Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2230/2012 * , **

C ommunication submitted by :Tatyana Severinets (represented by counsel, Pavel Levinov)

Alleged victim :The author

State party :Belarus

Date of communication :12 June 2012 (initial submission)

Document references :Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 17 December 2012 (not issued in document form)

Date of adoption of Views :19 July 2018

Subject matter :Imposition of an administrative fine for holding peaceful assembly without prior authorization

Procedural issues : State party’s failure to cooperate; exhaustion of domestic remedies; accessory character of article 2 of the Covenant; incompatibility ratione materiae ; level of substantiation of claim

Substantive issues : Right to a fair hearing; freedom of religion; freedom of expression; freedom of assembly

Articles of the Covenant : 2 (1), 5 (1), 14 (1), 18, 19 (2) and 21

Articles of the Optional Protocol :2, 3 and 5 (2) (b)

1.1The author of the communication is Tatyana Severinets, a national of Belarus born in 1954. She claims to be a victim of a violation by the State party of her rights under articles 2 (1), 5 (1), 14 (1), 18, 19 (2) and 21 of the Covenant. The Optional Protocol entered into force for Belarus on 30 December 1992. The author is represented by counsel.

1.2On 5 January 2013, the State party requested the Committee to examine the admissibility of the communication separately from its merits, in accordance with rule 97 (3) of the Committee’s rules of procedure. On 15 March, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to grant the State party’s request.

The facts as submitted by the author

2.1From 16 June to 3 July 2011, the author organized, at 8 p.m., a daily prayer at the Cross of St. Evfrosinya Polotskaya, next to the Assumption Cathedral in Vitebsk, in support of political prisoners in Belarus. During the prayer the author read out surnames from the 25 May 2011 edition of the newspaper Nasha Niva , where the names and surnames of political prisoners in Belarus, accompanied by their photographs, were listed under the heading “Palitvyazni” (political prisoners); others present at the prayer recited the names after her.

2.2On 3 July 2011, the author went to Pobeda Square in Vitebsk to observe the celebration of Independence Day of the Republic of Belarus. While at the square, she met members of the organizing committee for the creation of a political party, Belarusian Christian Democracy. At around 7.30 p.m., the author and members of the organizing committee walked together on the pavement along Lenin Street towards Assumption Cathedral to pray for political prisoners and Belarus.

2.3On the way to Assumption Cathedral, other individuals spontaneously joined the group and clapped their hands along the way. Neither the author nor other individuals who joined the group walked on the roadway or displayed any flags, posters, banners or other campaign materials aimed at attracting attention. In support of her statements, the author refers to the video recordings that were presented by the police to the court as proof of her guilt. The author adds that her actions did not infringe on the rights and freedoms of others or result in damage to citizens’ or State property.

2.4On 8 July 2011, an administrative report in relation to the author was prepared. According to the report, the author was accused of having violated the procedure, established by the Public Events Acts of Belarus of 30 December 1997 (version of 7 August 2003), for organizing an unauthorized street procession in order to express political opinion. She was charged with an administrative offence under article 23.34, part 2, of the Code of Administrative Offences (violation of the established procedure for organizing or holding a public event). On 11 July 2011, the Vitebsk Oktyabrsky District Court found the author guilty of having committed an administrative offence under article 23.34, part 2, of the Code on Administrative Offences and fined her 700,000 Belarusian roubles.

2.5On 18 July 2011, the author appealed the decision of the Vitebsk Oktyabrsky District Court to the Vitebsk Regional Court, which dismissed the appeal on 10 August 2011. On 26 August 2011, she submitted a request to initiate a supervisory review of the earlier decisions to the Chair of the Vitebsk Regional Court. On 5 October 2011, the Chair concluded that there had been no grounds on which to initiate a supervisory review of the earlier decisions. A similar request for a supervisory review was submitted by the author on 8 November 2011 to the Chair of the Supreme Court of Belarus. This request was rejected by the Deputy Chair of the Supreme Court on 27 December 2011. The author submits that she has thus exhausted all available domestic remedies.

The complaint

3.1The author claims that the State party has violated her rights guaranteed under articles 18, 19 and 21 of the Covenant, because she was held to administrative responsibility for a public prayer (i.e. performing religious rituals), clapping hands (i.e. expression of opinion) and walking together with other individuals to the venue of the prayer (i.e. street procession). She adds in this regard that she did not seek prior authorization from the competent authorities, as required by law, to organize a public event because she had no intention of organizing a street procession.

