Violation of the freedom of assembly and expression by imposing a fine for participating in unsanctioned peaceful meetings

Facts

The author is a Belarusian national who is a retiree and actively follows public and political development in the country. In March 2017, she was brought before courts and convicted for violating the provisions on the law on mass events concerning the organization of a meeting and was charged with substantial fines for participating in peaceful rallies. The events she participated in were conducted peacefully, albeit unauthorized. The author claims a violation of her rights under articles 19 (right to freedom of expression) and 21 (right of peaceful assembly) of the Covenant, in conjunction with articles 2(2) and (3) (legal framework and right to an effective remedy) on the grounds that the authorities failed to explain why the restrictions imposed were in the interests given under the Covenant.

Admissibility

The State party submitted that the author had not appealed the decision of the district court under the supervisory procedure and therefore failed to exhaust all available domestic remedies. The author, however, claimed that the supervisory review was a discretionary process and therefore not an effective remedy. The Committee noted that the State party was required to show that there was a reasonable prospect that requests of supervisory review would provide an effective remedy, but as it failed to do so, the Committee considered that it was not precluded from examining the communication. While noting that the author’s claims under articles 19 and 21 were sufficiently substantiated and admissible, it noted that it was therefore not necessary to consider a further claim regarding the State party’s general obligations under article 2, or of the aforementioned articles in conjunction with article 2.

Merits

The Committee notes that there cannot be a blanket ban on all assemblies in the city in all public places except one specific location or on all streets in a city. No restriction to the right to assembly is permissible unless imposed in conformity with the law and is necessary, in the interests of national security, public safety, public order, protection of public health or morals, rights or freedoms of others. The Committee noted that domestic courts did not provide justification as to how the author’s protests violated these interests of the State party. In the absence of further explanation by the State party, the Committee concluded that it had violated the author’s rights under article 21. With regard to the sanction imposed on the author, it noted that sentencing the author to fines for peacefully participating, albeit in unauthorized rallies, raised doubts as to the necessity and proportionality of the measure under article 19. Therefore, it concluded that the author’s rights under article 19 had been violated as well.

Recommendations

The State Party, in furtherance of its obligation to provide the author with an effective remedy, is obligated, inter alia:

• (a) to provide adequate compensation to the author, including reimbursement of fines and legal costs incurred;
• (b) to prevent similar violations from occurring in the future; and
• (c) to revise its normative framework on public events, consistent with article 2(2) of the Covenant, with a view to ensuring the rights under articles 19 and 21 are enjoyed fully.

Implementation

Deadline: 27 January 2023

By: Smrithi Ramakrishnan