The authors of the communication are Leonid Sudalenko and Anatoly Poplavny, nationals of Belarus, born in 1966 and 1958, respectively. They claim to be victims of a violation by Belarus of their rights under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. Mr. Sudalenko submitted the communication in his own name and on behalf of Mr. Poplavny.
The facts as submitted by the authors
On 4 August 2011, the authors filed an application to the Gomel City Executive Committee with a request to hold, on 22 August 2011, several pickets on the central squares in the city of Gomel, with the purpose of informing the general public of the politically motivated arrest and detention of their colleague, Aleksander Belyatsky, the human rights defender and President of Human Rights Centre “Viasna”.4
- See, Belyatsky v. Belarus (CCPR/C/112/D/2165/2012). ↩
On 17 August 2011, the Gomel City Executive Committee refused to authorize the pickets, stating that the authors, as organizers of the event, did not fulfil the requirements set out in the decision of the Gomel City Executive Committee No. 299 of 2 April 2008 on the holding of public events in the city of Gomel, which was adopted on the basis of the Public Events Act of Belarus of 30 December 1997. The authors were organizing a public event outside the location designated for that purpose in decision No. 299 and had not concluded the required contracts with the city services for the maintenance of security, medical assistance and cleaning.
On 13 September 2011, the authors appealed the decision of the Gomel City Executive Committee to the Central District Court of Gomel, which rejected their appeal on 6 October 2011. On 14 October 2011, the authors filed a cassation appeal against the decision of the Central District Court of Gomel to the Gomel Regional Court, which was rejected on 8 November 2011. On 2 April 2012 and 18 May 2012, under the supervisory review procedure, the authors appealed the decision of the Gomel Regional Court to the Chair of the Gomel Regional Court and to the Chair of the Supreme Court of Belarus, respectively. Those appeals were dismissed on 15 May 2012 and 22 June 2012, respectively. The authors did not file an application for supervisory review to the Prosecutor’s Office, since they did not consider that it constituted an effective domestic remedy.5
- The authors refer to Tulzhenkova v. Belarus (CCPR/C/103/D/1838/2008). ↩
The complaint
The authors claim that the rejection by the national authorities of their request to hold pickets amounts to a violation of their rights under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant.
They claim that neither the Gomel City Executive Committee nor the courts considered whether the limitations imposed on their rights under the decision No. 299 were justified by reasons of national security or public safety, public order, protection of public health or morals, or whether they were necessary for the protection of the rights and freedoms of others. They allege that decision No. 299 that restricts the holding of all public events in Gomel – a city of 500,000 inhabitants – to a single, remote location and the request to conclude paid contracts with the city services beforehand unnecessarily limits the very essence of the rights guaranteed under articles 19 and 21 of the Covenant.
The authors further submit that, by ratifying the Covenant, the State party has undertaken obligations under article 2 thereof to “respect and ensure” all individual rights listed in the Covenant, as well as to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the Covenant. The authors claim that the State party is not fulfilling its obligations under article 2 (2), read in conjunction with articles 19 and 21 of the Covenant, since the national Public Events Act contains vague and ambiguous provisions. For example, article 9 of the Act gives the heads of local executive committees the discretionary right to designate specific permanent areas for the organization of peaceful assemblies, without justification.
In this context, the authors request the Committee to recommend to the State party that it align its legislation, in particular the Public Events Act and the Gomel City Executive Committee decision No. 299, with the international standards set out in articles 19 and 21 of the Covenant.
State party’s observations on admissibility
By a note verbale dated 4 January 2013, the State party submitted its observations on the admissibility of the communication. It argued that the authors had not exhausted all available domestic remedies because they did not appeal under the supervisory review procedure to the Prosecutor’s Office, thus their communication is inadmissible under article 5 (2) (b) of the Optional Protocol.
The State party further submitted that, since the communication was registered in violation of the provisions of the Optional Protocol, it has discontinued the proceedings regarding the communication and would disassociate itself from the Views that might be adopted by the Committee.
