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Kirsanov v. Belarus, CCPR, Communication No. 1864/2009

GE.14-04343 (E)
*1404343*
Human Rights Committee
Communication No. 1864/2009
Views adopted by the Committee at its 110th session
(10–28 March 2014)
Submitted by: Vladimir Kirsanov (not represented by counsel)
Alleged victim: The author
State party: Belarus
Date of communications: 22 November 2008 (initial submissions)
Document references: Special Rapporteur’s rule 97 decision,
transmitted to the State party on 25 February
2009 (not issued in document form)
Date of adoption of Views: 20 March 2014
Subject matter: Denial of authorization to organize a peaceful
meeting
Substantive issues: Right of peaceful assembly; permissible
restrictions
Procedural issue: Exhaustion of domestic remedies
Article of the Covenant: 21
Articles of the Optional Protocol: 5, para. 2 (b)
United Nations CCPR /C/110/D/1864/2009

International Covenant on
Civil and Political Rights Distr.: General
5 June 2014

Original: English

CCPR/C/110/D/1864/2009

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Annex
Views of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political rights (110th session)
concerning
Communication No. 1864/2009 *
Submitted by: Vladimir Kirsanov (not represented by counsel)
Alleged victim: The author
State party: Belarus
Date of communications: 22 November 2008 (initial submissions)
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 20 March 2014,
Having concluded its consideration of communication No. 1864/2009, submitted to
the Human Rights Committee by Vladimir Kirsanov under the Optional Protocol to the
International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author
of the communication and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication is Vladimir Kirsanov, a Belarusian national, born
in 1937. He claims that he is the victim of a violation by Belarus of his rights under article
21 of the International Covenant on Civil and Political Rights (hereinafter “the Covenant”).
The Optional Protocol entered into force for the State party on 30 December 1992. The
author is not represented.
The facts as presented by the author
2.1 On 14 January 2008, the author sought authorization to hold a stationary
demonstration (a picket), on 30 January 2008, with the aim of attracting public attention to

* The following members of the Committee participated in the examination of the present
communication: Mr. Yadh Ben Achour, Mr. Lazhari Bouzid, Ms. Christine Chanet, Mr. Cornelis
Flinterman, Mr. Yuji Iwasawa, Ms. Zonke Zanele Majodina, Mr. Gerald L. Neuman, Sir Nigel
Rodley, Mr. Víctor Manuel Rodríguez-Rescia, Mr. Fabián Omar Salvioli, Ms. Anja Seibert-Fohr,
Mr. Yuval Shany, Mr. Konstantine Vardzelashvili, Ms. Margo Waterval and Mr. Andrei Paul
Zlatescu.
The text of an individual opinion by Committee members Mr. Fabián Salvioli and Mr. Víctor
Rodríguez-Rescia is appended to the present Views.

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the State party’s policy against opposition political parties and grass-roots movements and
also to protest against the State party’s attempt to dismantle the Belarus Communist Party.
The author was a member of the Belarus Communist Party at the time of the events. On
22 January 2008, the Zhlobinsky District Executive Committee of the Gomel Region (“the
Executive Committee”) denied authorization to him on the ground that there was no reason
to hold the event, as the Supreme Court had stayed the activities of the Belarus Communist
Party for six months, by a decision of 2 August 2007.

