Human rights defenders and their rights: National legislation and international instruments
Article 6 of the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, which was adopted by the General Assembly’s Resolution 53/144 of 9 December 1998, defines the rights of human rights defenders in the field of searching and disseminating information on human rights and fundamental freedoms:
“Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.”
The Belarusian legislation has failed to fully implement this provision: according to the Law “On information, informatization and information protection”, state bodies, public associations and officials are obliged to provide the citizens of the Republic of Belarus with an opportunity to have access to the information that affects their rights and legitimate interests; this provision restricts the ability to obtain information on other citizens for human rights purposes. The provision that guarantees the citizens’ right to receive, store and disseminate complete, reliable and timely information on the activities of state bodies, public associations, political, economic, cultural and international life, the environment is a purely declarative one, as the procedure of providing such information is actually limited by the same law and other legislative acts of Belarus. According to the law, even publicly available information may not be available at the request, for example, in the case when obtaining the requested information requires analytical work not directly related to the protection of the rights and legitimate interests of the person who has applied for information; a request shall be submitted when asking for access to information contained in memoranda, order and other internal correspondence of government bodies, if such information is not directly related to the protection of the rights and legitimate interests of the person who has applied for public information; this list is not exhaustive. From January 2014 the law has a definition of “sensitive information of limited distribution”, which has been extensively used by the government to protect themselves from the obligation to provide information that is not related to state secrets or containing secrets.
This approach can significantly and unnecessarily restrict the provision of information for the public benefit.
In accordance with Article 8 of the Declaration, “everyone has the right, individually and in association with others, to have effective access, on a non-discriminatory basis, to participation in the government of his or her country and in the conduct of public affairs. This includes, inter alia, the right, individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.” However, in practice, such requests are, as a rule, left without proper consideration, as they are viewed as petitions without duly executed powers (power of attorney).
Article 9 of the Declaration defines the rights of human rights defenders in the field of protecting violated rights: “In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights. To this end, everyone whose rights or freedoms are allegedly violated has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person's rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay.”
The Declaration also provides for actions to protect the violated rights of other persons. “Everyone has the right, individually and in association with others, inter alia:
(a) To complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay;
(b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments;
(c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.”
This last point does not infringe on the imposition of restrictions on legal aid without a license: human rights activities are carried out in a much narrower framework and in a limited range of issues, rather than legal assistance. The subject of the participation of a human rights defender in the process of appeal is a violation of fundamental rights and freedoms, but not all cases and disputes arising from various civil, criminal or administrative relations. Unlike a lawyer, a human rights defender carries out his or her activities without reward, which is a precondition for granting legal aid.
Meanwhile, the country’s criminal, civil and administrative procedure laws contain, contrary to this norm, as well as the provision of Article 62 of the Constitution of the Republic of Belarus, a restriction, which prevents human rights defenders from being involved, either individually or as members of human rights organizations, in cases related to the violation of fundamental rights and freedoms.
This is particularly important in light of the lack of independent Bars, as well as the lack of guarantees of the independence of lawyers working on the basis of urgent licenses. Numerous cases of deprivation of the lawyers’ right to work resulting from their professional activities, which took place over the last 20 years, have paralyzed their will to be engaged in a principle struggle against violations of fundamental rights and freedoms.
This procedural law allows the participation of non-professional representatives in a number of categories of cases: representatives of trade unions and NGOs – in cases involving their members; consumer protection societies – in cases dealing with consumer protection; close relatives and spouses – in all categories of cases in courts (in criminal and administrative trials – at the discretion of the authority in charge of proceedings). Thus, the mere absence of formal recognition of the competence of a human rights defender as a lawyer is not uniquely necessary to participate in the protection of rights and freedoms.
Legislation on public associations also contains restrictions on the protection of public interest within the statutory activities.
In 2006, the United Nations Human Rights Committee considered the case Zvozskov et al. v Belarus. The case dealt with an individual communication by Boris Zvozskov and 23 more people submitted after they were not allowed to register the human rights public association “Helsinki XXI”. As a result, the Committee concluded that the refusal to register the NGO was contrary to the requirements of the International Covenant on Civil and Political Rights, and violated the authors’ right to freedom of association. The Committee noted 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.” The Committee also noted 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.”
“Pursuant to article 2, paragraph 3(a), of the Covenant, the Committee considers that the authors are entitled to an appropriate remedy, including compensation and reconsideration of the authors' application for registration of their association in the light of article 22. It is also under an obligation to take steps to prevent similar violations occurring in the future.”
“Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to the Committee's Views.”
Thus, the legislation of Belarus seriously suffers an incomplete compliance of undertaken obligations in terms of ensuring human rights and freedoms. These flaws are manifested, as a rule, in the areas that are most sensitive from the point of view of human rights.