Belarus’ refusal to register human rights organisation in violation of the right to freedom of association

01.04.2015

Human Rights Committee determines that Belarus' refusal to register a human rights organisation is in violation of the right to freedom of association under the International Covenant on Civil and Political Rights. 

Summary

In October 2014, the Human Rights Committee was asked to consider whether Belarus had violated its obligations under the International Covenant on Civil and Political Rights in connection with the refusal of an application to register a human rights organisation.

The communication was submitted by a Belarusian national under the Optional Protocol to the Covenant on behalf of himself and 20 other Belarusian citizens.

Background

On 24 June 2011, the author, Mr Sergey Kalyakin, together with two of the other alleged victims, submitted an application to the Belarusian Ministry of Justice for registration of a non-governmental human rights association, “For Fair Elections”.

On 21 July 2011, the Ministry of Justice denied registration on the grounds that the application was not in compliance with the requirements of the Law on Public Associations. In particular, the Ministry of Justice claimed that: (i) it had not been provided with a list of the founders of the association, (ii) the record of its constituent assembly had not been signed by the chair, and (iii) it had concerns regarding a letter of guarantee confirming the allocation of office space to the association.

The author and the alleged victims filed a complaint against the decision by the Ministry of Justice at the Supreme Court. In particular, they claimed that the constituent assembly had been held in compliance with the Law on Public Associations and that they had submitted all the necessary documents to register the association.

On 21 September 2011, the Supreme Court rejected the claim on similar grounds to those relied on by the Ministry of Justice.

On 23 April 2012, the author submitted a request to initiate a supervisory review of the Supreme Court’s decision. On 5 March 2013, the Prosecutor General’s Office dismissed the author’s request.

On 15 November 2011, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that Belarus had violated his and the other alleged victims’ right to freedom of association (under article 22 of the Covenant), both alone and in conjunction with Belarus’ obligation to adopt the necessary legislation to give effect to Covenant rights (under article 2(2) of the Covenant).

The Committee’s decision

Regarding the admissibility of the author’s claims, the Committee noted the author’s claim that Belarus had violated article 22(2), read in conjunction with article 2(2) of the Covenant. The Committee considered that the author had not sufficiently substantiated this claim for the purposes of admissibility and therefore concluded that it was inadmissible under article 2 of the Optional Protocol. The Committee found, however, that the author’s claims under article 22 of the Covenant alone were admissible.

On the merits, the Committee recalled that, in accordance with article 22(2) of the Covenant, any restriction on the right to freedom of association must be (i) provided for by law, (ii) imposed for one of the purposes set out in article 22(2); and (iii) “necessary in a democratic society” for achieving one of those purposes. The reference to a “democratic society” in the context of article 22 indicated that the existence and operation of associations, including those that peacefully promote ideas that may not be favourably viewed by the government or the majority of the population, was a cornerstone of any society.

The Committee noted that the registration of the association had been denied on the basis of a number of stated reasons. Those reasons were to be assessed in the light of the consequences that arose for the author and the alleged victims, as well as their association. The Committee noted that, even though such reasons were prescribed by the relevant law, Belarus had not attempted to advance any argument as to why they were necessary 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. The Committee also noted that the denial of registration had led directly to the operation of the association being unlawful and directly precluded the author and the alleged victims from enjoying their right to freedom of association.

In the light of the above, the Committee concluded that Belarus had violated the rights of the author and the other alleged victims under article 22 of the Covenant.

In accordance with article 2(3)(a) of the Covenant, the Committee observed that Belarus was under an obligation to provide the author and the other alleged victims with an effective remedy, including reconsideration of the application based on criteria compliant with the requirements of article 22. The Committee found that Belarus was also under an obligation to prevent similar violations in the future.

Belarus must now submit its written response within six months of the Committee’s decision, including information on the action taken in the light of the Committee’s recommendations, and ensure that the Committee’s decision is published widely.

Sam Hunter Jones is an international lawyer, based in London.