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- Year: 2008
- Language: English
- Document Type: International Commission Finding
- Topic: Assembly and Protest,Defending Civil Society
Human Rights Committee
Communication No. 1784/2008
Views adopted by the Committee at its 105 th sessio n (9 to 27 July 2012 )
Submitted by: Vladimir Schumilin (not represented by counsel)
Alleged victim: The author
State party: Belarus
Date of communication: 17 March 2008 (initial submission)
Document references: Special Rapporteur’s rule 97 decision,
transm itted to the State party on 29 April 2008
(not issued in document form)
Date of adoption of Views: 23 July 2012
Subject matter: Sanctioning (fining) of an
individual for having distributed leaflets in
violation of the right to disseminate information
without unreasonable restrictions.
Substantive issues: Right to impart information; permissible
Procedural issues: Exhaustion of domestic remedies
Article of the Covenant: 19, paras . 2 and 3
Article of the Optional Protocol: 5, para . 2 (b)
United Nations CCPR /C/105/D/1784/2008
International Covenant on
Civil and Political R ights
5 September 2012
Views of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights (105 th session)
Communication No. 1784/2008 *
Submitted by: Vladimir Schumilin (not represented by counsel)
Alleged victim: The author
State party: Belarus
Date of communication: 17 March 2005 (initial submission)
The Human Rights Committee , established under article 28 of the International
Covenant on Civil and Political Rights,
Meetin g on 23 July 2012,
Having concluded its consideration of communication No. 1784/2008, submitted to
the Human Rights Committee by Vladimir Schumilin 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 is Vladimir Shumilin, a Belarusian national b orn in 1973. He claims to be a
victim of violation by Belarus of his rights under article 19, paragraph 2, of the
International Covenant on Civil and Political Rights . The Optional Protocol entered into
force for the State party on 30 December 1992. The au thor is unrepresented by counsel.
The facts as submitted by the author
2.1 On 12 February 2008, the author distributed leaflets 1 containing information on the
venue of a meeting in Gomel city with Mr. Milinkevich – a former candidate for the post of
* The following members of the Committee participated in the examin ation of the present
communication: Mr. Yadh Ben Achour, Mr. Lazhari Bouzid, Ms. Christine Chanet, Mr. Cornelis
Flinterman, Mr. Yuji Iwasawa, Mr. Walter Kälin, Ms. Zonke Zanele Majodina, Ms. Iulia Antoanella
Motoc , Mr. Michael O’Flaherty, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Fabi án Omar
Salvioli, Mr. Marat Sarsembayev, Mr. Krister Thelin and Ms. Margo Waterval.
1 The author submits a copy of the leaflets in question. It contains a photograph of Mr. Milinkevich,
and an explanation to the Gomel c itizens that a month ago the City’s Executive Committee was asked
to authori ze a public meeting with Mr. Milinkevich in the « Festivalny » Hall. It is explained that this
request was supported by more than 300 Gomel’s residents, and that the administration has later on
Pre sident of the Republic. The same day, he was apprehended by the police and a record
concerning the commission of an administrative offence under article 23.24 (part 1) of the
Code of Administrative Offences was established. The said article provides for th e
engagement of liability for violating the existing regulations on the organi zation and the
conduct of meetings, street rallies, demonstrations, other mass events or pickets. These
regulations are set by a specific law on mass events, whose article 8 forb ids anyone to
produce and disseminate information materials concerning events if the issue whether to
authori ze the event is still under consideration.
2.2 Given that the leaflets distributed by the author contained information concerning a
meeting of a politician with citizens, the police considered that the author was doing this in
breach of the law. The same day, the author was brought to the Court of the Soviet District
in Gomel. The Court immediately issued a ruling that by distributing leaflets for a non –
authori zed meeting, the author had breached the provisions of article 23.24 (part 1) of the
Code of Administrative Offences and fined him 1.05 million Belarusian roubles (equal at
that time to US$ 488 ). The author notes that the amount of the fine then exceeded the
average monthly salary in Belarus.
2.3 The author points out that nothing in the administrative case file indicated that the
court ha d based its conclusion on something other than the police record concerning him
distributing leaflets. The refore, the only question which had had to be examined by the
court would have been to verify whether by distributing leaflets about an upcoming meeting
amounted to a breach, by the author, of the regulations governing the organi zation of
peaceful assembly . In his opinion, neither the police nor the court made an effort to clarify
why the limitation of the author’s right to disseminate information in this case was
necessary for the purposes of article 19 of the Covenant.
