The author of the communication is Mr. Nikita Likhovid, a Belarussian national born in 1990. He claims that the State party has violated his rights under articles 2, 7, 9, 10, 14 (1), (2), (3) (d, e, g), and (5), 19 (1) and (2), and 21 of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for Belarus on 30 December 1992. The author is unrepresented.
The facts as submitted by the author
On 19 December 2010, the presidential elections were held in Belarus. The author and many other citizens gathered this day in the downtown Minsk to voice their protest over what they believed was an unfair election, denouncing massive irregularities and falsifications. From approximately 21:45 to 22.30, small and violent groups of protesters started smashing the windows of the House of Government and nearby. The main mass of the protesters, including the author, took part in a peaceful demonstration that was far from the violent group, separated by the journalists who were covering the event. Despite the peaceful nature of the gathering, the police used disproportionate force to disperse the crowds, beating them with batons. The author, along with hundreds of protesters were apprehended and taken to the police station.
On 20 December 2010, the Soviet District Court in Minsk found the author guilty of violating article 23.34 of the Code of Administrative Offences and sentenced him to 15 days of administrative detention. According to the Court’s decision, the author participated in an unauthorized gathering, yelling “long live Belarus!”, and “get out” and did not comply with the police’s order to stop his “unlawful actions”. On an unspecified date, the author appealed the District Court decision to the Minsk City Court, noting that he participated in a peaceful meeting as guaranteed by the national legislation.
The author submits that while in detention, he was subjected to cruel, inhuman and degrading treatment: police coerced the author, without the presence of his lawyer, to sign a confession of damaging the state property; he was held with 21 other inmates in unsanitary conditions, the cell measured 12 square meters and was nominally fit for 13 persons; there was only cold water available in the cells where the temperature was very low; the cell was without natural light; he did not have a bed; he was allowed out of his cell to walk only once a day, to shower once every 10 days; lack of hygiene and overcrowd was conducive to the spreading of various types of diseases among inmates. His health complaints (tooth ache) were ignored.
On 29 March 2011, the Partizansky District Court in Minsk found the author guiltyof participating in mass disorders, manifested through violence against law enforcement officers who were protecting the building of the House of Government on 11 Sovetskaya Street from a violent crowd who tried to forcefully enter the building. The court ruled that the author (together with other individuals) committed disorders and destroyed property, and sentenced him to 3 years and 6 months imprisonment in a penal colony in Vitebsk region.6 The Court based its ruling on the evidence, including video materials, witness statements and reports of the medical forensic examinations. The author submits that the court erred in its assessment since he and many others participants of the event were peacefully demonstrating to express their disagreement over the results of the presidential elections. The author admitted that he hit the wooden barriers of doorways at the entrance of the House of Government but did not cause any damage. He claims that witness statements given by victims of the incident during the court proceedings were inconsistent with those documented during the investigation, thus putting in question the credibility of these statements.
- The Court proceeding was open: the author and his counsel were present, as well as observers from the OSCE, civil society, diplomatic community. ↩
The author submits that video materials showed during the court hearing did not demonstrate that he participated in mass disorders, nor did they provide any proof that he harmed law enforcement officers. He notes that violent actions were perpetrated by a small group of people, which could be seen from the video materials, and that he was not among them. The author underlines that instead of targeting the violent group of protesters, the police rounded up peaceful demonstrators because they were clearly expressing their disagreement with election results by shouting “ long live Belarus “, “get out”.
On 8 April 2011, the author filed a cassation appeal and submitted additional information to his appeal dated 26 April 2011, arguing that the charges against him under article 293 (2) were unfounded and that he was specifically targeted for expressing his views while participating in a peaceful gathering. The author also claimed that his right to be presumed innocent was violated: he referred to public statements by top state officials (the President, the Minister of Justice) in the news, as well as to a documentaries entitled “Square -2010, Anti-revolution”, “Metal against the glass”, which were shown on the national channel for several weeks after the event, mentioning the author as a person guilty of the charges brought against him; he also stated that he was kept in a cage with handcuffs on his hands during the trial. The author believes that these statements have influenced the court decision in his case. He also requested to be present at the cassation proceedings.
