Columbia Global Freedom of Expression seeks to contribute to the development of an integrated and progressive jurisprudence and understanding on freedom of expression and information around the world.  It maintains an extensive database of international case law. This is its newsletter dealing with recent developments  in the field.

This week, we are focusing on one of the most dangerous countries for citizens to express dissent – Belarus. In the four years since dictator Alyaksandr Lukashenka declared victory in a rigged presidential election and hundreds of thousands protested it, more than 30,000 people have been detained and prosecuted. As of October 3, 1,285 remain behind bars on political grounds. By now, the Belarusian jail is notorious for its brutality. Political prisoners have reported abuse, torture, and denial of medical care; many are held incommunicado, like blogger and activist Siarhei Tsikhanouski, Nobel Peace Prize laureate Ales Bialiatski, lawyer Maksim Znak, musician and activist Maryia Kalesnikava; at least six political prisoners have died while in jail.

The crackdown on journalists, human rights defenders, and anyone defying censorship in Belarus continues. Following the recent release of 115 political prisoners, rights groups have reported cases of the authorities threatening those pardoned with repeat convictions and installing spying software in their phones. Those abroad are not safe, either: Belarus is seeking the extradition of filmmaker and journalist Andrej Hniot, currently under house arrest in Serbia, awaiting his retrial.

The cases we are featuring today are four new decisions from the United Nations Human Rights Committee (UN HRC) that recognize violations of the rights to freedom of expression and peaceful assembly in Belarus. Lautaro Furfaro, CGFoE legal researcher, explains that the cases follow a common pattern: Belarusian authorities imposed disproportionate sanctions, such as administrative fines and detentions, on demonstrators for their participation in unauthorized peaceful protests and for sharing news deemed “extremist” by domestic authorities. The UN HRC determined that such restrictions were not justified and did not meet the three-part test to limit the right to freedom of expression under Article 19 of the ICCPR.

Lautaro also highlights the unusual increase in the UN HRC’s decisions condemning Belarus for violations of international human rights law. This trend is largely due to the fact that the communications had been submitted before Belarus’s denunciation of the Optional Protocol came into effect on February 8, 2023, and in light of the inability to file complaints for violations of freedom of expression under the ICCPR after that date. As the UN Special Rapporteur for Belarus clarified, “In 2023, Belarus stopped being a party to the first Optional Protocol to the International Covenant on Civil and Political Rights, depriving Belarusian citizens of the opportunity to submit complaints to the Human Rights Committee.” This increase in the Committee’s decisions reflects a global “rising trend of violating freedom of expression and political rights.”

Amnesty International demands urgent action from Belarusian authorities:
End torturous isolation of Maryia Kalesnikava, who has been sentenced to 11 years in prison and held incommunicado for more than 500 days. Confidential sources refer to the drastic decline of Maryia’s health. “Her treatment, including the denial of medical care she requires, amounts to torture or other ill-treatment and puts her life at risk,” Amnesty International states.

Chernov v. Belarus
Decision Date: March 21, 2024
The United Nations Human Rights Committee held that Belarus violated the rights to freedom of expression and peaceful assembly of Konstantin Chernov, Aleksandr Karankevich, Elena Kisel, Pavel Kraitsev, Denis Kraitsev, and Elena Kren (the petitioners), by imposing administrative fines and detention penalties for participating in unauthorized peaceful demonstrations. Under Article 23.34 of the Belarusian Code of Administrative Offenses, they were punished for participating in unauthorized public events protesting the presidential decree on “prevention of social dependency.” The petitioners argued that the restrictions imposed on their rights were unnecessary and disproportionate, as they did not threaten public order or the rights of third parties. For its part, Belarus argued that the sanctions were justified to maintain public order and were consistent with articles 19 and 21 of the International Covenant on Civil and Political Rights. The Committee argued that the State did not justify the sanctions considering it did not provide evidence that the petitioners’ participation in peaceful assemblies violated public order or national security. The Committee also emphasized that failing to notify beforehand that a demonstration will take place does not justify disproportionate sanctions. Thus, the Committee concluded that the restrictions imposed by the State were neither necessary nor proportionate. Finally, it held that Belarus violated Articles 19 and 21 of the Covenant and ordered the State to provide adequate compensation to the petitioners and to review its legislation on public acts to bring it into line with international standards.

