COMMUNICATIONS NOS. 2579/2015, 2968/2017, 3057/2017, 3059/2017, 3099/2018, 3234/2018: DECISION/VIEWS

The authors of the communications are Andrey Strizhak (communication No. 2579/2015); Sergey Kosobutsky, Viktor Kozlov, Konstantin Zhukovski and Leonid Sudalenko (communication No. 2968/2017); Zinaida Shumilina, Vasily Polyakov and Mikhail Nepomnyashchikh (communication No. 3057/2017); Viktor Kozlov, Leonid Sudalenko and Anatoly Poplavny (communication No. 3059/2017); and Vladimir Nepomnyashchikh (communications No. 3099/2018 and No. 3234/2018). The authors are nationals of Belarus. They claim that the State party has violated their rights under articles 2 (2) and (3), 19 and 21 of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992.

The present communication was submitted for consideration before the State party’s denunciation of the Optional Protocol became effective on 8 February 2023. In accordance with article 12 (2) of the Optional Protocol and the Committee’s previous case law, the State party continues to be subject to the application of the Optional Protocol as regards the present communications.³

3. See, for example, Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 10; Lobban v. Jamaica (CCPR/C/80/D/797/1998), para. 11; and Shchiryakova et al. v. Belarus (CCPR/C/137/D/2911/2016, 3081/2017, 3137/2018 and 3150/2018). ↩

On 7 July 2023, pursuant to rule 97 (3) of its rules of procedure, the Committee decided to deal with communications No. 2579/2015, No. 2968/2017, No. 3057/2017, No. 3059/2017, No. 3099/2018 and No. 3234/2018 jointly, in view of substantial factual and legal similarities.

All authors filed applications for authorization to organize peaceful assemblies with the respective local executive authorities in the cities of Rechytsa and Homiel between 2013 and 2017. Their applications were rejected. Subsequently, all authors have filed unsuccessful appeals against the decisions of the executive authorities in various courts.

The facts relevant to each individual communication are summarized below.

On 23 August 2013, the author submitted an application to the Rechytsa District Executive Committee of Homiel Province, requesting an authorization to organize, on 8 September 2013, a peaceful march of up to 15 participants in the city centre. The purpose of the march was to raise public awareness about the Government’s decision to abolish the reimbursement of sick leave for employees with children. Along with the application, the author included a signed document agreeing to cover any expenses related to maintaining public order, providing health care and cleaning the area within 10 days after the event, as stipulated by the relevant decision of the local executive authority.

On 29 August 2013, the Rechytsa District Executive Committee rejected the application to organize the march, on the ground that the author’s application did not fulfil the requirements of the Public Events Act⁴ and Executive Committee Decision No. 802 of 10 April 2012 on mass events in Rechytsa District. In accordance with Decision No. 802, the Executive Committee designated two specific locations for organizing public events in the city. Additionally, the decision stipulates that contracts must be signed with the relevant service providers prior to the event, covering aspects such as maintaining public order, providing medical services during the event and cleaning the location afterwards. The author’s request to hold the event was rejected due to two reasons. First, the location of the planned event did not fall within the designated areas specified for such purposes. Second, the author had not fulfilled the requirement to enter into contracts with the necessary service providers before making the application.

4. Article 9 of the Public Events Act gives discretion to the local executive authorities to determine permanent locations to hold public events. ↩

On 11 September 2013, the author appealed the decision of the Rechytsa District Executive Committee of 29 August 2013 to the Rechytsa District Court of Homiel Province. On 8 October 2013, the author’s appeal was rejected by the Court. On 15 October 2013, the author submitted an appeal against the decision of the Rechytsa District Court to the Homiel Provincial Court, which was rejected on 5 November 2013. The Courts found that the author had failed to comply with the requirements for the organization of public events as set out in the Public Events Act and Rechytsa Executive Committee Decision No. 802.

