2010 04/08
Leanid Sudalenka, Homel

Leanid Sudalienka, Homel

Freedom of expression is a basis of political rights fixed in article 19 of Covenant on Civil and Political Rights. This inherent right includes the right to keep to an opinion, search for, get and distribute different information and ideas despite state borders – orally, in writing, printed or via artistic ways of expression or any other ways chosen by a person.

Using this right of expression imposes some special duties and responsibility. It can be connected with some limitations which must be set by the law and be necessary for respect of rights and reputation of other people, health or society’s morals.

Literal analysis of the given international law standard shows that any limitations of freedom of expression must not only be established by law but should be an “important issue” for respect of other people’s rights and reputation, for protection of national security, public peace, health or society’s morality. Moreover, every limitation of this right must serve the achievement of one of the legal objectives mentioned in section 3 (a) or (b) of article 19 of the Covenant. When considering complaints about violation of freedom of expression guaranteed by the Covenant, UNHRC judges from the whole of demands listed.

Article 19 of International Covenant on Civil and Political Rights and its appliance in practice is a most actual article for Belarusian journalists when they realize their inherent freedom of expression right. It became basis for many individual appeals to United Nations Committee on Human Rights from Belarusian citizens. Though there were no cases in UNCHR’s practice when a Belarusian journalist succeeded to vindicate his or her claim on international level, I think that the analyses of cases mentioned below will help to understand clearly limitation of right for freedom of expression.

A citizen of Mahiliou Uladzimir Laptsevich was one of the Belarusian “pioneers” whose case about violation of freedom of expression right was considered by the UN Committee on Human Rights in 1997.

On March 23, 1997 in the center of Mahiliou Laptsevich was distributing leaflets dedicated to the anniversary of Belarusian People’s Republic independence declaration. During this action officials of Mahiliou Central district department of Ministry of Internal Affairs came to the author of the leaflets and confiscated 37 exemplars left, and then accused him under article 172, part 3 of Administrative Violations Code for distributing leaflets with no printer’s imprint. Under authority of this accusation the administrative commission penalized the author for 390 000 rubles. Uladzimir Laptsevich appealed this decision in Mahiliou Central district court, which denied his complaint. Later complaints to regional and supreme court were also denied. After all inner means of right defense were exhausted, the author filed an individual complaint to the United Nations Committee on Human Rights against Belarus.

In his complaint the author stated that he became a victim of violation of his right for free expression of his opinion which was formalized in article 19, section 2. He also stated that the sanctions applied against him were illegal because in his case the article 172, part 3 of Administrative Violations Code they couldn’t be applied. He noted that there was information about circulation and name of printing organization in the leaflets, and the run of 200 copies was printed there to show that the Law of Press couldn’t be reached here. Moreover, he wrote that leaflets are not periodic publications or publications for sale and that they couldn’t be given serial number, index or registration number. He also made a reference to articles 33 and 34 of Constitution of Republic of Belarus which guarantee rights for having opinions and beliefs, their free expression and right for information distribution.

Government of Belarus gave its comments to UNCHR about the author’s claim. In the introductory part the government noted that the author didn’t go against the fact of distributing printed leaflets with printer’s imprint required by the Law of Press. Together with this he committed a violation of law according to the article 172, part 3 of Administrative Violations Code. Government of Belarus noted that “the content of the leaflets distributed by the author included wrenched information about forming of Belarusian state, Bolsheviks occupation, and armed struggle with “occupants”, and there was also an appeal to imitate “such fight” for independence of Belarus nowadays”. The government also stated that Belarusian legislation and law-enforcement practice in this area totally correspond liabilities of the state-participant according to Covenant’s article 19.

Going against the fact that in leaflets there is“wrenched information about forming of Belarusian state” the author claimed that he’d received a higher education on historical faculty of one of the best universities in Belarus, and that all dates and facts mentioned in the leaflets are historically correct. He confirmed that he called Bolsheviks “occupants”, but he also pointed that Republic of Belarus is not an “ideology-driven” state, so any punishment connected with usage of this term contradicts article 19 of the Covenant.

