The authors of the communications are Konstantin Chernov (communication No. 3140/2018), Aleksandr Karankevich (communication No. 3147/2018), Elena Kisel (communication No. 3151/2018), Pavel Kraitsev (communication No. 3169/2018), Denis Kraitsev (communication No. 3170/2018) and Elena Kren (communication No. 3173/2018), nationals of Belarus born in 1994, 1981, 1996, 1985, 1980 and 1980, respectively. They claim that the State party has violated their rights under articles 14 (1), 19 and 21, in conjunction with article 2 (2) and (3), of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. The authors are represented by counsel.
The present communications were 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.4
- See e.g. Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 10; Lobban v. Jamaica (CCPR/C/80/D/797/1998), para. 11; Shchiryakova et al. v. Belarus (CCPR /C/137/DR/2911/2016). ↩
On 21 March 2024, pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee decided to join communications 3140/2018, 3147/2018, 3151/2018, 3169/2018, 3170/2018 and 3173/2018 submitted by six different authors for a joint decision, in view of substantial factual and legal similarity.
Facts as submitted by the authors
The communications relate to administrative convictions under article 23.34 of the Code of Administrative Offenses (“Violation of the procedure for organizing and holding mass events”). The facts relevant to each communication are summarized below.
Communications No. 3140/2018, 3151/2018 and 3173/2018
On 15 March 2017, the authors participated in an unauthorized peaceful demonstration in Mogilev to protest against a Presidential Decree on Prevention of Social Dependency.5 The authors were apprehended by the police and spent a night in pre-trial detention while police officers prepared administrative records accusing them of an administrative offence under article 23.34 of the Administrative Offences Code.
- The law established the obligation of citizens of Belarus, foreign citizens permanently residing on the territory of Belarus, and stateless persons who did not participate in the financing of state expenditures, or who participated for less than 183 calendar days during the past year, to pay a fee to the state. ↩
On 16 March 2017, Leninsky District Court of Mogilev City found the authors guilty of administrative offences and sanctioned them to fines between 230 and 460 roubles. The authors submit that the amounts of the fines were significant, as they were equal to 35-70% of the average monthly salary in the State party according to the data of the national statistics agency.
On unspecified dates, the authors appealed the fines to Mogilev Regional Court, which were rejected on 13 April 2017 for the authors of communications 3140/2018 and 3151/2018, and on 4 May 2017 for the author of communication 3173/2018.
Communications No. 3147/2018, 3169/2018 and 3170/2018
On 25 March 2017, the authors participated in an unauthorized peaceful demonstration in Minsk to protest against a Presidential Decree on Prevention of Social Dependency. The authors were apprehended by the police and spent two nights in pre-trial detention while police officers prepared administrative records accusing them of an administrative offence under article 23.34 of the Administrative Offences Code.
On 27 March 2017, Frunzensky District Court of Minsk City found the authors guilty of administrative offences and sanctioned them to fines in the amount of 345 roubles each. The authors submit that the amounts of the fines were significant, as they were equal to 53% of the average monthly salary in the State party according to the data of the national statistics agency.
On unspecified dates, the authors appealed the fines to Minsk City Court, which were rejected on 13 April 2017 for the authors of communications 3169/2018 and 3170/2018, and on 17 April 2017 for the author of communication 3147/2018.
All the authors submit that they have not attempted lodging supervisory review appeals with judicial or prosecutorial authorities, claiming ineffectiveness of these remedies with a reference to the Committee’s relevant case law.
Complaint
The authors claim that the State party has violated their rights under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant by imposing unnecessary limitations on their freedoms of expression and assembly.
The authors also claim that the domestic courts were not impartial and fair while adjudicating their cases, and failed to apply provisions of the Covenant, in violation of article 14 (1), read in conjunction with article 2 (2) and (3), of the Covenant.
