Trials With Handcuffs and Cages, Premature Pronouncements Regarding Culpability: The Latest HRC Views on Arbitrary Death Sentences in Belarus

On March 21, the Human Rights Committee issued its Views stating the violation by the Belarusian authorities of the state's human rights obligations as to the investigation and conduct of proceedings that resulted in two death sentences. Violations were established both at the pre-trial detention stage (lack of prompt access to court) and during the state's actions during the trial (violation of the presumption of innocence). Disregard for fair trial guarantees leads to arbitrariness in imposing the death penalty — an irreversible punishment.

In this material, we will briefly review the circumstances of the considered cases, as well as the key conclusions of the Committee.

In July 2017, Semyon Berezhnoi and Igor Gershankov were sentenced to death. Along with others, they were found guilty on multiple counts of murder, attempted murder, robbery, and fraud by an organized group. The Supreme Court upheld the verdicts, and the pleas for clemency were unsuccessful.

In June and July 2018, the Committee sent requests to the state regarding the application of interim measures: not to carry out the death sentences while the cases were under examination by the Committee. The state ignored the requests: in November 2018, it was reported that Semyon Berezhnoi and Igor Gershankov had been executed.

Disregard for interim protective measures is incompatible with the obligation arising from Article 1 of the Optional Protocol to the Covenant (of which the Republic of Belarus was a party until denunciation in 2022): recognition of the Committee's competence to receive and consider individual communications implies the state's readiness to interact in good faith with the Committee, refrain from actions that obstruct the Committee's consideration of such complaints.

Disregard for interim measures aimed at preventing irreversible consequences by executing the death sentence constitutes a flagrant violation of the Optional Protocol, unfortunately characteristic of Belarusian practice: since 2010, at least 15 persons have been executed despite the Committee's requests to delay execution pending consideration of their cases, as well as grounds to believe that they were subjected to torture and other prohibited treatment, and fair trial guarantees were violated.

The Committee examined the complaint on its merits and found violations of Articles 6, 9(3), and 14(2) of the Covenant. Key aspects that the HRC took into account:

• Article 9 of the Covenant, inter alia, guarantees to every person arrested or detained on criminal charges the right to be brought promptly before a judge or other authority authorized by law to exercise judicial power (usually within 48 hours). The opportunity to appear before a court arose for the accused only after 580 days from the date of detention: their pre-trial detention was sanctioned by the prosecutor (who, under the existing Belarusian legislation and practice, can not be considered sufficiently independent and impartial, providing guarantees of judicial power), which violates the guarantees provided for in Article 9.
• Article 14 establishes the presumption of innocence, which was violated in several aspects in the cases of Semyon Berezhnoi and Igor Gershankov:
• during court hearings, the accused were held in metal cages and handcuffs,
• they had to wear jail uniforms that said “death row inmate” on their back,
• they were escorted for their appeal hearing to the Supreme Court by six guards who made them walk in a humiliating and extremely uncomfortable position reserved exclusively for persons sentenced to death (with their heads bent towards their knees),
• during their trial, several mass media outlets aired photo and video materials obtained from investigation authorities and called Berezhnoi and Gershankov “perpetrators”, which led to a biased public opinion against them and problems with finding defenders willing to take on their criminal cases.

In this regard, the Committee reminded: the presumption of innocence — a fundamental guarantee for the protection of other human rights — requires treating the accused in accordance with the presumption of their innocence until guilt is established beyond reasonable doubt. Such treatment necessitates seeking alternative ways to ensure the presence of the accused in court, safe for other persons and the administration of justice, excluding confinement in cages and handcuffs (as well as other treatment that gives the impression that the accused are dangerous criminals). State authorities and officials, as well as the media, should refrain from premature conclusions regarding the culpability of such individuals, not to mention the inadmissibility of public statements establishing guilt.

• Article 6 enshrines the inherent right to life and prohibits arbitrary deprivation of life. States that have not ratified the Second Optional Protocol to the Covenant aimed at abolishing the death penalty and have not eradicated this punishment may impose death sentences only for the most serious crimes in accordance with the law that was in force at the time the crime was committed and which does not contradict the provisions of the Covenant.

In this regard, it is necessary to emphasize the ongoing violation by the Republic of Belarus of its obligations under Article 6 both in connection with the expansion of the list of offenses for which capital punishment is provided (a state that has acceded to the Covenant must take measures to gradually transition to a moratorium or complete abolition of the death penalty; introducing additional offenses contradicts the purpose and essence of this treaty), and in connection with the inconsistency of the new grounds for imposing the death penalty with the criterion of "most serious crimes."

The Committee found a violation of the obligation to ensure a fair trial for Semyon Berezhnoi and Igor Gershankov. If the state disregards the guarantees of Article 14 of the Covenant while considering a case resulting in a death sentence, the imposition of such punishment is, in the opinion of the Committee, arbitrary by its nature, which violates the right to life of the condemned.

The Committee ordered the state to pay monetary compensation to the mothers of the convicted for the arbitrary deprivation of their sons' lives — and to take measures to prevent similar violations in the future, including the need for good faith cooperation with the Committee, including in the implementation of interim measures.

We will analyze this consideration and its conclusions in detail in the following materials. Stay tuned for updates on the website.