Human Rights Committee

Communication No. 1790/2008

Views adopted by the Committee at its 105th session (9–27 July 2012)

Submitted by:Sergei Govsha, Viktor Syritsa and Viktor Mezyak (not represented by counsel)

Alleged victim s :The authors

State party:Belarus

Date of communication:31 March 2008 (initial submission)

Document references:Special Rapporteur’s rule 97 decision, transmitted to the State party on 29 May 2008 (not issued in document form)

Date of adoption of Views:27 July 2012

Subject matter:Denial of authorization to organize a peaceful meeting

Substantive issues: Freedom of expression; freedom of assembly; permissible restrictions

Procedural issue: Exhaustion of domestic remedies

Article s of the Covenant: 19 and 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 (105th session)

concerning

Communication No. 1790/2008 *

Submitted by:Sergei Govsha, Viktor Syritsa and Viktor Mezyak (not represented by counsel)

Alleged victim s :The authors

State party:Belarus

Date of communication:31 March 2008 (initial submission)

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

Meeting on 27 July 2012,

Having concluded its consideration of communication No. 1790/2008, submitted to the Human Rights Committee by Sergei Govsha, Viktor Syritsa and Viktor Mezyak 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 authors of the communication and the State party,

Adopts the following:

Views under article 5, paragraph 4, of the Optional Protocol

1.1The authors of the communication are Sergei Govsha, born in 1949, Viktor Syritsa, born in 1953, and Viktor Merzyak, born in 1960. They are all Belarusian nationals and currently reside in Baranovichi, Belarus. The authors claim to be victims of a violation by Belarus of their rights under articles 19 and 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 authors are not represented.

1.2On 30 July 2008, the State party requested the Committee to examine the admissibility of the communication separately from its merits, in accordance with rule 97, paragraph 3, of the Committee’s rules of procedure. On 4 September 2008, the Special Rapporteur on new communications and interim measures decided, on behalf of the Committee, to examine the admissibility of the communication together with the merits.

The facts as presented by the authors

2.1As required by article 5 of the Law on Mass Events in the Republic of Belarus (hereinafter the Law on Mass Events), the authors submitted, on 24 August 2006, an application to the Baranovichi City Executive Committee, informing it about their intention to hold on 10 September 2006 a meeting of Baranovichi residents on the subject: “For the free, independent and prosperous Belarus” and asking for an authorization to organize the meeting in question. The application included all the necessary information, as stipulated by the Law on Mass Events, namely, the date, venue, timing of the planned meeting, estimated number of participants, measures to be taken to guarantee public order and security, medical facilities and cleaning of the territory at the end of the meeting. As the organizers, they undertook an obligation to conclude contracts with the relevant service providers and to pay for their services.

2.2On 4 September 2006, the Baranovichi City Executive Committee denied the authorization to organize the meeting, on the ground that a meeting on a similar subject had already taken place on the Executive Committee’s premises on 15 March 2006. The authors submit that neither national law nor international treaties ratified by Belarus allow for such a limitation on the conduct of peaceful assembly.

2.3On 26 September 2006, the authors appealed the decision of the Baranovichi City Executive Committee of 4 September 2006 to the Court of the Baranovichi District and of Baranovichi City. In the appeal, they noted that under Presidential Decree No. 11 on Certain Measures for Improvement of the Procedure for the Conduct of Assemblies, Rallies, Street Processions, Marches and other Mass Events in the Republic of Belarus of 7 May 2001, an authorization for a meeting was to be granted when a respective application was accompanied by [copies of] certificates and contracts concluded with state service providers that were to provide for the security of participants at the mass event in question. The authors argued that the Presidential Decree did not contain any provisions that would allow the denial of an application containing a request to authorize a meeting on the ground that a meeting on the similar subject had already taken place in the past.

