OPEN RESOLUTION
to the authorities of Belarus

to Belarusian Republican Bar Association and territorial bar associations

to Special Rapporteur of the United Nations human rights Council on the independence of judges and lawyers

to Organization for security and cooperation in Europe

to States
We, the undersigned participants of the international conference "Rights of Lawyers: The Belarusian Scenario", having discussed the situation with numerous facts of abuse of advocating lawyers' professional rights and the bar independence principles in Republic of Belarus, consider it necessary to point out the following circumstances needing immediate response from both the international legal community and the competent intergovernmental bodies.

1. The Basic Principles on the Role of Lawyers[1] postulate that adequate protection of human rights and fundamental freedoms requires that all persons have effective access to legal services provided by an independent legal profession.

At the same time, Belarusian law enforcement bodies' officers systematically hinder access for attorneys at law to their defendants kept in custody or provide the access without possibility to communicate confidentially; also, they make obstacles for transfer of documents between an attorney at law and a client kept in custody. All of that makes it impossible for the legal profession to perform soundly their obligations on provision of qualified legal services.

2. The principle of legal advocacy independence, a basic and intrinsic one for human rights defense, is also violated. As pointed out in the report by the Special Rapporteur on the situation of human rights in Belarus, Anaïs Marin, the Government does not perform their duties on enabling the establishment of a truly independent bar association and ensuring that lawyers, including those working for human rights defenders, are able to perform their work unimpeded and to exercise their freedom of expression without fear of retaliation or harassment from the authorities[2].

In disregard of Principles 16, 24, and 25 of the Basic Principles on the Role of Lawyers, the legal profession in the Republic of Belarus is subject to pressure and excessive control by governmental bodies, including the Ministry for Justice, thus undermining the core values of the independence of lawyers. Issues of receiving a license, certification inspection, and license revocation for an attorney at law are within powers of the Ministry for Justice, also using the powers as a tool for pressure against lawyers, especially those working for human rights defenders.

3. In disregard of Principle 23 of the Basic Principles on the Role of Lawyers, freedom of expression for lawyers is severely restricted. A public position expressed by a lawyer, disagreeing with the charges brought to their client, disclosing facts of law abuse by governmental bodies' officials, including public criticism of activities of governmental bodies and their officials, even not in connection with any specific case, becomes a reason for revoking the license. For instance, Aleksandr Pylchenko, Attorney at Law, lost his license on October 16, 2020, upon a decision by the Ministry for Justice. The reason was a comment given by Pylchenko to the TUT.BY media resource, expressing a legal assessment on numerous evidence, published by the media, that many people were beaten in police stations and temporary holding facilities on 9-12 August 2020.

One more attorney at law, Yulia Levanchuk, lost her license in October 2020 due to alleged threats addressed to an investigator and their family expressed in private correspondence with an acquaintance of hers. Taking into account a video petition published by Ms Levanchuk earlier in support of her repressed colleagues, Maksim Znak and Ilya Saley, and her defense of citizens assaulted by Belarusian police officers, there are reasons to believe that she is persecuted for her professional activities for human rights defense and her public statements on unlawful violence against her.

4. In disregard of Principles 16, 17, 18, and 20 of the Basic Principles on the Role of Lawyers, intervention of the government (up to criminal persecution) into professional activities of lawyers taking part in human rights activities and defending opposition politicians accused of crime can be observed.

On September 9, 2020, Maksim Znak and Ilya Saley, Attorneys at Law, were detained and put into custody, accused of crime defined by the Criminal Code of Republic of Belarus, Article 361, Part 3, i.e. public calls to actions aimed to harm the national security. On October 16, Ilya Saley was released from custody and put under home arrest. Maksim Znak will be kept in custody at least up to January 9, 2021.

Meanwhile, those two attorneys at law committed no public calls to any violence or other unlawful actions: their public speeches only expressed their legal positions.

