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1.1 The author of the
communication is Mr. Leonid Svetik, a Belarusian national born in 1965. He
claims to be a victim of violations by Belarus of his rights under articles
14, paragraph 3 (g), and 19, of the Covenant. The author is not represented
by counsel.
1.2 The Optional Protocol entered into force for the State party on 30
December 1992.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author - a teacher in a high school - is a representative of the NGO
- Belarusian Helsinki Committee (BHC) in the city of Krichev (Belarus). On
24 March 1999, the national newspaper "Narodnaya Volya" (People's Will)
published a declaration, criticizing the policy of the authorities in power.
The declaration was written and signed by representatives of hundreds of
Belarusian regional political and non-governmental organizations (NGO),
including the author. The latter observes that the declaration contained an
appeal not to take part in the forthcoming local elections as a protest
against the electoral law which the signatories believed was incompatible
with "the Belarusian Constitution and the international norms".
2.2 On 12 April 1999, the author was called to the Krichev Prosecution
Office to explain his signature on the above-mentioned open letter. He
states that only two of the four NGOs in Krichev who also signed the appeal
were called to the Prosecutor's Office, since they were considered as
belonging to the political opposition.
2.3 On 26 April 1999, the author was summoned to appear before the Krichev
District Court. The judge informed him that his signature on the open letter
amounted to an offence under article 167, part 3, [FN1] of the Belarusian
Code on Administrative Offences (CAO) and ordered him to pay a fine of 1
million Belarusian rubles, the equivalent of two minimum salaries. [FN2]
According to the author, the judge was not impartial and threatened to
sentence him to the maximum penalty - 10 minimum monthly salaries, as well
as to report him to his employer if he did not confess his guilt.
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[FN1] Article 167-3, CAO. (Violation of electoral legislation) Article 167-3
was introduced by the Law of 5 December 1989 -Collection of Laws BSSR, 1989,
no. 35, art. 386; edition of the Law of 30 March 1994 - of the Supreme Court
of Belarus, 1994, no. 14, p. 190.
[FN2] A copy of the decision has been provided by the author. The Court
concluded that on 24 March 1999, "representatives of regional political and
non-governmental organizations published a statement in the "Narodnaya Volya"
newspaper, which contained public appeals to boycott the forthcoming local
elections for Counsels of deputies. The representative of the Krichev
Section of the Belarusian Helsinki Committee, L.V. Svetik, agreed with the
text of the appeal and put his signature on it".
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2.4 The author appealed the decision to the Mogilev Regional Court, arguing
that it was illegal and unfair, as the finding of his guilt was based on his
confession, which was obtained under duress. On 2 June 1999, the President
of the Regional Court dismissed his appeal, stating that his offence was
confirmed and had not been contested by him in court. He added that guilt
was also proven by his explanations and by his signature on the article in
the Narodnaya Volya newspaper. The author's argument relating to the use of
pressure by the District Court judge was found groundless, as it was not
corroborated by any other element in the file. The Krichev District Court's
ruling was therefore affirmed.
2.5 The author complained to the Supreme Court. On 24 December 1999, the
First Deputy President of the Supreme Court dismissed the appeal. He held
that the claim was unsubstantiated, that the offence was proven, and that
the author's action was correctly qualified as constituting an offence
within the meaning of article 167-3 of the CAO.
THE CLAIM
3. The author claims to be a victim of violations of his rights under
articles 14, paragraph 3 (g), and 19, of the Covenant.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 By Note verbale of 9 November 2000, the State party explains that at the
time of the author's sentence, the then applicable legislation provided an
administrative sanction for public appeals calling for the boycott of
elections (article 167-3, CAO). The impugned newspaper article of 24 March
1999 contained such an appeal; this was not contested by the author in
court. According to the State party, the legislation was fully in conformity
with article 19, paragraph 3, of the Covenant, which stipulates that the
exercise of the rights protected by article 19, paragraph 2, of the Covenant
is subject to limitations, which must be provided by law.
4.2 According to the State party, the author's allegations about
psychological pressure exercised by the District Court judge was not
confirmed after inquiries undertaken by the competent State authorities.
