Case Summary and Outcome

The UN Human Rights Committee held that Belarus violated Pavel Katorzhevsky’s right to freedom of expression by initiating legal proceedings against him, and fining him, for the dissemination on a social network of an article published on a platform open to the public without having examined its content. Katorzhevsky posted on the social network “Vkontakte” a link to a newspaper article entitled “Idiocy and fake honor to the victims of war in a capital city gymnasium,” published on the same day on “vk.com/rdbelarus.” Following a police complaint, the Belarusian courts issued a 230 rubles fine (approximately 110 euros) against Katorzhevsky for violating the Law against Extremism in Belarus. Katorzhevsky argued before the UN Human Rights Committee that Belarus violated his right to freedom of expression because the article he disseminated did not contain extremist material that threatened national security. For its part, Belarus argued that the fine was a permissible limit to freedom of expression because it was backed by a law aimed at combating extremism. The State also argued that in Belarus any information or ideas published on the site “vk.com/rdbelarus” were considered “extremist material.”  The Committee held that Belarus violated the petitioner’s right to freedom of expression. It noted that the article was originally published on a public platform. Moreover, the Committee held that Belarus cannot automatically consider all content posted on a website to be extremist or to affect national security. It also argued that the lack of an individualized assessment of the article’s content, regarding its impact on national security—on behalf of national authorities and courts—, did not satisfy the requirements of legitimacy, necessity, and proportionality, laid out in Article 19 of the International Covenant on Civil and Political Rights.

Facts

On November 26, 2016, Pavel Katorzhevsky disseminated on the social network “Vkontakte” (VK) the link to a newspaper article entitled “Idiocy and fake honor to the victims of war in a capital city gymnasium”—which was published on the same day on “vk.com/rdbelarus,” a public and open group on the aforementioned social network.

On March 2, 2017, the Belarusian police initiated legal proceedings against Katorzhevsky for the possible publication of extremist material. On March 13, Katorzhevsky was summoned to the police station in Gomel, Belarus. On the same day, he was informed that he was being charged with the offence of disseminating extremist material—as per Article 17.11, paragraph 2, of the Belarusian Code of Administrative Offences.

On May 2, the Central Gomel District Court of Belarus found Katorzhevsky guilty of disseminating extremist material. The court explained that the offence mentioned above was part of a public policy aimed at combating extremism in all spheres in Belarus. The court also sentenced Katorzhevsky to a  230 rubles fine (about 110 euros). The court stated that any information published on “vk.com/rdbelarus” is considered extremist material.

On May 10, Katorzhevsky appealed the judgment. He argued that the court did not individually assess the article he shared on his social network. and that it did not pose a threat to national security or public order, or to public health or morals. On June 2, the Gomel Regional Court rejected the appeal and upheld the decision of the Gomel Central District Court—without examining the content of the article.

On June 7, Katorzhevsky submitted a communication to the United Nations Human Rights Committee considering that Belarus had violated his right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

On March 5, 2018, the State of Belarus submitted its observations before the Committee arguing that the fine imposed on the petitioner was not a violation of his right to freedom of expression.

Decision Overview

The UN Human Rights Committee had to decide whether the fine imposed by Belarus’ national courts against the petitioner—after he shared a news article that was deemed as extremist material, although its content was not examined—violated the applicant’s right to freedom of expression as laid out in Article 19 of the ICCPR.

The petitioner claimed that Belarus had violated his right to freedom of expression under Article 19 of the ICCPR. He argued that the Belarusian authorities failed to justify the restriction on his freedom to disseminate information, as outlined in Article 19, paragraph 3, of the Covenant. Furthermore, the applicant explained that, although Belarusian domestic law provided for the possibility of imposing fines for disseminating extremist material, the authorities had failed to demonstrate that the sanction was legitimate and necessary in his specific case. The petitioner considered that the article he disseminated did not pose any threat to national security, public order, or the rights and freedoms of others.

Belarus, for its part, argued that the fine imposed on the petitioner did not violate his right to freedom of expression. The State argued that Article 19 of the ICCPR allows restrictions on the right to freedom of expression in order to guarantee respect for the rights or reputation of others, and the protection of national security, public order, public health, or morals. The State explained that Article 17.11, paragraph 2, of the Code of Administrative Offences, prohibits and punishes the dissemination of extremist material as part of the Government’s public policy against extremism. It also reiterated the arguments of its domestic courts and asserted that information published on “vk.com” is considered extremist in Belarus.

First, the Committee recalled its General Comment 34 (2011), to highlight that “freedom of expression is fundamental to any society and constitutes the cornerstone of all free and democratic societies.” [para. 7.3] The Committee further clarified that freedom of expression includes the freedom to disseminate information and ideas. Subsequently, the Committee stated that the right to freedom of expression may be subject to limitations, provided that such interferences are prescribed by law and necessary to ensure “respect for the rights or reputations of others“ or “the protection of national security, public order, or public health or morals.” [para. 7.3]

The Committee then stated that restrictions on freedom of expression should not be overbroad; on the contrary, they should be “the least intrusive of the instruments enabling it to fulfill its protective function and […] proportionate to the interest to be protected.” [para. 7.3]

Citing its own caselaw in Androsenko v. Belarus (CCPR/C/116/D/2092/2011), the Committee also said that States bear the burden of demonstrating that a restriction to freedom of expression is necessary and proportionate. Next, the Committee noted that according to the Law on Combating Extremism in Belarus, the police and courts “automatically declare any information disseminated on vk.com/rdbelarus to be extremist material, without any individual assessment of each information product or publication.” [para. 7.5]

Thereupon, the Committee, citing its General Comment No. 34, considered that “any restrictions on the operation of websites, blogs or other systems for the dissemination of information on the Internet, electronic or otherwise, including systems supporting such communication, such as Internet service providers or search engines, are permissible only to the extent that they are consistent with article 19, paragraph 3, of the Covenant.” [para. 7.6]  Similarly, the Committee held that permissible restrictions must generally relate to specific content, and that “general prohibitions” on the operation of certain websites and systems are not compatible with the ICCPR’s right to freedom of expression.

The Committee established that the petitioner asked the Gomel Regional Court to individually examine the content of the article he distributed. However, the Committee noted that said court did not conduct an analysis on the content of the article. In addition, the Committee noted that Belarus did not invoke “any specific grounds relating to the petitioner justifying the necessity of the restrictions imposed on him, as required by article 19, paragraph 3, of the Covenant.” [para. 7.7]

Hence, the Committee concluded that “the judicial decisions did not make an individual assessment of the petitioner’s case and did not explain why the conviction and the fine imposed on him were necessary.” [para. 7.8] In light of this, the Committee found that Belarus failed to demonstrate that the fine imposed on the applicant was the least intrusive measure to achieve the desired objective of its anti-extremism policy, and that it was proportionate to that goal.

For all these reasons, the UN Human Rights Committee unanimously concluded that Belarus violated the petitioner’s right to freedom of expression under Article 19 of the ICCPR. Thus, the Committee ordered Belarus to take all appropriate measures “to reimburse the fine and any legal costs incurred by the [petitioner].” [para. 9] The Committee also ordered the State to take all the necessary measures to prevent similar violations in the future.