View Adopted: 2021.10.18
Author is a Belarussian national and a member of the Association of Journalists in Belarus. Photos of him online at a gathering to support solidarity with journalism emerged. Author claims he did not partake in the event, but merely approached acquaintances in attendance. He was detained for three days and fined for having held an unlawful public event. Courts dismissed his complaints without assessing whether the three day detention was justified. Author complains that his rights under the Convention were breached, pursuant to articles 9 (1) and (3); 14 (1); 19 (1) and (2) and 21.
The Committee recognised that the author failed to substantiate claims under articles 14(1) in regards to the courts having treated him arbitrarily. This component of the communication was thus deemed inadmissible. Nonetheless, the committee deemed the detention to be analogous to criminal law despite formally being administrative, and thus admissible under article 9 (3). The Committee further deemed claims under articles 9 (1), 19 and 21 of the Covenant to be substantiated and admissible.
The Committee found that the State Party failed to invoke any grounds under which they were authorised to restrict the freedom of expression, as required by article 19 (3). Further, the State Party failed to demonstrate that the restrictions were proportionate and the minimum restrictions required to achieve a permitted objective. As such, a violation of the author’s rights under article 19 (2) occurred. Further, the administrative detention was arbitrary and solely to impose a chilling effect, and thus itself a violation of article 9 (1). Additionally, a violation of article 9 (3) also occurred given that the detention was not authorised by a judge and was held for an extended and unnecessary duration of time before a hearing for a very minor offence. Finally, the restrictions were not so as to be necessary in a democratic society, in the interests of national security or public safety, and as such a breach of article 21 further occurred.
The State party is obligated, inter alia, to provide the author with adequate compensation, including to reimburse 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, in particular by reviewing its national legislation on public events and the implementation thereof in order to make it compatible with its obligations under article 2 (2) to adopt measures able to give effect to the rights recognized by articles 19 and 21.
The State Party is to communicate with the Committee within 180 days concerning the measures it has taken following the Committee’s decision.
By Justin Golden