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Distr.
GENERAL
CCPR/C/84/D/1207/2003
23 August 2005
Original: ENGLISH
Communication No. 1207/2003 : Belarus. 23/08/2005.
CCPR/C/84/D/1207/2003. (Jurisprudence)
Convention Abbreviation: CCPR
Human Rights Committee
Eighty-fourth session
11 - 29 July 2005
Views of the Human Rights Committee under
the Optional Protocol to the International Covenant
on Civil and Political Rights*
- Eighty-fourth session -
Communication No. 1207/2003
Submitted by: Sergei Malakhovsky and Alexander Pikul (not represented
by counsel)
Alleged victim: The authors
State Party: Belarus
Date of communication: 24 July 2003 (initial submission)
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 26 July 2005,
Having concluded its consideration of communication No. 1207/2003,
submitted to the Human Rights Committee by Sergei Malakhovsky
and Alexander Pikul under the Optional Protocol to the International
Covenant on Civil and Political Rights,
Having taken into account all written information made available
to it by the author of the communication, and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1.1 The authors of the communication
are Mr. Sergei Malakhovsky and Mr. Alexander Pikul, citizens of
Belarus, born in 1953 and 1971 respectively. They claim to be
victims of violations by Belarus of article 18, paragraphs 1 and
3, and article 22, paragraphs 1 and 2 of the International Covenant
on Civil and Political Rights. They are not represented by counsel.
1.2 The Covenant and the Optional Protocol entered
into force for Belarus on 23 March 1976 and 30 December 1992,
respectively.
Factual background
2.1 The authors are members of the Minsk Vaishnava
community (community of Krishna consciousness), one of seven such
communities registered in Belarus. The applicable law distinguishes
between a registered religious community and a registered religious
association. The authors state that certain activities which are
essential to the practice of their religion may only be undertaken
by a religious association. According to the domestic statute
on 'freedom of conscience and religious organizations' ('the Statute'),
and the Decree of the Council of Ministers on 'approval of invitation
of foreign clerics and their activity in Belarus' ('the Decree'),
only religious associations are entitled to establish monasteries,
religious congregations, religious missions and spiritual educational
institutions, or invite foreign clerics to visit the country for
the purposes of preaching or conducting other religious activity.
2.2 On 10 May 2001, the authors filed an application
with the Committee on Religions and Nationalities ('the C.R.N.'),
seeking the registration of the seven Krishna communities in Belarus
as a religious association. The application included a draft statute
and other pertinent documentation required by law, including documents
identifying an officially approved 'legal address' of the association,
11 Pavlova Street, Minsk, which satisfied all relevant requirements
under the Housing Code, including regulations regarding fire and
sanitation facilities.
2.3 On 5 June 2001, the C.R.N. returned these
documents with a direction that certain changes be made. The authors
resubmitted the documents, but on 27 July 2001, they were returned
again with a direction for further changes. On each occasion,
most of the required changes were not based on applicable laws,
and appeared to reflect the personal views of the officials processing
the application. The authors submitted the documents for a third
time on 11 August 2001.
2.4 Although the Statute required the authors'
application to be determined within one month, a period of over
a year elapsed after the documents were initially filed, without
any decision from the C.R.N.. On 30 May 2002, the authors filed
an application in the Central Court of Minsk seeking an order
to direct the C.R.N. to determine their application. On 4 July
2002, the Court issued an order requiring the C.R.N. to decide
on the authors' application within a month.
2.5 On 2 August 2002, the C.R.N. refused the
authors' application, on the ground that they had not provided
a proper legal address. It found that the earlier decision of
the Central Regional Administration of the City of Minsk to approve
the legal address for the religious association was invalid, as
it had been based on an earlier decision of the Minsk City Executive
Committee, which, by virtue of another law, did not apply to the
registration of religious organizations.