After examining all documents furnished by the parties, UN Committee of Human Rights noted that according to the Belarusian law publishers of the periodical are obliged to put some printer’s imprint including index and registration number which can be received only at administration organs. The Committee considered that by bringing in such demands towards leaflets the run of which was no more than 200 copies, Republic of Belarus had created obstacles which’s limited author’s right for distributing information formalized in section 2 article 19 of the Covenant. Even if the sanctions imposed to the author according to the inner state legislation are acceptable, the state must prove that they are necessary for one of the legal goals foreseen in section 3, article 19. The right of expression is of high priority in every democratic society, that’s why any limitation of this right must be fully grounded, – that’s what conclusions made international experts in this case.

The second case reviewed by the UN Committee on Human Rights about violation of right for freedom of expression was the case of Aleksandr Dzerhachou from Smarhon.

On March 21, 1999 the author of complaint, member of National Front of Belarus, organized a picketing during which he spread the banner with the following print: “Followers of today’s regime! In five years you have driven people to poverty. Stop listening to lies! Join the fight which National Front of Belarus leads for you!”

On March 29, 1999 the author was condemned in district court of Smarhon.

According to the court’s opinion, the content of the banner was an appeal to insubordinate to the current ruling power and to destroy constitutional order of Republic of Belarus. The court has decreed that spreading of such banner was an administrative violation according to the Administrative Violations Code of Belarus (article 167, section 2). That’s why the author was condemned and penalized at the rate of 5 million Belarusian rubles. The court has also decreed to confiscate the banner.

The author didn’t admit his guilt and at the court session he insisted that the phrase written in his banner meant only legal expression of his political opinion in the context of democratic elections. Hrodna regional court denied the author’s appeal. After this the author filed another appeal to the Supreme court of Republic of Belarus which lightened the sentence adjudged by the court and pronounced a warning to him.

In his appeal to UN Committee on Human Rights Aleksandr Dzerhachou stated that his rights of the Covenant’s article 19 were violated as a result of his condemnation for expressing political opinion and distribution of factual information. Belarusian government announced in its verbal note that Chief Justice of Republic of Belarus annulled all decrees decided before towards the author and closed the case. So the state claimed that there are no grounds for further reviewing of the case, but the author insisted on Belarus admitting violation of article 19 of the Covenant.

When reviewing the case mentioned above, the Committee considered that this concrete expression of political opinion in the form of holding a banner fell within the scope of regulation about the right for free expression of one’s opinion which is protected by article 19 of the Covenant. The state-participant didn’t acknowledge using any limitations written in article 19, section 3 of the Covenant. Thus the Committee considers that condemnation of the author for expressing his opinion is violation of his rights according to the article 19 of the Covenant.

The case of human rights defender form Vitsebsk Leanid Svetsik reviewed by UN Committee on Human Rights is also very interesting from the point of view of the right of expression.

On March 24, 1999 an appeal criticizing policy of Belarusian government was published in the newspaper “Narodnaya Volia”. The appeal was combined and signed by representatives of hundreds of Belarusian regional political and non-governmental organizations (NGO) and also by the author of this note. In the article there was a call to boycott the forthcoming elections to local body as a protest to elective legislation of the country. In the opinion of those who signed the appeal this legislation isn’t compatible with “Belarusian Constitution and international norms”.

On April 12, 1999 the author was summoned to appear in prosecutor’s office to explain his signature under the open letter mentioned above. On April 26, 1999 the trial took place. The judge reported that the author’s signature under this open letter forms a trespass set in article 167-31 of Belarusian Administrative Violations Code. The judge penalized him at the rate of two minimal wages which was at that time an amount of one million Belarusian rubles. The author appealed this determination against in regional court and Supreme Court, but these judicial instances considered that the appeal was groundless, the fact of trespassing is proved and author’s actions are correctly qualified as a criminal activity foreseen in the article 167-3 of AVC.

Government of Republic of Belarus explained to UN Committee on Human Rights by a verbal note that at the moment of judgment’s pronouncement in the author’s case the legislation foresaw administrative sanctions for a public call to boycott elections. This call was in the newspaper article mentioned above and this fact wasn’t litigated by the author in the court. Quoting Belarusian government, such legislation totally corresponds article 19, section 3 of the Covenant which says that using rights from section 2, article 19 of the Covenant also involves some limitations which must be settled by law.

