Case Summary and Outcome

A justification is necessary for restricting expression under Article 19(3) of the ICCPR; thus, if no valid justification is available, a violation of Article 19(2) has occurred.

Facts

On October 12, 2000, Vladimir Viktorovich Shchetko and his son, Vladimir Vladimirovich Shchetko, wrote and distributed leaflets, calling for the boycotting of the parliamentary elections of October 15. On October 27, the Pervomay District Court in Bobruisk fined the authors 10,000 Belarusian roubles each. The decision was based on Article 167-3 of the Administrative Offences Code (AOC). [1]

The 1994 version of the AOC, under which the authors were fined, prohibits public calls for the boycott of elections.  The authors, however, argued that this provision “cannot be read separately from paragraph 45, part 13, of the Electoral Code…which prohibits campaigning…during the election day only.” [2] Furthermore, the authors’ emphasized “that on [October 9, 2000], Article 167-3 of the AOC was amended by law, to bring it into line with the requirements of paragraph 45, EC.” [3]

As such, the authors appealed the decision of the first court to the Mogilievsk Regional Court. On December 29, 2000, the district court decision was affirmed. The authors then filed a request for a protest motion under a supervisory procedure to the Supreme Court. This was rejected and the lower court’s decision was upheld. In July 2006, the case was heard by the Human Rights Committee(HRC).

[1] Para 1-2.1 of the decision, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/140844cdffddda67c12571cc00511f56?Opendocument.

[2] Para 2.2 of the decision, id. 

[3] Id.

Decision Overview

The HRC first reiterated that the right to freedom of expression is not absolute and its enjoyment may be subject to limitations. Pursuant to Article 19(3), limitations are permissible if provided by law, necessary for respect of rights or reputations of others, or necessary for the protection of national security or of public order. Further, the right to the freedom is vital in any democratic society, and “any restrictions on its exercise must meet strict tests of justification.” [1]

The court stated that under Article 25(b) of the ICCPR, every citizen has the right to vote. In order for this right to be protected, states should prohibit intimidation or coercion of voters by criminal laws, and such laws should be enforced. Thus, the application of the law would mean a lawful limitation to the right of freedom of expression which is justifiable because it is necessary to preserving the rights mentioned above. However, intimidation and coercion must be distinguished from encouragement to boycott and election without any intimidation. [2]

Therefore, the court noted that in this case the State has merely submitted that the restrictions of the authors’ rights were provided for under law. However, justification for the restrictions were not presented. Furthermore, because the law (of 1994) was amended shortly after the judgment was given, this “tends to underline the lack of reasonable justification for the restrictions set out in the [] law.” [3] The HRC did not find that the leaflets had an effect on the voters who were free to decide whether to participate in the general election. As such, the HRC held that the fines  imposed on the authors were not justified as per Article 19(3), and therefore the authors rights under Article 19(2) were violated. [4]

[1] Para 7.3 of the decision, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/140844cdffddda67c12571cc00511f56?Opendocument.

[2] Para 7.4, id. 

[3] Para. 7.5, id. 

[4] Id.