DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
12 April 2016 № D-1029/2016
12 April 2016 № D-1029/2016
On the Conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus” to the Constitution of the Republic of Belarus
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, N.A. Karpovich, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov
on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”
in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus”.
Having heard the reporting judge S.Y. Danilyuk, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the “Constitution”), the Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:
The Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus” (hereinafter – the “Law”) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 4 April 2016, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 4 April 2016 and submitted for signing to the President of the Republic of Belarus.
The Law makes addenda and alterations to the Criminal Code and the Criminal Procedure Code of the Republic of Belarus, the Code of the Republic of Belarus on Administrative Offences, the Procedural and Executive Code of the Republic of Belarus on Administrative Offences, the laws of the Republic of Belarus “On Mass Events in the Republic of Belarus”, “On Republican and Local Assemblies”, “On Weapons”, ”On Counteraction to Extremism”, “On Legal Status of Foreign Citizens and Persons without Citizenship in the Republic of Belarus”.
The adoption of the Law is grounded by the necessity to improve the legal framework for combating extremist activity and ensuring the national security of the Republic of Belarus.
While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
1. According to the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 2.1), safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1).
Under the Constitution everyone is guaranteed freedom of thoughts and beliefs and their free expression (Article 33.1), the freedom to hold assemblies, meetings, 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 (Article 35), Everyone shall have the right to freedom of association (Article 36.1). At the same time according to the Constitution the foundation and activities of political parties and other public associations, that aim to change the constitutional system by force or conduct propaganda of war, social, ethnic, religious and racial hatred, shall be prohibited (Article 5.3).
The Constitution stipulates that the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith (Article 8.1); the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (Article 21.3); all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22); state bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (Article 59.2).
These constitutional provisions correspond to the provisions of international instruments on human rights, that, declaring the right of everyone to freedom of thought, conscience and religion, freedom of association, freedom of expression, however, provide that any dissemination of ideas based on racial superiority or hatred, any incitement to discrimination or violence, incitement to national, religious or social hatred or strife should be prohibited by law. These standards are enshrined in such international instruments as the Universal Declaration of Human Rights of 10 December 1948 (Articles 2, 7, 18 and 19), the International Covenant on Civil and Political Rights of 16 December 1966 (Articles 19, 20, 25 and 26 ), the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, the Convention of the Commonwealth of Independent States on Human Rights and Fundamental Freedoms of 26 May 1995 (Articles 10, 11 and 20), as well as in the UN General Assembly's Declaration of 25 November 1981 on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, the European Convention on Human Rights and Fundamental Freedoms of 4 November 1950 (Articles 9, 10 and 14), etc.
The preamble of the Shanghai Convention on Combating Terrorism, Separatism and Extremism of 15 June 2001, adopted in the framework of the Shanghai Cooperation Organisation (Republic of Belarus has the status of an observer state since 2015), stated that terrorism, separatism and extremism, as defined in the Convention, regardless of their motivation, can not be justified under any circumstances, and the perpetrators of such acts must be brought to justice in accordance with the law.
For the purpose of further development of the above-mentioned constitutional provisions and the implementation of international legal obligations and recommendations alterations and addenda shall be made to certain legislative acts of the Republic of Belarus.
2. In accordance with Article 8.1 of the Law Article 1 of the Law “On Counteraction to Extremism” is set out in a new wording with the basic terms used in the said Law: extremism (extremist activity), extremist materials, extremist organisation, extremist group, financing extremist activity and their definitions.
Thus, the extremism (extremist activity) is understood as activities of citizens of the Republic of Belarus, foreign citizens or stateless persons or political parties and other public associations, religious and other organizations in order to plan, organise, prepare and commit acts aimed at forcible change of the constitutional order and (or) territorial integrity of the Republic of Belarus; seizure or retention of state power by unconstitutional means; creation of an organisation to carry out extremist activity, extremist organisation, extremist group; creation of an illegal armed formation; carrying out terrorist activity; incitement to racial, ethnic, religious or other social hatred or strife; organisation and conduct of mass riots, acts of hooliganism and vandalism motivated by racial, ethnic, religious or other social hatred or strife, political or ideological hatred; propaganda of exclusivity, superiority or inferiority of individuals on the basis of their social, racial, ethnic, religious or linguistic affiliation; propaganda and public demonstration, production and distribution of Nazi symbols or attributes; distribution of extremist materials, as well as their production, publication, storage or transportation for the purpose of their dissemination and other activities specified in the Law.
