Belarusian journalists win action against Belarus

Some time ago, Tat­siana Smotk­i­na, Dzmit­ry Lupach (assist­ed by human rights defend­er Pavel Lev­in­au), Tama­ra Schapetk­i­na, and Larysa Schyrako­va (assist­ed by human rights defend­er Leanid Sudalen­ka) filed a com­plaint with the UN Human Rights Com­mit­tee.

They claimed that the rights of jour­nal­ists to free­dom of expres­sion are vio­lat­ed in Belarus. The coun­try pros­e­cut­ed these jour­nal­ists and imposed admin­is­tra­tive fines on all of them for alleged­ly dis­trib­ut­ing media prod­ucts with­out prop­er accred­i­ta­tion.

On 14 March 2023, the Com­mit­tee con­sid­ered their com­plaints on the mer­its.

The Com­mit­tee not­ed that part 3 of Arti­cle 19 of the Covenant allows restric­tions to free­dom of expres­sion, includ­ing free­dom of speech in the media and the dis­sem­i­na­tion of infor­ma­tion and ideas, only inso­far as pro­vid­ed by law and only when nec­es­sary for respect of the rights or rep­u­ta­tions of oth­ers; or to pro­tect nation­al secu­ri­ty or pub­lic order, or pub­lic health or morals.

Any restric­tion on free­dom of expres­sion must not be exces­sive, that is, it must be the least intru­sive instru­ment amongst those which might achieve their pro­tec­tive func­tion, and pro­por­tion­ate to the inter­ests to be pro­tect­ed.

The Com­mit­tee sug­gest­ed that Belarus demon­strate that the restric­tions on the rights of jour­nal­ists under Arti­cle 19 of the Covenant were nec­es­sary and pro­por­tion­ate. The response from the Belaru­sian author­i­ties read that all jour­nal­ists alleged­ly vio­lat­ed the Belaru­sian Law on Mass Media and worked with­out press cre­den­tials.

The Com­mit­tee not­ed that in this case the appli­cants were sub­ject­ed to admin­is­tra­tive penal­ties: large fines under the Law on Mass Media, which entails a ban on jour­nal­is­tic activ­i­ties in the ter­ri­to­ry of Belarus involv­ing work for for­eign media with­out pos­sess­ing press cre­den­tials as a for­eign media rep­re­sen­ta­tive.

In this regard, the Human Rights Com­mit­tee refers to Arti­cle 34 of the Con­sti­tu­tion of Belarus on free­dom of opin­ion and expres­sion and stat­ed that nation­al sys­tems of reg­is­tra­tion or licens­ing of jour­nal­ists are incom­pat­i­ble with Arti­cle 19(3) of the Covenant.

Lim­it­ed press cre­den­tials-acquir­ing schemes are per­mis­si­ble only if it is nec­es­sary to pro­vide jour­nal­ists with priv­i­leged access to cer­tain events.

The Com­mit­tee notes that the penal­ties imposed by the Belaru­sian author­i­ties on the jour­nal­ists were based on domes­tic law. How­ev­er, nei­ther the State par­ty nor the domes­tic courts have explained how such restric­tions were jus­ti­fied in terms of neces­si­ty and pro­por­tion­al­i­ty, as required under Arti­cle 19, para­graph 3 of the Covenant, and whether the penal­ties (i.e. admin­is­tra­tive fines), even if based on law, were nec­es­sary and pro­por­tion­ate and met any of the legit­i­mate aims out­lined in that pro­vi­sion. It there­fore con­cludes that the appli­cants’ rights under Arti­cle 19, para­graph 2, of the Covenant have been vio­lat­ed.

Belarus is there­fore under an oblig­a­tion to take appro­pri­ate mea­sures to com­pen­sate the jour­nal­ists for the fines and oth­er legal costs incurred by the them in con­nec­tion with the nation­al pro­ceed­ings. The State is also under an oblig­a­tion to take all nec­es­sary mea­sures to pre­vent sim­i­lar vio­la­tions from occur­ring in the future. In this regard, the Com­mit­tee notes that it has con­sid­ered sim­i­lar com­plaints con­cern­ing the same laws and prac­tices in the State par­ty, and there­fore Belarus should review its legal frame­work, in par­tic­u­lar the Law on Mass Media, fol­low­ing its oblig­a­tion under Arti­cle 2 of the Covenant to ensure the full enjoy­ment of the rights out­lined in arti­cle 19 of the Covenant.

The Human Rights Com­mit­tee expects to receive infor­ma­tion from Belarus on the mea­sures tak­en with­in 180 days.

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