Viasna still views Ministry of Justice’s decision on registration as predictable
The relevance of the issue is due to the preparation of an alternative report to the United Nations Human Rights Committee currently done by a coalition of human rights organizations. The HRC experts included a request for clarification of the situation with the refusal to register the Human Rights Center "Viasna" in the list of issues to be addressed in the framework of Belarus’ reporting to the Committee.
To date, the HRC uses a simplified reporting procedure, sending to the State party to the International Covenant on Civil and Political Rights (ICCPR) a set of questions about compliance with rights-based standards, the answers to which constitute the official report. At this stage, the Belarusian authorities have already sent their replies to the Committee. Human rights activists are preparing an alternative report to convey to the UN experts the position of the country's civil society on the issues raised.
Among the questions related to freedom of expression, peaceful assembly, freedom of association and the right to participate in public affairs, the Committee, taking into account its previous concluding observations, asked to provide information on measures taken to address problems such as widespread denial of registration for political reasons or on discriminatory grounds, including the refusal to register the Human Rights Center "Viasna", and the criminalization of illegal NGO membership.
When asked about the non-registration of Viasna, the Belarusian authorities informed the Committee:
“The founders of the NGO "Viasna" have not attempted to register the organization for the past nearly eight years (since May 2009). The documents on the state registration of the organization that were submitted before did not meet the requirements of the legislation, in connection with which the registration authority ruled to refuse registration. Taking into account that the organization has not been registered as a public association, political party or entity of other organizational and legal form with the Ministry of Justice of the Republic of Belarus, while the Unified State Register of Legal Entities and Individual Entrepreneurs had no information on the state registration of the organization, in February 2011 A. Bialiatski, who positioned himself as leader of the organization "Viasna", received an official warning from the Prosecutor General's Office about the inadmissibility of violating the law.”
In this regard, it is necessity to recall the position on the issue by the founders of the HRC "Viasna", deprived of registration in October 2003 due to its involvement in monitoring the 2001 presidential election.
To date, there are two decision by the UN HRC regarding non-registration of the organization. In the first decision adopted in 2007, the Committee gave an assessment of the case, recognizing that by dissolving the HRC "Viasna" the Belarusian authorities violated the right of association in relation to the founders of the organization (article 22, paragraph 1 of the ICCPR), and recommended that the Government of Belarus provided the re-registration of the organization and took measures to prevent similar violations in the future. In the other decision taken in 2014 in the case of Ales Bialiatski, the HRC assessed the three refusals to register "Viasna" in 2007 and 2009 and the warning issued by the Prosecutor's Office against Ales Bialiatski for activity on behalf of the unregistered organization, describing the prosecution of Viasna’s leader as a violation of freedom of association, and again as a remedy recommended that the authorities of Belarus reconsidered an application for registration of the association "Viasna" in accordance with the criteria that correspond to the ICCPR article 22. In addition, in 2012, the Working Group on Arbitrary Detention of the UN Human Rights Council said that the imprisonment of Ales Bialiatski was arbitrary and constituted a form of violation of article 22 of the ICCPR, and requested the Government of Belarus to take the necessary steps to remedy the situation. In response, the government announced its refusal to cooperate with the Working Group. Similar reactions were received in connection with two decisions by the UN HRC, which on the basis of international law recognized the legitimacy of the activities of the Human Rights Center "Viasna". The official Minsk ignored these decisions, arguing that they were advisory in nature. In 2015, the International Federation for Human Rights (FIDH) sent an appeal to the Belarusian Foreign Ministry, which called on the authorities to abide by their international obligations under the UN and to take measures to fulfill the basic requirements of the HRC in the case of Ales Bialiatski regarding the cancellation of a criminal record and the registration of the Human Rights Center “Viasna”, which he has been heading. There has been no response to the human rights defenders’ petition.
As in recent years there have been no changes to the law "On Public Associations", while its provisions are formulated in a way that promotes a selective approach to the registration of associations, therefore, taking into account previous experience and the fact that the practice of registration of non-governmental organizations remains the same, for the founders of "Viasna" the issue of registration is predictable and another application to the Ministry of Justice on this matter seems pointless.
Members of the Human Rights Center "Viasna" have repeatedly stated that they consider their human rights work as absolutely legitimate, because they exercise it in accordance with the Belarusian Constitution and the 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 on Human Rights Defenders), adopted by Resolution 53/144 of the General Assembly on 9 December 1998.
At the same time, the international community has clearly stated its position with respect to Article 193-1 of the Criminal Code, which criminalizes the activities of an unregistered organization, which can be applied to members of the Human Rights Center "Viasna": the prohibition of such activities and the responsibility for it are contrary to both the Constitution of the Republic of Belarus and the international instruments ratified by the country, in particular the ICCPR. Application of Article 193-1 of the Criminal Code is evidence of major violations by the Republic of Belarus of freedom of association and is still criticized by influential international organizations, including the OSCE and the UN.
It is appropriate to recall the opinion of the European Commission for Democracy through Law (Venice Commission), which is an advisory body to the Council of Europe, on the compatibility of Article 193-1 of the Criminal Code with universal human rights standards:
“The recognition of the association as a legal entity is an inherent part of the freedom of association, the refusal of registration is also fully covered by the scope of Article 22 of the ICCPR and Article 11 of the ECHR.
The mere fact that an association has not passed state registration may not be a ground for penalizing actions connected with such an association. This would make the activities of a non-registered association in fact impossible and, consequently, restrict the right to freedom of association in its essence.
Apart, perhaps, of very serious circumstances, a penal sanction in its broad formulation in Article 193-1 of the Penal Code, and especially a sanction of the gravity as laid down there, cannot be said to be necessary for the protection of any of the public interests or the rights of others mentioned in Article 22 of the ICCPR and Article 11 of the ECHR in the form of a "pressing social need", let alone that such a general penalization could be held to be proportionate with any of those interests or rights.”
When answering the question regarding the criminalization of activities of unregistered organizations, the Belarusian authorities reported that from 2011 to 2016 there were no persons prosecuted under Article 193-1 of the Criminal Code. Meanwhile, as in the case of Ales Bialiatski, official warnings of prosecution under Article 193-1 are issued by prosecutors and the KGB as a deterrent.
Despite the fact that during the first round of the Universal Periodic Review (UPR) at the UN Human Rights Council, which Belarus passed in 2010, the state received numerous recommendations to repeal Article 193-1 of the Criminal Code, and at that time statements about the need for repealing the article were voiced by some high-ranking government officials, in particular, deputy head of the Presidential Administration Natallia Piatkevich, it is still present in the criminal law.
In the preparation of the alternative report to the UN Human Rights Committee, the human rights organizations of Belarus continue to insist on the need to bring the legislation and practice of its application in the field of freedom of association and the legal regulation of civil society organizations in accordance with international standards, including decriminalization of organizing or participating in unregistered activities organizations, as well as the lifting of the ban on the activities of unregistered associations.