Irina Criveț is a PhD candidate at the Koç University Public Law programme.
This post considers Belarus’ persistent non-compliance and non-cooperation with the HRC with respect to violations of freedom of expression and assembly that have continued since 2010. This situation is highlighted by the HRC’s statistical survey of individual complaints from March 2016. The post commences by considering Belarus’ record before the HRC and the UN treaty bodies, with a focus on the flawed Belarussian legislation on mass events that produces clone cases on violations of the freedoms of expression, association and assembly. It then turns to analyse Belarus’ persistent refusal to recognise the HRC’s authority and implementation of its views, and the current trends relating to Belarus’ poor compliance record. It argues that the growing challenge of handling repetitive cases – which have also come out of Denmark, Cameroon, Canada, Australia, and Jamaica – demonstrates a pressing need to take stock of the deficiencies in the implementation of the HRC’s views and develop an effective mechanism to enhance their ability to ensure compliance.
Belarus’ unrelenting anti-free speech practice
Belarus ratified the ICCPR on 12 November 1973. The State then accepted the individual complaints procedure enshrined in the Optional Protocol (OP) on 30 September 1992. Since then the country has ratified CAT, CEDAW, CERD, CESCR and CRC. According to the OHCHR database, as of 13 February 2017, the HRC adopted 96 views against Belarus, out of which 43 views concern violations of Articles 19, 21 and 22. The reason for the systematic character of Belarus’ violations of the freedoms of expression and assembly is structural: such institutional practice is sanctioned by Belarus’ domestic laws.
Belarus’ Law on Mass Events has allowed the authorities to create a climate of fear and intimidation by restricting the right to hold assemblies, and rendering efforts to hold assemblies procedurally over-cumbersome. The Law on Mass Events, enacted on 30 December 1997 and amended several times, enabled a crackdown on political opposition and dissent and led to a clear deterioration of the human rights situation in the country in the aftermath of the presidential elections in December 2010. In 2011, amendments to the law were criticized for being passed without public consultation. The narrowing of the grounds for lawful demonstrations has led to a further shrinking of the space for public dissent and gave way to unregulated behaviour by intelligence and law enforcement agencies.
In Aleksandrov and Bazarov (both in para. 4.2), Belarus argued that based on Article 35 of the Belarusian Constitution every citizen is guaranteed the right to hold assemblies, meetings, street marches, demonstrations and pickets, as long as in doing so they did not violate the law or breach the rights of others. Belarus claimed that the Law on Mass Events aims to create conditions for the enjoyment of constitutional rights and freedoms of citizens, and the protection of public order and safety when such events are carried out in public spaces. Belarus stood by a similar reasoning in Kirsanov (para. 6.1) where it added that under Article 34 of its Constitution “citizens shall be guaranteed the right to receive reliable information on the activities of State bodies and public associations.”
When examining individual complaints, the HRC has repeatedly held that Belarus has failed to strike an appropriate balance between the applicant’s freedom to impart information and the general interest in maintaining public order, as required under Article 19(3) of the ICCPR. The HRC has repeatedly underlined that Belarusian laws restrict the right to peaceful assembly without lawful justification in a manner that fails the proportionality and necessity tests, and that Belarus has an obligation to reform these laws through general measures so as to bring its conduct into conformity with the ICCPR. Yet, none of the HRC’s decisions and recommendations to the State in these cases have been implemented by the Belarusian authorities.
In 2011 Belarus decided to withdraw its cooperation with the HRC in relation to communications concerning violations of freedoms of assembly and expression. It has since persistently failed to provide observations on the admissibility and merits of allegations made before the HRC by individual complainants. The HRC has denounced Belarus for its failure to cooperate with the Committee in the examination of more than 60 communications in violation of its obligations under the OP to the ICCPR.
