THE SUBORDINATION OF LAWYERS

On May 3, 1997, President Lukashenka issued a decree on the activities of lawyers and notaries.89 The decree seriously compromises the independence of lawyers from the government as it puts the Ministry of Justice in charge of licencing lawyers and obliges all practicing lawyers to become members of a centralized system of lawyers collegia (or bar associations), the activities of which are controlled by the ministry. Such a system gives the Ministry of Justice ample opportunity to exclude independent-minded lawyers from the justice system, and thereby strip defendants of their right to defend themselves in court using legal assistance of their own choosing.

In accordance with the decree, after candidates pass an exam with the qualification commission and fulfill a number of formalities, the Ministry of Justice issues licences to them for a period of five years. The qualification commission consists of representatives of state institutions, lawyers and other legal experts, and is chaired by the deputy minister of justice. The ministry renews these licences only after it reviews the findings of the lawyers collegium regarding the consistency of the lawyer's activities with legislation regulating the practice of lawyers.

The decree establishes that, starting July 1, 1997, all practicing lawyers must be members of a lawyers collegium. Belarus has seven such collegia (one for each province and one for the city of Minsk,) each of which can establish offices in its jurisdiction. The decree orders the Ministry of Justice to establish an all-republican lawyers collegium, which would unite all provincial collegia.

Lawyers collegia are tightly controlled by the Ministry of Justice, which has the right to suspend decisions of lawyers collegia and file requests to rescind them; to monitor the legality of the practice of any lawyer; to request collegia to institute disciplinary measures against lawyers; and to annul licences of lawyers in cases provided for by law. If a lawyer's licence is annulled, he cannot request a new licence for a period of five years. In addition, the Ministry of Justice has the right to issue normative acts regulating the activities of lawyers.

Independent lawyer Nadezhda Dudareva told Human Rights Watch/Helsinki that since July 1, 1997, about twenty formerly independent lawyers have been refused entry into lawyers collegia. Dudareva-who has defended numerous opposition figures in court and has been subjected to harassment by the Ministry of Justice-doubts that she would be accepted into a lawyers collegium but refuses to try to enter one as she considers that lawyers working for collegia are almost entirely stripped of their independence and that their position is similar to that of civilservants. She asserted that under these circumstances, lawyers cannot, in a great number of cases, function in a professional manner.90

This attempt to control lawyers' professional organizations contravenes the spirit of the United Nations Basic Principles on the Role of Lawyers, which are authoritative guidelines to member states on "promoting and ensuring the proper role of lawyers" in the interests of justice.91 The Basic Principles uphold the rights of lawyers to "freedom of expression, belief, association and assembly. . . and to join or form local, national or international organizations. . . without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization (rule 23). " Expanding on this right, the Basic Principles also embrace the right of attorneys to "form and join self-governing professional organizations" that ensure that lawyers may work unhindered by "improper interference (rules 24 and 25)."

Moreover, by so controlling lawyers' access to the courts, the decree indirectly interferes with a defendant's right to be represented by the counsel of his or her choice, a right that is protected in article 14 (3) (d) of the ICCPR.

PREVENTING THE PREPARATION AND ORGANIZATION OF DEMONSTRATIONS

"The right to peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interest of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."

Article 21 of the ICCPR

By marginalizing the media and parliament, President Lukashenka has left opposition figures and others who disagree with official policy few fora for expressing their views, other than the streets. Indeed, numerous demonstrations have been staged in Belarus over the last few months as public discussion of policy matters became increasingly difficult.

Since the November 1996 referendum, itself marked by massive rallies, numerous demonstrations have protested government policy, especially the Russian-Belarus union and the increasing concentration of power in the hands of the president. In most of these instances, the authorities took measures that unjustifiably limited demonstrators' rights to freedom of assembly and expression. These include restrictions imposed prior to demonstrations, such as restricted permission staging a demonstration, outright denial of such permission and measures taken by the authorities to restrict freedom of expression during demonstrations. Many of the measures employed are also aimed at discouraging people from exercising the rights to freedom of assembly and expression altogether.

On March 5, 1997, President Lukashenka issued Decree No. 592 to end what he called the "orgy of street democracy."93 The decree seriously inhibits the organization and preparation of demonstrations, provides for extremely strict rules to be observed by demonstrators and establishes a system of exorbitant fines. The decree therefore seriously restricts the rights to freedom of assembly and expression and illustrates President Lukashenka's wish to weaken the effectiveness of demonstrations and to discourage people from organizing and participating in them.94

By far the most egregious provision in Decree No. 5 is contained in article 9, which prohibits organizers and participants from, among other things:

A Using posters, banners and other objects that insult the honor and dignity of officials of state organs; and

A Using flags or pennants which have not been registered in the established manner, and emblems, symbols, posters, the content of which is aimed at damaging the state and public order, the rights and legal interests of citizens.