On 11 May 2016, the authors submitted an application to the Homiel City Executive Committee requesting an authorization to conduct a public event in the form of a picket at the location authorized for such events by the Executive Committee, namely, the site adjacent to the square at the intersection of Barykina and Voiskovaya Streets in Homiel. The purpose of the event was to draw attention to the issue of wage reductions for workers in Belarus. On 20 May 2016, the Executive Committee denied the authorization to hold the picket on the ground that the authors’ application did not fulfil the requirements of Executive Committee Decision No. 775 of 15 August 2013 on mass events in Homiel City. According to Decision No. 775, there are two designated locations in Homiel for organizing public events: a park and an area adjacent to the stadium. If an event is organized without the involvement of a State institution, the organizers are required to provide contracts with specific service providers together with their application for permission. Those contracts should include a contract with the Central Homiel City Polyclinic for medical services during the event and a contract with the community enterprise Gorsap, which is responsible for road maintenance, for cleaning services after the event. The authors failed to provide the necessary contracts with the service providers, resulting in the denial of their request for authorization.

On 23 May 2016, the authors appealed the decision of the Homiel City Executive Committee before the Central District Court of Homiel. Their appeal was rejected on 16 June 2016. Their cassation appeal of 17 June 2016 to the Homiel Provincial Court was rejected on 9 August 2016. The authors submitted requests for supervisory review to the Chair of the Homiel Provincial Court on 20 September 2016 and the Chair of the Supreme Court of Belarus (unspecified dated). Their requests were rejected on 3 October and 17 November 2016, respectively. The authors submitted requests for supervisory review to the Office of the Homiel Provincial Prosecutor, on 25 November 2016, and to the Office of the Prosecutor General, on 20 December 2016. Those requests were also rejected on 14 December 2016 and 10 February 2017, respectively. The authors’ appeals were rejected on the ground that they had failed to comply with the requirements of Executive Committee Decision No. 775.

On 29 December 2014, the authors submitted an application to the Homiel City Executive Committee, seeking authorization to conduct several peaceful pickets in various locations around Homiel on 17 January 2015. The purpose of those pickets was to express their views on the financial crisis in Belarus and to call for the resignation of President Lukashenko.

On 10 January 2015, the Homiel City Executive Committee denied the application to hold the pickets requested by the authors. The reason cited for the denial was that the authors’ application did not meet the requirements outlined in Executive Committee Decision No. 775 on mass events in Homiel City. Specifically, the planned locations for the pickets differed from those specified in Decision No. 775, and the authors failed to provide contracts with the necessary service providers as stipulated therein.

On 20 January 2015, the authors appealed the decision of the Homiel City Executive Committee before the Central District Court of Homiel. Their appeal was rejected on 25 February 2015. The authors’ appeal to the Homiel Provincial Court of 16 March 2015 was rejected on 23 April 2015. The authors submitted requests for supervisory review to the Chair of the Homiel Provincial Court, on 14 August 2015, to the Chair of the Supreme Court of Belarus, on 5 October 2015, to the Office of the Homiel Provincial Prosecutor, on 24 November 2015, and to the Office of the Prosecutor General, on 17 February 2016. Their requests were rejected on 25 September, 17 November and 28 December 2015 and 21 April 2016, respectively, on the ground that the authors had failed to comply with the requirements of Executive Committee Decision No. 775.

On 7 September 2015, the authors submitted an application to the Homiel City Executive Committee, seeking authorization to organize a march in the city centre on 27 September 2015. The purpose of the march was to draw public attention to the exercise of voting rights in the upcoming presidential elections. To support their application, the authors included a signed document in which they committed to cover any costs associated with maintaining public order, providing health-care services and cleaning the area within 10 days. That commitment was made in accordance with Executive Committee Decision No. 775.

On 21 September 2015, the Homiel City Executive Committee rejected the application having determined that the itinerary of the march was not in accordance with the provisions of the Public Events Act. According to that Act, no public events should be authorized within a distance of 50 metres from local administrations and 200 metres from the editorial offices of mass media outlets. Furthermore, the Executive Committee referred to its Decision No. 775, stating that the authors had failed to provide contracts with service providers in their application.

