Case no 1296/2004
2.1 The author is Chairperson of “Viasna”’s Council, a non-governmental association registered by the Ministry of Justice on 15 June 1999. By October 2003, it had more than 150 members in Belarus, 4 regional and 2 city registered branches. Its activities included monitoring the human rights situation in Belarus, and preparing alternative human rights reports on Belarus, which have been used and referred to by UN treaty bodies. “Viasna” monitored the Presidential elections of 2001, arranging for some 2000 people to observe the voting process, as well as the 2003 municipal council elections. It also organized protests and pickets in relation to various human rights issues. “Viasna” was frequently subjected to the persecution by the authorities, including administrative detention of its members and thorough scheduled and spontaneous inspections of its premises and activities by the Ministry of Justice and tax authorities.
2.2 In 2003, the Ministry of Justice undertook an inspection of the statutory activities of “Viasna”’s branches and, on 2 September 2003, filed a suit in the Supreme Court of Belarus, requesting the dissolution of “Viasna”, because of several alleged offences committed by it. The suit was based on article 29, of the Law “On Public Associations” and article 57, paragraph 2, sub-paragraph 2, of the Civil Procedure Code. [ Article 29 of the Law “On Public Associations” stipulates that an association can be dissolved by court order when: (1) it undertakes activities enumerated in article 3 [activities aimed at overthrowing or forceful change of the constitutional order; violation of the state’s integrity or security; propaganda of war, violence; incitation of national, religious and racial hatred, as well as activities that can negatively affect the citizens’ health and morals]: (2) it again undertakes, within a year, activities for which it had already received a written warning; and (3) the founding members committed offences of the present and other laws while at during the registration of the public association. Public association can be dissolved by court order for a single violation of the law on public actions in cases explicitly defined by the Belarus law. Article 57, paragraph 2, of the Civil Procedure Code envisages a procedure for dissolution of legal entity by court order when this entity is engaged in unlicensed activities or the activities prohibited by law or when it has repeatedly committed gross breaches of the law.] “Viasna” was accused of the following: having submitted documents with forged founding member signatures in support of its application for registration in 1999; the Mogilev branch of “Viasna” having only 8, rather than the required 10 founding members at the time of registration; non-payment of membership fees envisaged by “Viasna”’s statutes and non-establishment of a Minsk branch; acting in the capacity of a public defender of the rights and freedoms of citizens who are not members of “Viasna” in the Supreme Court, contrary to article 72 of the Civil Procedure Code, article 22 of the Law “On Public Association” [Article 22, paragraph 2, of the Law “On Public Associations” reads: ‘Public associations shall have a right to represent and defend the rights and legitimate interests of its members (participants) in the government, commercial and public bodies and agencies.’] and its own statutes; and offences against electoral laws allegedly carried out during its monitoring of the 2001 Presidential elections ...
2.3 On 10 September 2003, the Supreme Court opened a civil case against “Viasna” on the basis of the Ministry of Justice’s suit. On 28 October 2003, in a public hearing, a Supreme Court judge upheld the charges of breaching electoral laws but dismissed the other charges and ordered the dissolution of “Viasna”. With regard to the breaches of electoral law, the Supreme Court established that ‘Viasna’ did not comply with the established procedure of sending its observers to the meetings of the electoral commission and to the polling stations. The relevant paragraphs of the Supreme Court decision of 28 October 2003 read:
‘Namely, the association was sending empty forms of excerpts from the minutes of Rada’s meetings of 18 June, 1 and 22 July, 5 August 2001, to the Mogilev and Brest regions. Subsequently, these forms were arbitrarily filled-in with the names of citizens with regard to whom no decisions on sending them as observers had been taken; and who were not the members of this association.
In Postav district, one of the association’s members offered pay to the citizens, who were neither “Viasna”’s nor the other public associations’ members, to be observers at the polling stations, and have been filling-in in their presence the excerpts from the minutes of Rada’s meetings.
