CCPR/C/139/D/3095/2018

GE.24-01139 (E) 120224 120224

Human Rights Committee

Views adopted by the Committee under article 5 (4)

of the Optional Protocol, concerning communication

No. 3095/2018*, **

Communication submitted by:

Pavel Katorzhevsky (represented by counsel,

Leonid Sudalenko)

Alleged victim:

The author

State party:

Belarus

Date of communication:

7 June 2017 (initial submission)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State party on 8 January 2018 (not issued in

document form)

Date of adoption of Views:

13 October 2023

Subject matter:

Conviction for distribution of extremist materials

for sharing an article criticizing authorities

Procedural issue:

Exhaustion of domestic remedies

Substantive issues:

Freedom of expression

Articles of the Covenant:

2 (2) and (3) and 19 (2) and (3)

Articles of the Optional Protocol:

2 and 5 (2) (b)

1.1

The author of the communication is Pavel Katorzhevsky, a Belarusian national born

in 1995. He claims that the State party has violated his rights under article 2 (2) and (3), read

in conjunction with article 19 (2) and (3), of the Covenant. The Optional Protocol entered

into force for the State party on 30 December 1992. The author is represented by counsel.

1.2

The present communication was submitted for consideration before the State party’s

denunciation of the Optional Protocol became effective on 8 February 2023. In accordance

with article 12 (2) of the Optional Protocol and the Committee’s previous case law, the State

* Adopted by the Committee at its 139th session (9 October–3 November 2023).

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

Tania María Abdo Rocholl, Farid Ahmadov, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo,

Yvonne Donders, Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran,

Bacre Waly Ndiaye, Hernán Quezada Cabrera, José Manuel Santos Pais, Soh Changrok, Tijana

Šurlan, Kobauyah Tchamdja Kpatcha, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

United Nations

CCPR/C/139/D/3095/2018

International Covenant on

Civil and Political Rights

Distr.: General

12 February 2024

Original: English

CCPR/C/139/D/3095/2018

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GE.24-01139

party continues to be subject to the application of the Optional Protocol in respect of the

present communication.1

Facts as submitted by the author

2.1

On 26 November 2016, the author shared a link on his profile page on the social

network VKontakte to an article entitled “Idiocy and fake honour to the victims of war in a

capital city gymnasium”,

2 dated 26 November 2016, which was posted on

“vk.com/rdbelarus”, a public group on VKontakte. On 2 March 2017, the post came to the

attention of the police, who drew up a report on the discovery of extremist material. On

13 March 2017, the author was summoned to the police station in Gomel and charged with

dissemination of informational products included in the State List of Extremist Materials –

an administrative offence under article 17.11 (2) of the Code of Administrative Offences of

Belarus.3 On 2 May 2017, the Central District Court of Gomel found Mr. Katorzhevsky guilty

and fined him 230 roubles (around 110 euros).

2.2

The Court based its decision on the following grounds: “Mr. Katorzhevsky

disseminated informational products included in the State List of Extremist Materials, as

informational products placed on vk.com/rdbelarus were declared extremist materials by a

decision of the District Court of Minsk of 10 November 2016 (in force as from 22 November

2016)”.

2.3

On 10 May 2017 the author challenged the decision, requesting an individualized

assessment from the Court of the article that had been shared with regard to its potential threat

to national security or public order, or to public health or morals. On 2 June 2017, Gomel

Regional Court rejected the appeal.

2.4

The author submits that he did not attempt to apply for supervisory review to the

General Prosecutor’s Office of Belarus or the Supreme Court of Belarus since he does not

consider it to be an effective remedy, and refers to the Committee’s jurisprudence on the

matter.4 The author contends that he has exhausted all available and effective domestic

remedies.

Complaint

3.1

The author submits that the authorities failed to justify the limitation of his freedom

to distribute information as provided by article 19 (3) of the Covenant. He argues that even

if the sanction imposed on him was permitted under domestic law, the State party did not

show that in his particular case it was necessary and in line with any of the legitimate aims

set out in article 19 (3). The author refers to article 27 of the Vienna Convention on the Law

of Treaties, in which it is established that a State party may not invoke the provisions of its

internal law as a justification for its failure to fulfil treaty obligations. The author argues that

he was fined for disseminating an article which did not pose a threat to national security,

public order or the rights and freedoms of others.

3.2

The author also claims a violation of his rights under article 2 (2) and (3), read in

conjunction with article 19, of the Covenant.