2.4 On 29 February 2008, the Gomel Regional Court, on appeal, simply confirmed the
Soviet District Court’s decision, without providing a qualification of the author’s acts in
light of the Covenant’s provisions, in spite of the explicit request of the author in this
connection in his appeal claim. In particular, in his appeal, the author reminded the court
that the provisions of international treaties in force for Belarus prevail in case of conflict
with norms of domestic law, and that under the Vienna Law of the Treaties, national law
cannot be invoked to justify non -application of provisions of international law; under article
15 of the State party’s Law on international agreements, universally recogni zed principles
of international law and the provisions of international agreements into for ce for Belarus
are part of the domestic law. Article 19 of both the Universal Declaration of Human Rights
and the Covenant prescribe the freedom to disseminate information.
2.5 The author refers to the Committee’s jurisprudence in similar cases, and emph asi zes
that the restriction of his right was not necessary for purposes of national security, public
order, the defence of the morals and health of the population, or the freedoms of others .2 He
notes that the rights under article 19 are not absolute and m ay be restricted, but adds that
the provisions of the State party’s law on mass events restricting the right to disseminate
information cannot be in conformity with the State party’s obligations under the Covenant,
refused to authorise the meeting under an « invented » pretext. The text continues with an explanation
that the meeting with Mr. Milinkevich would take place anyway, on 15 February 2008, at 4 p.m. in an
area between buildings located at Nr. 9 4-98 at Barykin Street, and at 5.30, at the Yanaki Kupaly
Square. It is also explained that Mr. Milinkevich would expose his programme for overcoming the
social -economic problems, which have occurred due to the “short -sighted” policy of the “current
leader ship”, and he would also reply to questions. Finally, the leaflet contains a contact phone number
for further explanations.
2 The author refers in particular to case No. 780/1997, Laptsevich v. Belarus , Views adopted on 20
as they are not aimed at protecting the S tate security or safety, the public order, or
necessary for the protection of the health and morals of the population or for the protection
of the rights and freedoms of others.
2.6 The author explains that he has exhausted available effective domestic r emedies,
without submitting appeals under the supervisory review proceedings which do not lead
systematically to a review of a case and are thus not effective.
3. The author claims that the application of the law on mass events in his cas e resulted
in an unjustified limitation of his right to disseminate information under article 19, article 2,
of the Covenant.
State party’s observations on admissibility and merits
4.1 On 2 June and 4 August 2008, the State party provided its obser vations on the
admissibility and the merits of the communication. It explained that , on 12 February 2008,
the Court of the Soviet District of Gomel found the author guilty under article 23.34, part 1,
of the Code of Administrative Offences and sentenced hi m to a fine. The court found out
that , on 12 February 2008, the author together with another individual distributed leaflets
calling for the citizens to attend an unauthori zed meeting to take place on 15 February
2008. The police seized 1 ,933 leaflets in t heir possession. The State party explains that in
court, Mr. Shumilin had accepted his guilt, and that he did not complain to a prosecutor
about his administrative case. The court’s decision was confirmed on appeal, on 29
February 2008, by the Gomel Region al Court. This decision entered into force immediately,
and further appeals were only possible under the supervisory review proceedings.
4.2 The State party challenges the admissibility of the communication. It explains that
under the provisions of the Procedural -Execution Code on Administrative Offences (“P.E.
Code” hereafter ), the author could have introduced a request for a supervisory review of the
decision of the Gomel Regional Court with the President to the higher jurisdiction, the
President of t he Supreme Court in this case, but he failed to do so.
4.3 The State party explains that appeals under the supervisory review proceedings, as
set up under article 12.14 of the P.E. Code, suppose a verification of the legality of the
appealed decision, th e grounds for decision and its fairness, in light of the arguments
contained in the appeal. If the court reveals grounds for the improvement of the situation of
the individual concerned, the previous decision may be re -examined in part s, even if the
person had not requested this specifically in his/her appeal. Thus, according to the State
party, the author’s contention that supervisory proceedings are not effective is groundless.
The State party adds that the author is still in a position to file a supervis ory review appeal
with the Supreme Court.
