the case that were also allegedly obtained through
torture.
Since murders and robbing resembling that of Vasil Yuzepchuk continued in Brest oblast
after his arrest and execution,
125
there is a supposition that he was executed for crimes
committed by someone else.
II.6. INHUMAN DETENTION CONDITIONS
Detention conditions before the death sentence
As described in the section on arrest and pretrial detention, detainees are often put under
psychological pressure, and law enforcement often uses excessive force as well as the practice
of torture and other cruel, inhuman and degrading treatment.
Up until recently, death convicts whose appeal was pending Supreme Court’s decision were forced
to wear a robe with an inscription ″Exceptional measure of punishment,″ although legally the
verdicts had not yet entered into effect. After ling numerous complaints, human rights defenders
achieved that this practice has not been used for the past two years.
As explained by Andrei Paluda, coordinator of the campaign ″Human Rights Defenders against The
Death Penalty in Belarus,″ the latter practice together with other violations of the presumption of
innocence, create a situation where the ″Person is brought before the judge a priori as a criminal and,
what is more, he appears before the judge as a death convict.″
126
A convoy is present during meetings
with a lawyer. This curbs the defendant's lawful right to privately prepare for legal defence.
The testimony of a former prisoner convicted of a particularly grave crime describes the lack of
medical care in pretrial detention:
″We weren’t provided with any medical care in pretrial detention. The doctor stopped by and asked if
anyone needed medical care. The newcomers, like me, who were there for the rst time, answered that
124. UN Human Rights Committee, Communication No. 1906/2009, Views adopted by the Committee at its 112th
session 7-31 October 2014.
125. ″Another execution: a death sentence against Ryhor Yuzepchuk was carried out″, http://spring96.org/ru/news/70985,
in Russian only.
126. FIDH-HRC ″Viasna″ mission interview with Andrei Paluda, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
59
they needed medical help to what the doctor replied, ‘See my doctor's white uniform? You won’t see it
again.’ And we didn’t.″
127
Andrei Paluda informed the mission that ″recently we have been receiving reports that death convicts
are being given tranquilisers and antidepressants. Moreover, taking into account their detention
conditions, the effect of drugs quickly becomes insufcient and the dosage is reportedly being daily
increased.″
128
In the absence of medical assistance, such forced treatment constitutes a dangerous
malpractice.
All capital convicts are kept in the basement of the Minsk Pretrial Detention Centre (SIZO) No.
1 on Valadarski Street (also called ″Valadarka,″ or ″Piščalaŭski castle″), in conditions that have
been reported by international human rights organisations, including the FIDH, as inhuman and
degrading.
The issue of detention conditions in pretrial detention centers in Belarus falls outside the scope
of the present report on death penalty. However, it is important to note that in the absence of any
civilian control over detention facilities, available data on detention conditions raise a particular
concern, such as the joint FIDH-HRC ″Viasna″ report ″Conditions of detention in the Republic of
Belarus″
129
and a recent HRC ″Viasna″ ″Report on the results of monitoring places of detention in
Belarus.″
130
Cases accounted in the latter report allow drawing a conclusion that law enforcement fail to
promptly and efciently investigate torture claims and claims of cruel, inhuman and degrading
treatment with detainees.
None of the police ofcers involved in torture cases was dismissed for the period of investigation of
such cases. Given the risks of pressure on witnesses and victims in torture cases, failure to dismiss
ofcers suspected of torture casts a doubt on the impartiality of the investigation of torture claims.
According to Art. 174 of the Criminal Law Enforcement Code of the Republic of Belarus, death
convicts are kept in high security cells. Death convicts are deprived of outdoor walks and lights
are on 24 hours a day.
Death convicts stay on death row from six months to 1.5 years on average. One of the former staff
of the Pretrial Detention Centre No. 1 reports: ″The new building has three cells for death convicts.
<...>. The dimensions of the cells, like most in Valadarka, are 6 to 3 meters. All of them are equipped
with video surveillance devices to continuously monitor the inmates. <...> At any time of the day or night
death row is guarded by a sentry that follows the screen. <...> Two-thirds of the walls are painted beige,
and the ceiling and the upper part of the walls are white. The toilet is like in trains, a pocket, the fence is
shoulder-high <...>. Next to it is the sink. The ceiling, which is about 5 meters high, has a light bulb. The
light is always the same, it’s white and is always on. <...> There is a radio that is on all day long.
The bench and table are welded to the floor. Above the table, there is a shelf with their letters and the
case le. The berth is very low, about 15 cm from the floor.″
131
127. FIDH-HRC ″Viasna″ mission interview with Andrei Kniazkou, a former prisoner convicted of an especially grave
crime, 29 June 2016.
128. FIDH-HRC ″Viasna″ mission interview with Andrei Paluda, 29 June 2016.
129. ″Conditions of detention in the Republic of Belarus,″ https://www.dh.org/IMG/pdf/Belarus500ang2008.pdf.
130. Report on the results of monitoring places of detention in Belarus, 2015, http://spring96.org/les/book/en/2015_
prison_conditions_en.pdf.
131. ″Death Row Secrets. Part 1,″ http://spring96.org/en/news/83354.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
60
Floor plan of death row cells No. 102, 103 and 104 in Pretrial detention centre No. 1 in Minsk, 2006. Source: HRC ″Viasna″
Another witness K. described in detail the windows in the cell: ″From the inside the windows has
narrow-meshed bars preventing the prisoners from reaching the window. Behind the glass are the so-
called ‘eyelashes’ (sun blinds that cover the bottom part of the window and only allow the prisoner to
see the sky) that are covered with ne-meshed netting from the outside. The dim light coming from the
window allows the prisoners to tell whether it’s day or night.″
132
Former staff of the Pretrial Detention Centre No. 1: ″From the very beginning, they face maximum security
restrictions. It’s not written down, but in fact it’s exactly the same. They receive a strip [a special label] in their
case les: inclined to escape, attacks on the administration, committing suicide. Because of this, the attention
to them is immense. The rules prohibit them to lie or sit on the berths from 6 am to 10 pm. They usually walk
around the cell all day long. The death convicts have to wear special clothes. When they sleep, they should
keep their hands above the blanket, no matter what their position is: on their back or on their stomach.
Death convicts are never taken out for a walk. This is prohibited by the law. Yet, there is a small yard in the
new building. The death convicts are usually brought there after lunch for a while, because at that time the
walls in their cells are checked with wooden mallets. Sometimes, they can be locked in the shower, but most
often they are kept in the yard. Each time a death convict leaves the cell, for example, to go to another building,
there’s additional guarding by dogs. This requires the presence or an order by the facility head.″
133
The latter information is conrmed by the former head of the Pretrial Detention Centre No. 1 Aleh Alkayeu
in an interview ″A murder is always a murder,″ published in the book ″The death penalty in Belarus″:
134
132. ″Death Row Secrets. Part 1,″ http://spring96.org/en/news/83354.