2.2 The author complained to the Zhlobinsky District Court (“the District Court”) about
the Executive Committee’s refusal. On 3 March 2008, the District Court dismissed his
complaint, indicating that the stay of the Communist Party’s activities was a sufficient
ground to limit his right to hold a peaceful assembly. On 10 April 2008, the Gomel
Regional Court upheld the decision of 3 March 2008 on appeal and it became final.
1
2.3 The author claims that he has exhausted all available domestic remedies. He also
argues that, although he does not consider supervisory review proceedings to be an
effective remedy, he requested the Gomel Regional Court and the Supreme Court to initiate
such proceedings. On 9 July and 5 November 2008, the Chair of the Gomel Regional Court
and the Chair of the Supreme Court, respectively, rejected his requests.
The complaint
3.1 The author claims that there has been a violation of his right of peaceful assembly,
as guaranteed under article 21 of the Covenant. His rights were restricted on the ground that
the activities of the Belarus Communist Party, of which he was a member, had been stayed
for six months. The domestic courts should have established whether such a restriction was
in conformity with the law. He argues that the national authorities, including the domestic
courts, did not attempt to justify the restriction or provide arguments as to its necessity in
the interests of national security or public safety, public order, the protection of public
health or morals or the protection of the rights and freedoms of others.
3.2 The author maintains that the courts failed to assess the decision of the Executive
Committee in the light of the provisions of the Covenant. Pursuant to articles 26 and 27 of
the Vienna Convention on the Law of Treaties of 1969, Belarus is bound by the Covenant,
should implement it in good faith and may not invoke the provisions of its internal law as
justification for its failure to implement the Covenant. According to article 15 of the
Belarusian Law on International Treaties, universally recognized principles of international
law and provisions of international treaties in force in respect of Belarus form an integral
part of domestic law. According to article 20 of the Universal Declaration of Human
Rights, everyone has the right to freedom of peaceful assembly and association. The right
of peaceful assembly is enshrined in article 21 of the Covenant and can only be restricted in
respect of one of the legitimate aims contained therein. The author claims that, by

1 According to the Gomel Regional Court’s decision of 10 April 2008, “the author’s intention to hold a
picket on an invented problem (надуманная проблема) would lead to a breach of the rights of others
to receive reliable information”, as protected under article 34 of the Constitution. The Regional Court
further indicates that the author’s argument regarding the alleged unlawfulness of the decision to deny
authorization is unsubstantiated, as article 10 of the Law on Mass Events does not contain an
exhaustive list of grounds for denying authorization; and article 6 requires a range of circumstances to
be considered, in particular those having bearing on the provision of public safety. The District Court
complied with the requirements of the law. The Regional Court has taken note of the author’s
argument that he was acting in his own name rather than on behalf of any political party. The
Regional Court has also taken note of the Supreme Court’s decision of 2 August 2007, whereby the
activities of the Belarus Communist Party were stayed for six months due to the party’s failure to
comply with the law and its own statute.

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restricting his right of peaceful assembly on a ground other than one of those specified in
article 21 of the Covenant, the State party has failed to honour its international obligations.
State party’s observations on admissibility
4.1 On 8 May 2009, the State party challenged the admissibility of the communication,
arguing that the author had failed to exhaust all available domestic remedies and that there
was no reason to believe that the application of those remedies would have been
unavailable or ineffective. The author had not asked the Prosecutor’s Office or the Chair of
the Supreme Court to initiate supervisory review proceedings in accordance with article
439 of the Code of Civil Procedure. The State party submits that the author’s statement that
his requests for supervisory review were dismissed on 9 July and 5 November 2008 does
not correspond to the facts.
4.2 Further, the State party submits that the author’s allegation that supervisory review
proceedings do not constitute an effective remedy is a subjective, personal opinion, which
is also inconsistent with the facts. The State party refers to statistics according to which, in
2007, 733 administrative cases were examined by the Chair of the Supreme Court, a
supervisory instance, which quashed or altered 179, including 63 submitted through the
Prosecutor’s Office. In 2008, the Chair of the Supreme Court examined 1,071
administrative cases and quashed or altered 317, including 146 submitted through the
Prosecutor’s Office. Thus, in 2007 and 2008 respectively, the Chair of the Supreme Court
quashed or altered 24.4 per cent and 29.6 per cent of the administrative cases that were
examined.
Author’s comments on the State party’s observations on admissibility
5.1 On 7 June 2009, the author reiterated that he had not requested the Prosecutor’s
Office to initiate supervisory review proceedings, as such a request would not lead to a re-
examination of the case, the initiation of supervisory review proceedings being dependent
on the discretionary power of a few public officials. In addition, making such a request
involved payment of a fee. He notes that the Committee has previously established that in
States parties where the initiation of supervisory review proceedings is dependent on the
discretionary power of a few public officials, such the Prosecutor General or the Chair of
the Supreme Court, the remedies to be exhausted are limited to a cassation appeal. The
author reiterates that he requested the Chair of the Supreme Court to initiate a supervisory
review. On 5 November 2008, a Deputy Chair of the Supreme Court replied to his request,
a fact which has not been disputed by the State party.
5.2 The author further notes, with reference to the statistics provided by the State party,
that those data relate to administrative cases and therefore have no bearing on his civil case,
which is regulated by the provisions of the Code of Civil Procedure.
State party’s observations on the merits
6.1 On 30 July 2009, the State party submitted its observations on the merits of the case.
It reiterates the facts of the case and states that the District Court had established that the
aim of the picket announced by the author was inconsistent with the circumstances, as no
decision had been taken with a view to banning political parties, in particular the Belarus
Communist Party. According to the preamble to the Law on Mass Events of 30 December
1997, “freedom of mass events not violating the legal order and rights of other citizens of
the Republic of Belarus is guaranteed by the State”. According to article 34 of the
Constitution, “citizens shall be guaranteed the right to receive reliable information on the
activities of State bodies and public associations”. The author was denied authorization to
hold the picket as it concerned an invented problem (надуманная проблема), thereby
contravening the constitutional right of citizens to receive reliable information.

