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The Open Letter by the
Minister of Justice of the Republic of Belarus Addressed to the Attorney
General of the United States of America
Unofficial
translation
Dear Mr.
Attorney General,
In April 2003, the Commission on Human Rights of the Economic and Social
Council of the United Nations adopted a resolution on the Republic of
Belarus in connection with alleged facts of human rights violations.
The Ministry of Justice of the Republic of Belarus does not have as
far-reaching powers as the US Department of Justice, which performs, among
others, the functions of the Office of Public Prosecutor and supervises
prisons and criminal investigations (FBI). Nevertheless, the functions and
tasks, which the Ministry of Justice performs on our country, are also
sufficiently extensive.
Taking the above into consideration, I would like to inform you of the real
status of human rights in Belarus and of the activities of state bodies in
this area.
Using its own experience, advanced Constitutions of foreign countries and
international legal documents, Belarus has ensured in its Constitution a
provision stating that “a person, one’s rights, freedoms and guarantees of
their realization are the supreme value and objective of society and state”.
Suffice it to say that more than half of the 146 Articles of the
Constitution are dedicated, to a variable degree, to the legal status of a
person and a citizen. The system of the higher bodies of power has been set
up and the principles of the separation of powers, on the whole, are
implemented. The head of our state is the President, who stands as a
guarantor of the Constitution, rights and freedoms of the citizens of the
country. Many of the provisions of the Fundamental Law have been affirmed by
the will of the entire people, stated at the referendum. This was the
Belarusian people, Mr. Attorney General, who decided in 1996 to expand the
powers of the President, since it believed that necessary under the
conditions when new public relations were taking shape and when legal order
in the nation had to be ensured.
Belarus’ President adopts measures to protect the nation’s sovereignty,
provide for political and economic stability and ensure the interaction of
the bodies of state power. With the consent of the House of Representatives,
he appoints the Prime Minister of the country, appoints and dismisses
ministers, makes decisions on citizenship, pardons citizens, signs laws and
is the Commander-in-Chief of the nation’s Armed Forces. Whether it is much
or little is difficult to say and history will judge that. You have to
agree, that any people needs a strong President.
The US Constitution does not say a word about any collegial government: the
President personally appoints supreme officials, ambassadors and federal
judges. He is also the Commander-in-Chief and enjoys other huge powers.
History testifies that, unless the United States had had a strong
Presidential power, there would have been no strong state.
In any case, the choice of both American and Belarusian peoples is the same:
strong President means strong power. Belarus’ Constitution starts with “We,
the People of Belarus…” in the same way as the US Constitution, which starts
with “We, the people of the United States…” It is therefore not quite clear,
why an opinion on excessively wide powers of Belarus’ President is discussed
so persistently.
Western countries pay the same “attention” to our judicial branch, which is
constantly accused of the absence of independence. Meanwhile, Article 110 of
the Constitution affirms: judicial power in the country belongs exclusively
to courts and is implemented independently of legislative and executive
branches while any interference into judges’ activities in administering
justice is prohibited. The Criminal Code determines criminal responsibility
for any interference of an official using one’s official position into
judges’ activities in whatever form. The Ministry of Justice, in accordance
with existing legislation, implements legal decisions and selects and
retrains judges. All judges of the Supreme and High Economic Courts and half
of the judges of the Constitution Court as well as all other judges are
appointed by the President. This ensures independence in administering
justice.
In 2002, almost half of common courts’ decisions to reinstate someone to
one’s job as well as more than 80% of claims on receiving salaries were
ruled in favor of employees. Half of complaints on infringing upon citizens’
rights by officials or official bodies were ruled in favor of citizens.
Courts also satisfied all foreign citizens’ requests to adopt Belarusian
children. Practically all citizens’ claims on taxes and dues are ruled by
courts in favor of citizens. So where is the alleged dependence of our
courts? Is it, perhaps, in the fact, that courts’ decisions often contradict
early conclusions made by individual domestic politicians and various human
rights centers striving to go down in history by any means?