2.6 As a result of the C.R.N.'s refusal to register
the association, members of the seven Krishna communities, including
the authors, have been deprived of the right to establish spiritual
educational institutions to train their priests, making it impossible
to support religious doctrine appropriately. They cannot invite
foreign priests to visit the country, resulting in a decline of
spiritual standards due to their inability to associate with more
spiritually advanced believers. They have also been unable to
create monasteries and missions, for the purpose of realizing
certain essential tenets of their religion.
2.7 On 24 September 2002, the authors appealed
the C.R.N.'s refusal to register the association in the Central
District Court of Minsk; the appeal was dismissed on 18 October
2002. On 29 October 2002, they filed a cassation appeal in the
Minsk City Court; the appeal was dismissed on 28 November 2002.
On 21 December 2002, the authors filed an application for supervisory
review with the President of the Minsk City Court; this was dismissed
on 17 February 2003. On 14 April 2003, they filed an application
for supervisory review in the Supreme Court of Belarus; this was
dismissed on 30 May 2003. The grounds for the dismissal of the
appeals were twofold: first, the absence of a proper legal address,
for the reasons mentioned in the C.R.N.'s decision (paragraph
2.5 above); secondly, the premises did not comply with the requirements
of the Housing Code, as several violations of sanitary and fire
safety measures had been identified.
2.8 The authors submit that that the decision
of the administrative body to approve the legal address of their
association was never set aside, and remains in force. They acknowledge
that the earlier decision of the Minsk City Executive Committee,
on which the decision to approve their legal address was based,
was not applicable to the registration of religious bodies, but
argue that it was simply irrelevant, and that the premises only
needed to comply with relevant provisions of the Housing Code,
which it did. As to concerns about the fire safety and sanitation
facilities of the premises, the authors note that the building
is residential, that people are living in it, and that it cannot
be argued that the building is safe for these residents but unsafe
for their organization.
2.9 The authors submit that amendments to the
Statute adopted on 31 October 2002 make it even more difficult
to have a religious association registered. The Statute now requires
that an association be comprised of at least 10 religious communities,
of which at least one must have conducted its activities in Belarus
for not less than 20 years.
The complaint
3.1 The authors submit that the refusal of the
C.R.N. to register their religious association, and the failure
of domestic judicial instances to uphold their appeals, together
with the consequences which flow from these decisions, amount
to a violation of their rights under article 18, paragraphs 1
and 3, and article 22, paragraphs 1 and 2. They note that the
process of unsuccessfully pursuing the registration of the association
took two years, which is said to be evidence of a discriminatory
policy of the State party towards religious minorities.
3.2 The authors contend that the requirements
for the registration of a religious association established under
the State party's laws are unwarranted limitations of their right
to manifest their religion and restrictions on the exercise of
their freedom of association with others which do not meet the
criteria of necessity to 'protect public safety, order, health,
or morals, or the fundamental rights and freedoms of others',
as provided for in articles 18, paragraph 3, and the corresponding
provision in article 22, paragraph 2, of the Covenant.
The state party's observations on admissibility
and merits
4.1 In its observations dated 29 April 2004,
the State party submits that the communication does not reveal
any violation of articles 18 or 22 of the Covenant. It notes that
the authors are able to practice their religion unobstructed both
personally and in association with others. Since 1992, the authors
have actively participated in the Minsk Krishna community, which
has been registered in accordance with law. The seven existing
Krishna communities in Belarus have an autonomous status and are
not subject to religious control.
4.2 The State party confirms that on 16 November
2002, amendments to the Statute introduced new requirements for
registration of a religious association, which require such an
association to have 10 or more communities, at least one of which
must have been conducting activities within Belarus for a period
of 20 years or more.
4.3 In relation to the authors' application for
registration, the State party notes that the first two applications
did not comply with legal requirements. In relation to the third
application, the C.R.N. was required to examine thoroughly the
association's statute, teachings and activities, as its stated
objectives and tasks were significantly different from those of
the seven religious communities of which it was comprised. In
particular, the draft constitution of the association stated that
the new body aspired to making the International Society of Krishna
Consciousness, which is only one of many branches of Vishnu Hinduism,
the only religious organization representing Vishnuism in Belarus.