State party’s observations on admissibility and the merits

4.1

On 5 March 2018, the State party submitted its observations, noting that the author

had not exhausted all the available domestic remedies as required under article 2 of the

Optional Protocol. He did not lodge a request for supervisory review with the Chair of Gomel

Regional Court under article 12.11 (1) and (2) of the Procedural and Executive Code of

1 See, for example, Sextus v. Trinidad and Tobago (CCPR/C/72/D/818/1998), para. 10; Lobban v.

Jamaica (CCPR/C/80/D/797/1998), para. 11; and Shchiryakova et al. v. Belarus

(CCPR/C/137/D/2911/2016, 3081/2017, 3137/2018 and 3150/2018).

2 See https://revbel.org/2016/11/marazm-i-pokazushnaya-pochest-pogibshim-v-vojne-v-stolichnoj-

gimnazii/ (in Russian).

3 Law No. 194-Z of 21 April 2003, as amended by Law No. 358-Z of 20 April 2016.

4 The author referred to Schumilin v. Belarus (CCPR/C/105/D/1784/2008).

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Administrative Offences of Belarus5 or a request to the prosecutor’s office under article

12.11 (1) of the same Code. In addition, the State party contends that the communication

should be declared inadmissible under article 3 of the Optional Protocol as the author abused

his right to petition.

4.2

The State party also argues that the restrictive measures do not contravene the

Covenant and emphasizes that article 19 (3) of the Covenant expressly allows for restrictions

of the right to freedom of expression for respect of the rights or reputations of others and for

the protection of national security or of public order, or of public health or morals.

4.3

The State party referred to the Law on Countering Extremism,6 which defines the legal

and organizational foundations for countering extremism with the aim of protecting the rights,

freedoms and lawful interests of individuals, the constitutional order, and the territorial

integrity of Belarus, ensuring the safety of society and the security of the State.7 The State

party indicated that, according to article 14 (1) of that Law, “the dissemination of

informational products which call for extremist activities or promote such activities, and their

production, publishing, storage and transportation for the purpose of dissemination, are

prohibited”. The State party also stated that, according to article 14 (3) of the Law,

“informational products are declared extremist materials by the decision of a court delivered

following a request from the State authority responsible for countering extremism”, and that,

according to article 14 (5) of the Law, “the court’s decision to declare the informational

products as extremist materials can be appealed against in courts”. After coming into force,

a copy of the court’s decision is forwarded to the Ministry of Information to include the

informational products concerned in the State List of Extremist Materials (under art. 14 (6)

of the Law). The State List of Extremist Materials (containing the names only of the extremist

materials concerned) must be published on the official website of the Ministry of Information,

as well as in the Respublika, Narodnaya Gazeta and Zvyazda newspapers, whereas “the

content (substance) of the informational products declared to be extremist materials is not to

be disclosed” (under art. 14 (6) of the Law).

4.4

The State party further reiterated the reasoning behind the national court’s decision of

2 May 2017, and stated that by the decision of the Central District Court of Minsk of

10 November 2016, in force as of 22 November 2016, the informational products published

on the Internet on vk.com had been declared extremist materials and included in the State

List of Extremist Materials. Therefore, the prohibition imposed on the author had been

decided in accordance with the law.

Author’s comments on the State party’s observations on admissibility and the merits

5.1

On 5 June 2018, the author commented on the State party’s observations. He reiterated

that he did not lodge applications for supervisory review because he did not consider that

such applications constituted an effective legal remedy. He submitted that an effective

remedy was one that could provide the author with compensation and offer him a reasonable

prospect of redress. The author also referred to the jurisprudence of the Committee8 in that

regard, as well as to the position of the European Court of Human Rights,9 which are both of

the view that applications for supervisory review constitute extraordinary remedies, the use

of which depends on discretionary powers, and that they therefore do not constitute effective

remedies.

5.2

The author maintained that the State party had violated his right to freedom of

expression, enshrined in article 19 (2) of the Covenant. Regarding the State party’s argument

that the limitation of the author’s rights was allowed under article 19 of the Covenant, the

author referred to the Committee’s standard that any restriction must be proportionate,

5 Law No. 194-Z of 20 December 2006.

6 Law No. 203-Z of 4 January 2007. The State party referred to the preamble and art. 14 of the Law on

Countering Extremism as amended by Law No. 435-Z of 26 October 2012 and Law No. 358-Z of

20 April 2016.

7 As stated in the preamble to the Law.

8 The author referred to Iskiyaev v. Uzbekistan (CCPR/C/95/D/1418/2005).

9 The author referred to European Court of Human Rights, Tumilovich v. Russia (application

No. 47033/99), decision of 22 June 1999.

