Joint consideration No. 1: Decision/Views

The authors of the communications are Nikolai Kachurets, Vladimir Kyko, Natalya Klimchik, Natalya Sotskaya, Katazhina Prymak, Lyubov Khvatova, Ivan Malyshko, Olga Aleksievich, Tatyana Ivanova, Irina Shaevka, Svetlana Starodubets, Alina Moroz, Yuliya Davidovich, Evgeniya Zarubaiko and Darya Pazhitnykh, all of whom are nationals of Belarus. They claim that the State Party has violated their rights under articles 9, 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. 4145/2022, No. 4153/2022, No. 4258/2022, No. 4259/2022, No. 4260/2022, No. 4264/2022, No. 4266/2022, No. 4349/2023, No. 4356/2023 and No. 4442/2023 are represented by counsel, whereas 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 decided to join 16 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 2020 and 2021, following the 2020 presidential elections in the State Party, the authors were sanctioned for displaying white-red-white flags, ribbons, towels, curtains, or stickers on the windows of their homes and their cars. According to the authors, the combination of white-red-white colours symbolizes opposition to the current regime and represents the official flag used by the State Party before the current president came to power in 1995. The authors of communications No. 3919/2021 and No. 4262/2022 were sanctioned for holding a white-red-white flag in public. All authors were charged with an administrative offence under article 23.34 of the Code of Administrative Offences for violating the established procedure for conducting public events and picketing. The author of communication No. 4145/2022 was also charged under article 21.14 of the Code of Administrative Offences for violating the rules for urban development and maintenance. All of the authors were sentenced to pay various administrative fines. The authors unsuccessfully appealed the decisions of the courts of first instance to the appellate courts. The authors of communications No. 3919/2021, No. 3934/2021, No. 4145/2022, No. 4262/2022, No. 4304/2023 and No. 4542/2023 also unsuccessfully attempted to appeal to higher courts for a supervisory review of their cases. The remaining authors submit that they have not attempted to lodge appeals for a supervisory review 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.

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

The authors of communications No. 4153/2022, No. 4258/2022, No. 4259/2023, No. 4260/2022, No. 4262/2022, No. 4264/2022, No. 4266/2022, No. 4304/2023, No. 4349/2023, No. 4356/2023 and No. 4442/2023 also claim that the State Party has violated their rights under article 14 of the Covenant because the domestic courts were not competent, as they adopted decisions contrary to the State Party’s obligations under the Covenant.

The author of communication No. 4304/2023 also claims that she was arbitrarily detained for exercising her freedom of expression, in violation of her rights under article 9 of the Covenant.

Finally, the authors of communications No. 4262/2022 and No. 4304/2023 also claim that the State Party has violated their rights under article 21 of the Covenant.

The Committee notes that the State Party has not submitted its observations with regard to communications No. 4145/2022, No. 4258/2022, No. 4349/2023, No. 4356/2023, No. 4442/2023 and No. 4542/2023. For all of the remaining communications, the State Party contests their admissibility for non-exhaustion of domestic remedies and 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 should be considered an ineffective remedy. In cases where the authors appealed to the Chair of a higher court or a prosecutor through a supervisory review procedure, the State Party submits that there is a further possibility to file a supervisory review appeal to the Chair of the Supreme Court and the Prosecutor General, as well as to their deputies.

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 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 purposes of the exhaustion of domestic remedies, as recognized by the Committee in its jurisprudence.

The authors reiterate their claims and note that the State Party has not complied with the Committee’s previous recommendations to bring the Public Events Act into compliance with the State’s obligations under international law.⁵

5. Reference is made, among others, to Kirsanov v. Belarus (CCPR/C/110/D/1864/2009), Sudalenko v. Belarus (CCPR/C/113/D/1992/2010) and Shumilin v. Belarus (CCPR/C/105/D/1784/2008). ↩

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 takes note of the State Party’s argument that the authors have not exhausted all available domestic remedies, as they 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 for the communications under consideration, 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. ↩

At the same time, from the materials in the case file related to communication No. 4262/2022, the Committee notes that the author’s claims of unfair trial and unjustified restrictions on her freedom of expression and freedom of assembly were not raised in domestic proceedings. The Committee observes that the author’s claims in domestic courts were limited to the arguments of failure by the police to prove that she was physically present at the picket and disproportionate punishment. Similarly, with regard to communication No. 4304/2023, the Committee observes that the author has not raised claims under article 9 of the Covenant domestically. The Committee therefore finds the authors’ claims under articles 14, 19 and 21 of the Covenant in communication No. 4262/2022, and under article 9 of the Covenant in communication No. 4304/2023, to be inadmissible for failure to exhaust domestic remedies in accordance with article 5 (2) (b) of the Optional Protocol

The Committee notes that the authors of communications No. 4153/2022, No. 4258/2022, No. 4259/2023, No. 4260/2022, No. 4264/2022, No. 4266/2022, No. 4304/2023, No. 4349/2023, No. 4356/2023 and No. 4442/2023 also claim that the State Party has violated their rights under article 14 of the Covenant. In the absence 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 those claims inadmissible under article 2 of the Optional Protocol.

The Committee notes the allegations of the author of communication No. 4304/2023 that her freedom of assembly under article 21 of the Covenant has been restricted arbitrarily for displaying a white-red-white flag on the window of her apartment, which the domestic courts classified as unauthorized picketing. The Committee considers that the author has failed to sufficiently substantiate that an “assembly” existed for purposes of admissibility of this claim⁸ and therefore declares that part of communication No. 4304/2023 inadmissible under article 2 of the Optional Protocol.

8. Human Rights Committee, general comment No. 37 (2020) on the right of peaceful assembly, para. 4. See also Levinov v. Belarus (CCPR/C/117/D/2082/2011), para. 7.7. ↩

Accordingly, the Committee considers that, with the exception of communication No. 4262/2022, the claims of all the remaining authors under article 19 of the Covenant have been sufficiently substantiated, and it proceeds with its consideration 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 of the Covenant in similar cases in respect of the same laws and practices of the State Party in several earlier communications.⁹ After a careful examination of the factual background and the legal claims of the 15 admissible communications under consideration, and after considering all of the information made available to it by the parties, the Committee concludes that its previous jurisprudence on the subject is fully applicable to the merits of those claims. In particular, the Committee considers that by sanctioning the authors for displaying colours symbolizing opposition to the current regime, without assessing the necessity and proportionality of the restrictive measures under the relevant provisions of the Covenant, the State Party has violated their rights under article 19 of the Covenant.

9. Nikolaichik et al v. Belarus (CCPR/C/139/D/3056/2017, 3100/2018, 3130/2018 and 3134/2018), para. 7.9; Gryk v. Belarus, para. 7.4; and Lutskovich v. Belarus (CCPR/C/133/D/2899/2016), para. 7.4. ↩

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the authors of communications No. 3919/2021, No. 3934/2021, No. 4145/2022, No. 4153/2022, No. 4257/2022, No. 4258/2022, No. 4259/2022, No. 4260/2022, No. 4264/2022, No. 4266/2022, No. 4304/2023, No. 4349/2023, No. 4356/2023, No. 4442/2023 and No. 4542/2023 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 those authors in relation to the domestic proceedings against them (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 ensures that its normative framework, in particular the Public Events Act, as well as its application, is consistent with the State Party’s 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 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.