The author of the two communications is Mr. Vladimir Sekerko, a national of Belarus born in 1948. He claims to be a victim of a violation by Belarus of his rights under articles 19 and 21, read alone and in conjunction with article 2, paragraphs 2 and 3 of the International Covenant on Civil and Political Rights (“the Covenant”). The Optional Protocol entered into force for Belarus on 30 December 1992. The author is unrepresented.
On 5 November 2020, pursuant to rule 97(3) of the Committee’s rules of procedures, the Committee decided to join the two communications for decision in view of their substantial factual and legal similarity.
Communication № 2573/2015
The author is the Chair of the Gomel Regional Organization of the Belarussian Left Party “A Just World”. On 20 July 2013, he applied4 to the Gomel City Executive Committee for an authorization to hold a picket on 6 August 2013 to raise public awareness on the tasks and goals of the party “A Just World”, together with five members of the party. The picket was planned to take place in the location that was identified by the City Executive Committee as specifically designated area in the city for the organisation of peaceful assemblies.5
- Author’s request to the Gomel Executive Committee, as well as complaints filed before the courts were submitted on behalf of the Organization and signed by the author as a Chairman of the Organisation. ↩
- As per the decision of the Gomel City Executive Committee №299 of 2 April 2008, mass events could be organised in the area in front of the Palace of Culture at Jubilee Str. 48. This decision was replaced by № 775 on 15 August 2013, identifying two other locations for pickets. ↩
On 31 July 2013, the author’s application was rejected by the City Executive Committee of Gomel noting that the location was already reserved for another event, particularly for the rehearsals of the opening ceremony devoted to the VII International Festival of Choreographic Art.
On an unspecified date, the author appealed against the decision of the City Executive Committee to the Central District Court of Gomel, claiming a violation of his rights to freedom of expression and peaceful assembly as guaranteed by the Constitution of Belarus and articles 19 and 21 of the Covenant. In his complaint, he also noted that no alternative time or date was proposed by the authorities. On 20 November 2013, the court ruled that the decision of the City Executive Committee was in compliance with the provisions of the Law on Mass Events and rejected the author’s appeal.
On 14 January 2014, the Gomel Regional Court rejected the author’s appeal.
On 10 April and 3 June 2014, the author appealed under supervisory review procedure to the Chairman of the Gomel Regional Court and to the Supreme Court. His appeals were rejected on 22 May and 4 September 2014, respectively. The courts held that the decision of the Gomel City Executive Committee was objective, that it did not prohibit holding of demonstrations altogether and was not aimed at limiting the rights of the party. The author did not pursue the supervisory review procedure with the Prosecutor General’s office. He argues that according to the Committee’s jurisprudence, such review is not considered as an effective remedy, thus he has exhausted all domestic remedies.
Communication № 2572/2015
On 11 September and 22 October 2013, the author applied to the Gomel City Executive Committee to hold a picket respectively on 26 September and 7 November 2013. The purpose of the September picket was to raise public awareness on the tasks and goals of the Belarussian Left party “A Just World”, whereas the November event was devoted to the significance of the Great October socialist revolution for the fate of the Belarusian people. In the application, he specified the intended location of the pickets and the expected number of participants.
On 20 September and 31 October 2013, the City Executive Committee refused to authorize the pickets on the following grounds: (a) the location of pickets was not among those specified for the conduct of such events as listed in the Gomel City Executive Committee’s decision № 775 of 15 August 2013 “On Mass events in Gomel City”; (b) the author failed to submit the contracts with the respective city services providers in order to insure medical service during and the cleaning of the location after both events.
On 23 September and 22 November 2013, the author appealed against the decisions of the Gomel City Executive Committee to the Central District Court of Gomel, claiming a violation of his rights to freedom of expression and peaceful assembly as guaranteed by the Constitution of Belarus and articles 19 and 21 of the Covenant. In his complaint, he also noted that no alternative time or date was proposed by the authorities. On 25 November 2013 and 3 January 2014, the Central District Court dismissed the appeals and confirmed the decisions of the City Executive Committee as lawful.