According to the Constitutional Court, the extension of the list of basic legaislative concepts of extremist activity by securing its new legal signs is due to a high degree of social danger of this phenomenon and is consistent with the constitutional duty of the state to defend its independence and territorial integrity, its constitutional system, and safeguard lawfulness and law and order (Article 1.3), and to take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1).
Such legislative regulation corresponds to the content of the Resolution of the Parliamentary Assembly of the Council of Europe 1344 (2003) “Threat posed to democracy by extremist parties and movements in Europe” according to which extremism, whatever its nature, is a form of political activity that overtly or covertly rejects the principles of parliamentary democracy, and very often bases its ideology and its political practices and conduct on intolerance, exclusion, xenophobia, anti-Semitism and ultra-nationalism (para 3); extremism is a danger for all democratic states because the fanaticism it involves can serve as a pretext for the use and justification of violence. Even if it does not directly advocate violence, it generates a climate conducive to the escalation of violence. It is both a direct threat because it jeopardises the democratic constitutional order and freedoms, and an indirect threat because it can distort political life (para 7). The mentioned Resolution provides that the Assembly invites the governments of the Council of Europe member states: a) to provide in their legislation that the exercise of freedom of expression, assembly and association can be limited for the purpose of fighting extremism; b) to apply or introduce if they do not exist: effective penalties where cases of proven damage caused by an extremist political party or one of its members are established; proportionate and dissuasive penalties against public incitement to violence, racial discrimination and intolerance; the suspension or withdrawal of public funding for organisations promoting extremism; the dissolution of extremist parties and movements, which should always be regarded as an exceptional measure. It is justified in the case of a threat to a country’s constitutional order, and should always be in conformity with the country’s constitutional and legislative provisions (para 13).
3. The provisions of the Law stipulate that extremist materials shall include information products (printed, audio, audiovisual and other information messages and (or) materials, posters, banners and other visual propaganda, advertising products) for public use or public distribution or distributed by any means that contain calls for extremist activity or promote such activities and recognised as extremist by the court; an extremist organisation is an organisation carrying out extremist activity or admitting the possibility of its exercise in its activities, or financing extremist activities in respect of which the decision of the Supreme Court of the Republic of Belarus on its recognition as extremist (Articles 1.2 and 1.3 of the Law “On Counteraction to Extremism” in the wording of Article 8.1 of the Law) was made and and entered into force.
The Constitutional Court notes that the judicial procedure for recognition of materials and organisations as extremist established by the Law excludes similar powers of other state bodies and officials and is an additional guarantee for the protection of human rights and freedoms provided for in Article 60 of the Constitution and the relevant international legal standards in the field of justice (Articles 8 and 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, Article 6 of the European Convention on Human Rights) under which democratic practices and the rule of law are ensured.
At the same time the Constitutional Court draws attention of the courts of general jurisdiction to the need to ensure the rule of law and constitutional provisions guaranteeing fundamental rights and freedoms of individuals when making these decisions, as well as when dealing with specific criminal cases on extremist crimes, bearing in mind that the criticism concerning the actions of representatives of state power or other officials is an essential attribute of a democratic state, because it is necessary for ensuring the transparency of state bodies, improving the effectiveness of their work and the quality of ensuring activities of the population. Such criticism should not be regarded as a manifestation of extremism, if it does not go over the line separating freedom of thoughts and beliefs and their free expression guaranteed to everyone (Article 33.1 of the Constitution) from committing illegal acts specified by the Law.
In this regard, the Constitutional Court once again confirms the legal position expressed in previous decisions that proportionate restriction of the human rights and freedoms is allowed in case of necessity in the interest of the protection of the constitutional values and the balance between the constitutional rights and freedoms of the individual and public interests of the state and society.
4. In accordance with the alterations and addenda made by Article 2.1 of the Law to the Criminal Code (hereinafter – the CC), the title and Article 130.1.1 “Incitement to racial, ethnic, religious or other social hatred or strife” of this Code is set out in the new wording. In addition, the Criminal Code is supplemented by Articles 2953 “Illegal actions in respect of subjects damaging action of which is based on the use of flammable substances”, 3611 “Creation of an extremist formation”, 3612 “Financing extremist formation”, 3613 “Participation on the territory of a foreign country in the armed formation or armed conflict, hostilities, recruitment or training of persons for such participation” (Articles 2.4 and 2.6 of the Law).
