DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 02 of July, 2015 No D-989/2015
On the Right of Witnesses in Criminal Proceedings to Legal Assistance
The Constitutional Court of the Republic of Belarus comprising the Presiding OfficerChairman P.P.  Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov
in open court session considered the case “On the Right of Witnesses in Criminal Proceedings to Legal Assistance”.
The court session was attended by:
V.V. Mitskevich, Deputy Head of the Administration of the President of the Republic of Belarus ‒ the authorised representative of the President of the Republic of Belarus in the Constitutional Court;
L.F. Moroz, Chairwoman of the Standing Committee for Legislation and State Administration of the Council of the Republic ‒ the authorised representative of the Council of the Republic of the National Assembly of the Republic of Belarus in the Constitutional Court;
L.S. Mikhalkova, Chairperson of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus ‒ the authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court;
A.N. Bodak, Deputy Minister of Justice of the Republic of Belarus ‒ the authorised representative of the Council of Ministers of the Republic of Belarus in the Constitutional Court;
the representatives:
of the Supreme Court of the Republic of Belarus ‒ R.G. Aniskevich, DeputyChairman of the Supreme Court of the Republic of Belarus;
of the General Prosecutor's Office of the Republic of Belarus ‒ A.M. Lashin, Deputy Prosecutor General of the Republic of Belarus;
of the Investigative Committee of the Republic of Belarus ‒ A.A. Volkov, First Deputy Chairman of the Investigative Committee of the Republic of Belarus;
of the Belarusian Republican Attorneys’ Bar Association ‒ V.I. Tchaitchits, Chairmanof the Belarusian Republican Attorneys’ Bar Association.
The proceedings were initiated by the Constitutional Court on May 20, 2015 in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Article 22.3.8 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 158.1 and Article 158.3 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 points out the absence of special rules on legal assistance for witnesses in the procedural legislation of the Republic of Belarus. In practice this fact often leads to the refusal to provide legal assistance to witnesses and to violation of the rights guaranteed by the Constitution of the Republic of Belarus.
Having heard the reporting judge S.Y. Danilyuk, the authorised representatives of the President of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus, the House of Representatives of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus in the Constitutional Court, the representatives of the Supreme Court of the Republic of Belarus, the General Prosecutor's Office of the Republic of Belarus, the Investigative Committee of the Republic of Belarus, the Belarusian Republican Attorneys’ Bar Association, having analysed the provisions of the Constitution, the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) and other legislative acts of the Republic of Belarus, having examined the submitted documents and other case materials the Constitutional Court of the Republic of Belarus found the following:
1. According to the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 2.1); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1).
According to Article 62.1 of 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.
By virtue of the Law of the Republic of Belarus On Legal Practice and Advocacy in the Republic of Belarusany individual or legal entity in the territory of the Republic of Belarus has the right to seek legal assistance from a lawyer of their choice in order to protect their rights and interests before the courts, state bodies and other organisations that are competent to settle such legal issues and before other individuals (Article 6.2); the court, state body, organisation or official can not refuse to recognise the right of a lawyer to represent the rights and interests of an individual or legal entity seeking legal assistance, except in the cases stipulated by legislative acts (Article 17.3).
The CPC stipulates that all individuals participating in criminal proceedings shall be equal before the law and shall have the right, without any discrimination, to equal protection of their rights and legitimate interests; everyone has the right to legal assistance in criminal proceedings in order to exercise and protect the rights and freedoms, including the right to use legal assistance of lawyers and other representatives in the cases and according to the procedure established by the CPC (Article 20.1; Article 20.4); restriction of the rights and freedoms of individuals participating in criminal proceedings shall be permitted only on the grounds and according to the procedure established by the CPC (Article 10.2).
However, the CPC does not contain provisions enshrining directly the right of witnesses to competent legal assistance, although the witnesses' testimony is an important source of evidence and failure to perform obligations provided for by the CPC may result in criminal liability.
Thus, the criminal procedure law which is aimed at enshrining the due legal procedure of conducting the criminal process, contributing to the formation of respect for the human rights and freedoms, the strengthening justice, does not provide for the mechanism of exercising the witness’ right to legal assistance.
2. In accordance with Article 39 of the Law “On the Constitutional Proceedings” requests were sent to the Supreme Court, the General Prosecutor's Office, the Investigative Committee, the Ministry of Justice, the Belarusian Republican Attorneys’ Bar Association as well as to the Department of Criminal Procedure and Prosecutor's Supervision of the Faculty of Law of the Belarusian State University.
In the response of the Supreme Court it is noted that the rights of the witness listed in Article 60.3 of the CPC and other procedural rules, including the basic right – not to testify against himself, family members and close relatives – are adequately regulated by the CPC. Taking into account the procedural status of the witness, who in the case of law-abiding behavior can not be subjected to liability or procedural coercion measures, there is no necessity to grant him exceptional guarantees similar to the rights of the suspect or the accused. The Supreme Court considers that the issue of the lawyer’s participation in the hearing of witnesses may be settled by the body conducting the criminal procedure without additional regulation by the CPC rules.
