What Is Wrong With the "Special Proceedings" — and Is It Permissible At All to Consider Criminal Cases In Absentia?
Published on January 27, 2023
Since the end of 2022, Belarus has long been announcing that the courts will try criminal cases under the so-called 'special proceedings'. This procedure, which makes it possible to bring criminal charges against citizens outside the Republic of Belarus, at the time of its introduction was already intended to be applied specifically in cases of exclusively political nature. During the first three months of its functioning, the criminal case against the persons accused of administering the telegram channel "The Black Book of Belarus" was considered and ended with a verdict against Aleksandra Herasimenia and Alexander Opeikin. It was announced that in the second half of January the criminal case against Sviatlana Tikhanouskaya, Pavel Latushko and other political activists in exile would be considered.

The "Right to Defence" project looked into the procedure of "special proceedings" in criminal cases in Belarus and the practice that has already begun to take shape, and tried to reconcile it with the basic right of citizens to a fair trial.
Photo: Attorneys without defendants in 'Coordination Council case'
What has changed?
In general, the changes concerning "special proceedings" are formulated in just four new articles of the Criminal Procedure Code and several amendments to its text.
In general, the following features of the new procedure can be highlighted:
  • It is carried out on the basis of an investigator's decision with the consent of the prosecutor or on the basis of a prosecutor's order;
  • In general, it can be carried out only in case an accused citizen of the Republic of Belarus is charged with one of the crimes listed in Article 468-25, Part 2, Para. 1 of the Code and at the same time an extradition of this person was denied or a request for extradition was not received within six months. The list includes all crimes from the chapter "Crimes against Peace, Security of Mankind and War Crimes", all crimes related to terrorism in one way or another, as well as all crimes from the chapter "Crimes against the State", except those related to extremist activities. However, it is separately stated that by order of the Prosecutor General (Chairman of the Investigative Committee or Chairman of the KGB and the consent of the Prosecutor General), special proceedings may also be applied in other cases, i.e. in fact the list of offenses is not exhaustive, and refusal to extradite or failure to do so may not be required;
  • Article 468-25, Part 3 of the Criminal Procedure Code provides that an order to conduct special proceedings shall be submitted by the investigator to the prosecutor no later than 15 days before the end of the pre-trial investigation, i.e. it is assumed that by the time this decision is taken the case has already been investigated almost fully in the absence of the accused;
  • From the moment the special proceedings are ordered (with the prosecutor's approval), the defendant's defense counsel must participate in the proceedings. If there is no defense counsel (and there almost never is one in such situations), one is appointed by the investigator in a general manner, i.e. as in all other cases of mandatory participation via a call for a standby counsel;
  • If the foreign state decides to extradite the defendant or the defendant appears in person, the special proceeding is replaced by a regular one;
  • The proper way to notify the defendant of the commencement of the special proceedings, the scheduling of the court hearing, and the outcome of the trial is simply to post this information on the official website of the body conducting the criminal proceedings;
  • From the beginning of the special proceedings, all notifications and copies of procedural decisions regarding the accused are sent only to his or her defense counsel, so the communication between the body conducting the criminal proceedings and the accused himself or herself is not guaranteed at all. The right to consult the documents (criminal case files, expert reports, and so on) is also transferred to the defense counsel in full;
  • The defendant's trial is conducted in accordance with the general procedure, with the obligatory participation of the prosecutor and the defense counsel.

Peculiarities of "special proceedings" in practice in Belarus
All the cases that have so far been or are being handled within "special proceedings" have been considered in camera, which makes it impossible to see the full picture of what is happening. However, several trends can already be noted that illustrate the main problems:
  • There is no mentioning of at least one case in which a defense lawyer has been contracted by the defendant, i.e. only the participation of lawyers by appointment is known of;
  • All publicly available sources demonstrate that not only do the appointed lawyers not attempt to contact their clients in any way, but they also avoid contact with them in every possible way;
  • Accordingly, the defendants are deprived of the opportunity to influence the process in any way: they do not have a single procedural document on the case, they do not know what the charges are and what evidence they are supported by, they have no opportunity to bring their position not only to the court, but even to their defense counsel.

