2010 17/07

At a meeting of Belarusian human rights defenders there arose a discussion concerning the appropriateness of submitting individual complaints to the UN Human Rights Committee, taking shape in two main approaches – pessimistic and optimistic. Without denying the usefulness of the protection instrument in general, the pessimists argued that the Committee’s ability is extremely limited, the cases are long, besides the government of Belarus considers the decisions not binding. Accordingly, there is no need to resort extensively to the filing of complaints to the UN Human Rights Committee and to use this mechanism only in exceptional cases.

The advocates of the optimistic approach proceeded from the fact that appealing to the international institution creates further incentives to work of civil activists, for whom the Committee’s recognition of the violation of their right possesses a positive emotional charge, and the effect of victory also extends to other activities. In addition, the complaint is preceded by extensive preparatory work, which involves human rights defenders and civil activists, government agencies and courts, which in itself is very important for promoting human rights issues, for creating grounds for changing the situation in the future.

In this connection I would like to elaborate on the work that precedes the filing of a complaint to the UN HR Committee, which, unfortunately, is not always visible to outsiders, but whose value is difficult to overestimate.

Indeed, the preparation and submission of a complaint are the final stage of a rather complicated way of restoring one’s rights.

The treatment of application to the UN HR Committee as one of the stages of human rights protection from the outset requires an entirely different approach to work, as well as its well-planned and systemic nature.

First, faced with a particular case, a human rights activist assesses its prospects in international bodies and, therefore, defines the rules of international law, notably those of the International Covenant on Civil and Political Rights, the breach of which may be recorded.

Secondly, this analysis requires in the initial stages to ‘interpret’ the dialogue with national judicial and public authorities into the language of international law.

Thirdly, the argument based on international law significantly strengthens the position of the complainant, as against this backdrop the national legislation, which the opposite side represented by various state agencies is appealing, seems more than modest.

And finally, we should not forget that the work with international law in national courts suggests to all the case’s participants the imperfection of the laws and regulations that govern the implementation of a right, while creating no additional opportunities, but rather obstacles, often insurmountable.

Of course, this does not mean that the outcome of the trial with such an approach would be in favor of the applicant. As yet, the practice shows that to restore any violation of political and even the majority of civil rights is simply impossible at the national courts.

But there is no denying the fact that a new situation in judicial decisions is being created, a new practice in which judges are forced to ignore the norms of international law, without having the opportunity to refute them. In other words, the court must “jump” over the international obligations of Belarus in the field of human rights, the existence of which they had not perceived for a long time, and to refer to the articles of national laws and regulations, which are definitely beneath criticism.

Turning to examples, the first thing to recall is the case concerning the right to freedom of peaceful assembly. When, for example, Homel city executive committee bans an applied picket, then from the point of view of the Law “On Mass Events in the Republic of Belarus” the problem does not seem to exist at all. The city executive committee has the right to prohibit public events, it may establish a list of places set aside for their conduct, to determine the conditions for payment of expenses, the procedure for their coordination with municipal services and so on.

In such a situation an appeal to the court seems to have little practical meaning, since the city executive committee can easily “beat off” all the claims with references to current legislation, especially given their semantic vagueness and ambiguity.

Still, the situation would be absolutely different, if we refer to the international human rights standards. The International Covenant on Civil and Political Rights does not only establish the right to freedom of peaceful assembly, but also outlines the limits of the possible restrictions of the right.

It is definitely not possible to answer the question what kind of a threat to national security or public safety and health, as well as to the rights and freedoms of other persons may be posed by a citizen during a picket against the abolition of social benefits. Therefore, Homel courts keep issuing verdicts, consisting of two mismatched parts. The first contains the provisions of the applicant’s complaint with compelling arguments based on international human rights law, and the other is an inconsistent statement of the alleged violations of the Law “On Mass Events in the Republic of Belarus.” And this is indeed the actual situation where judges, examining the applicant’s arguments, are preparing themselves for work in a slightly different coordinate system based on respect for human rights, and form for themselves the direction in which we must move in the near future.

Vasil Paliakou (Homel).

Prepared by

Ales Leta,

Belarusian Legal Portal,

by.prava-by.info

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