The Prosecutor General's Office points out that the CPC rules regulating proceedings with the witness’ participation do not establish a ban on providing legal assistance to the mentioned participant in proceedings, but at the same time do not directly provide for the possibility of rendering such assistance. This fact shows a gap in the criminal procedure law concerning legal regulation of the right of witnesses in criminal proceedings to legal assistance of lawyers. The right to make use, at any time, of assistance of lawyers enshrined in Article 62 of the Constitution is universal. Due to this fact the Prosecutor General's Office believes that in order to ensure the direct action of this constitutional rule, prevent violation of the constitutional rights of witnesses in criminal proceedings by ungrounded rejection of their requests for legal assistance it is necessary to make appropriate alterations and additions to the legislative acts of the Republic of Belarus.
The Investigative Committee notes that neither criminal procedure law nor other legislation set the obligation for the preliminary investigation body to allow a lawyer to participate in criminal proceedings as a representative of a witness, including for providing legal assistance in the course of investigative or other procedural actions involving the witness. In case of normative enshrining of the right of a witness to be interrogated in the presence of a lawyer having the power to defend, in practice it will not exclude disclosure of certain information which will give to the accused a possibility to elaborate a strategy to counter the preliminary investigation body. The Investigative Committee believes that the witness can get legal assistance from a lawyer invited before and after interrogation, and does not exclude a passive presence of the lawyer invited by the witness during interrogation.
In its response the Ministry of Justice pays attention to the fact that Article 60 of the CPC does not contain provisions enshrining the right of a witness to use assistance of a representative during the proceedings. This right is granted only to the victim, civil claimant and civil defendant. Literal observance of this approach by the bodies conducting criminal proceedings may lead to the restriction of the constitutionally guaranteed right of individuals to legal assistance. The Ministry of Justice believes that the current CPC contains a specific gap in legal regulation concerning the fact that the witness is not entitled to use the assistance of a representative, including a lawyer, in criminal proceedings. This gap can be eliminated by appropriate adjustment of the CPC rules.
According to the Belarusian Republican Attorneys’ Bar Association, the constitutional right of individuals to qualified legal assistance and the right to have a lawyer of their own choice have to be ensured at all stages of criminal proceedings and may not be restricted under any circumstances. Legal assistance of a lawyer (defender) in criminal proceedings is not restricted by the procedural and time limits of his participation in the investigation and judicial proceedings, it also includes possible preliminary legal advice that follows, in particular, from Article 26 of the Law “On Legal Practice and Advocacy in the Republic of Belarus”.
The Department of Criminal Procedure and Prosecutor's Supervision of the Faculty of Law of the Belarusian State University has made a conclusion that since the CPC does not establish a direct prohibition for a lawyer as a representative of a witness to participate in the investigative action (including interrogation), the rule of direct effect – Article 62 of the Constitution – has to be applied and the person conducting the inquiry, the investigator, the prosecutor do not have the right to refuse the witness to testify in the presence of his representative – a lawyer. Assistance of a representative is necessary for the witness to know his procedural rights, to exercise these rights in full during the investigation and to prevent abuses by officials of the criminal prosecution bodies. At the same time the point of view on the possibility to make alterations and addenda to the CPC aimed at the regulation of the right of a witness to make use of legal assistance of his representative when testifying and participating in the conduct of other procedural actions with the establishment at the same time of the rights and obligations of such a representative is expressed.
Thus, in the responses to the requests of the Constitutional Court a common position is expressed that the CPC rules do not provide an effective mechanism to ensure the right of witnesses participating in criminal proceedings to legal assistance of a lawyer and do not regulate the procedure of admission of a lawyer for providing such assistance to the witness and his procedural rights.
3. The Constitution stipulates that the Republic of Belarus shall safeguard lawfulness and law and order (Article 1.3); the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Article 7.1, Article 7.2); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1); restriction of personal rights and freedoms shall be permitted only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons (Article 23.1).
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 62.1 of the Constitution is one of the most important principles of a democratic state based on the rule of law.
This constitutional provision confirms the commitment of the Republic of Belarus to the generally recognised principles of international law in the field of administration of justice concerning persons charged with a criminal offence(Article 14.2 of the International Covenant on Civil and Political Rights, 1966) and corresponds to the international instruments which extend the scope of the right to qualified legal assistance to other participants in the criminal proceedings, including witnesses.
Thus, in accordance with paragraph 1 of the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 27 August – 7 September 1990), all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.
The necessity to provide legal assistance to the witness is underlined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted by UN General Assembly Resolution 67/187 of 20 December 2012. In paragraph 8 of the Annex to the mentioned Principles it is stated that the term “legal aid” includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process. According to Principle 5 (“Legal aid for witnesses”), without prejudice to or inconsistency with the rights of the accused, States should, where appropriate, provide legal aid to witnesses of crime (paragraph 25).