"Special proceedings" vis-a-vis international human rights standards
Article 14, para. 3d of the International Covenant on Civil and Political Rights (hereafter the Covenant) provides that everyone shall be entitled in the determination of any criminal charge against him, on the basis of full equality of arms, to be tried in his presence and to defend himself in person or through legal assistance of his own choosing. Other rights and guarantees under Article 14 of the Covenant (such as the right to possess adequate time and facilities for the preparation of his defense as provided for in para. 3b) also indirectly indicate the desirability of the personal presence and participation of the accused.
However, the conduct of trials in absentia is not per se prohibited by the Covenant. Under the wording of Article 14, para. 3d, the State must ensure that the accused has the opportunity to participate in person in criminal proceedings, but whether he or she will do so is entirely up to the accused.
In para. 11 of General Comment No. 13 (1984) (hereinafter GC №13), the Human Rights Committee (hereinafter "the Committee") noted that "the Committee has not always been sufficiently informed about protecting the right of the accused to be present during any proceedings against him as well as how the legal system ensures his right to defend himself in person or through legal assistance of his own choosing and what happens in the event that he does not have sufficient means to pay for legal assistance. The defendant or his lawyer must have the right to act with care and fearlessness in using all available means of defense and the right to appeal against a hearing if they believe it has been unfair. Where, for purely justifiable reasons, trials are held in absentia, strict respect for the rights of the defense is extremely necessary".
General Comment No. 32 (2007), replacing a previous one (hereinafter GC №32) contains approximately the same rules in paras. 31, 36:
"31. In the case of proceedings in absentia, Article 14, para. 3(a) requires that, irrespective of the absence of the accused, all necessary measures be taken to inform the accused of the charges against them and to notify them of the proceedings in progress.
36. Article 14, para. 3(d) contains three separate safeguards. Firstly, this paragraph requires that persons accused of a criminal offense be granted the right to be tried in their presence. Trials in the absence of the accused may, in certain circumstances, be permissible in the interests of the proper administration of justice, for example where the accused, although notified of the trial sufficiently in advance, refuses to exercise their right to be tried in their presence. Thus, such trials are compatible with Article 14, para. 3(d), only if the necessary steps are taken to summon the accused in a timely manner and to inform them in advance of the date and place of trial and with a requirement to be present".
There are broadly comparable provisions in Council of Europe Committee of Ministers Resolution No. 75 (11) on Criteria Governing Proceedings Held in the Absence of the Accused (hereinafter the Resolutions). In addition to all of the above, para. 7 of the Resolution contains a guarantee of the right of appeal: "Any person tried in his absence must be able to appeal against the judgment by whatever means of recourse would have been open to him, had he been present". This could include the right of even an absent defendant to be acquainted with the charge, the case file and the verdict of the court. The Resolution also makes clear that proceedings in absentia are an exceptional measure, the far more acceptable alternatives to which are not only an attempt to obtain extradition but the possibility of transferring the case to the state of the accused in order to bring him to trial there.