133. ″Death Row Secrets. Part 1,″ http://spring96.org/en/news/83354.
134. ″The Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 67.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
61
Death row cell in pretrial detention centre No. 1 in Minsk, 2006. Source: HRC ″Viasna
″
″In order to open the door to death row, one has to invite the prison chief. The cell cannot be opened without
his order. No one was ever beaten in the presence of the chief. The chief, it's me. To take the prisoner out of the
cell, an order from the chief is required. At all other times, they only open the small window. You can’t beat or kill
anyone through the window. The cell is also opened during inspections: the controllers check it with wooden
mallets and batons. It happened every day from 1 to 2 pm on the orders of the chief. The door is opened to
take them out to the bathroom, as well as for the execution of the sentence, they are also sometimes escorted
to see a visitor. They know about the meetings, as a rule; they are notied beforehand that the meeting will
take place; they also write to their lawyers. And all the other procedures that are prohibited by the rules terrify
them.″
135
Uncertainty concerning the date of execution leads to a permanent anguish.
As mentioned above, death convicts are issued a special uniform with an inscribed abbreviation
of the words ″Exceptional measure of punishment″ which they must wear all the time.
136
″While we were waiting in line to drop off our packages, people who were in the room with me were
saying that it was 50 degrees in the cells, that their skin was peeling off,″ accounts a daughter of one
of the death convicts.
137
Moreover, reports of family members and lawyers collected during the mission have proven that the
difference in treatment of convicts before and after the sentence enters into effect is staggering. For
example, according to Anastasia Palchevskaya, the sister of Siarhei Khmialeuski currently on death row,
after he was sentenced to death by the Judicial Collegium for Criminal Cases of the Minsk Regional Court
and placed in Pretrial Detention Centre No. 1 on Valadarski Street in Minsk, there was a dramatic change in
how prison staff treated him. According to Khmialeuski, he was frequently subjected to verbal taunts and
psychological pressure from prison staff. The main point of this was to show that Khmialeuski’s fate had
already been decided, even though at that time the appeal court had not reviewed his cassation appeal.
The daughter of Henadz Yakavitski, who is also currently on death row, noticed a similar sharp change in
how her father was treated: ″Since the sentence took effect, we had many problems handling administrative
135. ″The Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 135.
136. ″Death Row Secrets. Part 2,″ http://spring96.org/en/news/83398.
137. FIDH-HRC ″Viasna″ mission interview with Aliaksandra Yakavitskaya, daughter of a convict on death row Henadz
Yakavitski, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
62
procedures, like changing his passport, or bequeathing property. At rst they didn’t want to issue him a
passport at all. During one of our meetings, we were talking about how it takes a long time to receive a new
passport. The staff members in the room with us laughed and said, ‘You still have a little time left.″
138
Barriers to realizing civil, legal, and family relationships violate Belarusian law, which reads that a
person sentenced to death has the following rights:
1) to le a petition for pardon in conformity with the procedure established by the law (the procedure
of ling an application for clemency and its consideration is regulated by the Regulation on the
procedure of pardoning of convicts, approved by Presidential Decree No. 250 of December 3, 1994;
2) to meet with lawyers and other persons entitled to render legal assistance, without limitation of
the number and duration of meetings;
3) to receive and send letters without restriction;
4) to have one short visit with close relatives every month;
5) to receive one parcel or transfer every three months in the order established by the administration
of the correctional institution; to purchase foodstuffs and essentials every month in cashless
transactions, using the money that are put on his personal account, including those received by
mail transfer, within the limits established for the persons who are held in maximum security prisons;
6) to register the necessary civil, legal and family relations in accordance with the law;
7) to have meetings with a priest;
8) to receive necessary medical assistance.
139
Thus, the rights of death convicts enshrined in laws of the Republic of Belarus are being
systematically violated, often referring to internal rules of detention facilities imposed on death
convicts. Interviewees of the FIDH-HRC ″Viasna″ mission shared information that condential
meetings with attorneys are refused to death convicts on the basis of internal instructions of the
Pretrial Detention Centre No. 1 stating that personnel must ″provide for oversight and security.″
140
Thus, death convicts cannot privately meet with their lawyers, and the meetings themselves take
place only following a written application by the prisoner.
141
It is important to emphasize here that
the interviewees - family members of death convicts and lawyers - pointed to the fact that they
systematically do not receive letters from the Pretrial Detention Centre No. 1.
The daughter of Henadz Yakavitski, currently on death row following the Supreme Court ruling
of April 2016 to uphold the death sentence, told the FIDH-HRC ″Viasna″ mission: ″Since the death
sentence entered into effect - it's been three months now - we systematically do not receive letters from
him. So I am in a permanent state of uncertainty about his state and whether he’s alive at all. Since
April we have learned about an execution of one death convict and I had no possibility to nd out what
happened to my father. When I saw him at our next meeting, I asked him to write me. He told me that
he had. I called everyone he had written, but none of these letters have ever arrived.″
142
Mission interviewees believe that obstacles to correspondence are caused by the overall secrecy
associated with the death penalty in Belarus.
138. FIDH-HRC ″Viasna″ mission interview with Aliaksandra Yakavitskaya, daughter of a convict on death row Henadz
Yakavitski, 29 June 2016.
139. Art. 174 of the Criminal Law Enforcement Code of the Republic of Belarus [available in Russian: http://pravo.kulichki.
com/vip/uik/00000014.htm#g22.]
140. FIDH-HRC ″Viasna″ mission interview with a lawyer of one of the death convicts.
141. FIDH-HRC ″Viasna″ mission interview with a lawyer of one of the death convicts.
142. FIDH-HRC ″Viasna″ mission interview with Aliaksandra Yakavitskaya, daughter of a convict on death row Henadz
Yakavitski, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
63
Andrei Paluda thinks that the Penitentiary departement ″stopped letting letters through so that no
one would able to learn about the convict’s situation, i.e. if he was still alive. We had one case where
a convict numbered his letters. That is how we could tell if he was alive on a certain day. Now prison
personnel doesn’t allow this, they don’t allow relatives to know if a convict has been shot or not″.
143
In regards to the right to meet with relatives, it is important to note that relatives must rst arrive
at the detention centre to ll out an application for a visit. After a few days they are notied of the
date appointed for the meeting.