2.4On 23 October 2006, the appeal was denied by the Court of the Baranovichi District and of Baranovichi City. During the court hearing, a representative of the Baranovichi City Executive Committee explained that the denial of the authorization to organize the meeting in question was based on the following grounds, in addition to the one mentioned in the decision of 4 September 2006:

(a)The application submitted to the Baranovichi City Executive Committee did not comply with all the requirements pertinent to this type of application stipulated in the first paragraph of article 4 of the Law on Mass Events. Namely, the authors did not indicate in the application their respective years of birth, nationality and a purpose for the meeting;

(b)Contrary to the requirements of the fourth paragraph of article 6 of the Law on Mass Events and clause 4 of the decision of the Baranovichi City Executive Committee No. 4 dated 17 January 2006, the application submitted to the Baranovichi City Executive Committee was not accompanied by receipts confirming that services relating to the protection of public order and security, medical facilities and cleaning of the territory at the end of the meeting had been paid;

(c)Contrary to the requirements of the second paragraph of article 8 of the Law on Mass Events, an announcement about the venue, timing, subject matter and organizers of the meeting was published in the Intex-press newspaper of 31 August 2006 before an authorization to organize the said meeting had been obtained by its organizers.

The Court of the Baranovichi District and of Baranovichi City determined that, although the decision of the Baranovichi City Executive Committee did not mention all the reasons for which it had denied the authorization to organize the meeting, the said decision was lawful and that the authors’ appeal should, therefore, be denied as unfounded.

2.5On 10 November 2006, the authors submitted a cassation appeal to the Judicial Chamber for Civil Cases of the Brest Regional Court, challenging the decision of the Court of the Baranovichi District and of Baranovichi City. They argued that:

(a)The application to the Baranovichi City Executive Committee complied with all the requirements of article 2 and the fifth paragraph of article 5 of the Law on Mass Events;

(b)Under paragraph 3 of article 10 of the Law on Mass Events, all expenses relating to the protection of public order and security, medical services and cleaning of the territory at the end of the meeting were to be paid no later than 10 days after the meeting in question took place. The authors, therefore, requested the Judicial Chamber for Civil Cases of the Brest Regional Court to revoke the decision of the Baranovichi City Executive Committee No. 4 dated 17 January 2006, referred to by the Court of the Baranovichi District and of Baranovichi City, because it was contrary to the Law on Mass Events in requiring that all the expenses relating to the organization of the meeting be paid six days before it was supposed to take place;

(c)An article containing information about the submission of an application to the Executive Committee with the request to authorize the holding of the meeting on 10 September 2006, which was published by a correspondent of the Intex-press newspaper, did not constitute “an announcement” about the said meeting within the meaning of paragraph 2 of article 8 of the Law on Mass Events.

2.6On 4 December 2006, the Judicial Chamber for Civil Cases of the Brest Regional Court upheld the decision of the Court of the Baranovichi District and of Baranovichi City. It based its decision on the same grounds and arguments as those summarized in paragraph 2.4 (b) and (c) above. Under article 432 of the Civil Procedure Code, the ruling of the cassation court is final and becomes executory from the moment of its adoption.

2.7On 3 February 2007, the authors submitted a request to initiate a supervisory review of the earlier decisions to the Chairman of the Brest Regional Court. On 26 February 2007, the Chairman of that Court concluded that there were no grounds on which to initiate a supervisory review of the earlier decisions. A similar request for a supervisory review was submitted by the authors on 10 July 2007 to the Chairman of the Supreme Court, who denied it on 27 August 2007.

2.8The authors submit that they have exhausted all available domestic remedies in the attempt to exercise their right of peaceful assembly, guaranteed by article 35 of the Constitution.

The complaint

3.1The authors claim a violation of their right of peaceful assembly, guaranteed under article 21 of the Covenant. They submit that (a) the State party’s ban on the organization of the meeting in question amounts to an interference with their right of peaceful assembly; and (b) this interference constitutes an unjustified restriction of their right of peaceful assembly within the meaning of article 21 of the Covenant.

