2010 26/01
Васіль Грышчанка, Жодзінскі выканкам
Vasil Hryshchanka, Zhodzina executive committee

On January 26, 2010 from 14-30 to 16-30 Zhodzina Court chaired by Judge Tatsiana Tratsiuk held the second preliminary meeting on the complaint by Zhodzina human rights defender Aliaksei Lapitski, against the prohibiting of the peaceful mass action, applied for by him and Sviatlana Lapitskaya on 25.11.2009 for 10.12.2009 on the International Human Rights Day by the local executive committee.

The meeting was gradually transferred into the main hearing of the parties and the proceedings on the merits. Meanwhile, neither of the complainants was satisfied.

A number of questions to the lawyer Volha Verhel representing the interests of the executive power in Zhodzina were rejected by the judge.

But still, during the process it was testified that indeed, under the current practice in Zhodzina executive committee, all applications for peaceful activities, initiated by citizens or organizations, are considered in the ideological department, which prepares a draft response (i.e. denial) signed by the chair of the local executive committee Vasil Hryshchanka.

Aliaksei Lapitski’s attempt to clarify (in questions and pleading), who in the end (as in this case, the denial of peaceful picketing on Human Rights Day) decides – the ideology official or the chair of the executive committee – met resistance from the judge. However, judging by the responses, it became clear that the current practice of drafting decisions of such bans on mass activities, during which none of the initiated applications from the opposition or human rights activists was satisfied, and there were no instances when the draft developed by the ideological department was not signed by the chair of the executive committee, indicates that, in violation of applicable law, decisions to ban peaceful activities are actually taken by the ideological department, which on absolutely absurd and improper grounds, guided by ideological expediency, always rejects applications by the representatives of civil society that in a decentralized manner reach the executive committee. For all of them, the applicants, are considered potential opponents of the existing regime in respect of such clearly discriminatory and ideological sieve is used.

During the hearings, Aliaksei Lapitski noted that the requirements of the executive committee on the compulsory payment by the citizens of their inalienable right to peaceful conduct of the event (extra copies of contracts for future payment or written guarantee of such payment, without even the opportunity to see the documents about pricing of such budgetary institutions as the police, health service …) are improper restriction of the right and the forcing of the applicants to either:

1) abandon their own beliefs, that the right given to all and it does not have to be purchased from the ruling political regime, or

2) to some kind of bribes in order to obtain permission to implement their own, declared rights, guaranteed by the Constitution and the International Covenant on Civil and Political Rights (ICCPR) …

He stated that if the application is registered in the executive committee, it must be properly handled and examined. For this, information available should be clarified, and the applicants should be engaged in a dialogue on the technical issues with a view to implementation (but not elimination) of the activities in the most favorable conditions, with the assistance of public services and coordination between representatives of law and order and the applicants responsible for the conduct of the event… To do this, phone number is indicated in the application and a lot of time to study it is allocated. That’s why an application for a peaceful event should not immediately pass ideological censorship, but considered in a positive permitting context. After all, it can legally be banned only in rare, clearly articulated in the ICCPR cases. The citizens’ right should not be suppressed, subjecting them to discrimination on political grounds, but unconditionally and securely implemented.

In the courtroom, as it was also stated that the existing laws governing the exercise of the right to peaceful mass actions in Belarus do not meet legal quality, as it allows arbitrary understanding of the positions and unjust treatment, which are used for greater restrictions of the right to peaceful assembly than permitted by the rules of Constitutional and international law in the area of civil rights and liberties. It (the law) mentions the minor (in the form of pickets and rallies of up to 1000 participants), and major formats of events (rallies and marches of over 1000 participants), as well as different ways of applying – individually by citizens and organizations (including those having accounts, funds, commercial or other revenues, including from the planned mass peaceful activities…). Therefore, treatment of the positions and requirements of the legislation in general for all applicants without appropriate differentiation is impossible and illegitimate.

For example, if it is quite logical and justified (in terms of the personification of liability) to place a requirement for an application made by an organization – to provide on a separate sheet the guarantees of organizers (as individuals), authorized for this by the organization. However, it is quite unclear that if an application for conducting a peaceful event is submitted by the citizens, then such a guarantee can safely be attached to the text by the applicants (1 or 2 persons) – in the form of a separate sentence, for example, at the end of their application. For it is the applicants who in this case are the organizers. And in this case it is also understandable that it is them, and none other, who shall be personally liable in case of improper conduct of their alleged activities.

As for the claims (for permission to conduct activities by citizens) to provide mandatory prepayment of the police, ambulance … The representative of the executive committee could not name or present the rates for these services, and any documents that would indicate that the above-mentioned budgetary institutions are obliged to provide the services concerning the right of citizens to peaceful activities for additional contributions by citizens, acting as organizers of these activities.

The example provided by the lawyer on issuing permits for long-term workshop for up to 400 people to the Religious Society of Jehovah’s Witnesses, which was accompanied by the organizers’ guarantees, appointed by the Society, the obligations to pay for police protection and ambulance services… – on the contrary, became a good illustration of the case in which these items of legislation are implemented like this, but not otherwise. This approach works if there are either commercial purposes or trust funds of the organizers to carry out such activities, let alone paying the rent… It is not possible to be transferred, and without violating the law, be applied to non-profit peaceful activities, as well as to their applicants – non-profit organizations and ordinary citizens…

In connection with the above-mentioned facts, the complainant reiterated his demands to find illegal the prohibition by V. Hryshchanka of the peaceful picketing applied for by the human rights activists on International Human Rights Day, 10.12.2009, on an authorized and specially adapted for such purposes location in Zhodzina. Aliaksei Lapitski noted that this ban once again violated Belarus’ international commitments to a guaranteed and unconditional implementation of the rights of citizens to freedom of peaceful assembly (Article 21 of the ICCPR) and the free dissemination of information (Article 19 of the ICCPR) … against the civil society, citizens and human rights activists of Zhodzina.

On January 27, 2010 at 10-00 the court is to host debate and the final decision of Zhodzina Court in this case is expected to be announced.

Ales Volny,

Belarusian Legal Portal,

by.prava-by.info

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