On 24 September 2015, the authors appealed the decision of the Homiel City Executive Committee before the Central District Court of Homiel. Their appeal was rejected on 12 October 2015. The authors’ cassation appeal to the Homiel Provincial Court, dated 14 October 2015, was rejected on 24 November 2015. The authors submitted requests for supervisory review to the Chair of the Homiel Provincial Court, on 11 December 2015, to the Chair of the Supreme Court of Belarus, on 19 January 2016, to the Office of the Homiel Provincial Prosecutor, on 9 March 2016, and to the Office of the Prosecutor General, on 18 April 2016. Their requests were rejected on 16 January, 2 March, 8 April and 15 June 2016, respectively. The authors’ appeals were rejected because they had failed to comply with the requirements of Executive Committee Decision No. 775.

On an unspecified date in February 2017, the author submitted an application to the Homiel City Executive Committee, seeking authorization to organize a demonstration in the city centre on 19 February 2017. The purpose of the demonstration was to protest against Presidential Decree No. 3 of 2 April 2015 on the prevention of social dependency. On 13 February 2017, the Executive Committee denied authorization for the event. Its decision was based on the fact that the author had not complied with the provisions that required that public events should not be authorized within a distance of 50 metres from local administration buildings and 200 metres from the editorial offices of mass media outlets. Furthermore, the author failed to provide contracts with public service providers as required by Executive Committee Decision No. 775 on mass events in Homiel City. On the same date, the author appealed the decision of the Executive Committee before the Central District Court of Homiel, which rejected his appeal on 4 April 2017. On 16 May 2017, the author’s cassation appeal, submitted on 7 April 2017, was rejected by the Homiel Provincial Court for failure to comply with the requirements for organizing public events, as set out in Executive Committee Decision No. 775.⁵

5. Despite the lack of authorization, the author took part in the mass event on 19 February 2017. On 15 March 2017, the Central District Court of Homiel sentenced the author to three days of administrative detention and fined him the equivalent of approximately 255 euros. The author did not appeal that decision. ↩

On 18 December 2017, the author submitted an application to the Homiel City Executive Committee, seeking an authorization for a peaceful picket of up to 10 participants. The purpose of the picket was to draw attention to two main issues: the blocking of the Belarussian partisan website and the absence of free speech in Belarus. On 28 December 2017, the Executive Committee denied authorization for the picket because the author had failed to provide contracts with public service providers as required under Executive Committee Decision No. 775 on mass events in Homiel City. On 6 January 2018, the author appealed against the decision of the Executive Committee to the Central District Court of Homiel, which rejected his appeal on 5 April 2018. On 14 June 2018, the author’s cassation appeal (submitted on 12 May 2018) was rejected by the Homiel Provincial Court. On 14 June 2018, the author’s request for supervisory review (submitted on 12 May) was rejected by the Chair of the Homiel Provincial Court. On 3 August 2018, his request for supervisory review (submitted on 18 May) was rejected by the Chair of the Supreme Court because the author had failed to comply with the requirements of Executive Committee Decision No. 775.

All authors assert that the denial of their requests for authorization to hold public events by local executive authorities, based on existing legislation, violated their rights under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant. They argue that neither the local authorities nor the courts assessed whether the limitations imposed on their rights under Rechytsa Executive Committee Decision No. 802 and Homiel City Executive Committee Decision No. 775 were justified on the grounds of national security, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. The authors contend that the decisions, which confine all mass events to two remote locations in Rechytsa and three locations in Homiel and require organizers to enter into prior paid contracts with public service providers, unduly restrict their rights under articles 19 and 21 of the Covenant. They claim that the provisions of the Public Events Act grant local executive authorities the power to designate permanent locations for mass events without requiring justification for such limitations.

The authors ask the Committee to recommend that the State party align the provisions of its legislation on organization of public events with the standards set out in articles 19 and 21 of the Covenant.