On 29 April 2011, the Minsk City Court, in a three-judges setting, rejected his cassation appeal and upheld the lower court’s judgment. The court heard the statements of both parties, examined the information on file, including witness statements and related materials on the file. The author was not brought to the hearing of the court of cassation in person but was represented by his lawyer.
In July 2014, the author filed a complaint to the Prosecutor of Minsk under the supervisory review procedure where he challenged the legality of his conviction and complained over the police treatment and conditions of detention. In his motion, the author also argued that his right to liberty and security was violated, as he was not promptly informed of the reasons of his arrest or about charges brought against him, claiming that the order of his arrest was issued by the Prosecutor and not by a judge. He also claimed that, despite his request, he could not attend the Cassation proceedings.
On 2 December 2014, the Prosecutor of Minsk rejected the author’s appeal, noting that by convicting him under article 293 of the Criminal Code, the Court acted lawfully and in line with the provisions of the national legislation. The Prosecutor also noted that the presence of the author at the hearing was not required by the law, whereas his absence did not impede the consideration of cassation appeal. Referring to complainant’s claims over the treatment by police and conditions of detention, the Prosecutor informed that these claims could not be confirmed following the prosecutorial probe.
The complaint
The author alleges a violation of his rights under articles 2, 7, 9 (2,3), 10, 14 (1, 2, 3 ((d), (e), (g)) and (5), 19, and 21 of the Covenant. He claims that he was subjected to psychological pressure at the pre-trial detention and investigation stages, with the aim of obtaining a confession in violation of article 7 of the Covenant. Moreover, the conditions of his detention violated his rights under article 10 of the Covenant.
He claims that the State party violated his rights under article 9 (2) and (3) of the Covenant because he was not informed of the reasons for his arrest; there were no grounds for his detention as there was no evidence that he could abscond or obstruct the administration of justice; the investigative authorities did not explore whether a lighter measure of restraint would be possible ; the decisions to extend his detention were insufficiently reasoned; and his complaints and motions to release were all rejected in a perfunctory manner. He further claims that his arrest was not sanctioned by a judge.
With regard to the violation of article 14 (1), the author claims that he was denied a fair trial before an independent and impartial court. The courts were biased and not independent (they did not look independent in the eyes of a reasonable observer), relying mostly on the arguments presented by the prosecution. He submits that judges in Belarus lack impartiality and independence from the executive branch.
He alleges violation of article 14 (2) of the Covenant by the public statements by top state officials referring to him as a person guilty of the charges brought against him. During his trial, he was handcuffed and kept in a cage.
The author further alleges violation of article 14 (3) (d) because he was not brought to the hearing of the court of cassation in person and of article 14 (3) (e) of the Covenant because the court of first instance read the statements of two witnesses without summoning them.8 The author also alleges violation of his rights under article 14 (3) (g) of the Covenant noting that he was coerced to sign a confession.
- Over twenty-five witness/police officers presented their statements during the first instance court proceedings. Materials on file show that the author raised the absence of two witnesses during the hearings. The cassation court looked into this claims and noted that the statements of these two witnesses were not taken into account when fist instance court rendered its decision. ↩
The author claims that his rights under article 14 (5) of the Covenant were violated because the court of cassation did not re-examine the facts of his case and limited itself to a formal revision of the lower court’s judgment.
The author claims that his participation in the protest of 19 December 2010 was an expression of the rights enshrined in the Covenant since the main purpose of the demonstration was to peacefully express opposition to fraudulent election results with the aim to promote democracy. He claims that even though the event was not authorized, the restrictions imposed by the State party on his right to freedom of expression and peaceful assembly were not in conformity with the law and not necessary in a democratic society. Therefore, by arresting and convicting him, the authorities violated his rights under articles 19 (1 and 2), and 21 of the Covenant.
The author asks the Committee to recommend the State party to stop his politically-motivated persecution and to grant him full rehabilitation, as well as to pay him monetary compensation.
