Human Rights Committee

Communication No. 1808/2008

Views adopted by the Committee at its 108th session (8–26 July 2013)

Submitted by:Sergey Kovalenko (not represented by counsel)

Alleged victim:The author

State party:Belarus

Date of communication:8 May 2008 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 15 September 2008 (not issued in document form)

Date of adoption of Views:17 July 2013

Subject matter: Breaking up a peaceful assembly aimed at commemorating the victims of the Stalinist repressions in violation of the right to express opinions and the right to hold a peaceful assembly without unreasonable restrictions.

Substantive issues:Right to freedom of expression; permissible restrictions; right to peaceful assembly

Procedural issue:None

Articles of the Covenant: 19, paragraph 2; 21

Article of the Optional Protocol: 5, paragraph 2 (b)

Annex

Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights (108th session)

concerning

Communication No. 1808/2008*

Submitted by:Sergey Kovalenko (not represented by counsel)

Alleged victim:The author

State party:Belarus

Date of communication:8 May 2008 (initial submission)

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

Meeting on 17 July 2013,

Having concluded its consideration of communication No. 1808/2008, submitted to the Human Rights Committee by Sergey Kovelenko 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, paragraph 4, of the Optional Protocol

1.The author of the communication is Sergey Kovalenko, a Belarusian national born in 1975, residing in Vitebsk, Belarus. He claims to be a victim of violations by Belarus of his rights under article 19, paragraph 2, and article 21 of the International Covenant on Civil and Political Rights. The Optional Protocol entered into force for the State party on 30 December 1992. The author is not represented.

Factual background

2.1On 30 October 2007, the author, together with about thirty other inhabitants of Vitebsk who all had relatives who had been shot dead in the Stalinist camps or had died from diseases during forced labour in Soviet Russia in the 1930s–1950s, took part in a commemorative service. The author took part in the commemoration as he believed that the communist (Stalinist) regime was repressive and aimed at the suppression of political pluralism in the Soviet society. Thus, by participating in the commemoration, he wished to express, together with other participants, a negative attitude towards the violent suppression of all types of dissent. The commemoration was intended to include a visit to the place near Polyai village where the victims of political repression had been executed and buried, and a visit to two cemeteries close to Voroni and Kopti villages. The participants intended to lay wreaths and flowers and to erect a cross.

2.2When the participants’ bus stopped at the parking lot close to the venue for the commemoration near Polyai village and started taking out wreaths, flowers, the parts of the cross to be assembled, etc., police officers demanded that the commemoration be stopped, as in the opinion of the Deputy Head of the Vitebsk District Department of Internal Affairs, it constituted an unauthorized mass event (a “picket”). The participants refused to stop the commemoration. The author explains that, at that moment, he was carrying a white-red-white flag, which in his view symbolizes the Belarusian State and its independence, and the rejection of the communist past. The police officers asked him to roll it up, which he did, unfurling it again only when the cross was erected in the neighbouring wood, at the place where the victims of political repression had been executed. When the participants boarded the bus to continue to Voroni and Kopti villages, the Deputy Head of the Vitebsk District Department of Internal Affairs entered the bus and announced that he was breaking up the commemoration and that all passengers were being detained as participants in an unauthorized mass event. The participants, including the author, expressed their disagreement with this decision but obeyed the order.

2.3On the same bus, the author and the other participants were brought to the Vitebsk District Department of Internal Affairs of the Vitebsk Region, where the author was cited for having committed an administrative offence under article 23.34, part 3, of the Code on Administrative Offences (violation of the established procedure for organizing or conducting a mass event or a “picket”).

2.4By ruling of 31 October 2007, the Vitebsk District Court of the Vitebsk Region found the author guilty of having committed an administrative offence under article 23.34, part 3, of the Code on Administrative Offences and fined him 620,000 Belarusian roubles. According to the court ruling, in court the author challenged the definition of his actions as participation in an unauthorized picket, as he simply participated in a commemoration for the victims of repressions, listened to those speaking and carried a white-red-white flag, which for him symbolizes the Belarusian State. The court referred to article 2 of the Law on Mass Events of 30 December 1997, according to which a “picket” is a public expression by a citizen or by a group of citizens of public and political, group or individual and other interests or the protest (without a procession), including by hunger strike, of any issues, with or without the use of posters, banners and other materials. The Vitebsk District Court concluded that, by actively taking part in a mass event in a public place and, in particular, by holding unfurled flags and a cross for a long period of time on the parking lot with the other participants at the mass event, the author publicly expressed his personal and other interests.

