FIDH issues report on Viasna's registration trial

2009 2009-09-24T20:16:18+0300 1970-01-01T03:00:00+0300 en http://spring96.org/files/images/sources/fidh6.jpg The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
International Federation for Human Rights

International Federation for Human Rights

Public Human Rights Association 'Nasha Viasna' v. Ministry of Justice of Belarus

Judicial Observation Report

 

I - Introduction
Kirill Koroteev, chargé de mission of the International Federation for Human Rights (FIDH),
was mandated by the Observatory for the Protection of Human Rights Defenders, a joint
programme of FIDH and the World Organisation against Torture (OMCT), to conduct a
trial observation mission in the case of Public Human Rights Association “Nasha Viasna”
v. Ministry of Justice before the Supreme Court of Belarus. It is worth noting at the outset
that Ms. Souhayr Belhassen, President of the FIDH, was refused a visa to observe the
trial.
The trial commenced on 10 August 2009 and the judgment was given on 12 August 2009.
The judgment is fnal and is not amenable to an ordinary appeal. The task of the chargé de
mission was to assess not only the degree of fairness of the trial, but also the reasons given
by the authorities to refuse registration of the NGO as this analysis forms part of the test
of proportionality of interference with the rights of peaceful assembly and association, as
guaranteed, e.g., by Article 22 of the International Covenant on Civil and Political Rights
(ICCPR).

II - Brief historical background
The trial concerned the challenge of the refusal of registration of one of the leading human
rights groups in Belarus. It used to be named Human Rights Centre “Viasna” (“Spring”)
before its dissolution by a court order in 2003. Seized of an individual communication,
the UN Human Rights Committee in Belyatsky et al. v. Belarus1 took the view that the
2003 dissolution violated Article 22 of the ICCPR. The group continued to work without
recognition of its legal personality, even though it is a crime under article 193-1 of the
Criminal Code of Belarus to participate in an unregistered organisation. It reapplied for
registration twice in 2007 and 2009 under the name of “Nasha Viasna” (“Our Spring”; it is
illegal to use the name of a dissolved organisation). Both applications were refused by the
Ministry of Justice and the Supreme Court dismissed the complaints against the decisions
of the Ministry2.
Under Belorussian law, every non-proft organisation must be registered with the Ministry
of Justice and obtain legal personality. it is only under this condition that it may legally
operate, receive and spend funds (even though receiving funds is practically impossible
for a human rights NGO in Belarus because of the existing fnancial regulations), formally
employ staff, etc.
The present case concerned the third application of the group to be registered by the
Ministry of Justice. More than 70 of its members applied to the Ministry on 29 March 2009
and on 25 May 2009 the application was dismissed. The Ministry provided four reasons
for its refusal:
Firstly, it argued that four members of the group provided incorrect or false information −
on their addresses and places of work.
Secondly, it did not treat the letter of guarantee for the NGO’s future premises as −
1. Communication no. 1296/2004, 27 July 2007. The UN HRC used Russian version of the applicant’s surname
and the one used here is Belarusian. In this report Mr. Belyatsky and Mr. Byalyatskiy is the same person.
2. See Annual Report 2009 of the Observatory as well as Urgent Appeals BLR 001/ 0309/OBS 038 , 038 .1
and 038.2.4 / Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus – The Observatory
legally valid and argued that it was not possible for the authorities to visit the premises
themselves.
Thirdly, it blamed the founders of the group for not having sent the Program of Action −
reportedly adopted by them to the Ministry despite the Ministry’s requests to do so.
Fourthly, it noted that the NGO’s name “ − Nasha Viasna” was contrary to its Statute. It
further noted that the NGO’s founders had engaged in illegal activities in their past, and
had been brought to justice for “administrative offences”.
Three of the founders of “Nasha Viasna”, Mr. Ales Bialiatski (Chairman), Mr. Uladzimer
Labkovich, and Mr. Valyantsin Stefanovich, challenged the refusal in the Supreme Court
of Belarus. They argued that:
What the Ministry called misleading information on the identities of the founding −
members was merely a number of clerical errors,
The letter of guarantee was valid and had raised no objections on behalf of the Ministry −
in previous proceedings,
No Program of Action had been adopted at the founders’ meeting −
Other objections raised by the Ministry had had no basis in law. −

