Death_Penalty_2005_nowy.qxd 2005-09-08 17:00 Page 18 THE DEATH PENALTY IN THE OSCE AREA undermined and not perceived as separate and independent. The rule of law is therefore thwarted.”40 In November 2004, after a visit to Belarus, the UN Working Group on Arbitrary Detention 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. The Working Group recommended that the Belarusian Government reconsider the role and place of the actors involved in the process of criminal prosecution in order to ensure their independence, to establish a balance between the parties at trial, and to ensure effective protection of the rights of people deprived of their liberty.41 In March 2005, the UN special rapporteur on the situation of human rights in Belarus expressed his concern that certain convictions resulting in the death penalty might be unsound as a result of judicial errors or violations of due process.42 Pardon or commutation The Constitution gives the president authority to grant clemency, and the death penalty may be commuted to life imprisonment.43 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.44 Relatives Relatives are not informed in advance of the date of execution. The body is not returned, and the place of burial is not disclosed.45 The UN Human Rights Committee has found the treatment of the relatives of individuals sentenced to death in Belarus to amount to inhuman treatment in violation of Article 7 of the ICCPR.46 40 41 42 43 44 45 46 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. Report of the special rapporteur on the situation of human rights in Belarus, Adrian Severin, E/CN.4/2005/35, 18 March 2005. 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. Article 175, Criminal Executive Code. CCPR/C/77/D/887/1999, 24 April 2003, and CCPR/C/77/D/886/1999, 28 April 2003. 18