Individual v. State:
Pracꢀce on complaints with the United Naꢀons treaty bodies with regards to the Republic of Belarus
Volume I
Collecꢀon of arꢀcles and documents
The present collecꢀon of arꢀcles and documents is published within the framework of “Internaꢀonal Law in Advocacy” program by Human Rights House Network with support from the Human Rights House in Vilnius and Civil Rights Defenders (Sweden)
2012
UDC 341.231.14 +342.7 (476) BBK 67.412.1 +67.400.7 (4Bel) I60
Edited by
Sergei Golubok
Candidate of Law, Aꢂorney of the St. Petersburg Bar Associaꢀon, member of the editorial board of the scienꢀfic journal “Internaꢀonal jusꢀce”
- I60
- “Individual v. State: Pracꢀce on complaints with the United Naꢀons treaty bodies
with regards to the Republic of Belarus”. – Vilnius, 2012. – 206 pages.
ISBNꢁ978-609-95300-1-7. The present collecꢀon of arꢀcles “Individual v. State: Pracꢀce on complaints with the
United Naꢀons treaty bodies with regards to the Republic of Belarus” is the first part of the two-volume book, that is the fourth publicaꢀon in the series about internaꢀonal law and naꢀonal legal system of the republic of Belarus, implemented by experts and alumni of the Human Rights Houses Network‘s program “Internaꢀonal Law in Advocacy” since 2007.
The first volume of this publicaꢀon contains original wriꢀngs about the contents and pracꢀcal aspects of internaꢀonal human rights law concepts directly related to the Insꢀtute of individual communicaꢀons, and about the role of an individual in the implementaꢀon of internaꢀonal legal obligaꢀons of the state.
The second volume, expected to be published in 2013, will include original analyꢀ- cal works on the admissibility of individual consideraꢀons and the Republic of Belarus’ compliance with the decisions (views) by treaty bodies. It will include all decisions made by the Commiꢂee in 2000-2012 with regards to the Republic of Belarus that were not included in the first volume.
UDC 341.231.14 +342.7 (476) BBK 67.412.1 +67.400.7 (4Bel)
The Human Rights Houses Foundaꢀon represents the Human Rights Houses Network, and holds intellectual property rights to this collecꢀon as published within the project “Bring Internaꢀonal Standards Home”
ISBNꢁ978-609-95300-1-7
© Group of authors, 2012
© Belarussian Human Rights House, 2012
CONTENTS
Liudmila Ulyashyna
Foreword .................................................................................................................... 7
Sergei Golubok
Cases against Belarus at the Human Rights Commiꢂee: What’s next?.................... 11
Liudmila Ulyashyna
Individual v. State: Submission, equality, conflict? Challenges and possibiliꢀes to Increase effecꢀve implementaꢀon of Internaꢀonal legal human rights obligaꢀons........................................................ 15
Natalia Matskevich
On certain legal issues considered by the Human Rights Commiꢂee with regards to Communicaꢀons by individuals, who claimed their rights secured by the ICCPR were violated in administraꢀve and criminal proceedings (through the example of cases against Republic of Belarus) ............... 40
Leonid Sudalenko
Specifics in consideraꢀon of cases involving the exercise by ciꢀzens of the Republic of Belarus of their right to freedom of expression and freedom of peaceful assembly .......................................................................... 62
Roman Kisliak
Individual communicaꢀons as a method to promote posiꢀve changes in the area of human rights (Inga Abramova v. Republic of Belarus) ....................... 93
Annexes
Annex 1. Staꢀsꢀcal review of individual communicaꢀons reported to the Human Rights Commiꢂee under the opꢀonal protocol to the Internaꢀonal Covenant on civil and Poliꢀcal Rights..................................... 102
Annex 2. List of cases with regards to the republic of Belarus considered by the Human Rights Commiꢂee........................................ 106
Annex 3.