″You can’t have a meeting the day of the lling of the application because there are special procedures
to be prepared in advance to deliver a death convict to a meeting room, explains Andrei Paluda. "All
the staff are to stay away from the path to be taken by the convoy, no one is allowed to walk around the
prison, and all the doors are locked except for the ones the convict is led through for his meeting. In fact,
he is not being led but dragged by the convoy, bent towards the ground, as quickly that his feet almost
do not touch the ground. One witness said that it was as if he flying through as a bird".
144
Death row inmates are forced to walk with their heads bent down their knees and hands in handcuffs high above their backs.
In the photo: prisoners being brought out in Jodinsk Prison No. 8.Source HRC ″Viasna″.
Tamara Sialiun, mother of Pavel Sialiun executed in 2014, conrms: ″He was bent over to the floor
as a convoy of 10 people led him along. When I saw the number of guards they deploy to bring my son
to see me, I couldn’t help myself and asked ironically whether they needed to call for more guards.″
145
In a letter written by death convict Ivan Famin to the HRC ″Viasna″ in 1999, he writes:
″There is real hell here...we are beaten for literally everything... you are beaten for writing an application to
the medical department or calling a priest for confession. They also beat us if they are in a bad mood.″
146
143. FIDH-HRC ″Viasna″ mission interview with Andrei Paluda, 29 June 2016.
144. FIDH-HRC ″Viasna″ mission interview with Andrei Paluda, 29 June 2016.
145. FIDH-HRC ″Viasna″ mission interview with Tamara Selyun, mother of death convict Pavel Selyun, 29 June 2016.
146. ″The Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 135. p. 49.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
64
Current legislation and law enforcement practice related to the secrecy of executions - the date
of the execution is not communicated to the convict or to his family - together with detention
conditions that amount to inhuman treatment have driven at least two death convicts to suicide.
147
Another likely reason of their suicide is that, in the event of a suicide, bodies are returned to the
families. There were reports of other death convicts cutting their veins when shaving:
″The death convicts are given razors to shave. The convicts have to shave themselves and return the
razors through a window. The guards watch them through these windows every 6-7 minutes. And
suddenly a guard sees a convict cut his veins. Under the prison rules, only the prison head has the right
to open the cell doors. He had to call the management to open the doors and prevent the convict from
suicide. They saved him that time, but the suicide cases by cutting veins or neck are rather frequent as
a result of psychological breakdown″.
148
The fact that the application of the death penalty in Belarus is shrouded in secrecy means that
any information about detention conditions or the condition of death convicts is also secret. It is
forbidden to speak about detention conditions during meetings.
Aliaksandra Yakavitskaya, daughter of Henadz Yakavitski, recounts: ″They brought him in with his
head bent over so low as if he could shoot from his eyes. I was warned not to say anything extra to him.
There’s a sign in the meeting room prohibiting conversation about a number of issues: you can’t talk
about the criminal case, you can’t give any names or addresses, you can’t take photographs, you can’t
knock on the glass, you can’t move around, you can’t talk about detention conditions. Meetings take
place in the presence of convoys″.
149
II.7. EXECUTION
A death sentence that has entered into effect shall be carried out after an ofcial notication is
received that an appeal and an application for pardon have been denied. In accordance with Art.
175 of the Criminal Law Enforcement Code, the death penalty shall be carried out by ring squad
with no public present. The execution of the death penalty shall be carried out separately for each
convict and without other death convicts present.
The execution date is not communicated. A convict spends months in death row which constitutes
in itself a tough challenge to a human mind. On average, death convicts await execution for about
a year, but there were cases of quick executions, as in the case of Kavaliou and Kanavalau who
were executed less than four months after their verdict came into force. Marozau, Danchanka and
Harbaty whose case is analysed above, also spent only four months on death row.
The convict is executed moments after he's read an ofcial notication on the denial of the
Presidential pardon.
The former head of the Pretrial Detention Centre No. 1 Aleh Alkayeu in an interview to the campaign
″Human Rights Defenders against the Death Penalty in Belarus″ conrmed that convicts are in a
state of extreme psychological tension during the period from pronouncement of the sentence
147. The exact circumstances of the suicide are not known. The case was reported by Aleh Alkayeu, former head of the
SIZO 1 in Minsk where death convicts are executed. The information was retrieved from the book ″Death penalty in
Belarus″ where Aleh Alkayeu explains: ″There is a certain paradox in this situation, if a death row convict is killed in
the cell or commits a suicide before the execution, his body will be issued. There was a case in Minsk where two
inmates hung themselves on one rope in turn.″
148. FIDH-HRC ″Viasna″ mission interview with Siarhei Sys, 27 June 2016.
149. FIDH-HRC ″Viasna″ mission interview with Aliaksandra Yakavitskaya, daughter of a convict on death row Henadz
Yakavitski, 29 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
65
until the execution (see above). Aleh Alkayeu, who executed himself and supervised executions
when in ofce, describes the shooting by squad:
″Through the underpass, employees of the special squad began to take out the convicts one by one. They
were dressed in striped clothes and had slippers on. Their hands were tied behind their backs. They trembled
either from cold or from fear, and their crazy eyes radiated such a real horror that it was impossible to
look at them. Then the procedure of reading out the President’s decision began. The prosecutor routinely
specied the personal data of the person standing in front of us, then as usual he announced a decision
to refuse pardon...The convict’s eyes are bandaged so that he could not be oriented, and he is taken to an
adjacent specially equipped room, where the executioner is waiting with a loaded gun. At a signal from
the executioner two members of the squad lower the convict on his knees before a special bullet-stopping
shield, after which the executioner shoots him in the head.″
150
A representative of the detention center, a prosecutor and a doctor are present during the execution.
Other persons may be allowed to be present upon the permission of the prosecutor. The rst person
to approach the body is the doctor – to certify death.
An employee N. of the Pretrial Detention Centre No. 1, or ″Valadarka″ prison, told human rights
defenders about the signs indicating to the guards and to other inmates the exact time of executions.
Moreover, the death convicts can tell from the sound of the steps, who is coming for them:
″When a death sentence is executed, all the guards are removed from jail, usually at night, so that the
prisoners could not learn about it and arrange an escape or rebellion. Everyone is forced to leave except
for one assistant chief on duty. It is most likely that all the employees are kept in the yard.
Every employee knows that when they are removed from their sentry, there’s an execution in progress,
since they can only be removed on one occasion.