State party’s observations on the admissibility and merits
By notes verbales of 4 April 2019 (communication No. 3140/2018), 8 May 2018 (communications No. 3147/2018 and 3151/2018), 1 June 2018 (communication No. 3170/2018 and 3173/2018) and 1 March 2019 (communication No. 3169/2018), the State party submitted its observations on admissibility and merits of the communications.
The State party notes that the domestic legislation provides for the possibility of appealing a court ruling on an administrative offence to the chairperson of a higher court or a prosecutor through a supervisory review procedure. The State party rejects the authors’ assertion that the procedure of supervisory appeal in administrative cases can be considered an ineffective remedy. It notes that in 2017, the procuratorial authorities in the State party filed 3,766 protests (appeals) against decisions on administrative offences as part of the supervisory review procedure, of which 3,655 (97 percent) were granted. The State party considers that these figures show that the supervisory review procedure is effective and, therefore, the authors have not exhausted all available domestic legal remedies.
The State party submits that the provisions guaranteeing freedom of opinion and expression, as well as freedom of assembly, when they do not violate law and order and the rights of other citizens of the Republic of Belarus, are enshrined in articles 33 and 35 of the Constitution. The organization and holding of mass events are regulated by Law No. 114-Z of 30 December 1997 "On mass events in the Republic of Belarus" in order to create conditions for the exercise of the constitutional rights and freedoms of citizens and to ensure public safety and order when such events are held in streets, squares and other public places. Therefore, the State party concludes that the allegations put forward by the authors concerning violations of their rights under articles 19 and 21 of the Covenant are unsubstantiated.
Authors’ comments on the State party’s observations on the admissibility and merits
By submissions dated 2 August 2018 (communication No. 3140/2018) and 11 August 2018 (the remaining communications), the authors provided the following comments on the State party’s observations.
The authors reject the State party’s assertions about the effectiveness of the supervisory review appeals before judicial and prosecutorial authorities. They note that such appeals depend on the discretionary power of a judge or prosecutor and are limited to consideration of the issues of law rather than facts and evidence.
The authors note that both the Committee6 and the European Court of Human Rights7 have acknowledged that supervisory review procedures in ex-Soviet States depend on discretionary powers of supervising authorities and cannot be considered an effective remedy for the exhaustion purposes. The authors argue that it is next to impossible to observe the 6-month deadline foreseen by domestic legislation for challenging a judgement on administrative offenses if appeals are to be submitted to the Chairperson of the regional court and later to the Chairperson of the Supreme Court. Such appeals are examined by rotation by several of the Chairperson’s deputies. The Chairperson of the Supreme Court has five deputies, whereas the Prosecutor General has four deputies. The State party does not explain which deputy the authors had to address in order to ensure that their appeals were examined directly by the Chairperson of the Supreme Court or the Prosecutor General.
The authors note that while referring to the Law "On mass events in the Republic of Belarus", the State party omits to mention that it has failed to comply with recommendations on amending this law provided in the Joint Opinion adopted by 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 in 2012. They also note that the State party has not complied with the Committee’s recommendations to bring the law in compliance with its international obligations.8 The authors conclude that both the Law "On mass events in the Republic of Belarus" on its own and its application in their specific cases have resulted in violation of their rights under articles 19 and 21 of the Covenant.
- Reference is made, inter alia, to Kuznetsov et al. v. Belarus, CCPR/C/111/D/1976/2010; Evrezov v. Belarus, CCPR/C/114/D/1988/2010. ↩
Regarding the statistics provided by the State party, the authors note that the State party does not explain how many of these cases related to the exercise of the right to freedom of expression and the right to peaceful assembly. According to statistics on the website of the Ministry of Internal Affairs, it registered 3,9 million administrative offenses in 2017. Therefore, according to the authors, the number of prosecutorial protests cited by the State party is less than 0,1% of the total number of cases on administrative offenses in the country.
