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On 21 June 2017 the Constitutional Court of the Republic of Belarus took the Decision “On Ensuring the Right to Unimpeded and Timely Legal Assistance in Criminal Proceedings” (reporting judge – Sergei Chigrinov)

The proceedings were initiated in accordance with Article 116.1 of the Constitution of the Republic of Belarus, Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 158 of the Law of the Republic of Belarus “On Constitutional Proceedings” on the basis of information submitted by the National Bar Association on legal uncertainty of the provisions of the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) regulating the admission of a lawyer to participation in criminal proceedings.
When considering the case the Constitutional Court proceeded from the following.
According to the Constitution, everyone shall have the right to legal assistance to exercise and protect his rights and freedoms, including the right to make use, at any time, of assistance of lawyers and his other representatives in court, other state bodies, bodies of local government, enterprises, institutions, organisations and public associations, and also in relations with officials and citizens. In the instances specified by law, legal assistance shall be rendered at the expense of state funding; obstruction to rendering legal assistance shall be prohibited in the Republic of Belarus (Article 62).
The Constitutional Court noted that the provisions of Article 62 of the Constitution represent institutional guarantee for the due provision of legal protection for other constitutional rights and freedoms of individuals and, in conjunction with Article 22 of the Constitution, should be implemented on the basis of equality of all before the law and non-discrimination.
In accordance with the CPC, all persons participating in criminal proceedings are equal before the law and are entitled without any discrimination to equal protection of their rights and legitimate interests; everyone has the right, during the criminal proceedings, to legal assistance for exercise and protection of rights and freedoms, including the right to make use, in cases and in accordance with the procedure provided for by the CPC, of assistance of lawyers and other representatives.
However, the provisions of Articles 44 and 48 of the CPC providing for admission of a lawyer to participation in criminal proceedings are characterised by legal uncertainty, since the implementation of these provisions does not prevent the criminal prosecution body from arbitrary actions that may limit the availability of unimpeded and timely legal assistance in criminal proceedings.
According to the Constitutional Court, the legal regulation where the possibility to make use of assistance of a lawyer depends on the discretion of other persons does not ensure full implementation of the constitutional provision on the right of everyone to legal assistance (Article 62 of the Constitution), does not allow persons concerned to protect their rights and freedoms in due manner, does not contribute to timely and effective restoration of violated rights.
The CPC should provide for a mechanism for unimpeded and timely access of a lawyer (with the respect of conditions stipulated by the CPC and having a lawyer's certificate and a warrant for the right to participate in criminal proceedings) to the criminal process at any stage, excluding the discretion of the criminal prosecution bodies.
In order to ensure the constitutional principle of the rule of law, to respect 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, to ensure unambiguous understanding and uniform application of the legal rules, the Constitutional Court recognised the need for the legislator to eliminate legal uncertainty in the Criminal Procedure Code of the Republic of Belarus concerning the regulation of the procedure for the entry of lawyers into criminal proceedings for providing unimpeded and timely legal assistance.

The Constitutional Court proposed to the Council of Ministers to prepare a draft law on making alterations and (or) addenda to the Criminal Procedure Code of the Republic of Belarus aimed at regulating the procedure for the entry of lawyers into criminal proceedings and to submit it to the House of Representatives of the National Assembly of the Republic of Belarus under the established procedure.

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