They shoot them in Valadarka, it is very convenient. The bodies are transported to the morgue, and then
to the North Cemetery and cremated.″
151
It should be added that human rights activists do not entirely share this view, as there is alternative
evidence pointing to the fact that the executed prisoners are buried in numbered graves for
unidentied persons so that they could be later exhumed. Here is what Slavamir Antanovich wrote
in his book ″Prisoners of the Piščalaŭski Castle″ (another historical name of Pretrial Detention Centre
(SIZO) No. 1), about the most classied phase of the death penalty application giving the execution
of Aliaksandr Mezin in 1991 as an example:
″The doctor was the rst to enter the execution room, all the rest followed him. ... The execution was
documented in a report. Mezin’s body was taken to the morgue in one of the Minsk hospitals where the
doctor took the bullet out of the head and issued a death certicate. Using the certicate, the following
day the ofcers of the ring squad received in the specialized burial facility on Aĺšeŭski street a cofn
in which they buried the executed prisoner next to the homeless and other unidentied persons.″
152
150. ″Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 137.
151. ″The Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 138. [English edited]
152. Ibid, p. 137.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
66
II.8. POST-EXECUTION. VIOLATION OF THE RIGHTS OF
RELATIVES: ″THE WORST IS NOT KNOWING″
153
As mentioned above, the authorities disclose neither the date of the execution nor the place of
burial. The body of the executed is not handed over to relatives. This is explained by the wish to
avoid desecration of the bodies of those who committed serious crimes. Such practice, however,
causes continued anguish and mental stress to relatives of death convict.
Such a state of affairs gives rise to various insinuations among relatives but also among the public
suggesting that the refusal to hand over bodies of death convicts presupposes their use for other
purposes, such as organ transplant:
″If they had said, ‘Come and see,’ I would have believed it all. But the body was not returned to me. I can’t
understand why. You know, they can do anything they want with bodies after execution,″ said Tamara
Sialiun, mother of Pavel Sialiun.
154
Furthermore, contrary to the national legislation, not only the relatives are not informed of the date
of the execution, but the very fact of the execution itself is not communicated:
″It was only after a great deal of effort that I received notication that the death penalty had been carried
out. But I don’t believe anything that was written in this country.″
155
Journalists covering the topic of death penalty have also reported to the mission the difculty they
face in accessing information about execution of concrete death convicts:
Adarya Gushtyn accounts: ″In 2014, I contacted the Mahilioŭsk Regional Court to receive information
about the execution of Vasil Yuzepuchuk, since no one had received any information about him. That time,
the court sent an ofcial notication that the death penalty had been carried out, but when I contacted
the Supreme Court with a similar request regarding execution of the sentence of Eduard Lykau, I received
a reply that this was not part of court's competence.″
156
According to Art. 175 of the Criminal Law Enforcement Code, the management of the institution
where the death penalty is carried out noties thereof the court that handed down the death
sentence. The latter in turn must notify one of the relatives. However, the law does not stipulate
the terms for notication, which allows for a situation when relatives are notied a month after the
execution or even later. The law does not provide at all for notication of society of the execution.
It is common practice, although not established by national law, to return to relatives certain personal
belongings of the death convict. They are mailed by post unaccompanied by any note once the
death sentence is brought into effect. In some cases, this was how relatives learned about the
execution. Some of the personal items, such as notes, diaries, letters, are not be returned to relatives.
Meanwhile, if relatives le complaints against the practice of non-return of personal items, the prison
administration refers to the Art. 175 which does not regulate the question of personal belongings
at all.
153. FIDH-HRC ″Viasna″ mission interview with Tamara Sialiun, mother of death convict Pavel Sialiun, 29 June 2016.
154. FIDH-HRC ″Viasna″ mission interview with Tamara Sialiun, mother of death convict Pavel Sialiun, 29 June 2016.
155. FIDH-HRC ″Viasna″ mission interview with Tamara Sialiun, mother of death convict Pavel Sialiun, 29 June 2016.
156. FIDH-HRC ″Viasna″ mission interview with Adarya Gushtyn, 28 June 2016.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
67
″My son kept a diary in prison, but it was not returned to me″,
157
shared Tamara Sialiun. After the
execution of her son, she led a request with the Penitentiary Department to hand over her son's
personal belongings. On 22 May 2014, she received therefrom a strikingly cynical reply claiming
that ″Under a court ruling, on 18.04.2014 Sialiun Pavel Nikolaevich was removed from the Minsk
Pretrial Detention Centre No. 1 with his personal belongings.″
Ofcial reply of the Penitentiary Department of the Ministry of the Internal Affairs of the Republic of Belarus dated 22 May 2014
to T.N. Selyun (Sialiun), mother of Pavel Selyun (Sialiun), who was executed in 2014. Source: HRC ″Viasna″
After the execution of her son, Liubou Kavaliova also received a parcel with her son’s belongings
from the KGB pretrial detention centre. However, the notes Uladzislau Kavaliou took during and
after the trial were missing.
158
According to available information, Kavaliou and Kanavalau were
kept in KGB pretrial centre and transferred to the Pretrial Detention Centre No. 1 for execution only.
On several occasions, relatives had led lawsuits on the cruelty of the current legislation preventing
them to be handed over the body of the executed. These efforts have so far not produced any
tangible results.
After repeated appeals to the Ministry of Internal Affairs, to the Penitentiary Department and
to the Supreme Court requesting notication on the fate of her son, handover of his personal
belongings, disclosure of his place of burial or return of his body for burial, Tamara Sialiun
received merely her son's prison uniform with inscription on the back ″ИМН,″ meaning in
Russian the abbreviation of ″Exceptional measure of punishment.″ Pavel Sialiun wore the given
157. FIDH-HRC ″Viasna″ mission interview with Tamara Sialiun, mother of death convict Pavel Sialiun, 29 June 2016.
158. ″The Death Penalty in Belarus,″ https://www.dh.org/IMG/pdf/knyga_en_web_1_.pdf, p. 200.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
68
uniform during detention awaiting execution. Tamara Sialiun saw him wearing it during a few visits
she had with her son, including the last time she saw him.
″After everything that happened, I received a notication from the post ofce to pick up a parcel from
Minsk. It was the robe and boots of my son. When I got home, I just didn’t know what to do.″
159
Afterwards
Tamara Sialiun experienced severe mental stress. She cut up the uniform with an axe and burnt it
close to her house. Even now, more than two years later, she claims her memories of that day cause
tremendous mental suffering. Assisted by human rights defenders, she led a complaint with the
UN Human Rights Committee on cruel treatment of her son and herself.
160
Prison uniform of Aliaksandr Hrunou executed in 2014. The uniform was sent to Hrunou’s family after execution.
Source: HRC ″Viasna″
159. FIDH-HRC ″Viasna″ mission interview with Tamara Sialiun, mother of death convict Pavel Selyun, 29 June 2016.
160. ″A complaint on inhuman treatment in Belarus sent to the UN″ [available in Russian: https://charter97.org/ru/
news/2016/9/1/220283/comments/].
