The authors of the communications are Victor Remnyov, Tatiana Smotkina, Konstantin Zhukovsky, Nataliya Krivoshei, Andrei Tolchin, Evgeny Merkis, Larisa Shchiryakova, Vyacheslav Lazarev, Elena Shabunya, Vladimir Laptsevich, Tamara Shchepetkina, Vladimir Lunyov and Dmitry Kazakevich, all of whom are nationals of Belarus. They claim that the State Party has violated their rights under articles 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. 3182/2018, No. 3235/2018, No. 3284/2019, No. 3287/2019, No. 3288/2019, No. 3298/2019, No. 3608/2019, No. 3609/2019, No. 3611/2019, No. 3612/2019, No. 3864/2020, No. 3884/2021, No. 3888/2021, No. 4115/2022, No. 4127/2022, No. 4177/2022 and No. 4337/2023 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,4 the State Party continues to be subject to the application of the Optional Protocol with regard to the communications considered herein.
- 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,5 decided to join 20 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.
- A/79/40, para. 22. ↩
Factual background
Between 2010 and 2021, the authors were sanctioned for publishing articles or posting audio and video interviews with Belarusian citizens on various national and foreign online media platforms without holding official accreditation as journalists. The author of communication No. 3182/2018 was sanctioned for delivering copies of a newspaper without prior authorization of the Ministry of Information. All authors were charged with an administrative offence under article 22.9 of the Code of Administrative Offences for unauthorized production of media content.6 The author of communication No. 3609/2019 was also sanctioned for participating in a peaceful protest on 28 September 2017 and 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. 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. 3182/2018 and No. 3287/2019 also unsuccessfully attempted to appeal to higher courts and prosecutor’s office 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.
- Article 23.5 of the Code of Administrative Offences, as amended on 6 January 2021. ↩
Complaint
All of the authors claim that the State Party has violated their rights under article 19 of the Covenant.
The authors of communications No. 3182/2018, No. 4115/2022, No. 4127/2022, No. 4177/2022 and No. 4337/2022 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. 3609/2019 also claims that the State Party has violated her rights under article 21 of the Covenant.
State Party’s observations on admissibility and the merits
The Committee notes that the State Party has not submitted its observations with regard to communications No. 4177/2022 and No. 4337/2023. 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.
The State Party submits that freedom of opinion and expression is enshrined in article 33 of its Constitution. At the same time, violation of the Law on Mass Media entails criminal, administrative and civil liability. The State party notes that the rights protected by article 19 of the Covenant may be subject to certain restrictions, which must be provided by law and necessary to protect national security, public order, public health or morals. Accordingly, the State party considers that the procedure established by the Law on Mass Media regulating the activities of journalists cannot be considered as a restriction of the freedom of expression within the meaning of article 19 (3) of the Covenant. Similarly, with regard to communication No. 3609/2019, the State Party considers that the allegations put forward by the author concerning violation of her rights under article 21 of the Covenant are unsubstantiated.
Authors’ comments on the State Party’s observations on admissibility and the merits
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.
As to the State party’s arguments that the rights protected by article 19 of the Covenant may be subject to certain restrictions, the authors note that any restriction must be strictly necessary and proportionate and must not only be provided by law but also necessary to achieve the specific goals it pursues.
Issues and proceedings before the Committee
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 other than the authors of communications No. 3182/2018 and No. 3287/2019, the remaining 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,7 or to a prosecutor’s office requesting a review of court decisions that have taken effect,8 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.
- 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; 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. ↩
The Committee notes that the authors of communications No. 3182/2018, No. 4115/2022, No. 4127/2022, No. 4177/2022 and No. 4337/2022 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 finds the claims of all the authors under article 19 of the Covenant, and article 21 for communication No. 3609/2019, to 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 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 unauthorized production of media content, 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.
- Burakov v. Belarus (CCPR/C/131/D/2692/2015), para. 7.4; Zhukovsky v. Belarus, (CCPR/C/127/D/3067/2017), para. 7.4; and Andreev v. Belarus (CCPR/C/131/D/2863/2016), para. 7.5. ↩
Similarly, the Committee considers that by sanctioning the author of communication No. 3609/2019 for participation in peaceful – albeit unauthorized – protest, the State Party has violated her rights under article 21 of the Covenant.10
- Matskevich et al. v. Belarus (CCPR/C/143/D/J/1), para. 7; Amelkovich et al. v. Belarus (CCPR/C/142/D/J/1), para. 6.6. ↩
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 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 and to ensure that its normative framework, in particular the Law on Mass Media and the Public Events Act, as well as their 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 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.