Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
21 November 2013 № D-855/2013
On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Population Register” to the Constitution of the Republic of Belarus
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, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, A.V. Maryskin, V.V. Podgrusha, A.G. Tikovenko, S.P. Chigrinov.
on the basis of Article 116.1 of the Constitution of the Republic of Belarus, paragraph 1.1 and 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 the Population Register”.
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 Making Alterations and Addenda to the Law of the Republic of Belarus “On the Population Register” 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 the Population Register” (hereinafter, the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on October 24, 2013, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on November 15, 2013 and submitted for signing by the President of the Republic of Belarus.
The Law makes alterations and addenda to the Law of the Republic of Belarus “On the Population Register” (hereinafter, the Population Register Law) in order to optimise the content of personal records deposited in the Population Register (hereinafter, the Register), to improve the order of their entering, and to harmonize the Population Register Law with the norms of other legislative acts.
While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
1. According to the Constitution the Republic of Belarus is a state based on the rule of law and it shall be bound by the principle of supremacy of law (Article 1, 7.1).
Article 28 of the Constitution enshrines the right of everyone to protection from unlawful interference with his private life.
The guarantees for implementation of indicated constitutional provisions are established by Article 34.2, 34.3 of the Constitution, which declares that state bodies, public associations and officials shall provide citizens of the Republic of Belarus with an opportunity to familiarize themselves with materials that affect their rights and legitimate interests; the use of information may be restricted by the legislation with the purpose to safeguard honor, dignity, personal and family life of the citizens and the full exercise of their rights.
In terms of the guarantee to observe the constitutional right to protection from unlawful interference with his privacy, the Constitutional Court notes that the source of the Register is the database of personal records of individuals that contains confidential information and which, due to its nature, processing and application procedures, requires protection in order to eliminate any possibility of violations of the right to privacy.
The requirement for protection of personal records is also based on the international obligations of the Republic of Belarus in the field of compliance with one of the fundamental human and civil rights – the right to privacy enshrined in Article 12 of the Universal Declaration of Human Rights, and Article 17 of the International Covenant on Civil and Political Rights.
Provisions of the Law are aimed at further development of the provisions of the Constitution, international legal instruments and at the improvement of legal mechanisms that regulate procedures of entering personal records in the Register, its further updating and protection.
2. Article 1.3 of the Law excluded Article 10.1.2 and 10.4.5 of the Population Register Law that refer respectively to personal records regarding blood type and information whether an individual is a founder (participant, owner of the property) of the legal entity (except for public companies, homeowners' associations, consumer cooperatives, horticultural associations, chambers of commerce), or individual entrepreneur. At the same time Article 12 of the Population Register Law specifies more precisely the list of state institutions authorised to enter personal records in the Register. Article 1.4 of the Law has excluded Article 12.2.3 and 12.2.9 of the Population Register Law which bound the Ministry of Justice of the Republic of Belarus and the Ministry of Health of the Republic of Belarus to enter into the Register records on whether an individual was a founder (participant, owner of the property) of the legal entity, individual entrepreneur, as well as his/her blood type.
According to the Constitutional Court adjustment of the list of personal records that is to be accumulated and deposited in the Register aimed at their optimisation, removal from the Register records that must be storage (already deposited) in the special information systems interconnected with the Register and which makes unnecessary accumulation of the same information in the Register.
In particular, information about whether a citizen is the founder (participant, property owner) of a legal entity, individual entrepreneur, is accumulated in the Unified State Register of Legal Entities and Individual Entrepreneurs, which is a national system of registration and identification of legal entities and individual entrepreneurs designed to provide complete and accurate information about legal entities and individual entrepreneurs registered in the Republic of Belarus.
Legal regulation established by the Law create conditions for construction of a coherent and efficient mechanism for gathering and accumulation necessary information in appropriate information systems, specifically designed for collection of that information, which will facilitate accumulation in the Register only those records that are really necessary for accomplishment of the Register’s tasks.