On 27 November 2013 and 20 January 2014, the author filed cassation appeals against the decisions with the Judicial Chamber on Civil Cases of the Gomel Regional Court. On 11 February and 20 March 2014, the Judicial Chamber on Civil Cases of the Regional Court dismissed both appeals.
On unspecified dates, the author sought a supervisory review of the decisions of the Judicial Chamber on Civil Cases of the Gomel Regional Court before the Gomel Regional Court. On 29 May 2014, the Gomel Regional Court dismissed both appeals. The author’s further appeals to the Supreme Court were rejected on 30 June 2014.
The author submits that he has exhausted all available and effective domestic remedies.
The complaint
The author claims that the State party has violated his rights under articles 19 and 21 read in conjunction with article 2, paragraphs 2 and 3, of the Covenant. He considers that the reason for denial of a peaceful assembly and of his rights for the freedom of expression was unlawful. The communications, in which the author is not represented by counsel, also appear to raise issues concerning articles 19 and 21 of the Covenant.
The author considers that when restricting the rights on freedom of expression and holding peaceful pickets, the authorities failed to substantiate how these restrictions were necessary for the purposes of articles 19 and 21 of the Covenant, and no alternative time or date for holding the picket was proposed.
The author argues that the Public Events Act of Belarus and the decisions of the Gomel City Executive Committee “On Mass events in Gomel City” should be brought in line with its international obligations under articles 19 and 21 of the Covenant.
State party’s observations on admissibility
By notes verbales of 14 April 2015 and 21 July 2015, the State party submits that both communications should be declared inadmissible under article 2 of the Optional Protocol since the author failed to exhaust all available domestic remedies.
The State party notes with regret that the Committee's interpretation of articles 2 and 5 of the Optional Protocol is arbitrary and unlawful, that it does not follow the provisions of the Covenant, and is contrary to the principles of interpretation established by the Vienna Convention on the Law of Treaties.
The State party submits that it rejects the communications due to the failure of the author and the Committee to comply with the procedural conditions of the Covenant and its Optional Protocol and ceases further correspondence in this regard.
Author’s comments on the State party’s observations on admissibility
By letters of 5 May 2015 and 18 January 2016, the author claimed that in accordance with the case law of the Committee, remedies must not only be available but also effective. Accordingly, the remedies are to be considered exhausted if they do not satisfy one of these requirements. He notes that the Committee has repeatedly stressed that the appeal under supervisory review is a common practice of discretionary review process of decisions that have entered into force in the former republics of the Soviet Union, which practice the Committee does not recognize as an effective remedy for the purposes of exhaustion of domestic remedies.
The author explains that he did not file an application with the Prosecutor General’s Office under the supervisory review procedure, since he did not consider that it constituted an effective remedy.
With regard to the Committee’s competence in reviewing the case, the author believes that Belarus, by voluntarily accepting the jurisdiction of the Committee, is not entitled to challenge the Committee’s competence or to ignore its authoritative opinions. The author believes that the State party is obliged to strictly comply with not only the decisions of the Committee, but also to recognize its standards, practices, methods of work and precedents.
Lack of cooperation by the State party
The Committee notes the State party’s assertion that the author’s communication was registered in violation of article 2 of the Optional Protocol and, that it rejects communications due to the failure of the author and the Committee to comply with the procedural conditions of the Covenant and its Optional Protocol and ceases further correspondence in this regard.
The Committee observes that by adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (preamble and art. 1). Implicit in a State’s adherence to the Optional Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications and, after examination, to forward its Views to the State party and to the individual (art. 5 (1) and (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of a communication and in the expression of its Views.6 It is up to the Committee to determine whether a case should be registered. By failing to accept the competence of the Committee to determine whether a communication shall be registered and by declaring outright that it ceases further correspondence, the State party has violated its obligations under article 1 of the Optional Protocol.
- See, for example, Levinov v. Belarus (CCPR/C/105/D/1867/2009, 1936, 1975, 1977-1981, 2010/2010), para. 8.2; and Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 6.2. ↩
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.