State party’s observations on admissibility and the merits
By note verbale of 23 February 2016, the State party submitted its observations on the admissibility and on the merits of the complaint and noted that on 29 March 2011, the author was found guilty of a criminal office under article 293 (2) of the Criminal Code and sentenced to 3 years and 6 months of imprisonment in a high security colony.
The State party observes that the Court appraised all evidence and rendered its convicting decision, the detailed analysis of which could be found in the court’s ruling.
The State party refers to the author’s statement made during the court proceedings and observes that on19 December 2010, while he was under the influence of the crowd, he hit the wooden barriers of doorways of the House of Government in the effort to open the entrance door of the building. According to the statements given by law enforcement officers, who were protecting the building from a violent crowd, the participants of the mass event acted aggressively, trying to force their way into the building, beating and causing a bodily harm, and inflicting injuries upon the law enforcement personnel. The State party observes that these statements were confirmed by the testimonies, video materials, crime scene examination, as well as the medical forensic reports.
The State party disagrees with the author’s argument that the court was biased and observes that it assessed the evidence presented by both parties. The legality and relevance of the decision was assessed by the Minsk City Court, which rejected the author’s cassation appeal and upheld the lower court ruling. Subsequently, the decision of the Partizansky District Court entered into force on 29 April 2011.
The State party informs that the author’s appeal under the supervisory review procedure in 2014 was rejected on 2 December 2014.
The State party observes that the author’s right to a fair and public hearing by a competent, independent and impartial tribunal established by law was fully guaranteed, in accordance with the article 14 of the Covenant.
The State party further observes that the author did not seek a supervisory review before the Supreme Court and the Prosecutor General. Thus, the author failed to exhaust all available domestic remedies as required by article 2 of the Optional Protocol to the Covenant.
In light of this, the State party notes, that the author’s complaint should be treated as an abuse of the right to submit a communication and therefore considered by the Committee as inadmissible.
The State party concludes that on 13 September 2011, the author was released from prison as a result of a presidential pardon.
Author’s comments on the State party’s observations
In the letter dated 9 March 2016, the author expressed disagreement with the State party’s arguments that he did not exhaust all available domestic remedies by failing to appeal the decisions of the Court under the supervisory review procedures, and, with reference to Committee’s jurisprudence, notes that the supervisory review is a common former Soviet Republics’ discretionary review process, which the Committee has previously considered not to constitute an effective remedy for the purposes of exhaustion of domestic remedies.9 He concludes that all available and effective domestic remedies have been exhausted in his case.
- The reference is made to Iskiyaev v Uzbekistan, CCPR/C/95/D/1418/2005, para 6.1. ↩
The author notes the systemic nature of the lack of independence of the judiciary in the country, and in this context, refers to the reports of International institutions, stating that the executive power and the President of Belarus exercise a full control over the process of appointment and dismissals of judges, their tenure and allocation of financial support.10 According to the author, these reports also noted factual interferences undertaken by the executive power in the work of the judiciary, showing that the courts were biased and took the side of the prosecution.
- The reference is made to E/CN.4/2001/65/Add.1 the report concerning a fact-finding mission to Belarus undertaken from 12 to 17 June 2000 by the Special Rapporteur on the independence of judges and lawyers. ↩
The author reiterates that his right to a fair trial as guaranteed in article 14 (1) of the Covenant was violated since the courts were biased and not independent. The courts indulged in criticism, expressed doubt about the trustworthiness of the author’s testimony and often overruled defence motions while sustaining the ones from the prosecution.
The author maintains his claims of a violation of article 14 (3) (e) of the Covenant because the court read the statements of two witnesses without summoning them. He submits that most of the motions of the defense were rejected, including the one requesting the demonstration, during the court hearing, of all video materials covering the mass event.
The author reiterated his claims under article 14 (2) of the Covenant, noting that top state officials failed to refrain from making public statements and accused him of committing a crime throughout the investigation and court proceedings. He alleges that such incriminating statements must have influenced the outcome of the court hearings. The author notes that contrary to Committee’s General comments, he was handcuffed and kept in a cage during the trial, thus presented to the court in a manner indicating that he was a dangerous criminal.11
- The reference is made to General Comment No. 32 on Article 14: Right to equality before courts and tribunals and to a fair trial, para 30. ↩
The author concluded that he was not brought to the hearing of the court of cassation in person and therefore his rights under article 14 (3) (d) of the Covenant were violated. He notes that the court rejected his request to be present at the cassation proceedings reasoning that his presence was not obligated by the law. The author submits that, as a result of this decision, he was restricted of his right to defend himself and present his arguments which lead to his conviction and imprisonment.