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6.2 The State party further submits that the organization and conduct of mass events is
governed by the Law on Mass Events of 30 December 1997. The law is aimed at creating
the conditions for the realization of constitutional rights and freedoms of citizens and the
protection of public order and public safety when such events are held in public spaces.
According to the law, “freedom of mass activities not violating the legal order and rights of
other citizens of the Republic of Belarus is guaranteed by the State”.
6.3 The right of peaceful assembly is enshrined in article 21 of the Covenant. No
restrictions can 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, the protection of public health or morals or
the protection of the rights and freedoms of others. Belarus has ratified the Covenant and
incorporated its provisions, including articles 19 and 21, into domestic law. In particular,
the right to freedom of thought and belief and the right to freedom of expression are
guaranteed under article 33 of the Constitution. Article 35 of the Constitution guarantees
the right to hold assemblies, rallies, street processions, demonstrations and pickets,
provided that they do not violate law and order or breach the rights of other citizens. In
addition, under article 23 of the Constitution, no restrictions may be placed on the rights
and freedoms of citizens other than those imposed in conformity with the law, in the
interests of national security, public safety, the protection of public health or morals or the
protection of the rights and freedoms of others.
Author’s comments on the State party’s observations on the merits
7.1 On 12 February 2010, the author challenged the State party’s argument that
authorization to hold a peaceful assembly had been denied to him in conformity with the
law as the authorities considered that the picket in question concerned an invented problem.
In this regard, he points out that the right protected under article 21 of the Covenant can be
restricted only under the requirements listed therein. He claims that the national legislation
on the organization and conduct of mass events does not contain the notion of “invented
problem”. The author states that the restriction of his right of peaceful assembly on such a
ground is therefore neither in accordance with the law nor necessary in a democratic society
in the interests of national security or public safety, public order, the protection of public
health or morals or the protection of the rights and freedoms of others.
7.2 The author adds that he has exhausted all available domestic remedies and that he is
the victim of a violation of article 21 of the Covenant.
Issues and proceedings before the Committee
Consideration of admissibility
8.1 Before considering any claim contained in a communication, the Human Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not
the communication is admissible under the Optional Protocol to the Covenant.
8.2 The Committee has ascertained, as required under article 5, paragraph 2 (a), of the
Optional Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
8.3 The Committee takes note of the State party’s contention that the author could have
requested the Prosecutor’s Office, as well as the Chair of the Supreme Court, to initiate a
supervisory review of the decisions of the District Court and the Regional Court, and of the
State party’s reference to a number of administrative cases where supervisory review
proceedings were successfully brought. It also takes note of the author’s explanation that
his requests to initiate supervisory review proceedings were unsuccessful, that such