Dynamics of cases on individual communicaꢀons against Belarus registered at the UN bodies, by year............................................. 108
4 • Individual v. State
Annex 4. Number of cases against Belarus registered and heard at the Human Rights Commiꢂee, by year ............................................. 109
Annex 5. Dynamics of individual communicaꢀons against Belarus heard on the merits by UN commiꢂees, by year .......................... 110
Annex 6. General Comment No. 31 [80] Nature of the General Legal Obligaꢀon Imposed on States Parꢀes to the Covenant................................. 111
Annex 7. General comment No. 33, Obligaꢀons of States parꢀes under the Opꢀonal Protocol to the Internaꢀonal Covenant on Civil and Poliꢀcal Rights .................................... 118
Annex 8.
Decision of the Сonsꢀtuꢀonal Court of the Russian Federaꢀon on the complaint of Andrei Anatolyevich Khoroshenko for violaꢀon of his consꢀtuꢀonal rights under Arꢀcle 403, paragraph 5, Arꢀcle 413, paragraph 4, and Arꢀcle 415, paragraphs 1 and 5, of the Code of Criminal Procedure of Russian Federaꢀon ..................................... 123
Annex 9. Views adopted by the Human Rights Commiꢂee on Communicaꢀon No. 2120/2011 Vladislav Kovalev, Lyubov Kovaleva and Tatyana Kozyar v. Belarus ..................................................... 135
Annex 10. Views adopted by the Human Rights Commiꢂee on Communicaꢀon No. 1784/2008 Vladimir Shumilin v. Belarus........................... 157
Annex 11. Views adopted by the Commiꢂee on the Eliminaꢀon of Discriminaꢀon against Women on Communicaꢀon No. 23/2009 Inga Abramova v. Belarus ....................................................................................... 168
Dedicated to Boris Zvozskov
FOREWORD
Everyone shall have the right in accordance
with the internaꢀonal instruments raꢀꢁed by the Republic of Belarus to appeal to internaꢀonal organizaꢀons to defend their rights and liberꢀes, provided all available domesꢀc remedies have been exhausted.
Arꢀcle 61 of the Consꢀtuꢀon of the Republic of Belarus
On 15 March 1994 the 12th Supreme Soviet of the Republic of Belarus adopted the Consꢀtuꢀon of the Republic of Belarus that for the first ꢀme in the country’s history secured the right of an individual to file a complaint with internaꢀonal organizaꢀons against their own state.
That period was marked by historical changes of internaꢀonal importance: legal systems that used to be within or under the influence of the Soviet Union, were preparing to join regional and internaꢀonal human rights systems.
Resoluꢀon of the Supreme Council of the Republic of Belarus of 10 January 1992 raꢀfied the Opꢀonal Protocol to the Internaꢀonal Covenant on Civil and Poliꢀcal Rights (1966) and recognized competence of the Human Rights Commiꢂee to receive and consider communicaꢀons from individuals subject to its jurisdicꢀon who claim to be vicꢀms of a violaꢀon by that State Party of any of the rights set forth in the Covenant.
That ꢀme was marked by acꢀve cooperaꢀon with the Council of Europe.
It began in 1989, when the Parliamentary Assembly of the Council of Europe established relaꢀons with the Supreme Council of the USSR, granꢀng it the “special guest” status. In January 1992, the decision of the Bureau of Assembly transferred that status to the Supreme Soviet of the Russian Federaꢀon; in 1992 and 1993, Ukraine and Belarus obtained “guest quotas” in the Council of Europe. Over the next five years, the “guests” were accepted as full members of the European regional system of human rights defense, but Belarus never joined it: in 1997, the membership of Belarus as a guest member was suspended by a decision of the Parliamentary Assembly of the Council of Europe in connecꢀon with the changes in the legal system, that ran contrary to the underlying principles of the united European system.
8 • Individual v. State
The door of the European Court was closed for the populaꢀon under the jurisdicꢀon of the Republic of Belarus. Although the Council of Europe Infor- maꢀon Point opened in Minsk in June 2009, and the Parliamentary Assembly of the Council of Europe called on the PACE Bureau to restore the special guest status to Belarus, this process is hindered by a number of poliꢀcal and legal complexiꢀes.
Meanwhile, despite the fact that the legal system of the Republic of Belarus is immune to the direct control of the European Court of Human Rights; the country’s populaꢀon has the possibility to realize their hope for internaꢀonal legal review of the observance of their individual rights.
