Joint communications No.1: Decision/Views

The authors of the communications are Vitaly Amelkovich, Grigory Kostusev, Oleg Metelitsa, Leonid Kulakov, Anatoly Poplavnyi, Stanislav Pavlinkovich, Dmitry Lyuntov, Kristina Kashitskaya, Larisa Evnevich, Marina Samuseva, Tatiana Sevyarynets, Aleksandr Dubrovskikh, Natalya Strelchenko, Oleg Pavlov, Sergei Stribulski, Sergey Tihanovski, Natalia Troshchenko, Irina Grishchuk and Ekaterina Timoshenko, all of whom are nationals of Belarus. They claim that the State Party has violated their rights under articles 2, 14, 19 and 21 of the Covenant. The Optional Protocol entered into force for the State Party on 30 December 1992. The authors of communications No. 3690/2019, No. 3831/2020, No. 3840/2020, No. 3841/2020, No. 3938/2021, No. 3941/2021, No. 3952/2021, No. 3974/2021, No. 4000/2021 and No. 4052/2021 are represented by counsel, while the others are not represented.

The 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 jurisprudence,³ the State Party continues to be subject to the application of the Optional Protocol with regard to the communications considered herein.

3. 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 17 July 2024, the Committee, pursuant to rule 97 (3) of its rules of procedure and the strategy it adopted at its 140th session aimed at addressing the high number of communications pending consideration,⁴ the Committee decided to join 21 communications (see annex) for consideration and the issuance of a joint decision thereon. Pursuant to the strategy, such decisions, to be adopted in a simplified format, relate to communications in which similar factual elements and claims are raised, and for which the Committee has identified the structural nature and policy underlying the violations and has developed consistent jurisprudence over the years.

4. A/79/40, para. 22. ↩

Between 2016 and 2020, the authors participated in or made public calls for participation in unauthorized peaceful protests in various cities in the State Party. They were apprehended by the police and charged with an administrative offence under article 23.34 of the Code of Administrative Offences, on violation of the established procedure for conducting public events. All of the authors were tried and sentenced by local district courts to various administrative fines and, in some instances, to administrative arrest ranging from 5 to 15 days. The authors unsuccessfully appealed the decisions of the court of first instance to the appellate courts. The authors submit that they have not attempted to lodge supervisory review appeals with the judicial or prosecutorial authorities. They refer to the ineffectiveness of those remedies, citing the Committee’s established jurisprudence, as their reason for not doing so.⁵

5. For additional information on the exhaustion of domestic remedies, including the domestic court proceedings and fines imposed, see the annex to the present document. ↩

All the authors claim that the State Party has violated their rights under articles 19 and 21 of the Covenant.

The authors of communications No. 3690/2019, No. 3831/2020, No. 3839/2020, No. 3840/2020, No. 3841/2020, No. 3897/2021, No. 3898/2021, No. 3935/2021, No. 3946/2021, No. 3974/2021, No. 3979/2021 and No. 4054/2021 also 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.

The authors of communications No. 3690/2019, No. 3831/2020, No. 3840/2020 and No. 3841/2020 also claim that the State Party has violated their rights under article 14 (1), read in conjunction with article 2 (2) and (3), of the Covenant.

The State Party notes that domestic legislation provides for the possibility to appeal a court ruling concerning an administrative offence to the Chair 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.

The State Party submits that freedom of opinion and expression and freedom of assembly, when the exercise of those freedoms does not violate law and order and the rights of other citizens of Belarus, are enshrined in articles 33 and 35 of the Constitution. The organization and holding of public events are regulated by the Public Events Act, which includes provisions setting out the conditions for the exercise of the constitutional rights and freedoms of citizens when such events are held in public places, with a view to ensuring public safety and order. 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.

The authors reject the State Party’s assertions about the effectiveness of the supervisory review appeals lodged before judicial and prosecutorial authorities. They note that such appeals depend on the discretionary power of a judge or prosecutor and cannot be considered an effective remedy for the purpose of the exhaustion of domestic remedies, as recognized by the Committee in its jurisprudence.

The authors reiterate their claims that their rights under articles 19 and 21 of the Covenant have been violated. They also note that the State Party has not complied with the Committee’s recommendations to bring the Public Events Act into compliance with the State’s obligations under international law.

The author of communication 3974/2021, in his comments on the State Party’s observations on admissibility and the merits, raises a new claim under article 9 (1) of the Covenant, alleging arbitrary deprivation of liberty for participation in a peaceful protest.