III - The trial
On 10 August 2009 public hearings commenced before Mr. Anatol Tserakh, judge of the
Supreme Court, sitting as single judge. All three applicants were present throughout the
proceedings. They were not represented, but two of them are lawyers (Mr. Labkovich
and Mr. Stefanovich). The Ministry of Justice was represented by one of its lawyers,
Mr. Aliaksandar Kharyton. A prosecutor of the Offce of the Prosecutor-General in the rank
of lieutenant-colonel participated in the proceedings ex offcio. Only the prosecutor was
allowed to sit at a table in the courtroom, the parties were sitting on the front bench of the
benches reserved for the public. Up to 30 members of the public were present, including
some of “Nasha Viasna” members, representatives of foreign embassies and journalists.
The frst day of hearing was divided between the opening statements of the parties,
questioning of a witness, studying the contents of the case-fle, and pleadings on the merits
of the case. On the second day the prosecutor presented her conclusions and the parties
replied to each other’s pleadings.
At the outset of the proceedings Mr. Labkovich asked the judge to order the representative of
the Ministry of Justice to limit the latter’s submissions to the grounds of refusal of registration
set out in the Civic Associations Act and not to invoke any irrelevant considerations like
the allegedly illegal activities of the NGO’s founders. The judge appeared to accept that
the respondent’s submissions should be limited to the applicants’ grounds of appeal, but
did not prevent Mr. Kharyton from making extensive references to the applicants’ personal
backgrounds.
1. The applicants’ arguments:
Minor details abusively considered as “misleading information”
During his opening statement, Mr. Stefanovich noted that what was called “misleading
information on the founders” was that one of them indicated his place of work as “secondary
school no. 1” rather than “institution of secondary education – secondary school no. 1” and
another indicated that he was “director of a group” rather than “director of a section” in an The Observatory – Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus / 5
educational institution. As regards the Program of Action requested by the Ministry, Mr.
Stefanovich maintained that neither such document had been adopted, nor was its adoption
required under the law. As regards the applicants’ allegedly illegal activities (which
consisted of minor road traffc offences), he argued that this was not a ground for refusal of
registration provided in the Civic Associations Act.
Conformity of the NGO name with the law
Mr. Labkovich further argued that the NGO’s name was in conformity with the law, as it
made reference to the non-proft nature of the organisation and its feld of activities (human
rights). He also argued that the Ministry’s criticism of “Nasha Viasna” was completely
unfounded.
The letter of guarantee
As regards the letter of guarantee, it was stressed that the Ministry had had no objections to the
same letter in two previous sets of proceedings, and that the owner of the premises only received
a phone call from the local authority while he was away and could not come and open the
premises in time for the inspection. It was further added that together with the letter of guarantee
was submitted to the Ministry the technical description of the premises drawn up by the State
Bureau for Technical Regulation, meaning that no further inspection was needed.
When asked by the judge and by the representative of the Ministry of Justice as to how the
Ministry could check the veracity of the letter of guarantee, Mr. Labkovich replied that the
prosecutor’s offce was authorised by the law to intervene in private premises in certain
cases and that the Ministry should have conducted the inspection via the prosecutor’s offce
rather than via the local authorities.
2. The Ministry’s arguments:
The representative of the Ministry of Justice, Mr. Kharyton, reiterated that one of the
founders indicated that he had been working for the JSC “Travers” rather than for the LLC
“Travers” and referred also to the two above-mentioned mistakes. It further objected to the
name of the organisation. According to Mr. Kharyton, because of the fact that the word
“Viasna” (“Spring”) was written with a capital letter, it did not refer to the season but to
another specifc concept known only to the NGO’s founders. He further stated that it was
unclear from the documents available to the Ministry whether the NGO’s to-be-premises
had an entrance, so existed the need for the inspection which could not have been conducted
because of the owner’s failure to cooperate. Also he had asked for the Program of Action to
be provided because it had been adopted by the founders according to the reports on their
web-site www.spring96.org
When asked by Mr. Labkovich whether he was aware of the UN Human Rights Committee’s
conclusions in Belyatsky et al. v. Belarus, Mr. Kharyton replied that this communication
concerned the events of 2003 and did not relate to the case at hand. Mr. Labkovich insisted