The Committee notes that the State party challenges the admissibility of both communications 2572/2015 and 2573/2015 for non-exhaustion of domestic remedies. It also notes that the author has not submitted a petition under the supervisory review procedure to the Prosecutor General’s Office because he does not consider it to be an effective remedy. The Committee also notes the author’s argument that his appeals against the decisions of the Gomel City Executive Committee, including for a supervisory review, were dismissed by the Central District Court of Gomel, by the Gomel Regional Court and by the Supreme Court.
The Committee recalls its jurisprudence, according to which a petition for supervisory review to a prosecutor’s office, dependent on the discretionary power of the prosecutor, requesting a review of court decisions that have taken effect does not constitute a remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.7 Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.
- See Alekseev v. Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Lozenko v. Belarus (CCPR/C/112/D/1929/2010), para. 6.3; Sudalenko v. Belarus (CCPR/C/115/D/2016/2010), para. 7.3; Koreshkov v. Belarus (CCPR/C/121/D/2168/2012), para. 7.3; and Abromchik v. Belarus (CCPR/C/122/D/2228/2012), para 9.3. ↩
The Committee takes note of the author’s submission that the State party violated his rights under article 2 (2), read in conjunction with articles 19 and 21 of the Covenant. The Committee reiterates that the provisions of article 2 cannot be invoked in a claim in a communication under the Optional Protocol in conjunction with other provisions of the Covenant, except when the failure by the State party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual claiming to be a victim.8 The Committee notes, however, that the author has already alleged a violation of his rights under articles 19 and 21, resulting from the interpretation and application of the existing laws of the State party, and the Committee does not consider examination of whether the State party has also violated its general obligations under article 2 (2), read in conjunction with articles 19 and 21 of the Covenant, to be distinct from examination of the violation of the author’s rights under articles 19 and 21 of the Covenant. The Committee therefore considers that the author’s claims in that regard are incompatible with article 2 of the Covenant and thus inadmissible under article 3 of the Optional Protocol.
- See Zhukovsky v. Belarus (CCPR/C/127/2724/2016), para. 6.4; Zhukovsky v. Belarus (CCPR/C/127/2955/2017), para. 6.4; Zhukovsky v. Belarus (CCPR/C/127/3067/2017), para. 6.6. ↩
The Committee considers that the author has failed to substantiate his claims under articles 19 and 21, read in conjunction with article 2 (3) and therefore declares this part of the communication inadmissible.
The Committee considers that the author has sufficiently substantiated his claims under articles 19 and 21 of the Covenant, for the purposes of admissibility of both communications and proceeds with its consideration on the merits.
Considerations of the merits
The Committee has considered both communications in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.
The Committee notes the author’s claims that his rights to freedom of expression and freedom of assembly have been restricted in violation of both article 19 and article 21 of the Covenant, as he was denied authorization to organize peaceful assemblies to raise public awareness on the tasks and goals of the party “A Just World” in both communications № 2573/2015 and No. 2572/2015, as well as on the significance of the Great October socialist revolution in communication № 2572/2015. It also notes the author’s claims that the authorities failed to explain why the restrictions on holding the pickets were necessary in the interests of national security or public safety, public order, the protection of public health, morals or the rights and freedoms of others, as required by articles 19 (3) and 21of the Covenant, and therefore considers the restrictions unlawful.
