Vitebsk human rights activist Leonid Svetsik could not convince senior government authorities to apply to the Constitutional Court of Belarus. Human rights activist wanted to know the position of the Court under Articles 120, 122-124 of the Criminal Procedure Code, the Constitution and international treaties.
Under current legislation, Belarusian citizens have the right of direct appeal to the Constitutional Court. This right have only a few senior government officials and one official: the House of Representatives or the Council of the Republic of the National Assembly, Supreme Court, Supreme Economic Court, the Council of Ministers, the President of the Republic of Belarus. In their appeals, the Constitutional Court gives conclusions - in particular, the conclusions of the conformity of laws, decrees, presidential decrees, international treaties and other obligations of the Republic of Belarus with the Constitution and international instruments ratified by the Republic of Belarus.
Turning to the highest state authorities, Leonid Svetsik asked them to turn to the Constitutional Court in order to settle the question of it under certain articles of the Criminal Procedure Law of the current Constitution and the UN standard minimum rules in respect of non -custodial Measures (The Tokyo Rules).
In a statement, the human rights activist cited the following arguments:
When criminal proceedings investigator/inspector against the suspect (accused) may elect to apply and as a preventive measure on his own recognizance and proper conduct (Article 120 CCP), transfer of the person that is subject to the status of servicemen, under the supervision of the commander of a military unit (Article 122 of the CCP), return a minor under supervision (Article 123 CCP), bail (Art. 124 CCP). Legislator, if we start from a literal reading of the text of criminal procedural rules, has not provided the consent of the person ( suspect or defendant ) in respect of which shall be elected and shall apply the above listed restrictions.
It is obvious that preventive measures are psychologically coercive nature - restrict the freedom of the accused (suspect) mental influence. These measures are not related to isolation from society does not impinge on the very core of the rights guaranteed by Article 25 of the Constitution of the Republic of Belarus (freedom, inviolability and dignity) and are usually associated with some conditions for their implementation, as well as involve a restriction of the right under Article 30 of the Constitution of the Republic of Belarus (right to freedom of movement and residence).
Psychologically coercive measures shall be elected and used within the terms of the preliminary investigation and trial, and with the consent of the interested parties (and sometimes only in their application). Only in this case there is a strong likelihood that these commitments will be fulfilled by the accused (suspect).
Same provisions of Articles 120, 122, 123 and 124 of the CCP as the literal meaning and the meaning assigned to them by law enforcement, are not intended to pre-trial criminal proceedings obtaining the consent of the accused (suspect).
Psychologically coercive measures of restraint governed the UN Standard Minimum Rules in respect of non -custodial Measures (The Tokyo Rules), adopted by UN General Assembly Resolution from 14.12.1990 # 45/110. Accordance with clause 3.4 of these rules, custodial measures imposing an obligation on the accused (suspect) and that apply to formal proceedings or trial, or instead, require the consent of the accused (suspect).
The Tokyo Rules are an integral part of the legislation of the Republic of Belarus by virtue of Part 1 of Article 8 of the Constitution of the Republic of Belarus (priority of generally recognized principles of international law), have greater legal force in relation to the ordinary law - Belarusian Criminal Procedure Code. Consequently, the provisions of Articles 120, 122, 123 and 124 of the CCP do not match any of the Constitution, no international treaty.
That this was the conclusion of Vitebsk human rights activist.
However, these arguments were not convincing either for President of the Republic of Belarus or for the House of Representatives and the Council of the Republic nor the Supreme Court and the Supreme Economic Court, nor for the Council of Ministers of the Republic of Belarus.
The deputy chairman of the Supreme Court, Valery Kalinkovich reported that the grounds for raising the issue before the Constitutional Court on the constitutionality of the provisions of Articles 120, 122, 123 and 124 of the Criminal Procedure Code is not available. Its failure to address the Constitutional Court Mr. Kalinkovich explained as follows:
"The Standard Minimum Rules for the United Nations in respect of non-custodial measures (the Tokyo Rules, adopted December 14, 1990 Resolution 45/110 of the UN General Assembly), which was referenced in support of your point of view does not apply to treaties of the Republic of Belarus and are advisory in nature. Furthermore, as follows from the information contained in the text of the Tokyo Rules reservations, they shall be applied taking into account the political, economic, social and cultural conditions of each country, as well as the goals and objectives of its criminal justice system (1.3)."
The same position is held in the presidential administration and in both houses of the Belarusian parliament.
A Council of Ministers and has not become to justify its refusal. Head of department on work with citizens and legal entities of Council of Ministers of the Republic of Belarus Alexander Kovsher said only that "the Bureau of the Council of Ministers of the Republic of Belarus, April 1, 2014 decision to dismiss your request for a Council of Ministers of the Republic of Belarus in the prescribed manner the Constitutional Court of the Republic of Belarus proposal to test for compliance with the Constitution of the Republic of Belarus of articles 120, 122 - 124 of the Criminal Procedure Code - the Republic of Belarus".
Nevertheless, the human rights activist showed satisfaction with the fact that the highest state authorities mainly serious about his statement, deeply and fully argued its failure to address the Constitutional Court. He only regretted that he had not had a chance to learn the position of the Constitutional Court on the constitutionality of international agreements and the provisions of Articles 120, 122, 123 and 124 of the CCP. According to Leonid Svetsik, the possibility of direct citizens' appeals to the Constitutional Court would be a positive influence on the development of democracy in the country and would accelerate the formation of civil society in Belarus.
