CCPR/C/132/D/2561/2015

GE.22-03554(E)

Human Rights Committee

Views adopted by the Committee under article 5 (4)

of the Optional Protocol, concerning communication

No. 2561/2015*, **

Communication submitted by:

Yury Voronezhtsev et al. (not represented by

counsel)

Alleged victims:

The authors

State party:

Belarus

Date of communication:

31 May 2014 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 4 February 2015 (not issued in

document form)

Date of adoption of Views:

23 July 2021

Subject matter:

Refusal to grant permission to hold a public

event

Procedural issue:

Exhaustion of domestic remedies

Substantive issues:

Freedom of expression; freedom of assembly;

effective remedy

Articles of the Covenant:

2 (2)–(3), 19 and 21

Articles of the Optional Protocol:

2, 3 and 5 (2) (b)

1.

The authors of the communication are Yury Voronezhtsev, Anatoly Poplavny and

Leonid Sudalenko, all nationals of Belarus born in 1955, 1958 and 1966 respectively. They

claim that the State party has violated their rights under articles 19 and 21, read in conjunction

with article 2 (2)–(3), of the Covenant. The Optional Protocol entered into force for the State

party on 30 December 1992. Mr. Voronezhtsev is submitting the communication on his own

behalf and also on behalf of Mr. Poplavny and Mr. Sudalenko. 1 The authors are not

represented by counsel.

* Adopted by the Committee at its 132nd session (28 June–23 July 2021).

** The following members of the Committee participated in the examination of the communication:

Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan, Mahjoub El Haiba, Kobauyah

Kpatcha Tchamdja, Carlos Gómez Martínez, Duncan Laki Muhumuza, Photini Pazartzis, Hernán

Quezada, Vasilka Sancin, José Manuel Santos Pais, Changrok Soh, Hélène Tigroudja, Imeru Tamerat

Yigezu, and Gentian Zyberi.

1 The power of attorney is attached.

United Nations

CCPR/C/132/D/2561/2015

International Covenant on

Civil and Political Rights

Distr.: General

10 March 2022

Original: English

CCPR/C/132/D/2561/2015

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Facts as submitted by the authors

2.1

On 16 July 2013, the authors filed an application to the Gomel City Executive

Committee with a request to hold, on 4 August 2013, a picket in one of the central streets of

Gomel to protest the persecution of human rights defender Aleksandr Belyatsky and other

political prisoners.

2.2

On 25 July 2013, the Gomel City Executive Committee denied the request, stating

that public events could be held at only one specific location in town and that, prior to the

event, organizers must sign contracts with the providers of services for the maintenance of

the public order and the provision of medical services during the event and for the cleaning

of the location thereafter.

2.3

On 30 July 2013, the authors submitted an appeal against the decision of the Gomel

City Executive Committee to the Central District Court of Gomel. On 11 September 2013,

the Court dismissed the appeal and confirmed the decision of the Executive Committee as

lawful.

2.4

On 19 September 2013, the authors filed a cassation appeal against the decision of the

Central District Court of Gomel to the Gomel Regional Court, which was rejected on 21

November 2013. On 1 March and 21 April 2014, the authors submitted applications for a

supervisory review of the court decisions from 11 September and 21 November 2013 to the

Chairs of the Gomel Regional Court and of the Supreme Court. The applications were

rejected on 11 April and 14 May 2014 respectively.

2.5

The authors submit that they have exhausted all available and effective domestic

remedies. Referring to the Committee’s jurisprudence,2 the authors also submit that they did

not file an application for supervisory review to a prosecutor’s office since doing so did not

constitute an effective domestic remedy.

Complaint

3.1

The authors claim to be victims of violations by the State party of their rights under

articles 19 and 21, read in conjunction with article 2 (2)–(3), of the Covenant.

3.2

The authors claim that their rights to freedom of expression and peaceful assembly,

protected under articles 19 and 21 of the Covenant, were violated because the authorities did

not clarify what was the legitimate aim of restricting their rights. They consider that the

prohibition of peaceful assembly by the local authorities was not necessary in the interests of

protecting national security, the public order, public health or the rights and freedoms of

others.

3.3

The authors submit that the domestic courts refused even to consider the violations of

the provisions of the Covenant, upon which they relied in their appeals. They claim that the

requirements imposed by the law regulating public events (i.e., the need to request permission

from the municipal authorities for the conduct of any public gathering 15 days in advance; to

organize public events in only one specific location in town; to conclude contracts with the

providers of services for the maintenance of the public order and the provision of medical

services during the event and for the cleaning of the location afterwards) are arbitrary and

unjustified under articles 19 and 21.