2.5On 8 November 2007, the author filed a cassation appeal with the Vitebsk Regional Court against the Vitebsk District Court’s ruling of 31 October 2007. In his appeal, he contested the legal definition by the court of his actions. He admitted having displayed a white-red-white flag, symbolizing the Belarusian State, and pointed out that he had not displayed any posters, banners or other materials and, therefore, had not publicly expressed a group, individual or other interest or protest. The commemoration took place in remote woodland shielded from public view. He also noted that, even if he did take part in an unauthorized mass event (“picket”), article 23.34 of the Code on Administrative Offences proscribes a violation of the established procedure for the organization or holding of a mass event or of a “picket”, it does not penalize mere participation in a mass event of this type. Moreover, during the same period, Christians in Belarus were observing the autumn day of the dead: the exercise of religious rites is not governed by Belarus laws. Lastly, he claimed that the commemoration in which he took part was a peaceful citizens’ gathering. He participated in the commemoration as he wanted to express his negative view of political repression, and the commemoration did not pose a threat to national security, public safety, public order, the protection of public health, morals or rights and freedoms of others. Furthermore, by arresting him, the authorities prevented the realization of his right to peaceful assembly guaranteed both under the Belarus Constitution and by the international obligations of Belarus.

2.6On 28 November 2007, the Vitebsk Regional Court rejected the author’s appeal. The court concluded that the evidence before it permitted it to establish that the author had participated, together with other individuals, in an unauthorized picket aimed at expressing personal or other interests. The event was of a public nature, as established by witnesses’ testimonies and the content of videotapes. The participants remained on the parking lot displaying flags for a long time in the presence of onlookers. Accordingly, the court concluded that the event in which the author had participated was conducted in violation of the requirements of article 2 of the Law on Mass Events, which required participants at the commemoration to seek an authorization from the competent authorities to hold a mass event. The actions of the author were correctly qualified by the district court under article 23.34, part 3, of the Code on Administrative Offences. The fine imposed on the author had been determined within the amounts prescribed under the law.

2.7On 21 December 2007, the author requested the Supreme Court to examine the rulings of the Vitebsk District Court and the Vitebsk Regional Court under the supervisory review proceedings. In his request, he reiterated his previous arguments presented on appeal. On 4 February 2008, a Deputy Chair of the Supreme Court dismissed the author’s appeal. The Supreme Court took into account that the author had previously been subject to an administrative penalty under article 23.34, part 1, of the Code on Administrative Offences as he had already participated in unauthorized pickets. The evidence on file showed that the author had participated in an unsanctioned mass event and a videotape showed him displaying a white-red-white flag with the intention of expressing certain interests. Accordingly, the Deputy Chair of the Supreme Court concluded that the lower courts had correctly defined the author’s actions under part 3 of article 23.34 of the Code on Administrative Offences.

The complaint

3.1The author submits that his detention by the police on 30 October 2007 in the course of the commemoration interfered with his right to freedom of expression, as guaranteed by article 19, paragraph 2, of the Covenant. He also contends that his acts were wrongly defined by the court as participation in a mass event.

3.2 He also submits that the commemoration in question was never intended to constitute a political, social or economic action and, therefore, the participants had not sought prior authorization for its conduct. The commemoration he participated in was a peaceful citizens’ gathering, and the participants’ actions did not affect the rights and freedoms of others, nor did they damage individual or public property. According to the author, the authorities had not presented any facts disclosing a breach of national security or of public order during the commemoration, and thereby endorsed its peaceful nature. Neither did they provide any documentary evidence of threats to the life and health of individuals, to their morals or of breaches of their rights and freedoms. Therefore, according to the author, the State party has also violated his right to peaceful assembly as protected by article 21 of the Covenant.

The State party’s observations on admissibility and merits

4.1By note verbale of 24 November 2008, the State party submitted its observations on the admissibility and merits of the communication. It contends that the arguments adduced by the author regarding the unlawful engagement of his administrative liability under article 23.34, part 3, of the Code on Administrative Offences are groundless. Under article 35 of the Constitution, freedom of assembly, meetings, street rallies, demonstrations and pickets that do not affect the public order and the rights of other Belarusian citizens are guaranteed by the State; the proceedings regarding the conduct of such events is to be regulated by law. That law is the Law on Mass Events of 20 December 1997, which established the procedure for creating conditions for the realization of constitutional rights and freedoms of citizens, and the protection of public safety and order during the conduct of such events on the streets, on squares and in other public places.