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 communications are 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 have failed to seek a supervisory review of the impugned decisions by prosecutorial and judicial authorities. The Committee recalls its jurisprudence, according to which a petition for supervisory review submitted to a president 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.9 The Committee further 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.10
- Koreshkov v. Belarus (CCPR/C/121/D/2168/2012), para. 7.3. ↩
- 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; Vasilevich and others v. Belarus (CCPR/C/137/D/2693/2015, CCPR/C/137/D/2898/2016 CCPR/C/137/D/3002/2017, CCPR/C/137/D/3084/2017, para. 6.3. ↩
While welcoming the statistics provided by the State party on the high rate of successful protests raised by prosecutorial authorities against judicial judgements on administrative offenses in 2017, the Committee observes that the State party has not disclosed the percentage of this figure from the total number of the supervisory review appeals submitted to prosecutors over the same period. Neither has the State provided any specific information on the effectiveness of the supervisory review procedure in cases related to administrative convictions imposed on participants of public rallies like those examined in the present views. The absence of this data prevents the Committee from reaching a different conclusion, compared to its previous case law, on the effectiveness of the supervisory review by prosecutorial authorities. The Committee concludes that the authors have exhausted all available effective domestic remedies and that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.
The Committee takes note of the authors’ claims that the State party has violated their rights under articles 14 (1), 19 and 21 of the Covenant, read in conjunction with its article 2 (2). The Committee recalls 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.11 The Committee notes that the authors have already alleged a violation of their rights under articles 19 and 21 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 articles 19 and 21, to be distinct from examination of the violation of the authors’ rights under articles 19 and 21 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.
- Poliakov v. Belarus (CCPR/C/111/D/2030/2011), annex, para. 7.4.; and Zhukovsky v. Belarus (CCPR/C/127/D/2724/2016), para. 6.4; Vasilevich and others v. Belarus (CCPR/C/137/D/2693/2015, CCPR/C/137/D/2898/2016 CCPR/C/137/D/3002/2017, CCPR/C/137/D/3084/2017, para. 6.4. ↩
The Committee also takes note of the authors’ claims under articles 14 (1), 19 and 21 of the Covenant, read in conjunction with article 2 (3). In the absence, however, of any further pertinent information on file, the Committee considers that the authors have failed to sufficiently substantiate those claims for the purposes of admissibility. Accordingly, it declares this part of the communication inadmissible under article 2 of the Optional Protocol.
The Committee notes that the facts, as submitted by the authors in their respective communications, raise issues under articles 19 and 21 of the Covenant. The Committee, therefore, considers the claims under articles 19 and 21 raised by the six communications are sufficiently substantiated for the purposes of admissibility and proceeds with their consideration of the merits.
Consideration of the merits
The Committee has considered the 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 takes note of the authors’ claims that the State party has violated their rights under articles 19 and 21 of the Covenant, as they were sanctioned with substantial fines for participating in peaceful public events and for expressing their views, as specified in paragraphs 2.2 and 2.5 above.