3.2The author further claims that, pursuant to article 14 (1) of the Covenant, everyone shall be entitled to a fair hearing by a competent, independent and impartial court in the determination of any charge against him or her. She argues that in her case the State party’s courts were not competent, independent and impartial in the examination of the charge brought against her because they took decisions that were manifestly contrary to the State party’s obligations under the Covenant and the 1969 Vienna Convention on the Law of Treaties. The author also refers to the report on the mission to Belarus by the Special Rapporteur on the independence of judges and lawyers (E/CN.4/2001/65/Add.1) and claims that recommendations made in that report have not yet been implemented.

3.3The author also notes that the Vitebsk Oktyabrsky District Court has wrongly qualified her actions in its decision of 11 July 2011. As transpires from the author’s appeal of 18 July 2011 to the Vitebsk Regional Court, her request of 26 August 2011 to initiate a supervisory review addressed to the Chair of the Vitebsk Regional Court and her request of 8 November 2011 to initiate a supervisory review addressed to the Chair of the Supreme Court, she argues in particular that: (a) a judge of the Vitebsk Oktyabrsky District Court had already established, on 8 July 2011, that a silent protest action that gathered individuals who disagreed with the social, political and economic situation in Belarus had been organized through the Internet resource “Revolution through a social network”; (b) according to the Public Events Acts, a street procession is an organized mass movement of a group of citizens along a pedestrian or roadway section of a street/road, boulevard, avenue or square with the aim of drawing attention to certain problems or publicly expressing their political attitudes or disagreement. The decision of the Vitebsk Oktyabrsky District Court of 11 July 2011 does not explain, however, what problems, political attitudes or disagreements were expressed by citizens who clapped their hands; (c) a page from the newspaper Nasha Niva , dated 25 May 2011, with the photographs of political prisoners in Belarus was wrongly qualified as a poster entitled “Palitvyazni” (political prisoners); (d) the religious ritual, i.e. recitation by praying citizens of the names of political prisoners, was wrongly qualified by the State party’s authorities and courts as “execution [by individuals who gathered for a prayer] of certain instructions” given by the author; and (e) the fact that the author held a red and white umbrella in her hands during the prayer was wrongly interpreted as the use of red and white “paraphernalia”. The author notes in this context that the decision of the Vitebsk Oktyabrsky District Court of 11 July 2011 does not refer to the legal provisions prohibiting the use of colours of the national flag of Belarus and that the Covenant prohibits discrimination on the ground of political opinion.

3.4With reference to the Committee’s Views in an earlier case concerning the State party, the author submits that her rights under articles 19 (2) and 21 of the Covenant have been violated in circumstances similar to those already examined by the Committee in the aforementioned communication.

3.5The author also states that, pursuant to article 2 (1) of the Covenant, the State party undertook to respect and ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant. The author adds that, despite this obligation, the State party gives priority to its domestic law over its obligations under the Covenant.

3.6With reference to the provisions of article 5 (1) of the Covenant, the author submits that, by imposing an administrative fine on her for a street procession, expression of opinion and performance of religious rituals, the State party has disregarded its obligations not to perform any acts aimed at the destruction of any of the rights and freedoms recognized in the Covenant.

State party’s observations on admissibility

4.In a note verbale dated 5 January 2013, the State party challenged the registration of the communication and its admissibility. It argues that the author failed to exhaust all available domestic remedies, as required by article 2 of the Optional Protocol. In particular, she did not apply to the Prosecutor General for a supervisory review of the domestic courts’ decisions. Furthermore, the author did not apply to the Chair of the Supreme Court after having received the answer from the Deputy Chair. Since the communication was registered in violation of article 2 of the Optional Protocol, the State party has discontinued the proceedings in relation to the communication and would disassociate itself from the Views that might be adopted by the Committee.

Author’s comments on the State party’s observations

5.1In a letter dated 8 March 2013, the author commented on the State party’s observations. She recalls that the decision of the Vitebsk Oktyabrsky District Court of 11 July 2011 became executory on 10 August 2011 and that, having exhausted the ordinary domestic remedies pursuant to article 12.2, part 1 (4), of the Procedural Executive Code on Administrative Offences, she resorted to the extraordinary means of appeal by submitting requests to initiate a supervisory review of the earlier decisions to the Chair of the Vitebsk Regional Court and the Chair of the Supreme Court. These requests were rejected, respectively, by the Chair of the Vitebsk Regional Court and the Deputy Chair of the Supreme Court. With reference to article 12.2, part 1 (4), and article 12.11, part 1, of the Procedural Executive Code on Administrative Offences, the author argues that she does not have a right to submit a repeated request to the Chair of the Supreme Court, nor to an appeal to the Prosecutor General under the supervisory review procedure.