At the same time, the absence in the CPC of a rule enshrining obligation of the body conducting criminal proceedings to allow a lawyer to participate in criminal proceedings as a representative of a witness, in practice, does not permit to realise properly the constitutionally guaranteed right to legal assistance, including during the investigation and other procedural actions with the participation of the witness.
The necessity to provide this right to the witness is conditioned by the fact that the knowledge of his basic procedural rights and obligations is essential not only for the due conducting of the criminal proceedings, but also serves as an additional guarantee of observance by the official of the body conducting criminal proceedings, as well as by the witness of legal requirements the violation of which could result in criminal liability of those involved in criminal proceedings.
In addition, the testimony of a witness given in the presence of a lawyer, according to the Constitutional Court, will have a greater degree of certainty and legal significance for taking a lawful and well-grounded decision upon the criminal case.
Thus, the constitutional provisions that no one shall be compelled to be a witness against oneself, members of his family or close relatives; evidence obtained in violation of the law shall have no legal force (Article 27 of the Constitution) were enshrined in a normative way and were developed in Articles 8.3, 10.4, 60.3, 105.5 of the CPC.
The constitutional principle of the rule of law specified in the CPC rules means that the court, the criminal prosecution body in the criminal proceedings are obliged to precisely observe the requirements of the present Code; violation of the law in the criminal proceedings is inadmissible and results in liability under the law and recognition of decisions as void (Articles 8.1 and 8.2 of the CPC); a witness, in his turn, is obliged: to appear before the body conducting criminal proceedings when summoned; give all truthful information on the case and answer the questions; not to divulge information about circumstances on the case which became known to him, if he is warned about it by the criminal prosecution body or the court; to obey lawful orders of the body conducting criminal proceedings (Article 60.4 of the CPC).
Illegal actions of the official of the body conducting criminal proceedings, as well as non-observance of legal procedural obligations by the witness shall constitute a crime against justice (Articles 394, 401, 402, 407 of the Criminal Code of the Republic of Belarus).
4. According to the Constitution, safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State; the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations; the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Articles 21.1 and 21.3, Article 59.1).
The Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith; state bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (Articles 7.1 and 7.2, Article 59.2).
Pursuant to the foregoing the Constitutional Court concludes that the CPC contains a gap in legal regulation of the exercise of the right of witnesses in criminal proceedings to legal assistance for the exercise and protection of the rights and freedoms, including the right to make use at any time of assistance of lawyers. This right, according to the Constitutional Court, shall not depend on the discretionary powers of the preliminary investigation bodies and shall be ensured at all stages of the criminal process and can not be restricted under any circumstances.
This approach complies with the provisions of Article 1 of the CPC, according to which the present Code, on the basis of the Constitution, establishes the procedure for the activities of the bodies conducting criminal proceedings, as well as the rights and obligations of the participants in the criminal proceedings (part 1); provides that, in case of conflict between the CPC rules and the Constitution, the constitutional provisions prevail (part 3).
According to the Constitutional Court, legal assistance of a lawyer in criminal proceedings shall not be restricted by procedural and time limits of his participation in the investigation and judicial proceedings that complies with international legal standards in the field of justice and follows from Article 26 of the Law “On Legal Practice and Advocacy in the Republic of Belarus”, under which lawyers shall give advice and explanations on legal issues; draw up applications, complaints and other legal documents; exercise representation; provide other kinds of legal assistance.
Thus, in order to ensure the constitutional principle of the rule of law including the necessity of timely elimination of gaps in normative legal acts, collisions and legal uncertainty, formation of a legal system in which normative legal acts shall be correlated,coherent with each other, and which ensures clarity, accuracy, consistency and logical coherence of legal rules, the Constitutional Court considers it appropriate to eliminate the mentioned gap of legal regulation by making the appropriate alterations and addenda to the CPC rules by the legislator.
In view of the foregoing, guided by Articles 116.1 and 116.7 of the Constitution, Article 22.3.8 and Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.2, 75, 77, 80, 84, 85.17 and 160 of the Law of the Republic of Belarus “On the Constitutional Proceedings”, the Constitutional Court of the Republic of Belarus
 
RULED:
 
1. In order to ensure the constitutional 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 the Constitutional Court recognised it necessary to eliminate a legal gap in the Criminal Procedure Code of the Republic of Belarus concerning legal regulation of the exercise by witnesses in criminal proceedings of their right to qualified legal assistance.
2. To make a proposal to the Council of Ministers of the Republic of Belarus to prepare a draft law on making alterations and addenda to the Criminal Procedure Code of the Republic of Belarus aimed at regulation of the right of a witness to make use of legal assistance of a lawyer 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.
3. The present Decision shall come into force from the date of its adoption.
4. To publish the present Decision in accordance with the legislation.
 
Presiding Officer –
Petr P. Miklashevich,

Chairman of the Constitutional Court
of the Republic of Belarus

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