(ARTICLE 19/IFEX) – In a 4 October 2002 letter to President Aleksandr Lukashenka, ARTICLE 19 expressed concern over the news of the adoption, on 3 October 2002, of the Law of the Republic of Belarus on the Insertion of Changes and Amendments in the Law of the Republic of Belarus “On Freedom of Denomination and […]
(ARTICLE 19/IFEX) – In a 4 October 2002 letter to President Aleksandr Lukashenka, ARTICLE 19 expressed concern over the news of the adoption, on 3 October 2002, of the Law of the Republic of Belarus on the Insertion of Changes and Amendments in the Law of the Republic of Belarus “On Freedom of Denomination and Religious Organisations”.
The law seriously restricts the right of religious organisations to disseminate material. Article 26, in particular, is highly problematic in the way it restricts freedom of expression. Article 26(1) recognises the right of religious institutions to produce and disseminate religious literature but this is undermined by the remaining paragraphs. Several paragraphs of Article 26 deal with “religious analyses” by the State Administrative Body of Religious Affairs. Pursuant to Article 26(2), such an analysis is mandatory in the case of imported religious materials. Article 26(3) allows a religious analysis during the distribution of religious material at the request of the relevant state body, while Article 26(4) stipulates that a religious analysis is compulsory whenever religious literature is to be delivered to libraries.
International guarantees of freedom of expression do permit limited restrictions on freedom of expression but only where they meet the following strict three-part test:
– The interference must be provided by law;
– The interference must have a legitimate aim; and
– The interference must be necessary in a democratic society.
The last part of the three-part test means that there must be a “pressing social need” for any restriction. The reasons given by the state to justify the restriction must be “relevant and sufficient”, and the restriction must be proportionate to the aim pursued. Restrictions on freedom of expression that do not comply with these requirements are illegitimate. The jurisprudence of the European Court of Human Rights makes it clear that this test presents a high standard which any interference must overcome, because of the fundamental importance of freedom of expression in a democratic society.
The various provisions on religious analyses represent a clear violation of the right to freedom of expression. The state has no right to supervise publications in this way, religious or otherwise. The threat of such supervision, along with the possible sanctions, which include “liquidation” of the responsible organisation (Article 23) and, presumably, discontinuation of the material, are bound to exert a chilling effect on the right to freedom of expression.
Even more serious is the application of these measures while information is being distributed or before it reaches libraries. This is reminiscent of the old censorship apparatus and effectively codifies prior censorship (also known as prior restraint). Prior censorship is viewed as totally unacceptable in some human rights conventions and it is everywhere viewed with the greatest suspicion. The European Court, for example, has stated: “… the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court.” (1)
Furthermore, only religious organisations that are duly registered may benefit from the rights established at Article 26(1). Technical registration of the mass media is not strictly contrary to international law as long as it meets certain conditions. However, as the United Nations Human Rights Committee has held in a case from Belarus, a registration requirement for occasional and/or small-scale publications imposes an unacceptable burden on the right to freedom of expression and is not legitimate. (2) There should be no need for registration in order to exercise the right to produce and disseminate religious literature, which is a right held by everyone.
Another concern is with the restrictions on publishing and disseminating religious material. Article 26(5) allows only companies established by religious organisations to publish religious literature, while Article 26(8) restricts distribution of these materials to places owned by religious organisations, or places which have been approved by “local executive or management bodies”.
These provisions are highly restrictive and totally unjustified. Any publishing company should be allowed to print religious material, the practice in the vast majority of countries around the world. The restrictions on distribution are even more draconian and would, for example, prohibit a religious leader from handing out religious material in his or her home.
Notes
1. The Observer and the Guardian v. United Kingdom, 26 November 1991, 14 EHRR 153, para. 60.
2. Laptsevich v. Belarus, 20 March 2000, Communication 780/1997.
Recommended Action
Send appeals to the president:
– calling upon his government to amend the law and delete the whole of Article 26 apart from the first paragraph
– urging his government to create an environment in which religious organisations can freely express themselves without fear of intimidation
Appeals To
H.E. Aleksandr Lukashenka
Presidential Administration
ul. Karla Marksa 36
220010 Minsk
Belarus
Fax: +375 17 223 58 25Please copy appeals to the source if possible.
