Human Rights Committee

Communication No. 2019/2010

Views adopted by the Committee at its 115th session (19 October-6 November 2015)

Submitted by:Anatoly Poplavny (not represented by counsel)

Alleged victim:The author

State party:Belarus

Date of communication:23 May 2010 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 12 August 2010 (not issued in document form)

Date of adoption of Views:5 November 2015

Subject matter:Refusal to authorization to hold a peaceful assembly; freedom of expression

Substantive issues: Freedom of expression; freedom of assembly

Procedural issue s : Exhaustion of domestic remedies

Article s of the Covenant: 2 (2), 2 (3), 19 and 21

Article s of the Optional Protocol:2, 3 and 5

Annex

Views of the Human Rights Committee under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights (115th session)

concerning

Communication No. 2019/2010 *

Submitted by:Anatoly Poplavny (not represented by counsel)

Alleged victim:The author

State party:Belarus

Date of communications:23 May 2010 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 5 November 2015,

Having concluded its consideration of communication No. 2019/2010, submitted to it by Anatoly Poplavny under the Optional Protocol to the International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the author of the communication and the State party,

Adopts the following:

Views under article 5 (4) of the Optional Protocol

1.The author of the communication is Anatoly Poplavny, a national of Belarus born in 1958. He claims to be a victim of a violation by Belarus of his 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. The author is not represented by counsel.

The facts as submitted by the author

2.1On 23 November 2009, the author filed an application with the Gomel City Executive Committee to hold a picket in one of the central squares in Gomel on 10 December 2009 in order to publicly express his personal opinion on the occasion of the anniversary of the adoption of the Universal Declaration of Human Rights; Human Rights Day is a recognized festive day in Belarus.

2.2On 2 December 2009, the Executive Committee, decision No. 1410, refused to authorize the author to hold the picket. The basis for the refusal was the author’s failure to comply with the requirements of Executive Committee decision No. 299 of 2 April 2008 on Mass Events in the City of Gomel, adopted on the basis of the Law on Mass Events in Belarus of 30 December 1997. It was noted that, firstly, the author had planned to organize a picket outside the location designated for that purpose in decision No. 299 and, secondly, that he had not concluded the required contracts with the city service providers for the maintenance of security, medical assistance and cleaning.

2.3On 7 December 2009, the author appealed the refusal of the Executive Committee to the Central District Court of Gomel, which rejected his appeal on 30 December 2009. On 22 January 2010, he appealed the decision of the District Court to the Regional Court of Gomel, which rejected his appeal on 23 February 2010. On 11 March and 19 April 2010, the author appealed the decision of the Regional Court to the Chair of the Regional Court and to the Chair of the Supreme Court, through the supervisory review procedure. Both appeals were dismissed, on 14 April 2010 and 15 May 2010, respectively.

2.4In his complaint to the courts, the author claimed that the refusal of the Executive Committee limited his rights to freedom of expression and freedom of assembly as guaranteed by the Constitution of Belarus and articles 19 and 21 of the Covenant and that no explanation had been provided as to why the restriction of his rights was necessary. The courts found that the refusal of the Executive Committee was lawful as it was based on decision No. 299. The author submits that he has thus exhausted all effective domestic remedies.

The complaint

3.1The author claims that the rejection of his request to hold a picket by the national authorities amounts to a violation of his rights under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant. He claims that neither the Executive Committee nor the courts considered whether the limitations imposed on his rights under decision No. 299 were justified by reasons of national security or public safety, public order, the protection of public health or morals, or whether they were necessary for the protection of the rights and freedoms of others. He alleges that decision No. 299 restricting all mass events in Gomel to a single, remote location and the requirement that organizers conclude prior paid contracts with city service providers unnecessarily limits the rights under articles 19 and 21 of the Covenant. He also claims that the provisions of the Law on Mass Events enable the local executive authorities to decide on permanent locations for holding mass events without providing justification for this restriction.

3.2In this context, the author asks the Committee to recommend to the State party that it align its legislation with the international standards set out in articles 19 and 21 of the Covenant and requests compensation for his expenses, including the court fees, and for non-pecuniary damages.