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
69
Case of Pavel Sialiun (In UN decision Pavel Selyun)
161
On 7 August 2012, Pavel Sialiun was arrested and brought to the police station of the
Oktyabrsk district in the city of Hrodna. He was unknown to the law enforcement bodies
since he was not previously convicted of any crime. He was charged with murder of two
persons, theft, stealing passport and other important documents, and mutilation of a dead
body committed on 5 August 2012.
When he was brought to the police station on 7 August 2012, he was put on the floor and
beaten by several police ofcers. He was then interrogated and told that if he cooperated, it
would help his case and he would only get years of imprisonment. The police ofcers also
threatened that, if he did not confess, he would be subjected to sexual violence by other
inmates. Ofcers also threatened to charge his brother with crimes. The author complained
about this physical and psychological abuse during the trial, but the court considered that
no violations against the author had taken place. During the initial interrogation on 7 August
2012, the police ofcers did not provide the author with a lawyer.
During more than six months of pretrial detention, the author did not have effective and
continued access to his lawyers, and that the majority of the investigative actions, such as
cross-examinations and interrogations, took place in the absence of a lawyer.
During the trial, he reported to have been placed in solitary connement, that he was stripped
of his clothes and left wearing only his underwear, that he was not given food, water or
access to sanitary facilities. The author complained in court that the confessions that he
had signed had been extracted under torture, and should not be retained as evidence. All
these complaints were ignored by court.
Pavel Sialiun was kept in a metal cage throughout the court hearings. A convoy of four
ofcers forced the author to walk with his head bent down close to his knees, a special
treatment for persons facing the death penalty.
His case was widely publicized in state-owned media even before the beginning of the court
trial, and a popular TV channel in Belarus described him as a ″criminal.″
After the verdict was announced, the author was forced to wear a special robe with an
acronym which indicated that he had been sentenced to death, even though the verdict
had not yet entered in force.
On 2 October 2013, the UN Human Rights Committee registered the individual complaint of
Pavel Sialiun on the matter or imposition of death penalty after an unfair trial and requested
the Belarusian authorities not to carry out the death sentence while the case was under
examination by the Committee. On 19 December 2013, the Committee reiterated its request.
Despite the Committee's requests, on 18 April 2014, Pavel Sialiun was executed.
In the end of 2015, the UN Committee concluded in its Views that Belarus had violated Pavel
Sialiun's right to life, right not to be subject to torture and degrading, inhuman treatment,
right to be brought promptly before the judge, the right to be presumed innocent, the right
to legal defence and not to be forced to testify against himself.
161. From the UN Human Rights Committee Communication No. 2289/2013, Views taken in October - November 2015.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
70
CONCLUSION
In Belarus, a number of violations accompany the application of the death penalty. Besides the
infringement of the right to life, the death penalty is being applied in judicial proceedings that
curb the right to due process and fair trial. Torture and ill-treatment are being widely used to
force suspects to self-incriminate in the absence of a lawyer. The right to legal defence is being
systematically violated. Moreover, as reported by the interviewees of the mission, lawyers and
judges in Belarus generally lack independence, as does the judicial system as a whole.
In such a context, the probability of a wrongful conviction is very high. Irreversible wrongful
convictions have already resulted in the death of innocent people during the Soviet period, as the
case of Mikhalevich demonstrated. The current authorities deny that innocent people are being
executed, however, several cases, including the case of Ivan Famin, executed in the late 1990s,
and the case of Kavaliou and Kanavalau, that left multiple questions unanswered, give rise to even
greater mistrust in the judicial system of Belarus. The case of Mikhail Hladki, who avoided the
death penalty but spent seven years in prison for a murder he did not commit, is another blatant
example of the country’s dysfunctional justice system.
In a number of cases presented in the report, judicial proceedings failed to establish guilt beyond a
reasonable doubt. Using self-incrimination as the main element for the prosecution often results in
the lack of due investigation of the evidence and subsequently in hasty court proceedings. Multiple
pieces of evidence demonstrate that self-incrimination is obtained under torture, and that physical
and psychological pressure is used during investigation, especially during its preliminary phase,
which gives rise to mistrust of court sentences.
Systemic denial of the right to private consultations with a lawyer as well as to sending and
receiving correspondence leads to anguish and prevents relatives from receiving ofcial documents
from prison, for instance, a power of attorney to administer property or to send a communication
to the UN Human Rights Committee (UN HRC).
So far, Belarus has systematically disrespected its international obligations under the ICCPR and its
Protocol endowing the UN HRC with the authority to examine individual complaints of Belarusian
citizens. Belarus has not only disregarded the recommendations by the UN HRC, but it has also
proceeded with the executions despite Committee’s requests to halt their enforcement pending
an examination of the complaint by the Committee.
Detention conditions in Belarus in general are highly unsatisfactory and amount to ill-treatment
prohibited by the International Covenant on Civil and Political Rights (ICCPR), the UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other
international treaties ratied by Belarus.
Prisoners on death row are kept in total isolation, in complete uncertainty on their fate. and face
a number of violations of their rights. Prison personnel consider them as not being among the
living. Being under enormous psychological pressure, they are not allowed out for a walk and are
particularly vulnerable to cruel and degrading treatment due to their complete isolation. Death
convicts are ofcially forbidden from reporting about detention conditions to their lawyers and
relatives and are subjected to humiliating treatment during the entire period of detention until
execution. For instance, they are being transferred for visits - with a lawyer or relatives - in a
humiliating pose by a convoy of several people carrying the convict bent down to his knees. This
treatment cannot be explained by security measures.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
71
Secrecy surrounding the topic of the death penalty in Belarus, including the issues of detention
conditions, execution date and place of burial contrasts sharply with public statements by public
ofcials and the media violating the presumption of innocence and other international norms of
a fair trial by disclosing investigation information and by broadcasting the accused on television
and referring to him as a ″criminal″ ahead of the court sentence.
Relatives of death row prisoners suffer terrible psychological anguish due to uncertainty and
helplessness when faced with a blind and indifferent but not independent Belarusian justice
system. They are in complete isolation from their relatives knowing that their days are numbered.
Their communication is hindered and in many cases even impossible. Finally, the date of the
execution is not communicated and corpses are not returned to families. As a result, families
do not even know the date of death and are deprived of the right to bury him in accordance with
family traditions.
In 2016, Belarus has already convicted to death penalty three persons: Henadz Yakavitski, Siarhei
Khmialeuski and Siarhei Vostrykau. Ivan Kulesh sentenced to death in 2015 awaits execution. Thus
at the moment of the issue of the present report, four people are on death row. After the third death
sentence in 2016 handed down to Homieĺ resident Siarhei Vostrykau on 19 May, the Belarusian
justice system seems to have taken ″a break″ that might be related to the election campaign.