Katorzhevsky v. Belarus [Previously published]
Decision Date: February 12, 2024 
The UN Human Rights Committee held that Belarus violated Pavel Katorzhevsky’s right to freedom of expression by initiating legal proceedings against him, and fining him, for the dissemination on a social network of an article published on a platform open to the public without having examined its content. Katorzhevsky posted on the social network “Vkontakte” a link to a newspaper article entitled “Idiocy and fake honor to the victims of war in a capital city gymnasium,” published on the same day on “vk.com/rdbelarus.” Following a police complaint, the Belarusian courts issued a 230 rubles fine (approximately 110 euros) against Katorzhevsky for violating the Law against Extremism in Belarus. Katorzhevsky argued before the UN Human Rights Committee that Belarus violated his right to freedom of expression because the article he disseminated did not contain extremist material that threatened national security. For its part, Belarus argued that the fine was a permissible limit to freedom of expression because it was backed by a law aimed at combating extremism. The State also argued that in Belarus any information or ideas published on the site “vk.com/rdbelarus” were considered “extremist material.” The Committee held that Belarus violated the petitioner’s right to freedom of expression. It noted that the article was originally published on a public platform. Moreover, the Committee held that Belarus cannot automatically consider all content posted on a website to be extremist or to affect national security. It also argued that the lack of an individualized assessment of the article’s content, regarding its impact on national security—on behalf of national authorities and courts—, did not satisfy the requirements of legitimacy, necessity, and proportionality, laid out in Article 19 of the International Covenant on Civil and Political Rights.

Matskevich v. Belarus
Decision Date: February 7, 2024
The United Nations Human Rights Committee (UN HRC) held that the State of Belarus violated Mikhail Matskevich’s rights to freedom of expression and to peaceful assembly by imposing a ten-day administrative detention for participating in an unauthorized peaceful demonstration in the city of Minsk. Matskevich was arrested by unidentified individuals in civilian clothes while participating in a candlelight vigil in solidarity with demonstrators previously detained for protesting the 2010 presidential election results. He was later charged, under Article 23.34 of the Code of Administrative Offences, with participating in an unauthorized mass event. The Moskovsky District Court found him guilty and sentenced him to ten days of administrative detention. His appeals to both the Minsk City Court and the Supreme Court of Belarus were dismissed. The national courts maintained that the restrictions were lawful and necessary to protect public order. Matskevich brought his case to the UN HRC, claiming that the restrictions imposed on his rights to freedom of expression and to peaceful assembly were unnecessary and disproportionate. Belarus, for its part, argued that the detention was lawful and justified since it sought to protect public order and national security. The Committee found that the Belarusian authorities did not adequately justify the restrictions imposed on Matskevich, nor did they demonstrate that the sanction was necessary and proportionate to protect the rights of others, national security, public order, public health, or public morals. In addition, the Committee ordered Belarus to adequately compensate the applicant and to review its domestic legal framework to ensure the full exercise of the rights to freedom of expression and to peaceful assembly.