Belarus has invoked three recurrent justifications for its noncompliance: Firstly, Belarus argued that the applicants abused the right to submission under Article 3 of the OP when communications are brought by a third party and not by the authors themselves (see: Kozlov, para. 4.1 and Turchenyak, para. 4.2-4.3). Belarus further maintains that it accepted the competence of the HRC under Article 1 of the OP to receive and consider communications from individual subjects under its jurisdiction who claim to be victims of a violation by the State party of any of the rights set forth in the ICCPR, but not from third parties such as a legal counsel or non-governmental organisation (see also: Youbko, para. 6, Symonik, para. 4.1). Belarus also argued that the HRC’s admission of communications submitted by third parties on behalf of individuals alleging violations of their rights is an abuse of the HRC’s mandate, and of the right granted to individuals by the OP to submit such communications. As such, Belarus argued that the registration and admission of such communications violates Article 3 of the OP (Symonik, para. 4.5). The HRC replied that Belarus fails to meet its obligations under the OP if it denies the right of an individual to be represented by a lawyer (or a designated person) of his or her choice before the HRC (Symonik, par. 5.2).
In a second recurrent justification for non-compliance, Belarus argued that many of the applicants failed to exhaust domestic remedies as required under Article 5 of the OP because they had refused to trigger the ‘supervisory review procedure’ which enables individuals to challenge a res judicata court ruling in an administrative case through the Office of the Prosecutor-General (Article 12.11 of the Belarusian Code of Administrative Procedure). In the cases of Aleksandrov and Bazarov (para. 4.1), for instance, Belarus argued that the procedure is an effective remedy which facilitates a review of the decisions of domestic courts and can challenge the internationally unlawful actions of a domestic authority.
Since 2012, the HRC has repeatedly held that the Belarusian supervisory review procedure does not constitute an effective remedy which has to be exhausted as per Article 5, para. 2(b) of the OP in the case of domestic court decisions that have already entered into force (see also: Schumilin, Olechkevitch, Kirsanov). The HRC has requested that Belarus demonstrate that this procedure has in fact been successful in providing an effective remedy with respect to violations of the right to peaceful assembly, but all to no avail (Kirsanov, para. 8.3). Belarus’ refusal to cooperate with the HRC constitutes a violation of its obligation under the OP to make relevant information available to the HRC upon request. Irrespective of the quality of the State party’s reply, or indeed the absence of one, the HRC is obliged to examine the merits of the complainant’s allegations.
Thirdly, Belarus has maintained that it does not accept the HRC’s rules of procedure and interpretation. On 25 January 2012, Belarus informed the HRC that it would suspend its cooperation with the Committee on some 60 communications. In particular, it claimed that the HRC was not interpreting its rules of procedure in accordance with the Vienna Convention on the Law of the Treaties, and that “the Committee’s long-standing practice, methods of work, case law are not subject of the Optional Protocol” (see for example: Koktish, para. 4.6). To consolidate its rejectionist stance towards the HRC, which it argues is ultra vires of its mandate, it further submitted that “any communication registered in violation of the provisions of the Optional Protocol to the Covenant on Civil and Political Rights will be viewed by the State party as incompatible with the Protocol and will be rejected without comments on the admissibility or on the merits.” Finally, Belarus held that in line with the foregoing, it rejects the HRC’s decisions on communications, and considers them to be “invalid” (Koktish, para. 4.6).
In response to this, the HRC recalled that Article 39 (2) of the ICCPR gives the Committee the authority to establish its own rules of procedure, which States parties have agreed to recognize. By relying on the Preamble and Article 1 of the OP, the HRC has argued that State parties are presumed to accept its competence to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the ICCPR. Furthermore, the HRC argued that once a state ratifies the OP, it undertakes to cooperate with the HRC in good faith. The HRC has affirmed that “by failing to accept the competence of the Committee to determine whether a communication shall be registered and by declaring beforehand that it will not accept the Committee’s determination of the admissibility and of the merits of the communications, the State party violates its obligations under article 1 of the Optional Protocol” (see for example: Bazarov, Symonik, Koktish and Kozlov).
Belarus’ record of persistent non-compliance
On 9 February 2016, the UN Special Rapporteur on the situation of human rights in Belarus, Miklós Haraszti, warned the Belarusian government that, amongst other important concerns, the permit regime for public assemblies should be nullified to guarantee the enjoyment of the freedom of expression and peaceful assembly. Specifically, he called for Article 193(1) of Belarus’ Criminal Code – which criminalises membership in associations and participation in unauthorised public events – to be revised accordingly. In his latest report released on 21 April 2016, the Special Rapporteur noted that these much-needed legislative changes have still not been undertaken.
