News
On 26 September 2018 the Constitutional Court of the Republic of Belarus made the decision “On Legislative Regulation of Ensuring Advocate Secrecy in Criminal Proceedings” (reporting judge – Tadeush Voronovich)
The proceedings were initiated by the Constitutional Court in accordance with Articles 158.1 and 158.4 of the Law of the Republic of Belarus “On Constitutional Proceedings” on the basis of the application submitted by the Belarusian National Bar Association. The applicant believes that the current legislative regulation does not fully ensure advocate secrecy in the criminal process, since the rules of the criminal procedure legislation do not provide for the specifics of carrying out the inspection, search and seizure in the premises of lawyer's offices and bar associations, examination and seizure of materials from a lawyer’s file, and also do not prohibit interrogation of a lawyer on matters constituting advocate secrecy.
According to the Constitution of the Republic of Belarus, everyone shall have the right to legal assistance to exercise and defend his rights and liberties, including the right to make use, at any time, of the assistance of lawyers and one's other representatives in court, other state bodies, bodies of local government, enterprises, establishments, organisations and public associations, and also in relations with officials and citizens; in the instances specified in law, legal assistance shall be rendered from public funds (Article 62.1).
The provisions that ensure and protect advocate secrecy when lawyers exercise their powers, including in the criminal process, are defined in the Law of the Republic of Belarus “On Legal Profession and Legal Practice in the Republic of Belarus”.
However, the rules of the Criminal Procedure Code of the Republic of Belarus, which determine the grounds and procedure for conducting an inspection, search and seizure (Articles 203, 204, 208–210), do not provide for specifics of carrying out these investigative actions in the premises of lawyer's offices and bar associations for the purpose of ensuring advocate secrecy and guaranteeing its protection, established by the Law “On Legal Profession and Legal Practice in the Republic of Belarus”.
The Constitutional Court considers that the current legislative regulation of ensuring and protecting advocate secrecy during certain investigative actions (inspection, search and seizure) shows that there is a legal gap in the Criminal Procedure Code that can lead, in the law enforcement process, to violation of constitutional rights, including those enshrined in Articles 28 and 62 of the Constitution. In order to ensure compliance with the requirements of the Constitution and international legal instruments and to eliminate the legal gap in the current legal regulation, the legislator should establish additional guarantees in the criminal procedure law that exclude during the inspection, search and seizure, that require access to the lawyer’s file, the possibility of obtaining information constituting legally protected advocate secrecy by the criminal prosecution bodies.
In order to ensure the supremacy of law, the exercise of the constitutional right of everyone to legal assistance and the establishment of additional guarantees for ensuring advocate secrecy, the Constitutional Court found it necessary to make alterations to the Criminal Procedure Code of the Republic of Belarus establishing the specifics of carrying out the inspection, search and seizure concerning lawyers.
The Council of Ministers of the Republic of Belarus has been asked to prepare a draft law on making alterations to the Criminal Procedure Code of the Republic of Belarus and to submit it under the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.