56 The Death Penalty in the OSCE Area Fair-trial guarantees In 2001, the UN special rapporteur on the independence of judges and lawyers reported that: “the administration of justice, together with all its institutions, namely the judiciary, the prosecutorial service and the legal profession, are undermined and not perceived as separate and independent. The rule of law is therefore thwarted.”103 In November 2004, after a visit to Belarus, the UN Working Group on Arbitrary Detention noted a clear willingness and openness to change law and practice and to introduce positive changes; however, it noted with concern the excessive power given to prosecutors and investigators during the period of pre-trial detention, and that investigations are carried out without effective oversight by a judge. The Working Group also expressed concern regarding the procedure used for appointing and dismissing judges, which does not guarantee their independence from the executive branch, and also regarding the lack of independence of lawyers and of the National Bar Association.104 In January 2006, the UN special rapporteur on the situation of human rights in Belarus expressed his concern about the imbalance between the powers of the prosecution and the rights of the defence, which could lead to judicial errors, stating that this was of extreme concern since Belarus still applied the death penalty.105 Pardon or commutation The Constitution gives the president authority to grant clemency, and the death penalty may be commuted to life imprisonment.106 Appeals are initially considered by the Clemency Commission. The cases of all individuals sentenced to death are automatically considered regardless of whether the sentenced person has submitted an appeal for clemency.107 Relatives Relatives are not informed in advance of the date of execution. The administration of the institution where the execution is carried out is obliged to notify a close relative about the execution. The body is not returned, and the place of burial is not disclosed.108 The UN Human Rights Committee has found the treatment of the rela103 104 Report on the mission to Belarus, E/CN.4/2001/65/Add.1, 8 February 2001. Report of the Working Group on Arbitrary Detention, mission to Belarus, E/CN.4/2005/6/Add.3, 25 November 2004. 105 Report of the Special Rapporteur on the Situation of Human Rights in Belarus, Adrian Severin, E/CN.4/2006/36, 16 January 2006, Paragraph 20. 106 107 Article 84 (19) of the Constitution. Presidential Decree No. 250 “On the introduction of the regulation of provisions for pardoning procedure in the Republic of Belarus”, 3 December 1994. 108 Article 175, Criminal Executive Code.