Authors’ comments on the State party’s observations
In a letter dated 6 March 2013, the authors commented on the observations of the State party. Referring to the Committee’s jurisprudence, they pointed out that an appeal to the Prosecutor General under the supervisory review procedure does not constitute an effective remedy.6 The authors add that an appeal under the supervisory review procedure to the Prosecutor’s Office and/or to the Chairs of the higher courts is proven to be ineffective even in death penalty cases. They refer to the execution of Vladislav Kovalev7 at the time when his appeal under the supervisory review procedure was still pending before the Supreme Court of Belarus.
Lack of cooperation from the State party
The Committee notes the State party’s assertion that there are no legal grounds for the consideration of the authors’ communication, insofar as it was registered in violation of the provisions of the Optional Protocol, and that, if a decision is taken by the Committee on the present communication, its authorities will “disassociate” themselves from the Committee’s Views.
The Committee observes that by adhering to the Optional Protocol, a State party to the Covenant recognizes the competence of the Committee to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant (preamble and article 1). Implicit in a State’s adherence to the Optional Protocol is an undertaking to cooperate with the Committee in good faith so as to permit and enable it to consider such communications and, after examination, to forward its Views to the State party and to the individual (article 5 (1) and (4)). It is incompatible with these obligations for a State party to take any action that would prevent or frustrate the Committee in its consideration and examination of a communication and in the expression of its Views.8 It is up to the Committee to determine whether a case should be registered. By failing to accept the competence of the Committee to determine whether a communication shall be registered and by declaring outright that it will not accept the Committee’s determination of the admissibility and the merits of the communications, the State party has violated its obligations under article 1 of the Optional Protocol.
- See, e.g., Levinov v. Belarus (CCPR/C/105/D/1867/2009, 1936, 1975, 1977-1981, 2010/2010), para. 8.2; and Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 6.2. ↩
Considerations of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is 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 takes note of the State party’s argument that the authors have failed to request the Prosecutor’s Office to initiate a supervisory review of the decisions of the domestic courts. The Committee recalls its jurisprudence, according to which a petition to a Prosecutor’s Office requesting a review of court decisions that have taken effect does not constitute an effective remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol.9 Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.
- See, e.g., Alekseev v. the Russian Federation (CCPR/C/109/D/1873/2009), para. 8.4; Lozenko v. Belarus (CCPR/C/112/D/1929/2010), para. 6.3; and Sudalenko v. Belarus (CCPR/C/115/D/2016/2010), para. 7.3. ↩
The Committee notes the authors’ claim that their request to hold several pickets on 22 August 2011 was rejected by the Gomel City Executive Committee and that neither the said Executive Committee nor the courts considered whether the limitations imposed on their rights under the decision No. 299 were justified by reasons of national security or public safety, public order, protection of public health or morals, or whether they were necessary for the protection of the rights and freedoms of others. They argued, therefore, that the decision No. 299, adopted on the basis of the Public Events Act, unnecessarily limits the very essence of the rights guaranteed under articles 19 and 21 of the Covenant. The Committee further notes the author’s claim that their rights under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant were violated. In the absence of any information provided by the State party on the facts of this communication, the Committee considers that the authors have sufficiently substantiated, for purposes of admissibility, their claims under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant. Accordingly, it declares the communication admissible and proceeds with its consideration on the merits.
Consideration of the merits
The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
The Committee notes the authors’ claim that decision No. 299 of Gomel City Executive Committee unduly restricts the right to freedom of expression and the right of peaceful assembly by imposing on the organizers of public events an obligation to conclude paid contracts with city services and designating one single and remote location for all public events held in Gomel, a city of 500,000 inhabitants. The Committee also notes the authors’ allegation that the formal application of decision No. 299 by the Gomel City Executive Committee in their case, without consideration of the necessity of the limitations in relation to the exercise of their rights, constitutes an unjustified restriction on their rights under articles 19 and 21 of the Covenant.