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remedies were neither effective nor accessible, and that the data provided by the State party
are irrelevant to the circumstances of his case. The Committee recalls its previous
jurisprudence, according to which the State party’s supervisory review procedures against
court decisions which have entered into force do not constitute a remedy which has to be
exhausted for purposes of article 5, paragraph 2 (b), of the Optional Protocol.
2 It also notes
that the State party has not shown whether and, if so, in exactly how many cases,
supervisory review procedures have been successfully brought in cases concerning the right
of peaceful assembly. In the circumstances, the Committee considers that it is not precluded
under article 5, paragraph 2 (b), of the Optional Protocol from examining the
communication.
8.4 The Committee considers that the author has sufficiently substantiated his claim
under article 21 of the Covenant for purposes of admissibility. Accordingly, it declares the
communication admissible and proceeds to its examination on the merits.
Consideration of the merits
9.1 The Human Rights Committee has considered the communication in the light of all
the information made available to it by the parties, as provided under article 5, paragraph 1,
of the Optional Protocol.
9.2. The issue before the Committee is whether the denial of the required authorization to
hold a picket as planned by the author constitutes a violation of his rights under article 21 of
the Covenant.
9.3 The Committee recalls that the right of peaceful assembly, as guaranteed under
article 21 of the Covenant, is a fundamental human right, which is essential for public
expression of one’s views and opinions and indispensable in a democratic society.
3 This
right entails the opportunity to organize and participate in a peaceful assembly, including a
stationary assembly in a public location (a picket). It recalls that no restrictions on this right
are permissible unless they are (a) imposed in conformity with the law and (b) 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.
9.4 The Committee notes that, given that the State party has established a procedure for
organizing mass events but has denied the author’s application for authorization of the
planned picket, it has set a restriction on the exercise of the author’s right of peaceful
assembly. The issue before the Committee in the present case is therefore whether this
restriction is justified under the criteria set out in the second sentence of article 21 of the
Covenant. The Committee recalls that, if a State party imposes a restriction under article 21,
it is up to that State party to demonstrate that the restriction in question was necessary for
the aims set out in that provision.
9.5 The Committee takes note of the State party’s argument that the author was denied
authorization to hold a picket in relation to the alleged ban on political parties, which the
local authorities considered to be an invented problem. It also notes the State party’s
explanation that no decision to ban political parties has been taken and that therefore the

2 See, for example, communication No. 1785/2008, Olechkevitch v. Belarus, Views adopted on 18
March 2013, para. 7.3; communication No. 1784/2008, Schumilin v. Belarus, Views adopted on 23
July 2012, para. 8.3; communication No. 1841/2008, P.L. v. Belarus, Decision of inadmissibility
26 July 2011, para. 6.2.

3 See, for example, communication No. 1948/2010, Turchenyak and others v. Belarus, Views adopted
on 24 July 2013, para. 7.4.

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subject of the author’s picket conflicted with the right of citizens to receive reliable
information, as protected under article 34 of the Constitution and by the Law on Mass
Events of 30 December 1997. The Committee also notes the State party’s statement that the
above-mentioned law is aimed at creating the conditions for the realization of citizens’
constitutional rights and freedoms and for the protection of public safety and public order
when such events are held in public spaces. It further notes the author’s contention that the
national legislation on mass events does not spell out the notion of “invented problem” as a
ground for denying authorization to hold a mass event.
9.6 The Committee is called upon to establish whether the restriction imposed on the
exercise of the author’s right of peaceful assembly amounts to a violation of article 21 of
the Covenant. The Committee notes that authorization for the author’s planned picket was
denied by the decision of the Zhlobinsky District Executive Committee of the Gomel
Region, which was upheld by the domestic courts.
9.7 The Committee recalls that the rejection of a person’s right to organize a public
assembly on the basis of its content is one of the most serious interferences with the
freedom of peaceful assembly.
4 Furthermore, when a State party imposes restrictions with
the aim of reconciling an individual’s right and the aforementioned interests of general
concern, it should be guided by the objective of facilitating that right, rather than seeking
unnecessary or disproportionate limitations to it.
5 Any restriction on the exercise of the
right of peaceful assembly must conform to the strict tests of necessity and proportionality.
9.8 In the present case, the Committee observes that the State party has failed to
demonstrate that the denial of authorization to hold a picket, even if imposed in conformity
with the law, was necessary for any of the legitimate purposes set out in article 21 of the
Covenant. In particular, the State party has not specified why conducting the picket on the
subject concerned would pose a threat to public safety and public order, as claimed by the
State party. As to the alleged need to protect the rights of others to receive reliable
information, the State party has not demonstrated how that was consistent with the
legitimate purposes contained in article 21 of the Covenant and, in particular, why it was
necessary in a democratic society, the cornerstone of which is free dissemination of
information and ideas, including information and ideas contested by the Government or the
majority of the population.
6 Furthermore, the State party has not shown that those purposes
could only be achieved by the denial of the picket proposed by the author. The Committee
concludes that in the absence of any other pertinent explanations from the State party, the
facts as submitted reveal a violation, by the State party, of the author’s rights under article
21 of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional
Protocol to the International Covenant on Civil and Political Rights, is of the view that the
State party has violated the author’s right under article 21 of the Covenant.
11. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is
under an obligation to provide the author with an effective remedy, including adequate

4 Also see, for example, communication no. 1873/2009, Alekseev v. the Russian Federation, Views
adopted on 25 October 2013, para. 9.6.