However, if the concerns of human rights defenders prove to be correct and the number of death
sentences rises by the end of the year as they fear, in 2016 Belarus will have handed down the
highest number of death sentences since 2007.
One can note that the number of death sentences has risen since the lifting in February 2016
of most EU restrictive measures against individuals responsible for human rights violations in
Belarus. This tendency seems to question the approach described in the February 2016 Foreign
Affairs Council Conclusions. The ″opportunity for EU-Belarus relations to develop on a more positive
agenda″
162
and to obtain ″progress in a variety of elds″ must be tested against the reality of
concrete developments in the country in the sphere of the rule of law.
FIDH and HRC ″Viasna″ believe that the EU should state more explicitly that measures towards
the abolition of the death penalty are among the main ″tangible steps″ expected to further develop
relations between the EU and Belarus. On the other hand, the EU should state that the February
2016 review of restrictive measures is reversible and that the February 2017 review could well
re-extend sanctions in the case of serious human rights violations.
The Belarusian authorities and rst and foremost the President of the Republic of Belarus have to
prepare society for the abolition of the death penalty, or at least for a moratorium on executions.
Accounts presented in the present report, unfortunately, demonstrate a regressive trend. The head
of state and state institutions under his control support the death penalty. Statements by the
President, like the one quoted in the epigraph of the present report, resemble rather a caveman's
call for revenge than a President's assessment of a criminal case.
Apart from taking measures aimed at the application of the death penalty, the Belarusian
authorities have to launch serious reforms in the spheres of criminal procedural legislation and the
penitentiary in order to eradicate cruel treatment of detainees. Such reforms require public debates,
consultations with independent experts, nongovernmental organisations and intergovernmental
structures (the Council of Europe and the EU). Accordingly, such reforms can only be successful
162. ″Council Conclusions on Belarus″, http://www.consilium.europa.eu/en/press/press-releases/2016/02/15-fac-
belarus-conclusions/.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
72
if non-governmental organisations are not hampered in their work and freedom of expression
and media is ensured. Moreover, the Belarusian authorities have to regularize the status of NGOs
whose registration had been revoked in the past and to establish a dialogue with all actors of local
civil society, as well as with the European and international structures.
Third countries have to abstain from extraditing to Belarus. Due to inhuman treatment of detainees
and lack of effective legal defence in criminal proceedings, extradited persons risk torture or even
death.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
73
Recommendations
To the Government of Belarus:
Regarding the use of the death penalty:
• Impose an immediate moratorium on death sentences and executions as the rst step towards
its abolition;
• Regularly provide society with complete and timely information about the use of the death
penalty and make information on the executions public;
• Ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights
(ICCPR), which is aimed at abolishing the death penalty;
• During the upcoming session of the UN General Assembly, vote in favour of the UN resolution
calling for a global moratorium on death penalty, or abstain;
• Encourage public dialogue on the death penalty from the standpoint of human rights and
compliance with international law, taking into consideration the experience of countries that
have imposed a moratorium or abolished the death penalty;
• Comply with recommendations regarding the practice of the death penalty, the administration
of justice, and the prevention of torture, addressed to the authorities by the UN Human Rights
Committee and other UN human rights institutions and mechanisms, including the UN Special
Rapporteur on the situation of human rights in Belarus and the Working Group on Arbitrary
Detention, namely to:
• Provide family members of the executed with information about the exact location of the
burial site and with compensation for the anguish suffered, and prevent similar violations
in the future;
• Publish the UN Human Rights Committee's Views in Russian and Belarusian languages;
• Provide individuals, whose ICCPR rights have been violated, with an effective remedy,
including an impartial, effective and thorough investigation into torture claims and
complaints, to prosecute those responsible, to ensure the right to an adequate
compensation for the anguish suffered and to prevent similar violations in the future;
• Pursuant to the First Optional Protocol to the ICCPR, cooperate in good faith with the
UN Human Rights Committee, particularly in terms of implementing the Committee’s
requests to apply interim measures not to carry out death sentences while cases are
under examination by the Committee;
• Amend Art. 175 par. 5 of the Criminal Law Enforcement Code to bring it into compliance
with Belarus' obligations under Art. 7 of the Covenant;
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
74
• Respect its international obligations under the First Optional Protocol to the ICCPR,
in particular its Art. 1, which obligates parties to recognise the competence of the UN
Human Rights Committee to receive and consider communications from individuals
subject to its jurisdiction who claim to be victims of a violation by Belarus of any of
the rights set forth in the ICCPR. Violation of Art. 1 of the Protocol by Belarus has been
repeatedly conrmed by the UN Human Rights Committee.
Regarding the administration of justice:
• Guarantee the independence of the judiciary by setting clear rules regarding the process for
appointing judges, their promotion and dismissal; appoint judges for life, without a probationary
period; abolish the institution of ″assistant judges″;
• Guarantee the right to appeal death penalty sentences through a proper appeal process that
would provide for a legal evaluation of the facts and evidence;
• Revoke the authority of higher courts to have a case sent up from a lower court for consideration
as the rst instance court;
• Introduce a judicial procedure to sanction pretrial detention in accordance with Art. 9
of the ICCPR;
• Introduce the right to appeal in court the actions and decisions of the investigation affecting
the rights and freedoms of accused people and victims;
• Ensure the independence of bar associations;
• Adopt laws to prevent cases of torture;
• Ensure an independent and impartial investigation of torture claims; at a national level, introduce
the institution of Ombudsman and other preventive measures to prevent torture;
• Establish criminal, civil, and administrative sanctions for violating legislative procedures
(regarding arrest, interrogation, treatment of prisoners);
• Ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment in its entirety (make a statement on Art. 21 and Art. 22 of the Convention),
ratify the Additional Protocol (Istanbul Protocol) to the Convention, which establishes a system
for independent international groups to pay regular visits to detention facilities in order to
prevent instances of torture and other forms of cruel, inhuman or degrading treatment, ratify
the International Convention for the Protection of all Persons from Enforced Disappearance;
• Submit periodic state reports to the UN Committee against Torture and to the UN Human
Rights Committee;
• Deliver a standing invitation to representatives of UN special procedures and provide an
afrmative answer to the request of the UN Special Rapporteur on Torture to visit the country
(this request was delivered in 2005);
• Ratify the European Convention for the Prevention of Torture, Inhuman or Degrading Treatment
or Punishment;
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
75
• Cooperate with OSCE institutions working on the human dimension, particularly with the Ofce
for Democratic Institutions and Human Rights;
• Comply with the obligations undertaken within the framework of OSCE documents, particularly
regarding the rule of law and civil and political rights, as well as regarding Belarus’ obligations
to provide society with information on the use of the death penalty.
