V.B., M.P. and L.S. v. Belarus

The authors of the communication Messrs. V.B., M.P. and L.S are all nationals of Belarus. They claim that the State party has violated their rights under article 22 (1) in conjunction with article 2 (2) of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. The authors are represented by Mr. V.B.

The authors are founders of a national public human rights association "Movement of supporters of the implementation of the International Covenant on Civil and Political Rights" (PACT)⁴, established on 7 June 2014. The association has 52 members. Its main mission consists in facilitating the implementation and follow-up of the UN Human Rights Committee’s decisions in Belarus; assisting in the establishment of rule of law in Belarus; and increasing the legal awareness among citizens.

4. «Движение сторонников за реализацию Международного пакта о гражданских и политических правах «ПАКТ». ↩

On 27 June 2014, the authors applied for the registration of their association to the Ministry of Justice. On 29 July 2014, the Ministry denied registration. Having indicated several mistakes in the submission, such as mistake in the birth date of one of the founders, in the apartment numbers of two founders, as well as absence of telephone numbers of founders, the Ministry found that the application for registration did not meet the requirements of article 13, para. 6 of the Law on public associations.⁵ The Ministry also found that the authors had failed to annex a list of participants to the transcript of the meeting of founders, as required by section 8 of the Instruction on the order of preparation and examination of documents in connection with state registration and deregistration of political parties, other public unions and their collectives (associations), as approved by Order No. 48 of the Ministry of Justice of 30 August 2005.

5. Article 13, para. 6 requires the applicants for registration of a public association, to submit, among others, the list of founders with indication of surname, name, patronymic, date of birth, citizenship, address of permanent place of residence and home telephone number, place of work (studies) and office phone number, as well as personal signature of each of founders. ↩

On 21 August 2014, the authors filed a complaint to the Supreme Court of Belarus, which reviewed the decisions of the Ministry of Justice on denial of registration. The authors claimed that the irregularities in the documents could have been easily corrected; that reference to a missing list of participants of the meeting of founders was an artificial obstacle to the registration of the association; that they did submit a copy of the list of participants and that there were no remarks when the documents were received by the Ministry. According to the authors, such minor mistakes should not have been treated as a reason for denial of registration. On 30 September 2014, however, the Supreme Court rejected the complaint, upholding the decision of the Ministry of Justice.

The authors appealed under the supervisory review proceedings both to the Chair of the Supreme Court and to the Prosecutor General. In their appeals, they reiterated their claims, adding that under section 8 of the Instruction concerning state registration of public associations, applicants may submit a list of participants of the meeting of founders, but are not required to do so. Their appeals were rejected on 21 November 2014 and 26 February 2015, respectively. In his decision, the Chair of the Supreme Court noted that the authors were not precluded from resubmitting their application for registration once the irregularities revealed by the Ministry of Justice have been remedied.

The authors claim that their rights under article 22 (1) in conjunction with article 2 (2) of the Covenant were violated by denying their application for registration on the basis of a few technical mistakes in the documentation. They claim that in this case, application of the criteria set out in the legislation on public associations constituted an impermissible limitation of their freedom of association. They also claim that the denial of registration was not imperative for the interests of the public order, national security, health security, and rights and freedoms of citizens. They ask the Committee to recommend the State party to register their association; and to emphasize to the State party the need to bring its legislation on the right on freedom of association in line with the requirements of the Covenant.

By note verbale of 10 February 2016, the State party submitted its observations on admissibility. It refers to the decision of the Supreme Court dated 30 September 2014, according to which the authors failed to submit a comprehensive list of documents as required under the domestic legislation on registration of public associations, in particular the list of those participant in the meeting of founders. In addition, the information submitted by the authors in their application contained erroneous information about the founders of the association. Since the authors did not meet the requirements of articles 13 and 15 of the Law on public associations, the Ministry of Justice legitimately denied their application. Thus, the authors’ claims that their rights have been violated are groundless, and in addition, they can resubmit their application once the errors which led to the denial of registration are remedied.

The State party submits that the domestic law meets the requirements of international principles which allow every state to establish in their domestic laws limitations, necessary in a democratic society in 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 (article 22 (2) of the Covenant).

The State party considers that the authors have failed to exhaust all available domestic remedies. Article 439 (1) of the Civil Procedure Code provides a possibility to file a supervisory appeal request through the Chair of the Supreme Court or his/her deputies, as well through the Prosecutor General or his/her deputies. The authors therefore, can still appeal to the Supreme Court and the Prosecutor General’s office.