The system for the protecꢀon of human rights within the United Naꢀons
Charter and Treaty bodies is open to those who is subject to the jurisdicꢀon of the Republic of Belarus and complains about the non-fulfilment of obligaꢀons under the universal treaꢀes.
In 2000, the Human Rights Commiꢂee considered the first communica-
ꢀon from Belarus1, and since 2008, there has been exponenꢀal growth in the number of registered communicaꢀon (see Annexes 3, 4 and 5).2
Analysis of staꢀsꢀcal data on the registered individual communicaꢀons to the UN Human Rights Commiꢂee with regards to Belarus shows that while in the course of ten years (1997-2006) the Commiꢂee had registered for consideraꢀon 38 communicaꢀons, during the last six years (2007-2012) there were several ꢀmes as many and a total of 145 as of early 2013 (see Annex 1).
It is important to take note of the high “quality” of these communica-
ꢀons: according to 2012 data by OHCHR, of 48 completed cases with regards to Belarus only 8 were declared inadmissible. For comparison: 45 out of 77 individual communicaꢀons submiꢂed to the Human Rights Commiꢂee with regards to France were declared inadmissible (informaꢀon from the UN Human Rights Commiꢂee staꢀsꢀcal survey of individual complaints as of 23 April 2012)3.
The growth in the number of complaints filed with the body that monitors observance of the Internaꢀonal Covenant on Civil and Poliꢀcal Rights is related to several factors. Analysis of the complaints suggests that they are filed with regards to the violaꢀon of rights and liberꢀes that ensure the democraꢀc governance in the country, and namely: the freedom of speech, the right to elect and to be elected, the right of access to public service, and freedom of associaꢀons4. It is these rights that have been on the list of the
1
- Vladimir Laptsevich
- v
Republic of Belarus.Communication No. 780/1997. CCPR/
C/68/D/780/199, 13/04/2000. <http://www.unhchr.ch/tbs/doc.nsf/0/cc98a0722c3d4c62 c125690c003636a2?Opendocument> [2012-03-03]. Information was prepared and presented by human rights defender Raman Kisliak. <http:www2.ohchr.org/english/bodies/hrc/docs/SURVEYCCPR.xls> The analysis is made together with Vladimir Nepogodin, a student of the law faculty of the European Humanities University during his student practice under the mentorship of the
2
34
Foreword • 9
most vulnerable to those who would like to parꢀcipate in and influence the democraꢀc process in the country.
Another factor that could have had an impact on the quanꢀtaꢀve and qualitaꢀve growth of individual communicaꢀons from the Republic of Belarus, is that their authors or representaꢀves of vicꢀms of violaꢀons of civil and poliꢀcal rights and freedoms were in most cases parꢀcipants, experts and alumni of the “Internaꢀonal Law in Advocacy” program5 by Human Rights House Network. Since 2006, the program offers a systemaꢀc training of Belarusian lawyers and human rights defenders in internaꢀonal legal standards and their implementaꢀon.
The figures can serve as indicators of the importance of the training with regards to the process of effecꢀveness of applicaꢀon of internaꢀonal legal human rights protecꢀon mechanisms. Partners and organizers of the program are aimed at conꢀnuing to distribute informaꢀon about the possibiliꢀes of human rights protecꢀon at the naꢀonal and internaꢀonal levels, and to increase confidence of the legal community and civil society in general of the impact of this work.
The mechanism to make the process of implementaꢀon of internaꢀonal treaꢀes and consꢀtuꢀonal provisions more effecꢀve is being triggered by those who the rights and freedoms belong to, i.e. individuals.
The present two-volume collecꢀon of arꢀcles “Individual v. State: Pracꢀce on complaints with the United Naꢀons treaty bodies with regards to the Republic of Belarus” covers the role of an individual in the process of promoꢀon and protecꢀon of individual freedoms.
The work to prepare and publish this collecꢀon is part of the Human Rights
Houses Network‘s program “Internaꢀonal Law in Advocacy”. The two-volume collecꢀon is yet another publicaꢀon in the series related to internaꢀonal legal
author of the monograph in May 2009. See: Ulyashina, Lyudmila. "Universal human rights standards, and some issues of their implementation in the Republic of Belarus." Electronic edition: Bulletin of Human Rights. # 1 (2010).