3.4

The authors refer to the Committee’s jurisprudence to recall that the Committee has

found it incompatible with the Covenant for a State party to give priority to the application

of its national law over its obligations under the Covenant.3 Furthermore, the authors argue

that Belarus has not submitted a notification under article 4 (3) of the Covenant that it is

availing itself of the right of derogation from certain rights owing to a public emergency.

3.5

The authors submit that the Committee’s previous request that the State party review

its legislation, in particular the law regulating public events, including its application, to

2 Tulzhenkova v. Belarus (CCPR/C/103/D/1838/2008), para. 5.2.

3 Tae Hoon Park v. Republic of Korea (CCPR/C/64/D/628/1995), para. 10.4.

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ensure its conformity with the requirements of article 21 of the Covenant, has not been

implemented.4

State party’s observations on admissibility and the merits

4.1

On 31 March 2015 and 18 July 2019, the State party provided its observations on the

admissibility and the merits of the communication. The State party submits that the authors

did not exhaust all available domestic remedies and that there are no legal grounds for

considering the communication, which should, therefore, be considered inadmissible. The

State party reiterates its view that the particularities of the national legal systems of States

parties should be taken into account when considering the admissibility of complaints. The

State party does not recognize the right of individuals to submit complaints on behalf of

others.

4.2

The State party submits that the Constitution of Belarus upholds the right of

individuals to complain to international bodies, if all domestic remedies have been exhausted.

The authors admit that they did not exhaust all available domestic remedies, therefore, the

State party must conclude that the communication is inadmissible. According to the State

party, the Committee’s interpretation of articles 2 and 5 of the Optional Protocol is arbitrary

and capricious. Therefore, the State party considers that all other actions of the Committee

regarding the present complaint are seen as encouraging actions of the authors that are not

prescribed by the Optional Protocol and violate the Constitution of Belarus. The State party

therefore ceases any further correspondence with the Committee regarding the

communication.

Authors’ comments on the State party’s observations

5.1

On 21 November 2019, the authors, responding to the State party’s observations,

submit that they exhausted all effective domestic remedies. One of the authors, Mr.

Voronezhtsev, obtained power of attorney from the other two authors to represent them

before the Committee. The Committee has the right to decide whether to register a complaint

or not. By not cooperating with the Committee, the State party ignores obligations that it has

accepted.

5.2

The authors submit that they did indeed file requests for supervisory review, both to

the Gomel Regional Court and to the Supreme Court of Belarus, which were rejected. The

supervisory review procedure has long been declared by the Committee as an ineffective

remedy that does not need to be exhausted. The Constitutional Court of Belarus does not

accept complaints from individuals.

Lack of cooperation by the State party

6.1

The Committee notes the State party’s assertion that there are no legal grounds for

considering the authors’ communication, insofar as it was registered in violation of the

provisions of the Optional Protocol; that the State party did not recognize the right of

individuals to submit complaints on behalf of others; and that the State party will not engage

in further correspondence regarding the communication.

6.2

The Committee recalls that, pursuant to rule 99 (b) of its rules of procedure,

individuals may be represented by a person of their choice, provided that the representative

is duly authorized. A communication submitted on behalf of an alleged victim may also be

accepted when it appears that the individual in question is unable to submit the

communication personally. The Committee observes that, 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 of the Optional Protocol).

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 thereof, to forward its Views to the State party and the individual (art.

5 (1) and (4)). It is incompatible with those obligations for a State party to take any action

4 Sekerko v. Belarus (CCPR/C/109/D/1851/2008), para. 11.

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that would prevent or frustrate the Committee in its consideration and examination of a

communication and in the expression of its Views.5 It is up to the Committee to determine

whether a communication should be registered. The Committee observes that, by failing to

accept the competence of the Committee to determine whether a communication should be

registered, and by terminating its cooperation with the Committee on a communication, the

State party is violating its obligations under article 1 of the Optional Protocol.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with article 97 of its rules of procedure, whether the communication is

admissible under the Optional Protocol.

7.2

The 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.

7.3

The Committee takes note of the State party’s statement that the authors failed to

exhaust all domestic remedies. The Committee notes the authors’ assertion that all available

and effective domestic remedies have been exhausted and that supervisory review

proceedings are not considered by the Committee as constituting an effective remedy.6 The

Committee notes that the authors filed two supervisory review complaints, on 1 March and

21 April 2014, and both of them were rejected (see para. 2.4 above). In this context, the

Committee recalls its jurisprudence, according to which filing requests for supervisory

review to the chair of a court directed against court decisions that have entered into force and

depend on the discretionary power of a judge constitute an extraordinary remedy and that the

State party must show that there is a reasonable prospect that such requests would provide an

effective remedy in the circumstances of the case.7 The Committee also notes that the State

party does not indicate which particular remedies were available to the authors and could

have been effective in their case. Accordingly, the Committee considers that it is not

precluded by the requirements of article 5 (2) (b) of the Optional Protocol from examining

the communication.