4.4 On the merits, the State party rejects the author’s allegations in the present
communication as groundless. It explains that under article 23.34 of the Code of
Administrative Offences, violating the regulations on the organisation or carrying out of
assemblies, meetings, demonstrations or mass events, constitutes an administrative offence
and is subject to a warning or a fine. The material on file, including the leaflets in question,
makes it clear that the plan ned meeting was not authori zed. The leaflets contain a call to the
citizens to attend the event. Given that no authori zation for the said event has been
received, the acts of the author could only be considered as constituting a breach of the
regulation on the organi zation of mass events. The author breached article 8 of the law on
mass events, pursuant to which prior to the receipt of an authori zation to conduct a mass
event, it is forbidden to anyone without exception to prepare and disseminate informatio n
Author’s comments on the State party’s observations
5.1 On 22 September 2008, the author explains that he has not complained to the
prosecutor’s office because his complaint would not lead to the re -examination of his case
as such appeal s are non -efficient and do not lead to the examination of the merits of the
case. He notes that only effective and accessible remedies should be exhausted.
5.2 As to the State party’s contention that he had distributed leaflets calling for a
meeting p rior to the obtaining of an authori zation for the conduct of the event, the author
notes that the Covenant is directly applicable in the State party and that it guarantees the
freedom of everyone to freely disseminate all kind s of information. Even if this right is not
absolute, its restrictions may only be done if justified for the purpose of the permissible
limitations contained in article 19, paragraph 3 , of the Covenant. Given that the restrictions
of his rights were not justified under any of these per missible limitations, the authorities
have breached his rights under article 19, paragraph 2, of the Covenant.
5.3 The author adds that pursuant to article 8 of the Constitution, the State party accepts
the universally recogni zed principles of internation al law and ensures that national law
complies with them. He notes that States parties must fulfil their international obligations in
good faith, and points out that , according to articles 26 and 27 of the Vienna Law of the
Treaties, a party to an internati onal agreement cannot invoke its national law to justify non –
execution of the international treaty. He also notes that under article 15 of the State party’s
law on international treaties, the universally recogni zed principles of international law and
the p rovisions of the international treaties to which Belarus is a party constitute a part of the
domestic law. Article 19, paragraph 2, of the Covenant guarantees the freedom of
expression, including the right to disseminate information. This right can only be limited
for the purposes listed in article 19, paragraph 3 ,of the Covenant. The grounds invoked by
the courts when engaging his administrative liability in his case are not, according to the
author, justifiable under any of the permissible limitations.
Additional observations by the State party
6.1 On 26 March 2009, the State party provided additional information. It note d, first,
that the author is not correct when declaring that an appeal to the prosecutor’s office does
not lead to a re -examination of a case and that the supervisory appeal to the Supreme Court
is not effective. In support, the State party provides statistical data, according to which in
2007, the Supreme Court examined appeals in 733 administrative cases, including at the
request of the prosecutors’ office. The Chairperson of the Supreme Court quashed or
modified the decisions (rulings) in 116 cases (63 at the request of the prosecutor’s office).
In 2008, 171 such decisions were quashed or modified, 146 out of which were initiated by
the prosecutor’s office. A total of 1 ,071 administrative cases were examined by the
Supreme Court in 2008. Thus, in 2007, the Supreme Court has quashed or modified
decisions in administrative cases in 24.4 per cent of the cases appealed, and in 2008, this
figure constitutes 29.6 per cent.
6.2 The State party next contends that the author’s affirmation that the decision to have
his administrative liability engaged was not justified under article 19, paragraph 3, of the
Covenant, is groundless. The law on mass events regulates the organi zation and conduct of
assemblies, meetings, demonstrations, street rallies, pickets, etc. Its preamble makes it clear
that the aim of creat ing such a framework is to set up the conditions for the reali zation of
the constitut ional rights and freedoms of the citizens and the protection of the public safety
and public order when such event s are conducted on the streets, squares, or other public
area. The author has breached the limitations under article 23.34 of the Code of
Admi nistrative Offences and article 8 of the Law on Mass Events, which are necessary for
the protection of the public safety and order during the conduct of gatherings, meetings,
street rallies, etc.
