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Property and Income

Korneenko et al v Belarus, 31 October 2006 [HRC]

Case no 1274/2004

2.1 The author is the Chairperson of the Gomel regional association “Civil Initiatives”, registered by the Department of Justice of Gomel Regional Executive Committee (the Department of Justice) on 30 December 1996 and re-registered on 29 September 1999. On 13 May 2002, the Department of Justice gave a written warning to the “Civil Initiatives’” Governing Board about a violation of domestic law. “Civil Initiatives” was accused of improper use of equipment, received through foreign grants, for the production of propaganda materials and the conduct of propaganda activities, contrary to paragraph 4, part 3, of Presidential Decree No.8 “On Certain Measures for Improvement of Procedure for Receipt and Use of Foreign Grants” of 12 March 2001 (Presidential Decree No.8). The latter prohibits the use of such grants for the preparation of gatherings, meetings, street processions, demonstrations, pickets, strikes, the production and dissemination of propaganda materials, as well as the organization of seminars and other forms of propaganda activities. According to the author, the evidence on which this warning was based [The Department of Justice’s warning is based on the written submission of 25 April 2002 by the Inspector of the Ministry of Customs and Duties of the Zheleznodorozhny District of Gomel, on the results of her audit of tax payments by “Civil Initiatives”] was obtained illegally by the Department of State Security Committee of Gomel Oblast (DSSC). On an unspecified date, the author appealed this reprimand to the Gomel Regional Court. On 2 August 2002, the Court refused to initiate proceedings, on the ground that the applicant did not have a right to file such a suit in a court of general jurisdiction. On an unspecified date, this ruling was appealed to the Supreme Court and, on 26 August 2002, the Supreme Court quashed the ruling and returned the case to the Gomel Regional Court, directing it to initiate proceedings. Proceedings were initiated on 3 September 2002, and the case was referred for hearing. On 16 September 2002, the Gomel Regional Court suspended proceedings, on the ground that the Supreme Court was at that time simultaneously considering an appeal submitted by the author in relation to an administrative case. On an unspecified date, the author appealed this ruling to the Supreme Court, which again quashed it on 10 October 2002, returning the case to the Gomel Court. On 4 November 2002, the Gomel Court considered the author’s case on its merits and upheld the Department of Justice’s warning of 13 May 2002. The latter decision was upheld by the Supreme Court on 23 December 2002. The author’s appeal of 4 November 2002 to the Chairman of the Supreme Court for a supervisory review was rejected on 12 February 2003. As a result, the warning of the Department of Justice stayed on “Civil Initiatives’” record.

2.2 From 1 to 30 April 2003, the Department of Justice undertook an inspection of “Civil Initiatives’” statutory activities and, on 30 April 2003, filed a suit in the Gomel Regional Court, requesting the dissolution of “Civil Initiatives”. Article 29, paragraph 2, of the Law “On Public Associations” stipulates that an association can be dissolved by court order if it again undertakes, within a year, activities for which it had already received a written warning. Article 57, paragraph 2, sub-paragraph 2, of the Civil Procedure Code also envisages a procedure for the dissolution of a legal entity. This time, “Civil Initiatives” was accused of (1) improper use of equipment, received through foreign grants, for the production of propaganda materials and the conduct of propaganda activities; (2) production of an information bulletin in quantities exceeding the association’s internal demand; (3) opening a number of district branches without obligatory state registration, contrary to paragraph 4.1 of the association’s statutes; (4) forgery of documents and incompatibility of the letterhead with legal requirements; and (5) creation of a number of independent organizational structures as “resource centres” for civil society support. The author asserts that after the suit for the dissolution of “Civil Initiatives” was filed in court, the court proceedings on the matter were adjourned upon the request of the Minister of Justice, due to the visit to Gomel on 26 May 2003 of the Head of the OSCE Parliamentary Assembly’s Working Group.

2.3 At the hearing on 17 June 2003, the author explained that the Department of Justice’s inspection in April 2003 was undertaken without any “Civil Initiatives” representatives present, and only on the basis of written materials presented by the association. He further challenged the allegation that the association’s use of equipment, received through foreign grants, was contrary to Presidential Decree No.8, and advanced arguments in support of his claim. He questioned the authenticity of the copies of the information bulletin before the Court and requested an expert examination. The author referred to paragraph 4.2 of the association’s statutes, according to which the state registration of district branches is not required where they are not intended to have a distinct legal capacity. He denied that the association’s letterhead failed to comply with legal requirements, and stated that the resource centres mentioned in the Department of Justice’s suit were, in fact, the association’s activities, rather than independent organizational structures. On the same day, the Gomel Regional Court ordered the dissolution of “Civil Initiatives” on grounds 1, 4 and 5 argued by the Department of Justice (paragraph 2.2. above). 

