The following are systemic problems that prevent the exhaustion of all available domestic remedies or the provision of information to the Committee regarding such exhaustion. All of them are due to either the arbitrary use of restrictive mechanisms by the state (taking away a non-disclosure agreement, holding closed court hearings), or the creation of conditions in which recourse to internal means seems impossible or completely futile. A. Gag orders and closed court hearings
A gag order, a tool originally designed to ensure due process and the right to the presumption of innocence, has been widely used since 2020 as a mechanism for limiting the dissemination of information about the process. The Criminal Procedure Code of the Republic of Belarus already prohibits
the disclosure of data from a preliminary investigation or inquiry, but a gag order presupposes
the possibility of criminal prosecution under Art. 407 of the Criminal Code in the event of disclosure - as practice shows
- of virtually any information about the case, while the order is given to all participants in the process, including witnesses.
According to a study
conducted by our project, in 2022, 31.4% of lawyers surveyed faced being forced to sign a gag order of preliminary investigation data exclusively in cases of a political nature, while 82.8% of lawyers are confident that such practice is more often practiced specifically in matters of this nature. There are already known cases
of sanctions against lawyers who refused to provide a gag order - for example, on this basis, Vladimir Sazanchuk
, who defended Nikolai Statkevich and Dmitry Kozlov, was deprived of his license
Special Rapporteur on the situation of human rights defenders, Mary Lawlor, noted
: "Non-disclosure agreements de facto criminalize the dissemination of information relating to human rights... The space for human rights work in Belarus is shrinking to the point of impossibility."
In the context of filing complaints with the Human Rights Committee, the disclosure by a lawyer of documents indicating the exhaustion of domestic remedies, subject to a non-disclosure agreement, may result in criminal prosecution against such attorney.
Article 407 of the Criminal Code also provides for the possibility of criminal prosecution in the event of disclosure of data about the case during a closed court hearing. Despite the fact that both the Criminal Procedure Code and the provisions of the Covenant provide for the possibility of holding closed court hearings, it is necessary to understand that such a court format is a limitation of the general right to a fair and public trial of the case - and therefore must be justified in each individual case from the point of view of what is permitted by the article 14 of the Covenant
as legitimate grounds. The practice of the Belarusian model shows that political trials are often declared closed on arbitrary grounds, which prevents lawyers from providing the Committee with documents related to the trial (including the text of the verdict). B. Remedies with little chance of success—or unavailability
As noted above, the Committee may consider particular remedies to be futile if there are reasonable grounds
for believing that they have no prospect of success due to general defects in the legal system and the lack of guarantees for the independence of the judiciary. The Committee also noted
that fear of persecution by the State for seeking legal remedies may justify the failure to indicate that all remedies have been exhausted in an applicant's complaint. In the case of torture, according to
the members of the HR Committee, only criminal prosecution of the perpetrators can represent a truly effective remedy.
Since 2020, hundreds of complaints of torture and ill-treatment have been recorded
, but there is no information about investigations and prosecution of those responsible for these acts. Moreover, attempts to use existing means to prosecute law enforcement officers who are actively protected by the state may result
in persecution for the victims themselves - and their lawyers, as has been repeatedly noted in the reports
of international bodies. B. Lack of access to legal remedies in pre-trial detention centers
In Belarus, a practice has developed of systematically preventing lawyers from accessing administratively detained persons, with the authorities citing the lack of material conditions for exercising the right of detainees to legal assistance. Reasons used
include the risk of contracting COVID-19, insufficient numbers of rooms or simply "technical reasons."
In addition, detainees are often not given copies of documents related to their process - nor the means to physically file a complaint in the place of detention. In such circumstances, it is simply not possible to exhaust all formally available legal remedies. It is logical that the state bears responsibility for creating such conditions. At the same time, the systematic nature of these cases indicates the controlled nature of the violations.