Case no 1039/2001
2.1 On 12 November 2000, 114 individuals, including the author, held the constituent assembly of the non-governmental human rights public association “Helsinki XXI”, established to help with the implementation of the U.N. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the Declaration) in Belarus. On 11 December 2000, they applied to the Ministry of Justice for registration of the association. On 11 January 2001, the Ministry of Justice suspended the registration, as there were discrepancies between the number of members present at the constituent assembly, the number who participated in the voting and the list of founders submitted to the Ministry. The leadership of the association was invited to amend the application and to resubmit it for registration within a month.
2.2 On 9 February 2001, an amended application for registration was submitted to the Ministry of Justice. On 11 July 2001, the Ministry rejected the application, referring to paragraph 11 of the Regulations “On State Registration (Re-registration) of the Political Parties, Trade Unions and Other Public Associations” (the Regulations), approved by the Presidential Decree of 26 January 1999 (Presidential Decree), because: (1) one of the “Helsinki XXI” statutory activities was to represent and to defend the rights of third persons, which, according to the Ministry, was contrary to the Declaration, the Belarus Constitution and other laws [Reference is made to article 62 of the Constitution; article 72, part 2, paragraph 3, of the Civil Procedure Code; articles 44, 46 and 56 of the Criminal Procedure Code; article 22 of the Law “On Public Associations”]; (2) doubts existed as to the validity of the association’s creation, the adoption of its statutes and other decisions at the constituent assembly, as there were 114 individuals listed in the minutes of the constituent assembly, whereas the number of those who voted varied between 98 and 109. On the first point, the Ministry specifically referred to paragraphs 2.2.1 (to promote and protect human rights and freedoms at national and international levels), 2.2.2 (to render free assistance and consultations on the issues of human rights protection), 2.3.3 (to provide free legal assistance to “Helsinki XXI’” members, other citizens and associations that ask for help, by protecting their rights and interests in courts, before the state bodies and other organisations) and 2.4.5 (to represent and defend the rights and interests of its members and other citizens who asked for help in state, commercial and public institutions and organizations free of charge) of the “Helsinki XXI’” statutes.
2.3 On 18 July 2001, the author and two other founders appealed the Ministry’s decision of 11 July 2001 to the Supreme Court. They challenged the lawfulness of the decision on the grounds that: (1) contrary to the Ministry’s assertion, the law of Belarus does not prohibit representing and defending the rights of third persons [Reference is made to article 73, part 1, of the Civil Procedure Code; article 62 of the Constitution; Decision of the Constitutional Court of 5 October 2000; Resolution of the Plenum of the Supreme Court of 25 March 1999; article 3 of the Law “On Public Associations”. The latter provides for an exhaustive list of restrictions on the establishment of a public association: “it is prohibited to establish public associations aimed at overthrowing or forcefully changing the Constitutional order, violating the State’s integrity and security, propaganda of war, national, religious and racial hatred, as well as to establish public associations that can negatively affect public health and psyche”]; (2) the Regulations do not provide for refusal of registration because of ‘remarks on the submitted list of founders and other documents’. On 20 August 2001, the Supreme Court disagreed with the Ministry’s findings on the invalidity of the association’s creation and on the discrepancies in the list of founders. However it upheld the decision of the Ministry that the “Helsinki XXI” statutory activities on the representation and defence of the rights of third persons was not in conformity with article 22, paragraph 2, of the Law “On Public Associations” and article 72, part 2, paragraph 3, and article 86 of the Civil Procedure Code. The Court referred to paragraph 11 of the Regulations governing the refusal of registration of an association where its statutes [Namely, the association’s purposes, goals, method of work and its territorial application ] are not in conformity with legal requirements. The Court also quoted the opinion on the refusal to register “Helsinki XXI”, issued on 7 June 2001 by the Commission on the Registration (Re-registration) of Public Associations, established by the Presidential Decree, and the Ministry of Justice decision on the same matter of 7 June 2001. The Supreme Court’s refusal to register “Helsinki XXI” as a public association cannot be appealed. (...)
7.2 The key issue before the Committee is whether the refusal of the Belarus authorities to register “Helsinki XXI” unreasonably restricted the author and the other 23 co-authors’ right to a freedom of association. The Committee observes that, in accordance with article 22, paragraph 2, any restriction on the right to freedom of association 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 "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 viewed by the government or the majority of the population, is a cornerstone of a democratic society.
7.3 In the present case, the restrictions placed on the authors' right to freedom of association consist of several conditions related to the registration of a public association. According to the Supreme Court’s judgment of 20 August 2001, the only criterion which the “Helsinki XXI’” statutes and, respectively, the authors' application for registration did not meet was a compliance with domestic law, under which public organizations do not have a right to represent and defend the rights of third persons. This restriction must be assessed in the light of the consequences which arise for the authors and their association.
7.4 The Committee firstly notes that the author and the State party disagree on whether domestic law indeed prohibits the defence of the rights and freedoms of citizens who are not members of a particular association (paragraphs 2.2, 2.3, 4, 5.2 above). Secondly, it considers that even if such restrictions were indeed prescribed by law, the State party has not advanced any argument as to why it would be necessary, for purposes of article 22, paragraph 2, to condition the registration of an association on a limitation of the scope of its activities to the exclusive representation and defence of the rights of its own members. Taking into account the consequences of the refusal of registration, i.e. the unlawfulness of operation of unregistered associations on the State party’s territory, the Committee concludes that the refusal of registration 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.back