UN Human Rights Committee, Korneenko v Belarus, UN Doc CCPR/C/105/D/1226/2003 (29 August 2012)
Viktor Korneenko resides in Gomel, Belarus, where he was the chairperson of the Gomel regional association of Civil Initiatives. This NGO was involved in election monitoring in Belarus. Civil Initiatives was dissolved by court order after Belarusian authorities fined Korneenko and confiscated the organisation’s computer equipment on the basis that Koreenko had violated a temporary presidential decree banning the use of computer equipment, received as “untied foreign aid”, from being used for political purposes.
Korneenko accused Belarusian authorities of using evidence that had been unlawfully obtained to enforce the temporary presidential decree against him, contrary to his right of equality (amongst other rights) before the court under the International Covenant on Civil and Political Rights. He also accused Belarusian authorities of charging him with the ulterior motive of shutting down the activities of Civil Initiatives on the eve of the 2001 presidential elections. The UN Human Rights Committee upheld Korneenko’s complaint; however, the Committee based its decision on a violation of the right of freedom of association (and associated rights).
On 13 August 2001, Korneenko alleged that the premises of Civil Initiatives were searched by officers of the Department of State Security Committee of Gomel Region (DSSC) pursuant to a search warrant issued by the Prosecutor of Gomel Region. The warrant was issued in connection with a criminal investigation under the Belarusian Criminal Code relating to the desecration of buildings by the painting of political slogans.
During the course of the search, the DSSC seized computer equipment which, according to Koreenko, was not packed and sealed by the officers in accordance with Belarusian law. Koreenko argued that any evidence obtained by the authorities as a result of that search was in violation of Belarusian law and could not be used as a basis for prosecution.
The investigation relating to the desecration of property was dropped, however, the DSSC provided the evidence it had obtained from the seizure of the computer equipment to the Ministry of Customs and Duties. The Ministry used this evidence to charge Korneenko for using computer equipment received as “untied foreign aid” for the production and dissemination of political material in contravention of a temporary presidential decree prohibiting the use of such aid.
The matter was referred to a district court judge who found that the computer equipment was used “for the so-called independent monitoring of the 2001 presidential elections in Belarus and carrying out related publicity activities”. The judge imposed a fine and ordered that the computer equipment be confiscated. Korneenko made repeated complaints on the inadmissibility in court of evidence obtained illegally by DSSC including to the chairpersons of superior courts. He succeeded in having another district court judge rehear the matter; however, the orders against him were confirmed.
Arguments before the Committee
Koreenko claimed that he had been denied the right to equality before the courts and the determination of his rights and obligations in a suit at law (article 14(1), ICCPR). He alleged that his right to equal protection of the law against discrimination had been violated (article 26, ICCPR).
Koreenko also accused the authorities of using the initial criminal investigation regarding the desecration of buildings as a pretext to seize Civil Initiatives’ property ahead of the 2001 presidential elections.
In response to Korneenko’s claims, Belarus argued that the objects seized during the search were admissible. Korneenko had been advised repeatedly that it had not been possible to pack the computer equipment because of its size and this was not a violation of procedural law. Consequently there were no procedural anomalies in the way the evidence against Koreenko was obtained. Belarus also argued that Korneenko had had public hearings at which he was represented and that Korneenko’s political opinion had nothing to do with the charges against him.
The Committee held that Koreenko’s claim that he had been denied a right to equality before the courts under article 4 of the ICCPR was not substantiated. The Committee said that he “failed to demonstrate that, even if the seized computer equipment was not packed and sealed, contrary to the requirements of the State party’s own procedural law, the court’s findings in this respect reached the threshold of arbitrariness in the evaluation of the evidence or amounted to a denial of justice.” The Committee also held that Koreenko’s claim under article 26 had not been substantiated, although the Committee did not elaborate further on this point.
The Committee considered that the facts of the complaint could be applied to considering whether Koreenko’s rights to freedom of expression (article 19(2), ICCPR), freedom of association (article 22(1), ICCPR) and of taking part in the conduct of public affairs (article 25(a), ICCPR) had been violated.
The Committee considered article 22(1) and held that the seizure of the computer equipment was a restriction of Korneenko’s right to freedom of association because it effectively meant that the association could no longer continue its election monitoring activities. Similarly, the seizure of the computer equipment violated Korneenko’s right to participate in public affairs pursuant to article 25(a) and his right to seek, receive and impart information and ideas pursuant to article 19(2). The Committee noted that the ICCPR recognised very limited circumstances in which the freedom of association and the freedom to seek, impart information and ideas could be restricted, however, the State of Belarus had advanced no argument to justify its apparent restriction of Korneenko’s freedoms in these areas.
It seems that the focus of the Committee’s decision was not so much the application of Belarusian law to Koreenko, which the Committee said was not so arbitrary as to amount to a denial of justice. Rather, the Committee’s focus was on the effect of applying the law to Koreenko, which amounted to the denial of the right of freedom of association (and associated rights). Essentially, the consequences of its application were to shutdown Civil Initiatives. The Committee’s decision only mentions in passing the political situation in Belarus at the time of the seizure of the computer equipment, but it is submitted that an understanding of this political context shaped the Committee’s decision. Arguably, the implication of the Committee’s decision is that State authorities cannot use their laws and processes, however seemingly impartial, and apply them against their citizens for the purposes of achieving ulterior motives which are contrary to the ICCPR.
Given that Victorian Charter has equivalent ICCPR provisions recognising the right to equality before the law (section 8), freedom of expression (section 15) and freedom of association (section 16), the decision of the Committee is part of the growing body of human rights jurisprudence, which is a valuable resource in interpreting the Charter.
The decision is available online at: http://www2.ohchr.org/english/bodies/hrc/HRCommitteeCaseLaw.htm
Diana Nestorovska, Solicitor, King & Wood Mallesons Human Rights Law Group