Alterations and addenda are made by Article 2 of the Law in a number of other articles of the CC (paragraphs 2, 3 and 5).
4.1. The objective aspect of the crime, provided by Article 130.1.1 of the CC set out in the new wording, includes deliberate actions aimed not only at inciting racial, national or religious hatred or strife, but also at inciting another social hatred or strife. The body of this form of crime includes also similar illegal actions on the grounds of racial, ethnic, religious, linguistic or other social affiliation.
According to the Constitutional Court, the criminalisation of a wider range of previously unpunished offences related to extremism by the legislator is aimed at the adoption of adequate response to the increased threat posed by this socially dangerous phenomenon that directly follows from the provisions of the Constitution stipulating that the foundation and activities of political parties and other public associations, that aim to change the constitutional system by force or conduct propaganda of war, social, ethnic, religious and racial hatred, shall be prohibited (Article 5.3), the State shall protect life of the individual against any unlawful infringements (Article 24.2).
The Law reflects not only the recommendations contained in international instruments, but also a positive foreign and domestic experience in combating extremism and other socially dangerous activities.
Such legislative rules also serve to further implementation of the provisions of the National Security Concept of the Republic of Belarus approved by the Edict of the President of the Republic of Belarus of 9 November 2010 No. 575, according to which in the political sphere internal sources of threats to national security shall be, in particular, the formation, penetration or dissemination of ideology of extremism, separatism, ethnic, racial or religious intolerance, appearance or illegal activities of organisations, groups, individuals, adhering and spreading these views (para 29.6).
4.2. The legislator establishes criminal liability for illegal actions in respect of subjects damaging action of which is based on the use of flammable substances (Article 2953 of the CC in the wording of Article 2.4 of the Law). The introduction of these amendments eliminates a gap in the legislation concerning the absence of criminal and legal prohibition of the circulation and use of subjects damaging action of which is based on the use of flammable substances. At the same time Article 5 of the Law makes relevant addenda to the provisions of the Law “On Weapons”, defining these instruments of crime as objects that combine glass or other container, combustible substance and a device for ignition of flammable material (fuse).
According to the Constitutional Court this approach of the legislator complies with the requirements of systematic and integrated legal regulation of the relevant public relations and harmonisation of the normative legal act with other normative legal acts that are enshrined in Articles 5, 7, 9 of the Law of the Republic of Belarus “On Normative Legal Acts of the Republic of Belarus”.
4.3. Article 2.6 of the Law adds Articles 3611 and 3612 providing for a new body of crime – the creation of an extremist formation and financing of activities of an extremist formation to the CC.
Criminal and legal prohibition of commission of these socially dangerous acts aimed at strengthening the precautionary and preventive measures of state policy in the field of counteraction to destructive social phenomena, as well as the creation of a legal framework to effective struggle against criminal activities of extremist groups that aim to destabilise the internal political situation and, therefore, to pose a threat to public order and national security of the Republic of Belarus.
The Constitutional Court considers that the introduction of criminal responsibility for these acts is consistent with the requirements of Article 23.1 of the Constitution and the provisions of international legal acts stipulating that restriction of personal rights and freedoms shall be permitted only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons (Article 29 of the Universal Declaration of Human Rights, Articles 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights; Articles 4 and 8 of the International Covenant on Economic, Social and Cultural Rights of 16 December 1966; Articles 9, 10 and 11 of the European Convention on Human Rights).
4.4. Article 3611 added by the Law to the CC contains a note according to which the person shall be released from criminal responsibility under this Article and Article 3612 of the Code, if this person contributed to the detection, prevention or suppression of acts considered as extremist activity by the legislation by means of timely communication to state bodies or otherwise (Article 2.6).
In this regard the Constitutional Court confirms the legal position expressed in previous decisions that the legal provisions on exemption from criminal liability of persons who voluntarily terminated their participation in criminal activities are aimed at further development of the criminal and legal institute of active repentance, providing for measures to encourage individuals involved in acts of terrorism and extremism for the positive behavior after the criminal career. The Constitutional Court considers that the search for reasonable compromise between the state and such persons which is expressed in the refusal to prosecute these individuals in exchange for their voluntary actions to prevent the occurrence of serious consequences of socially dangerous acts, including those fraught with loss of life, is legally permissible and socially justified and is consistent with the constitutional provision that the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State.