3.2Firstly, the authors argue that such restriction is not in conformity with the law. To give effect to the right guaranteed under article 21 of the Covenant, the State party passed the Law on Mass Events, which spelled out the procedure for the organization and conduct of mass events, and established some restrictions on the exercise of the right of peaceful assembly. Article 10 of the said Law prohibits the organization of mass events aimed at promoting the change of the constitutional order by force or disseminating propaganda of war or social, national, religious or race hostility. Furthermore, under paragraph five of article 6 of the Law on Mass Events, the head of the local executive and administrative body or his deputy has a right to change the date, venue and time of the meeting upon agreement with the organizer(s) for the purposes of, inter alia, securing the rights and freedoms of citizens, as well as public safety. The authors note that the grounds on the basis of which the authorization for the organization of their peaceful meeting was denied are not provided for by law.

3.3Secondly, the authors submit that the restriction did not pursue any of the legitimate aims provided for in article 21 of the Covenant. The meeting in question did not threaten the interest of national security or public safety, public order, public health, public morals or the protection of the rights and freedoms of others. The safety of the meeting was secured by the agreements with all relevant service providers: the police, the medical service, and the emergency situations department (see para. 2.1 above).

3.4Thirdly, the authors state that the restriction was not necessary in a democratic society for achieving the purposes set out in article 21 of the Covenant. Namely, they argue that:

(a)Despite the autonomous role and sphere of the application of article 21, it should be considered in the light of article 19 of the Covenant. They refer to the Committee’s jurisprudence, establishing that free dissemination of information and ideas not necessarily favourably received by the government or the majority of the population is a cornerstone of a democratic society. The authors respectively submit that the purpose of the meeting for which they had sought an authorization was to exchange views and information on the development of Belarus and its society;

(b)Any restrictions on the exercise of the right to freedom of expression must meet a strict test of justification. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument among those which might achieve the desired result; and they must be proportionate to the interest to be protected. States should ensure that reasons for the application of restrictive measures are provided. The authors claim, therefore, that the State party, through the decisions of the Baranovichi City Executive Committee and the courts, did not provide for sufficient arguments and reasons in order to justify its restriction of their right of peaceful assembly. They further submit that a ban on the organization of a peaceful assembly, on the sole ground that a meeting on a similar subject had already been organized by the city administration, was not necessary for the protection of the values set out in article 21 of the Covenant and amounted to an unjustified restriction of their right of peaceful assembly.

State party’s observations on admissibility

4.1On 30 July 2008, the State party challenged the admissibility of the communication, arguing that the authors did not exhaust all available domestic remedies, since their case has not been examined by the prosecutorial authorities under the supervisory review procedure. It submits that under article 436 of the Civil Procedure Code, decisions that have already become final, except for the rulings of the Presidium of the Supreme Court, can be reviewed under the supervisory review procedure upon the referral of a case in question to the court by the officials listed in article 439 of the Civil Procedure Code.

4.2The State party submits that according to article 439 of the Civil Procedure Code, the Brest Regional Prosecutor and the Prosecutor General and his or her deputies could also initiate a supervisory review of the authors’ case and notes that they did not avail themselves of these avenues for appeal.

Authors’ comments on the State party’s observations

5.1On 5 March 2009, the authors recall that under article 432 of the Civil Procedure Code, the ruling of the cassation court is final and becomes executory from the moment of its adoption. They add that an appeal submitted by an individual under the supervisory procedure does not automatically result in the review of the court decisions in question, which ultimately depends on the discretion of one of the officials listed in article 439 of the Civil Procedure Code on whether or not to initiate such a review.

5.2The authors further submit that, according the Committee’s jurisprudence, one is required to exhaust domestic remedies that are not only available but also effective and provide a reasonable prospect of success.In this regard, they note that the Committee has previously concluded that the supervisory review procedure constituted an extraordinary means of appeal that was dependent on the discretionary power of a judge or prosecutor and was not a remedy, which had to be exhausted for purposes of article 5, paragraph 2 (b), of the Optional Protocol.

