The Constitutional Court of the Republic of Belarus comprising 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. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, 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 of point 1 and point 3 of the Decree by 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 Making Alterations and Addenda to the Law of the Republic of Belarus “On Fighting Corruption”.

Having heard the reporting judge T.V. Voronovich, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Fighting Corruption” 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 Alterations and Addenda to the Law of the Republic of Belarus “On Fighting Corruption” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on December 6, 2011, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on December 8, 2011 and submitted for signing by the President of the Republic of Belarus.

The Law has been adopted due to the need to improve the rules governing social relations in the fight against corruption and to bring the provisions of the Law of the Republic of Belarus “On Fighting Corruption” in line with other legislative acts of the Republic of Belarus.

The provisions of the Law specify the content of the terms “public officials”, “persons equated to public officials”, introduce the definition of the term “conflict of interest”; supplement a list of measures to fight corruption; impose additional restrictions due to rating certain categories of citizens as public officials; provide guarantees to individuals, helping to detect corruption, etc.

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

1. According to the Constitution the Republic of Belarus, being a state based on the rule of law, shall safeguard lawfulness and law and order (parts one and three of Article 1). In order to ensure the principle of the supremacy of law the State, all the bodies and officials thereof shall operate within the confines of the Constitution and the laws adopted in accordance therewith (parts one and two of Article 7). Safeguarding the rights and freedoms of citizens shall be the supreme goal of the State (part one of Article 21). The State shall 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 in the Constitution; 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 the personal rights and freedoms (parts one and two of Article 59).

The Constitutional Court emphasises that the provisions of the Law are aimed at the implementation of the rules of the Constitution and international treaties in the sphere of the fight against corruption.

Point 1 of article 5 of the United Nations Convention against Corruption of October 31, 2003 (hereinafter – the Convention), to which the Republic of Belarus is a party, establishes that each State Party shall develop and implement or maintain effective, coordinated anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.

The provisions of article 1 of the Law, providing for additional measures against corruption, reflect the said principles and meet the approach embodied in the Convention as to the employment of public officials (article 7), code of their conduct (article 8), public information activities (article 13), protection of persons reporting information (article 37), etc. In particular, the rule of point 1 of article 1 of the Law updates the list of persons rated as public officials and persons equated to them, excluding from the specified list the persons from a state body or another state organisation, who are not rated as civil servants and operate their functions related to the direct satisfaction of needs, demands and requirements of the population. This rule is consistent with subpoint “a” of article 2 of the Convention where the term “public official” has been defined.

2. Due to updating of the list of restrictions imposed on public officials and persons equated to them, the Law binds civil servants and members of the Investigation Committee of the Republic of Belarus, servicemen, soldiers and officers of internal affairs bodies, agencies and departments for emergency situations, agencies of financial investigation of the State Control Committee of the Republic of Belarus, who own shares of participation (shares of stocks, rights) in the authorised capital of commercial organisations, to transfer them for the period of service in trust under state guarantee within three months after the appointment (election) for post (part three of article 17 of the Law “On Fighting Corruption”).

The Constitution, guaranteeing the rights and freedoms of citizens contained therein states that their restriction is permitted only in the instances specified by law, in the interest of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons (part one of Article 23).

A citizen, expressing a desire to exercise his constitutional right to equal access to any post in state bodies, shall come to terms (restrictions, in particular) with the acquired status of civil servant. One of them is a requirement to transfer shares of participation (shares of stocks, rights), owned in the authorised capital of commercial organisations, for the period of service in trust under state guarantee. In the opinion of the Constitutional Court, such provision shall not be regarded as undue restriction of the right, guaranteed by the Constitution to the citizens of the Republic of Belarus, to equal access to any post in state bodies in accordance with their abilities and professional training (Article 39), as well as of the right of property (Article 44).

In view of the foregoing the Constitutional Court considers that the provisions of the Law establishing special terms in relation to persons who have public law status, acquired by them in connection with holding certain public posts, are in line with the rules of the Constitution.

3. The Law (point 9 of article 1) lays down the rule regulating the procedure to prevent and settle a conflict of interest related to the performance of duties of a public official. According to it the public official shall, in particular, notify in writing his supervisory officialabout a conflict of interest raised or possibility of its occurrence as soon as he becomes aware of this. He may resign in writing from decision-making, participation in decision-making or commission of other acts of service (work) that cause or may cause a conflict of interest. The head of a state body, another organisation, which has become aware of the conflict of interest raised or possibility of its occurrence, shall immediately take measures to prevent or settle it (article 181 of the Law “On Fighting Corruption”). Thereat in accordance with paragraph six of point 1 of article 1 of the Law the conflict of interest is defined as a situation in which the personal interests of a public official, his spouse (wife), close relatives or cousins-in-law affect or may affect the public official’s proper performance of official duties (labour functions) when making decisions or participating in decision-making or committing other acts of service (work).

