Case Summary and Outcome

The United Nations Human Rights Committee (UNHRC) held that Belarus violated the rights to freedom of expression and to peaceful assembly of Olga Nikolaichik, Anna Krasulina, Artem Kovalev, and Vadim Vasiliev (the petitioners) by imposing administrative fines and detention penalties for their participation in unauthorized peaceful demonstrations. The petitioners were punished by domestic courts with the aforementioned sanctions, under Article 23.34 of the Belarusian Code of Administrative Offenses, for participating in unauthorized public events—such as pickets and marches—in Minsk and Gomel between 2016 and 2017. The petitioners claimed that the restrictions imposed on their rights were unnecessary and disproportionate, as they did not threaten public order or the rights of third parties. For its part, Belarus argued that the sanctions were justified to maintain public order and were consistent with Articles 19 and 21 of the International Covenant on Civil and Political Rights. The Committee found that the State did not justify the sanctions or provide evidence that the petitioners’ participation in the peaceful assemblies violated public order or threatened national security. It also emphasized that failure to notify authorities of an upcoming assembly did not justify disproportionate sanctions against its participants. Moreover, the UNHRC held that the fines and detentions against the applicants were neither necessary nor proportionate, and stressed their “chilling effect” on expression. Finally, the Committee concluded that Belarus violated Articles 19 and 21 of the Covenant and ordered the State to provide adequate compensation to the petitioners and to review its legislation on public acts to bring it into line with international standards.

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Facts

The petitioners—Ms. Olga Nikolaichik, Ms. Anna Krasulina, Mr. Artem Kovalev, and Mr. Vadim Vasiliev—are citizens of Belarus who were convicted repeatedly for violating Article 23.34 of the Code of Administrative Offences, which prohibits organizing and holding unauthorized mass events in the country.

Olga Nikolaichik (Communication no. 3056/2017)

On March 24, 2016, Ms. Olga Nikolaichik participated in a picket in front of the Russian Embassy in Minsk. During the demonstration, Ms. Nikolaichik held the Belarusian national flag and shouted slogans to protest. As a result of her participation in this unauthorized event, the Tsentralny District Court of Minsk fined her 10,500,000 Belarusian rubles, considering she violated Article 23.34 of the Code of Administrative Offences.

Ms. Nikolaichik subsequently filed an appeal in cassation before the Minsk City Court, arguing that the fine violated her rights to freedom of expression and to peaceful assembly. However, on April 19, 2016, the Minsk City Court dismissed her appeal and upheld the penalty imposed by the district court.

On June 13, 2016, Ms. Nikolaichik was again fined—this time 8,400,000 Belarusian rubles—for participating in another picket in honor of missing politicians and journalists. On that occasion, Ms. Nikolaichik held a banner with the message, “Where is Z.? Where is G.? Where is K.? Where is Z.?” Ms. Nikolaichik appealed the sanction to the Minsk City Court. On July 29, 2016, her appeal was rejected, and the fine was upheld.

On September 15, 2016, Ms. Nikolaichik was fined for the third time—1,050 Belarusian rubles—after picketing in front of the Tsentralny District Court in support of a political prisoner. During this event, Ms. Nikolaichik held a banner with the message: “Freedom to P., our history is on trial here.” As in previous circumstances, Ms. Nikolaichik filed an appeal on cassation, but it was again dismissed by the Minsk City Court on October 25, 2016.

Anna Krasulina (Communication No. 3100/2018)

On March 30, 2017, Ms. Anna Krasulina, an activist of the United Civic Party, was near a temporary detention center in Minsk, waiting for the release of several members of her party who had been arrested for political reasons. While waiting, Ms. Krasulina was carrying a white-red-white flag, a symbol used in Belarus by opposition movements. This action was deemed by the authorities as a violation of Article 23.34 of the Code of Administrative Offences.

On April 21, 2017, the Moskovsky District Court of Minsk sentenced Ms. Krasulina to pay an administrative fine of 1,150 Belarusian rubles—an amount higher than the average monthly salary in the country at the time. The penalty was imposed for her participation in an unauthorized event.