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 takes note of the State party’s observations, which imply that the author has not exhausted all available domestic remedies as his claims for a supervisory review have not been examined by the Prosecutor General or the Chair of 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 an effective remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.12 It also considers that filing requests for supervisory review to the chair 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.13 In the absence of further information or explanations by the State party in the present case, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the 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; and Sudalenko v. Belarus (CCPR/C/115/D/2016/2010), para. 7.3. ↩
- 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. ↩
The Committee takes note of the author’s submission that the State party violated its obligations under article 2 of the Covenant. The Committee recalls its jurisprudence, which indicates that the provisions of article 2 set forth a general obligation for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol.14 Accordingly, it concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.
- See, for example, communicat ions No. 2202/2012, Castañeda v. Mexico, Views adopted on 18 July 2013, para. 6.8; No. 1834/2008, A.P. v. Ukraine, decision of inadmissibility adopted on 23 July 2012, para. 8.5; No. 1887/2009, Peirano Basso v. Uruguay, Views adopted on 19 October 2010, para. 9.4. ↩
The Committee notes the author’s claim under article 7 of the Covenant that he was subjected to psychological pressure by the police at the pre-trial detention and investigation stages with the aim of obtaining a confession. In the absence of any further information in support of the author’s allegations, the Committee considers that the author has failed to sufficiently substantiate his claim for the purposes of admissibility, and therefore declares this claim inadmissible under article 2 of the Optional Protocol.
The Committee notes the author’s claims that the courts were biased and not independent, relying mostly on the arguments presented by the prosecution, thus acting contrary to article 14 (1) of the Covenant. In the absence of any further pertinent information on file, the Committee concludes however that this part of the communication is inadmissible under article 2 of the Optional Protocol.
As to the alleged violation of the author’s rights under article 14 (3) (e), (g), the Committee considers that these claims have been insufficiently substantiated, for purposes of admissibility. In the absence of any further pertinent information on file, the Committee concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.
The Committee notes the author’s claim that his rights under article 14 (5) of the Covenant have been violated as the cassation court did not re-examine the facts of his case and limited itself to a formal revision of the lower court’s judgment. The Committee notes, however, that the decision of Minsk City Court of 29 April 2011, where the author was represented by his lawyer, did not merely refer to the procedural aspects of the hearing performed by the District Court, but heard the statements of both parties and examined the “information on file”, including witness statements and related materials (para 2.8), which indicates that the court did engage in an evaluation of facts and evidence and did not limit itself to review points of law . Accordingly, the Committee finds the author’s claims under article 14 (5) to be insufficiently substantiated for the purposes of admissibility and declares this part of the communication inadmissible under article 2 of the Optional Protocol.15
- See, for example, communications No. 2337/2014, Volchek v. Belarus, Views adopted on 23 July 2020, para. 6.7. ↩
The Committee considers that the author has sufficiently substantiated the remaining claims, under articles 9 (2, 3), 10, 14 (2, 3 (d)), 19, 21 of the Covenant, for the purposes of admissibility. It therefore declares this part of the communication admissible and proceeds with its consideration of the merits.
Considerations of the merits
The Committee has considered the communication 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 claim, under article 9 of the Covenant, that he was not promptly informed about the reasons of his arrest and charges against him, his pre-trial detention was also unlawful as it was not justified. The first time he was brought before a judge was more than three months after his arrest, when the trial began.16 In the absence of any further information, therefore, the Committee concludes that there has been a violation of article 9 (2) of the Covenant.