State party’s observations

4.1In a note verbale dated 25 January 2012, the State party reiterated its position expressed in its note verbale dated 6 January 2011 regarding unjustified registration of communications submitted by individuals who have not exhausted all available domestic remedies in the State party, including appealing to the Prosecutor’s Office for supervisory review of a judgement having the force of res judicata, in violation of article 2 of the Optional Protocol. Additionally, the State party submits that upon becoming a party to the Optional Protocol, it had agreed, under article 1 thereof, to recognize the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by the State party of any rights protected by the Covenant. It notes, however, that that recognition was undertaken in conjunction with other provisions of the Optional Protocol, including those establishing criteria regarding petitioners and the admissibility of their communications, in particular articles 2 and 5.

4.2The State party maintains that, under the Optional Protocol, States parties have no obligation to recognize the Committee’s rules of procedure or its interpretation of the provisions of the Optional Protocol, which could only be effective when undertaken in accordance with the Vienna Convention on the Law of Treaties. It submits that, in relation to the complaint procedure, States parties should be guided first and foremost by the provisions of the Optional Protocol, and that references to the Committee’s long-standing practice, methods of work and case law are not subjects of the Optional Protocol. It also submits that any communication registered in violation of the provisions of the Optional Protocol will be viewed by the State party as incompatible with the Optional Protocol and will be rejected without observations on the admissibility or merits and any decision taken by the Committee on such rejected communications will be considered by its authorities as “invalid”. The State party considers that the present communication was registered in violation of the Optional Protocol.

Author’s comments on the State party’s observations

5.1In a letter dated 21 March 2012, the author, with reference to the Committee’s case law on the matter, submits that he does not consider the supervisory review by the Prosecutor’s Office to be an effective domestic remedy.

5.2Regarding the State party’s challenge to the Committee’s rules of procedure, the author submits that the Committee is empowered to interpret the provisions of the Covenant and that the views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument.In the author’s view, the State party must therefore respect the Committee’s decisions, as well as its standards, practice and methods of work.

Issues and proceedings before the Committee

L ack of cooperation from the State party

6.1The Committee notes the State party’s assertion that there are no legal grounds for the consideration of the author’s communication, insofar as it was registered in violation of the provisions of the Optional Protocol; that it has no obligations regarding the recognition of the Committee’s rules of procedure and regarding the Committee’s interpretation of the provisions of the Optional Protocol; and that if a decision is taken by the Committee on the present communication, it will be considered “invalid” by its authorities.

6.2The Committee recalls that article 39 (2) of the Covenant authorizes it to establish its own rules of procedure, which the States parties have agreed to recognize. 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 of 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 takes note of the State party’s objection that the author has failed to request the Prosecutor’s Office to initiate a supervisory review of the domestic courts’ decisions. The Committee recalls its jurisprudence, according to which a petition for supervisory review to a Prosecutor’s Office, allowing a review of court decisions that have taken effect, does not constitute a remedy that has to be exhausted for the purposes of article 5 (2) (b) of the Optional Protocol. Accordingly, it considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the communication.

7.4The Committee notes the author’s claim that his request to hold a picket was rejected by the local authorities and that neither the Executive Committee nor the courts considered whether the limitation imposed on his rights under decision No. 299 were justified. The author also claims that decision No. 299, adopted on the basis of the Law on Mass Events, unnecessarily limits the rights under articles 19 and 21 of the Covenant. The Committee further notes the author’s claim that his 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 case, the Committee declares the communication admissible as far as it raises issues under articles 19 and 21, read alone and in conjunction with article 2 (2) and (3), of the Covenant, and proceeds with its examination on the merits.

Consideration of the merits

8.1The Human Rights Committee has considered the communication in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

8.2.The Committee notes the author’s claims that Executive Committee decision No. 299 unduly restricts the right to freedom of expression and the right of peaceful assembly by imposing on the organizers of mass events an obligation to conclude paid contracts with city service providers by designating a single and remote location for all mass event to be organized in Gomel, a city of 500,000 inhabitants. The Committee also notes the author’s allegation that the formal application of decision No. 299 by the Executive Committee in his case, without consideration of the need for the limitations on the exercise of his rights, constitutes an unjustified restriction on his rights under articles 19 and 21 of the Covenant.

