Harry Pahanyaila Addresses Authorities: The People of Belarus Pursue You

Millions of patriotically-minded people are inspired by the spring, Day of Will, and the anticipation of a near victory.

At present, I see no point in returning to the origins of the crisis, which began back in November 1996 with the infamous referendum. According to its results, rejecting the principles of separation of powers and the rule of law, Aliaksanr Lukashenka and his entourage introduced an absolutist regime in Belarus, writes the chairman of the Legal Committee of Belarusian Helsinki Committee, Harry Pahanyaila, for naviny.by.

The established system of power and procedure for its implementation has excluded every possibility of open and fair elections in the country. The electoral commissions, formed by the executive power, up to the Central Electoral Commission, consisted mainly of dependent and obedient people and issued pre-determined by the so-called "election organizers" voting results. The veracity of them was not possible to check.

Criticism of such quasi-elections by national and international observers (except those delegated from the CIS countries) was not accepted by the authorities, and the "elected" (appointed) "representatives of the people" acquired legal status.

In the election campaign of the summer of 2020, things failed to go according to the intended scenario. Anticipating a danger and threat to their existence, the authorities began a brutal repressive campaign. The scale of them shocked the entire civilized world. Their description, scale and consequences are not the purposes of this study. They are already on the desks of many specialists, who continue to collect and document the crimes committed for the subsequent not only historical but legal assessment, to establish the truth and punish the guilty, to rehabilitate the victims and restore justice.

In this case, quite unexpected and unusual actions of the Constitutional Court of the Republic of Belarus, headed by Pyotr Miklashevich, motivated me to address the readers.

At the very height of the uprising that covered the country, the population of all ages and strata - the deceived electors, shocked with what they saw, read, heard, from thousands of citizens, who became victims of violence from the side of, frankly speaking, brutal officers of the so-called law-enforcement bodies - witnessed how the Constitutional Court issued an unusual act. On 25 August 2020, a whole bench expressed the Constitutional Court's position on the protection of the constitutional order.

I find it complex to explain the motives of judges in adopting the act.

The references to Article 116 of the Constitution and Article 6 of the Code on the Judiciary and the Status of Judges, as well as to Articles 44, 45 of the Law on Constitutional Court Proceedings are formal. Meanwhile, the Constitutional Court has concisely set out its vision of the situation and explained to citizens, all branches of power and officials that "legal procedures, including the right to judicial protection, are established for protecting the constitutional rights of citizens in the electoral process in the Republic of Belarus as a democratic state".

Developing this most important position of the Constitutional Court, its co-chairman Pyotr Miklashevich, stated in an interview to the newspaper "SB. Belarus Today" on 25 August: "Following the electoral legislation, there are two bodies authorized to consider issues related to challenging the election results and invalidating them. These are the Central Election Commission and the Supreme Court".

As for the courts, I would like to refer to the fact that the decisions of the Constitutional Court have consistently and repeatedly emphasized the universal and fundamental nature of the right to judicial protection provided by Article 60 of the Constitution. This right ensures one of the fundamental principles of our state and the inviolability of its constitutional order - the rule of law.

The Constitutional Court is one of the crucial mechanisms of checks and balances. Therefore, at such an important and tragic moment for the fate of the state and millions of its citizens, it directly and unambiguously indicated the need to follow the prescriptions of the Constitution and the electoral laws in the issued act, when acting as an arbitrator in the political confrontation, to ensure peace and harmony in the society.

It is noteworthy that the Constitutional Court did it exactly when judges of the Supreme Court I.V. Lazovikava, A.G. Terekh, I.G. Milto, in violation of the constitutional right to judicial protection, refused to initiate civil proceedings on complaints of presidential candidates because of lack of competence (Article 245, para 1 of the CCP) on the eve of 24 August 2020. Whereas, Article 79 of the Electoral Code states that "the decision of the Central Commission may be appealed to the Supreme Court of the Republic of Belarus within 10 days". Presidential candidates of the Republic of Belarus have the right to complain about the invalidation of elections.

Thus, one of the entities established by law to contest the election results and invalidate them has denied the persons concerned their right to justice.

It brings to memory the norm of the Code of Napoleon (France) that is still in force: "The judge who refuses to judge under the pretext of silence, darkness or insufficiency of law, may be subject to prosecution for denial of justice".

This is also enshrined in our Code of Civil Procedure. Thus, Article 6 para 1 specifies: "Denial of judicial protection on the grounds of absence, incompleteness, contradiction, the ambiguity of a normative act shall not be allowed".

Did the judges of the Supreme Court realize they were delivering knowingly unjust rulings on the appeals of presidential candidates? I think. However, they acted contrary to the prescriptions of the Constitution and the law. They still hope for the promised tacit protection of those who withhold power by force. They are subject to criminal prosecution under Article 392 of the Criminal Code (for issuing a knowingly unjust judicial act) that entails a penalty of up to 10 years in prison.

Did Mrs Yermoshina - "chief lawyer and expert" in the system of electoral legislation - and people like her, who prepared the illegal inauguration of the illegitimate president, know that the procedure of judicial appeal and annulment of the August election failed? I claim she I was well aware of it. Such cases require the presence of representatives of the Central Commission during the court sessions and submission of the decisions made on the appeals. It didn't happen.

For me, a professional lawyer, there is one question unanswered. Why did judges of the Constitutional Court fail to keep up with the other representatives of power in the generally well-established mechanism of the power established in Belarus?

What do I mean? Although millions of voters did not agree with the announced election results, and the Central Election Commission was unable to provide any reasonable explanation or evidence that over 80 per cent of the voters voted for Lukashenka, all branches of government subserviently declared him the winner. However, to recognize him as elected, hold his inauguration, and take office as president, the Constitution and the Electoral Code require mandatory procedures of legal verification of the legality of the election of a presidential candidate.

Unsuccessful candidates for the highest office have the right to challenge the announced election results under established procedures, by initially filing complaints to the Central Commission. As soon as the Central Commission decides the complaints are unfounded, they may appeal to the Supreme Court. The electoral procedure ends with the Supreme Court's decision on candidates' complaints of invalidation of the election.

When the dispute is over, the Central Commission and other state bodies make the preparations for the inauguration of the newly elected president (Article 83 of the Constitution).

The Constitutional Court act of 25 August 2020 confirmed this procedure. Unfortunately, it was unjustifiably ignored.

I'd like to draw attention to the above-mentioned constitutional and legal act, which confirms the illegitimacy of the "self-proclaimed" ruler with all that it entails.

All the decrees, orders, signed laws issued (adopted) by him, i.e. acts on the government establishment, appointments and dismissals of judges and other officials included in his personnel register, are, in my opinion, legally null and void.

Ladies and gentlemen in power! Keep on ruining the state, dancing on the bones of innocent victims, comforting yourselves with the illusion of impunity, but remember: the people of Belarus pursue you.

You can't arrest, kill or silence them all. Millions of patriotically minded people are inspired by spring, Day of Will and the expectation of a near victory. God loves Belarus and our people.

Long Live Belarus!