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 takes note of the State Party’s argument that the authors have failed to seek a supervisory review by the prosecutorial and judicial authorities of the impugned decisions. The Committee recalls its jurisprudence, according to which a petition for supervisory review submitted to the chairperson of a court, directed against court decisions that have entered into force,⁶ or to a prosecutor’s office, requesting a review of court decisions that have taken effect,⁷ 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. In the absence of any new information from the State Party that would allow the Committee to reach a different conclusion, and given its previous jurisprudence, the Committee considers 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 communications.

6. Koreshkov v. Belarus (CCPR/C/121/D/2168/2012), para. 7.3. ↩
7. Gryk v. Belarus (CCPR/C/136/D/2961/2017), para. 6.3; Tolchin v. Belarus (CCPR/C/135/D/3241/2018), para. 6.3; Shchukina v. Belarus (CCPR/C/134/D/3242/2018), para. 6.3; and Vasilevich et al. v. Belarus (CCPR/C/137/D/2693/2015, 2898/2016, 3002/2017 and 3084/2017), para. 6.3. ↩

With regard to the new claim raised by the author of communication No. 3974/2021 in his comments on the State Party’s observations on admissibility and the merits, the Committee recalls its jurisprudence in which it has stated that authors must raise all of their claims in their initial submission, before the State Party is asked to provide its observations on the admissibility and the merits of the communication, unless the authors can demonstrate why they were unable to raise all of their claims simultaneously.⁸ In the present case, the author has not explained why his new claim could not have been raised in his initial submission. Accordingly, the Committee considers that that claim is inadmissible as an abuse of the right of submission under article 3 of the Optional Protocol.

8. D.C. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.4; S.R. v. Lithuania (CCPR/C/132/D/3313/2019), para. 8.8; Jazairi v. Canada (CCPR/C/82/D/958/2000), para. 7.2; and B v. Australia (CCPR/C/137/D/2999/2017), para. 8.4 ↩

The Committee notes that the authors of 12 of the communications (see para. 3.2 above) claim that the State Party has violated their rights under articles 19 and 21, read in conjunction with article 2 (3), of the Covenant. It notes that the authors of four of the communications (see para. 3.3) also claim a violation of article 14 (1), 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 these authors have failed to sufficiently substantiate those claims for the purposes of admissibility. Accordingly, it declares those claims inadmissible under article 2 of the Optional Protocol.

The Committee further notes the claims by the same authors that the State Party has violated their rights under articles 19 and 21, read in conjunction with article 2 (2), of the Covenant. The Committee notes that the authors have 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. 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, of the Covenant to be distinct from an examination of the violation of the authors’ rights under articles 19 and 21,⁹ and considers that the authors’ claims in this regard are incompatible with article 2 of the Covenant and therefore inadmissible under article 3 of the Optional Protocol.

9. See, for example, Poliakov v. Belarus (CCPR/C/111/D/2030/2011), para. 7.4.; Zhukovsky v. Belarus (CCPR/C/127/D/2724/2016), para. 6.4; and Vasilevich et al. v. Belarus, para. 6.4. ↩

The Committee finds the remaining claims, made by all the authors under articles 19 and 21, to have been sufficiently substantiated, and it proceeds with its considerations of the merits.

The Committee has considered the communications 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 articles 19 and 21 of the Covenant in similar cases in respect of the same laws and practices of the State Party in a number of previous communications.¹⁰ There is nothing in the factual background or legal claims of the communications concerned that would lead the Committee to a different conclusion on the merits of the claims therein. Having considered the communications in the light of all the information made available to it by the parties and having due regard for its previous jurisprudence on the subject, the Committee considers that by sanctioning the authors for participation in peaceful – albeit unauthorized – protests, the State Party has violated their rights under articles 19 and 21 of the Covenant.

10. Malei v. Belarus (CCPR/C/129/D/2404/2014), paras. 9.4 and 9.7; Tolchina et al. v. Belarus (CCPR/C/132/D/2857/2016), paras. 7.6 and 7.9; Zavadskaya et al. v. Belarus (CCPR/C/132/D/2865/2016), paras. 7.6 and 7.9; and Vasilevich et al. v. Belarus, paras. 7.7 and 7.10. ↩

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 take appropriate steps to reimburse the current value of the fines and any legal costs incurred by the authors in relation to the domestic proceedings against them, as well as to compensate the authors who were subjected to administrative arrest with an amount commensurate with the time spent in detention (see annex). The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. The Committee therefore recommends that the State Party revise its normative framework, in particular the Public Events Act, consistent with its obligation under article 2 (2) of the Covenant, with a view to ensuring that the rights under articles 19 and 21 may be fully enjoyed in the State Party.

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. The communications considered in the present Views were submitted for consideration before the State Party’s denunciation of the Optional Protocol became effective, on 8 February 2023. Given 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.