Fine for author of a petition puts Belarus in violation of the right to freedom of expression

02.08.2013

Olechkevitch v. Belarus (1785/2008)

Summary

In March 2013, the Human Rights Committee was asked to consider whether Belarus had violated its obligations under the International Covenant on Civil and Political Rights by fining a person for distributing leaflets concerning a public meeting with a politician.

The communication was submitted by a Belarusian national under the Optional Protocol to the Covenant.

Background

 

Olechkevitch v. Belarus (1785/2008)

Summary

In March 2013, the Human Rights Committee was asked to consider whether Belarus had violated its obligations under the International Covenant on Civil and Political Rights by fining a person for distributing leaflets concerning a public meeting with a politician.

The communication was submitted by a Belarusian national under the Optional Protocol to the Covenant.

Background

On 12 February 2008, the author of the communication, Andrei Olechkevitch, was arrested while distributing leaflets that concerned a meeting with Alexander Milinkevich, a representative of the political opposition and a former presidential candidate. On the same day, the author was brought before the Gomel District Court, which decided that the author had breached article 23.24(1) of the Code of Administrative Offences by distributing information relating to an unauthorised meeting and fined him 1,050,000 Belarusian roubles (approximately $US500 at that time).

The author subsequently challenged the decision, contending that the Gomel District Court had failed to find the required circumstances of necessity for the purposes of article 19(3) of the Covenant that could justify a restriction on the author’s right to freedom of expression. On 29 February 2008, the Gomel Regional Court, upheld the decision of the Gomel District Court without reference to the author’s rights under the Covenant.

On 17 March 2008, the author filed this communication with the Committee under the Optional Protocol to the Covenant. The author claimed that Belarus had violated his right to freedom of expression, and specifically his right to impart information, under article 19(2) of the Covenant by imposing restrictions that he alleged were unjustified. As such, the author claimed that the restrictions imposed by Belarus were not necessary for the protection of national security, public order, public health or morals, or the rights and freedoms of others, as required by article 19(3) of the Covenant.

The Committee’s decision

In considering the complaint’s admissibility, the Committee noted that the author had not sought a supervisory review by the Supreme Court of the District and Regional Court decisions because he had considered such remedy to be effective. The Committee also observed Belarus’ contention that supervisory review had been effective in a number of instances. In the Committee’s view, however, Belarus had failed to show that the review procedure had been successfully applied in cases concerning freedom of expression. The Committee also recalled its jurisprudence according to which a procedure for the review of court decisions that have already taken effect does not constitute a remedy which must be exhausted for the purposes of article 5(2)(b) of the Optional Protocol. The Committee therefore concluded that it was not precluded from examining the author’s communication on this basis and declared it to be admissible.

On the merits, the Committee referred to its General Comment No. 34, emphasising that the right to freedom of opinion and expression was indispensable for the full development of the person and essential for a free and democratic society. Accordingly, the Committee concluded that all restrictions imposed on that freedom must meet the strict tests of necessity and proportionality. The Committee also noted that such restrictions must only be applied for their prescribed purpose and be directly related to the specific need on which they are predicated.

In the Committee’s view, it was up to Belarus to demonstrate the necessity of the restriction in question. Belarus also had a general obligation to provide a system that balanced the individual’s right to freedom of expression with the general interest in preserving public order in conformity with article 19 of the Covenant. As the Gomel Regional Court had refused to address the issue of whether the restriction on the author’s right to freedom of expression was necessary, and in default of Belarus demonstrating a pertinent justification under article 19(3), the Committee found that Belarus had failed to comply with its obligations under the Covenant.

In light of the above, the Committee concluded that Belarus had violated the author’s right to freedom of expression under article 19(2) of the Covenant. In accordance with article 2(3), Belarus was under an obligation to provide the author with an effective remedy, specifically by reimbursing the fine and any legal costs incurred by the author, as well as providing the author with adequate compensation. The Committee also recommended that Belarus review its legislation, and in particular the Public Events Act, to ensure that it conforms with the requirements of article 19 of the Covenant.

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

Kendra Daubner is an international lawyer, based in Paris.

Category:

Region
  • Europe
Topic
  • Freedom of expression, association and assembly
Mechanism
  • Human Rights Committee (CCPR)
Country
  • Belarus