Nikolaichik v. Belarus
Decision Date: October 12, 2023
The United Nations Human Rights Committee (UN HRC) held that Belarus violated the rights to freedom of expression and to peaceful assembly of Olga Nikolaichik, Anna Krasulina, Artem Kovalev, and Vadim Vasiliev (the petitioners) by imposing administrative fines and detention penalties for their participation in unauthorized peaceful demonstrations. The petitioners were punished by domestic courts with the aforementioned sanctions, under Article 23.34 of the Belarusian Code of Administrative Offenses, for participating in unauthorized public events—such as pickets and marches—in Minsk and Gomel between 2016 and 2017. The petitioners claimed that the restrictions imposed on their rights were unnecessary and disproportionate, as they did not threaten public order or the rights of third parties. For its part, Belarus argued that the sanctions were justified to maintain public order and were consistent with Articles 19 and 21 of the International Covenant on Civil and Political Rights. The Committee found that the State did not justify the sanctions or provide evidence that the petitioners’ participation in the peaceful assemblies violated public order or threatened national security. It also emphasized that failure to notify authorities of an upcoming assembly did not justify disproportionate sanctions against its participants. Moreover, the UN HRC held that the fines and detentions against the applicants were neither necessary nor proportionate, and stressed their “chilling effect” on expression. Finally, the Committee concluded that Belarus violated Articles 19 and 21 of the Covenant and ordered the State to provide adequate compensation to the petitioners and to review its legislation on public acts to bring it into line with international standards.

● OCTOBER 16: The Power of Song: Repercussions for Freedom of Expression and Digital Rights in Hong Kong. CGFoE is hosting a webinar on free speech restrictions in Hong Kong. Our speakers will focus on the court’s decision to ban the “Glory to Hong Kong” song, a popular protest “anthem” and a symbol of dissent in Hong Kong. Michael Caster, Asia Digital Program Manager at ARTICLE 19, Chung Ching Kwong, a political and digital rights activist from Hong Kong, and Dr. Eric Yan-ho Lai, Research Fellow at Georgetown Center for Asian Law, will join our panel; Doreen Weisenhaus, Director of the Media Law and Policy Initiative at Northwestern University, will moderate the conversation. October 16, 2024. 8 AM CDT / 9 AM ET / 2 PM BST / 8 PM ICT. Register to join us on Zoom.

● OCTOBER 25: What’s in a Joke? Humor in Free Speech Jurisprudence and Content Moderation – Toolkit Launch and Roundtable. Join us for the launch of the toolkit What’s in a Joke? Assessing Humor in Free Speech Jurisprudence and Content Moderation. At the roundtable co-organized by CGFoE, the University of Groningen, the Dutch Research Council, and the Forum for Humor and the Law, the toolkit’s authors – Alberto Godioli, University of Groningen, Sabine Jacques, University of Liverpool, Ariadna Matamoros Fernández, Queensland University of Technology, and Jennifer Young, University of Groningen – will meet in New York City to present an advanced draft of the toolkit, focusing on its four main sections: I. Interpreting humor in context, II. Authoritarian crackdowns on humor and satire, III. Humor, online harm, and content moderation, and IV. Humor and Intellectual Property law. October 25, 2024. 2:30 PM – 5:30 PM ET. Riverside Church, 10th Floor Lounge, 91 Claremont Ave, New York, NY 10027. To attend in person, reserve a spot on Eventbrite. To tune in online, register on Zoom. Follow #HumorToolkit on social media to stay up to date.

● “Suppression of dissent”: Independent Experts on the Human Rights Situation in Belarus Spoke at the UN. At the 57th session of the UN Human Rights Council (HRC) this September, the Group of Independent Experts on the Human Rights Situation in Belarus, established by resolution A/HRC/RES/55/27, held an interactive dialogue. Human Rights Center “Viasna” reports on how the dialogue went. Speaking of the latest developments, the independent experts, represented by Karyna Maskalenka, underscored “the vicious circle of impunity that prevails in the country, suppressing all forms of dissent, criminalizing those who only exercise their fundamental rights and freedoms, in particular freedom of expression.” To that, the delegation of Belarus said, “ […] the West is trying to interfere in our internal affairs using a wide range of tools, including politically motivated resolutions and mandates of the HRC.” ARTICLE 19 and Human Constanta also made a statement during the interactive dialogue and appealed for the release of political prisoner Nasta Lojka, sentenced to 7 years for her human rights defense work.