Belarus’ non-compliance record is alarming. In nearly every one of its sessions, the HRC has adopted views in individual cases of violations of freedoms of expression and assembly by Belarus. For instance, at its 118th session in October and November 2016, the HRC adopted views on communications regarding Belarus, two of which pertain to violations of freedom of expression and assembly resulting from the Law on Mass Events. The HRC’s pronouncements on Belarus have had dire effects on the HRC’s ability to bring about Belarus’ compliance with the ICCPR and its OP. But they also signal that Belarus’ cooperation with the Committee on these matters has come to a halt.
The mandate holder in charge of the follow-up to the HRC’s concluding observations – the Special Rapporteur for Belarus – observed that Belarus has failed to regularly provide information in line with its reporting obligations under the ICCPR. Belarus has also failed to provide information to the Special Rapporteur for follow-up on the implementation of the HRC’s views. Alike other States, Belarus maintains that the HRC’s views are not stricto sensu legally binding. But its non-cooperation with the HRC and its effective rejection of the Committee’s authority to monitor, report and adjudicate individual complaints on specific issue-areas, is uniquely persistent. Despite the potentially harmful effects of such practice on the norms and institutions of IHRL, little has been done in response by the UN human rights mechanisms to reproach and chastise Belarus.
Lessons from the ECtHR?
While the HRC maintains that Belarus’ laws and regulations must be reformed to enable Belarussians to enjoy their freedoms of expression and assembly, it also continues to accept individual complaints relating to violations of the Covenant that result from the regular application of Belarus’ domestic laws. The predicament exemplified by the case of Belarus is question-begging: how could and indeed should the UN human rights treaty body system respond to the challenge of repetitive cases, systemic non-compliance and perennial non-cooperation?
Since the HRC appears to lack the necessary means to redress such cases of perpetual non-compliance, and has done all it can with a mandate oriented towards individual complaints, an efficient mechanism to ensure the implementation of HRC recommendations and views seems necessary. One suggestion to this effect was tabled in 2016, in a joint submission to the HRC by REDRESS, TRIAL, CCPR Centre, and the Human Rights Implementation Centre. This joint submission recommended that the HRC strengthen its implementation assessment mechanism and use a wider range of measures against States that fail to comply or cooperate with a treaty body. It is clear that the ‘naming and shaming’ of States unwilling to implement the HR’s views is doing little to encourage State compliance. The ‘carrot and stick’ approach which uses a set of ‘weak sanctions’ and assistance measures might work for some States, but is unlikely to bring about the necessary legislative reforms in States like Belarus that reject the HRC’s views on a given set of issues.
To this end, the HRC could look at the practice of the ECtHR in handling repetitive cases and States’ non-compliance by establishing the ‘pilot judgment procedure’ that permits it to prescribe remedies for a systemic problem by adjudicating an individual case. The HRC could look to nurture a closer relationship with State parliaments and judiciaries to further the implementation of its views alongside recommendations made in its concluding observations. It could offer guidance to the State’s parliament to amend and enact legislation, and encourage its judiciary to give effect to and enforce the State’s obligations under the ICCPR through its judicial practice.
There is a growing urgency for the HRC to examine its current predicament by endeavouring to further its influence over domestic legal practice. The ongoing efforts to reform the UN treaty body system is an opportune moment to strengthen the HRC’s enforcement powers, including by strengthening the mandate and capacity of the Special Rapporteur for follow-up on views. Such efforts go hand in hand with the need to further the compliance pull and enforceability of its quasi-judicial decisions. The challenge of ensuring the implementation of the HRC’s views is not only part of a State party’s obligations under the ICCPR, but indeed of the increasingly important role of UN treaty bodies as a universal forum for individual victims of IHRL violations.
 United Nations Treaty Collection, Status of Treaties, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en.
 United Nations Human Rights Office of the High Commissioner, Human Rights Bodies, View the ratification status by country or by treaty, Ratification Status for Belarus, http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=16&Lang=EN.
 European Commission for Democracy Through Law (Venice Commission) and OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Joint Opinion on The Law on Mass Events of the Republic of Belarus, 20 March 2012, par. 17.
 Para. 11. A/HRC/32/48, para. 29-63 regarding freedoms of expression, media, assembly and association.