By notes verbales of 22 April 2015,⁶ 11 May 2017,⁷ 15 January 2018,⁸ 2 February 2018,⁹ 5 March 2018¹⁰ and 11 February 2019,¹¹ the State party submitted its observations on admissibility and the merits of the communications.

6. In relation to communication No. 2579/2015. ↩
7. In relation to communication No. 2968/2017. ↩
8. In relation to communication No. 3057/2017. ↩
9. In relation to communication No. 3059/2017. ↩
10. In relation to communication No. 3099/2018. ↩
11. In relation to communication No. 3234/2018. ↩

In respect of communication No. 2579/2015, the State party submits that the author himself acknowledges that he has not exhausted all available domestic remedies, contrary to the requirements of article 2 of the Optional Protocol. The State party views the Committee’s decision to register the communication as a violation of article 5 of the Optional Protocol. Furthermore, the State party argues that the Committee’s arbitrary interpretation of articles 2 and 5 of the Optional Protocol contradicts the principles of treaty interpretation outlined in the Vienna Convention on the Law of Treaties. Due to those procedural violations by the author and the Committee, the State party states that it will cease further correspondence in relation to that communication.

The State party challenges the exhaustion of domestic remedies by the authors of communications No. 3057/2017, No. 3059/2017, No. 3099/2018 and No. 3234/2018. The State party notes that the author of communications No. 3099/2018 and No. 3234/2018 failed to submit a request for supervisory review under article 439 of the Code of Civil Procedure. The authors of communications No. 2968/2017, No. 3057/2017 and No. 3059/2017 have not availed themselves fully of that procedure, which provides for the possibility to file a request for supervisory review through the Chair of the Supreme Court or the deputies thereof, as well as through the Prosecutor General or the deputies thereof.

On the merits, the State party submits that the organization of public events affects the rights of others. In order to protect those rights, the State party has established a procedure for the organization of public events in the Public Events Act. According to article 9 of the Act, local executive authorities are empowered to determine locations for public events. The locations proposed by the authors of communications No. 3057/2017, No. 3059/2017, No. 3099/2018 and No. 3234/2018 did not correspond to those designated for such purposes by the respective decisions of the local authorities.

In order to guarantee protection of public order and of the rights of the participants of public events and of others, national legislation requires the conclusion of contracts with public service providers in advance of public events. The authors of communications No. 2968/2017, No. 3057/2017, No. 3059/2017 and No. 3099/2018 did not provide such contracts together with their applications to the local executive committees. The State party concludes that the authors’ applications have been rejected in accordance with the national law and that there has been no violation of articles 19 and 21 of the Covenant.

On 11 May 2015,¹² 23 January 2020,¹³ 28 April 2017,¹⁴ 12 May 2018,¹⁵ 5 June 2018¹⁶ and 17 April 2019,¹⁷ the authors submitted their comments on the State party’s respective observations. Addressing the State party’s arguments regarding the inadmissibility of the communications for failure to exhaust domestic remedies, the authors of communications No. 2579/2015, No. 2968/2017, No. 3057/2017, No. 3059/2017, No. 3099/2018 and No. 3234/2018 submit that the supervisory review procedure does not constitute an effective domestic remedy, as it does not entail a fresh examination of the case and its outcome depends on the sole discretion of the relevant prosecutor or judge. In addition, the authors of communications No. 2968/2017, No. 3057/2017, No. 3059/2017 and No. 3234/2018 submit that the Chair of the Supreme Court of Belarus has five deputies, several of whom may review the appeal. The Prosecutor General has four deputies. The State party does not explain which deputy needs to be addressed so that the appeal is reviewed personally by the Chair of the Supreme Court or by the Prosecutor General. They addressed their requests to the Chair of the Supreme Court and to the Prosecutor General. Their requests were rejected by one of the deputies. The authors cannot be blamed for failure to exhaust domestic remedies because the officials mentioned delegated consideration of the requests to their deputies.

