The International Human Rights Framework on the Right of Peaceful Assembly
Belarus is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Belarus is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, Belarus is not a State Party to the 1950 European Convention on Human Rights, Article 11 of which governs freedom of assembly and association. Since Belarus is not a member of the Council of Europe, those under the jurisdiction of Belarus are not entitled to bring a case against the State alleging a violation of human rights.
The Domestic Legal Framework on the Right of Peaceful Assembly
According to Article 35 of the 1994 Constitution of Belarus (as amended through 2004):
The freedom to hold assemblies, rallies, street marches, demonstrations and pickets that do not disturb law and order or violate the rights of other citizens of the Republic of Belarus, shall be guaranteed by the State. The procedure for conducting the above events shall be determined by the law.
The 1997 Mass Events Act is primary legislation governing peaceful assembly in Belarus
Amendments in 2018 to the 1997 Mass Events Act introduced a notification-based procedure for holding assemblies. The amended legislation, which came into force on 26 January 2019, stipulates that to convene an assembly it is necessary to notify local executive and administrative bodies no later than 10 days before the suggested date of the event. These bodies are obliged to inform the organiser in writing if the assembly is being prohibited at least five days in advance. If it is permitted, the organiser remains obligated to pay for the security provided by the police and for the availability of medical assistance.
The Human Rights Committee stated that it remained concerned that the notification procedure "may be used only for assemblies held at permanent locations as designated by the authorities, which are reportedly located far away from city centres".
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
In its 2015 Universal Periodic Review under the United Nations Human Rights Council, Belarus' national legislation on use of force by law enforcement agencies was said to be detailed and containing elements of necessity and proportionality.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
In the 2015 Universal Periodic Review, it seemed that there was a clear understanding of when lethal force is allowed to be used in Belarus. But the rules governing resort to deadly force in the context of assemblies are not publicly known. In August 2020, in the context of anti-government protests the Minister of the Interior stated that a "shoot to kill" policy in cases of self-defence was permitted to the security forces.
State Compliance with its Legal Obligations
Views of United Nations Treaty Bodies and Special Procedures
In February 2021, Anais Marin, UN Special Rapporteur on the situation of human rights in Belarus, stated that
what happened in 2020 led to unprecedented human rights violations, both in terms of scope, intensity, and scale. Over thirty thousand people were detained just because they tried to exercise their legal right to freedom of assembly; thousands were allegedly tortured or otherwise subject to ill-treatment, psychological intimidation and threats; hundreds of activists, human rights defenders, journalists were persecuted or are now subjected to various forms of pressure from the authorities. ...
As you must have noticed, the authorities have remained deaf to all our calls and recommendations. I haven’t seen any step made into the right direction, quite to the contrary: in recent weeks there has been a multiplication of evidence that the authorities seem to want to further tighten the screws, ahead of the spring when the protests will predictably resume, with even more determination.
In its 2018 Concluding Observations on Belarus, the Human Rights Committee expressed concern that the State "regulates peaceful assembly in a manner that undermines the exercise of this right". It was "particularly concerned about such undue restrictions as":
Broad authorization requirements for holding all types of protests; the stringent conditions for granting authorization, including undertakings to ensure public order and safety and the provision of medical and cleaning services; the limitations on the holding of assemblies, especially their being restricted to certain permissible locations only, the size of assemblies organized by physical persons being restricted to less than 1,000 persons and the banning of spontaneous assemblies. While noting that the 2018 amendments to the Mass Events Act introduce a notification-based procedure for holding assemblies, the Committee remains concerned that the notification procedure may be used only for assemblies held at permanent locations as designated by the authorities, which are reportedly located far away from city centres;
The Committee was also concerned at the
excessive use of police force, mass arrests, detention and punishments for administrative offences in connection with the Freedom Day events on 25 March 2017, when police allegedly detained at least 700 persons, including about 100 journalists and 60 human rights activists, with at least 177 protestors reportedly found to be in violation of the Code of Administrative Offences following proceedings that lacked fair trial guarantees.
It called on Belarus to
revise its laws, regulations and practices, including the Mass Events Act, with a view to guaranteeing the full enjoyment of the right to freedom of assembly, both in law and in practice, and to ensuring that any restrictions on the freedom of assembly, including through the application of administrative and criminal sanctions against individuals exercising that right, comply with the strict requirements of article 21 of the Covenant.
It also called on Belarus to "promptly and effectively investigate all cases of excessive use of force by law enforcement officials, arbitrary arrest and detention of peaceful protesters", and to "bring the perpetrators to justice".
The UN Special Rapporteur on Human Rights in Belarus earlier reported that the police have been used to protect the regime in power and to prevent peaceful assembly and protest. On 25 March 2017, for instance
the police brought up water cannons, prisoner transport vehicles, armoured vehicles and other equipment for dispersing crowds. On Independence Prospect in Minsk, the police ordered the crowd to disperse, but as the entire area was blocked off, there was no way out but into the police vans.Report of the Special Rapporteur on the situation of human rights in Belarus, UN doc. A/HRC/35/40, 21 April 2017, para. 56.
The Special Rapporteur has further noted the unwillingness of state prosecutors to investigate cases of ill-treatment and torture by the police. As an example,
an activist who was severely beaten by two policemen during his arrest on 11 August 2016 was told that his complaint could not be investigated further as he had failed to identify the person who broke his jaw.Report of the Special Rapporteur on the situation of human rights in Belarus, UN doc. A/HRC/35/40, 21 April 2017, para. 79.
Views of Civil Society
CIVICUS has reported that post-election protests continued to December 2020 with reports revealing the extent of the violent crackdown on post-election protests by law enforcement. This included dozens of journalists, human rights defenders and civil society organisations being targeted in coordinated raids. Law enforcement continued to use force against the protesters, and many of them were arrested and taken to detention centres. Those detained accused the police of torture.
The marches continued every weekend, and sometimes even during working days, especially after the death of protester Roman Bandarenko, who died from blows by the police. After his death, the place where he was hit and detained became a place of pilgrimage for protesters where they began to bring flowers. Law enforcement however destroyed the memorial and arrested several protesters guarding it. Over time, the protests gained a neighbourhood character, with protesters gathering in smaller numbers in their neighbourhoods. Authorities continued to use force and detained those hiding in nearby blocks of flats.
The demands of the protesters remained the same: free and fair elections, the sanctioning of those guilty of the deaths of several protesters and the application of torture against peaceful people.