The Committee notes the author’s claim in relation to both communications, that his right of peaceful assembly under article 21 of the Covenant was violated by the refusal of the Gomel City Executive Committee to allow pickets to be held, in which he and other members of the Belarussian Left Party wished to take part. In its general comment № 37 (2020) on the right of peaceful assembly, the Committee states that peaceful assemblies may in principle be conducted in all spaces to which the public has access or should have access, such as public squares and streets.9 Peaceful assemblies should not be relegated to remote areas where they cannot effectively capture the attention of those who are being addressed, or the general public. As a general rule, there can be no blanket ban on all assemblies in the capital city, in all public places except one specific location within a city or outside the city centre, or on all the streets in a city. The Committee further notes that the requirements for participants or organizers either to arrange for or to contribute towards the costs of policing or security, medical assistance or cleaning, or other public services associated with peaceful assemblies are generally not compatible with article 21.10
The Committee further recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential for public expression of an individual’s views and opinions and is indispensable in a democratic society. This right entails the possibility of organizing and participating in a peaceful assembly, including a stationary assembly (such as a picket) in a public location. The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience,11 and no restriction to this right is permissible, unless it (a) is imposed in conformity with the law; and (b) is necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), protection of public health or morals or protection of the rights and freedoms of others. When a State party imposes restrictions with the aim of reconciling an individual’s right to assembly and the aforementioned interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it.12 The State party is thus under an obligation to justify the limitation of the right protected by article 21 of the Covenant.13
In the present cases , the Committee must consider whether the restrictions imposed on the author’s right of peaceful assembly are justified under any of the criteria set out in the second sentence of article 21 of the Covenant. In light of the information available on file, in communication № 2573/2015, the author’s application to hold a picket was refused due to a planned parallel event – the rehearsals of the opening ceremony devoted to the VII International Festival of Choreographic Art - whereas in communication № 2572/2015, the author’s request to hold the pickets was refused because the location chosen was not among those permitted by the city executive authorities, and that the author failed to submit the contracts with the respective city services providers to ensure medical services during the event and the cleaning of the location after the event. In this context, the Committee notes that neither the Gomel City Executive Committee nor the domestic courts have provided any justification or explanation as to how, in practice, the author’s protest would have violated the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others, as set out in article 21 of the Covenant. The State party also failed to show that any alternative measures were taken to facilitate the exercise of the author’s rights under article 21.
In the absence of any explanation by the State party regarding the matter, the Committee concludes that, in cases № 2573/2015 and № 2572/2015, the State party has violated the author’s rights under article 21 of the Covenant.
The Committee also notes the author’s claim that his right to freedom of expression has been restricted unlawfully, as he was refused authorization to hold pickets in order to publicly express his opinion on the goals of the party “A Just World” in both communications № 2573/2015 and Nº. 2572/2015. and the significance of the Great October socialist revolution in communication № 2572/2015. The issue before the Committee is to determine whether the prohibition on holding a public picket imposed on the author by the city executive authorities of the State party amounts to a violation of article 19 of the Covenant.
The Committee recalls its general comment No. 34 (2011) on freedoms of opinion and expression, in which it stated, inter alia, that the freedom of expression is essential for any society and constitutes a foundation stone for every free and democratic society.14 It notes that article 19 (3) of the Convention allows for certain restrictions on the freedom of expression, including the freedom to impart information and ideas, only to the extent that those restrictions are provided for by law and only if they are necessary (a) for respect of the rights or reputation of others; or (b) for the protection of national security or public order (ordre public), or of public health or morals. Finally, any restriction on freedom of expression must not be overbroad in nature – that is, it must be the least intrusive among the measures that might achieve the relevant protective function and proportionate to the interest being protected.15 The Committee recalls that the onus is on theState party to demonstrate that the restrictions on the author’s rights under article 19 of the Covenant were necessary and proportionate.16
Referring to both communications, the Committee observes that limiting pickets to certain predetermined locations , as well as given the fact that the author, in communication № 2573/2015, had expressed his willingness to consider an alternative time and date for holding the picket, does not appear to meet the standards of necessity and proportionality under article 19 of the Covenant. The Committee notes that neither the State party nor the national courts have provided any explanation why the restriction was necessary for a legitimate purpose.17 The Committee considers that, in the circumstances of these cases, the prohibitions imposed on the author, although based on domestic law, were not justified for the purposes of article 19 (3) of the Covenant. In the absence of any explanation by the State party, the Committee concludes that the rights of the author under article 19 of the Covenant have been violated.
- General comment No. 34 (2011) on the freedoms of opinion and expression, para. 22. ↩
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State party of the author’s rights under articles 19 and 21 of the Covenant.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated, inter alia, to provide the author with adequate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In that connection, the Committee notes that the State party should revise its normative framework on public events, consistent with its obligation under article 2 (2), with a view to ensuring that the rights under articles 19 and 21 of the Covenant may be fully enjoyed in the State party.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.