8.3The Committee recalls, first, 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. The Committee refers to its general comment No. 34 (2011) on the freedoms of opinion and expression, which states that those freedoms are indispensable conditions for the full development of the person and are essential for any society. They constitute the foundation stone for every free and democratic society (para. 2).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 (para. 22). The Committee recallsthat it is for the State party to demonstrate that the restrictions on the author’s rights under article 19 were necessary and proportionate and that even if, in principle, States parties may introduce a system aimed at reconciling an individual’s freedom to impart information and the general interest of maintaining public order in a certain area, such system must not operate in a way that is incompatible with article 19 of the Covenant.

8.4The Committee recalls, next, that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential for public expression of one’s views and opinions and indispensable in a democratic society. This right entails the possibility of organizing and participating in a peaceful assembly, including the right to 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 (a) imposed in conformity with the law; and (b) is 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.

8.5In the present case, the author chose one of the central squares in Gomel for his picket in order to publicly express his opinion on the State party’s commemoration of Human Rights Day. The Committee notes that the national authorities rejected the author’s request for a picket on the grounds that the planned location of the event was different from the only location permitted under decision No. 299 and because the author had failed to conclude contracts with city services’ providers. It also observes that from the material on file it transpires that the national authorities have failed to demonstrate how a picket held in the location proposed by the author would jeopardize national security, public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. It notes in particular that neither the decision of the Executive Committee to refuse the author’s request to hold a picket nor the court decisions provide any justification as to why the restrictions imposed in decision No. 299 and applied in the author’s case were necessary and justified.

8.6The Committee also notes that the de facto prohibition imposed by decision No. 299 of an assembly in any public location in the entire city of Gomel, with the exception of a single remote area, unduly limits the right of assembly and the freedom of expression in the same context. It further notes that requesting the organizer of a one-person picket to contract additional services in order to hold a picket imposes a disproportionate burden on the right of peaceful assembly and the right to freedom of expression. In these circumstances, the Committee finds that the formal application of decision No. 299 and the rejection by the State party’s authorities of the author’s request to hold a picket to be unjustified and concludes that the authors’ rights under articles 19 and 21 of the Covenant have been violated.

8.7In the light of this conclusion, the Committee decides not to examine the author’s claims under articles 19 and 21, read in conjunction with article 2 (2) and (3), of the Covenant.

9.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 author’s rights under articles 19 and 21of the Covenant.

10.In accordance with 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 reimburse any expenses incurred by the author and provide him with adequate compensation. The State party is also under an obligation to take steps to prevent similar violations in the future. In this connection, the Committee reiterates that the State party should revise its legislation in accordance with its obligation under article 2 (2), in particular, decision No. 299 of the Gomel City Executive Committee and the Law on Mass Events 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 Belarusian and Russian in the State party.

Appendix I

Individual opinion of Committee member Sarah Cleveland (concurring

1.In this communications, the author claims that the State party has violated its obligations under articles 19 and 21, read in conjunction with article 2 (2), of the Covenant. The Committee notably finds this claim admissible, but ultimately does not examine it in the light of the Committee’s finding of independent violations of articles 19 and 21. In its remedial paragraph, however, the Committee states that pursuant to article 2 (2) of the Covenant, Belarus is under an obligation to revise its domestic laws in order to ensure that the rights under articles 19 and 21 of the Covenant may be fully enjoyed in the State party (para. 10).

2.I support this result and write separately to elaborate on the approach to article 2 (2) in this case. I also believe that it was available to the Committee to find a violation of the relevant substantive articles in conjunction with article 2 (2).

3.The author of this communications was denied permission to hold a picket in a central square of Gomel on the anniversary of the adoption of the Universal Declaration of Human Rights, due to his failure to comply with decision No. 299 of the Executive Committee of Gomel, which had been adopted pursuant to the Law On Mass Events of Belarus of 30 December 1997. This legal regime required prior authorization for all public gatherings in Gomel, a city of approximately 500,000 people, limited all gatherings not organized by State authorities to a single, remote, location and required organizers of any such public events to enter contracts, at their own expense, to ensure public safety and security, medical care and clean-up services. Although the author challenged in domestic court the denial of his request for permission to demonstrate, the courts upheld the denials as lawful under this legal framework.

