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1. The author of the
communication is Mr. Vladimir Velichkin, a Belarusian national born in 1960.
He claims to be victim of violations of Belarus of his rights under article
19, paragraph 2, of the Covenant. He is not represented by counsel.
FACTUAL BACKGROUND
2.1 The author claims to be a human rights activist from Brest (Belarus). On
23 November 2000, he requested the authorization of the Executive Committee
of the City of Brest to organize a meeting with 10 participants, to
celebrate the 52nd anniversary of the signature of the Universal Declaration
of Human Rights (UDHR), on 10 December 2000, near the "Pushkin" Public
Library in the Centre of Brest.
2.2 On 4 December 2000, the Chief of the Executive Committee of Brest
rejected his request for such a meeting in the centre of Brest, but
authorized a meeting at the "Stroitel" Stadium. The Committee based its
decision on a previous Executive Committee's decision of 12 October 1998,
pursuant to which all meetings had to take place in the Stadium, and that
the Stadium was declared to be a "permanent place" for the organization of
meetings and assemblies.
2.3 At 11 a.m. on 10 December 2000 (a Sunday), the author stood in front of
the CUM (Central Universal Store) in the centre of Brest and began to
distribute leaflets of the UDHR, to "remind the citizens of this date and of
their rights". Next to him stood four other individuals who carried posters
and who also, according to the author, distributed the text of the
Declaration. The author contends that he acted in conformity with article 34
of the Belarusian Constitution. [FN1]
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[FN1] Article 34 of the Constitution reads as follow:
"(1) Citizens of the Republic of Belarus shall be guaranteed the right to
receive, store, and disseminate complete, reliable, and timely information
on the activities of state bodies and public associations, on political,
economic, and international life, and on the state of the environment.
(2) State bodies, public associations, and officials shall afford citizens
of the Republic of Belarus an opportunity to familiarize themselves with
material that affects their rights and legitimate interests".
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2.4 At around 12.30, a policeman allegedly approached the author, presented
himself as a district inspector, and asked him to stop distributing leaflets
and to leave. The author refused, invoking article 34 of the Constitution.
Shortly afterwards, another man approached him, and after identifying
himself as the Chief of the Leninsky District Police Department in Brest,
invited the author to stop distributing leaflets. He explained that the
author was holding a non-authorized meeting ("picket"), and asked him to
leave.
2.5 As the author again refused to leave, a police car arrived and he was
asked by the policemen to climb into the car. He obeyed and at around 12.50
he was brought to the Leninsky District Police Department, where he was
charged with two administrative offences under articles 166 and 167 of the
Administrative Offences Code (breach of the order for organization and
conduct of assemblies, meetings, street parades and demonstrations, and
insubordination to a lawful instruction or request of a police officer while
he executes his duty to protect the public order). He was placed in a
temporary detention until 11 a.m the following day, 11 December 2000, when
he was brought to the Leninsky District Court of Brest. According to the
author, the examination of his case started at 2 p.m, but due to procedural
violations (allegedly, he was not informed of his rights by the police upon
arrest), the judge ordered his release and returned the indictment act to
the Police Department. According to the author, he was thus unlawfully
deprived of liberty for 25 hours.
2.6 On 15 January 2001, the Leninsky District Court of Brest decided to fine
the author the equal of 20 minimum monthly salaries (72 000 BLR), on charges
of "conduct of a meeting on a place non authorized by the Brest City
Executive Council", in violation of the provisions of article 11, part 1, of
the Law on Assemblies, Meetings, Street Processions, Demonstrations and
Pickets (Law on Assemblies).
2.7 The author claims that his acts did not constitute an administrative
offence. He invokes article 2 of the Law on Assemblies, which gives the
definition of picket. Accordingly, a picket constitute "the expression in
public, made by a citizen or a group of citizens, of a socio-political,
collective, individual or other interests, or the contestation, including by
hunger strike, in relation to all type of problems, with or without use of
placards, posters or other means". He affirms that on 10 December 2000, he
did not express his personal opinions on any issue but simply disseminated
53 copies of the UDHR. According to him, Belarusian law does not provide for
any authorization by the authorities in order to disseminate information
contained in printed papers having printing identification data, such as the
UDHR leaflets he was distributing.