- See, for example, Alphen v. Netherlands (CCPR/C/39/D/305/1988), para. 5.8. ↩
The Committee further notes the author’s claim that the author’s remand in custody was sanctioned by the Prosecutor, who is not authorized by law to exercise judicial power, as required by article 9 (3) of the Covenant. The Committee recalls that the above-mentioned provision entitles a detained person charged with a criminal offence to judicial control of his/her detention. It is inherent to the proper exercise of judicial power that it be exercised by an authority that is independent, objective and impartial in relation to the issues dealt with.17 The Committee recalls that a Prosecutor cannot be regarded as having the institutional objectivity and impartiality necessary to exercise judicial power within the meaning of article 9 (3) of the Covenant,18 and concludes that there has been a violation of that provision.
The Committee notes the author’s claim that he has been held in a small cell with no personal bed, under extremely poor sanitary and hygiene conditions. He was held with 21 other inmates in a cell which measured only 12 square meters and was nominally fit for 13 persons; there was only cold water available in the cells where the temperature was very low; the cell was without natural light; he was allowed out of his cell to walk only once a day and to shower once every 10 days; lack of hygiene and overcrowd was conducive in spreading various types of diseases among inmates. His health complaints (tooth ache) were ignored. The Committee recalls that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; they must be treated humanely in accordance with the Standard Minimum Rules for the Treatment of Prisoners.19 Materials on file demonstrate that, in responding to the author’s motion under the supervisory review proceedings, the Minsk Prosecutor briefly noted that the author’s allegations could not be confirmed. The Committee notes however that the State party did not provide any information in response to the author’s allegation over his conditions of detention. In these circumstances, due weight must be given to the author’s allegations to the extent that they are substantiated. The Committee considers, as it has repeatedly found in respect of similar substantiated claims,20 that the author’s conditions of detention as described violated his right to be treated with humanity and with respect for the inherent dignity of the human person, and are therefore also contrary to article 10 (1) of the Covenant.
With regard to the allegations of violations of article 14 (2), the Committee notes the author’s claim that his right to be presumed innocent has been violated, because documentaries shown on the national channel and top State officials publicly referred to him as having participated in mass disorders and being guilty of having committed crimes in connection with the protest of 19 December 2010 before his guilt had been duly established by the court. The author also claimed that he was handcuffed and placed in a cage in the courtroom throughout the hearings relating to his case. The State party did not contest those allegations. The Committee recalls that the accused person’s right to be presumed innocent until proved guilty by a competent court is guaranteed by the Covenant. In the absence of any relevant information from the State party, the Committee concludes that the facts as described by the author disclose a violation of article 14 (2) of the Covenant.
Referring to article 14 (3) (d) of the Covenant, the Committee notes the author’s claim about being denied the right to participate in the cassation appeal hearing on 29 April 2011. In this regard, the Committee notes that the author had requested to be present in the court in person and that the court followed domestic law in rejecting his written request (paras 2.11, 5.6). The Committee also notes that the author was represented by his lawyer at the cassation hearing, who had also represented him throughout the criminal proceedings against him. The Committee finds, however, that article 14 (3) (d) of the Covenant applies to the present case, since under the appeal proceedings the court examined the case as to the facts and the law and made a new assessment of the issue of guilt or innocence, as the State party itself acknowledges (para 4.4). The Committee recalls that article 14 (3) (d) of the Covenant requires that accused persons are entitled to be present during their trial and that proceedings in the absence of the accused are only permissible if this is in the interest of the proper administration of justice or when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Accordingly, in the absence of adequate explanations by the State party on the specific reasons for refusing the author’s wish to be present at the cassation hearing, the Committee finds that the facts before it disclose a violation of article 14 (3) (d) of the Covenant.