that Mr. Kharyton name the legal provision on the basis of which the Ministry had decided
that the letter of guarantee was invalid, but Mr. Kharyton declined to answer. When asked
which provisions of the NGO Statute were violated by the name “Nasha Viasna”, he replied
‘all’ for the reason that the Statute contained no explanation of what “Nasha Viasna” was.
When Mr. Stefanovich asked him why the Ministry had not granted an extension of the
time-limit so that the applicants would be able to correct the mistakes made, Mr. Kharyton
replied that it was a right not an obligation of the Ministry. 6 / Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus – The Observatory
Mr. Kharyton concluded by saying that the founders of the NGO had violated not only the
laws of Belarus, but also the laws of foreign states having been expelled from Moldova
during the parliamentary elections in July 2009, but failed to refer to specifc decisions of
the Moldovan authorities when asked to do so.
3. The witness’ arguments:
The owner of the premises guaranteed to “Nasha Viasna” if it obtained registration was
called to testify as a witness. He confrmed that he owned the premises and that he only
received a phone call informing him of the required inspection one hour in advance from
a person unknown to him and that he asked that the reasons be provided to him in writing.
On the letter of guarantee itself, when asked by Mr. Kharyton whether he was aware that
two regulations on keeping the books of legal persons required any letter to bear the
person’s legal address and contact details, the witness replied in negative. Mr. Kharyton
later admitted that he deliberately refused to mention these two instructions to the parties to
the proceedings (Mr. Labkovich denounced this as a violation of the principle of equality
of arms), and when the applicants noted the instructions’ inapplicability to the present case
because the owner of the premises was a natural rather than legal person, the representative
of the Ministry of Justice replied that the instructions applied to natural persons ‘by
analogy’.
4. Back to the applicants’ arguments
During the pleadings Mr. Stefanovich denounced the discriminatory approach of the
Ministry of Justice, which consisted in repeated refusals to register human rights NGOs. He
noted that all the documents required by law had been submitted to the Ministry and that no
Program of Action, which was requested by the Ministry, had ever been adopted.
Mr. Labkovich noted that the Ministry of Justice divided the grounds of refusal as having
been legal and non-legal. He admitted that three of more than 70 founders had made minor
mistakes in their place of work, but that had no bearing on the founders’ rights to create
an NGO. He denounced the Ministry’s objections against the NGO’s name as having
been more Kafkian rather than legal and the Ministry’s approach which only consisted in
creating as many obstacles for the NGO as possible. Replying to Mr. Karyton’s remarks
on the applicants’ personality and their “illegal activities” Mr. Labkovich recalled that a
number of States like the USA, the EU and Ukraine had excluded the representative of the
Ministry of Justice from their respective territories.
According to Mr. Byalyatski, the Ministry did not want a civilised dialogue between the
authorities and the civil society. He claimed that no national human rights NGO had been
registered in the last 10 years and that, for example, Armenia had 10 times more non-proft
organisations per capita than Belarus. He alleged violations of the Constitution of Belarus
and the ICCPR in the case at hand, having referred to the UN HRC’s conclusion in the
“Viasna” dissolution case. The UN HRC awarded the applicants a remedy of re-registration
of their NGO, but nothing had been done by the authorities to make good the violation of
the ICCPR. After the international attention had been drawn to the NGO’s situation by the
European Parliament, the PACE, and in the framework of the EU-Belarus human rights
dialogue, the case ceased to concern only the applicants’ personal situation, but rather
related to the implementation by Belarus of its international commitments.The Observatory – Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus / 7
5. The replies of the Ministry
Mr. Kharyton replied that the conclusions of the UN “Commission on Human Rights”
were only recommendations, that the applicants had no one to blame for their mistakes but
themselves and that it was not the Ministry’s task to correct those mistakes, which had been
acknowledged, according to him, by the applicants.
Exercising their right to reply, the applicants denounced the excessively formalist approach
of the Ministry of Justice to their application for registration and the lack of impartiality on
the Ministry’s behalf.
During the replies the representative of the Ministry of Justice accused Mr. Bialiatski of
receiving great amounts of money from international sponsors to travel abroad and thanked
God for living in ‘blue-eyed’ Belarus, further claiming that he had nothing to do in Ukraine,
the EU or the US.

