News
On 2 July 2015 the Constitutional Court of the Republic of Belarus took
the Decision “On the Right of Witnesses in Criminal Proceedings to Legal Assistance” (reporting judge – Stanislav Y. Danilyuk)
The proceedings were initiated by the Constitutional Court in accordance with Article 158 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the basis of the application submitted by the National Human Rights Public Association “Belarusian Helsinki Committee” on the necessity to eliminate a legal gap and to enshrine in the legislation the right of individuals acting as witnesses in criminal proceedings to legal assistance.
The applicant pointed out the absence of rules on legal assistance for witnesses in the procedural legislation. In practice this fact often led to the refusal to deliver legal assistance to witnesses and to violation of the rights guaranteed by the Constitution of the Republic of Belarus.
When considering the case the Constitutional Court proceeded from the following.
The right of everyone to legal assistance to exercise and protect his rights and freedoms, including the right to make use, at any time, of assistance of lawyers enshrined in Article 62 of the Constitution is one of the key principles of a democratic state based on the rule of law.
This constitutional provision confirms the commitment of the Republic of Belarus to generally recognised principles of the international law in the field of justice concerning individuals accused of a criminal offence and corresponds to the international instrumentsthat extend the scope of the right to competent legal assistance to other participants in the criminal process including witnesses.
At the same time the Criminal Procedure Code of the Republic of Belarus does not contain provisions on the obligation of the body conducting criminal proceedings to admit a lawyer (an advocate) to participate in criminal proceedings as the representative of a witness that in practice does not permit to implement properly the right to legal assistance guaranteed by the Constitution, including in the course of investigative or other procedural actions with the participation of a witness.
Accordanceto a witness of such a right is also conditioned by the fact that the knowledge of the basic procedural rights and responsibilities is essential not only for the due conduct of criminal proceedings but also plays the role of an additional guarantee of observance by the officials of the body conducting criminal proceedings and the witness of the legislative requirements, the violation of which could result in criminal liability of these individuals.
In addition, the testimony of a witness given in the presence of a lawyer will have a greater degree of certainty and legal significance in order to take a lawful and grounded decision on the criminal case.
The Constitutional Court stated in its decision that the right to legal assistance shall not depend on discretionary powers of the preliminary investigation bodies and shall be ensured at all stages of criminal proceedings and can not be restricted under any circumstances.
In that way, in order to ensure the principle of the rule of law, to implement the constitutional right of everyone to legal assistance to exercise and protect his rights and freedoms, including the right to make use, at any time, of assistance of lawyers (advocates) the Constitutional Court recognised the necessity to eliminate a legal gap in the Criminal Procedure Code of the Republic of Belarus concerning the right of individuals acting as witnesses in criminal proceedings to competent legal assistance.
The Council of Ministers of the Republic of Belarus is proposed to prepare a draft law on making alterations and addenda to the Criminal Procedure Code of the Republic of Belarus aimed at regulating the right of witnesses to legal assistance of a lawyer (an advocate) during investigative and other procedural actions and submit it to the House of Representatives of the National Assembly of the Republic of Belarus according to the established procedure.