The recently adopted Code of Civil Justice restores provisions that allow representatives of public associations to participate in the consideration of civil cases. This is essential in strategic litigation, particularly when appealing against decisions of public authorities, and was a significant issue raised by CSOs during the public discussion of the draft Code.
CSOs submitted feedback in the drafting process of a single Code of Civil Justice
On 11 March 2024, the President of Belarus signed a new Code of Civil Justice, which is scheduled to come into force in January 2026. This new Code comprehensively regulates judicial proceedings. It replaces the 1999 Civil Procedure Code and the 1998 Commercial Procedure Code currently in force, and is the result of the consolidation of these two existing legal acts.
The development of a single Code to regulate all aspects of civil procedure has been underway in Belarus for several years. In March 2022, the Supreme Court of Belarus submitted the pre-final draft of the Code for official public discussion. At that time, two years ago, the drafters of the bill received 38 suggestions and comments from legal experts, lawyers and CSO representatives. Among other things, it was noted that the proposed draft would significantly limit the ability of CSO representatives to participate in civil legal proceedings and present public opinion in cases where CSOs are not interested parties.
We provide below a reflection on the provisions on Representatives of the public involvement as regulated in the different Codes:
- Representatives of the Public in 1999 Civil Procedure Code: A special Article 78 "Representatives of the public", provides for the involvement of representatives of public associations and labour collectives as full participants in any civil case, provided that they have been appointed to this role by a decision of their elected body or general assembly adopted in connection with this civil case. By this regulation, representatives of public associations were permitted to attend any civil case hearing based on their comprehension of the public interest. They were afforded all the same rights as interested parties, except the right to appeal and the right to challenge a judge. It is crucial to note that the entity appointing a representative of the public is not required to justify its interest in the case in advance. This distinguishes the institution of representatives of the public in a civil case in Belarus from the legal mechanism of intervention in some other countries, where the representative must demonstrate their interest.
- Representatives of the public in the 1998 Commercial Procedure Code: The current Commercial Procedure Code (1998) does not include a similar provision for representatives of the public. Therefore, CSOs with public interests cannot become involved in a commercial court cases unless they have a vested personal interest in case.
CSOs suggestions ensured citizens' participation in the proceedings of justice
The draft of the new consolidated Code of Civil Justice, submitted for public discussion in 2022, lacked a provision similar to Article 78 of the current Civil Procedure Code – the drafters of the improved new code followed the regulation model of the 1998 Commercial Procedure Code. The extension of such a model to all parties to civil proceedings under the new code would have the effect of removing the option for public associations to express a public interest position in civil proceedings in the future.
During this official public discussion, CSO representatives highlighted the inadmissibility of abandoning the representatives of the public in civil proceedings, which has existed in Belarusian civil proceedings since 1980 and has proven its effectiveness as an important guarantee of citizens' participation in the proceedings of justice. In many cases, the participation of representatives of the public from human rights CSOs as a procedurally neutral figure enabled expression on the observance or violation of human rights, drawing attention to the norms of international law and international human rights standards, and the application of a human rights based approach (HRBA) to the case under consideration. This was of particular importance in civil proceedings of a strategic litigation nature, particularly those involving appeals against decisions of public authorities. The introduction of amicus curiae in Belarusian court proceedings was made possible by the written presentation of the public representative's position in a separate document and its inclusion in the court record. The previous stance of the Prosecutor General was also highlighted as a factor in the argument for maintaining the institution representatives of the public, who have been vocal in his support for the active participation of representatives of public in court proceedings.
Following consideration of the comments made during the public discussion, this proposal was incorporated into the draft of the new Code of Civil Justice and included in its final version at the stage of promulgation.
Yet, the new Code limits the scope of the participation of public, including CSOs and their rights in the proceedings
- Limited scope of participation of different categories of persons: Regrettably, the new Code does not include a separate special article on the institution of representatives of the public as Article 78 of the Civil Procedure Code currently does. The procedure for nominating and admitting representatives of the public to case hearings is essentially similar to that currently in force, but now distributed between several articles regulating the participation of different categories of persons in civil proceedings (Articles 55, 59).
- Significantly reduced scope of rights of representatives of the public within the civil proceedings: Under the new code, they will have the right to read the case files (including the right to copy these materials) and present oral and written pleadings to the court. Thus, the new regulation limits the rights of members of the public in several ways. For instance, it excludes the right to present new evidence, to participate in the examination of evidence, to ask questions of other participants in the proceedings, to present motions and to resist the motions of others.
Maintaining access to civil proceedings
Belarusian CSOs were able to prevent the complete elimination of their access to civil proceedings as a result of engaging in public discussions. This ensured the continued applicability of key provisions for CSOs and safeguarded the legal right to participate in civil suits, express public opinion and protect the public interest in civil litigations, including by means of both oral presentations by representatives in court and the submission of written amicus curiae (‘friend of the court – see Brittanica). These developments bring a mixed result for CSOs – while they restore the possibility for CSOs to participate in civil proceedings, the scope of their participation is limited to access to court files and presenting pleadings to the court.