The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, which states that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person, and that such freedoms are essential for any society. They constitute the foundation stone for every free and democratic society (para. 2). The Committee recalls that article 19 (3) of the Covenant allows certain restrictions only as provided by law and necessary: (a) for the respect of the rights and reputation of others; and (b) for the protection of national security or public order (ordre public) or public health or morals. Any restriction on the exercise of such freedoms must conform to the strict tests of necessity and proportionality. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.10 The Committee also recalls11 that it is for the State party to demonstrate that the restrictions on the authors’ rights under article 19 of the Covenant were necessary and proportionate.12
The Committee notes that the refusal to authorize the pickets was based on decision No. 299 of Gomel City Executive Committee of 2 April 2008, which was adopted on the basis of the Public Events Act of Belarus of 30 December 1997. The Committee observes, however, that neither the State party nor the national courts have provided any explanations as to how such restrictions, namely limiting pickets to a certain predetermined location and requiring that the organizers conclude service contracts with a number of government agencies in order to hold a picket, were justified pursuant to the conditions of necessity and proportionality set out in article 19 (3) of the Covenant. In the absence of any explanation by the State party, the Committee concludes that the rights of the authors under article 19 (2), read in conjunction with article 2 (3), of the Covenant have been violated.
The Committee notes the authors’ claim that their right to freedom of assembly under article 21 of the Covenant was also violated by the refusal of the municipal authorities to allow the holding of the pickets. In this context, the Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential for the public expression of an individual’s views and opinions and indispensable in a democratic society. This right entails the possibility of organizing and participating in a peaceful assembly, including a stationary assembly (such as a picket) in a public location. The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience and no restriction to this right is permissible unless if it is (a) imposed in conformity with the law; and (b) necessary in a democratic society, in the interests of national security or public safety, public order, 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. The State party is thus under the obligation to justify the limitation of the right protected by article 21 of the Covenant.13
- See, Poplavny v. Belarus, para. 8.4. ↩
In the present case, the Committee must consider whether the restrictions imposed on the authors’ right to freedom of assembly are justified under any of the criteria set out in the second sentence of article 21 of the Covenant. The Committee notes in the light of the information available on file that the municipal authorities have not provided any justification or explanation as to how, in practice, the authors’ picket would violate 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.
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.14 In line with these precedents, and in the absence of any explanation by the State party regarding this matter, the Committee concludes that, in the present case, the State party has violated the authors’ rights under article 21, read in conjunction with article 2 (3), of the Covenant.
- See, e.g., Sudalenko v. Belarus; Poplavny v. Belarus; Derzhavtsev v. Belarus (CCPR/C/115/D/2076/2011); Korol v. Belarus (CCPR/C/117/D/2089/2011); Androsenko v. Belarus; Poplavny and Sudalenko v. Belarus (CCPR/C/118/D/2139/2012); and Koreshkov v. Belarus (CCPR/C/121/D/2168/2012). ↩
In light of this conclusion, the Committee decides not to examine the authors’ claims under articles 19 and 21, read in conjunction with article 2 (2) of the Covenant.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation of the authors’ rights under articles 19 (2) and 21, read in conjunction with article 2 (3), of the Covenant. The Committee reiterates its conclusion that the State party has also violated its obligations under article 1 of the Optional Protocol.
In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the authors with an effective remedy in the form of full reparation. In the present case, the State party is under an obligation, inter alia, to provide the authors with adequate compensation, including reimbursement for any legal costs or other fees incurred by them, and appropriate measures of satisfaction. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future. In this connection, the Committee reiterates that, in accordance with its obligation under article 2 (2) of the Covenant, the State party should review its legislation, in particular the Public Events Act of 30 December 1997, as it has been applied in the present case, with a view to ensuring that the rights under articles 19 and 21 of the Covenant may be fully enjoyed in the State party.15
- See, e.g., Sekerko v. Belarus (CCPR/C/109/D/1851/2008), para. 11; Turchenyak et al. v. Belarus (CCPR/C/108/D/1948/2010 and CCPR/C/108/D/1948/2010/Corr.1), para. 9; No. 1790/2008, Govsha et al. v. Belarus (CCPR/C/105/D/1790/2008), para. 11; mutatis mutandis, Sudalenko (2) v. Belarus (CCPR/C/113/D/1992/2010), para. 10; Poplavny v. Belarus, para. 10. ↩
Bearing in mind that, by 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 and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or 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.