6.3 The State party adds that the right to freely express an opinion is guaranteed by
article 19 to all citizens of the States parties to the Covenant. It explains that , as a party to
the Covenant, it fully recogni zes and complies with its obligations thereon. Article 33 of the
Constitution guarantees the freedom of opinion and beliefs and their free expression. Even
if the right to freedom of expression is considered as one of the main human rights, it is not
absolute. Article 19 is not included in the list of articles, which cannot be derogated at any
circumstan ces, contained in article 4 of the Covenant. Thus, the exercise of these rights can
be restricted by the State, provided that the limitations are provided by law, have a
legitimate aim, and are necessary in a democratic society.
6.4 Pursuant to article 23 of the Constitution, limitations of rights and freedoms are
permitted only if they are provided by law and are in the interest of national security, public
order, protection of morals and health of the population, and the rights and freedoms of
others. Si milarly, article 19, paragraph 3, of the Covenant provides that the rights set up in
paragraph 2 of the same provision imply special obligations and particular responsibility.
The exercise of these rights can therefore be limited, but the limitations must be provided
by law and be necessary for the respect of the rights and reputation of others, the protection
of the public order, health or morals .3
6.5 According to the State party, the above -mentioned permits it to conclude that the
reali zation of the ri ght to receive and disseminate information can be achieved exclusively
in a lawful manner, i.e. in the framework of the existing legislation of a State party to the
Covenant. The current Belarusian legislation offers the necessary conditions for the free
expression of the opinion by the citizens, and for the receipt and dissemination of
6.6 The State party contends that the author induces the Committee into error
concerning the existing legislation. Thus, pursuant to article 2.15, part 2, poi nt 7, of the P.E.
Code, a prosecutor, within his/her powers, can introduce a protest motion against court
rulings on administrative cases which are contrary to the existing legislation. Article 2.15,
point 1, of the same Code provides that court rulings on administrative cases which have
entered into force can be re -examined, in particular following a protest motion introduced
by a prosecutor. Article 12.14, point 2 , of the Code provides that following the examination
of the protest motion, the attacked rul ing may be annulled partly or in its totality, and the
case may be referred back for a new examination. Article 12.11, point 3, fixes a six months’
timeframe for the introduction of protest motions, starting as of the date of the entry into
force of the at tacked rulings. Therefore, an appeal to the prosecutor’s office may lead to a
re-examination of the merits of an administrative case. In the present case, the author
consciously has not availed himself of all domestic remedies of legal protection available to
Additional comments by the author
7.1 On 9 March 2011, the author reiterates that , according to him, supervisory review
appeals do not constitute an effective remedy, due to the fact that their examination is left at
the discretion of a single official, and if an appeal is granted, it would not lead to an
examination of elements of facts and evidence. The author notes that the Committee has
3 In this connec tion, the State party also notes that article 29 of the Universal Declaration of Human
Rights provides that “(1) everyone has duties to the community in which alone the free and full
development of his personality is possible ” and that “(2) in the exercise of his rights and freedoms,
everyone shall be subject only to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society ”.
dealt with this issue on several occasions, and has concluded that it is not necessary to
appeal under the supervisory review proceedings for purposes of article 5, paragraph 2 (b),
of the Optional Protocol. The author also notes that the existing law does not allow
individuals to file complaints to the Constitutional Court.
7.2 The author disagrees with the State party ’s rejection of his contention that his
administrative case was not grounded under any of the permissible restrictions listed in
paragraph 3 of article 19 of the Covenant, and he explains that the courts’ decision in the
case do not contain suc h argumentation. The judges in his case only referred to the national
laws in their decisions, and ignored completely the State party’s obligations under
international law. With reference to the Committee’s case -law ,4 the author notes that the
Committee ha s decided that giving a priority to the application of national law over the
Covenant’s provisions was incompatible with the State party’s obligations under the
Covenant. Pursuant to article 8, part 1, of the State party’s Constitution, when they were
exam ining his case, the courts were obliged to bear in mind the prevalence of the State
party’s international obligations over its national law’s provisions.
7.3 The author reiterates that the Covenant’s provisions prevail over national law and
are part of i t. He emphasi zes that limitations of the right to disseminate information must be
justified under article 19, paragraph 3, of the Covenant but this was not done in this case,
and thus his right to freedom of expression was unduly restricted.
