The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Izotko, L.G. Kozyreva, V.V. Podgrusha, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov.

on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, subpoint 1.1, point 1 and paragraph 3 of the Decree of the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”

in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On External Labour Migration”.

Having heard the reporting judge V.V. Podgrusha, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On External Labour Migration” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

1. Law of the Republic of Belarus “On External Labour Migration” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on December 2, 2010, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on December 10, 2010 and submitted for signing by the President of the Republic of Belarus.

Law is aimed at improving the legal regulation of relations in the field of external labour migration related to employment outside of the Republic of Belarus under labour contracts with foreign employers of citizens of the Republic of Belarus, foreign citizens and stateless persons residing permanently in Belarus, as well as the employment and the exercise of the labour activities in the Republic of Belarus under labour contracts with employers of the Republic of Belarus of foreign citizens and stateless persons who do not have permission to reside permanently in the Republic of Belarus.

The Law strengthens the requirement on the exercise by legal persons and individual entrepreneurs of activities related to the employment of nationals and foreigners residing permanently in the Republic of Belarus, outside the Republic of Belarus, as well as the requirement for a contract of employment assistance, employment contract, employment contract between emigrant workers and the foreign employer on the territory of the Republic of Belarus; defines the peculiarities of employment outside of the Republic of Belarus under student programmes. Provisions of the Law also regulate issues of employment in the Republic of Belarus of foreigners who do not have permission to reside permanently in the Republic of Belarus, and the exercise of labour activities by immigrant-workers in the Republic of Belarus.

2. While reviewing constitutionality of the Law the Constitutional Court proceeds from the following.

In the Republic of Belarus the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State (part one of Article 2 of the Constitution). Under part one of Article 41 of the Constitution citizens of the Republic of Belarus shall be guaranteed the right to work as the worthiest means of an individual’s self-assertion. Employees shall be guaranteed a just share of remuneration for the economic results of their labour (part one of Article 42 of the Constitution).

In accordance with Article 10 of the Constitution a citizen of the Republic of Belarus shall be guaranteed the protection and patronage of the State both on the territory of the Republic of Belarus and beyond.

The State shall guarantee the rights and liberties of the citizens of the Republic of Belarus that are enshrined in the Constitution, the laws and the state's international obligations (part three of Article 21 of the Constitution). In view of the requirements of Article 59 of the Constitution the State shall take all measures at its disposal to create the domestic order necessary for the exercise in full of the rights and liberties of citizens of the Republic of Belarus that are specified in the Constitution.

Analysis of the provisions of the Law as a whole from the standpoint of their constitutionality indicates that the constitutional principles and norms are developing as a concretization of the basic directions of legal regulation of relations in the field of labour migration and as an improving of the mechanisms for the exercise of the legislation. As a result, it ensures the creation of conditions to protect the rights and lawful interests of citizens and organizations, that are involved in the relations in the field of labour migration; more consistent and effective control over compliance with legislation in this area.

Thus, principles of external labour migration, stipulated in Article 4 of the Law, that are designed to determine the content focus of provisions of the Law, are based not only on the provisions of the Constitution, but also meet the generally recognised principles and norms on the need to promote and encourage respect for human rights and fundamental freedoms, contained in the UN Charter and international legal instruments on human rights. In the mentioned provision of the Law that concerns the principle of non-discrimination against emigrant-workers and immigrant-workers, is exercised the position of the Constitutional Court stated in the Decision of July 17, 2009 “On Providing the Equal Rights for Citizens in the Labour Sphere”, on the need to fix at the legislative level of non-discrimination based on age, place of residence, as well as the establishment of an open list of discriminatory conditions, which is an additional guarantee of citizens of their right to work.

3. Articles 6–10 of the Law fix issues of state regulation and management of external labour migration, determine in this field the authority of the President of the Republic of Belarus, of the Council of Ministers, of bodies of internal affairs of the Republic of Belarus and other state bodies of the Republic of Belarus. The Constitutional Court considers that powers of the mentioned bodies defined in the Law base on the provisions of Articles 79, 84, 107 of the Constitution and the rule of law established in Article 7 of the Constitution.

4. Article 14 of the Law envisages the right of emigrant-workers, who are citizens or stateless persons who permanently reside in the Republic of Belarus, to the protection and patronage of the Republic of Belarus in the State of employment, as well as outlining the responsibilities of diplomatic missions and consular institutions of the Republic of Belarus on the protection of emigrant-workers.

These provisions of the Law are based on articles 10 and 11 of the Constitution and on international legal instruments. For example, under article 2 of the Declaration on the human rights of individuals who are not nationals of the country in which they live, adopted by the General Assembly on December 13, 1985 in resolution 40/144, laws and regulations shall not be incompatible with the international legal obligations of the State, including those in the field of human rights.

5. Article 23 of the Law, which defines the conditions of labour activities for immigrant-workers in the Republic of Belarus, stipulate that such activities are permitted if the occupation of vacancies cannot be provided to nationals and foreigners permanently residing in the Republic of Belarus. Thus, the Law fixes the priority of the rights of nationals and foreigners residing permanently in the Republic of Belarus, to be engage in available jobs (vacancies).

