CCPR/C/109/D/1851/2008

International Covenant on Civil and Political Rights

2 December 2013

Human Rights Committee

Communication No. 1851/2008

Views adopted by the Committee at its 109th session (14 October–1 November 2013)

Submitted by: Vladimir Sekerko (not represented by counsel)

Alleged victim: The author

State party: Belarus

Date of communications: 17 September 2008 (initial submissions)

Document references: Special Rapporteur’s rule 97 decision, transmitted to the State party on 15 December 2008 (not issued in document form)

Date of adoption of Views: 28 October 2013

Subject matter: Denial of authorization to organize a peaceful meeting

Substantive issues: Right of peaceful assembly; permissible restrictions

Procedural issue: Exhaustion of domestic remedies

Article of the Covenant: 21

Articles of the Optional Protocol: 5, para. 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 (109th session)

concerning

Communication No. 1851/2008*

Submitted by: Vladimir Sekerko (not represented by counsel)

Alleged victim: The author

State party: Belarus

Date of communication: 17 September 2008 (initial submission)

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

Meeting on 28 October 2013,

Having concluded its consideration of communication No. 1851/2008, submitted to the Human Rights Committee by Vladimir Sekerko 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 author of the communication and the State party,

Adopts the following:

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

1.1 The author of the communication is Vladimir Sekerko, a Belarusian national, born in 1947. He claims to be a victim of a violation by Belarus of his rights under article 21 of the International Covenant on Civil and Political Rights (hereinafter “the Covenant�?). The author is not represented.

1.2 On 16 February 2009, 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 6 March 2009, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to examine the admissibility of the communication together with its merits.

The facts as submitted by the author

2.1 The author, together with a group of Gomel city residents (hereinafter “the other applicants�?), sought the authorization of the Gomel City Executive Committee to hold mass events in different parts of the city to protest against the abolition of social benefits to people in need. The actions planned by the author were to take place in areas in front of the Palace of Culture of the Vipra Private Unitary Enterprise and the Rechitskiy City Mall. The application was submitted as required by article 5 of the Law on Mass Events in the Republic of Belarus of 30 December 1997 (hereinafter “the Law on Mass Events�?).

2.2 On 5 December 2007 the Gomel City Executive Committee denied authorization to hold the mass events, noting that the application did not contain the required details related to the planning and conduct of the events, in breach of article 5 of the Law on Mass Events.

2.3 The author and the other applicants complained about the decision of the Gomel City Executive Committee of 5 December 2007 to the Tsentralny District Court of Gomel. In his complaint, the author pointed out that he had specified the required details concerning the planning and conduct of the event in a written undertaking appended to his application to the Gomel City Executive Committee. Therefore, the Gomel City Executive Committee had restricted his right of peaceful assembly without due justification.

2.4 On 1 February 2008, the Tsentralny District Court of Gomel dismissed the author and the other applicants’ complaints, noting that the application contained only the undertaking to duly organize the events, whereas the required details related to their planning and conduct were missing therefrom. However, the author argues that the underlying reason for the court decision was that he and the other applicants sought to conduct the events in locations not authorized for meeting purposes, as, pursuant to decision No. 318 of the Gomel Executive Committee of 11 April 2006, a single location was designated for holding mass events in a city of 500,000 inhabitants. The author and the other applicants appealed to the Gomel Regional Court against the decision of the district court.

2.5 On 20 March 2008, the Gomel Regional Court upheld the decision of the Tsentralny District Court of Gomel. Under article 432 of the Belarusian Code of Civil Procedure, the ruling of the appeal court is final and enters into force at the moment of its adoption. According to the ruling of the Gomel Regional Court, the Gomel City Executive Committee denied authorization to the author and the other applicants on the ground that the written undertaking appended to their application to hold events did not contain details related to their planning and conduct, which is a mandatory, essential condition for granting authorizations.

2.6 The author contends that he has exhausted all available and effective domestic remedies.

The complaint

3.1 The author claims a violation of his right of peaceful assembly, guaranteed under article 21 of the Covenant. His rights were restricted on the ground that his application to hold a mass event was incomplete and that he intended to conduct one of the events in an unauthorized location. In his opinion, the national authorities, including the domestic courts, did not attempt to justify the restrictions or provide arguments as to the necessity of such restrictions 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.

3.2 The author maintains that the courts failed to assess the decision of the Gomel Executive Committee with regard to the Covenant’s provisions. Pursuant to articles 26 and 27 of the Vienna Convention on the Law of Treaties of 1969, Belarus is bound by the Covenant, should enact it in good faith and may not invoke the provisions of its domestic law as justification for its failure to do so. According to article 15 of the Belarusian Law on International Treaties, universally recognized principles of international law and provisions of international treaties, in force for Belarus, form an integral part of domestic law. The author stresses that the domestic courts restricted his right of peaceful assembly on the ground that he had intended to conduct an event in an unauthorized location, in breach of a by-law. This restriction contradicts the essence of article 21 of the Covenant and the grounds for restriction specified therein.