● Human Rights in Belarus: Key Trends in Public Policy, May–August 2024. Every four months, the Belarusian Helsinki Committee publishes a review of key trends in public policy in Belarus. In its latest issue, published on September 29, the Committee analyzes the May-through-August developments in three key areas: 1) legislation, strategies, and policies that determine the country’s state of human rights, 2) law enforcement practice – violations of rights; 3) significant changes in reactions of the international community to the state of human rights in Belarus. “New practices are emerging in the enforcement of extremism laws,” the review points to one of the findings. “For the first time, internet resources providing assistance to conscripts have been recognized as extremist. Additionally, a criminal case has been initiated for reposting news from a resource deemed extremist; sending news to a public chat has been classified as facilitating extremist activity […].”

● Belarus Transgender Rights Organization Says Authorities Detained over 15 LGBTQ+ Individuals. Citing TG House Belarus, the JURIST writes about the Belarusian authorities’ targeting of LGBTQ+ individuals. More than 15 LGBTQ+ individuals have been detained in the last weeks for “allegedly subscribing to extremist resources.” Among those targeted were eight transgender individuals, most of whom received hooliganism charges, while two were charged with pornography. The individuals reported physical and psychological torture. Many of the detainees were forced to flee the country. Earlier, the authorities labeled TG House Belarus and its resources as “extremist.”

This section of the newsletter features teaching materials focused on global freedom of expression which are newly uploaded on Freedom of Expression Without Frontiers.

● Restrictions on Freedom of Expression under the Pretext of Fighting Extremism and Terrorism. The latest report by the Human Rights Center “Viasna,” published over the summer, provides an updated review of the crackdown on rights and freedoms in Belarus, covering the period from March 2023 to March 2024. The report shows that, under the pretext of tackling extremism and terrorism, the Belarusian authorities have been amending legislation and using it to ramp up repression. The report outlines applicable international standards, surveys national legislation, explains the practice of designating individuals and legal entities as “extremist” and “terrorist,” and unpacks criminal prosecution practices employed to restrict free speech – on charges from the dissemination of fakes to “insulting government officials” to hooliganism, among many others.

● “I Swear to Fulfill the Duties of Defense Lawyer Honestly and Faithfully”: Politically Motivated Crackdown on Human Rights Lawyers in Belarus. This report, published in May 2024 and prepared by Human Rights Watch, Belarusian Association of Human Rights Lawyers, and Right to Defence, focuses on the lawyers who represented politically prosecuted Belarusians and shed light on the egregious human rights violations in detention – until the authorities came for them, too. The result of this retribution campaign is the “nearly complete takeover of the legal profession in Belarus”: the regime has resorted to criminal prosecution of lawyers, harassment, intimidation, arbitrary revocation of their licenses, and subjection to abuse while in detention. Amendments to the Law on the Bar and Practice of Law, along with public statements of Belarusian officials, eliminate the independence of lawyers and assign them the roles of “statesmen.” The sentences of six lawyers – Maksim Znak, Aliaksandr Danilevich, Vital Brahinets, Anastasiya Lazarenka, Yuliya Yurhilevich, and Aliaksei Barodka – range from six to ten years in prison.

Will the Tide Ever Turn on Lukashenka and the Regime’s Repression? In this podcast episode, released by the International Press Institute, Natalia Radzina, Editor-in-Chief of Charter’97, discusses the “colossal” level of repression in Belarus that finds itself in the shadows of other international concerns. Radzina reminds the audience that due to the total state control of the information space, no independent media outlets remain inside Belarus today. Consequently, the number of political prisoners, torture reports, and deaths in detention could be significantly higher. Radzina urged the international community to support the exiled Belarusian media financially and impose tougher economic sanctions on the regime’s officials.

This newsletter is reproduced with the permission of Global Freedom of Expression.  For an archive of previous newsletters, see here.