The UN Human Rights Committee practice on trials in absentia
Turning to the case law of the Committee, it is worth noting that in general the examination of cases in the absence of the accused as a violation is mentioned relatively rarely in the communications. Thus in Communications № 44/1979 (Alba Pietraroia Alba Pietraroia vs Uruguay), R.14/63 (Violeta Setelich vs Uruguay), 139/1983 (Ilda Thomas vs Uruguay), 289/1988 (Dieter Wolf vs Panama) criminal trials were conducted in the absence of the accused, although the accused themselves were at the time detained in the same States, in clear violation of the Covenant. Communications № 623/1995, 624/1995, 626/1995, 627/1995 (Victor P. Domukovsky, Zaza Tsiklauri, Petre Gelbakhiani and Irakli Dokvadze vs Georgia) also found the removal of the accused and their counsel from the courtroom for part of the trial (in particular while some witnesses were being examined) to be a violation.
The only relevant Communication by a national of the Republic of Belarus, No. 1311/2004 (Ivan Osiyuk vs. Belarus), is a case in point. This case concerned, inter alia, the court's failure to notify the author of the date of the hearing of his administrative offense case, which the Committee found to be a violation of the Covenant.
However, there were only two communications in the Committee's jurisprudence in which the authors argued that a procedure similar to "special proceedings" (proceedings in absentia against nationals who are outside the State and cannot be extradited) violated the Covenant.
The author of Communication No. 16/1977 (Daniel Monguya Mbenge vs. Zaire), who was a national of Zaire but was residing in Belgium and had been granted political asylum in that country, learned from the press that he had been sentenced to death twice in his home country. The Committee considered that the author's right had been violated, on the following grounds:
"In accordance with Article 14(3) of the Covenant, everyone has the right to be tried in his presence and to defend himself in person or through legal assistance. This provision and the other requirements of due process enshrined in Article 14 cannot be interpreted as invariably rendering proceedings in absentia inadmissible, regardless of the reasons for the absence of the accused. It is true that proceedings in absentia are admissible in certain circumstances (for example, when the defendant, although notified of the trial in advance, refuses to exercise his or her right to be present) in the interests of the proper administration of justice. However, the effective exercise of Article 14 rights involves taking the necessary steps to inform the accused in advance of the proceedings against him or her. A trial in absentia requires that, despite the absence of the accused, all reasonable notice be given to inform him of the date and place of the trial and to request his appearance.
The Committee recognises that there must be certain limitations on the efforts that can properly be expected of the responsible authorities to make contact with the accused. However, these limits need not be specified with regard to the present communication. The State party has not contested the author's claim that he learned about the trials only through press reports after they had taken place. It is true that both judgements explicitly state that the summonses to appear were issued by the registrar of the court. However, there is no indication of any steps actually taken by the State party to deliver the summonses to the author, whose address in Belgium was correctly listed in the decision of 17 August 1977 and was therefore known to the judicial authorities. The fact that, according to the decision of the second trial of March 1978, the summons was sent only three days before the court hearing, supports the Committee's conclusion that the State party made insufficient efforts to inform the author of the forthcoming proceedings so as to enable him to prepare his defense.
The author of communication No. 699/1996 (Ali Maleki vs Italy) was convicted in absentia in Italy while he was in the United States as an Iranian national. Notably, prior to this conviction in absentia, Italy was denied extradition by a US court, but the author himself traveled to Italy, for unknown reasons, where he was detained to serve 10 years' imprisonment. On this communication, the court also found that the author's rights had been violated, reasoning as follows:
"In the past, the Committee has considered that proceedings in absentia are compatible with article 14 only if the accused has been summoned and notified in good time of the proceedings against him. In order for the State party to comply with fair trial requirements in proceedings in absentia, it must demonstrate that these principles have been respected.
The State party does not deny that Mr. Maleki was tried in absentia. However it fails to show that the author was summoned in good time and that he was informed of the criminal proceedings against him. It simply states that it "suggests" that the author was informed by his lawyer of the proceedings against him in Italy. This is clearly insufficient to lift the burden placed on the State party if it justifies trial in absentia against the accused. It was incumbent on the trial court to satisfy itself that the author had been informed of the case at hand before proceeding to trial in absentia. In the absence of evidence that the court did so, the Committee considers that the author's right to be tried in his presence has been violated".
Thus, it can be stated that in the current Committee practice, the only criterion for verifying a violation of the right to personal participation in court proceedings (Article 14(3d) of the Covenant) is the proper notification of the defendant of the date, time and place of the proceedings.
In this regard, the provisions of the current Belarusian Criminal Procedure Code, under which the proper notification is the publication of information about the decisions on the Internet, may be found to violate the Covenant, if it is not proved that the notifications have reached the addressee. It may be assumed that the defendant's public comments before the trial, showing that the date, time and place of the trial were known to him, would mean that proper notice had been given and that there would therefore be no violation of the Covenant in this respect.
On a separate note, General Comment No. 32, in addition to notification of the date, time and place of the trial, focuses on informing the defendant of the charges. In view of the lack of extensive practice in this area, it is difficult to know whether the Committee would consider a mere reference to an article in the Special Section of the Criminal Code which the defendant is charged as sufficient information on the charges, but it is likely to be insufficient. If a person, knowing of the proceedings, has made an attempt to find out the nature of the charge, then the State should take steps to ensure the right to know what the person is accused of. These measures can either be the sending of a text of a confession (charge) or allowing sufficient time and opportunity for the accused to consult with defense counsel, with the possibility of obtaining the text from him or her. Without a full text of the charges, it is inconceivable that the accused will be able to appeal the verdict independently or present any arguments or evidence in his or her defense. Similarly, it is difficult to imagine the right to a fair trial being respected when the accused does not know on what evidence the trial was based. The state in this situation has quite serious due diligence obligations, in particular the provision of the case file. In our view, providing the only way to become familiar with the case file — to come and therefore end up in custody — would also not constitute the State's compliance with the guarantees enshrined in the right to a fair trial.
However, the Committee has never assessed whether the appointed defense counsel refused to cooperate or, more generally, to have any contact with his or her client (even if the latter had actively sought such contact). In this regard, it is worth referring to paragraph 32 of GC №32, which provides that "a State party shall not be liable for the conduct of legal assistance unless it has become apparent to the judge that the conduct of legal assistance is incompatible with the interests of justice". Also under paragraph 38 of GC №32, "defense counsel provided by the competent authorities on the basis of this provision must effectively represent the accused... There is also a violation if the court or other relevant authorities prevent appointed lawyers from effectively exercising their functions". Accordingly, the improper performance of defense counsel's duties is not in itself a State responsibility, but it may become one if the fact was known to the judge and he failed to take any action in response. It can be assumed that public statements in the media about the conduct of defense counsel and complaints against him addressed to the court can be interpreted as "it became or should have become apparent to the judge that the conduct of defense counsel was incompatible with the interests of justice" and therefore state responsibility may still take place.

To summarize all of the above, it should be noted that the procedure of "special proceedings" cannot be assessed in isolation from other flaws of the judicial system in Belarus. It is the apparent absence of an independent and fair trial which makes it possible for virtually all cases to be heard in camera (with an almost mandatory requirement that the defense counsel sign non-disclosure agreements and a closed trial), where no information about the court proceedings reaches the public and the accused themselves, and even theoretically no information can reach them at all. This, in turn, puts the attorney, who is already part of the state-dependent legal profession, in an extremely vulnerable position and leads to the above-mentioned safest option of breaking off any contacts with his client. After all, even the mere reading of the charges by an attorney to his client can easily turn into a violation of the non-disclosure agreement in a criminal case and, therefore, into a criminal case against the attorney himself.
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