7.4

The Committee takes note of the authors’ submission that the State party violated their

rights under article 2 (2), read in conjunction with articles 19 and 21, of the Covenant. The

Committee reiterates that the provisions of article 2 cannot be invoked in a claim in a

communication under the Optional Protocol in conjunction with other provisions of the

Covenant, except 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 The Committee notes, however, that the authors have

already alleged a violation of their rights under articles 19 and 21, resulting from the

interpretation and application of the existing laws of the State party, and the Committee does

not consider examination of whether the State party has also violated its general obligations

under article 2 (2), read in conjunction with articles 19 and 21, of the Covenant, to be distinct

from examination of the violation of the authors’ rights under articles 19 and 21 of the

Covenant. The Committee therefore considers that the authors’ claims in that regard are

incompatible with article 2 of the Covenant and thus inadmissible under article 3 of the

Optional Protocol.

5 General comment No. 33 (2008), paras. 8 and 10; and, inter alia, Levinov v. Belarus

(CCPR/C/105/D/1867/2009, 1936, 1975, 1977–1981, 2010/2010), para. 8.2; and Poplavny v. Belarus

(CCPR/C/115/D/2019/2010), para. 6.2.

6 For example, Gerashchenko v. Belarus (CCPR/C/97/D/1537/2006), para. 6.3.

7 Gelazauskas v. Lithuania (CCPR/C/77/D/836/1998), para. 7.4; Sekerko v. Belarus

(CCPR/C/109/D/1851/2008), para. 8.3; and Schumilin v. Belarus (CCPR/C/105/D/1784/2008), para.

8.3.

8 Zhukovsky v. Belarus (CCPR/C/127/D/2724/2016), para. 6.4; Zhukovsky v. Belarus

(CCPR/C/127/D/2955/2017), para. 6.4; and Zhukovsky v. Belarus (CCPR/C/127/D/3067/2017), para.

6.6.

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7.5

The Committee has noted the authors’ claims under article 2 (3), read in conjunction

with articles 19 and 21, of the Covenant. In the absence of any further pertinent information

on file, however, the Committee considers that the authors have failed to sufficiently

substantiate these allegations for the purposes of admissibility. Accordingly, it declares this

part of the communication inadmissible under article 2 of the Optional Protocol (see para.

3.4 above).

7.6

The Committee considers that the authors’ remaining claims, raising issues under

articles 19 and 21 of the Covenant, have been sufficiently substantiated for the purposes of

admissibility and proceeds to its consideration of the merits.

Consideration of the merits

8.1

The Committee has considered the case in the light of all the information submitted

to it by the parties, in accordance with article 5 (1) of the Optional Protocol. The Committee

notes that, in failing to respond to a communication, or responding incompletely, a State that

is the object of a communication puts itself at a disadvantage, because the Committee is then

compelled to consider the communication in the absence of full information relating to the

communication.9 In the absence of any explanations from the State party in respect of the

merits of the communication, due weight must be given to the authors’ allegations, to the

extent that they have been sufficiently substantiated.

8.2

The Committee notes the authors’ claims that their rights to freedom of expression

and freedom of assembly have been restricted in violation of articles 19 and 21 of the

Covenant, as they were denied authorization to organize a peaceful action to protest the

persecution of Mr. Belyatsky, a human rights defender, and other political prisoners. It also

notes the authors’ claims that the authorities failed to explain why in their case the restriction

on holding a picket was necessary in the interests of protecting national security, public safety,

the public order, public health, morals or the rights and freedoms of others. The authors have

also claimed that the authorities could not substantiate why restricting the organization of a

peaceful assembly to just one specific location was a lawful and fair reason to ban pickets in

other locations.

8.3

The Committee notes the authors’ claim that their right to freedom of peaceful

assembly under article 21 of the Covenant was violated by the refusal of the municipal

authorities to allow the picket to be held. In its general comment No. 37 (2020), the

Committee stated that peaceful assemblies may in principle be conducted in all spaces to

which the public has access or should have access, such as public squares and streets.