4.3 The State party adds that, contrary to the previously applicable
electoral legislation, article 49 of the Belarusian Electoral Code [FN3] of
April 2000 does not contain a direct clause governing the responsibility of
individuals who call for the boycott of elections and appropriate
modifications were introduced to the CAO. The State party further notes that
article 38 of the CAO provides that if an individual, who was subject to an
administrative penalty, had not committed any new administrative offence
within one year after purging the previous penalty, he is considered as not
having been subjected to the administrative penalty. For the State party,
there is no ground to annul the Court decision of 26 April 1999 with regard
to Mr. Svetik, as he is considered a person who had not been subjected to
administrative penalty. Accordingly, the administrative penalty imposed on
Mr. Svetik in 1999 had no negative consequences for him.
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[FN3] Article 49, Belarusian Electoral Code: Responsibility for Violation of
Requirements of the Present Code.
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THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 By letter of 3 January 2001, the author concedes that the then
applicable Belarusian law prescribed administrative punishment for public
appeals to boycott elections. However, according to him, the appeal of 24
March 1999 in the Narodnaya Volya newspaper was a call not to participate in
undemocratic local elections, not a call to boycott the elections in
general. For this reason and pursuant to articles 19, paragraph 2, of the
Covenant and 33 of the Belarusian Constitution, [FN4] the author signed the
appeal. According to him, all the signatories of the letter considered that
every elector had the right not to take part in a vote if he/she considered
that the elections were held in violation of democratic procedures.
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[FN4] Article 33 of the Constitution stipulates: "Everyone is guaranteed
freedom of thoughts and beliefs and their free expression. No one shall be
forced to express one's beliefs or to deny them. No monopolization of the
mass media by the State, public associations or individual citizens and no
censorship shall be permitted".
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5.2 As to the State party's inquiry about his claim of psychological duress
exerted by the District Court judge, the author states that he was unaware
of such an inquiry. He submits a signed statement by a co-accused in the
trial, Mr. Andrei Kuzmin; the latter confirms that the author was subjected
to pressure by the judge. [FN5]
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[FN5] By letter of 25 December 2000, Mr. Kuzmin confirms that on 26 April
1999, the judge had exerted psychological pressure on Mr. Svetik during the
trial.
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5.3 Finally, on the State party's observation on the lack of direct
consequences of the sentence, the author argues that the payment of the fine
has negative impact on his material situation, that the use of psychological
duress by the District Court judge humiliated his human dignity and caused
him moral suffering. The author points out that as a complementary
punishment, the court's decision was sent to his employer, which could have
resulted in his dismissal.
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 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 and that available domestic remedies have been
exhausted. The conditions set forth in paragraphs 2 (a) and (b) of article 5
of the Optional Protocol are therefore satisfied.
6.3 The Committee has noted the author's claim under article 14, paragraph 3
(g), of the Covenant, relating to the alleged psychological pressure by the
District Court judge to have him confess. The Committee notes the State
party's explanation that its competent authorities proceeded to a
verification which concluded that the judge exercised no pressure. The
author contends that he was unaware of this verification, and provides a
written statement of a co-accused affirming that the author was threatened
by the District Court judge to confess guilt. However, the Committee notes
from the submissions before it that, when examining the author's appeal
arguments, the regional court concluded that the author's guilt was proven
not only on the basis of his confession in court, but also on the basis of
his deposition made to the prosecution, and since his name and title
appeared in the newspaper's article. Consequently, the Committee notes that
the author's allegation relates primarily to an evaluation of facts and
evidence in the case. It recalls that it is generally for the courts of
States parties to the Covenant to review facts and evidence in a particular
case, unless it can be shown that the evaluation of evidence was clearly
arbitrary or amounted to a denial of justice, or that the court otherwise
violated its obligation of independence and impartiality. The information
before the Committee does not provide substantiation for a conclusion that
decisions of the district and regional courts suffered from such defects.
Accordingly, this part of the communication is inadmissible pursuant to
article 2 of the Optional Protocol.