5.3The authors add that despite their reservations about the effectiveness of the procedure, they requested a supervisory review on two occasions (to the Chairman of the Brest Regional Court and to the Chairman of the Supreme Court) and that their requests were rejected. Furthermore, on 3 February 2007, they submitted a request to initiate a supervisory review of the earlier decisions in their case to the Brest Regional Prosecutor. This request was, however, denied by the Brest Regional Prosecutor on 5 March 2007.

State party’s further observations on admissibility and merits

6.1On 7 September 2009, the State party recalled the facts of the case and stated that, according to the decision of the Court of the Baranovichi District and of Baranovichi City of 23 October 2006, the denial of the authorization to organize the meeting on 10 September 2006 was based on the following grounds:

(a)A meeting on a similar subject had already taken place on the Baranovichi City Executive Committee’s premises on 15 March 2006;

(b)Contrary to the requirements of article 5 of the Law on Mass Events and the decision of the Baranovichi City Executive Committee No. 4 dated 17 January 2006, the application submitted to the Executive Committee was not accompanied by receipts confirming that services relating to the protection of public order and security, medical facilities and cleaning of the territory at the end of the meeting had been paid;

(c)Contrary to the requirements of article 8 of the Law on Mass Events, an announcement about the venue, timing, subject matter and organizers of the meeting was published in the Intex-press newspaper before an authorization to organize the said meeting had been obtained by its organizers.

6.2The State party reiterates its earlier argument that the authors did not exhaust all available domestic remedies. It submits that according to article 439 of the Civil Procedure Code, the Prosecutor General and his or her deputies could also initiate a supervisory review of the decision of the Court of the Baranovichi District and of Baranovichi City. The State party adds that 427 rulings have been revoked and 51 have been revised through the supervisory review procedure in civil cases in 2006. In 2007, the numbers were 507 and 30, respectively, and in 2008, 410 and 36. The State party concludes, therefore, that the authors’ assertion in relation to the ineffectiveness of the supervisory review procedure is groundless.

Authors’ comments on the State party’s further observations

7.1On 24 December 2009, the authors submitted their comments on the State party’s further observations. The authors state that they are fully aware of the fact that the right of peaceful assembly is not an absolute right and that the exercise of this right can be restricted, provided that such restrictions are imposed in conformity with the law and are necessary for one of the legitimate purposes set out in article 21 of the Covenant. They add that such restrictions are indeed provided for in articles 23 and 35 of the Belarusian Constitution and article 10 of the Law on Mass Events.

7.2The authors argue that the actions of the State party’s authorities that effectively deprived them of their right of peaceful assembly are not in conformity with the criteria set out in article 21 of the Covenant for the following reasons:

(a)There are no provisions in the national law that would allow denying an application with the request to authorize a meeting on the ground that a meeting on a similar subject had already taken place in the past;

(b)The State party’s authorities and courts that examined the authors’ case did not provide sufficient arguments to suggest that the decision of the Baranovichi City Executive Committee to deny the authorization to organize the meeting on 10 September 2006 was prompted by the interests of national security, public safety and other values listed in article 21 of the Covenant;

(c)Such a ban on the organization of peaceful assembly is not necessary in a democratic society, the cornerstone of which is free dissemination of information and ideas not necessary favourably received by the government or the majority of the population.

7.3As to the State party’s challenge to the admissibility of the present communication on the ground of non-exhaustion of domestic remedies, the authors reiterate their arguments summarized in paragraphs 5.1–5.3 above. They respectively submit that they have exhausted all available and effective domestic remedies for the purposes of article 5, paragraph 2 (b), of the Optional Protocol.

Issues and proceedings before the Committee

Consideration of admissibility

8.1Before 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.

8.2The 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.

