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 Chairwoman O.G. Sergeeva, judges T.S. Boiko, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, A.V. Maryskin, V.V. Podgrusha, L.M. Ryabtsev, 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 Legal Status of the Territories Suffered from Radioactive Contamination Due to the Accident at the Chernobyl Nuclear Power Plant”.

Having heard the reporting judge A.G. Tikovenko, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Legal Status of the Territories Suffered from Radioactive Contamination Due to the Accident at the Chernobyl Nuclear Power Plant” 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 Legal Status of the Territories Suffered from Radioactive Contamination Due to the Accident at the Chernobyl Nuclear Power Plant” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on May 3, 2012, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on May 8, 2012 and submitted for signing by the President of the Republic of Belarus.

The provisions of the Law specify the legal status of the territories of the Republic of Belarus suffered from the radioactive contamination due to the accident at the Chernobyl Nuclear Power Plant, criteria of rating this territories as the zones of radioactive contamination, mode of their use and protection, conditions of living, implementation of economic and other activities on these territories.

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

1. According to Article 2 of the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; the State shall assume responsibility before the citizen to create the conditions for free and dignified development of his personality. The Constitution also states, that safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (part one of Article 21).

According to Article 45 of the Constitution citizens of the Republic of Belarus shall be guaranteed the right to health care, including free treatment at state health care institutions; the right of citizens of the Republic of Belarus to health care shall also be secured by measures to improve the environment.

Everyone shall have the right to a conducive environment and to a compensation for the loss or damage caused by violation of this right; the State shall supervise the rational utilisation of natural resources to protect and improve living conditions, and to preserve and restore the environment (Article 46 of the Constitution).

A number of provisions of the Law are aimed to reduce the radiation exposure to the population and environment, ensuring realization of everyone’s inalienable constitutional right enshrined in Article 46 of the Constitution. In particular, in order to ensure radiation safety in the radioactive contamination zones of the Republic of Belarus the following zones are defined in Article 6: the zone of evacuation (alienation), the zone of primary resettlement, the zone of subsequent resettlement, the zone with the right of resettlement and the zone of habitation with the periodical radiation survey.

According to the Constitutional Court, the important safeguards for radiation safety of the population, the constitutional rights to health and healthy environment are the contamination control and radiation monitoring of agricultural lands, forest resources, soil, air and water, specified in Articles 35 and 36 of the Law. Powers of the President of the Republic of Belarus, the Council of Ministers, local government and self-government bodies in the field of ensuring the legal status of radioactive contamination territories are concretized in Articles 11, 12, 15 of the Law in development of provisions of Articles 84, 107 and 120 of the Constitution. Competence of the republican government authority responsible for regulation and control in overcoming the consequences of the Chernobyl disaster and ensuring the legal status of the territory of contamination, and other central government bodies in this area is established in Articles 13 and 14 of the Law.

The Constitutional Court considers that creating legal framework of public administration in the field of the legal status of the territory of radioactive contamination will contribute to the stability of legal relations, specify responsibilities of the State and its bodies for radiation safety of the population and the implementation of measures to improve the environment.

2. Restrictions on activities in the zone of evacuation (alienation), the zone of primary resettlement, the zone of subsequent resettlement, the zone with the right of resettlement and the zone of habitation with the periodical radiation survey as well as ban on activities depending on the density of radionuclide contamination of these zones are provided in the Law (Articles 24-27) in order to ensure radiation safety of the population and the right of everyone to healthy environment. In particular, agricultural activities on the lands to be alienated, output and stocking-out of products with the content of radionuclides exceeding the levels permissible in the Republic, nature management being not in compliance with the radiation safety ensuring norms and rules, collection of wild plants and (or) their parts, hunting, fishing are prohibited in the zone of subsequent resettlement (Article 26 of the Law). Agricultural activities on the lands to be alienated, output and stocking-out of products with the content of radionuclides exceeding the levels permissible in the Republic are prohibitied also on the territories not related to the zones of radioactive contamination (part two of Article 28 of the Law).

The Constitutional Court notes the validity of this approach to radiation safety of the population which is in accordance with part one of Article 23 of the Constitution, which allows personal rights and freedoms to be restricted in the instances specified by law in the interests of public health protection. This approach corresponds also with the principle of proportionality, as the restrictive measures set up in the Law are balanced with the constitutional goal achieved – the protection of public health.

The citizens of the Republic of Belarus according to the Constitution (Article 30) shall have the right to move freely and choose their place of residence within the Republic of Belarus. However, the prohibition of living of the population in the zone of evacuation (alienation), the zone of primary resettlement (Articles 24 and 25), as well as checkpoint regime in the radioactive contamination zone regulating the stay of citizens and removal of property located in the territories of the zone of evacuation (alienation), the zone of primary resettlement, the zone of subsequent resettlement (Articles 18 and 23) limits this constitutional right.

According to the Constitutional Court, the legislative limitation of the constitutional right to choose the place of residence, as well as citizens' stay on territories with checkpoint regime and removal of property located in these territories is justified by the constitutional aim of public health protection, including elimination of the diffusion of radionuclides.

3. The possibility of the output of products with the content of radionuclides not exceeding the levels permissible in the Republic is established as one of the criteria for determining the area of contamination in Article 4 of the Law. Sale of products, produced on the territory of radioactive contamination shall be carried out on conditions of mandatory review of its radioactive contamination and a document confirming that the content of radionuclides in such products is in conformity with republican permissible levels (Article 29 of the Law).

Fixing the possibility of goods production on the territories of radioactive contamination and its sale in the case of conformity of the content of radionuclides with republican permissible levels, the legislator does not define the standards of these levels, providing that they are to be defined by the appropriate republican governmental bodies with the permit of the republican governmental body which regulates and administrates the overcoming of the consequences of the catastrophe on Chernobyl Nuclear Power Plant (Article 14 of the Law).

The Constitutional Court finds that while using this approach the constitutional right to health care may not be completely ensured, because the main content and principles of the rights, freedoms must be established, as provided by the Constitution (point 2 of Article 97), at the legislative level. Securing the appropriate levels in the legislative acts will create additional conditions for protection of life and health from the harmful effects of radionuclides.

4. According to part one of Article 34 of the Constitution the citizens of the Republic of Belarus shall be guaranteed the right to receive complete, reliable and timely information on the state of the environment.

Taking into account this constitutional norm the Constitutional Court Court draws attention to Article 9 of the Law, according to which the citizens possess the right to receive complete, reliable and timely information about the radiation environment, the measures taken to improve it, as well as on the legal status of the territory of radioactive contamination and liability for its violation. It is provided in part two of this Article that the procedure for the provision and dissemination of information on radiation environment, the measures taken to improve it, as well as on the legal status of the territory of radioactive contamination and liability for its violation shall be established in the legislation on the environment protection, on citizens’ and legal entities’ applications and other legislation.

According to the Constitutional Court, the established procedure for the provision and dissemination of information on radiation environment, the legal status of the territory of radioactive contamination and liability for its violation by reference to the legislation on the environment protection, on citizens’ and legal entities’ applications and other legislation, that is, in fact, to the general rules relating to any of the available information, indicates a lack of guarantees for the implementation of the constitutional right to receive complete, reliable and timely information about the radiation environment in terms of the radiation environment. Because of the special importance of this information to the health of the population of the Republic of Belarus, the peculiarities of its provision and dissemination require the settlement on the legislative level.

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 Legal Status of the Territories Suffered from Radioactive Contamination Due to the Accident at the Chernobyl Nuclear Power Plant” 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.

 P.P. Miklashevich,
Presiding Officer –
Chairman of the Constitutional Court
Republic of Belarus