4.In approximately 20 cases, the Committee has found that application of the Law on Mass Events of Belarus violated the rights of individuals under articles 19, 21 and/or 22 to the freedoms of expression, assembly and association. At least six of these cases also involved decision No. 299. In such cases, the Committee has repeatedly called upon Belarus to review its legislation in order to bring its legal regime into line with the Covenant and to prevent similar violations in the future.

5.In my view, the circumstances in these cases directly implicate the State party’s obligations under article 2 (2) of the Covenant. That provision states:

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

6.The Committee has long recognized that article 2 establishes accessory obligations and cannot independently serve as the basis for a claim of a violation under the Optional Protocol. Instead, a violation of article 2 must arise in conjunction with the violation of another substantive article of the Covenant. As we recognized in general comment No. 31 (2004) on the nature of the general legal obligation on States parties to the Covenant, article 2 (2) also allows States to achieve compliance through means that are consistent with their own “domestic constitutional structures”. However, States parties also may not invoke their domestic law to justify a failure to perform or give effect to obligations under the Covenant. To the contrary, “[w]here there are inconsistencies between domestic law and the Covenant, article 2 requires that the domestic law or practice be changed to meet the standards imposed by the Covenant’s substantive guarantees”.

7.In Poliakov v. Belarus, the Committee established that article 2 can be the basis for a claim for a violation under the Optional Protocol, read in conjunction with another article, “when the failure by the State party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual claiming to be a victim”.

8.This concept of a “distinct violation” of article 2 that nevertheless arises “in conjunction with the violation of another substantive article of the Covenant” can be understood in the light of the Committee’s long-standing approach to article 2 (3). That provision requires States parties to make reparation to individuals whose Covenant rights have been violated. The Committee has applied article 2 (3) in two ways. First, in any case in which the Committee finds a violation of the Covenant, article 2 (3) imposes an obligation on the State party to provide appropriate reparation to the victim. The Committee thus invokes article 2 (3) as the basis for a remedial paragraph in any Views in which the Committee finds a violation, since the Committee’s finding of a violation triggers the remedial obligations of the State party under article 2 (3) to provide full reparation.

9.Second, an individual may establish a violation in conjunction with article 2 (3) when a State has been on notice of serious human rights violations committed within its jurisdiction and where the State has persistently failed to fulfil its obligations to provide the victim with a remedy. For example, in cases involving past violations such as torture, extrajudicial killings and enforced disappearance, the State party is obligated to investigate and bring perpetrators to justice and to compensate victims. When the State party has persistently failed in this obligation, an individual can establish a “distinct violation” of article 2 (3), read in conjunction with the relevant substantive article of the Covenant, such as article 6 or 7.

10.In the present cases, consistent with the first approach to article 2 (3) above, the Committee’s remedial paragraph (para. 10) expressly invokes the State party’s obligations under article 2 (2) as the basis for directing the State party to revise its legislation to conform it to the obligations under the Covenant. I agree with this decision.

11.Moreover, consistent with our approach to violations of article 2 (3), I believe it is also available to the Committee to find a violation in conjunction with article 2 (2) in situations where, as here, a State’s standing legislation, or the standing interpretation of the laws by a State’s highest court, has persistently and systematically been the source of a Covenant violation and the State party has failed to comply with its binding obligation under article 2 (2) to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

12.The Committee has repeatedly found that Belarus’ relevant legal framework – in these cases article 5 of the Law on Mass Events and decision No. 299 – violates the freedoms of expression, assembly and association under the Covenant. We repeatedly have called upon the State party to review its legislation in the light of these violations. The State party has equally persistently failed to fulfil its “unqualified and immediate” obligation to change its domestic law to meet the standards imposed by the Covenant.

13.Persistent failure by a State party to conform its laws to give effect to rights under the Covenant constitutes a failure to comply with article 2 (2) and should, in my view, be understood to give rise to a “distinct violation” of the Covenant – a violation of the State party’s obligations under article 2 (2), read in conjunction with the relevant substantive article. Other equivalent contexts in which a finding of a violation read in conjunction with article 2 (2) would be appropriate could include certain conscientious objector cases, where the Committee repeatedly has found violations of article 18 as a result of a State party’s failure to adopt legislation providing for civilian alternatives to military service and has repeatedly recommended review of the relevant legislation as well as standing laws imposing a mandatory death penalty.