The state has an independent legal institution, the Bar. The Law of the
Republic of Belarus “On the Bar” satisfies the requirements of basic
provisions on the role of the Bar, adopted at the UN Eighth Congress on
Crime Prevention. More than 1500 lawyers carry out these activities in our
country. Lawyer self-rule bodies are in charge of their disciplinary
responsibilities as well as their hiring or dismissal from the Bar. Any
accusations in lawyers’ dependence on the state are mainly from the persons,
who had earlier been engaged in lawyers’ practice, but were then denied this
right. Indeed, in the first few years of building a sovereign state
practically all bodies of local authorities could issue permission to
conduct lawyers practice under one condition: a candidate had to have a
diploma on higher legal education. It is not surprising, that, under such
“selection” process, even people who had previously had problems with the
law could become lawyers. The state has put a barrier to all this: universal
criteria of practicing law, including the necessary Bar membership, have
been determined. The same practice exists in the United States.
Fundamental citizens’ rights in social and cultural area, above all, the
right to work, are guaranteed in Belarus. Thus, the Labor Code stipulates
employees’ fundamental rights, including the right to choose profession,
activity and work in accordance with one’s vocation, abilities and
education. Employees enjoy the right to the protection of their economic
rights and interests, including the right to be united in trade unions, the
rights to weekly rest, vacation, social insurance, and pensions, as well as
guarantees for the cases of professional illness, labor injury, disablement
and loss of a job. The right to education is guaranteed by the Law of the
Republic of Belarus “On Education”, envisaging free comprehensive secondary
and vocational education and, on competition basis, free special secondary
and higher education. The decree of the Head of State establishes the right
to receive beneficial credit to pay for the first higher education received
in state-run higher education establishments on payment basis.
Article 35 of the Constitution guarantees the freedom of assembly, meetings,
street manifestations and demonstrations that do not violate law and order
and the rights of other citizens.
As you are aware, in the majority of developed countries notification to
authorities or authorities’ permission are required for open-air assemblies
(in Germany – two days, in France – three days, in Great Britain – six days
before the assembly). In a number of European countries, police have the
right to prohibit for 2-3 months any public rallies if they can lead to
public disorder. It is not allowed to have rallies close to parliaments,
residences of heads of state, in trade areas and at military bases. Local
authorities, while approving demonstration’s itinerary, can limit the number
of its participants. If the approved itinerary is violated, police have the
right to disperse a demonstration using force and technical means.
As far as the United States is concerned, well known are the US Supreme
Court’s decisions on the issue. Here is one of them: “Freedom of speech and
freedom of assembly as fundamental in our democratic society still do not
mean that everyone who wishes to express one’s opinion or hopes can address
the assembled in any public place or at any time” (Cox. V. Lousiana, 379
U.S. 559 (1965)). I believe that one understands, both in Belarus and in
America, that a country needs order and security for its citizens.
There are 18 political parties acting in our republic. Like in any other
democratic society some of them are in opposition to the authorities but
they are not hindered in criticizing authorities, they are granted the right
to present their programs in newspapers including in those run by state. In
accordance with the existing legislation only the Supreme Court has the
authority to liquidate a party. So far such cases have not occurred. Though
I will make no secret of the fact that certain parties and their leaders
sometimes violate the law. In the meantime our nation has the same approach
to all parties: the law. Thus in 2002 the Ministry of Justice issued the
notice of warning for the Social-Democratic Party of Civil Accord, United
Civil Party, Belarusian Patriotic Party, Party of "Belarusian Democratic
Gramada", Party of Communists Belarusian and others.
There are 749 republican public associations, 233 international and 37
republican labor unions, and more than 1250 local public associations in the
country.