State party’s observations on admissibility

4.1 On 16 February 2009, the State party challenged the admissibility of the communication, arguing that the author had failed to exhaust all available domestic remedies, since his case had not been examined under the supervisory review proceedings through the Prosecutor’s Office.

4.2 The State party further submits that the author has not asked the Chairperson of the Gomel Regional Court or the Chairperson of the Supreme Court of Belarus to initiate a supervisory review of the rulings of the Tsentralny District Court of Gomel and the Gomel Regional Court, in accordance with article 439 of the Code of Civil Procedure. Therefore, the author did not avail himself of all available remedies and there is no reason to believe that those remedies would have been unavailable or ineffective.

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

5. On 5 March 2009, the author recalled that under article 5, paragraph 2 (b), of the Optional Protocol to the Covenant, individuals should exhaust all available domestic remedies before lodging a complaint with the Committee. He notes that the Committee has previously established that, in States parties where the initiation of supervisory review proceedings was dependent on the discretionary power of a judge or prosecutor, the remedies to be exhausted were limited to the cassation appeal. He did not request the Gomel Regional Court or the Supreme Court to initiate supervisory review proceedings as that request would not lead to a re-examination of the case. According to the Committee’s jurisprudence, domestic remedies should be both available and effective. By lodging his cassation appeal, the author claims that he has exhausted available domestic remedies. The decision of the lower court became final and entered into force at the moment of the adoption of the appeal court’s ruling.

State party’s observations on the merits

6.1 On 3 August 2009, the State party submitted its observations on the merits of the case. It reiterates the facts of the case and states that the Gomel City Executive Committee dismissed the author and the other applicants’ complaints as the written undertaking enclosed with their applications to hold mass events did not contain all details required for the planning and conduct of such events. Under article 10 of the Law on Mass Events, this information is a mandatory and essential condition for granting authorization to hold a mass event. Furthermore, the courts established that the author and the other applicants had failed to indicate the measures to be taken to guarantee public order and safety, medical care and cleaning of the area during and subsequent to the event, and to submit proofs of payment of the expenses related to the provision of these services. In addition, some of the applicants sought authorization to conduct pickets in unauthorized locations. Under such circumstances, which are not conducive to ensuring public order and public safety, the Tsentralny District Court of Gomel rejected the author and the other applicants’ claims by a substantiated decision of 1 February 2008.

6.2 The organization and conduct of mass events is governed by the Law on Mass Events of 30 December 1997. The law aims to create conditions for the realization of constitutional rights and freedoms of citizens, and the protection of public order and public safety when such events are carried out in public spaces. According to the law, “freedom of mass activities not violating the legal order and rights of other citizens of the Republic of Belarus is guaranteed by the State�?.

6.3 The right of peaceful assembly is enshrined in article 21 of the Covenant. Belarus ratified the Covenant and incorporated its provisions, including articles 19 and 21, into domestic law. In particular, the right to freedom of thought and belief and the right to freedom of expression are guaranteed under article 33 of the Constitution. Article 35 of the Constitution guarantees the right to hold assemblies, meetings, street processions, demonstrations and pickets, provided that they do not violate the law and order or breach the rights of other citizens. At the same time, under article 23 of the Constitution, no restrictions may be placed on rights and freedoms of citizens other than those imposed in conformity with the law, in the interests of national security, public safety, the protection of public health or morals or the protection of the rights and freedoms of others.

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

7.1 On 5 October 2009, the author pointed out that the right protected under article 21 of the Covenant can be restricted only under the requirements listed therein. However, restrictions imposed by States parties on the exercise of the right of peaceful assembly shall not undermine the essence of that right. States parties shall ascertain that the limitations imposed are justified by one of the legitimate aims listed in article 21 of the Covenant.

7.2 The author notes that, even assuming that the written undertaking enclosed with his application to hold a mass event did not provide all necessary information required under article 5 of the Law on Mass Events and that he intended to hold a peaceful event in a location which was not authorized for meeting purposes, the authorities had an opportunity to establish, in consultation with him, measures to protect his right. Pursuant to article 6 of the Law on Mass Events, the head or the deputy head of the local executive committee is entitled to change the date, time and location of the event, upon agreement with the organizers, to ensure the protection of the rights and freedoms of others, public safety and normal functioning of transport and organizations. The author reiterates that the Gomel City Executive Committee denied his request without any justification under article 21 of the Covenant. Therefore, his right of peaceful assembly was breached.