The last provision is clearly not consistent with international standards on the right to freedom of expression, yet it has already been used to convict demonstrators. The most outrageous example is that of a young man who was arrested on February 14, 1997, and was later sentenced by the Central District Court of Minsk to four days in administrative detention95 for carrying a "blue flag with twelve yellow stars" (the flag of the European Union).96 The decree's other myriad restrictions are extremely burdensome and lend themselves to arbitrary and discrimminatory enforcement. Several examples follow.

Article 5(4)

"In order to guarantee the rights and freedoms of citizens, public safety, and also the normal functioning of traffic, companies, institutions and organizations... [the authorities] have the right to change the time and place ... [of the demonstration]."

Article 15

"...[the authorities] can issue additional regulations on the manner of carrying out the gathering, meeting, street march, demonstrations and picket taking into consideration the local conditions and the requirements of this Decree."

These provisions are clearly open to broad interpretation, which could easily restrict the right to freedom of assembly arbitrarily. An example of the apparent application of these provisions is the demonstration of March 10, 1997 (against unification with Russia), when the authorities went so far as to limit the number of permitted participants to forty persons. When some 2,000 people gathered for the demonstration and started marching, the police intervened to stop the action and detained between fifty to 100 people. In another example, the authorities granted permission for a demonstration on Constitution Day, March 15, 1997, but limited the action to an "especially designated spot." Furthermore, the demonstrators were not allowed to march to that spot; police battalions and concrete barriers were placed along the main road, but demonstrators walked around them. Police detained about 100 demonstrators.

Article 7

"Until permission for organizing the gathering, meeting, street march, demonstration or picket is received [from the authorities], the organizers are not allowed to carry out any preparatory activities, including making announcements about the time and place of the demonstration in the mass media, preparing pamphlets, posters and other materials with this purpose [announcing the demonstration] and spreading them around."

This provision clearly compromises the effective organization of demonstrations and appears to be meant solely to marginalize the effectiveness of demonstrations. Once again, it is not consistent with international standards.

Articles 9 and 10 contain a number of rules that participants and organizers must observe during demonstrations. Article 10 states that in case any of the provisions of Article 9 are violated, the authorities have the right to demand that the demonstration be ended. The article further states that if demonstrators refuse to follow the lawful demands of the organs of the Ministry of Interior, "the necessary measures" are taken "in accordance with the law" to end the demonstration.

Article 9 obliges participants in demonstrations to respect public order and to follow all lawful orders of the organizers of the demonstration and officials of the Ministry of Interior. Some of these obligations are vaguely phrased, which would allow the government to interpret them broadly and thereby use them arbitrarily to restrict freedoms of assembly and expression. For example, it is unclear how the authorities will construe "hindering the movement of traffic and pedestrians." Several other provisions of article 9 raise similar concern: "putting pressure on police officials"; "insulting the honor and dignity of officials of state organs"; and "emblems, symbols and posters aimed at damaging the state, and public order." Such vague provisions are especially problematic in Belarus where the judiciary is not sufficiently independent and cannot challenge the interpretation of legislation by the executive branch, let alone ensure an interpretation that is both consistent and in accordance with international standards.

Apart from restricting freedom of expression and limiting the effectiveness of demonstrations, many of the above-mentioned provisions appear to be meant to provide the authorities with a pretext to intervene indemonstrations. Under with article 10 of the decree, any violations of the rules established in Article 9 justify police intervention.

Article 11 of the decree establishes exorbitantly high penalties for violations of the "established manner of organizing and carrying out gatherings, meetings, street marches, demonstrations and pickets." This provision, read in conjunction with article 9's vaguely worded rules, allows the authorities to fine practically any demonstration participant or organizer. The decree sets the penalties as follows:

· Ordinary participants in demonstrations who are first-time offenders can receive a warning, a fine of twenty to 150 minimal monthly salaries, or three to fifteen days of administrative detention;

· Organizers of a demonstration or repeat offenders (who have committed their second offence within a year of the first one) can be penalized by a fine of 150 to 300 times the minimum wage [about US$8 per month] or ten to fifteen days of administrative detention;

· Persons using unregistered flags or pennants-or emblems, symbols or posters that are aimed at damaging the state and public order-can be penalized by a fine of twenty to a hundred times the minimum wage, or three to fifteen days of administrative arrest, and confiscation of the object(s).

Relying on article 11, Minsk courts have fined numerous people more than US$100 each for participating in demonstrations, and have fined various demonstration organizers hundreds of dollars. These penalties are clearly excessive if one considers that the average per capita income in the country is below US$100 per month.

An unreasonably heavy responsibility is put on demonstration organizers, both in terms of the severity of the punitive measure (see above) and in terms of the number of rules and obligations they have to observe. In addition to the prohibitions included in article 9, article 8 obliges organizers of demonstrations to:

· Be present at the demonstration they organize at all times;

· Make sure that the conditions for and correct manner of carrying out the demonstration are observed; ensure the safety of citizens; and ensure that buildings, means of transport and other property remain undamaged;

· Follow all lawful orders of officials of the Ministry of Interior and assist them in maintaining public order;

· Inform participants in case the demonstration is ended [by the authorities];

· Carry a special sign to facilitate recognition as an organizer; and

· Report to the competent authorities on their request to clarify matters related to the demonstration.