The liquidation of public associations, however, is possible only by the
court’s decision. In the last two years 13 public associations have been
liquidated in legal form. Some of them conducted commercial activity instead
of implementing their Charters’ objectives; others ignored critical remarks
of registering body and impeded inspections. The government of any country
would make appropriate conclusions having discovered for example leaflets
containing anti-governmental calls in the documentation of a public
association whose task, according to their statute, is "to promote formation
of a civil society in the country". The United States Code of Laws in this
case is unambiguous: "Whoever organizes or helps or attempts to organize any
society, group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any such government by force or violence ...
fined for up to 20 thousand dollars and or imprisonment for up to 20 years"
(United States Code (1988) Title 18. Sec. 2382, 2385).
Belarus has accepted obligations outlined in a large number of multilateral
international treaties, signed in the UN framework, regarding concrete human
rights violations: the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, the Convention on the Elimination of
all Forms of Racial Discrimination, the Convention on the Prevention and
Punishment of the Crime of Genocide, the Convention on Inapplicability of
Statute of Limitation to War Crimes and Crimes Against Humanity, the
Convention on the Rights of the Child and many others. Our country is a
participant to the whole range of international treaties directed at the
struggle against manufacturing and illegal distribution of narcotics,
participates in a significant number of conventions elaborated in the frames
of the International Labor Organization, and acceded to the Geneva
conventions, protecting victims of war.
By the way, Mr. Attorney General, allow me to remind you that the United
States till now has not ratified the International Pact for Economic, Social
and Cultural Rights of 1966, the Convention on the Elimination of All Forms
of Discrimination against Women of 1979 and the Convention on the Rights of
the Child of 1989. The latter contains ban on capital punishment for minors.
The Republic of Belarus did this as far back as in 1992.
As a reference point, let us take the Human Development Report 2002,
hard-edged and independent political document elaborated by a group of
outstanding consultants and counselors by request of the UN Development
Program. According to it, in the development of human potential Belarus was
ranked the 56th in the world in 2002. The index was determined based on the
results of activities of the whole range of international organizations: the
World Health Organization, the World Intellectual Property Organization, the
United Nations Children's Fund, the World Bank, the International Monetary
Fund, the International Labor Organization etc.
The Republic of Belarus has surpassed the Russian Federation, Bulgaria,
Romania, Brazil, Ukraine, Armenia, Kazakhstan, Georgia, China, Moldova,
Azerbaijan and many other nations. In the section of the countries with the
average level of the development of human potential Belarus was ranked the
3rd. After all in the number of medical doctors per 100 thousand people we
surpass Sweden, Belgium, Japan, Switzerland, France, Great Britain and the
United States. Expenditures for health care in percentage to GDP in our
country are higher than in Russia, Bulgaria, Romania, Armenia, Kazakhstan
and Ukraine. As you know more than 30 thousand children die daily of
diseases amenable to preventive measures. In the meantime in the number of
immunized one-year-old children Belarus is ranked higher than many developed
countries including the United States.
In expenditures for public education in percentage to the state budget the
Republic of Belarus has outranked Australia, Canada, Norway etc.
Level of impartiality of judicial system (lawfulness) corresponds to the
standards of such European nations as Spain, Hungary, and Poland...
In the capital city of our nation – Minsk – criminality in relation to the
general population is lower than in Bishkek (Kyrgyz Republic), Bratislava
(Slovakia), Budapest (Hungary), Bucharest (Romania), Vilnius (Lithuania),
Delhi (India), and Moscow (Russia)...
According to the Interpol, crime rate in Belarus per 100 thousand population
in 2001 was 10 times lower than in Denmark, 8 times lower than in Finland or
Canada, 7 times lower than in Germany and 4 times lower than in USA. Of
course, this is not the reason for conscience' sake, but nevertheless.
In the fall of 2000, the session of the United Nations Human Rights
subcommittee already considered similar question. At that time, after the
statement made by the Deputy Minister of Justice, head of the Belarusian
delegation, U.S. expert Mr. Weisbrod did not detect any special problems in
Belarus regarding this matter. It is unclear why the United States is
initiating similar resolutions now. What changed in the last two and a half
years, Mr. Attorney General? Can it be that the reason for that is an
independent Belarusian position on Iraq question as well as the condemnation
of war as a tool for conflict resolution?