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provided for by law, and necessary to achieve the specific goals it pursues.10 The author

contends that the State party has failed to demonstrate why the restrictions on his right to

express his opinion were necessary for even one legitimate purpose under article 19 (3) of

the Covenant.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

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

decide, in accordance with rule 97 of its rules of procedure, whether the case is admissible

under the Optional Protocol.

6.2

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.

6.3

The Committee notes the State party’s challenge to the admissibility of the

communication on the grounds of failure to exhaust domestic remedies, namely the author’s

failure to apply to the Chair of Gomel Regional Court and to the prosecutor’s office for

supervisory review of the decision delivered by Gomel Regional Court on 2 June 2017. The

Committee recalls its jurisprudence, according to which an application for supervisory

review of court decisions that have entered into force and depend on the discretionary power

either of a judge or a prosecutor does not constitute a remedy which must be exhausted for

the purposes of article 5 (2) (b) of the Optional Protocol.11 Accordingly, it considers that it is

not precluded by article 5 (2) (b) of the Optional Protocol from examining this part of the

communication.

6.4

The Committee further notes the author’s claim that his rights under article 19, read

in conjunction with article 2 (2), of the Covenant, were violated. The Committee also

considers that the provisions of article 2 cannot be invoked as 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.12 The Committee notes, however, that the author has already alleged a violation of

his rights under article 19, resulting from the interpretation and application of the existing

laws of the State party, and the Committee does not consider that an examination of whether

the State party also violated its general obligations under article 2 (2) of the Covenant, read

in conjunction with article 19, is distinct from the examination of the violation of the author’s

rights under article 19. The Committee therefore considers that the author’s claims in this

regard are incompatible with article 2 of the Covenant, and inadmissible under article 3 of

the Optional Protocol.

6.5

The Committee considers that the author has sufficiently substantiated his claim under

article 19 of the Covenant for the purposes of admissibility. Accordingly, it declares this part

of the claim admissible and proceeds to examine it on its merits.

Consideration of the merits

7.1

The Committee has considered the communication in the light of all the information

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

7.2

The Committee notes the author’s allegations that the authorities violated his rights

under article 19 of the Covenant, as he was convicted and fined for sharing a link on the

10 The author referred to Park v. Republic of Korea (CCPR/C/64/D/628/1995), in which the Committee

disagreed with the State party prioritizing national legislation over rights enshrined in the Covenant.

11 Romanchik v. Belarus (CCPR/C/135/D/3240/2018), para. 6.3; Belenky v. Belarus

(CCPR/C/135/D/2860/2016), para. 8.3; Lozenko v. Belarus (CCPR/C/112/D/1929/2010), para. 6.3;

and Sudalenko v. Belarus (CCPR/C/115/D/2016/2010), para. 7.3.

12 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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social media network VKontakte to an article entitled “Idiocy and fake honour to the victims

of war in a capital city gymnasium”.13 The author claims that the State party violated his right

to freedom of expression as it failed to justify the limitation of his freedom to distribute

information as provided by article 19 (3) of the Covenant. The State party argued that the

restrictive measures did not contravene the Covenant since they were applied in accordance

with the Law on Countering Extremism.

7.3

The Committee notes that the issue before it is to determine whether the restrictions

imposed were justified under article 19 (3) of the Covenant. In that respect, it recalls its

general comment No. 34 (2011), in which it stated, inter alia, that freedom of expression is

essential for any society and a foundation stone for every free and democratic society.14 It

notes that article 19 (3) of the Covenant allows restrictions on freedom of expression,

including on the freedom to impart information and ideas, only to the extent that they are

provided by law and only if they are necessary (a) for respect of the rights and reputations of

others; or (b) for the protection of national security or public order (ordre public), 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 which might achieve the

relevant protective function and proportionate to the interest to be protected. 15 The

Committee recalls that the onus is on the State party to demonstrate that the restrictions on

the author’s rights under article 19 of the Covenant were necessary and proportionate.16

7.4

The Committee notes the State party’s submission that in the present case, the

restrictions of the right to freedom of expression for the protection of national security or of

public order were governed by the Law on Countering Extremism (see para. 4.3 above). The