2.8 Mr. Velichkin further explains that as he did not violate the Law on
Assemblies, he considers the police requests to have him stop distributing
leaflets and to leave the scene to be unlawful. In addition, according to
him, article 166 of the Administrative Offences Code engages the
responsibility only for insubordination against a lawful police instruction
or request.
2.9 On an unspecified date, the author appealed against the decision of the
Leninsky District Court of 15 January 2001 to the Brest Regional Court. On
13 February 2001, the Brest Regional Court upheld the District Court's
decision to fine the author. The author then appealed to the Supreme Court
(on an unspecified date). On 3 April 2001, the Supreme Court rejected his
claim.
THE COMPLAINT
3. The author claims that he is a victim of his right to disseminate
information, in violation of article 19, paragraph 2, of the Covenant and
article 34 of the Belarusian Constitution.
STATE PARTY'S OBSERVATIONS AND AUTHOR'S COMMENTS
4.1 In a Note verbale of 6 February 2002, the State party observes that the
Supreme Court of Belarus has proceeded to a verification of the author's
case. It recalls that in November 2000, the author had requested an
authorization of the Brest Executive Council to organize a meeting near the
Public Library, to commemorate the 52nd anniversary of the signature of the
UDHR. On 4 December 2000, the Brest City Council authorized the author to
organize this meeting in the Stroitel Stadium; this decision was based on a
previous decision of the City Council (of 15 December 1998).
4.2 Notwithstanding, on 10 December 2000, in violation of the City
administration's decision, Mr. Velichkin unlawfully organized a meeting
("picket") on one of the Brest main streets (prospect Masherova). He refused
to comply with numerous police demands to interrupt the meeting. These
circumstances were confirmed in court by witnesses' testimonies and the
photographs of the meeting.
4.3 In light of the above, the domestic courts correctly assessed that the
author's acts revealed the elements of the administrative infraction of
articles 167-1 (breach of the order for organization and conduct of
assemblies, meetings, street parades and demonstrations) and 166
(insubordination to a lawful instruction or request of a police officer
while he executes his duty to protect the public order) of the Code of
Administrative Offences (CAO).
5.1 By letter of 13 March 2002, the author challenges the State party's
contention that he organized an illegal meeting and had unsubordinated to
police instructions. He reiterates that his acts did not disclose the
elements of the administrative infraction under article 167-1 CAO and
invokes the definition of meeting ("picket") pursuant to article 2 of the
Law on Assemblies.
5.2 The author explains that he was not the organizer of a meeting held near
the Central Universal Store in Brest on 10 December 2000. He contends that
when he was refused the right to organize the meeting near the Pushkin
Public Library, he renounced the idea, thus complying with the decision of
the Brest Executive Council; he explains that he decided not to organize a
picket at Stroitel Stadium, because it would not « meet the object set" due
to the absence of visitors at the site. Notwithstanding, on 10 December
2000, wishing to remind his co-citizens of the commemorative date of the
signature of the UDHR and of their rights, at 11 a.m., he distributed
leaflets with the UDHR text to passers by. In doing so, he did not commit
any breach of the public order nor did he create any threat to the health or
life to others. Finally, he reiterates his allegation that he is a victim of
violations of his right to impart information, as protected by article 19,
paragraph 2, of the Covenant.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION ON ADMISSIBILITY
6.1 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.
6.2 The Committee notes that the same matter is not being examined under any
other international procedure of investigation and settlement, and that
available domestic remedies have been exhausted. It considers that the
conditions set forth in paragraphs 2 (a) and (b) of article 5 of the
Optional Protocol have been met.
6.3 The Committee considers that the author has sufficiently substantiated
his claim under article 19, paragraph 2, for purposes of admissibility. It
concludes that the communication is admissible and proceeds to its
examination on the merits.
