13 December 1999 № D-91/99
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman - A.V. Maryskin, judges T.S Boiko, G.A. Vorobei, K.I. Kenik, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.I. Shabailov, G.B. Shishko, V.Z. Shuklin has examined on the ground of Article 40 of the Constitution of the Republic of Belarus the complaint of the collegium of legal counsels concerning securing the citizens the constitutional right to obtain legal assistance in the criminal proceeding, in particular, non-granting legal counsel the right to have interview with a person detained on suspicion in carrying out a crime and who is in custody before bringing accusation against him.
Having analysed the norms of the Constitution, laws, international legal acts, studied the practice of application of the norms of criminal legislation on procedure, the Constitutional Court has established the following.
Article 49 of the effective Criminal Code of Procedure of the Republic of Belarus (hereafter - CCP) specifies that in instance of detention of a person who is suspected in carrying out a crime or to whom is taken preventive punishment as confinement before bringing accusation a defender is allowed to participate in a case from the moment of announcement of the protocol of detention or the ruling on application of that preventive punishment, but on or before twenty four hours from the moment of detention or confinement. Article 53 of CCP stipulates the right of a defender to have interview with accused in private without any limitations in their quantity and length only after bringing accusation.
Analysis of the content of those norms of CCP and practice of their application indicates that from the moment of announcement of the protocol of detention or the ruling on confinement before bringing accusation a citizen has no right to have interview with defender, in that capacity may act legal counsel, with the object of obtaining legal assistance: rendering for a citizen of such an assistance is restricted by participation of legal counsel only in the criminal actions of procedure which take place during investigation on a criminal case. The legislation does not grant the defender the right to have interviews in confidence with defendant as well.
That is not in conformity with the Constitution of the Republic of Belarus and with the norms of international law.
Under Article 62 of the Constitution 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 oner's other representatives in court, other state bodies, bodies of local government, enterprises, establishments, organizations and public associations, and also in relations with officials and citizens. Opposition to the rendering of legal assistance shall be prohibited in the Republic of Belarus.
The Law "On the Bar", which has been adopted at a later date than CCP, determines the procedure, conditions and types of legal assistance rendering by lawyers in the Republic of Belarus. Article 17 of the Law in question envisages the right of a lawyer to communicate free in private with suspected, accused and defendant, including those who are in custody.
Under Article 2 of the Constitution the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State. The Constitution entrusts the state with safeguarding personal liberty, inviolability and dignity, proclaims safeguarding the rights and liberties of the citizens to be the supreme goal of the state, secures equality of all before the law and the right without discrimination to equal protection of their rights and legitimate interests.
Article 8 of the Constitution recognizes the supremacy of the universally acknowledged principles of international law and obliges the state to ensure that its laws comply with such principles. According to Article 15 of the Law "On international treaties of the Republic of Belarus" universally acknowledged principles of international law and norms of international treaties of the Republic of Belarus which had come into force are part of the effective law in the Republic of Belarus.
The Body of principles for the protection of all persons under any form of detention or imprisonment, adopted by UN General Assembly resolution of 9 December 1988, establishes: a detained person shall be entitled to have the assistance of a legal counsel (principles 11, 17); a detained or imprisoned person shall be entitled to communicate and consult with his legal counsel, for this he shall be allowed adequate time and facilities for such consultations; the right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order; interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official (principle 18).
Main principles concerning the role of lawyers, adopted by eighth UN Congress on prevention of the criminality and treatment with law infringers of 7 September 1990, envisage that all persons arrested, detained or imprisoned shall be allowed due time, facilities and conditions to be visited by and to consult and communicate, without delay, interference or censorship and in full confidentiality, with legal counsel. Such consultations may be held in the presence of officials on maintaining law and order, within sight, but not within the hearing (Article 8).
In accordance with Article 14 of International Covenant on Civil and Political rights all persons shall be equal before the courts and tribunals. Everyone is guaranteed the right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing.
According to the requirements of the norms of Chapter 1 of CCP "Basic provisions" suspect, accused and defendant shall have the right to defence. A person who makes inquiry, investigator, prosecutor, court, judge are bound to secure suspect, accused and defendant the facility to defend by means and methods established by law (Article 14).
Thus, a person detained on suspicion in carrying out a crime in instance of applying to him preventive punishment as confinement there should be secured the right to obtain at any time legal assistance of legal counsel as it is enshrined in the Constitution, the Law "On the Bar", general provisions of the criminal legislation of procedure of the Republic of Belarus and in the norms of international law. Meanwhile, Articles 49 and 53 of CCP which determine the procedural forms and conditions for rendering of such an assistance, do not allow a citizen to realize one's right to defence in full and, therefore, run the participants of the criminal proceeding into unequal situation, as well as suspects who are in custody and those with regard to whom such a preventive punishment is not applied.
The Constitutional Court emphasises that new CCP guarantees the realization of the aforesaid norms of the Constitution by the right of a suspect at any time to obtain legal assistance of lawyer and to free communicate with him in private and in confidence without any restrictions of quantity and length of conversations. Moreover, in instance of detention or application of a preventive punishment as confinement before first interrogation as a suspect a citizen shall have the right to obtain legal consultation with a lawyer free of charge in the presence of a person who holds an inquiry (Article 41).
Under Articles 137 and 142 of the Constitution of the Republic of Belarus Basic Law shall have the supreme legal force. Where there is a discrepancy between a law and the Constitution, the Constitution shall apply. The laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution. In the opinion of the Constitutional Court the right of suspect and defendant to defence should be secured absolutely and strictly. Articles 49 and 53 of CCP should be applied only in part which is not contrary to the Constitution and is in compliance with general provisions of the Criminal Code of Procedure (Article 14).
The Constitutional Court considers that legal assistance of legal counsel for a suspect, defendant, who are in custody, as it is envisaged by the Body of principles for the protection of all persons under any form of detention or imprisonment, adopted by UN General Assembly resolution of 9 December 1988 (principles 11, 17, 18), may be within sight, but not within the hearing, of a law enforcement officials. The procedure of granting legal counsels interviews in private with suspects, defendants who are in custody may be regulated by departmental enforceable enactments with the specific character of work of regime establishments and requirements on keeping order as well as with safety of lawyers taken into account.
Such a position of the Constitutional Court does not exclude the right of lawmaker to envisage other conditions which secure confidentiality of communications of those persons with their defender.
Based on the abovestated and guided by Article 40 of the Constitution, Articles 7, 36, 37, and 38 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To propose state bodies which apply norms of the criminal law of procedure to secure not only for accused but also for suspects, defendants, with respect to whom a preventive punishment as confinement has been chosen, the right, as it is envisaged by the Constitution of the Republic of Belarus and the Body of principles for the protection of all persons under any form of detention or imprisonment, adopted by UN General Assembly resolution of 9 December 1988, to obtain legal assistance of a legal counsel at any time and may be within sight, but not within the hearing, of a law enforcement officials.
2. The present Decision shall come into force from the date of its adoption.
3. To publish the present Decision in accordance with the effective legislation.
Presiding Officer —
Chairman of the
of the