The Committee notes the author’s claim that, by sentencing him to three years and six months imprisonment under article 293, part 2, of the Criminal Code for participating in an unauthorized but peaceful public gathering, the State party disproportionately interfered in the exercise of his right of peaceful assembly under article 21 of the Covenant. The Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is indispensable in a democratic society. That right entails the possibility of organizing and participating in a peaceful assembly, including a spontaneous one, at a public location. While the right of peaceful assembly may in certain cases be limited, the onus is on the authorities to justify any restrictions. Authorities must be able to show that any restrictions meet the requirement of legality, and are also both necessary for and proportionate to at least one of the permissible grounds for restrictions enumerated in article 21.21
- General comment No. 37 on the right of peaceful assembly (2020), para. 36. ↩
The Committee notes the State party’s argument that the during the protests, the author acted aggressively, hit the wooden barriers of doorways of the House of Government in the effort to open the entrance door of the building, and recalls that the right of peaceful assembly may by definition not be exercised in a violent way, whereas “Violence” in this context typically entails the use by participants of physical force that is likely to result in injury or death, or serious damage to property.22 A violent assembly is one that is characterized by [widespread and serious] violence [, and is sometimes referred to as a riot]. The Committee notes that there is not always a clear dividing line between assemblies that are peaceful and those that are violent, but there is a presumption in favour of considering assemblies to be peaceful.23 The Committee notes that isolated acts of violence by some participants should not be attributed to other participants and stresses that participants’ conduct may be deemed violent if, before or during the event, the participants are inciting others to the [imminent] use of unlawful force, the participants have violent intentions and plan to act on them, or violence is imminent.24 The Committee also underlines that isolated instances where this is the case will not suffice to taint an entire assembly as no longer peaceful, but where the incitement or intention of violence is widespread, or if the leaders or organizers of the assembly themselves convey this message. In the absence of any relevant information from the State party, rebutting the author’s arguments that although acknowledging having hit the wooden barriers of doorways of the House of Government, he was neither part of the violent group of people who participated in the mass disorders nor that he had harmed law enforcement officers, as could be seen from the video materials showed during the court hearing (paras 2.5 and 2.6), the Committee concludes that, in the present case, the State party has violated the author’s rights under article 21 of the Covenant.25
The Committee notes the author’s claim that his criminal conviction under article 293, part 2, of the Criminal Code constituted a violation of his rights to hold opinions without interference and to freedom of expression, as guaranteed under article 19 of the Covenant, because the restrictions imposed by the State party on the exercise of those rights were not in conformity with the law and were not necessary in a democratic society. The author argued that the State party’s authorities prosecuted and sentenced him to three years and six months imprisonment for exercising his right to freedom of expression. The Committee also notes the author’s claim that he has been prosecuted for publicly expressing his disagreement with election results on 19 December 2010, in front of the House of Government. The Committee further notes the author’s submission that the police, instead of controlling the violent group of protesters, rounded up peaceful demonstrators because they were shouting “long live Belarus “, “get out”.
The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, which states that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person, and that such freedoms are essential for any society. They constitute the foundation stone for every free and democratic society.26 The Committee recalls that article 19 (3) of the Covenant allows certain restrictions only to the extent that those restrictions are provided by law and only if they are necessary: (a) for the respect of the rights or reputations of others; and (b) for the protection of national security or of public order (ordre public), or of public health or morals. Any restriction on the exercise of such freedoms must conform to the strict tests of necessity and proportionality. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.27 The Committee also recalls that it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 of the Covenant were necessary and proportionate.28 In the present case, the Committee observes, however, that neither the State party nor the courts have provided sufficient explanation as to how the restrictions and the sanction imposed on the author in the exercise of his right to freedom of expression were justified pursuant to the conditions of necessity and proportionality set out in article 19 (3) of the Covenant, namely that they were the least intrusive among the measures that might achieve the relevant protective function and proportionate to the interest being protected. Accordingly, the Committee finds that the State party violated the author’s rights under article 19 (2) of the Covenant.
- See Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, para. 2. ↩
- Ibid, para. 22. ↩
- See, for example, Pivonos v. Belarus (CCPR/C/106/D/1830/2008), para. 9.3; and Olechkevitch v. Belarus (CCPR/C/107/D/1785/2008), para. 8.5; and Androsenko v. Belarus (CCPR/C/116/D/2092/2011), para. 7.3. ↩
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 articles 9 (2) and (3), 10 (1), 14 (2) and (3) (d)), 19 and 21.
In accordance with 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 adequate compensation to the author, including reimbursement of any legal costs incurred, as well as appropriate measures of satisfaction. The State party is also under an obligation to take steps to prevent similar violations in the future.
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 and 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.