CONSIDERATION ON THE MERITS
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it, as required under
article 5, paragraph 1, of the Optional Protocol.
7.2 The author has claimed that his right to freedom to impart information
under article 19, paragraph 2, was violated, since when he distributed the
text of the UDHR in the centre of Brest on 10 December 2000, he was arrested
and subsequently fined to the equal of 20 minimum monthly wages. The State
party has replied that the author violated the provisions of the
Administrative Offences Code, because the Executive Council of Brest had
designated another venue for the conduct of his meeting, that the author had
gone on to organize the meeting in the City centre and had refused to
conform to police instructions. From the material before the Committee, it
transpires that the author's activities were qualified by the courts as
"participation in an unauthorised meeting" and not as "imparting of
information". In the Committee's opinion, the above action of the
authorities, irrespective of its legal qualification, amounts to a de facto
limitation of the author's rights under article 19, paragraph 2, of the
Covenant.
7.3 The Committee recalls that article 19 of the Covenant allows
restrictions only as provided by law and necessary (a) for respect of the
rights and reputation of others; and (b) for the protection of national
security or public order (ordre public), or of public health or morals. It
further recalls that the right to freedom of expression is of paramount
importance in any democratic society, and any restrictions on the exercise
of this right must meet a strict test of justification. [FN2] In the present
case, however, the State party has not invoked any specific ground on which
the restrictions imposed on the author's activity which, whether or not it
took place within the context of a meeting, it is uncontested did not pose a
threat to public order, would be necessary within the meaning of article 19,
paragraph 3, of the Covenant.
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[FN2] See, inter alia, Communication No. 574/1994, Kim vs. the Republic of
Korea, Views dated 3 November 1998 and Communication No. 628/1995, Park vs.
the Republic of Korea, Views dated 20 October 1998, and Communication No.
780/1997, Vladimir Laptsevich v. Belarus, Views adopted on 20 March 2000,
paragraph 8.2.
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8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the Covenant, is of the view that the facts before it
disclose a violation of article 19, paragraph 2, of the Covenant.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide Mr. Velichkin with an effective
remedy, including compensation amounting to a sum not less than the present
value of the fine and any legal costs paid by the author. The State party is
under an obligation to take measures to prevent similar violations in the
future.
10. 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 in case a violation has been established, the Committee
wishes to receive from the State party, within 90 days, information about
the measures taken to give effect to the Committee's Views.
__________________________
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.
The text of an individual opinion signed by Committee member Ms. Ruth
Wedgwood is appended to the present document.
APPENDIX
INDIVIDUAL OPINION BY COMMITTEE MEMBER MS. RUTH WEDGWOOD
The city authorities of Brest, in Belarus, arrested a young human rights
advocate, Vladimir Velichkin, for conducting a prohibited "meeting" outside
a store. The "meeting" consisted of distributing copies of the Universal
Declaration of Human Rights to fellow citizens passing by on the sidewalk.
Four other persons also distributed copies, and carried posters.
The Committee has found that this action by Belarus was an unreasonable
interference with the author's "freedom of expression" and his right to
"impart information," protected by article 19(2) of the International
Covenant on Civil and Political Rights.
But in addition, there was a further violation of article 21 of the
Covenant, namely, the author's right of peaceful assembly. A state can
impose reasonable restrictions on public assemblies in the interests of
public safety and public order, and to protect the rights and freedoms of
others. Belarus has not attempted to offer any explanation for the Brest
authorities' flat ban on all public protests and gatherings, even of a
modest size, in areas within the city center.
The author had originally requested permission to gather outside the
confines of the Pushkin Public Library. The city of Brest instead has
insisted that all protests, demonstrations, and picketing must be confined
to a remote sports stadium. Needless to say, a state has no legitimate
interest in banning public gatherings merely to limit their influence.
[signed] Ms. Ruth Wedgwood
Done 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. |
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