5.2The author further submits that, pursuant to article 12.11, part 2, of the Procedural Executive Code on Administrative Offences, a chair of a higher court can review proprio motu the decision in relation to an administrative offence that has already become executory. The Chair of the Supreme Court, however, has not availed himself of this right as far as the administrative proceedings instituted with regard to the author are concerned. Furthermore, pursuant to article 2.15, part 2 (7), of the Procedural Executive Code on Administrative Offences, a prosecutor has a right to file an objection against decisions in relation to administrative offences that are contrary to the law. The prosecutor, however, has not availed himself of this right as far as the administrative proceedings instituted with regard to the author are concerned. The author submits, accordingly, that the Committee is not precluded by article 5 (2) (b) of the Optional Protocol from examining her communication.

Issues and proceedings before the Committee

Lack of cooperation by the State party

6.1The Committee notes the State party’s assertion that the author’s communication was registered in violation of article 2 of the Optional Protocol and that, if a decision is taken by the Committee on the present communication, its authorities would “disassociate” themselves from the Committee’s Views.

6.2The 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 art. 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 (art. 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. 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.

Consideration of admissibility

7.1Before 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.

7.2The 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.

7.3The Committee notes that the State party has challenged the admissibility of the communication, claiming that the author did not apply to the Prosecutor General for a supervisory review of the domestic courts’ decisions. 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. The Committee also notes the State party’s argument that, in the framework of the supervisory review proceeding before the Supreme Court, the author should have requested a review by the Chair of the Court after she had received an answer from the Deputy Chair. From the documents on file, however, it transpires that the author did indeed address her request for a supervisory review to the Chair of the Supreme Court, although the letter dismissing her request was signed by the Deputy Chair. Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the present communication.

7.4Regarding the author’s claim under article 2 (1) of the Covenant, the Committee recalls its jurisprudence, which indicates that the provisions of article 2 of the Covenant, which lay down general obligations for States parties, cannot, in and of themselves, give rise to a claim in a communication under the Optional Protocol. The Committee therefore considers that the author’s contentions in this regard are inadmissible under article 3 of the Optional Protocol.

7.5Regarding the author’s claim under article 5 (1) of the Covenant, the Committee finds that this provision does not give rise to any separate individual right. Thus, the claim is incompatible with the Covenant and inadmissible under article 3 of the Optional Protocol.

7.6With respect to the allegations under article 14 (1) of the Covenant, the Committee observes that these complaints refer primarily to the appraisal of evidence adduced during the court proceedings and interpretation of laws, matters falling in principle to the national courts, unless the evaluation of evidence was manifestly arbitrary or constituted a denial of justice. In the present case, the Committee is of the view that the author has failed to demonstrate, for purposes of admissibility, that the conduct of the proceedings in her case was arbitrary or amounted to a denial of justice. The Committee consequently considers that this part of the communication has not been sufficiently substantiated, and thus finds it inadmissible under article 2 of the Optional Protocol.

7.7The Committee notes that the author claims a violation of her rights under article 18 of the Covenant because she was held to administrative responsibility for a public prayer (i.e. performing religious rituals) in support of political prisoners in Belarus. The Committee notes in this regard that, according to the author’s own account, she was organizing a daily prayer at the Cross of St. Evfrosinya Polotskaya, next to the Assumption Cathedral in Vitebsk, from 16 June to 3 July 2011. The Committee further notes that the author does not argue in her communication to the Committee that she was somehow impeded by the State party’s authorities in the performance of this religious ritual prior to 3 July, when she walked together with other individuals to the venue of the prayer, clapping hands. From the documents on file, it transpires that, on 8 July 2011, the author was accused of having violated the procedure, established by the Public Events Acts of Belarus, for organizing an unauthorized street procession in order to express political opinion, rather than for organizing an unauthorized peaceful assembly in the form of a public prayer. In these circumstances, the Committee considers that the author has failed to sufficiently substantiate this particular claim for purposes of admissibility and declares this part of the communication inadmissible under article 2 of the Optional Protocol.

