2008 17/10

Leanid Sudalenka (Homiel)‘I undertake a commitment to the people of the Republic of Belarus … in good faith and without bias to protect the constitutional order and the supremacy of the Constitution of the Republic of Belarus’ (excerpt from the oath taken by the judges of the Constitutional Court)

There is no denying the fact that the judicial system of Belarus is stagnant. The Constitutional Court has faced serious problems while executing justice. On the one hand, the Court should revere the supremacy of the Constitution, on the other hand … well, first things first.

Homel city authorities have resolved to ban all non-governmental mass actions expert those held at the spot determined by a special instruction. Besides, from now on strikers will have to obtain special permits from the local police, medical and housing departments, which are not likely to be absolutely free.

The decision is no doubt meant to suppress the opposition, since peaceful mass actions are usually held by civil and political activists. Growing obviously tired of rejecting applications (over 60 bids have been turned down in 2008), the authorities have made up their minds to exile oppositional activists to a remote locations on the outskirts of the city.

The citizens’ rights and freedoms are not limitless and uncontrolled. An individual’s rights and freedoms end where the rights and freedoms of other citizens begin.

However, the objective of mass actions (especially meetings, demonstrations and pickets) is not only satisfying the needs of a limited group of activists, but dragging public and governmental attention to most vital issues of the country. Therefore, it seems absurd to deprive citizens of a right to choose a location to their liking.

In practice, it would be almost impossible to hold an efficient action in an uptown place, e.g. meeting with one’s constituents during an election.

What do you do when your rights are restricted? In a civilized society, an infringed right is to be rehabilitated in court. That’s what we did. We drafted a claim concerning the unconstitutional decision and submitted it to the Constitutional Court.

This is one of our main claims:

Article 35 of the Constitution provides that the freedom to hold assemblies, rallies, street marches, demonstrations and pickets that do not disturb law and order or violate the rights of other citizens of the Republic of Belarus, shall be guaranteed by the State. The fundamental law secures the freedom of holding mass actions and admits of certain limitations, which should be provided by the law and connected with the maintenance of public order and the rights of other citizens.

Restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons. (Article 23 of the Constitution).

The Republic of Belarus shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles. (Article 8 of the Constitution).

Article 20 of the Universal Declaration of Human Rights ensures that everyone has the right to freedom of peaceful assembly and association. So does the International Covenant on Civil and Political Rights.
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. (Article 21 of the European Convention on Human Rights and Fundamental Freedoms).

Thus, the existing legislation of the Republic of Belarus guarantees the citizens’ right to hold mass actions derived from the presumption in favour of conducting mass actions with certain restrictions and does not admit of imposing any disproportionate restrictions and obligations on their organizers.

Meanwhile the decision by Homel city authorities determines the only location for holding mass actions in a 500,000-people city, which is an inadmissible restriction of everybody’s right to the freedom of assembly, secured by Article 35 of the Constitution of Belarus, Article 20 of the Universal Declaration of Human Rights and Article 21 of the International Covenant on Civil and Political Rights. Besides, the decision, which is not a law, imposes extra obligations connected with compulsory fees for police, medical and housing departments’ services.

Considering that peaceful assembly is one of the fundamental freedoms of democratic societies and the protection of this freedom is necessary for the formation of a tolerant society, where various convictions, behaviour standards and principles can peacefully coexist, we consider the decision as violation of the constitutional guarantees for the freedom of conducting mass actions, and the universally recognized principles and standards of the international law.

The reply by the Constitutional Court, signed by the Court’s secretariat vice-head A.Yuraha, claims that Belarusian citizens are deprived of the right to direct appeal to the supreme judicial body of the country. Besides, the official says that local authorities have the right to determine locations authorized for conducting mass actions.

Being an expert in the field of international law, I fail to understand what Mr.Yuraha means by saying that: the Constitution says I have a right, but he says I don’t. Here is a comment by one of the Constitutional Court’s former members Mikhail Pastukhou:

‘All the members of the Constitutional Court are professional lawyers and they must therefore protect the supremacy of the Constitution. There is no doubt that Belarusian citizens possess the right to direct appeal to the Court, since the right is secured by the Constitution itself. The procedure is common in all the European countries, including Russia.’

Another eminent lawyer A.Lukashou says that ‘the citizens’ right to direct appeal to state organs is provided by Article 40 of the Constitution. Article 60 guarantees protection of everybody’s rights and freedoms by a competent, independent and unbiased court of law. Decisions of local councils of deputies and their executive and administrative bodies that restrict or violate civil rights and liberties and the legitimate interests of citizens, and in other instances specified in law, may be challenged in a court of law (Article 122). Since the Constitutional Court is a judicial body, the above-mentioned rights include the right to appeal to the Court in case any decisions by state organs violate the constitutional rights and freedoms of Belarusian citizens.’

As a result, there is a virtual divarication concerning the fundamental rights and freedoms. Restriction of rights is an extremely delicate mechanism that should only be used in extreme cases. The main factor to be taken into consideration when applying restrictions is the Constitution: ‘The individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State’.

Otherwise, one day we will find civil servants taking decisions that will outlaw certain citizens, followed by an approval from the Constitutional Court of the country…

Leanid Sudalenka,
Head of the Legal Initiative Homel City Office, June, 2008

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