Ms. Krasulina filed an appeal to the Minsk City Court, arguing that her rights to freedom of expression and to peaceful assembly were violated. On May 17, 2017, the Minsk City Court rejected the appeal, upholding the sanction imposed by the Moskovsky District Court.

Artem Kovalev (Communication No. 3130/2018) 

On February 19, 2017, Mr. Artem Kovalev participated in an unauthorized peaceful march in the city of Gomel, Belarus. The demonstration was held to protest Presidential Decree No. 3, entitled “On the Prevention of Social Dependency.” Mr. Kovalev’s participation in the protest was considered by the authorities as a violation of Article 23.34 of the Belarusian Code of Administrative Offences.

On 23 March 2017, the Chechersky District Court of Gomel sentenced Mr. Kovalev to a 10-day administrative arrest for participating in the February march. The court held that the demonstration had not been authorized in advance by the authorities, as required by Belarusian regulations on public meetings and demonstrations.

Mr. Kovalev appealed the first instance decision to the Gomel Regional Court, arguing that his participation in the demonstration was a legitimate exercise of his rights to freedom of expression and to peaceful assembly. However, on April 14, 2017, the Gomel Regional Court rejected his appeal and upheld the district court’s judgment.

Vadim Vasiliev (Communication No. 3134/2018)

On October 21, 2017, Mr. Vadim Vasiliev participated in an unauthorized peaceful demonstration, called “March of Angry Belarusians 2.0,” that took place in Nezavisimosty Square in Minsk. The demonstration was held to protest the imposition of taxes on unemployed citizens as part of the Belarusian government’s economic policies. The protest was deemed illegal by the Belarusian authorities due to the lack of a prior notification.

As a result of his participation in the demonstration, on 7 December 2017, the Zheleznodorozhny District Court in the Gomel region sentenced Mr. Vasiliev, under Article 23.34 of the Code of Administrative Offenses, to pay an administrative fine of 230 Belarusian rubles.

Mr. Vasiliev filed an appeal on cassation before the Gomel Regional Court, arguing that the fine violated his rights to freedom of expression and to peaceful assembly. However, on January 12, 2018, the Gomel Regional Court rejected his appeal and upheld the fine.

 

United Nations Human Rights Committee (UNHRC) Communications

Throughout 2017 and 2018, Nikolaichik, Krasulina, Kovalev, and Vasiliev,  filed communications to the United Nations Human Rights Committee (UNHRC) arguing that Belarus violated their rights to freedom of expression and to peaceful assembly, as outlined in Articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR or the Covenant).

Belarus submitted its observations to each of the applicants’ communications. The State argued that the sanctions against the petitioners did not violate their rights to freedom of expression and to peaceful assembly because they were levied in accordance with Article 23.34 of the Code on Administrative Offences, which sanctions the organization of and participation in unauthorized mass events.

On October 12, 2023, the Human Rights Committee decided to join “communications 3056/2017, 3100/2018, 3130/2018 and 3134/2018 submitted by four different [petitioners] for a joint decision, in view of substantial factual and legal similarity.” [para. 1.3]

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Decision Overview

On 12 October 2023, the United Nations Human Rights Committee issued a decision on the cases. The Committee had to decide whether the sanctions imposed by Belarusian domestic courts on the four petitioners—for participating in peaceful public events and expressing their views—violated their rights to freedom of expression and to assembly, as enshrined in Articles 19 and 21, respectively, of the ICCPR.

The petitioners argued that Belarus violated their rights to freedom of expression and to peaceful assembly. They explained that “the restrictions imposed on their right to express their opinion in peaceful rallies were not necessary under articles 19 and 21 of the Covenant.” [para. 3] Furthermore, the petitioners explained that their actions—participating in peaceful demonstrations—did not pose a threat to national security, public order, public health or morals, or to the rights and freedoms of others. In addition, they noted that Belarus’ domestic regulations, and their implementation, did not comply with international recommendations aimed at protecting these fundamental rights. The petitioners also noted that the State had failed to comply with previous recommendations issued by the UNHRC to Belarus—i.e., to bring the State’s domestic legislation in line with its international obligations.