5
The Human Rights House Network’s program "International Law in Advocacy" has been developed and is being implemented by partner organizations from several European countries, including the countries of the former Soviet Union. Program’s projects “De facto implementation of international obligations of the Republic of Belarus” and “Distance learning for human rights lawyers” promote efforts to fulfil the commitments undertaken within the framework of the United Nations, the Council of Europe and other international organizations, to provide support in the implementation of commitments in the field of human rights within the Commonwealth of Independent States. The projects set their sights onto furthering promotion, protection and observance of human rights under the rule of law, capacity building through training of lawyers, networking and raising awareness with regards to the direct application of human rights standards at the national level. <http://humanrightshouse.org/Projects/ILIA_RU/index.html> [2012-04-03].
10 • Individual v. State
mechanisms to protect human rights and their influence on the formaꢀon of naꢀonal legal systems6
The first volume of this publicaꢀon contains original wriꢀngs that reveal the contents and pracꢀcal aspects of internaꢀonal human rights law concepts directly related to the Insꢀtute of individual communicaꢀons (Sergei Golubok, Liudmila Ulyashyna). The book provides an analysis of legal issues resolved by the Human Rights Commiꢂee with regards to individual communicaꢀons against the Republic of Belarus pertaining to violaꢀon of criminal and administraꢀve proceedings (Natalia Matskevich) and cases of violaꢀon of the right to freedom of expression and peaceful assemblies (Leonid Sudalenko). An example of an individual communicaꢀon as a means of posiꢀve change driver inside the legal system is reviewed in the arꢀcle by Roman Kisliak. The book is finalized with the number of reference tables and materials, as well as texts of two decisions (views) of the Human Rights Commiꢂee
(Shumilin v. Belarus, Kovaleva et al v. Belarus) and views of the Commiꢂee
on the Eliminaꢀon of Discriminaꢀon against Women (Abramova v. Belarus).
The second volume that is expected to be published in 2013 will include original analyꢀcal works on the admissibility of individual consideraꢀons and the Republic of Belarus’ compliance with the decisions (views) by treaty bodies. The second volume will include all decisions made by the Commiꢂee in 2000-2012 with regards to the Republic of Belarus that were not included in the first volume.
In conclusion, I would like to thank the program team and those who worked on the book, as well as our colleagues, who conꢀnue their professional acꢀviꢀes for the promoꢀon and protecꢀon of human rights in Belarus.
Liudmila Ulyashyna,
Manager of the Human Rights Houses Network’s Program
“Internaꢀonal Law in Advocacy”
6
Freedom of expression, assembly and associations: international legal standards and laws of the Republic of Belarus. Minsk: Tesei, 2006. Examples of individual complaints to the Committee on Human Rights, the Constitutional Court of the Republic of Belarus, articles and essays of the “De facto implementation of international obligations of the Republic of Belarus” program/ / Regulations and practical handbook. Lawyers’ Companion, Vilnius: Human Rights House, 2008. <http:// prava-by.info/archives/1205> [2012-04-02]. Human rights: international law and national legislation: collected stories by V.V. Filippov, 2011.
Sergei Golubok1
CASES AGAINST BELARUS AT THE HUMAN RIGHTS
COMMITTEE: WHAT’S NEXT?
Belarus is a party to the First Opꢀonal Protocol to the Internaꢀonal Covenant on Civil and Poliꢀcal Rights2 that grants individuals the right to lodge complaints with the Human Rights Commiꢂee3 since 1992.
Over the past twenty years, the Commiꢂee has registered 142 complaints against the Republic of Belarus; final decisions were made on 46 of them, in the vast majority of cases those stated that there had been one or more violaꢀons of the Covenant4.
The arꢀcles published in this book analyse extensive pracꢀce of the Commiꢂee, elaborated on “Belarusian cases”.
A considerable part of Commiꢂee’s decisions against Belarus is related to violaꢀons of civil rights to freedom of speech, freedom of assembly and freedom of associaꢀons (Arꢀcle 19, 21 and 22 of the Covenant), especially in connecꢀon with the obstrucꢀon of public events (rallies, pickets) and registraꢀon of independent non-profit organizaꢀons. This set of issues is joined by violaꢀon of various voꢀng rights of ciꢀzens (Arꢀcle 25 of the Covenant): “Belarusian cases” helped to significantly advance the pracꢀce of the Commiꢂee in this regard.