On 10 March 2016, the authors submitted their comments to the State party’s observations. They claim that although the State party claims that domestic legislation on public associations meets the requirements set out in the Covenant, the domestic authorities and courts did not indicate concretely why the limitation of their right to freedom of association was justified under article 22 (2) of the Covenant.

The authors reiterate that their supervisory review appeals to the Chair of the Supreme Court and to the Prosecutor General, where rejected. The fact that the respective officials entrusted their deputies with the review of the authors’ appeals cannot serve as a ground for blaming the authors for a failure to exhaust the available domestic remedies. The Chair of the Supreme Court has five deputies, and the Prosecutor General has four deputies. The State party did not explain to which deputy the appeal should be addressed in order to be considered personally by the Chair of the Supreme Court and by the Prosecutor General. The authors add that in any event, the supervisory review procedure is not an effective remedy since it depends on the discretionary decision of a limited number of officials, and if transmitted for consideration by the court, it entails the review on points of law only, but not of the facts and evidence in a case.

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 first the State party’s observation that the authors have failed to exhaust the available domestic remedies because they had not submitted supervisory review appeals to the Chair of the Supreme Court or to the Prosecutor General. It notes in this connection the authors’ argument that supervisory review appeals do not constitute an effective remedy for the purposes of admissibility.

The Committee recalls its jurisprudence, according to which filing requests for a supervisory review to the chairperson of a court directed against court decisions that have entered into force and depend on the discretionary power of a judge constitute an extraordinary remedy and that the State party must show that there is a reasonable prospect that such requests would provide an effective remedy in the circumstances of the case.⁶ The Committee notes that in the present case, the State party does not provide relevant information in its observations. It also notes that according to the Committee’s case law, supervisory review proceedings to the office of the prosecutor, dependent on the discretionary power of the prosecutor, against decisions which have acquired force of res judicata do not constitute an effective remedy to be exhausted for the purposes of admissibility.⁷ In addition, it notes that in the present case the authors have submitted supervisory appeals to the attention of the Chair of the Supreme Court and to the Prosecutor General. Accordingly, the Committee considers that it is not precluded by virtue of article 5 (2) (b) from examining the present communication.

6. See Gelazauskas v. Lithuania (CCPR/C/77/D/836/1998), para. 7.4, Sekerko v. Belarus (CCPR/C/109/D/1851/2008), para. 8.3., and Schumilin v. Belarus (CCPR/C/105/D/1784/2008), para. 8.3. ↩
7. See Alekseev v. the 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 further notes the authors’ claims that their rights under article 22 (1) in conjunction with article 2 (2) of the Covenant were violated by the refusal of the Ministry of Justice to register their association. The authors rely on the permissible limitations set out in article 22 (2) of the Covenant claiming that the refusal to register their association was not necessary in a democratic society for protecting the interests of national security or public safety, public order (ordre public), public health or morals or rights and freedoms of others.

In order to consider the authors’ claim, the Committee must first establish whether there has been an interference with the authors’ rights under article 22 (2) of the Covenant. The Committee notes the fact, undisputed by the parties, that the refusal of the registration was based on several errors and missing information in the personal data of the association founders and a missing list of participants to the transcript of the meeting of founders, in the application provided by the authors to the Ministry of Justice (see paras 2.2 and 4.1). The disagreement regarding the Ministry’s decision stems from whether such errors, missing information and absence of the document in question were a sufficient basis for a refusal or whether the authors should have been given a chance to correct them before rejecting the application.

The Committee considers that putting in place requirements to obtain a state registration for purposes of functioning of a public association, when those requirements are not accompanied by unreasonable conditions, cannot be seen as constituting by itself an unlawful interference with the freedom of association under article 22 (2) of the Covenant. The Committee finds it only reasonable that a state would expect the applicants to submit correct and comprehensive information, including personal data of the association founders, in their application for registration. The Committee notes in particular the argument of the Chair of the Supreme Court and the State party that nothing precluded the authors from remedying the errors and resubmitting their application for registration (see paras 2.4 and 4.1). The Committee notes that the authors have not provided any comments regarding such a possibility. In this light, the Committee cannot agree with the authors that the requirement to provide correct information in their application for the registration of the association constituted an unlawful interference with their rights under article 22 (2) in conjunction with article 2 (2) of the Covenant, and nothing on file suggests that resubmission of their application would impose an unsurmountable burden on the authors. The Committee therefore finds the author’s claims is insufficiently substantiated, for the purposes of admissibility, and is thus inadmissible under article 2 of the Optional Protocol.

The Human Rights Committee therefore decides that: (a) The communication is inadmissible under article 2 of the Optional Protocol;