4.2 The State party notes that the author does not contest his participation in a mass event on 30 October 2007, which he qualifies as a peaceful assembly — a commemoration. This event was conducted in a place used as a bus station and, moreover, on the Vitebsk-Liozno road, using white-red-white flags such as the one carried by the author. The State party rejects the author’s view that such flags symbolize the State and its independence, and notes that these colours do not constitute a State symbol.

4.3 The State party explains that the court took a well-founded decision when concluding that the author had participated in a picket as defined under article 2 of the Law on Mass Events. This is confirmed by the number of participants in the event, the use of non-State symbols and their intention to place crosses in a location freely chosen by the participants. During the events, the participants also made oral statements. No authorization for the conduct of the event in question was issued, and the participants were duly notified of that fact by the police and invited to stop the event, to no avail. The court therefore properly found that the author had participated in an unauthorized picket. Given that this offence was committed less than a year after he had committed a similar offence, the court correctly concluded the existence in the author’s actions of the elements of the offence under article 23.34, part 3, of the Code on Administrative Offences.

4.4 According to the State party, no breach of the norms of international law have been committed in this case, contrary to the author’s allegations. The principle of equality before the law is enacted in Belarus, and the State guarantees the protection of its citizens. The wish of a group of citizens to conduct a mass event or to participate in it may not affect the rights and freedoms of others. This is also the aim of the provisions in the Law on Mass Events and article 23.34, part 3, of the Code on Administrative Offences.

4.5 The State party finally explains that the author had the possibility to submit an appeal under the supervisory review proceedings to the Supreme Court and to the Prosecutor’s Office. It notes that the author had chosen to appeal only to the Supreme Court, and, therefore, failed to exhaust all domestic remedies.

Author’s comments on the State party’s observations

5.1The author provided his comments on the State party’s observations on 11 January 2009. He notes that under article 2, paragraph 2, of the Covenant, the State party undertook to create such legal and legislative conditions as to ensure the exercise of the rights of the individuals under its jurisdiction. Article 33 of the Constitution guarantees freedom of thoughts and beliefs and their free expression to everyone. Pursuant to article 35 of the Constitution, the freedom to hold assemblies, meetings, street marches, demonstrations and pickets that do not disturb law and order or violate the rights of other citizens of Belarus shall be guaranteed by the State. The procedure for holding the above-mentioned events shall be determined by law. The author states that these rights can be exercised by Belarusian citizens under any circumstances, subject to the restrictions that are provided in law and are necessary in a democratic society in 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.

5.2The author reiterates his argument that, at the time of his detention and in court, he was not accused of encroaching upon national security or public safety by his actions. Similarly, he was not accused of breaching public order or making threats to the life and health of individuals, to their morals or in breach of their rights and freedoms. The author submits that he was fined for the mere fact of taking part in a “picket”, which allegedly was organized without regard for the procedure for conducting mass events.

5.3The author recalls that article 23.34 of the Code on Administrative Offences does not proscribe mere participation in a mass event. He adds that, at the time of his detention and in court, it was not established that he either organized or led the commemoration. Therefore, as a mere participant in the event, he should not have been taken away from the venue and subjected to an administrative penalty. The author explains that by taking him away from the commemoration, the State party’s authorities deprived him of the right to peaceful assembly. The peacefulness of the assembly is demonstrated by its aim of paying tribute to the victims of the Stalinist repressions. The peaceful nature of the commemoration has not been disputed by the police officers who detained the author, the State party’s courts that have examined his case or by the State party in its observations to the Committee.

5.4The author submits that, by breaking up the commemoration, the State party’s authorities also deprived him of the right to freedom of expression. He expressed his opinion about past political repression by taking part in the event. He adds that he deliberately chose this way of expressing his opinion because it did not pose any threat to national security or public safety, public order, public health or morals or the rights and freedoms of others. He acknowledges that he was displaying a white-red-white flag — the State party’s national flag from 1991 to 1994, at present recognized as a historical national flag — but explains that this flag was never recognized as a forbidden symbol. The author asserts, therefore, that his rights under article 19, paragraph 2, and article 21 of the Covenant have been violated.