Considering the authors’ claim that their right to peaceful assembly was unreasonably restricted by the State party on account of imposing significant fines for participating in peaceful public events, the Committee notes that the issue before it is to determine whether the restrictions imposed were justified 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, 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.12 The peaceful assemblies covered by Article 21 may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelight vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches.13 The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience,14 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.15 The State party is thus under an obligation to justify the limitation of the right protected by article 21 of the Covenant.16
A failure to notify the authorities of an upcoming assembly, where required, does not render the act of participation in the assembly unlawful, and must not in itself be used as a basis for dispersing the assembly or arresting the participants or organizers, or for imposing undue sanctions, such as charging the participants or organizers with criminal offences. Where administrative sanctions are imposed on organizers for failure to notify, this must be justified by the authorities. Lack of notification does not absolve the authorities from the obligation, within their abilities, to facilitate the assembly and to protect the participants.17 Where authorization regimes persist in domestic law, they must in practice function as a system of notification, with authorization being granted as a matter of course, in the absence of compelling reasons to do otherwise. Notification regimes, for their part, must not in practice function as authorization systems.18
In the present case, the Committee must consider whether the restrictions imposed on the authors’ right of peaceful assembly are justified under any of the criteria set out in the second sentence of article 21 of the Covenant. In the light of the information available on file, the authors were sentenced by the domestic courts to significant fines for participating in peaceful assemblies in violation of the provisions of the Law "On mass events in the Republic of Belarus". The Committee notes, however, that the domestic courts did not provide any justification or explanation as to how, in practice, the authors’ participation in such peaceful assemblies had 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. Neither has the State party provided any justification for restricting the authors’ rights under article 21 in its submissions before the Committee. In the absence of any further explanations from the State party regarding the matter, the Committee concludes that the State party has violated the authors’ rights under article 21 of the Covenant.19
- Vladimir Malei v. Belarus (CCPR/C/129/D/2404/2014), para 9.7; Tolchina et al. v. Belarus (CCPR/C/132/D/2857/2016), para 7.6; Zavadskaya et al. v. Belarus (CCPR/C/132/D/2865/2016), para 7.6; Popova v. Russian Federation (CCPR/C/122/D/2217/2012), para. 7.6; and Sadykov v. Kazakhstan (CCPR/C/129/D/2456/2014), para. 7.7; Vasilevich and others v. Belarus (CCPR/C/137/D/2693/2015, CCPR/C/137/D/2898/2016 CCPR/C/137/D/3002/2017, CCPR/C/137/D/3084/2017, para. 7.7. ↩
The Committee also takes note of the authors’ claims that their right to freedom of expression has been restricted in violation of article 19 of the Covenant, since they were found guilty of an administrative offence and sentenced to pay significant administrative fines for participating in peaceful rallies with an expressive purpose. The issue before the Committee is therefore to determine whether the restrictions imposed on the authors’ freedom of expression can be justified under any of the criteria set out in article 19 (3) of the Covenant.
The Committee recalls its General comment No. 34 (2011) in which it stated, inter alia, that freedom of expression is essential for any society and constitutes a foundation stone for every free and democratic society.20 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: (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.21 The Committee recalls that it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 were necessary and proportionate.22
The Committee observes that sentencing the authors to heavy administrative fines for participating in peaceful, albeit unauthorized, meetings with an expressive purpose raises serious doubts as to the necessity and proportionality of the restrictions on the authors’ rights under article 19 of the Covenant. The Committee observes in this regard that the State party has failed to invoke and justify any specific grounds to support the necessity of such restrictions as required under article 19 (3) of the Covenant.23 The State party has also failed to demonstrate that the measures selected were the least intrusive in nature or proportionate to the interest that it sought to protect. The Committee considers that, in the circumstances of the cases before it, the restrictions imposed on the authors and the imposed sanctions, although based on domestic law, were not justified pursuant to the conditions set out in article 19 (3) of the Covenant. It therefore concludes that the authors’ rights under article 19 of the Covenant have been violated.24
- Zalesskaya v. Belarus (CCPR/C/101/D/1604/2007), para. 10.5; Vasilevich and others v. Belarus (CCPR/C/137/D/2693/2015, CCPR/C/137/D/2898/2016 CCPR/C/137/D/3002/2017, CCPR/C/137/D/3084/2017, para. 7.10. ↩
- Toregozhina v. Kazakhstan (CCPR/C/112/D/2137/2012), para. 7.5; Zhagiparov v. Kazakhstan (CCPR/C/124/D/2441/2014), para. 13.4; and Shchetko and Shchetko v. Belarus (CCPR/C/87/D/1009/2001), para. 7.5. ↩
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.
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 to provide the authors with adequate compensation, including reimbursement of the fines and any legal costs incurred by them. 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 it has dealt with similar cases in respect of the same laws and practices of the State party in a number of earlier communications, and thus requires the State party to 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.
On 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. The present communication was submitted for consideration before the State party’s denunciation of the Optional Protocol became effective on 8 February 2023. 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.