4.4 The State party confirms that a key requirement
for the registration of religious associations is that the body
in question must have an approved legal address. The authors'
application referred to a housing block at 11 Pavlova Street in
Minsk. The State party's Housing Law provides that any non-residential
use of housing estates must be carried out with the agreement
of local authorities, and in accordance with rules governing sanitary
conditions and fire safety; inspection of the premises by the
authorities revealed violations of these norms. The State party
notes that the authors proposed to use the site for collective
purposes – religious ceremonies, rituals and other group undertakings,
which require particular safety arrangements and strict compliance
with relevant standards. Thus an inspection of the premises after
a wedding ceremony on 25 May 2002 revealed that open fires had
been used on the premises.
4.5 The State party submits that the courts which
examined the authors' appeals were correct in their assessment
that the administrative decision which had approved the use of
the premises as the association's legal address had been taken
without the required inspection of the premises, and in violation
of the housing laws referred to above. In any event, this administrative
body had no jurisdiction in relation to religious and social associations.
Accordingly, the State party's courts were correct in dismissing
the authors' appeals against the C.R.N.'s refusal to register
the association.
The authors' comments on the State party's observations
and subsequent submissions
5.1 In their comments on the State party's observations
dated 31 May 2004, the authors reiterate that the State party,
by denying their association's registration on unjustified and
unlawful grounds, significantly restricted their right to practice
their religion and profess their opinions, together with others,
including with others coming from abroad. They add that, following
the amendments to the Statute in 2002, it will not be possible
for them to register their association, as they have only 7 communities
in Belarus, none of which has been active for more than 20 years.
They submit that such requirements discriminate against those
religions which had no opportunity to be active during the Soviet
era.
5.2 The authors contend that the State party's
references to the safety concerns about the premises in question
are inaccurate, as the authorities had previously conducted an
inspection of the fire safety at the premises and approved its
use as a legal address, subject to seven remedial measures, all
of which the authors fulfilled.
5.3 It is submitted that the State party's reference
to the open fire used during a marriage ceremony at the premises
points to the discriminatory character of the refusal to register
their association, as other religions practice similar forms of
devotion without any adverse comment from the authorities. Finally,
the authors state that the purpose of having a legal address is
not necessarily to conduct religious ceremonies and rituals on
the site, but to have a centre for the organization of their activities.
Accordingly, there is no need for the special safety measures
referred to by the State party.
5.4 In a further submission dated 26 November
2004, the State party reiterates that the provisions of the 2002
Statute on 'Freedom of Conscience and Religious Organisations'
are not discriminatory in nature, and refers to national laws
of other states which require a minimal number of constituent
bodies and a certain period of prior existence as a prerequisite
for registration of a religious community.
5.5 The State party notes that numerous violations
of health and fire regulations were recorded at the Minsk Vaishnava
community's premises. A wedding ceremony had been held there on
25 May 2002, which was subsequently evaluated by the administration
of the Central Minsk District as an 'event which created a threat
to the life and health of the participants and neighbours.' On
this basis, the C.R.N. refused to register the statute of the
association. On 18 October 2002, the Central District Court of
Minsk rejected the authors' appeal against the C.R.N.'s decision
on the same grounds; this decision was in turn affirmed on appeal.
5.6 The State party explains that the registration
of the association was impossible at this particular address,
because it would have resulted in an increase in the frequency
and attendance of religious events at the premises, which in turn
would have increased health hazards. The founders of the association
were requested to remedy the health and safety violations, and
were invited to study the possibility of moving their proposed
statutory address to another location.
Issues and proceedings before the Committee:
6.1 Before considering any claim contained in
a communication, the Human Rights Committee must, in accordance
with rule 93 of its Rules of Procedure, decide whether or not
it is admissible under the Optional Protocol to the Covenant.
6.2 The Committee has ascertained, as required
under article 5, paragraph 2 (a), of the Optional Protocol, that
the same matter is not being examined under another procedure
of international investigation or settlement.
6.3 The Committee considers that the author has
sufficiently substantiated his claims under articles 18, paragraphs
1 and 3, and article 22, paragraphs 1 and 2, for purposes of admissibility.