Maksim Znak rendered legal services within the election campaign of Viktor Babariko, a non-registered candidate for Presidency of Republic of Belarus (consulting, document drafting, and representing his interests in court within claiming on issues of various election procedures) and was legal councilor for Svetlana Tikhanovskaya, ex-candidate for Presidency, and performed legal activities within the Coordination Council upon her order. On August 21, 2020, Znak filed to the Supreme Court of Belarus a claim on behalf of Svetlana Tikhanovskaya, asking to find invalid the elections dated August 9, 2020. Also, upon order by his principals Viktor Babariko and Svetlana Tikhanovskaya, he explained actual law norms in public and expressed a legal position on socially significant issues in online video broadcasts[3]. Ilya Saley rendered legal services to Maria Kolesnikova. member of Viktor Babariko's campaign team and the Presidium of the Coordination Council, kept now in custody.

Both lawyers' activities were of exclusively public nature within the legal profession supposing freedom of expression, opinion, and assembly. In particular, attorneys at law have general civil rights to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization (Principle 23 of the Basic Principles one the Role of Lawyers).

In the opinion of members of the international legal community and the Belarusian bar community[4], criminal persecution of Znak and Saley is connected directly with their professional activities and politically motivated. One of its aims is an attempt made by the government to intimidate other lawyers and to keep them from undertaking commitments for defending persons opposition-minded against the ruling government and involved in various protest movements, as well as to make lawyers avoid public expression of their professional opinions about unlawful actions committed by governmental bodies and/or their officials.

Moreover, such actions violate Paragraph 14 of the International Covenant on Civil and Political Rights, ratified by the Republic of Belarus. According to the Covenant, everyone charged with a criminal offence shall have the right to communicate with counsel of his own choosing. Detention of Maksim Znak and home arrest of Ilya Saley deprived them of that right.

On September 24, 2020, Lyudmila Kazak[5], Attorney at Law, who defends Maria Kolesnikova (coordinator of Viktor Babariko's campaign team, now kept in custody under Article 361, Part 3, of the Criminal Code of Belarus), was abducted in the centre of Minsk on her way to court. Later it was revealed that Kazak was brought by force to the Tsentralny District Department for Interior of Minsk and kept there for more than eight hours incommunicado. During that time, nobody knew anything about where she was. Later, she was put into a temporary holding facility, and next day, a court brought her to administrative liability and punished with a large fine for failure to obey lawful demands of a representative of power (Article 23.4 of the Code of Administrative Offences of Belarus) within her detention upon suspicion of an administrative offence that was not proven. The persons that witnessed in court against her and introduced themselves as police officers hid their faces, and their personal data was modified.

When defending Maria Kolesnikova (also abducted by security forces on September 8, 2020, in order to exclude her from the country by force), Lyudmila Kazak had disclosed the fact that Kolesnikova had claimed the crime committed by law enforcement officers against her. Taking into account Kazak's brutal, sudden, and demonstrative detention (later vindicated by governmental bodies by means of groundless bringing to administrative liability) and withdrawal of documents and objects comprising client-attorney privilege within the detention, such actions against Lyudmila Kazak, Attorney at Law, are none other that an act of intimidation, violence, and rude intervention in legal advocacy activities. Such actions committed by representatives of power directly contradict Principle 16 of the Basic Principles on the Role of Lawyers.

Therefore, groundless criminal and administrative persecution of lawyers not only undermines international legal principles of governmental respect for legal profession and enabling immunity to an advocating lawyer within execution of their professional duties but also violates the general right to fair trial: warranty for services by a counsel of the defendant's own choosing is an intrinsic aspect of its.

We should point out that governmental intervention into legal advocacy in the context of abuse of the freedom of expression, opinion, and association as well as of independence and self-governance of bar associations, disregard of warranties for free and unhindered performance of legal advocacy together with absence of effective tools for legal defense at disciplinary proceedings is a sustainable system practice illustrated, for instance, by the cases described in the joint report Belarus: Control over Lawyers Threatens Human Rights prepared by the World Organization Against Torture (OMCT) in collaboration with the Paris Bar and Human Rights Centre "Viasna" (2018), the partner report made by the Helsinki Foundation for Human Rights[6], and the above-mentioned report by the Special Rapporteur on the situation of human rights in Belarus, Anaïs Marin.

As shown by the examples cited above, lawyers working for human rights defense and defending people (politicians, journalists, bloggers, civic activists) criticizing the ruling political regime in the country are particularly persecuted by the government in Belarus.

