Dmitry Lupach v. Belarus

The author of the communications is Dmitry Lupach, a national of Belarus, born in 1967. He claims that the State party has violated his rights under articles 14 and 19 (2) of the Covenant. The Optional Protocol entered into force for the State party on 30 December 1992. The author is 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

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 17 July 2024, pursuant to rule 97 (3) of its rules of procedure and its decision taken at the 140th session to adopt a multifaceted strategy aiming at addressing the high number of communications pending its consideration and adoption, the Committee decided to join 20 communications (see details in the Annex)for a joint decision.⁵ Such decisions, to be adopted in a simplified format, relate to communications raising similar factual elements and claims, and for which the Committee has identified the underpinning structural and policy nature of the violations and developed a consistent jurisprudence over the years.

5. Committee’s Annual report for the 138-140th sessions, para. 22. ↩

The author is a freelance journalist. Between 2017 and 2021 he carried out interviews on various topics in Belarus and posted audio and/or video recordings thereof on different internet media websites. On each occasion, he was found guilty by domestic courts in Belarus of under the Administrative Offences Code for unlawful production and distribution of mass media products and for acting as a journalist of a foreign mass media in the territory of Belarus without being accredited by the Ministry of Foreign Affairs, as required by Law No. 427-Z on Mass Media of 17 July 2008. As a result, fines ranging from 255 to 480 euros were imposed on him.⁶ The author unsuccessfully appealed the first-instance court decisions to the regional courts. The author did not appeal under the supervisory review procedure.

6. See the Annex for additional information on exhaustion of domestic remedies, including domestic court proceedings and fines imposed. ↩

The author claims that the State party has violated his rights under articles 14 and 19 (2) of the Covenant.

The State party argues that the author’s communications are inadmissible under articles 2 and 3 of the Optional protocol since he has not appealed the decisions of the regional courts to the Chair of a higher court or to the Chair of the Supreme Court or to the Prosecutor’s Office. The State party submits that the article 14 claims are unsubstantiated. It claims that the restrictions on freedom of expression imposed by domestic legislation are in line with article 19 (3) of the Covenant and that there has been no violation of author’s rights.⁷.

7. The State party did not provide its observations in communication No. 4313/2023. ↩

The author submits 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. He reiterates that his rights under articles 14 and 19 (2) of the Covenant were violated.

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 notes that the author’s allegations under article 14 of the Covenant are of a general nature and that the author does not provide any details to sufficiently substantiate his claim for purposes of admissibility. Accordingly, it concludes that this part of the communications is inadmissible under article 2 of the Optional Protocol. The Committee finds the author’s claims under article 19 (2) of the Covenant sufficiently substantiated and proceeds to the considerations of the merits.

The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol. The Committee notes that it has found a violation of article 19 (2) of the Covenant in similar cases in respect of the same laws and practices of the State party in a number of earlier communications.⁸ There is nothing in factual background or legal claims of the present communications that would lead the Committee to a different conclusion on admissibility and the merits. Having considered the communications in the light of all the information made available to it by the parties and having regard to its previous jurisprudence on the subject, the Committee considers that by sanctioning the author for posting media materials on foreign websites without being accredited in Belarus as a foreign journalist, the State party violated his rights under article 19 (2) of the Covenant.⁹

8. See, e.g. joint communications Shchiryakova et al. v. Belarus (CCPR /C/137/DR/2911/2016 and others). ↩
9. Ibid., paras. 7.2-7.4. ↩

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to take appropriate steps to reimburse the current value of the fines and any legal costs incurred by the author in relation to the numerous domestic proceedings against him (see the Annex for details). The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. The Committee also recommends that the State party revise its normative framework, in particular its Law on Mass Media, consistent with its obligation under article 2 (2) of the Covenant, with a view to ensuring that the rights under article 19 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 communications were 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.