5.5 As to the recourse to the Prosecutor’s Office under the supervisory review proceedings, the author explains that the formalistic manner by which the Supreme Court addressed his supervisory review appeal had led him to the conviction that the supervisory review institute is not an effective remedy.

Further submissions from the State party

6.1By note verbale of 14 May 2009, the State party recalls that the Vitebsk District Court of Vitebsk Region found the author guilty under article 23.34, part 1, of the Code on Administrative Offences and imposed a fine. The State party repeats its reasons for considering the court’s decision well founded.

6.2 The State party observes that article 19, paragraph 2, of the Covenant provides that everyone shall have the right to freedom of expression, and that article 21 of the Covenant guarantees the right of peaceful assembly. Nonetheless, the Covenant permits certain restrictions on these rights. The State party has implemented these provisions of the Covenant, including through their incorporation in national law and its Constitution in particular (arts. 33 and 35). Furthermore, article 23 of the Constitution permits restrictions of personal rights and freedoms but only in instances specified by law, in the interest of national security, public order, protection of morals, health of the population, as well as rights and liberties of others. The analysis of article 35 of the Constitution shows that the right to freedom of mass events is proclaimed, but the Constitution also provides for a legislative regulation of the order of their conduct. At present, the organization and conduct of assemblies, meetings, street rallies, demonstrations and pickets is regulated by the Law on Mass Events of 7 August 2003. This law provides for an authorization — and not a notification — system for the conduct of mass events. Restrictions on the conduct of mass events may only be imposed in the cases provided by law, in the interest of national security and public order, in particular under article 23.34 of the Code on Administrative Offences and article 8 of the Law on Mass Events.

6.3 The State party further qualifies as a personal opinion, not corresponding to reality, the author’s arguments on the ineffectiveness of the supervisory review proceedings in the framework of administrative offences, which is not grounded in any concrete facts or examples, including of relevance to the merits of the present case. It explains that, under article 12.1 of the Procedural-Executive Code on Administrative Offences, a ruling on an administrative offence can be appealed by the individual against whom the administrative case is opened, an injured party or their representatives or lawyers, while the prosecutors can introduce protest motions against such rulings. A ruling which has entered into legal force can also be re-examined at the prosecutor’s protest motion. In 2008, the Prosecutor’s Office had received 2,739 complaints regarding rulings in cases of administrative offences. Of those, 422 claims have been satisfied. In 2008, on the sole protest motions of the General Prosecutor’s Office, the Supreme Court has annulled and modified 146 rulings concerning cases of administrative offences that had entered into legal force. These numbers demonstrate that the system of prosecutor’s supervisory review is sufficiently effective, and each year an important number of administrative offence cases are re-examined based on prosecutor’s protest motions.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not the case is admissible under the Optional Protocol to the Covenant.

7.2The Committee has ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3 The Committee notes that the State party has challenged the admissibility of the communication on the ground that the author has not requested the Prosecutor’s Office to have his administrative case examined under the supervisory review proceedings and thus, according to the State party, the communication should be declared inadmissible for non-exhaustion of domestic remedies under article 5, paragraph 2 (b), of the Optional Protocol. The Committee also notes the statistics provided to demonstrate that supervisory review was effective in a number of instances (see para. 6.3 above). However, the Committee notes that the State party has not shown whether the procedure has been successfully applied in cases concerning freedom of expression or the right to peaceful assembly, and if so in how many cases. The Committee recalls its jurisprudence, according to which this kind of procedure for the review of court decisions that have entered into force does not constitute a remedy which has to be exhausted for the purposes of article 5, paragraph 2 (b), of the Optional Protocol. In the light thereof, the Committee considers that it is not precluded by the requirements of article 5, paragraph 2 (b), of the Optional Protocol from examining the present communication.

7.4The Committee considers that the author’s claims under article 19, paragraph 2, and article 21 of the Covenant are sufficiently substantiated, for purposes of admissibility, declares them admissible and proceeds to their 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 for under article 5, paragraph 1, of the Optional Protocol.