It concludes that the communication is admissible and proceeds
to an examination on the merits.
7.1 The Human Rights Committee has considered
the present communication on the merits in the light of all the
information made available to it by the parties, as provided under
article 5, paragraph 1, of the Optional Protocol.
7.2 In relation to the authors' claim under article
18, paragraphs 1 and 3, the Committee recalls its General Comment
No 22, which states that article 18 does not permit any limitation
whatsoever on freedom of thought and conscience or on the freedom
to have or adopt a religion or belief of one's choice. (1) By
contrast, the right to freedom to manifest one's religion or beliefs
may be subject to certain limitations, but only those prescribed
by law and necessary to protect public safety, order, health or
morals or the fundamental rights and freedoms of others. Further,
the right to freedom to manifest one's beliefs in worship, observance,
practice and teaching encompasses a broad range of acts, including
those integral to the conduct by the religious group of its basic
affairs, such as the freedom to choose religious leaders, priests,
and teachers, and the freedom to establish seminaries or religious
schools. (2) In the present case, the Committee notes that the
State party's law distinguishes between religious communities
and religious associations, and that the possibility of conducting
certain activities is restricted to the latter. Not having been
granted the status of a religious association, the authors and
their fellow believers cannot invite foreign clerics to visit
the country, or establish monasteries or educational institutions.
Consistent with its General Comment, the Committee considers that
these activities form part of the authors' right to manifest their
beliefs.
7.3 The Committee must now address the question
of whether the relevant limitations on the authors' right to manifest
their religion are 'necessary to protect public safety, order,
health, or morals, or the fundamental rights and freedoms of others',
within the meaning of article 18, paragraph 3, of the Covenant.
The Committee recalls its General Comment No 22, which states
that paragraph 3 of article 18 is to be interpreted strictly,
and that limitations may only be applied for those purposes for
which they are prescribed and must be directly related to and
proportionate to the specific need on which they are predicated.
(3)
7.4 In the present case, the limitations placed
on the authors' right to manifest their belief consist of several
conditions which attach to the registration of a religious association.
One of the criteria which the authors' application for registration
did not meet was the requirement to have an approved legal address,
which satisfied certain health and fire safety standards necessary
for premises used for purposes such as religious ceremonies. These
limitations must be assessed in the light of the consequences
which arise for the authors and their religious association.
7.5 The Committee considers that the precondition,
whereby a religious association's right to carry out its religious
activities is predicated on it having the use of premises which
satisfy relevant public health and safety standards, is a limitation
which is necessary for public safety, and proportionate to this
need.
7.6 The Committee notes, however, that the State
party has not advanced any argument as to why it is necessary
for the purposes of article 18, paragraph 3, for a religious association,
in order to be registered, to have an approved legal address which
not only meets the standards required for the administrative seat
of the association but also those necessary for premises used
for purposes of religious ceremonies, rituals, and other group
undertakings. Appropriate premises for such use could be obtained
subsequent to registration. The Committee also notes that the
argument of the State party in its comments on the communication
that the authors' community sought to monopolize representation
of Vishnuism in Belarus did not form part of the domestic proceedings.
Also taking into account the consequences of refusal of registration,
namely the impossibility of carrying out such activities as establishing
educational institutions and inviting foreign religious dignitaries
to visit the country, the Committee concludes that the refusal
to register amounts to a limitation of the authors' right to manifest
their religion under article 18, paragraph 1 that is disproportionate
and so does not meet the requirements of article 18, paragraph
3. The authors' rights under article 18, paragraph 1 have therefore
been violated.
7.7 In light of the above, the Committee does
not consider it necessary to consider the authors' claims of a
violation of their rights under article 22 of the Covenant.
8. The Human Rights Committee, acting under article
5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the
facts before it disclose violations of article 18, paragraphs
1 and 3, of the Covenant.