In UN Committee on Human Rights considerations on the given case it’s stated that this appeal signed by the author didn’t influence the ability of electorate to make free decision about participating or not participating in elections. The Committee came to a conclusion that taking into account this fact, the limitation of freedom of expression wasn’t legally grounded basing on one of the reasons of article 19, section 3 of the Covenant and that author’s rights foresaw in section 2, article 19 of the Covenant were violated.

In one of the last cases of UN Committee on Human Rights among other violations of the Covenant there was a fact of Belarus violating the citizen’s rights for freedom of expression.

When holding presidential elections in 2006 in Belarus, Viktar Karniayenka a member of the candidate Aleksandr Milinkievich’s campaign headquarters was transporting 28000 election leaflets from Minsk to Homiel in his private car. 13000 of these flyers were a full-page photo of Aleksandr Milinkievich with an inscription “Milinkievich – a new president” and the other 15000 were two-sheets print outs with election program of the candidate.

In his complaint to UN Committee on Human Rights Viktar Karniayenka claimed that he had copies of all necessary documents for printing and transporting of election materials. His car was stopped in Zhlobin and searched by transport police. As a result election leaflets were withdrawn.

On March 21, 2006 in author’s absence, Zhlobin district Homiel region court decreed that by transporting leaflets with information supposing that “Aleksandr Milinkievich is a new president”, Viktar Karniayenka violated article 167-3 of Administrative Code. According to court the author’s guilt was proved by confiscated materials, statements of witnesses, expert examination of the car, police statements and other witnesses. The court did not only penalize the author according to the Administrative Code but also decreed to destroy all 28000 pre-election materials of the presidential candidate.

After all inner means of right defense were used in his appeal to UN Committee on Human Rights the author noted that Republic of Belarus violated his and the candidate’s right according to article 19 of the Covenant by penalizing him because of the content of pre-election leaflets of Aleksandr Milinkievich and destroying all the pre-election materials. Moreover, the author stated that the facts described by him show country’s violations of presidential candidate’s rights according to the articles 25 (right to elect and be elected) and 26 (forbidden discrimination on political grounds) of the Covenant.

UN Committee considered I this case that by withdrawing and destroying a quarter of pre-election materials not long before Election Day, the state has violated Karniayenka’s and MIlinkievich’s right for freedom of expression according to the article 19 of the Covenant.

The Committee has also reminded that the right of expression isn’t absolute and that it can undergo some limitations according to the article 19 of the Covenant. But such limitations are acceptable only when they are foreseen by the law and are essential for (a) respecting rights and reputation of other people; (b) for defense of national security, public order, health or morality. In this context the Committee repeats that the right for freedom of expression is of primary importance in every democratic society and that every limitations of it must be strictly reasoned. Belarusian government didn’t provide any explanations about their decisions to limit Karniayenka’s and Milinkievich’s rights of distributing information and whether it was necessary for one of the legal goals foreseen by article 19 of the Covenant. It just explained that confiscation and liquidation of election leaflets was legal. In the given situation without further information the Committee made a conclusion that rights of Karniayenka and Milinkievich were violated according to article 19 of the Covenant.

And as long as Viktar Karniayenka stated in his complaint that liquidation of election materials of Aleksandr Milinkievich has as a consequence violation of rights according to articles 25 and 26 of the Covenant, the Committee reminded that according to article 25 of the Covenant full and free distribution of information and ideas about public and political problems between citizens is guaranteed, the way it is demanded by a full respect to rights guaranteed by article 19 of the Covenant. It also includes freedom for publishing political materials, to run election campaigns and advertise political ideas. Having no reasonable explanations from the state, the Committee stated that in this case violation of Milinkievich’s right according to article 19 results violation of his rights according to article 25 together with article 26 of the Covenant.

The list of cases mentioned above which were reviewed by United Nations Committee on Human Rights about Republic of Belarus violating rights of expression of its citizens is limiting.

But does this fact mean that everything is all right with freedom of expression in our country? Not at all!

Nowadays only from Homiel region more than 30 individual appeals from citizens connected with violation of right of expression are registered and wait to be reviewed by UN Committee on Human Rights.

Leanid Sudalienka

Prepared by Ales Leta,
Belarusian Legal Portal,
by.prava-by.info

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