Certainly, we do have, just like any other country, problems and unresolved
issues. Unfortunately, crime rate is not decreasing; some of its indices are
even on the rise. In spite of considerable police efforts many crimes remain
unsolved. However I do not think, Mr. Attorney General, that on the basis of
separate, still unsolved, crimes one can make universal conclusions that
Belarus violates international obligations in the area of human rights.
According to the Code of the Criminal Procedure of the Republic of Belarus,
the duty of law enforcement agencies and their investigating bodies is to
undertake all measures, provided by law, for comprehensive, full and
objective investigation of the facts of the criminal case while the
responsibility of the Office of Public Prosecutor is to oversee crime
investigations, validity of initiation, investigation and suspension of
criminal cases. Such are the duties of the similar structures of other
countries.
Belarus establishes mutually acceptable relations with the OSCE. Close to
the solution are the matters related to ombudsman, special institution for
watching the government activities for ensuring civil rights and freedoms,
to the creation of common service of court officers, and to the improvement
of activities of legal experts. Under consideration are the issues of the
placement of penitentiary system under the authority of the Ministry of
Justice, of the creation of a single investigating agency in the country,
and of the improvement in the activities of the authorized bodies for
judges’ selection. The role and responsibility of judicial authority will
improve in order to rapidly and fairly consider every citizen’s claim by a
common court with the possibility of appeal. The activities of legal
agencies within the judicial authority require further coordination. All
legal subjects having legislative initiative should recognize higher
significance of the Constitutional Court’s decisions. Time demands that the
bodies of public prosecution should be given more authority, especially in
the area of general supervision over the compliance with the social rights
of citizens, intensification of supervising over the operative investigating
departments.
The President of our country being, according to the Constitution, guarantor
of the rights and freedoms of citizens and stability of the society, does
much to improve the role and responsibility of the authorized state
structures, to protect the rights and freedoms of citizens, and to
strengthen law and order. The head of state participates in the congresses
of the judges, joint sessions of the Ministry of Justice and Supreme Court,
and law enforcement agencies. The President held hearings on the functioning
of courts, law enforcement agencies in the area of ensuring the rights and
freedoms of citizens as well as on the report of the Minister of Justice on
ensuring independence of common courts. The Prosecutor General on a regular
basis reports on the state of law in the country.
Because of temporary economic difficulties the President has to control the
regularity of timely payment of pensions, allowances and salaries, support
the unprofitable urban and agricultural enterprises in order to provide for
progressive improvement of socials relations in the country. Do you know,
Mr. Attorney General, that a significant part of our territory was
contaminated by radioactivity and the state has to spend a portion of its
budget on the elimination of the consequences of the Chernobyl accident? The
country has to deal with this disaster practically on its own. But our
people are grateful for help from other countries, including the USA.
Democracy cannot be imported. This is a gradual and progressive process that
every country must pass independently on the basis of its own traditions and
mentality of the nation. However, similar resolutions of the UN Commission
do not facilitate normal relations and dialogue between countries.
It would be naive to assert that the Republic of Belarus has done everything
in the area of protecting the rights and freedoms of citizens. However, you
are aware, Mr. Attorney General, that, according to the data of the
nongovernmental organization “Amnesty International”, in 1999 human rights
were violated to a greater or lesser extent in 132 countries of the world,
including a number of developed countries. The United States is also on this
list.
…I mentioned only some of the aspects of the activities of governmental
agencies to protect the rights and freedoms of citizens, while the total
volume of their activities is much bigger. Undoubtedly, an opinion on these
problems of any public organization, including those, which do not
sympathize with the authorities in power, is very important. However the
question arises as to whether this isolated opinion is in proportion to the
scale of objective information.
I hope you will make an unbiased conclusion regarding the actual state of
affairs in Belarus.
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