The provisions of Article 19 of the Covenant are commented in detail by the Committee itself in General Comment No. 34, CCPR/C/GC/34 of 12 September 2011
. The Committee periodically issues General Comments based on the practice of examining reports of violations by the participating States.
In particular, the Comment indicates that paragraph 3 of Article 19 expressly states that the exercise of the right to freedom of expression carries with it special duties and responsibilities. For this reason two limitative areas of restrictions on the right are permitted, which may relate either to respect of the rights or reputations of others or to the protection of national security or of public order (ordre public
) or of public health or morals. However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The Committee recalls that the relation between right and restriction and between norm and exception must not be reversed.
At the same time, restrictions may be imposed only if the special conditions provided for in paragraph 3 of Article 19 of the Covenant are met: : the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.
The Committee emphasizes that a law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expressions are properly restricted and what sorts are not.
Based on everything above mentioned, the exercise by the preliminary investigation authorities
of unlimited discretionary powers without
sufficient grounds and justification of proportionality
, as well as without indicating how the restrictions imposed correspond to the goals set out in paragraph 3 of Article 19 of the Covenant, is an obvious violation of the International Covenant on Civil and Political Rights, which, under Article 1 of Belarusian Code of Criminal Procedure is subject to application in criminal proceedings (the Covenant would be subject to application, regardless of such an indication in the Code, such a reference is rather a tribute to the positivist tradition of the post-Soviet legal system). At the same time, in accordance with general principles, the provisions of the Covenant take precedence over national legislation.
In violation of these rules, the orders issued by the preliminary investigation authorities as to non-disclosure of the materials of such investigations do not contain any consideration of the balance of the interests of society and the interests of the preliminary investigation authorities in cases of public interest. Such orders contain only a reference to the Code of Criminal Procedure establishing a respective rights and a rather vague indication of the interests of the investigation. Therefore, these actions are unsubstantiated