Issues and p roceedings before the Committee
Consideration of admissibility
8.1 Before considering any claims contained in a communication, the Human Rights
Committee must, in accordance with rule 93 of its rules of procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
8.2 The Committee notes, as required by article 5, paragraph 2 (a) , of the Optional
Protocol, that the same matter is not being examined under any other procedure of
international investigation or settlement.
8.3 As to the issue of exhaustion of domestic remedies, the Committee has noted the
author’s explanation that he has not sought to have the decision of the Court of the Soviet
District of Gomel of 12 February 2008 or the decision, on appeal, of the Gomel Regional
Court of 29 February 2008, examined under the supervisory review proceedings, as such a
remedy is neither effective nor accessible. The Committee also notes the State party’s
objections in this respect, and in particular the statistical figures p rovided in support,
intending to demonstrate that supervisory review was effective in a number of instances.
However, the State party has not shown whether and in how many cases supervisory review
procedures were applied successfully in cases concerning fr eedom of expression. The
Committee recalls its previous jurisprudence, according to which 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, p aragraph 2 (b), of the
Optional Protocol .5 In light of this, the Committee considers that it is not precluded by the
requirements of article 5, paragraph 2 (b), of the Optional Protocol, to examine the present
4 The author refer s in particular to the Committee’s Views in communication No. 628/1995, Pak v.
Republic of Kore a.
5 See, for example, communication No. 1814/2008, P.L. v. Belarus , Inadm issibility decision of 26 July
2011, paragraph 6.2.
8.4 The Committee considers th at the author has sufficiently substantiated his claim of a
violation of his rights under article 19, paragraph 2 , of the Covenant. Accordingly, it
declares the communication admissible, and proceeds with its examination on the merits.
Consideration of t he merits
9.1 The Human Rights Committee has considered this communication in the light of all
the information recei ved, in accordance with article 5, paragraph 1, of the Optional
9.2 The issue before the Committee is whether the author’s fine for having distributed
leaflets concerning two meetings of the Gomel population with a political opponent, for
which authori zation had not been given , has violated his rights under article 19, paragraph
2, of the Covenant.
9.3 The Committee recalls in th is respect its general comme nt No. 34, in which it stated
inter alia that freedom of opinion and freedom of expression are indispensable conditions
for the full development of the person, that they are essential for any society, and that they
constitute th e foundation stone for every free and democratic society. Any restrictions to
freedom of expression must conform to the strict tests of necessity and proportionality and
“must be applied only for those purposes for which they were prescribed and must be
directly related to the specific need on which they are predicated” .
9.4 The Committee has noted the State party’s explanation that under its law on mass
events, no information concerning possible meetings can be disseminated before the official
authori zation of the said meeting by the competent authorities and that the author’s action
constituted an administrative offence. The State party has also acknowledged that the right
to freedom of expression may only be limited in line with the requirements set up in article
19, paragraph 3, of the Covenant, without explaining, however, how, in practice, in this
particular case, the author’s actions affected the respect of the rights or reputations of
others, or posed a threat to the protection of national security or of public order ( ordre
public ), or of public health or morals. The Committee recalls that it is for the State party to
show that the restrictions on the author’s right under article 19 are necessary and that even
if a State party may introduce a system aiming to strike a balance between an individual’s
freedom to impart information and the general interest in maintaining public order in a
certain area, such a system must not operate in a way that is incompatible with article 19 of
the Covenant. In light of the refusal of the Gomel Regional Court to examine the issue on
whether the restriction of the author’s right to impart information was necessary, and i n the
absence of any other pertinent information on file to justify its authorities’ decisions under
article 19, paragraph 3, the Committee considers that the limitations of the author’s rights in
the present case were incompatible with the requirements of this provision of the Covenant.
It therefore concludes that the author is a victim of a violation b y the State party of his
rights under article 19, paragraph 2, 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
facts before it disclose a violation of the author’s rights under article 19, paragraph 2, of the
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 effe ctive remedy, including the
reimbursement of the present value of the fine and any legal costs incurred by the author , as
well as compensation. The State party is also under an obligation to take steps to prevent
similar violations in the future. In this c onnection, the State party should review its
legislation , in particular the Law on Mass Events, and its application, to ensure its
conformity with the requirements of article 19, of the Covenant.
12. Bearing in mind that, by becoming a party to the Optio nal 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 in case a violation has been established, the Committee wishes to
receive from the State party, within 180 days, i nformation 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.]