Appraising the mentioned legislative provision, the Constitutional Court proceeds primarily from the provisions of article 11 of the Constitution, under which foreign nationals and stateless persons on the territory of the Republic of Belarus shall enjoy rights and liberties and execute duties on equal terms with citizens of the Republic of Belarus, unless otherwise specified in the Constitution, the laws and international treaties. According to Article 4 of the International Covenant on Economic, Social and Cultural Rights, participating in the present Covenant recognise that, in the enjoyment of those rights provided by the State in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Therefore, prioritizing the rights of nationals and foreigners residing permanently in the Republic of Belarus to be engaged in available jobs (vacancies) is based on the provisions of both the Constitution and international legal instruments.

By virtue of Article 2 of the Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, nothing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any alien, nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens. In Article 8 of the Declaration, relating to the exercise by foreigners of the right to working conditions, are specify the rights enjoyed by aliens lawfully residing, in that exercise of their right to work in accordance with national laws.

The principle of exercising labour activities in accordance with the laws of the state of employment is fixed within the CIS Agreement on Cooperation in the Sphere of Labour Migration and Social Protection of Migrant Workers of April 15, 1994, to which the Republic of Belarus is a party.

In connection with the foregoing, it is also valid that the Law stipulates the possibility of establishing quotas for the involvement in the Republic of Belarus of foreigners without permanent residence permits, in order to work on its territory (Article 24 of the Law), which is due to the public interest, the situation in labour market of the Republic of Belarus and the priority rights of nationals and foreigners residing permanently in the Republic of Belarus, to be engage in available jobs (vacancies).

6. According to Article 25 of the Law immigrant-workers are not entitled to hold office, the occupation of which, in accordance with the legislation of the Republic of Belarus is due to belonging to the citizenship of the Republic of Belarus. This restriction is based on constitutional provisions providing for the possibility of realisation of certain rights, depending on the citizenship of the Republic of Belarus (Articles 38, 39 and 80 of the Constitution), as well as in the specific legislation developing norms of the Constitution, in particular the Code of the Republic of Belarus on Judicial System and Status of Judges (Articles 91, 94), the Electoral Code of the Republic of Belarus (Articles 4, 57), the laws of the Republic of Belarus “On Civil Service in the Republic of Belarus” (Article 5), “On the State Control Committee of the Republic of Belarus and its Territorial Bodies” (art. 19), “On Military Duty and Military Service” (Article 4), etc.

7. The Constitutional Court expresses opinion to the presence in the Law of provisions that may cause certain difficulties related to their common understanding and practical application.

So, by stipulating in Article 36 the rights and obligations of the employer of the Republic of Belarus, the legislator provided for the right of the employer to include in the employment contract with immigrant-workers, of additional information and conditions ,besides provided in part one of Article 32 of the Law, in case of signing the employment contract on the territory of the Republic Belarus. In this provision the legislator does not define the criteria that would evaluate additional information and conditions from the standpoint of their legality and possibility of inclusion in an employment contract. Nevertheless, this does not mean that the solution to this problem is actually given at the discretion of the employer.

Taking into account the identified constitutional and legal meaning of the mentioned provisions of the Law in its relationship and interdependence with other legislative provisions, the Constitutional Court considers that the establishment of the constitutional principle of the rule of law must be ensured not only in law-making, but also in law enforcement. Governmental and other organizations, officials and citizens are required to comply with the Constitution and legislative acts adopted in accordance with it. Article 4 of the Law defines the basic principles of external labour migration, including the principle of non-employment of immigrant-workers on the conditions that demean human dignity, is harmful to their health, the inadmissibility of discrimination against immigrant-workers, depending on the listed in this article and other circumstances, not related to the professional qualities and not conditioned by the specific job functions or the status of the employee. Thus, the legislator establishes criteria that guide the employer while including additional information and conditions in the contract of employment. The implementation of the principles of external labour migration envisaged in the Law would, in the opinion of the Constitutional Court, exclude unwarranted discretion in applying the law, to enforce its requirements in strict accordance with the Constitution and the provisions of international legal instruments.

8. The final provisions of the Law contain rules (norms) which make alterations and addenda to some of the codes of the Republic of Belarus, as well as recognise the Law of the Republic of Belarus of June 17, 1998 “On the External Labour Migration” and specific provisions of other laws expired.

Mentioned legislative approach in terms of determining normative legal acts to be recognised as expired, added and (or) altered in connection with the adoption of a new legal act complies with the requirements of Article 59 of the Law “On Normative Legal Acts of the Republic of Belarus”. The Constitutional Court considers that the simultaneous preparation and fixation of such lists in the final provisions of the new act meets the principle of a systematic and integrated regulation established in Article 7 of the Law.

The law is passed by the House of Representatives of the Republic of Belarus under the competence and in accordance with point 2 of part one of Article 97 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with paragraph 1 of part one of Article 98 of the Constitution.

Based on the aforementioned the Constitutional Court concludes that the content of provisions, the form of the act and the procedure of the adoption of the Law is constitutional.

Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eighth, thirteen, fourteen of article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of the Decree of the President of the Republic of Belarus of June 26, 2008 № 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus” the Constitutional Court of the Republic of Belarus

 RULED:

 1. Recognise the Law of the Republic of Belarus “On External Labour Migration” conforming to the Constitution of the Republic of Belarus.

2. The present Decision shall come into legal force from the date of its adoption.

3. To publish the present decision in accordance with the legislation.

Presiding Officer –
Chairman of the Constitutional Court
Republic of Belarus

P.P. Miklashevich