9. Pursuant to article 2, paragraph 3(a), of
the Covenant, the Committee considers that the authors are entitled
to an appropriate remedy, including a reconsideration of the authors'
application in accordance with the principles, rules and practice
in force at the time of the authors' request, and duly taking
into account of the provisions of the Covenant.
10. By becoming a State 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 pursuant to article 2 of the Covenant, the
State party has undertaken to ensure all individuals within its
territory or subject to its jurisdiction the rights recognized
in the Covenant, and to provide an effective and enforceable remedy
in cases where a violation has been established. 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.
The State party is also requested to publish the Committee's views.
____________________________
[Adopted in English, French and Spanish, the English text being
the original version. Subsequently to be issued also in Arabic,
Chinese and Russian as part of the Committee's annual report to
the General Assembly.]
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Prafullachandra
Natwarlal Bhagwati, Mr. Alfredo Castillero Hoyos, Ms. Christine
Chanet, Mr. Maurice Glиlи Ahanhanzo, Mr. Edwin Johnson, Mr. Walter
Kдlin, Mr. Ahmed Tawfik Khalil, Mr. Rajsoomer Lallah, Mr. Michael
O'Flaherty, Ms. Elisabeth Palm, Sir Nigel Rodley, Mr. Ivan Shearer,
Mr. Hipуlito Solari-Yrigoyen, Ms. Ruth Wedgwood and Mr. Roman
Wieruszewski.
The text of an individual opinion signed by Committee member Ms.
Ruth Wedgwood is appended to the present document.
APPENDIX
Individual opinion by Committee member Ms. Ruth Wedgwood (concurring)
The right of a religious community to establish
monasteries, educational institutions, or missions, and to invite
foreign religious figures to speak, has been sharply restricted
by the government of Belarus. Only those groups officially registered
with the state as "religious associations" can enjoy
these aspects of the free practice of religion.
The seven "Krishna" religious communities of Belarus
have attempted to gain the state's approval as a registered association,
applying to the "Committee on Religions and Nationalities."
The state committee denied the application, after a year's delay,
on the ground that the Krishna group lacked a proper "legal
address." The address used by the applicants was located
in a residential housing bloc. The same address had earlier been
approved by the Minsk City Executive Committee.
The refusal to register the Krishna group as a religious "association"
was appealed to the Minsk Central District Court in 2002. One
month after the first-level dismissal of the appeal, the state
amended the applicable law to add further new restrictions on
the registration of religious associations.
Under the additional test, a religious group seeking qualification
as an "association" must show that it has been active
in Belarus for at least 20 years, and that it has at least 10
"communities" within the country. The Krishna does not
have the minimum number of communities, and cannot point to a
20-year history within Belarus.
The Human Rights Committee now properly finds that the state party
violated Article 18 of the Covenant by refusing to accept the
legal address of the Krishna community as an "administrative
seat" for a religious association. I join my colleagues in
their conclusion that the state has a valid interest in assuring
safe conditions for large public gatherings, but that such gatherings
can also be held in other locations. The refusal to register the
Krishna group because of its residential address was thus unreasonable.
However, the state party's new "grandfathering" rule
is also highly problematic – as an added obstacle to free religious
practice in Belarus. It is hard to imagine why a newer faith should
be forbidden to engage in religious education, and thus the demand
for 20 years of prior practice is doubtful. It is difficult to
fathom why ten "communities" could be a prerequisite
to educational activity, especially since one "community,"
such as that in Minsk, may be larger than many small separate
communities.
Having found a violation of Article 18, the Committee does not
have occasion to reach these further issues. But it is well to
remember that the Covenant recognizes and guarantees the freedom
of every person "either individually or in community with
others and in public or private to manifest his religion or belief
in worship, observance, practice and teaching." See Article
18(1). This right is not limited to old and established religions,
or to large congregations, and it is fundamental to the freedom
of religious conscience.
[signed] Ms. Ruth Wedgwood
[Done in English, French and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic, Chinese
and Russian as part of the Committee's annual report to the General
Assembly.]
Notes
1. General Comment 22, paragraph 3.
2. General Comment 22, paragraph 4.
3. General Comment 22, paragraph 8.
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