8.3With regard to the requirement laid down in article 5, paragraph 2 (b), of the Optional Protocol, the Committee takes note of the State party’s argument that the authors could have requested the Prosecutor General and his or her deputies to initiate a supervisory review of the decision of the Court of the Baranovichi District and of Baranovichi City, specifically noting that the latter had the authority to initiate such a review in relation to a ruling that has already become final. The Committee further notes the authors’ explanation that they had exhausted all available domestic remedies and had unsuccessfully requested a supervisory review from the Chairman of the Brest Regional Court, the Chairman of the Supreme Court and the Brest Regional Prosecutor. The Committee also notes the State party’s objections in this respect, and in particular the statistical figures provided in support thereof, intending to demonstrate that supervisory review was effective in a number of instances. However, the State party has not shown whether and in how many cases supervisory review procedures were applied successfully in cases concerning freedom of expression and freedom of association.

8.4The Committee recalls its previous jurisprudence, according to which the supervisory review procedure against court decisions which have entered into force constitutes an extraordinary means of appeal which is dependent on the discretionary power of a judge or prosecutor and is limited to issues of law only. In the circumstances and specifically noting that the authors have appealed to the Chairman of the Brest Regional Court, the Chairman of the Supreme Court and the Brest Regional Prosecutor with the request to initiate a supervisory review of the decision of the Court of the Baranovichi District and of Baranovichi City, and that all these appeals were rejected, the Committee considers that it is not precluded, for purposes of admissibility, by article 5, paragraph 2 (b), of the Optional Protocol, from examining the communication.

8.5The Committee considers that the authors’ claims under articles 19 and 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

9.1The 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, paragraph 1, of the Optional Protocol.

9.2The Committee notes the authors’ claim that their rights to freedom of expression under article 19 and to freedom of assembly under article 21 of the Covenant were violated, since they were denied an authorization to organize a peaceful assembly aimed at the exchange of views and information on the development of Belarus and its society. In this context, the Committee recalls that the rights and freedoms set forth in articles 19 and 21 of the Covenant are not absolute but may be subject to restrictions in certain situations. In this regard, the Committee notes that since the State party imposed a procedure for organizing mass events, it effectively established restrictions on the exercise of the rights to freedom of expression and assembly and that, therefore, it must consider whether the respective restrictions imposed on the authors’ rights in the present communication are justified under the criteria set out in article 19, paragraph 3, and the second sentence of article 21 of the Covenant.

9.3The Committee recalls that for the restrictions on the right to freedom of expression to be justified under article 19, paragraph 3, of the Covenant, they shall be 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. It also recalls that 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 (a) in conformity with the law and (b) 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.

9.4In the present case, the Committee notes that article 19 of the Covenant is applicable because the restrictions on the authors’ right to freedom of assembly were closely linked to the subject matter of the meeting for which they had sought an authorization. The Committee further notes the State party’s assertion that the restrictions were in accordance with the Law on Mass Events and the decision of the Baranovichi City Executive Committee No. 4. General comment No. 34, although referring to article 19 of the Covenant, also provides guidance with regard to elements of article 21 of the Covenant. The Committee observes that the State party has failed to demonstrate, despite having been given an opportunity to do so, why the restrictions imposed on the authors’ rights of freedom of expression and assembly, even if based on a law and a municipal decision, were necessary, for one of the legitimate purposes of article 19, paragraph 3, and the second sentence of article 21 of the Covenant. Accordingly, the Committee concludes that the facts as submitted reveal a violation, by the State party, of the authors’ rights under articles 19 and 21 of the Covenant.

10.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 articles 19 and 21 of the Covenant.

11.In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including reimbursement of the legal costs incurred by them and compensation. The State party is also under an obligation to take steps to prevent similar violations in the future. In this connection, the State party should review its legislation, in particular the Law on Mass Events, and its application, to ensure its conformity with the requirements of articles 19 and 21 of the Covenant.

12.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 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.

[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.]