8.2The Committee notes the author’s claim that, by breaking up, on 30 October 2007, the commemoration to honour the victims of the Stalinist repressions in Soviet Russia, the State party’s authorities violated his right to freedom of expression under article 19, paragraph 2, of the Covenant, since he was taken away from the commemoration and subsequently fined 620,000 Belarusian roubles for publicly expressing personal and other interests during the unauthorized “picket”. It further notes the State party’s contention that the author was subjected to administrative liability under article 23.34, part 3, of the Code on Administrative Offences for having participated in an unauthorized picket, having previously been sentenced on a different occasion for a breach of the procedure for organizing and holding mass events.

8.3The first issue before the Committee is whether or not the application of article 23.34, part 3, of the Code on Administrative Offences to the author’s case, resulting in the termination of the commemoration and the subsequent fine, constituted a restriction within the meaning of article 19, paragraph 3, of the author’s right to freedom of expression. The Committee notes that article 23.34, part 3, of the Code on Administrative Offences establishes administrative liability for violation of the established procedure for organizing or conducting a mass event. It also notes that, since the State party imposed a “procedure for holding mass events”, it effectively established restrictions regarding the exercise of the freedom to impart information, guaranteed by article 19, paragraph 2, of the Covenant.

8.4The second issue is, therefore, whether in the present case such restrictions are justified under article 19, paragraph 3, of the Covenant, i.e. are provided by law and necessary: (a) for respect of the rights or reputations of others; and (b) for the protection of national security or of public order (ordre public), or of public health or morals. The Committee recalls that freedom of opinion and freedom of expression are indispensable conditions for the full development of the person, that they are essential for any society, and that they constitute the foundation stone for every free and democratic society. Any restrictions on their exercise must conform to the strict tests of necessity and proportionality and “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”.

8.5The Committee observes that, in the present case, the State party has argued that the provisions of the Law on Mass Events are aimed at creating the conditions for the exercise of the constitutional rights and freedoms of citizens and the protection of public safety and public order in the course of such mass events. The Committee also observes that the author has argued that article 23.34 of the Code on Administrative Offences does not apply to him, since it does not provide for administrative liability for mere participation in a mass event. Furthermore, since commemorations are not governed by Belarusian laws, the participants at the commemoration that took place on 30 October 2007 did not request authorization for the organization of a mass event from the competent authorities. In this regard, the Committee notes that the author and the State party disagree on whether the commemoration in question constituted a “mass event” that was subject to the “procedure for holding mass events” established by the Law on Mass Events, and whether article 23.34 of the Code on Administrative Offences proscribes mere participation in a mass event.

8.6Even if the sanctions imposed on the author were permitted under national law, the Committee notes that the State party has not advanced any argument as to why they were necessary for one of the legitimate purposes set out in article 19, paragraph 3, of the Covenant, and what dangers would have been created by the author’s publicly expressing his negative attitude to the Stalinist repressions in Soviet Russia. The Committee concludes that, in the absence of any pertinent explanations from the State party, the restrictions on the exercise of the author’s right to freedom of expression cannot be deemed necessary for the protection of national security or of public order (ordre public) or for respect for the rights or reputations of others. The Committee therefore finds that the author’s rights under article 19, paragraph 2, of the Covenant have been violated in the present case.

8.7The Committee further notes the author’s claim that his right to freedom of assembly under article 21 of the Covenant was violated, since he was arbitrarily prevented from holding a peaceful assembly. In this context, the Committee recalls that the rights and freedoms set forth in article 21 of the Covenant are not absolute but may be subject to limitations in certain situations. The second sentence of article 21 of the Covenant requires that no restrictions may be placed on the exercise of the right to peaceful assembly other than those imposed (1) in conformity with the law and (2) which are necessary in a democratic society in 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.

8.8In the present case, the Committee must consider whether the restrictions imposed on the author's 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 the State party’s assertion that the restrictions were in accordance with the law. However, the State party has not provided any information as to how, in practice, the commemoration of the victims of the Stalinist repressions 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. Accordingly, the Committee concludes that in the present case, the State party has also violated the author’s right under article 21 of the Covenant.

9.The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation by Belarus of article 19, paragraph 2, and article 21 of the Covenant.

10.Pursuant to article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the author with an effective remedy, including reimbursement of the value of the fine as at October 2007, any legal costs incurred by the author and compensation. The State party is also under an obligation to take steps to prevent similar violations in the future.

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 or not 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 in case a violation has been established, 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.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]