12. In relation to communication No. 2579/2015. ↩
13. In relation to communication No. 2968/2017. ↩
14. In relation to communication No. 3057/2017. ↩
15. In relation to communication No. 3059/2017. ↩
16. In relation to communication No. 3099/2018. ↩
17. In relation to communication No. 3234/2018. ↩

In response to the State party’s argument that the Committee should not have registered communication No. 2579/2015, the author thereof submits that the role of the Committee ultimately includes interpretation of the provisions of the Covenant and development of jurisprudence. By refusing to recognize its standard practices, methods of work and jurisprudence, Belarus in effect refuses to recognize the competence of the Committee to interpret the Covenant, which contradicts its objective and goals. The author submits that, having voluntarily accepted the jurisdiction of the Committee, the State party has no right to infringe on its competence and ignore its opinion. The State party is not only obliged to implement the decisions of the Committee, but it is also obliged to recognize its standards, practices, methods of work and jurisprudence. The above argument is based on the most important principles of international law – pacta sunt servanda – according to which every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Regarding the State party’s argument that there has been no violation of articles 19 and 21 of the Covenant, the authors of communications No. 2968/2017 and No. 3234/2018 argue that the State party failed to demonstrate the necessity of the limitation imposed on their rights and the specific legitimate aim pursued under articles 19 and 21 of the Covenant. Furthermore, the authors of communications No. 3057/2017, No. 3059/2017 and No. 3099/2018 state that the State party refers to the Public Events Act, which itself needs to be amended in accordance with the conclusions of the European Commission for Democracy through Law (the Venice Commission) and the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe of 16 and 17 March 2012.¹⁸ Additionally, the State party has failed to implement numerous recommendations made by the Committee, which called for alignment of the Public Events Act with the standards outlined in articles 19 and 21 of the Covenant.¹⁹

18. The authors refer to the joint opinion on the Law on Mass Events of Belarus of the European Commission for Democracy through Law (Venice Commission) and the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe, adopted by the Venice Commission at its ninetieth plenary session (Venice, 16 and 17 March 2012) (CDL-AD(2012)006). ↩
19. Reference is made to Kirsanov v. Belarus (CCPR/C/110/D/1864/2009); Kuznetsov et al. v. Belarus (CCPR/C/111/D/1976/2010); Evrezov v. Belarus (CCPR/C/114/D/1988/2010); Sudalenko v. Belarus (CCPR/C/113/D/1992/2010); Evrezov et al. v. Belarus (CCPR/C/112/D/1999/2010 and CCPR/C/112/D/1999/2010/Corr.1); and Poliakov v. Belarus (CCPR/C/111/D/2030/2011). ↩

The Committee notes the State party’s assertion that the present communication was registered in violation of the provisions of the Optional Protocol and that the State party therefore will cease further correspondence thereon.

The Committee notes 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 of the Optional Protocol). Implicit in a State’s adherence to the Optional Protocol is the undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications and, after examination thereof, to forward its Views to the State party and to the individual (art. 5 (1) and (4)). It is incompatible with those obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of the communication, and in the expression of its Views.²⁰ 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 should be registered and by declaring that it will cease all correspondence concerning the communication, the State party has violated its obligations under article 1 of the Optional Protocol.

20. See, for example, Levinov v. Belarus (CCPR/C/105/1867/2009, 1936/2010, 1975/2010, 1977/2010, 1978/2010, 1979/2010, 1980/2010, 1981/2010 and 2010/2010), para. 8.2; and Piandiong et al. v. Philippines (CCPR/C/70/D/869/1999 and CCPR/C/70/D/869/1999/Corr.1), para. 5.1. ↩