It is clearly impossible for demonstration organizers to fulfil some of these requirements. In particular, while organizers can be expected to do everything within reasonable limits to make sure that public order is respected and that no damage is done to any persons or objects, they cannot be asked, as the decree does, to guarantee respect for public order.

In light of the numerous and onerous responsibilities placed on organizers of and participants in demonstrations, the vague wording of rules that must be observed during demonstrations-which are liable to be broadly interpreted-and the severe sanctions that can be imposed on organizers and participants for violating these rules and obligations, Human Rights Watch/Helsinki believes that one of the main objectives of Presidential Decree No. 5 is to discourage people from organizing and participating in demonstrations.

Preemptive Intervention

In addition to enforcing the restrictions set out in Presidential Decree No. 5, the Belarus government has in the past authorized the police to arrest people prior to demonstrations as a means of preventing their occurrence. A demonstration planned for March 14, 1997, in Minsk entitled "Belarus into Europe II," was stopped before it could begin when police surrounded the place of assembly and arrested everyone they thought might take part in the demonstration, including very young children. Many of these people were detained for a few hours and then releasedwithout charge. Before the same demonstration, school authorities reportedly demanded that parents promise that their children now not participate in any mass protests. Aleksandr Stupnikov told Human Rights Watch/Helsinki:

My daughter. . . had to bring a note to school from her parents saying that she would be at home tomorrow until 4:00 p.m. under the supervision of her parents. If not, the school claimed the right to bring the child to school so that she would be in class from 10:00 a.m. to 4:00 p.m., even though tomorrow, Constitution Day, is a school holiday. A similar letter was published in the newspaper Svaboda, from school girls, that the director of the school has to inform the police at 9:00 a.m. about the whereabouts of the pupils.97

According to a trial monitor from the Belarus Helsinki Committee, the authorities went so far as to cancel train services into Minsk from the countryside on October 19, 1996, the date set for a demonstration. On that same day, buses into Minsk were stopped and people were forced to get off just before entering the city. The overall effect of these measures was to keep people out of the city during the demonstration.98

89 Decree No. 12 on Several Measures on Improving the Practice of Lawyers and Notaries in the Republic of Belarus. 90 Human Rights Watch/Helsinki and Memorial interview, Nadezhda Dudareva, Minsk, April 2, 1997; Human Rights Watch/Helsinki telephone interview, Nadezhda Dudareva, Minsk, July 17, 1997. 91 Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27 to September 7, 1990. 92 Presidential Decree No. 5 of March 5, 1997 on Gatherings, Meetings, Street Marches, Demonstrations and Picketing. The decree differentiates among various forms of demonstrations: sobraniye (gathering), miting (meeting), ulichnoye shestviye (street march), demonstratsiya (demonstration) and piketirovaniye (picket) to indicate their size, whether or not they include marches, etc. Unless indicated otherwise, the word "demonstration" used in this report includes all of these types of demonstrations. 93 OMRI, March 6, 1997. 94 In issuing Decree Number 5, President Lukashenka may have exceeded his authority as president. The National Assembly had not delegated to the president the power to issue decrees with the force of law. The president therefore used his right to issue such decrees in cases of "specific necessity and urgency." It is questionable whether such a situation existed. 95 Presidential Decree No. 5 terms such deprivation of freedom "administrative detention," which is handed down by judicial sentence. It is standard practice, however, for the term "administrative detention" to describe detention that is ordered by a branch of executive power, rather than sentenced by a court. In a 1989 report for the United Nations Commission on Human Rights, administrative detention was defined as detention "ordered by the executive and the power of decision rests solely with the administrative or ministerial authority, even if a remedy a posteriori does exist in the courts against such a decision. The courts are then responsible only for considering the lawfulness of this decision and/or its proper enforcement, but not for taking the decision itself." "The Administration of Justice and the Human Rights of Detainees: The Question of the Human Rights of Persons Subjected to Any Form of Detention or Imprisonment: Report on the practice of administrative detention," submitted by Mr. Louis Joinet, E/CN.4/Sub.2/1989/27, July 6, 1989. 96 Human Rights Watch/Helsinki and Memorial interview, anonymous demonstrator, Minsk, April 6, 1997; Rigor Boyan, "A stsyag Evrasayuza - chatsvyora sutak aryshtu" (For the flag of the European Union - four days of arrest), Svaboda, February 28, 1997, p. 2. 97 Human Rights Watch/Helsinki telephone interview, Aleksandr Stupnikov, NTV correspondent, Minsk, March 14, 1997. See also Memorial Human Rights Center, "Respublika Belarus', v preddverii grazhdanskogo konflikta: narusheniya prav i svobod grazhdan" (The Republic of Belarus, on the threshold of civil conflict: Violations of rights and freedoms of citizens), April 1997, Appendix 1. 98 Human Rights Watch/Helsinki and Memorial interview, Minsk, April 1, 1997.