IV - The judgment
The prosecutor was the last to intervene during the pleadings at the beginning of the second
day of the hearings. She limited her remarks to support of the Ministry’s refusal on the
grounds of incorrect information about the NGO’s founders and of the impossibility to
visit the to-be-premises of “Nasha Viasna”. The prosecutor opined that these drawbacks
were enough to refuse the registration of the organisation and to dismiss the appeals.
The prosecutor did not address the parties’ arguments given in the proceedings and the
applicants’ references to the Constitution and the ICCPR, which was denounced by the
applicants during their replies.
When the Court gave its judgment, it followed the prosecutor’s conclusions. The judge
dismissed the Ministry’s reliance on the ‘illegal activities’ of the applicants, its objections
to the name of the organisation and the failure to present a Program of Action. However, it
upheld the Ministry’s decision on the grounds of incorrect information about the founders
and of their having impeded the Ministry’s check of premises mentioned in the letter of
guarantee. The judge did not address the applicants’ arguments under the Constitution and
the ICCPR.
No ordinary appeal lies against the judgment. It may only be called into question by the
President of the Supreme Court of Belarus or his deputies by way of the proceedings for
supervisory review.
V - Analysis
Several aspects of the trial call for comment.
Firstly, it must be noted that the parties had ample opportunity to present their arguments.
The judge allowed the parties to put questions to each other without any restrictions, to
present evidence and to reply to each other’s and the prosecutor’s pleadings. From this
point of view, the parties enjoyed equality of arms and the judge cannot be said to have
been subjectively partial. 8 / Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus – The Observatory
Secondly, however, the applicants’ opponents were not limited to the representative of
the Ministry of Justice whose decision they challenged before the Supreme Court. The
prosecutor was their opponent as well, as she concluded in the Ministry’s favour without
discussing the parties’ arguments at all. The prosecutor participated in the proceedings ex
offcio, the Code of Civil Procedure of Belarus thus allowed two state agencies, both of
which defend the executive, to take part in the proceedings. Also, despite his subjective
impartiality, the judge was the applicants’ opponent. As it has been shown elsewhere, the
Code on Judiciary and Status of Judges of Belarus expressly provided that the recruitment
of judges, their career, legal training, disciplinary liability and dismissal, depend on the
Ministry of Justice (respondent in the present case)3. Thus, it cannot be said that the judge
and the Court were objectively independent and impartial.
Thirdly, as regards the merits of the judgment, it must be noted that even if the irregularities
in the documents submitted by “Nasha Viasna” for offcial registration were of the kind to
permit the refusal under the Civic Associations Act of Belarus, this is not enough to justify
the authorities’ interference with the applicants’ right to association. Indeed, both under the
Constitution of Belarus and the ICCPR the interference must pursue a legitimate aim. It has not
been shown in the proceedings and in the judgment that the refusal to register “Nasha Viasna”
pursued any of the aims set out in the Constitution of Belarus (article 23) or in the ICCPR (article
22(2)). Further, under the latter provision of the ICCPR, the interference must be necessary in
a democratic society, that is, inter alia, proportionate to the legitimate aim pursued. Particularly
convincing reasons must be given to justify the interference, bearing in mind that in Belarus it
is a crime to participate in an unregistered association. In the present case, the reasons advanced
by the prosecutor in her conclusions and by the judge in the judgment could hardly be treated as
convincing and compelling. Indeed, when a founder indicates that her employer is “secondary
school no. 1” rather than “institution of secondary education – secondary school no. 1” this
does not mean any criminal intent, just as the request made by the owner of the NGO’s to-be-
premises to provide written reasons for the inspection, rather than an unconditional order, from
an unauthorised person on telephone does not imply the founders’ moral turpitude. Never has
it been established that the founders of “Nasha Viasna” has called for violence or engaged in
criminal activity. Rather, the authorities’ decision makes them criminals. But no analysis of
proportionality has been provided in the judgment.
Fourthly, it must be born in mind that the UN Human Rights Committee (UN HRC) had
already found a violation of Article 22 of the ICCPR in Belyatsky et al. v. Belarus on account
of the dissolution of the original “Viasna” in 2003. It ordered the authorities to provide the
applicants with compensation and remedies including the new registration of the NGO.
However, the Belarusian authorities opted to treat the UN HRC’s conclusions as being
merely recommendations and failed to implement its Views. But the ICCPR guarantees
minimum inalienable rights, so whatever way the UN HRC’s Views are treated, there’s no
other way to comply with the ICCPR than to give effect to its Views. The ICCPR has been
wholly disregarded, though.
Finally, it must be noted that the applicants mainly relied on the illegality of the Ministry’s
actions, their being contrary to the Civic Associations Act and only in a subsidiary manner
on the violation of their rights guaranteed by the Constitution and the ICCPR. But even
if they had based their entire case on the Constitution and the ICCPR, the result would
have been the same: the Supreme Court judge was only empowered to decide whether
the Ministry had a ground to refuse the registration rather than to assess the human rights
implications of the refusal.
3. See, e.g., the FIDH report “Conditions of Detention in the Republic of Belarus”, June 2008, pp. 12-14. The Observatory – Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus / 9