A whole series of interrelated violaꢀons of Arꢀcle 7 (prohibiꢀon of torture), Arꢀcle 9 (right to liberty and security), Arꢀcle 10 (humane condiꢀons of detenꢀon) and Arꢀcle 14 (right to a fair trial) of the Covenant, is being recorded by the Commiꢂee with regards to cases related to criminal procedures.
Many violaꢀons of the Covenant by Belarus as revealed by the Commiꢂee are systemic in their nature, that is not deriving from an “excessive act” on the ground, but from a fundamental mismatch between the internaꢀonal legal standards, naꢀonal laws and established pracꢀce. For example, the inability to appeal against the death sentence imposed by the Supreme Court in the first instance, inevitably entails a violaꢀon of Arꢀcle 14, paragraph 5, of the Covenant, and, hence, Arꢀcle 65 of it.
1
Candidate of Law, Attorney of the St. Petersburg Bar Association, member of the editorial board of the scientific journal “International justice”. Hereinafter referred to as the Covenant. Hereinafter referred to as the Committee. The data are based on the analysis of statistical information provided by the Office of the
2
34
UN High Commissioner for Human Rights. Views of the Committee of 29 October 2012 on communication No. 2120/2011, § 11.6-
5
12 • Individual v. State
It should be noted that many of the issues in the “Belarusian pracꢀce” of the Commiꢂee are either addressed insufficiently or not addressed at all. For example, there were hardly any issues raised with regards to the violaꢀon of Arꢀcle 7 in contexts other than the police violence (e.g., torture in psychiatric hospitals or in the army); civil proceedings are not being considered from the point of view of compliance with internaꢀonal legal standards under Arꢀcle 14,paragraph 1, of the Covenant; arguments with regards to discriminatory, in violaꢀon of Arꢀcle 26, treatment by the authoriꢀes, for example, on grounds of poliꢀcal opinion the applicant, are rarely corroborated in detail.
Complaints filed with the Commiꢂee against Belarus may for the ꢀme being be of only theoreꢀcal interest, since the authoriꢀes (of other state parꢀes to the Covenant, Belarus is perhaps only joined by Sri Lanka in this regard ) are not ashamed to officially consider Commiꢂee’s decisions to be opꢀonal6 and do not take any acꢀons to implement them at the naꢀonal level – either in terms of the restoraꢀon of applicants’ violated rights, that have found protecꢀon in Geneva, or in terms of general measures to recꢀfy the situaꢀon as a whole and to prevent similar violaꢀons of the Covenant in the future. This public disdain of Commiꢂee’s posiꢀon on the part of Belarus is most evident in the fact of the execuꢀon of applicants who filed a statement to the Commiꢂee that the death sentence imposed on them was in violaꢀon of the Covenant; and with regards to whom the Commiꢂee has requested interim measures of protecꢀon, and namely, Belarus was asked to refrain from execuꢀon of the alleged vicꢀm pending a decision by the Commiꢂee. Having once again faced with such a pracꢀce of the authoriꢀes of Belarus in 2012, Chairman of the Commiꢂee said: “The posiꢀon of the Human Rights Commiꢂee is clear – Belarus has commiꢂed a grave breach of its legal obligaꢀons… We deplore these flagrant violaꢀons of the human rights treaty obligaꢀons of Belarus”7.
While being a party to the Covenant and the First Opꢀonal Protocol thereto, Belarus cannot “ignore” decisions of the Commiꢂee –a body established by these internaꢀonal treaꢀes and working in compliance with them. Behaviour of Belarusian authoriꢀes resembles that of a driver, who deems it possible to use automobile roads, yet “takes no noꢀce” of the rules of the road.
The Consꢀtuꢀonal Court of the Russian Federaꢀon in its recent decision on the possible revision of the verdict on the case of a person with regards to whom the Commiꢂee subsequently decided there had been the violaꢀon of the Covenant8, commented on the legal nature of the Commiꢂee and decisions made by it, and came to the conclusion that because of universally