BARRY M. KAMINS
PRESIDENT
Phone: (212) 382-6700
Fax: (212) 768-8116
bkamins@nycbar.org
April 23, 2008
President Alexander
Lukashenko
38 Karl Marx Street
Minsk 220016
Republic of Belarus
Dear Mr. President:
I write on behalf of the Association of the Bar of the City
of New York ("Association") to express our concern over the continued detention
and physical mistreatment of Mr. Emanuel Zeltser, an American attorney, and the
detention of his assistant, Ms. Vladlena Funk, a permanent resident of the
United States, in Belarus.
The Association is an independent non-governmental
organization of more than 22,000 lawyers, judges, law professors and government
officials. Founded in 1870, the Association has a long history of dedication to
human rights, notably through its Committee on International Human Rights, which
investigates and reports on human rights conditions around the world.
It has been brought to our attention that Mr. Zeltser and Ms.
Funk were arrested without warning on March 12, 2008, as soon as they landed and
deplaned in Minsk. They were subsequently detained. No charges were brought
against them until over a week later, on March 21.
It has also been reported, to the Association’s great
concern, that Mr. Zeltser has suffered severe physical and mental mistreatment
while in detention. It has been reported that since being detained four weeks
ago, he has been repeatedly subject to beatings in jail, including direct blows
to the head, and has been interrogated by the KGB Special Interrogations Unit.
Most recently, Mr. Zeltser has reportedly been transferred to a state
psychiatric hospital.
We also understand that Mr. Zeltser, a patient of several
medical conditions, including diabetes, arthritis, heart problems, and stomach
ulcer, has been denied medications critical to his health. As reported, these
medicines have been withheld (even after being shown to him), despite a medical
report from Mr. Zeltser’s physician provided to the Belarussian authorities
stating that Mr. Zeltser may not survive without the medications indicated.
We have been informed that due to his critical health
condition, Mr. Zeltser has twice been taken by ambulance to an emergency room,
although in neither case was he provided medical attention, as no physicians
were on hand. Mr. Zeltser suffers from a severe form of arthritis, among other
serious conditions, and is reportedly in constant pain without his medications.
According to his Belarus-appointed lawyer, he is in increasingly precarious
health.
In addition to the physical mistreatment, we understand that
Mr. Zeltser has been repeatedly denied access to a U.S. consul, despite
diplomatic protests filed by the United States Department of State with the
Belarus Ministry of Foreign Affairs. The one visit that was granted, more than
two weeks after his arrest, was reportedly held in the presence of a KGB
official and thus was not confidential.
Moreover, the charge that was finally brought against Mr.
Zeltser and Ms. Funk – nearly 10 days after their arrest and detention – appears
to have no basis to it. As reported to the Association, the charge, without any
explanation or detail, alleges that Mr. Zeltser and Ms. Funk engaged in the use
of forged documents, yet apparently neither individual was carrying any paper
documents while traveling and both were taken into custody immediately upon
arrival in Minsk. Concerns have thus been reported that this is a fabricated
charge, created to justify their unlawful detention, and that self-exiled
Russian businessman Boris Berezovsky may have instigated action against Mr.
Zeltser for his work on behalf of a particular client.
The City Bar is greatly concerned about the arrests and
detention of Mr. Zeltser and Ms. Funk, and the reports of physical mistreatment
of Mr. Zeltser. The conduct described above is inconsistent with Belarus’
obligations under international agreements, including the International Covenant
on Civil and Political Rights (ICCPR) and the Convention Against Torture and
Other Inhuman or Degrading Treatment or Punishment (CAT).
First, Article 9(1) of ICCPR states that no one shall be
subjected to arbitrary arrest or detention. It further states: "Anyone who is
arrested shall be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges against him." Further, the ICCPR
specifies that anyone arrested or detained on a criminal charge should be
brought "promptly before a judge" and that such person is entitled to "trial
within a reasonable time or to release."
See Article
9(3). Detention in custody while awaiting trial "shall
not be the
general rule" Id.
(emphasis added). In addition, a detainee "shall be entitled to take
proceedings before a court, in order that the court may decide without delay on
the lawfulness of his detention and order his release if the detention is not
lawful." Article 9(4).
Neither Mr. Zeltser nor Ms. Funk was informed of the reasons
for arrest or the charges against them at the time of their arrest on March 12,
2008. Indeed, no charges were brought against them until almost 10 days after
their arrest and detention. Nor do they appear to have been given an opportunity
to challenge the lawfulness of their detention before an impartial judge. These
circumstances constitute arbitrary arrest and detention of the kind prohibited
by international standards.
In addition, international agreements prohibit (without
permitted derogation) the kind of physical mistreatment to which Mr. Zeltser has
been subject. Article 7 of the ICCPR explicitly states: "No one shall be
subjected to torture or to cruel, inhuman, or degrading treatment or
punishment." See also
Rule 31 of the United Nations Standard Minimum Rules for the
Treatment of Prisoners. The ICCPR also requires that all persons deprived of
their liberty be "treated with humanity and with respect for the inherent
dignity of the human person." Similarly, the CAT obligates Belarus to refrain
from any form of torture, defined in Article 1 as "any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person information or a
confession." Additionally, Principle 21(1) of the Body of Principles for the
Protection of All Persons under any form of Detention prohibits an interrogator
from using the situation of a detained person to compel him to confess, to
incriminate himself or to otherwise testify against another person.
The conduct described above, including the beating of Mr.
Zeltser and the withholding of medication as a tool to pressure him, apparently
in connection with interrogation of him, constitutes torture or cruel, inhuman,
or degrading treatment, as defined in international treaties, and is strictly
prohibited.
In addition, Belarus’s own criminal code prohibits such
treatment, establishing criminal responsibility when a person in a position of
responsibility exceeds his authority and engages in violence or tormenting or
humiliating treatment.
See Article 167, Belarus Criminal Code. It is also a crime in Belarus
to fabricate charges against a person known to be innocent.
See Article
172, Belarus Criminal Code.
In light of Belarus’s international obligations, we
respectfully urge you to take all steps in your power to release Mr. Zeltser and
Ms. Funk immediately, to allow Mr. Zeltser access to his medications, and to
ensure that they are subject to no further torture or cruel or degrading
treatment, including interrogation under inhumane conditions. Time is of
critical importance, as we understand Mr. Zeltser’s health to be in a precarious
state, and we thus ask you to act at once, without any further delay.
Very truly yours,
Barry Kamins
Cc: Ambassador Mikhail
Khvostov
Embassy of the Republic
of Belarus
1619 New Hampshire
Avenue NW
Washington, D.C. 20009
Fax: 202-986-1805
Consulate General of the
Republic of Belarus
708 Third Ave., Suite
2101
New York, NY 10017
Fax: 212-682-5491
Mr. Grigory Vasilevich
Prosecutor General
24 Intenationalnaya St.
Minsk 220050
Belarus
Paula J. Dobriansky
U.S. Under Secretary of
State for Democracy and Global Affairs
U.S. Department of State
2201 C Street NW
Washington, D.C. 20520 4
Daniel Fried
Assistant Secretary,
Bureau of European and Eurasian Affairs
U.S. Department of State
2201 C Street NW
Washington, D.C. 20520