Similar breaches of the law in sending the public association’s observers occurred at the polling stations Nos. 30 and 46 of the Novogrudok district.’
The court found that the breach of the electoral laws was ‘gross’ enough to trigger the application of article 57, paragraph 2, of the Civil Procedure Code ... The court’s conclusion was corroborated by the written warning issued to “Viasna”’s governing body by the Ministry of Justice on 28 August 2001 and on the ruling of the Central Electoral Commission on Elections and Conduct of Republican Referendums (hereinafter, CEC) of 8 September 2001. The latter ruling was based on the inspections conducted by the Ministry of Justice and the Belarus Prosecutor’s Office.
2.4 The Supreme Court’s decision became executory immediately after its adoption. Under Belarus law, the Supreme Court’s decision is final and cannot be appealed on cassation. The Supreme Court decision can be appealed only through a supervisory review procedure and can be repealed by the Chairperson of the Supreme Court or the General Prosecutor of Belarus. The appeal of “Viasna”’s representatives to the Chairperson of the Supreme Court for a supervisory review of the Supreme Court’s decision of 28 October 2003 was rejected on 24 December 2003. There are no other available domestic remedies to challenge the decision to dissolve “Viasna”; domestic law outlaws the operation of unregistered associations in Belarus.
7.2 The issue before the Committee is whether the dissolution of “Viasna” amounts to a violation of the author and his co-authors’ right to freedom of association. The Committee notes that according to the author’s uncontested information, “Viasna” was registered by the Ministry of Justice on 15 June 1999 and dissolved by order of the Supreme Court of Belarus on 28 October 2003. It recalls that domestic law outlaws the operation of unregistered associations in Belarus and criminalizes the activity of individual members of such associations. 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 [ Korneenko et al v. Belarus, Communication No. 1274/2004, Views adopted on 31 October 2006, para.7.2.]. Given the serious consequences which arise for the author, the co-authors and their association in the present case, the Committee concludes that the dissolution of “Viasna” amounts to an interference with the author’s and his co-authors’ freedom of association.
7.3 The Committee observes that, in accordance with article 22, paragraph 2, in order for the interference with 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" indicates, in the Committee's opinion, that the existence and operation of associations, including those which peacefully promote ideas not necessarily favorably received by the government or the majority of the population, is a cornerstone of a democratic society ... The mere existence of reasonable and objective justifications for limiting the right to freedom of association is not sufficient. The State party must further demonstrate that the prohibition of an association is necessary to avert a real and not only hypothetical danger to national security or democratic order, and that less intrusive measures would be insufficient to achieve the same purpose [Jeong-Eun Lee v. Republi of Korea, Communication No. 1119/2002, Views adopted on 20 July 2005, para.7.2. ].
7.4 In the present case, the court order which dissolved “Viasna” is based on perceived violations of the State party’s electoral laws carried out during the association’s monitoring of the 2001 Presidential elections. This de facto restriction on the freedom of association must be assessed in the light of the consequences which arise for the author, the co-authors and the association.
7.5 The Committee notes that the author and the State party disagree over the interpretation of article 57, paragraph 2, of the Civil Procedure Code, and its compatibility with the lex specialis governing the legal regime applicable to public associations in Belarus. It considers that even if “Viasna”’s perceived violations of electoral laws were to fall in the category of the ‘repeated commission of gross breaches of the law’, the State party has not advanced a plausible argument as to whether the grounds on which “Viasna” was dissolved were compatible with any of the criteria listed in article 22, paragraph 2, of the Covenant. As stated by the Supreme Court, the violations of electoral laws consisted of “Viasna”’s non-compliance with the established procedure of sending its observers to the meetings of the electoral commission and to the polling stations; and offering to pay third persons, not being members of “Viasna”, for their services as observers (see, paragraph 2.3 above). Taking into account the severe consequences of the dissolution of “Viasna” for the exercise of the author’s and his co-authors’ 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 the association is disproportionate and does not meet the requirements of article 22, paragraph 2. The authors' 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.