11 October 2011


UN Human Rights Committee advances free expression

(ARTICLE 19/IFEX) - 7 October 2011 - ARTICLE 19 welcomes the UN Human Rights Committee's decision that the procedure in Uzbekistan for registering the non-governmental organisation "Democracy and Rights" violated the right to freedom of expression and the right to freedom of association, under Articles 19 and 22 of the International Covenant on Civil and Political Rights. The decision challenges the alarming trend around the world of states adopting laws that illegitimately restrict the work of non-governmental organisations.

The decision in the case of Kungurov v Uzbekistan is the first time the Committee has decided that there has been a violation of freedom of association in conjunction with freedom of expression in a case concerning NGO registration. The decision also supports the Committee's positive interpretation of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) to encompass the right of access to information, most notably in General Comment No. 34, and strengthens the growing body of international jurisprudence on the right to information.

Kungurov first applied to officially register "Democracy and Rights", a non-governmental organisation (NGO) he set up with eleven other individuals, with the authorities of Uzbekistan in August 2003. Failure to register would have potentially led to legal liability for members of the NGO, and "active participation" in an unregistered NGO was prohibited by criminal provisions and punishable by up to five years imprisonment, "arrest up to six months", or administrative fines as high as 100 times the average monthly salary.

After the Ministry of Justice decided to leave his application for registration "without consideration", Kungurov applied to the Tashkent City Court, the Inter-District Court and the Supreme Court of Uzbekistan, all of whom upheld the decision of the Ministry. The Ministry based its decision on the perceived non-compliance of the NGO with substantive and technical requirements in domestic law that (1) the organisation not engage in any human rights activities that any official body is engaged in and (2) that it be physically present in every region of Uzbekistan, as well as technical "defects" in the organisation's application materials.

The Ministry later refused Mr Kungurov's freedom of information request asking for the details of all NGOs that had asked to register, and those that had been denied, including the reason for their denial.

Kungurov argued that the Ministry's decision to leave his application "without consideration" had "effectively prohibited [him] and other members of 'Democracy and Rights' from engaging in core freedom of expression activities, i.e. gathering information about the human rights situation in Uzbekistan, and then imparting that information to the public."

In support of Kungurov's case to the Human Rights Committee, interviews were conducted with 15 NGOs in Uzbekistan that wished to engage in human rights activities, which demonstrated that the government had abusively relied on the registration process to ensure that most individuals wishing to exercise their right to associate together in formal groups to monitor and report to the public at large could not do so.

The UN Human Rights Committee examined whether the refusal to register the NGO amounted to a restriction of Kungurov's freedom of association and freedom of expression, and whether any such restrictions were justified. The Committee held that the substantive and technical requirements of Uzbekistan's law constituted de facto restrictions on Kungurov's rights which did not meet the conditions of Article 22 paragraph 2 of the ICCPR. In particular, the Committee considered that the Ministry had not advanced any argument as to why such restrictions would be necessary. Taking account of the "severe consequences of the denial of state registration of 'Democracy and Rights' for the author's right to freedom of association, as well as the unlawfulness of the operation of unregistered associations in Uzbekistan", the Committee decided that such a denial was in violation of Article 22 of the ICCPR.

The Committee decided that the registration procedure for "Democracy and Rights" did not allow Kungurov to practice his right to freedom of expression, in particular, to seek, receive and impart information and ideas under Article 19, paragraph 2, of the ICCPR. Furthermore, the Committee held that the authorities of Uzbekistan had "not made any attempt to address the author's specific claims nor has it advanced arguments as to the compatibility of the requirements . . . with any of the criteria listed in article 19, paragraph 3, of the Covenant", namely that restrictions should be provided by law and necessary (a) for the respect of rights and reputation of others or (b) for the protection of national security or public order (ordre public), or public health or morals (paragraphs 8.9).

The Committee therefore concluded that there had been a violation of Kungurov's rights under Article 22, paragraph 1 of the ICCPR, "read alone and in conjunction with Article 19, paragraph 2 of the Covenant".

ARTICLE 19 urges the government of Uzbekistan to, in accordance with the Committee's decision:
* Provide Mr Kungurov with an effective remedy, including compensation for expenses and legal costs;
* Reconsider his registration application in the light of Articles 19 and 22 of the ICCPR;
* Ensure that that the laws and practices that regulate NGO registration and restrictions imposed are compatible with the ICCPR;
* Prevent similar violations of the ICCPR;
* Provide the Committee, within 180 days, information about the measures taken to give effect to the Committee's decision.

ARTICLE 19 also urges all states, particularly those who have imposed unnecessary and/or disproportionate registration procedures on NGOs to amend their laws and practices in accordance with this decision of the Committee on Uzbekistan.

Click here for the UNHRC statement


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