Peaceful assemblies should not be relegated to remote areas where they cannot effectively

capture the attention of those who are being addressed, or the general public. As a general

rule, there can be no blanket ban on all assemblies in the capital city, in all public places

except one specific location within a city or outside the city centre, or on all the streets in a

city.10 The Committee also notes that the requirements for participants or organizers either to

arrange for or to contribute towards the costs of policing or security, medical assistance or

cleaning, or other public services associated with peaceful assemblies are generally not

compatible with article 21.11

8.4

In this context, the Committee recalls that the right to freedom of peaceful assembly,

as guaranteed under article 21 of the Covenant, is a fundamental human right that is essential

for public expression of an individual’s views and opinions and is indispensable in a

democratic society.12 This right entails the possibility of organizing and participating in a

peaceful assembly, including a stationary assembly (such as a picket) in a public location.13

The organizers of an assembly generally have the right to choose a location within sight and

sound of their target audience,14 and no restriction to this right is permissible unless it is: (a)

imposed in conformity with the law; and (b) necessary in a democratic society, in the interests

9 General comment No. 33 (2008), para. 10.

10 General comment No. 37 (2020), para. 55.

11 Ibid., para. 64.

12 General comment No. 34 (2011), para. 2.

13 General comment No. 37 (2020), para. 6.

14 Ibid., para. 22.

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of protecting national security or public safety, the public order, public health or morals or

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.15 The State party is thus under an obligation

to justify the limitation of the right protected by article 21 of the Covenant.16

8.5

In the present case, the Committee must consider whether the restrictions imposed on

the authors’ right to freedom of peaceful assembly are justified under any of the criteria set

out in article 21 of the Covenant. In the light of the information available on file, the

Committee notes that neither the municipal authorities nor the domestic courts have provided

any justification or explanation as to how, in practice, the authors’ protest would have

violated the interests of protecting national security or public safety, the public order, public

health or morals or the rights and freedoms of others, as set out in article 21 of the Covenant.

The State party has also failed to show that any alternative measures were taken to facilitate

the exercise of the authors’ rights under article 21.

8.6

The Committee notes that it has dealt with similar cases in respect of the same laws

and practices of the State party in a number of earlier communications. In the absence of any

explanation by the State party regarding the matter, the Committee concludes that, in the

present case, the State party has violated the authors’ rights under article 21 of the Covenant.

8.7

The Committee recalls its general comment No. 34 (2011), in which it stated, inter

alia, that freedom of expression is essential for any society and constitutes one of the

foundation stones for every free and democratic society.17 Article 19 (3) of the Covenant

allows for certain restrictions on the freedom of expression, including the freedom to impart

information and ideas, only to the extent that those restrictions are provided for by law and

only if they are necessary: (a) for respect of the rights or reputation of others; or (b) for the

protection of national security or public order, or of public health or morals. Finally, any

restriction on freedom of expression must not be overbroad in nature – that is, it must be the

least intrusive among the measures that might achieve the relevant protective function and

be proportionate to the interest to be protected.18 The Committee recalls that it is for the State

party to demonstrate that the restrictions on the authors’ rights under article 19 of the

Covenant were necessary and proportionate.19

8.8

The Committee notes that the refusal to authorize the requested pickets was based on

the law regulating public events, in accordance with which public events are permitted only

at one location in the city of Gomel. The Committee observes that limiting the holding of a

picket to certain predetermined locations does not appear to meet the standards of necessity

and proportionality set out in article 19 of the Covenant. The Committee further notes that

neither the State party nor the national courts have provided any explanation as to how such

restrictions were justified in the present case pursuant to the conditions of necessity and

proportionality referred to earlier. The Committee considers that, in the circumstances of the

case, the restrictions imposed on the authors, although based on domestic law, were not

justified for the purposes of article 19 (3) of the Covenant. In the absence of any explanation

by the State party, the Committee concludes that the rights of the authors under article 19 (2)

of the Covenant were violated.

9.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the facts before it disclose violations by the State party of the authors’ rights under articles

19 (2) and 21 of the Covenant.

10.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to

provide the authors 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 provide the authors with adequate compensation. The State party is

15 Ibid., para 36.

16 See, e.g., Poplavny v. Belarus (CCPR/C/115/D/2019/2010), para. 8.4.

17 General comment No. 34 (2011), para. 2.

18 Ibid., para. 34.

19 Androsenko v. Belarus (CCPR/C/116/D/2092/2011), para. 7.3.

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also under an obligation to take all steps necessary to prevent similar violations from

occurring in the future. To that end, the State party should revise its normative framework on

public events, in accordance with its obligation under article 2 (2), 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 and 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 the official languages of the State party.