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 the State party’s argument that the authors of all communications failed to seek a supervisory review of the impugned decisions in their cases by the Offices of the Homiel Provincial Prosecutor and the Prosecutor General or by the chair or deputy chair of a higher court and of the Supreme Court of Belarus. In that context, the Committee considers that filing requests for supervisory review with the chair of a court directed against court decisions that have entered into force and depend on the discretionary power of a judge constitutes 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. The Committee recalls its jurisprudence, according to which a petition for supervisory review submitted to a prosecutor’s office, dependent on the discretionary power of the prosecutor, requesting a review of court decisions that have taken effect constitutes an extraordinary remedy and thus does not constitute a remedy that must be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.²¹ The Committee also notes that the requests for supervisory review submitted by the authors in communications No. 2968/2017, No. 3057/2017, No. 3059/2017 and No. 3234/2018 to a higher court, the Supreme Court and the Office of the Prosecutor General were not effective and that the circumstances under which sanctions were imposed are similar to those in communications No. 2579/2015 and No. 3099/2018. The Committee notes that, in the present case, the authors have exhausted all effective domestic remedies and, therefore, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communications.

21. Gryk v. Belarus (CCPR/C/136/D/2961/2017), para. 6.3; Tolchin v. Belarus (CCPR/C/135/D/3241/2018), para. 6.3; and Shchukina v. Belarus (CCPR/C/134/D/3242/2018), para. 6.3. ↩

The Committee takes note of the authors’ claims that the State party violated their rights under articles 19 and 21, read in conjunction with article 2 (2), of the Covenant. The Committee reiterates that the provisions of article 2 of the Covenant 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.²² The Committee notes, however, that the authors in communications No. 2579/2015 and No. 3059/2017 have already alleged a violation of their rights under article 19 of the Covenant, resulting from the interpretation and application of the existing laws of the State party, and the Committee does not consider the examination of whether the State party has also violated its general obligations under article 2 (2), read in conjunction with article 19, of the Covenant to be distinct from an examination of the violation of these authors’ rights under article 19 of the Covenant. The Committee therefore considers that the authors’ claims in that regard are incompatible with article 2 of the Covenant and thus inadmissible under article 3 of the Optional Protocol.

22. Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 7.4; and Zhukovsky v. Belarus (CCPR/C/127/D/2724/2016), para. 6.4. ↩

The Committee notes the authors’ claims under articles 19 and 21, read in conjunction with article 2 (3), of the Covenant. In the absence of any further pertinent information on file, however, the Committee considers that the authors have failed to sufficiently substantiate such claims for the purposes of admissibility. Accordingly, it declares that part of their communications inadmissible under article 2 of the Optional Protocol.

The Committee notes that the facts, as submitted by all authors in their respective communications, raise issues under articles 19 and 21 of the Covenant. The Committee, therefore, considers those parts of the communications sufficiently substantiated for the purposes of admissibility and proceeds with its consideration of the merits.

The Committee has considered the communications in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes the authors’ claim that their applications to organize public events were rejected on the basis of Rechytsa Executive Committee Decision No. 802 and Homiel City Executive Committee Decision No. 775. The authors claim that those Decisions unduly restrict their right to freedom of expression and the right of peaceful assembly by imposing on the organizers of public events an obligation to conclude paid contracts with public service providers and by allocating, respectively, two and three remote locations for all mass events to be held in Rechytsa and in Homiel. It also notes the authors’ argument that the authorities failed to explain why the restrictions imposed on their rights were necessary in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others, as required, respectively, by article 19 (3) and the second sentence of article 21 of the Covenant.

Considering the authors’ claims that their rights to freedom of expression and freedom of peaceful assembly were unreasonably restricted by the State party, the Committee notes that the issue before it is to determine whether the restrictions imposed were justified under articles 19 (3) and 21 of the Covenant.

In its general comment No. 37 (2020), the Committee stated that peaceful assemblies might in principle be conducted in all spaces to which the public had access or should have access, such as public squares and streets.²³ Peaceful assemblies should not be relegated to remote areas where they cannot effectively capture the attention of those who are being addressed or of 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.