The Constitutional Court emphasises that the rule of the Law, aimed at settling a conflict of interest when the exercise of the public official’s personal rights as a citizen of the Republic of Belarus may be in conflict with the performance of his official duties in connection with his status, is consistent with Article 59 of the Constitution and Title II of the International Code of Conduct for Public Officials, adopted by the General Assembly of the United Nations on December 12, 1996, regulating the actions of public officials in conflict of interest.

The procedure to prevent and settle a conflict of interest stipulated in point 9 of article 1 of the Law is proportionate in terms of balancing between personal interests of a public official and proper performance of his official duties (labour functions).

In addition, the Constitutional Court considers it necessary to draw attention to the fact that the exercise of powers, provided by law to the head of a state body, another organisation, to prevent or settle conflicts of interest, including the right to transfer a public official in accordance with the legislation of the Republic of Belarus from the post where his duties have caused or may cause a conflict of interest to another equivalent post, shall not violate the right to work, guaranteed by the Constitution to citizens of the Republic of Belarus, as the worthiest means of an individual’s self-assertion, that is, the right to choose profession, type of occupation and work in accordance with their vocation, capabilities, education, professional training, and with regard to social needs (part one of Article 41).

The Constitutional Court confirms its earlier legal position that the rule of part one of Article 60 of the Constitution has a direct effect by the requirements laid down in Article 137 of the Constitution, and the right to judicial protection refers to the generally recognised principles of international law, the priority of which the Republic of Belarus shall, in accordance with Article 8 of the Constitution, recognise and ensure the compliance of laws therewith. The Constitutional Court notes that the right of a public official to appeal to a court against measures to prevent or settle conflicts of interest, applied to him, is the most important guarantee of the observance of everyone’s constitutional rights and freedoms.

4. Point 2 of article 1 of the Law supplies the list of measures to fight corruption, embodied in article 5 of the Law “On Fighting Corruption” with the following: conducting public information activities that contribute to create an atmosphere of intolerance towards corruption (anti-corruption education and training); ensuring transparency in activities of public officials and persons equated to them, unless otherwise provided by legislation of the Republic of Belarus; holding of criminological expertise of draft legal acts of the Republic of Belarus, of previously adopted (issued) legal acts of the Republic of Belarus under the established procedure.

These measures are aimed at improving the legal framework to prevent and terminate corruption, at creating appropriate conditions for the independence of official activities of public officials and persons equated to them, at strengthening public confidence in the State and its organs.

This approach, taken by the legislator, is consistent with the provisions of part one of Article 34 of the Constitution setting forth, inter alia, the right of citizens of the Republic of Belarus to receive, store and disseminate complete, reliable and timely information on the activities of state bodies, public associations, on political, economic, cultural and international life.

5. The Article 10 of the Constitution guarantees to citizens of the Republic of Belarus protection and patronage of the State in the territory of Belarus and beyond.

The provisions of the Law, providing that an individual who has reported the fact of an offence related to corruption, or otherwise contributes to detect corruption, is under state protection, are aimed to implement the above rule as well as articles 21, 24, 25, 28, 59 of the Constitution. In this case the said person, his spouse (wife), close relatives or cousins-in-law shall, if there are sufficient data indicative of a real threat of murder, violence, destruction, or damage to property of other unlawful acts towards them, be guaranteed the application of measures to ensure their safety under the procedure established by the legislation of the Republic of Belarus (point 13 of article 1 of the Law).

6. The owner shall have the right to possess, enjoy and dispose of property either individually or jointly with others. Property acquired in accordance with the law shall be protected by the State (parts two and three of Article 44 of the Constitution).

At the same time, according to paragraph six of point 14 of article 1 of the Law monetary assets provided in violation of the legislation of the Republic of Belarus and received on the bank account of family members of a public official or a person equated to him, shall be transferred to the national budget within ten days from the date when the public official or the person equated to him has become aware of that.

These provisions of the Law are consistent with the rules of part one of Article 23 of the Constitution as to the form of the act enshrining them as well as in terms of the proportionality principle, involving adherence to commensurability between state and public interests and the need to protect personal rights and freedoms while imposing legislative restrictions. They also conform to the rules of part six of Article 44 of the Constitution, under which the exercise of the right of property shall not be contrary to social benefit and security.

The alterations and addenda introduced by the legislator to the Law “On Fighting Corruption” are aimed at improving the effectiveness of applied measures to prevent, detect, terminate offences, that create conditions for corruption, and corruption-related offences, to eliminate their consequences, as well as at providing uniform practice of criminal, administrative and disciplinary liability for them. The Constitutional Court considers that the measures to fight corruption, envisaged by the Law, are constitutionally justified in terms of strengthening the protection of the individual, society and the state from corruption offences.

The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within 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 point 1 of part one of Article 98 of the Constitution.

In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.

Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eight, 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 by 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”, the Constitutional Court of the Republic of Belarus

RULED:

1. Recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Fighting Corruption” 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 –
P.P. Miklashevich,
Chairman of the Constitutional Court
Republic of Belarus