For its part, Belarus argued that the sanctions against the applicants—fines and administrative arrests—were lawful since they were issued in accordance with Article 23.34 of the Code on Administrative Offences. The State claimed that the restrictions on freedom of expression and peaceful assembly were justified to maintain public order and compatible with articles 19 and 21 of the ICCPR.

The Committee began its analysis by questioning whether the restrictions imposed on the petitioners were justified under Article 21 of the Covenant. The Committee explained that the right to peaceful assembly is fundamental to the public expression of opinions and views in a democratic society. Citing the Human Rights Committee’s General Comment No. 37 (2020), the UNHRC held that “given that peaceful assemblies often have expressive functions, and that political speech enjoys particular protection as a form of expression, assemblies with a political message should enjoy a heightened level of accommodation and protection.” [para. 7.4]

The Committee went on to state that peaceful assemblies can take various forms, such as demonstrations, protests, vigils, or marches, and that organizers have the right to choose a location where they can be seen and heard. Furthermore, it argued that “no restriction to this right is permissible, unless it: is imposed in conformity with the law; and is necessary in a democratic society, in the interests of national security or public safety, public order (ordre public), protection of public health or morals or protection of the rights and freedoms of others.” [para. 7.4]

Considering this, the UNHRC underscored that States must justify any limitation on the right to peaceful assembly. Subsequently, the Committee held that “failure to notify the authorities of an upcoming assembly, where required, does not render the act of participation in the assembly unlawful, and must not in itself be used as a basis for dispersing the assembly or arresting the participants or organizers, or for imposing undue sanctions, such as charging the participants or organizers with criminal offences.” [para. 7.5]

The UNHRC noted that Belarus’ domestic courts sentenced the petitioners to significant fines or administrative detentions for participating in public assemblies. Considering this, the Committee found that “the domestic courts did not provide any justification or explanation as to how, in practice, the [petitioners’] participation in such peaceful assemblies had violated the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others, as set out in article 21 of the Covenant.” [para. 7.6] Moreover, the Committee highlighted that the State did not provide “any justification for restricting the [petitioners’] rights under article 21 in its submissions before the Committee, particularly in light of the chilling effect of the imposed sanctions.” [para. 7.6] Considering the reasons outlined above, the Committee concluded that Belarus violated the right to peaceful assembly of the petitioners as guaranteed by Article 21 of the ICCPR.

Following this, the UNHRC  analyzed whether the sanctions imposed by the Belarusian courts on the petitioners violated their right to freedom of expression under Article 19 of the Covenant. The Committee referred to its General Comment 34 (2011) to emphasize that “freedom of expression is essential for any society and constitutes a foundation stone for every free and democratic society.” [para. 7.8] It further explained that the right to freedom of expression includes the freedom to disseminate information and ideas.

The UNHRC held, nonetheless, that the right to freedom of expression may be subject to limitations, provided that such interferences are prescribed by law and necessary to “respect the rights or reputation of others,” or “for the protection of national security or public order (ordre public), or of public health or morals.” [para. 7.8] On this point, it said that restrictions on freedom of expression should not be overly broad; on the contrary, such limitations should “be the least intrusive among the measures that might achieve the relevant protective function and proportionate to the interest being protected.” [para. 7.8]

Upon studying the specific cases, the UNHRC said that subjecting the petitioners to high monetary fines and administrative detentions raised serious doubts about the necessity and proportionality of the restrictions on freedom of expression. It held that Belarus failed to demonstrate any compelling reason that justified the necessity of the restrictions imposed against the petitioners. Moreover, the Committee concluded that “the State party ha[d] also failed to demonstrate that the measures selected were the least intrusive in nature or proportionate to the interest that it sought to protect, particularly in light of the chilling effect of such measures.” [para. 7.9]

For these reasons, the Committee concluded that Belarus violated the applicants’ right to freedom of expression as laid out in Article 19 of the ICCPR. Thus, the Committee ordered Belarus to take all the appropriate measures to provide the petitioners “with adequate compensation, including reimbursement of the fines and any legal costs incurred by them.” [para. 9] The Committee also ordered the State to take all the necessary measures to avoid similar violations in the future. Finally, it requested Belarus to review its domestic legislation to bring it into conformity with the obligations outlined in Articles 19 and 21 of the ICCPR.

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