5 See, for example, communication No. 1948/2010, Turchenyak and others v. Belarus, Views adopted
on 24 July 2013, para. 7.4

6 See, mutatis mutandis, communication No. 1274/2004, Korneenko v. Belarus, Views adopted on 31
October 2006, para. 7.3, which reads: “The reference to the notion of ‘democratic society’ in the
context of article 22 indicates, in the Committee’s opinion, that the existence and operation of
associations, including those which peacefully promote ideas not necessarily favourably received by
the government or the majority of the population, is a cornerstone of a democratic society.”

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compensation. The State party is also under an obligation to take steps to prevent similar
violations in the future.
12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory or subject to its
jurisdiction the rights recognized in the Covenant and to provide an effective and
enforceable remedy when it has been determined that a violation has occurred, the
Committee wishes to receive from the State party, within 180 days, information about the
measures taken to give effect to the Committee’s Views. The State party is also requested
to publish the present Views and to have them widely disseminated in Belarusian and
Russian in the State party.
[Adopted in English, French and Spanish, the English text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]

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Appendix
Individual opinion of Committee members Mr. Fabián Salvioli
and Mr. Víctor Rodríguez-Rescia (concurring)
We agree with the Committee’s decision in communication No. 1864/2009, Kirsanov v.
Belarus, in which it held the State internationally responsible for a violation of article 21 of
the International Covenant on Civil and Political Rights (on the right of peaceful assembly).
However, we believe that the Committee should also have found a violation by the State of
article 19 of the Covenant in this case. The facts show that the State’s prohibition of a
peaceful demonstration on the ground that there was “no reason” to hold the event
constitutes a serious violation of the right to freedom of expression.
The purpose of the demonstration, as the author clearly stated, was to attract public
attention to the State party’s policy against opposition political parties and grass-roots
movements and to protest against what was seen as an attempt by the State party to
dismantle the Belarus Communist Party.
7 There is no doubt that in the present case the
author’s expression of his opinion was the most important consideration, and peaceful
assembly was the means chosen to exercise that right. The violation was therefore of both
rights, but especially of the right to freedom of expression.
In the light of the facts, the Committee should simply apply the law, that is to say, the
Covenant. The arguments put forward by the parties serve as a point of reference that the
Committee may take into consideration when assessing the case, but they should not in any
way curtail the Committee’s authority to judge the case in the way it considers will best
fulfil the object and purpose of the Covenant.
As long as the Committee persists in restricting its own capacity to respond, it will continue
to adopt inconsistent decisions. At the same session at which these Views were adopted, the
Committee reached a different conclusion in another case involving the same State party
and similar events.
8
As we have previously stated in individual opinions concerning other communications, the
Committee sometimes applies articles of the Covenant that have not been invoked by the
parties in their submissions.
9 On other occasions such as this it does not. There is no
logic to this approach.
Putting an end to such inconsistencies would improve the Committee’s practice, better
implement the law, properly fulfil the object and purpose of the Covenant and give better
guidance to States in providing due reparation in cases in which they are found to be
internationally responsible.
[Done in English, French and Spanish, the Spanish text being the original version.
Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s
annual report to the General Assembly.]

7 See the Committee’s Views, para. 2.1.
8 Youbko v. Belarus, communication No. 1903/2009. See in particular the Committee’s considerations
in paras. 9.2 to 9.6.

9 Sedhai v. Nepal, communication No. 1865/2009, individual opinion of Committee members
Mr. Fabián Salvioli and Mr. Víctor Rodríguez-Rescia, para. 6. Footnote 3 of the joint opinion
provides 10 examples of Views in which the Committee applied articles not invoked by the parties.

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