7.3 He adds that, on 2 April 2008, the Gomel City Executive Committee adopted decision No. 299 on mass events in Gomel, imposing a number of restrictions that apply to organizers of peaceful events other than city authorities. Such restrictions put in jeopardy the right of peaceful assembly itself. Thus, the authorities restrict events to a single venue, i.e., an area in front of the Palace of Culture of the Vipra Private Unitary Enterprise on the city outskirts. Furthermore, the decision requires that the organizers conclude agreements with the police, medical services and cleaning agencies prior to the conduct of any public event. Decision No. 299 replaced decision No. 318 of the Gomel City Executive Committee, which also restricted the right of assembly.

7.4 The author maintains that, in the light of the above, the decision of the Gomel City Executive Committee of 2 April 2008 undermines the essence of the right provided for in article 21 of the Covenant and that he has been deprived of the right of peaceful assembly.

Issues and proceedings before the Committee

Consideration of admissibility

8.1 Before 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 communication is admissible under the Optional Protocol to the Covenant.

8.2 The 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.

8.3 The Committee takes note of the State party’s argument that the author could have requested the Prosecutor’s Office, as well as the Chairperson of the Gomel Regional Court or the Chairperson of the Supreme Court, to initiate a supervisory review of the decisions of the Tsentralny District Court of Gomel and the Gomel Regional Court. However, the State party has not substantiated that such review procedures were in fact available and effective. In particular, it has not shown whether and in how many cases supervisory review procedures were applied successfully in cases concerning the right to peaceful assembly. The Committee recalls its previous jurisprudence, according to which the State party’s supervisory review procedures against court decisions that have entered into force do not constitute a remedy that has to be exhausted for purposes of article 5, paragraph 2 (b), of the Optional Protocol. In the circumstances, the Committee considers that it is not precluded by article 5, paragraph 2 (b), of the Optional Protocol, from examining the communication.

8.4 The Committee considers that the author has sufficiently substantiated his claim under article 21 of the Covenant, for purposes of admissibility. Accordingly, it declares this claim admissible and proceeds to its examination on the merits.

Consideration of the merits

9.1 The 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.

9.2 The issue before the Committee is whether the denial of the required authorization of mass events that the author had planned with a group of Gomel city residents constitutes a violation of his rights under article 21 of the Covenant.

9.3 The Committee recalls that the right of peaceful assembly, as guaranteed under article 21 of the Covenant, is a fundamental human right, which is essential for public expression of one’s views and opinions and indispensable in a democratic society. This right entails the possibility to organize and participate in a peaceful assembly, including the right to a stationary assembly in a public location (a picket). No restrictions to this right are permissible unless (a) imposed in conformity with the law and (b) they 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.

9.4 The Committee notes that, since the State party imposed a procedure for organizing mass events and denied the author’s application for authorization of the planned mass events, it established a restriction on the exercise of the right to freedom of assembly. Therefore it must consider whether the respective restrictions imposed on the author’s rights in the present communication are justified under the criteria set out in the second sentence of article 21 of the Covenant. The Committee notes that if the State imposes a restriction, it is up to the State party to show that it is necessary for the aims set out in this provision.

9.5 The Committee has taken note of the State party’s explanation that the author was denied authorization to hold mass events as he had failed to provide all necessary information, as required by the Law on Mass Events, including with regard to measures to be taken to guarantee security and medical care to the participants of the events and to ensure that the area remained clean during and subsequent to the gathering. It has also noted the State party’s statement that the missing information was not conducive to ensuring public order and public safety and that the law at issue is aimed at creating conditions for the realization of citizens’ constitutional rights and freedoms and the protection of public safety and public order when such events are held in public spaces.

9.6 The Committee recalls that, 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 aim of facilitating the right, rather than seeking unnecessary or disproportionate limitations to it. Any restriction on the exercise of the right of peaceful assembly must conform to the strict tests of necessity and proportionality.

9.7 The Committee notes that the State party has failed to demonstrate that the denial of authorization in the author’s case, even if based on a law, was necessary, for one of the legitimate purposes of the second sentence of article 21 of the Covenant. In particular, the State party has not specified which required details related to the planning and conduct of the mass events might be missing, the absence of which would pose a threat to public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Neither has the State party demonstrated that, in the author’s case, these purposes could only be achieved by the denial of the planned mass events. Since the State party has failed to show that the denial of authorization met the criteria set out in article 21 of the Covenant, the Committee concludes that the facts as submitted reveal a violation, by the State party, of the author’s rights under article 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 State party has violated the author’s rights under article 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 author with an effective remedy, including reimbursement of the legal costs incurred by the author, as well as adequate compensation. The State party is also under an obligation to take steps to prevent similar violations in the future. In this connection, the Committee reiterates that State party should review its legislation, in particular, the Law on Mass Events of 30 December 1997, as it has been applied in the present case, with a view to ensuring that the right under article 21 of the Covenant may be fully enjoyed in the State party.

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.]