Regarding detention conditions:
• Immediately amend the detention rules for individuals sentenced to the capital punishment in
order to avoid their needless suffering and the anguish of their relatives;
• Guarantee that both pretrial and prison detention conditions conform to international human
rights standards, particularly in relation to a full ban on torture, inhuman or degrading treatment
and punishment (Art. 7 of the ICCPR); the Standard Minimum Rules for the Treatment of
Prisoners; the Basic Principles for the Treatment of Prisoners; and the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment;
• Separate the functions of investigation and detention facilities management by transferring
management of the latter to the Ministry of Justice;
• Guarantee regular checks of detention facilities by the prosecutor’s ofce;
• Guarantee international and local NGOs access to places of detention;
• Ensure that victims of human rights violations in detention obtain adequate compensation that
includes compensation for harm caused to health;
• Organize awareness raising training on human rights for the personnel of penitentiary
institutions;
• Adopt legislative amendments to include the denition of torture used in the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, dismiss
staff members of the Ministry of Internal Affairs who have been involved in the use of torture,
to conduct prompt, impartial, and thorough investigations of torture claims and prosecute
violators.
To the new members of the 6th Convocation of the House of Representatives:
• Hold parliamentary hearings on the death penalty and continue parliamentary work aimed at
imposing a moratorium and subsequently abolishing the death penalty.
To the United Nations:
To the UN Human Rights Council:
• Continue raising the issue of the death penalty in Belarus;
• Continue urging Belarus to ratify the Second Optional Protocol to the ICCPR, which is aimed
at abolishing the death penalty.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
76
To the UN General Assembly:
• Member states of the UN General Assembly must pay particular attention to the situation of
human rights in Belarus, including detention conditions and the use of the death penalty.
To the Human Rights Committee:
• Monitor implementation of the Committee’s recommendations in cases regarding the use of
the death penalty and raise with the Belarusian authorities the issue on their nonobservance;
• Insist on receiving from the Government of Belarus information on measures taken to implement
the Committee’s Views and on making the latter public in Belarusian and Russian languages.
To the UN Ofce in Belarus:
• Encourage public debate on the use of the death penalty in Belarus and on the experience of
countries that have imposed a moratorium or abolished the death penalty;
• Include all actors of civil society in public debate regardless of their legal status.
To the European Union and EU member states:
• Continue to consistently and strongly condemn death sentences and executions;
• Follow-up on each case of execution and ask the authorities to provide reports on the judicial
process that led to the death sentence, on the conditions of detention on death row, and on
the circumstances surrounding the execution, in order to put an end to the systematic state
policy of keeping information about the death penalty secret;
• Draw attention to the issue of detention conditions within the framework of the dialogue with
the Government of Belarus on various levels, particularly in the event of EU Troika meetings;
deliver a demarche addressed to the Government of Belarus on the basis of the information
set forth in this report, following the EU Guidelines against Torture and other Forms of Cruel
and Degrading Treatment;
• Clearly state that the EU considers a moratorium on the death penalty as one of the major
″tangible steps″ which, once met, would be ″key for the shaping of the EU's future policy towards
Belarus″ (Foreign Affairs Council Conclusions on Belarus, 15 February 2016);
• Pending a moratorium or abolition of the death penalty, call on the President to pardon death
convicts and commute death penalty verdicts;
• Clearly indicate that the February 2016 decision not to prolong restrictive measures is not
irreversible and that sanctions may be reintroduced in the event of serious human rights
violations;
• Provide technical support to Belarusian government with an aim to:
• Reform the Criminal Code;
• Reform the judicial system to guarantee its complete independence and to guarantee the
right to fair court proceedings, the presumption of innocence, and protection mechanisms
to prevent confessions made under torture;
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
77
• Reform the penitentiary system to eliminate inhuman and degrading treatmentof
prisoners, particularly those on death row.
• Support public debate on the question of abolishing the death penalty and involve international
experts and all actors of Belarusian civil society regardless of their legal status.
To the OSCE:
• The Ofce for Democratic Institutions and Human Rights (ODIHR) has a broad mandate in
monitoring obligations undertaken by the states in the sphere of the human dimension. The
ODIHR must carefully monitor detention conditions in Belarus and in particular the use of the
death penalty, and consider the possibility of creating projects to cooperate in the sphere of
the human dimension to eliminate the death penalty;
• The OSCE Parliamentary Assembly must draw attention to the facts set forth in this report
and call on the Belarusian government to take legislative measures to bring its legislation into
compliance with international standards.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
78
ANNEX 1
Non-ofcial English translation of the ofcial reply from the Penitentiary Department of the Ministry
of Internal Affairs of Belarus to Tamara Sialiun's request to hand over her son's personal belongings.
Ministry of Internal Affairs
Republic of Belarus
Administration of the Penitentiary Department
for Minsk and Minsk Oblast
Pretrial Detention Centre No. 1
2 Valadarski Street
Minsk, 220050
tel. 200 63 83 fax 200 49 60
22 May 2014 No. S-6
T.N. Sialiun
3 2nd Lugovoy Pereulok
Vileika, 222410
Minsk Oblast
This is to inform you that your request has been reviewed by the institution’s administration.
On 18 April 2014, Pavel Mikalayevich Sialiun and his personal items were removed from
Pretrial Detention Centre No. 1 in Minsk in accordance with the court’s sentence.
This is also to inform you that, in accordance with Article 175(5) of the Criminal Code
of the Republic of Belarus, the sentencing court shall notify a close relative when the
sentence has been carried out. The body shall not be released for burial, and relatives
shall not be notied of the place of burial.
Head of the Administration [signature] V.S. Varikash
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
79
ANNEX 2
Non-ofcial English translation of the ofcial reply from the National Assembly of the Republic of
Belarus to Tamara Sialiun's request to amend Art. 175 of the Criminal Law Enforcement Code as
non-conforming to the Constitution and to instruments of international law ratied by the Republic
of Belarus.
NATIONAL ASSEMBLY OF THE
REPUBLIC OF BELARUS
COUNCIL OF THE REPUBLIC
Standing Commission on Legislation
and State-building
9 Krasnoarmeyskaya Street, Minsk, 220016
tel: (017) 222 36 34, fax (017) 327 23 18
E-mail: zgs@sovrep.gov.by
23 April 2015 No. 27-Mn/728
T.N. Sialiun
2nd Lugovoi Pereulok
Vileika, 222416
Minsk Oblast
Dear Tamara Mikalayevna,
This is to inform you that your written request to the Council of the Republic of the
National Assembly of the Republic of Belarus (henceforth, Council of the Republic) ″to
raise with the Constitutional Court of the Republic of Belarus the issue of non-conformity
of Art. 175 of the Criminal Law Enforcement Code of the Republic of Belarus with Art.
