Important Findings of the Human Rights Committee in the Views Concerning Viktar Babaryka's Communication

In December 2023, the Human Rights Committee issued its Views on one of Viktar Babaryka’s communications, concluding that Belarus had breached its obligations under Article 9, paragraphs 1, 3, and 4, of the Covenant (right to liberty and security of the person). The original text of the Views can be found here, and here — a summary of the Committee's findings.

We wish to highlight several crucial aspects of the Committee’s findings, particularly relevant to the Belarusian context.

Firstly, the Committee (echoing the general trend in law enforcement, as unfortunately exemplified by Viktar Babaryka’s situation) draws attention to the absence of opportunities for prompt and confidential communication with a lawyer. All prior Views of the Committee concerning Belarus identified such circumstances as a violation of Article 14 of the Covenant (The right to a fair trial. See, among others, Svetlana Zhuk, Communication No. 1910/2009; Oleg Grishkovtsov (represented by Roman Kislyak), Communication No. 2013/2010; Andrei Burdyko (represented by Roman Kislyak), Communication No. 2017/2010).

This issue of delayed and non-confidential access to a lawyer is a long-standing problem in Belarusian practice. The Committee has previously acknowledged this violation under Article 14, being guided by the necessity for prompt access to defence counsel and adequate conditions for defence preparation to ensure a fair trial. The Committee’s Views on Babaryka’s communication, however, shed light on another aspect of such access – the opportunity for judicial review of the lawfulness of detention. The denial of timely, confidential access to defence counsel, coupled with the lack of opportunity for confidential communication, denotes arbitrary detention.

Secondly, the Committee highlighted the pressure exerted on Babaryka’s lawyers through the imposition of non-disclosure agreements. These agreements hinder the lawyers' ability to provide the Committee with essential documents to substantiate claims of the State's Covenant rights violations. The Committee stressed that such measures obstruct human rights protection under the Covenant and its Optional Protocol. This point is significant, as non-disclosure agreements, among other mechanisms widely used to hinder lawyers' work, impede access to international human rights mechanisms. Providing necessary documentation on the exhaustion of domestic remedies (a prerequisite for accessing such mechanisms, detailed here) or obtaining judgments from closed trials presents lawyers with the risk of criminal prosecution.