14.Recognizing a violation in conjunction with article 2 (2) in contexts of structural and systemic failure by the State to adopt remedial legislation would underscore to the State party, and particularly to relevant lawmakers, the Committee’s concern that the source of the violation lies with the State’s legal framework and the State’s distinct obligation under article 2 (2) to conform its domestic laws to give effect to Covenant rights.Finding such a violation of article 2 (2) in turn would enhance human rights protection for the individual by underscoring the State’s obligation to prevent future recurring violations.

15.This approach would also accord with that of other human rights bodies. Pursuant to article 46 of the Convention for the Protection Human Rights and Fundamental Freedoms, the European Court of Human Rights has adopted a similar approach in its pilot judgement procedure, in which the court identifies in its judgement systemic or structural problems with the State party’s legal framework that gave rise to the violation and the remedial measures that the State must adopt, including revision of legislation. The court has applied this approach to address persistent failures of the State to introduce remedial legislation. The Inter-American Court of Human Rights also has long identified situations that require revision of the domestic legal framework and, particularly in circumstances of failure of the State to take such action, has found a violation or failure to comply with article 2 of the American Convention on Human Rights in relation to the relevant substantive articles.

16.Accordingly, while I support the Committee’s explicit request in paragraph 10 that the State party revise its legislation pursuant to article 2 (2), I believe that it was available to the Committee, and that human rights protection could have been enhanced, by finding a violation in conjunction with article 2 (2) under the circumstances in these cases.

Appendix I I

[Original: Spanish]

Joint opinion of Committee members Fabián Salvioli and Víctor Manuel Rodríguez-Rescia (partly dissenting)

1.With regard to communication No. 2019/2010, Poplavny v. Belarus, although we agree with the finding of the international responsibility of the State for a violation of articles 19 and 21 of the International Covenant on Civil and Political Rights, we consider that the Committee should also have addressed the violation of article 2.2 of the Covenant.

2.The finding of a violation of article 2 (2) in the Poplavny case would be consistent with the facts, which amply demonstrate the clear incompatibility of decision No. 299 of the Gomel City Executive Committee with the rights established in articles 19 and 21 of the Covenant.

3.Belarus ratified the Covenant on 12 November 1973, and from the time of the Covenant’s entry into force has been bound as a State party by the various obligations established in the Covenant, including those laid down in article 2 (2). As a result, there are positive obligations (adopting legislative or other measures to give effect to the rights recognized in the Covenant) and negative obligations (refraining from adopting legislative or other measures that prevent or impede the exercise of the rights recognized in the Covenant). Consequently, the international responsibility of the State for a violation of article 2 (2) can be incurred either by an act or by an omission.

4.By adopting the Law on Mass Events, which authorizes the local executive authorities to determine the permanent locations where mass events can be held without requiring justification for the imposition of various restrictions, the State has failed to comply with its obligations under article 2 (2) of the Covenant, read in conjunction with articles 19 and 21 of that instrument.

5.Similarly, decision No. 299 of the Gomel City Executive Committee, adopted on 2 April 2008, requiring contracts to be concluded with the city service providers for the maintenance of security, medical assistance and cleaning at the event, is an obstacle that does not meet the standards of necessity and proportionality for regulating the exercise of the rights of freedom of expression and assembly and thus also constitutes a violation of article 2 (2) of the Covenant, read in conjunction with articles 19 and 21 of the Covenant.

6.This is apparent even from the Committee’s own reasoning which indicates, in paragraph 10 of its Views, that the State should review its legislation to make it consistent with the obligations under article 2 (2) of the Covenant, referring expressly to the two previously mentioned norms. This conclusion cannot be reached without first affirming the incompatibility of those norms with article 2 (2) and, hence, finding a violation of that article, read in conjunction with articles 19 and 21 of the Covenant, which we consider to be implicitly established in the Views adopted by the Committee.