Having regard to the above, seeking for observance of accepted principles and norms of the international law, including commitments made in accordance with the International Covenant on Civil and Political Rights, the Basic Principles on the Role of Lawyers (in the aspect of effective access for all persons to legal services provided by an independent legal profession), and professional warranties for legal advocacy, we call


Governmental authorities of Belarus – to enable:

● unhindered access for attorneys at law to their defendants kept in custody or in detention facilities;

● possibility for defending attorneys to perform their functions properly within participation in court sessions of administrative and criminal cases against their detained defendants;

● comprehensive, timely, and unbiased review by governmental bodies of complaints, claims, and other applications made by advocating lawyers in defense of the rights of citizens subject to unlawful detention, tortures, or other degrading treatment;

● possibilities for lawyers to perform all their professional duties in conditions free from threats, obstacles, intimidation, or unwarranted interference;

● observance of warranties for lawyers' right to express their opinions freely and to perform their professional activities unimpeded without fear of retaliation or harassment from the authorities;

● immediate release of Maskim Znak, Attorney at Law, from custody and of Ilya Saley, Attorney at Law, from home arrest, as well as termination of criminal persecution against them;

● re-examination and termination of the case on an administrative offense against Lyudmila Kazak, Attorney at Law;

● restoration of licences of attorney at law for Aleksandr Pylchenko and Yulia Levanchuk;

● modification of the national law in order to bring it in compliance with international legal warranties of legal profession independence in the aspect of delegating the issues of receiving, certification inspection, and revocation of licences of attorney at law under exclusive powers of the bar self-governance bodies elected freely;


The Belarusian Republican Bar Association and territorial bar associations:

● to take principled and effective measures in order to protect attorneys at law from persecution, to fight for independence of the legal profession, and to enable observance of attorneys' professional rights;


The Special Rapporteur on the independence of judges and lawyers:

● following relevant special procedures, to assess statements provided for review and addressing nonobservance of lawyers' professional rights in Belarus and specific cases of persecution against lawyers; to respond to them by means of public statements and in written form, calling the government to act immediately in order to correct violations of lawyers' rights and of legal profession warranties;

● to include conclusions on statements coming from Belarus in the annual report to the Council for Human Rights and to the General Assembly;

● to submit to Belarusian governmental authorities a request for an official visit to the country;


The Organization for Security and Cooperation in Europe:

● to monitor observance of recommendations provided in the OSCE Rapporteur's Report under the Moscow Mechanism on Alleged Human Rights Violations related to the Presidential Elections of 9 August 2020 in Belarus[7] (Recommendations 11-16);

● to monitor progress of court trials against attorneys at law facing criminal, administrative, or disciplinary persecution in Belarus.


States:

● to include issues of strict observance of the right to professional legal services and to legal defense as well as of inadmissibility of persecution and intimidation or lawyers in the agenda of any negotiations with governmental authorities of Belarus.


_______________

[1] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 27 August to 7 September 1990
[2] https://bit.ly/3fdcMrh (Paragraphs 29-37)
[3] https://bit.ly/38ZRXP0, https://bit.ly/2IMlWid
[4] https://bit.ly/3pD3OZ0, https://bit.ly/3pMosG2, https://bit.ly/331r09D, https://bit.ly/3nEDjAO, https://bit.ly/394aLg5
[5] https://bit.ly/332iJCi
[6] https://bit.ly/3nRsoE3
[7] https://bit.ly/3lZY3md
Signed by:

  1. Golos Advokata ("The Voice of Attorney"), Russia;
  2. Committee for the Bar Protection, Russia;
  3. Moscow Helsinki Group, Russia.
  4. Human Rights Center "Viasna" (Belarus);
  5. Lawyers for Lawyers (Netherlands);
  6. Helsinki Foundation for human rights (Poland);
  7. Human Rights Monitoring Institute (Lithuania);
  8. Belarusian Helsinki Committee;
  9. Public Union "Lawyers' Club";
  10. Law Office "Laevsky and Partners "(Belarus);
  11. The Barys Zvozskau Belarusian Human Rights House;
  12. Alliance Internationale pour la Défense des Droits et des Libertés "AIDL"

See the full list of signatories here (in Russian)

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