4.5 The CC is added by Article 2.6 of the Law with Article 3613 providing for liability for participation on the territory of a foreign country in the armed formation or armed conflict, hostilities, recruitment or training of persons for such participation.
The criminalisation of these activities is due to the fact that individuals who voluntarily participate in the armed conflicts on the territory of foreign states and who are not citizens of these states are often guided by purely ideological motives, that excludes their liability under Article 133 of the Criminal Code “Mercenary activities”, as a mandatory sign for the body of the crime are mercenary ends, i.e. gaining of material reward.
The Constitutional Court notes that the legislator, exercising the power to adopt laws on criminal liability (Articles 97.1.2 and 98.1.1 of the Constitution), as well as on the basis of the State's obligation to take all measures for the protection of constitutional values, shall be entitled at his discretion to establish the criminal and legal prohibition against socially dangerous acts and to determine the punishment for their violation. Such discretionary powers are an integral part of the public rulemaking. At the same time the Constitutional Court notes that the freedom of discretion does not mean the admissibility of arbitrary actions and the right to take any decisions which a state body (an official) considers reasonable and justified. In the Message “On Constitutional Legality in the Republic of Belarus in 2015” the Constitutional Court noted that the Constitution gives rather broad discretion to the legislator, that is the possibility of discretion, “the space of choice” in the regulation of certain social relations. However, in exercising his powers the legislator acts within the limits defined by the constitutional principles and rules, he shall take into account the need to maintain balance and proportionality of the constitutionally protected values, goals and interests that are in unity, and shall not allow the substitution of one value by another one or their depreciation.
When analysing the alterations and addenda made by the Law to the provisions of the CC, the Constitutional Court notes that these measures of legislative regulation of the criminal liability for various manifestations of extremism and other antisocial forms of behavior are proportionate to the degree of their social danger, comply with the objectives of protection of the bases of the constitutional order, ensuring the legality and the protection of the established legal order from criminal attacks, as well as comply with international legal standards in the field of counteraction to extremism and other illegal activities.
5. Article 6 of the Law sets out the new wording of Article 17.11 of the Code of the Republic of Belarus on Administrative Offences which establishes administrative responsibility for distribution, manufacturing, storage, transportation of information products containing calls to extremist activity or promoting such activities.
In contrast to the current wording of this article, the body of this offence is complemented by a number of new legal attributes entailing responsibility for the distribution of information products containing calls to extremist activity or promoting such activities, as well as production, storage or transportation for the purpose of distribution of such information products, if these acts do not constitute a crime, as well as for the distribution of information products included in the republican list of extremist materials, as well as production, publication, storage, or transportation for the purpose of distribution of such information products, if these acts do not constitute a crime (Article 17.11.1 and 17.11.2 of the Code in the wording set out by the Law).
According to the Constitutional Court measures of administrative responsibility provided for by the Law and complementing criminal legal means of combating extremism, comply with the principle of the rule of law established in the Republic of Belarus (Article 7.1 of the Constitution) and with the principle of legal certainty based on it providing for the systematic and comprehensive legal regulation of similar public relations by laws of various branches, meaningful coherence, correlation and consistency of their legal and regulatory requirements.
Based on the revealed constitutional and legal meaning of the Law the Constitutional Court finds that the Law is intended to provide an adequate response to actual threats of extremism and other socially dangerous activities and is aimed at further improvement of the legislation in the sphere of combating this social destructive phenomena on the basis of the principles and rules of the Constitution in order to protect the rights, freedoms and legitimate interests of individuals, the constitutional order, independence and territorial integrity of the Republic of Belarus, the security of the society and the state.
The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the competence under Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 98.1.1 of the Constitution.
Therefore, the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the content of rules, form of the act and procedure of adoption.
By virtue of Articles 116.1, 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103–105 of the Law of the Republic of Belarus “On the Constitutional Proceedings”, the Constitutional Court of the Republic of Belarus
1. To recognise the Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus” to be conforming to the Constitution of the Republic of Belarus.
2. The present Decision shall come into force from the date of its adoption.
3. To publish the present Decision in accordance with the legislation.
Presiding Officer –
Petr P. Miklashevich,
Petr P. Miklashevich,
Chairman of the Constitutional Court
of the Republic of Belarus
of the Republic of Belarus