View Adopted: 2021.10.19
Author is a Belarussian national. She engaged in a single-person picket expressing her opinion concerning election results which she believes to be rigged. No advance notice of the protest was granted to Belarussian authorities. Author was arrested and subsequently fined for having engaged in an unauthorised mass protest event. Belarusian courts ignored the applicant’s assertions of the Belarusian constitutional right to protest, and relied on police reports in upholding her conviction. Author alleges violations of article 2 (2), and (3), and article 19 of the Convention.
A portion of the communication was deemed to be admissible. The State Party emphasised that the author did not exhaust all domestic remedies by virtue of not having filed a complaint with the prosecutor’s office for review, following the passage of the judgement. The Committee has found, however, that such a procedure is ineffective and that the author’s having exhausted her right of appeal before domestic courts is sufficient for purposes of passing scrutiny under article 5 (2) (b) of the Optional Protocol. All other requirements of article 5 (2) were fulfilled. The author further contended that article 2 (2) of the Convention was violated in conjunction with article 19. The Committee emphasised that a violation of article 2 (2) in conjunction with another Convention provision would be redundant, and found this portion of the communication to be inadmissible. Nonetheless, the committee found the alleged violation of article 19 itself to be 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.
The Committee has advised the state party of its obligation to return the cost of the fine to the author, including any legal costs incurred by her. The State Party is further obliged to review and remedy its national legislation to bring it into compliance with articles 2 (2) and 19 of the Convention. 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