Committee observes that according to article 1 of the Law, “extremist materials are

informational products (printed, audio, audiovisual and other informational messages and/or

materials, posters, banners and other visual agitation, and advertising products) intended for

public use, distributed publicly or distributed in any way, containing calls for extremist

activities, or promoting such activities, and recognized as extremist materials by a court

decision”. The Committee also notes that when convicting the author, the national courts

referred to the decision of the Central District Court of Minsk of 10 November 2016 by which

all “informational products” (which include posts to websites and social media platforms)

published on vk.com/rdbelarus17 were declared to be extremist materials and were included

in the State List of Extremist Materials.18

7.5

The Committee notes that the author posted a link to the article, which had been

published on 26 November 2016, after the court decision finding all the informational

products on the website to be extremist materials had been delivered. The Committee also

notes that on 10 November 2016, the Central District Court of Minsk did not examine the

article shared by the author to assess and determine its nature. The Committee observes that,

as acknowledged by the State party (see para. 4.4 above), all the informational products (posts)

that were published on the mentioned websites before and after the delivery of the court’s

decision of 10 November 2016 are automatically declared extremist materials without an

individualized assessment of each informational product (post).

7.6

The Committee recalls that any restrictions on the operation of websites, blogs or any

other Internet-based, electronic or other such information dissemination systems, including

13 See https://revbel.org/2016/11/marazm-i-pokazushnaya-pochest-pogibshim-v-vojne-v-stolichnoj-

gimnazii/.

14 See para. 2.

15 See the Committee’s general comment No. 34 (2011), para. 34.

16 See, for example, Androsenko v. Belarus (CCPR/C/116/D/2092/2011), para. 7.3.

17 Where “rd” stands for “revolutionary action” in Belarusian, with the name of the public group being

“Revolutionary Action”. The public group on VKontakte represents the external website of

“Revolutionary Action”, the latter being located at https://revbel.org. According to the information in

the public group on VKontakte and on the external website, it is “an organization uniting members of

the anarchist movement”. The article, shared by the author, draws attention to the formalism of a

school event held in honour of veterans of the Second World War and to a lack of reforms carried out

by the local authorities.

18 State List of Extremist Materials, Ministry of Information of Belarus, available at

http://mininform.gov.by/documents/respublikanskiy-spisok-ekstremistskikh-materialov/.

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systems to support such communication, such as Internet service providers or search engines,

are only permissible to the extent that they are compatible with article 19 (3) of the

Covenant.19 Permissible restrictions generally should be content-specific; generic bans on the

operation of certain sites and systems are not compatible with paragraph 3.20

7.7

The Committee observes that in his appeal to Gomel Regional Court, the author

requested the authorities to carry out an individualized assessment of the article entitled

“Idiocy and fake honour to the victims of war in a capital city gymnasium”, relying on article

19 (3) of the Covenant. However, the appeal court merely acknowledged and upheld the

decision of the Central District Court of Minsk of 10 November 2016. The Committee

reiterates that even if the sanctions imposed on the author were permitted under domestic law,

the State party must show that they were necessary for one of the legitimate aims set out in

article 19 (3).21 The Committee further observes that the State party has failed to invoke any

specific grounds related to the author to support the necessity of the restrictions imposed on

him, as is required under article 19 (3) of the Covenant.22

7.8

In particular, the Committee notes that the court decisions made no individualized

assessment of the author’s case and have not provided any explanation as to why the

conviction and fine imposed on him were necessary and the least intrusive among the

measures which might achieve the relevant protective function and were proportionate to the

interest to be protected. It therefore considers that the author’s right to freedom of expression

under article 19 (2) of the Covenant has been violated.

8.

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

the facts before it disclose a violation of the author’s rights under article 19 (2) of the

Covenant.

9.

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

provide the author 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 to take appropriate steps to reimburse the fine and any legal costs incurred by the

author. The State party is also under an obligation to take all steps necessary to prevent similar

violations from occurring in the future.

10.

On becoming a party to the Optional Protocol, the State party recognized the

competence of the Committee to determine whether there had been a violation of the

Covenant. The present communication was submitted for consideration before the State

party’s denunciation of the Optional Protocol became effective on 8 February 2023. Since,

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.

19 See the Committee’s general comment No. 34 (2011), para. 43.

20 Ibid.

21 Laptsevich v. Belarus (CCPR/C/68/D/780/1997), para. 8.3.

22 Zalesskaya v. Belarus (CCPR/C/101/D/1604/2007), para. 10.5.