25(3) of the Constitution of the Republic of Belarus and Article 7 of the International
Covenant on Civil and Political Rights″ has been reviewed by the Standing Commission
of the Council of the Republic on Legislation and State-building.
Based on the study of the issues set forth in your request, and on the analysis of national
and international norms ratied by the Republic of Belarus and that of exemplary laws of
the Commonwealth of Independent States (henceforth, CIS), the following observations
were made.
The normative prescriptions of Art. 175 of the Criminal Law Enforcement Code of the
Republic of Belarus (henceforth, the CLEC) do not contravene the Constitution of the
Republic of Belarus (henceforth, the Constitution). In accordance with the provisions of
Art. 24(3) of the Constitution, until its abolishment, the death penalty may be applied in
accordance with the law as an exceptional measure of punishment for especially grave
crimes and only pursuant to a court sentence.
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
80
Art. 175(1) of the CLEC stipulates that a death sentence that has entered into force shall
be carried out after ofcial notication has been received that all appeals and petitions
for pardon have been denied. Part 2 of the latter Article enshrines the requirement that
execution of the death penalty shall not be made public. This requirement applies not
just to procedures for carrying out the sentence, but also to a number of organisational
and practical procedures related to carrying out a death sentence and burying the
convict’s body. Pursuant to the provisions of Art. 175(5) of the CLEC, the administration
of the institution where the death penalty is carried out must notify of the execution the
respective court that in turn shall notify one of the close relatives. The body shall not be
issued for burial, and the place of burial shall not be made public. Pursuant to Art. 20
of the CLEC and in accordance with the laws of the Republic of Belarus, the Prosecutor
General of the Republic of Belarus and his subordinates ensure oversight of compliance
with the law of institutions carrying out executions.
Art. 7 of the International Covenant on Civil and Political Rights dated 16 December 1966,
ratied by Resolution of the Supreme Court of the Republic of Belarus of 10 January 1992,
establishes that no one shall be subjected to torture or to cruel, inhuman, or degrading
treatment or punishment. In particular, no one shall be subjected without his free consent
to medical or scientic experimentation. Based on an analysis of the legal content of this
norm, we believe that the prescriptions of Article 175 of the CLEC do not contravene this
provision.
It should also be noted that the normative standards of Art. 175 of the CLEC comply with
the provisions of Art. 186(5) of the exemplary Criminal Law Enforcement Code for CIS
member states adopted on 2 November 1996 by resolution of the Inter-parliamentary
Assembly of the CIS. This exemplary code is recommended for CIS member states,
including the Republic of Belarus.
The above analysis shows that there are no grounds for submitting the Council of the
Republic a proposal to apply to the Constitutional Court of the Republic of Belarus regarding
conformity of Art. 175 of the Criminal Law Enforcement Code with the Constitution and
instruments of international law ratied by the Republic of Belarus.
Chairman of the
Standing Commission [signature] L.F. Moroz
FIDH-HRC ″Viasna″ – Death Penalty in Belarus: Murder on (Un)Lawful Grounds
81
Human Rights Center ″Viasna″ is a nongovernmental
human rights organisation created in April
1996 during mass protest actions of the
democratic opposition in Belarus. HRC ″Viasna″
provided legal aid to arrested demonstration
participants and their families.
It is a nation-wide association with its head
ofce in Minsk and regional ofces in biggest
Belarus cities.
For its participation in observing the 2001
presidential elections, HRC ″Viasna″ was
groundlessly stripped of its state registration
by a decision of the Supreme Court of the
Republic of Belarus in 2003.
The primary objective of HRC ″Viasna″ is to
contribute to the development of a civil society
based on respect for the human rights set forth
in the Universal Declaration of Human Rights
and the Constitution of the Republic of Belarus.
Objectives of Human Rights Center ″Viasna″:
– Practical assistance to civic initiatives in the
sphere of legal aid;
– Research into the state of civil society and
legal aid;
– Dissemination of civic and legal knowledge;
– Democratic and legal education of citizens;
– Support to civic initiatives in the sphere of
human rights;
– Facilitation of a spiritual and cultural
renewal of the Belarusian state, which is the
foundation of respect for human rights;
– Lead of the campaign ″Human Rights
Defenders against the Death Penalty in
Belarus″ launched in 2009 jointly with the
Belarusian Helsinki Committee, with the aim
of gaining public support for the abolition of
the death penalty in Belarus. In addition to
awareness-raising activities, the campaign
is focusing on legal aid to family members
of death convicts.
Human Rights Centre
″Viasna″
www.spring96.org
Human Rights Center «Viasna»
Director of
publications:
Dimitris
Christopoulos
Editor-in-chief:
Antoine Bernard
Authors:
Alexandra
Koulaeva,
Julia Ouahnon
Coordinators:
Andrei Paluda,
Alexandra
Koulaeva
Design:
FIDH/Camille
Lindeperg
Dépôt légal: octobre 2016 - FIDH (Russkoe izd.) ISSN 2218-1628 - Fichier informatique conforme à la loi du 6 janvier 1978 (Déclaration N°330 675)
Keep your eyes open
Establishing the facts - Investigative and trial observation missions
Supporting civil society - Training and exchange
Mobilising the international community - Advocacy before intergovernmental bodies
Informing and reporting - Mobilising public opinion
For FIDH, transforming societies relies on the work of local actors.
The Worldwide movement for human rights acts at national, regional and international levels
in support of its member and partner organisations to address human rights abuses and
consolidate democratic processes. Its work is directed at States and those in power, such as
armed opposition groups and multinational corporations.
Its primary beneciaries are national human rights organisations who are members of the
Mouvement, and through them, the victims of human rights violations. FIDH also cooperates
with other local partner organisations and actors of change.
FIDH
International Federation for Human Rights
17, passage de la Main d’Or
75011 Paris
CCP Paris: 76 76 Z
Tel: (33-1) 43 55 25 18
Fax: (33-1) 43 55 18 80
www.dh.org
CONTACT US
FIDH
represents 184
human rights organisations
5 continents
on
ABOUT FIDH
FIDH takes action for the protection of victims of human rights violations, for
the prevention of violations and to bring perpetrators to justice.
A broad mandate
FIDH works for the respect of all the rights set out in the Universal Declaration of
Human Rights: civil and political rights, as well as economic, social and cultural
rights.
A universal movement
FIDH was established in 1922, and today unites 184 member organisations in
more than 100 countries around the world. FIDH coordinates and supports their
activities and provides them with a voice at the international level.
An independent organisation
Like its member organisations, FIDH is not linked to any party or religion and is inde-
pendent of all governments.
www.dh.org
