ICCPR Case Digest

CCPR/C/127/D/3067/2017

Communication

3067/2017

Submission: 2016.11.23

View Adopted: 2019.11.08

Konstantin Zhukovsky v. Belarus (Legality)

Substantive Issues
  • Exhaustion of domestic remedies
  • Freedom to impart information
  • Principle of legality
Relevant Articles
  • Article 14.3 (b)
  • Article 14.3 (d)
  • Article 19
  • Article 2.2
Full Text

Facts

The author was a Belarus national who worked as a freelance journalist, collecting information in Belarus and distrubting it on the internet. Throughout 2015 he was brought before the national courts and convicted of illegal production and distribution of mass media products under the Code of Administrative offences, in relation to six separate incidents:

  • An interview of local residents of Kalinkovichy on their views concerning national symbols of Belarus;
  • An interview of local residents of Korma regarding their living conditions and lack of access to water;
  • An interview of employees of a milk factor located near Buda-Koshelevsky on their living conditions;
  • An interview of local residents of Zhlobin regarding problems at the local metallurgical factory;
  • An interview of employees of the Mazyr distillery regarding their problems;
  • An interview of employees of the Red Cross in the twol of Gomel, regarding the registration and distribution of refugees in Belarus.

The author claimed that Belarus violated his rights under Article 19 of the Covenant as by filming videos and disseminating them, he was exercising his right to obtain and impart information without undermining public order, public interest, health, or the rights and freedoms of others.

In addition, the author also claimed that Belarus failed to comply with its obligations under article 14 (3)(b) and (d) when it denied his right to legal assistance of his own choosing and when it failed to give him adequate time and facilities for the preparation of his defence and communication with counsel of his own choosing.

Admissibility

  • The Committee concluded that the author had failed to sufficiently substantiate his claims under Article 14(3)(b) [right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing] on the basis that he was not in detention at the time of their application, and he had not provided information that he was precluded from preparing for his court hearing with Counsel of his choosing. On this basis, the Committee declarated it inadmissible.
  • With respect to the authors claim under Article 14(3)(d) [inter alia, to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing], the Committee noted the authors assertion that the Procedural Executive Code of Administrative Offences restricts the right to legal assistance in administrative cases only to close relatives or licensed attorneys. However, the Committee noted that in absence of any other pertinent information presented, this claim is also insufficiently substantiated and inadmissible.
  • With respect to the authors claim under Article 19, the Committee recalled that Article 2 cannot be invoked as an autonomous claim, and may only be invokved as a violation where it is the proximate cause of a distinct violation of the Covenant directing affecting individual rights. The Committee therefore declared the portion of the claim as relates to Article 2(2) as inadmissible as is incompatible with the Covenant.
  • However, the Committee considered that the remaining claim under Article 19 (as not relating to Article 2(2)) to be sufficiently substantiated and therefore admissible.

Merits

For the portion of the complaint that was admissible (Article 19(2)), the Committee found a violation on the basis that the penalties imposed by the State on the author for the dissemination of recordings were not able to be justified as a limitation - i.e. were neither necessary or proportionate, even if based in law.

Recommendations

The Committee recommended that the State provide the author with an effective remedy to make full reparation for the individual's rights violated, including appropriate steps to reimburse the author and provide him with adequate compensation.

Implementation

The Committee requested that the State party provide information regarding the implementation of the Committee's views within 180 days. The Committee's views were adopted on 8 November 2019 and published for general distribution on 10 December 2019.

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