Applicability of International Treaties in a Criminal Procedure: the Case of Belarus

Abstract

The article indicates that the norms of international treaties can be a legal basis for making decisions in the course of criminal procedural activities, serve as a message in the formation and formulation of a legal position by participants in criminal proceedings. The absence of general regulation of the rules of interaction between the criminal procedure law and international treaties of the Republic of Belarus was established. Attention is drawn to the fact that a self-executing international treaty, permitted for application on the territory of Belarus by an internal legal act, is included in the system of sources of criminal procedural law of the Republic of Belarus. The norms of such an international treaty can be applied in the course of criminal proceedings, acting practically as special in relation to the rules of the Belarusian legislation. The text of the Criminal Procedure Code of Belarus contains a number of norms referring to international treaties regulating certain specific issues. Several varieties of such partial references have been identified. The article reveals a range of international treaties, that should by mandatory applicable within criminal proceedings due to explicit reference in the Criminal Procedure Code of Belarus (defining human rights and freedoms; containing norms on the procedure for providing international legal assistance in criminal matters; regulating civil proceedings). Other international treaties have been identified, which in their essence can be applied within criminal proceedings in Belarus, and sometimes their norms can replace the corresponding national criminal procedural norms. The need to take into account the norms of consular conventions which contain criminal procedural norms (for example, on the right of a detainee to consular assistance) was especially noted. Due to the lack of a general reference to international treaties in the Criminal Procedure Code of Belarus, based on the principle of pacta sunt servanda, it is indicated that there is an unacceptable legislative encumbrance on the application of such treaties. In the course of the research, general conditions for the applicability of an international treaty within the criminal proceedings of the Republic of Belarus were formulated.