7.8The Committee considers that the author has sufficiently substantiated her claims under articles 19 and 21 of the Covenant, for purposes of admissibility. Accordingly, it declares this part of the communication admissible and proceeds with its consideration on the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s claim that the State party has violated her rights guaranteed under articles 19 and 21 of the Covenant because she was held to administrative responsibility for walking together with other individuals to the venue of the prayer (i.e. street procession) and clapping hands (i.e. expression of opinion). The first issue before the Committee is, therefore, whether the application of article 23.34, part 2, of the Code on Administrative Offences to the author’s case, resulting in her conviction of an administrative offence and the subsequent fine, constituted a restriction within the meaning of article 19 (3) on the author’s right to freedom of expression and the second sentence of article 21 of the Covenant on the right of peaceful assembly. The Committee notes that article 23.34 of the Code on Administrative Offences establishes administrative liability for “violation of the established procedure for organizing or holding a public event”. The Committee observes, therefore, that there has been a restriction on the exercise of the author’s rights guaranteed under articles 19 (2) and 21 of the Covenant.

8.3The Committee then has to consider whether the restriction imposed on the author’s right to freedom of expression and on her right to peaceful assembly was justified under any of the criteria set out in article 19 (3) and the second sentence of article 21 of the Covenant.

8.4The Committee recalls that article 19 (3) of the Covenant allows certain restrictions only as provided by law and necessary for the respect of the rights and reputation of others and for the protection of national security or public order (ordre public) or public health or morals. The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, in which it stated that those freedoms were indispensable conditions for the full development of the person and were essential for any society. They constituted the foundation stone for every free and democratic society. Any restriction on the exercise of those 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. The Committee also recalls that it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 of the Covenant were necessary and proportionate.

8.5The Committee also 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 one’s views and opinions and is indispensable in a democratic society. This right entails the possibility of organizing and participating in a peaceful assembly, both moving and stationary, in a public location. The organizers of an assembly generally have the right to choose a location within sight and hearing of their target audience; no restriction to this right is permissible unless it is imposed in conformity with the law and is necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), 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 of peaceful 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.

8.6The Committee notes the author’s allegations that she was accused of having violated the procedure, established by the Public Events Acts of Belarus, for organizing an unauthorized street procession in order to express political opinion and charged with an administrative offence under article 23.34, part 2, of the Code of Administrative Offences (violation of the established procedure for organizing or holding a public event). She later received an administrative fine for the violation of the aforementioned provision of the Code of Administrative Offences. The Committee also notes the author’s explanation that she did not seek prior authorization from the competent authorities, as required by law, to organize a public event because she had no intention of organizing a street procession.

8.7The Committee has previously held in a communication concerning notice requirements for holding a peaceful assembly that they may be compatible with the permitted limitations laid down in article 21 of the Covenant. However, while a system of prior notices may be important for smooth conduct of public demonstrations, “their enforcement cannot become an end in itself”.Any interference with the right to peaceful assembly must still be justified by the State party in the light of the second sentence of article 21. This is particularly true for spontaneous demonstrations, which cannot by their very nature be subject to a lengthy system of submitting a prior notice.

8.8The Committee observes in this regard that, while the restrictions imposed in the author’s case, which relate to the requirement of seeking a prior authorization, were in accordance with the law, neither the State party nor the national courts have provided any explanations as to why it was necessary for her ⸻ under domestic law and for one of the legitimate purposes set out in the second sentence of article 21 of the Covenant ⸻ to obtain authorization prior to peacefully walking on the pavement with a group of acquaintances. Nor did the State party or the national courts explain how, in practice in the present case, the movement on the pavement towards a place of worship of the author and a few other individuals who were clapping hands could have violated the rights and freedoms of others or posed a threat to public safety or public order (ordre public). In the absence of any pertinent explanations from the State party, the Committee considers that due weight must be given to the author’s allegations.

8.9The Committee notes that the author was convicted of an administrative offence and given an administrative fine in accordance with article 23.34, part 2, of the Code of Administrative Offences because she had organized an unauthorized street procession. The Committee notes that the State party has failed to demonstrate that the conviction and fine imposed on the author following a spontaneous and peaceful street procession were necessary in a democratic society and were proportionate to the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others as required by article 21 of the Covenant. Likewise, the State party has failed to provide any pertinent information to justify the restrictions imposed on the author contrary to the provisions of article 19 (3) of the Covenant.

8.10The 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. In line with these precedents, and in the absence of any explanations by the State party regarding the matters at stake, the Committee concludes that, in the present case, the State party has violated the author’s rights under articles 19 (2) and 21 of the Covenant.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the State party has violated the author’s rights under articles 19 (2) and 21 of the Covenant. The Committee reiterates its conclusion that the State party has also violated its obligations under article 1 of the Optional Protocol.

10.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, inter alia, to take appropriate steps to provide the author with adequate compensation, including reimbursement of the fine imposed on the author as a result of the administrative proceedings and any legal costs incurred by her. 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.

11.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.