2.4 This decision was upheld by the Supreme Court on 14 August 2003, and, subsequently, it became executory. The author’s appeal to the Prosecutor’s Office for a supervisory review of the dissolution decision was rejected on 3 October 2003, despite the fact that the prosecutor who participated in the Supreme Court hearing of 14 August 2003 stated that the ‘guilt’ of “Civil Initiatives” had not been proven. The author’s appeal of 6 November 2003 to the Chairman of the Supreme Court for a supervisory review of that decision was rejected on 21 November 2003.

2.5 The author filed a counter-claim on 16 May 2003, requesting the Court to initiate proceedings to protect the “Civil Initiatives’” business image in the light of ‘patently false information’, appearing in the Department of Justice’s suit to the Gomel Regional Court. On 21 May 2003, the Court refused to initiate proceedings, on the ground that the applicant did not have a right to file such a suit in a court of general jurisdiction. This decision was upheld by the Supreme Court on 30 June 2003. Domestic law outlaws the operation of unregistered associations in Belarus.

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7.2 The key issue before the Committee is whether the dissolution of “Civil Initiatives” amounts to a restriction of the author’s right to freedom of association, and whether such restriction was justified. The Committee notes that according to the author’s information, which is uncontested, “Civil Initiatives” was registered by the Department of Justice on 30 December 1996, re-registered on 29 September 1999 and dissolved by order of the Gomel Regional Court on 17 June 2003. It notes that domestic law outlaws the operation of unregistered associations on the territory of Belarus. In this regard, the Committee observes that the right to freedom of association relates not only to the right to form an association, but also guarantees the right of such an association freely to carry out its statutory activities. The protection afforded by article 22 extends to all activities of an association, and dissolution of an association must satisfy the requirements of paragraph 2 of that provision. In the light of the serious consequences which arise for the author and his association in the present case, the Committee considers that the dissolution of “Civil Initiatives” amounts to a restriction of the author’s right to freedom of association.

7.3 The Committee observes that, in accordance with article 22, paragraph 2, in order for the interference with the right to freedom of association to be justified, any restriction on this right must cumulatively meet the following conditions: (a) it must be provided by law; (b) may only be imposed for one of the purposes set out in paragraph 2; and (c) must be "necessary in a democratic society" for achieving one of these purposes. 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. 

7.4 In the present case, the court order dissolving “Civil Initiatives” is based on two types of perceived violations of the State party’s domestic law: (1) improper use of equipment, received through foreign grants, for the production of propaganda materials and the conduct of propaganda activities; and (2) deficiencies in the association’s documentation. These two groups of legal requirements constitute de facto restrictions and must be assessed in the light of the consequences which arise for the author and “Civil Initiatives”.

7.5 On the first point, the Committee notes that the author and the State party disagree on whether “Civil Initiatives” indeed used its equipment for the stated purposes. It considers that even if “Civil Initiatives” used such equipment, the State party has not advanced any argument as to why it would be necessary, for purposes of article 22, paragraph 2, to prohibit its use ‘for the preparation of gatherings, meetings, street processions, demonstrations, pickets, strikes, production and the dissemination of propaganda materials, as well as the organization of seminars and other forms of propaganda activities’.

7.6 On the second point, the Committee notes that the parties disagree over the interpretation of domestic law and the State party’s failure to advance arguments as to which of the three deficiencies in the association’s documentation triggers the application of the restrictions spelled out in article 22, paragraph 2, of the Covenant. Even if “Civil Initiatives’” documentation did not fully comply with the requirements of domestic law, the reaction of the State party’s authorities in dissolving the association was disproportionate. 

7.7 Taking into account the severe consequences of the dissolution of “Civil Initiatives” for the exercise of the author’s right to freedom of association, as well as the unlawfulness of the operation of unregistered associations in Belarus, the Committee concludes that the dissolution of “Civil Initiatives” does not meet the requirements of article 22, paragraph 2 and is disproportionate. The author's rights under article 22, paragraph 1, have thus been violated.  

8. 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 information before it discloses a violation by the State party of article 22, paragraph 1, of the Covenant. 

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Jurisprudence

Impact on activities Foreign states Confiscation Pursuant to dissolution Sources Economic activities Restrictions on use