VI - Comments
The Chairman of “Nasha Viasna” and one of the applicants, Ales Bialiatski, said that
political reasons stood behind the judgment of the Supreme Court, which had little in
common with justice and the rule of law. The claims of liberalisation of the regime were
not supported by the required actions and Belarus remained a country dangerous to human
rights activists, Mr. Bialiatski added.
For the reasons set out above, the chargé de mission denounced the trial as having been a
shame for the Belarusian justice, but pointed out that Belarus has already got accustomed
to such kind of shame.

Recommendations
1 – To the Belarusian authorities
- Guarantee in all circumstances an enabling environment for human rights defenders and
put an end to any hindrance against their activities, and to any kind of harassment against
them, in conformity with the Declaration on Human Rights Defenders, adopted by the UN
General Assembly in 1998;
- Conform in all circumstances with international standards on freedom of association
provided in the ICCPR and in the 1998 UN Declaration on Human Rights Defenders;
- Conform with the reasoning and recommendations made in the Communication Belyatsky
et al. v. Belarus of the UN Human Rights Committee no. 1296/2004 of July 27, 2007;
- Implement the recommendations of the UN Human Rights Committee and other UN
treaty bodies as well as those of the UN Human Rights Council’s special procedures;
- Guarantee the independence of the judiciary, i.e. by establishing proper rules regarding
the process of appointment, promotion and dismissal of judges;
- Issue a standing invitation to UN special procedures, and reply positively in particular to
the request to visit by the then Special Representative of the UN Secretary General on the
situation of human rights defenders in 2003;
- Cooperate fully with the OSCE mechanisms on Human Dimension, notably the Offce of
Democratic Institutions and Human Rights, and with the OSCE offce in Minsk;
- Conform with the OSCE Human Dimension commitments in particular in the feld of rule
of law, civil and political rights, and civil society;10 / Public Human Rights Association “Nasha Viasna” v. Ministry of Justice of Belarus – The Observatory
2 – To the European Union
- Address the issue of the independence of the judiciary and freedom of association in the
framework of dialogues at various levels with the authorities of Belarus and especially on
the occasion of EU troïka meetings with Belarussian authorities;
- Address the issue of human rights defenders and arbitrary restrictions to local NGO's
activities and existence relying on the EU Guidelines on human rights defenders;
3 – To the OSCE
- The OSCE offce in Minsk should pay special attention to the issue of human rights
defenders and freedom of association;
- The OSCE Parliamentary Assembly should invite its Belarusian members to take the
relevant legislative initiatives to bring domestic law in conformity with international human
rights standards.
 

 

слухаць Радыё рацыя Міжнародная федэрацыя правоў чалавека Беларуская Інтэрнэт-Бібліятэка КАМУНІКАТ Грамадзкі вэб-архіў ВЫТОКІ Антидискриминационный центр АДЦ 'Мемориал' Prava-BY.info Беларускі Праўны Партал Межрегиональная правозащитная группа - Воронеж/Черноземье
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