6.4 As far the author's allegation under article 19, paragraph 2 of the
Covenant is concerned, the Committee takes note of the State party's
argument that appropriate changes to the electoral law have been made and
that the administrative penalty imposed upon the author entail to no
consequences. However, the State party has not refuted the author's
contention that he had to pay the fine in question. Accordingly, neither
subsequent modifications to the law nor absence of any legal continuing
consequences of the sanction imposed on him deprive him of the status of
"victim" in the present case. The Committee considers that this part of the
communication has been sufficiently substantiated for purposes of
admissibility and decides to proceed 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 by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
7.2 The author claims that his right under article 19 has been violated, as
he was subjected to an administrative penalty for the sole expression of his
political opinion. The State party only objects that the author was
sentenced in compliance with the applicable law, and that, pursuant to
paragraph 3 of article 19, the rights protected by paragraph 2 are subject
to limitations. The Committee recalls that article 19 allows restrictions
only to the extent that they are provided by law and only if they are
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. [FN6] The Committee thus has to decide whether
or not punishing a call to boycott a particular election is a permissible
limitation of the freedom of expression.
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[FN6] See, inter alia, Communication No. 574/1994, Kim v. Republic of Korea,
Views dated 3 November 1998; Communication No. 628/1995, Park v. Republic of
Korea, Views dated 20 October 1998; Communication No. 780/1997, Laptsevich
v. Belarus, Views dated 13 April 2000.
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7.3 The Committee recalls that according to Article 25(b), every citizen has
the right to vote. In order to protect this right, States parties to the
Covenant should prohibit intimidation or coercion of voters by penal laws
and those laws should be strictly enforced. [FN7] The application of such
laws constitutes, in principle, a lawful limitation of the freedom of
expression, necessary for respect of the rights of others. However,
intimidation and coercion must be distinguished from encouraging voters to
boycott an election. The Committee notes that voting was not compulsory in
the State party concerned and that the declaration signed by the author did
not affect the possibility of voters to freely decide whether or nor to
participate in the particular election. The Committee concludes that in the
circumstances of the present case the limitation of the liberty of
expression did not legitimately serve one of the reasons enumerated in
article 19, paragraph 3, of the Covenant and that the author's rights under
article 19, paragraph 2, of the Covenant have been violated.
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[FN7] General Comment Nr. 25(1996), paragraph. 11.
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8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it disclose a
violation of article 19, paragraph 2, of the International Covenant on Civil
and Political Rights.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide the author 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. [FN8] The State party is
also under an obligation to prevent similar violations in the future.
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[FN8] For the proposed remedy, see Communication No. 780/1997, Laptsevich v.
Belarus, Views dated 13 April 2000.
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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. The State party
is also requested to publish the Committee's Views.
_______________________________
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
The text on an individual opinion signed by Committee member Sir Nigel
Rodley is appended to the present document.
APPENDIX
INDIVIDUAL OPINION BY COMMITTEE MEMBER, SIR NIGEL RODLEY (CONCURRING)
In its consideration of the merits, the Committee "notes that voting was not
compulsory in the State party concerned" (paragraph 7.3). The Committee does
not spell out the relevance of this observation. It is to be hoped that it
is not wittingly or unwittingly indicating that a system of compulsory
voting would of itself justify the enforcement of a law that would make
advocacy of electoral boycott an offence. Much will depend on the context
within which a particular system is established. In a jurisdiction in which
there may be forces seeking, not to persuade, but to intimidate voters not
to vote, legal compulsion to vote may be an appropriate means to protect
voters who wish to vote but are afraid of being seen to disobey the
pressures not to vote.
Conversely, history is replete with honourable reasons for opposing regular
participation in an electoral process that is believed to be illegitimate.
The most blatant example is a vote collection and counting system that is or
is expected to be fraudulently manipulated (vote rigging). Another example
would be when the voter is offered no choice. A more equivocal example would
be when there may be a choice but it is argued that it is not a real choice.
There is no comfortable way in which a body such as the Committee could or
should begin credibly to make judgments on matters like these. It will never
be in a position itself to pronounce on the legitimacy of advocating this,
that or the other form of non-cooperation with a particular electoral
exercise in a given jurisdiction. It follows that in any system it must
always be possible for a person to advocate non-cooperation with an
electoral exercise whose legitimacy that person may wish to challenge. There
may be room for flexibility in the means of non-cooperation that may be
advocated, be it electoral boycott, the spoiling of ballots, the writing in
of alternatives and so on. But, it would be inconsistent with article 19 to
prevent the advocacy of any means of non-cooperation as a challenge to the
process itself. Indeed, it may similarly be incompatible with the right
contained in article 25 to deny to the individual voter, on pain of legally
prescribed disadvantage, any possibility whatsoever of manifesting his or
her non-cooperation with the process.
[Signed] Sir Nigel Rodley
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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