23. General comment No. 37 (2020) on the right of peaceful assembly, para. 55. ↩

The Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right, essential for public expression of an individual’s views and opinions and indispensable in a democratic society. Given that peaceful assemblies often have expressive functions and that political speech enjoys particular protection as a form of expression, assemblies with a political message should enjoy a heightened level of accommodation and protection.²⁴ Article 21 of the Covenant protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof. Such assemblies may take many forms, including demonstrations, protests, meetings, marches, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.²⁵ The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience²⁶ and no restriction to this right is permissible, unless it is (a) imposed in conformity with the law; and (b) 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.²⁷ The State party is thus under an obligation to justify the limitation of the right protected by article 21 of the Covenant.²⁸

24. Ibid., para. 32; see also general comment No. 34 (2011) on the freedoms of opinion and expression, paras. 34, 37, 38, 42 and 43. ↩
25. General comment No. 37 (2020), para. 6. ↩
26. Ibid., para. 22. ↩
27. Ibid., para. 36. ↩
28. Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 8.4. ↩

The Committee recalls its general comment No. 34 (2011) on the freedoms of opinion and expression, in which it stated, inter alia, that the freedom of expression was essential for any society and constituted a foundation stone for every free and democratic society.²⁹ It notes that article 19 (3) of the Covenant 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 for (a) respect of the rights or reputation of others or (b) the protection of national security or public order (ordre public), or of public health or morals. Lastly, 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.³⁰ The Committee recalls that the onus is on the State party to demonstrate that the restrictions on the authors’ rights under article 19 of the Covenant were necessary and proportionate.³¹

29. General comment No. 34 (2011), para. 2. ↩
30. Ibid., para. 34. ↩
31. See, for example, Androsenko v. Belarus (CCPR/C/116/D/2092/2011), para. 7.3. ↩

The Committee notes that the national authorities refused to authorize the organization of peaceful public events by the authors on the grounds that the planned locations of the events were different from those few locations in Rechytsa and Homiel under, respectively, Decisions Nos. 802 and 775 and because the authors had failed to conclude contracts with public service providers. It also observes that, from the material on file, the national authorities have failed to demonstrate how peaceful events held in the locations proposed by the authors would jeopardize national security, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. It notes in particular that neither the decisions of the Executive Committees of Rechytsa and Homiel to refuse the authors’ requests to hold public events nor the court decisions provide any explanation of why the restrictions imposed by Decisions Nos. 802 and 775 and applied in the authors’ cases were necessary and justified.

The Committee notes that the de facto prohibition imposed by Decisions Nos. 802 and 775 of an assembly in any public location in the entire city, with the exception of two remote locations in Rechytsa and three remote locations in Homiel, unduly limits the rights to freedom of peaceful assembly and freedom of expression. It also notes that requesting the organizers of small (up to 10 or 15 participants) events to contract additional services imposes a disproportionate burden on the right to freedom of peaceful assembly and the right to freedom of expression in the same context. In those circumstances, the Committee finds the formal application of Decisions Nos. 802 and 775 and the rejection by the State party’s authorities of the authors’ requests to hold peaceful public events to be unjustified and concludes that the authors’ rights under articles 19 and 21 of the Covenant have been violated.

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 19 and 21 of the Covenant in all communications. The Committee finds that the State party has also violated its obligations under article 1 of the Optional Protocol in communication No. 2579/2015.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors 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 take appropriate steps to prevent similar violations from occurring in the future. In that connection, the Committee notes that it has dealt with similar cases in respect of similar laws and practices of the State party in a number of earlier communications,³² and thus the State party should revise its normative framework, in particular its Public Events Act, in accordance with its obligation under article 2 (2), with a view to ensuring that the rights under article 19 and 21 of the Covenant may be fully enjoyed in the State party.

32. See, for example, Sudalenko v. Belarus (CCPR/C/115/D/2016/2010); and Poplavny v. Belarus. ↩

On becoming a party to the Optional Protocol, the State party recognized the competence of the Committee to determine whether there had been a violation of the Covenant. Since, 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.