On July 15, 2021, the case was won in the UN Human Rights Committee.

Заголовок: On July 15, 2021, the case was won in the UN Human Rights Committee. Сведения: 2024-05-31 05:31:08

The case of Oleg Ageev v. the Republic of Belarus. Views of the Human Rights Committee of July 15, 2021. Communication No. 2862/2016.

In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Belarus.

As seen from the text of the Considerations, the author claimed that his right to freedom of expression was unreasonably restricted due to the prohibition of engaging in professional activities and the imposition of sanctions on him for expressing his opinion. According to the author, contrary to the guarantees provided for in paragraphs 1 and 3 of article 14 of the Covenant, the author's case was examined by the Qualification Commission of the Ministry of Justice, which is not an independent body. The author was not notified of the charges against him and found out about them only after the Qualification Commission decided to terminate his license, and was not invited to a meeting of the Commission.

Legal positions of the Committee: the concept of defining rights and obligations "in any civil process" is complex. It is formulated differently in the texts of the Covenant in different languages, which, according to its article 53, are considered equally authentic, and the preparatory materials do not resolve the problem of discrepancies in the texts in different languages. The Committee notes that the concept of "civil procedure" or its equivalents in texts in other languages is based rather on the nature of the right in question, rather than on the status of one of the parties or a specific forum provided by domestic legal systems to determine specific rights (See, for example: the Human Rights Committee, the case of "I.L. v. Canada", communication No. 112/1981.). This concept covers:

(a) Judicial procedures designed to determine the rights and obligations relevant to the areas of contracts, property and tort in the field of civil law;

(b) Equivalent concepts in the field of administrative law, such as the dismissal of civil servants for reasons other than disciplinary, the determination of social insurance benefits or pension rights of military personnel, or procedures relating to the use of public lands or the seizure of private property. In addition, it may cover other procedures, which should, however, be assessed on a case-by-case basis in the light of the nature of the right in question. The Committee considers that the third scenario applies in this case and considers that the proceedings related to the termination of the author's lawyer's license fall under the concept of "civil procedure", since it is related to the definition of civil rights and obligations (paragraph 7.4 of the Views).

Referring to paragraph 13 of its general comment No. 34 (2011), the Committee recalls: freedom of expression implies freedom of the press and other media that could comment on State issues without control or restrictions and inform the public about them, and that the general public, in turn, has the right to receive the product of media activities. The Committee notes that lawyers, like other citizens, have the right to freedom of expression. In particular, lawyers have the right to participate in public discussions on issues related to law, the administration of justice and the promotion and protection of human rights (paragraph 7.11 of the Views).

The right protected by article 19, paragraph 2, of the International Covenant on Civil and Political Rights is not absolute and may be subject to certain restrictions. However, any restrictions must be provided for by law and imposed only on one of the grounds set out in paragraph 3 of article 19, namely, if they are necessary to protect the rights and reputation of others or to protect State security, public order, public health or morals. The Committee also recalls that the State party must provide a legal justification for any established restriction on the exercise of the right to freedom of expression (paragraph 7.13 of the Views) (See: Korneenko v. Belarus (CCPR/C/95/D/1553/2007).).

The Committee's assessment of the factual circumstances of the case: with regard to the procedure used by the Ministry of Justice, the author stated that he had not been notified of the ongoing review of his work as a lawyer, and he had not been informed that his case was being considered by the Qualification Commission, and therefore he did not know about the proceedings against him and how to build his protection. The author claimed that there were other possibilities, for example, a disciplinary procedure at the Minsk City Bar Association, which could have been involved in this case, but it was not resorted to. In addition, the grounds for the establishment of the Qualification Commission by the State Security Committee are still kept secret. In this context, a number of documents related to his professional activities were withdrawn from the author's legal advice, such as: contracts with clients, a record book of these contracts and personal accounts - monthly reports to the Minsk City Bar Association on specific cases and the amount of the worked fee, which were subsequently used in proceedings against him. In addition, the author learned from the head of the Minsk City Bar Association that his license would be terminated only on February 14, 2011, shortly before the Ministry of Justice officially notified him of the termination of his license on February 16, 2011 (paragraph 7.5 of the Considerations).

The Committee noted the author's claims that the assessment of his professional activity and the decision to terminate his lawyer's license were carried out by the executive body bypassing the competent regulatory authority. The Committee also took note of the author's claim that he was not allowed to give any explanations in his defense and to be represented by a lawyer. The Committee further noted that none of these allegations had been examined or refuted by the State party (paragraph 7.6 of the Views).

The Committee considered that the facts presented concerning the circumstances of the revocation of the author's lawyer's license and the manner in which it was done indicated gross and unjustified interference by the State party's authorities with the fundamental principle of the independence of lawyers (paragraph 7.7 of the Views).

The Committee noted that the very seriousness of the sanction in the proceedings under consideration, which led to the revocation of the author's license to practice law, required strict observance and respect for all guarantees of due process and fair trial. The Committee took note of the author's statement that he had not been notified of the proceedings against him, had no opportunity to challenge the charges and could not be legally represented. Moreover, the proceedings themselves were conducted by a body consisting of employees of executive bodies, bypassing the competent regulatory authority. The Committee considered that such procedures were manifestly arbitrary, biased and in violation of the principle of the independence of lawyers, and thus incompatible with the basic guarantees set out in article 14, paragraph 1, of the Covenant, which require a fair trial of the accused by a competent, independent and impartial court established by law (paragraph 7.8 of the Views).

The Committee also noted the following - the author was sanctioned in the form of deprivation of his license to practice law, in particular, for making a public statement in the media regarding the rights of detainees to receive parcels. Among those detained was the author's client, a former presidential candidate, who was arrested after the election and held in the detention center of the State Security Committee. The very fact that the author was sanctioned for communicating with the media amounts to a restriction of his right to freedom of expression (paragraph 7.12 of the Considerations).

The Committee indicated that the fact that the author had been severely punished, in particular for making a public statement to the media, was not disputed. The Committee also stressed that neither the State party, in the context of the communication, nor the national authorities dealing with the matter, including the courts, had provided any explanation relevant to the justification for the restriction of the author's rights under article 19, paragraph 2, for the purposes of article 19, paragraph 3, of the Covenant. In the absence of any justification, the Committee considered that the author's right to freedom of expression, protected by article 19, paragraph 2, of the Covenant, had been unreasonably restricted and violated (paragraph 7.14 of the Views).

The Committee's conclusions: The facts presented indicated a violation by the State party of articles 14, paragraph 1, and 19, paragraph 2, of the Covenant.



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