3. Article 12.2.16 of the Population Register Law specifies institutions responsible for registration of civil status acts and entering personal records into the Register by exclusion consular offices and diplomatic missions of the Republic of Belarus that exercise consular functions. At the same time, duty of entering relevant records into the Register, instead of those institutions, has been assigned to the Ministry of Foreign Affairs of the Republic of Belarus (Article 1.4.12 of the Law).
Appropriate alterations are made to Article 13.1 of the Population Register Law by setting a general rule that entering of personal records into the Register is to be done by governmental institutions, responsible for entering personal records into the Register in compliance with Article 12 of the Law, on a permanent basis, in a real-time mode via the communication channel, in a chronological order (exception made only for the Ministry of Foreign Affairs).
Obligation of the Ministry of Foreign Affairs to introduce personal records, received during execution by consular offices and diplomatic missions of the Republic of Belarus of their authority to register civil status acts, is aimed to prevent possible threats for security of the information. The mechanism of entering personal records received from consular offices and diplomatic missions of the Republic of Belarus established by the Law shall ensure protection of personal records, including those that had been already entered into the Register, because it creates conditions for prevention of any unauthorised interference into the records’ entering process, including attempts for illegal access to personal records, copying, transfer, dissemination, distortion, termination and other illegal actions towards such data.
According to the Constitutional Court the above mentioned legislative mechanism shall be considered as an additional guarantee for security and protection of the constitutional right to protection from unlawful interference with his private life (Article 28 of the Constitution), as well as for the established at the constitutional level possibility to limit usage of information for the protection of honor, dignity, and personal family life of citizens, the full enjoyment of their rights, and thus indicates that the State fulfills its duty to establish the proper order to reach constitutionally meaningful goals (Articles 1, 2, 28, 34 and 59 of the Constitution).
4. Article 30 of the Law on Population Register contains a list of data that are to be excluded from personal records in the process of their depersonalisation for scientific, statistical, sociological, medical and other purposes – identification number, surname, name and middle name of the individual, his or her parents, guardians, spouse, child (children), and digital picture. Beside that data, in the process of depersonalisation other personal records may be excluded also in a way decided by the manager of the Register.
The Law (Article 9.1) has made an addendum to Article 30 of the Population Register Law that makes possible to exclude some data from the records during the process of depersonalization of personal records.
The Constitutional Court considers that indicated modification of the rules in the Population Register Law intends to give, bearing in mind concrete purposes of implementation, a possibility to remove from the personal records data that allows to identify particular person. This regulation meets modern information security trends, including enhancement of legal mechanisms that ensure confidentiality of citizens’ personal records, and excludes identification of the individual in the process of application of depersonalized personal records contained in the Register, which is consistent with the provisions of Article 28 and 34.3 of the Constitution.
5. Building the Republic of Belarus as a state based on the Rule of law, including implementation of such a fundamental principle as supremacy of law, presumes creation of legal system that provides legal certainty in regulation of social relations, which means among other things, consistency and logical coherency. The Constitutional Court repeatedly pointed out in its decisions that the law is able to perform its role of an efficient social relations’ regulator only under the condition of strict compliance with those requirements.
In this regard, the Constitutional Court considers that the harmonization of terminology used in the Population Register Law with the Code of the Republic of Belarus on Education, the Law of the Republic of Belarus "On Electronic Document and Digital Signature" and others legislative acts is in compliance with the principle of legal certainty and thus helps to promote the constitutional principle of the rule of law.
In particular, necessity for harmonization of the Population Register Law with provisions of the Law "On Electronic Document and Electronic Signature" determined alterations made by Article 1.7, 1.8 of the Law to Article 15.2.3, 16.4.2, 17.3.3, 28.2.4 and 28.3.5 of the Population Register Law. Constitutional Court notes that the point of these alterations was not the formal replacement of words "digital signature" with words "public key certificate" but application in the Population Register Law of provisions related to electronic document as well as in its special part – digital signature in strict accordance with the meaning assigned to that document by the special Law "On Electronic Document and Digital Signature."
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 Article 116.1, 116.7 of the Constitution of the Republic of Belarus, Article 24.8, 24.13, 24.14 of the Code of the Republic of Belarus on Judicial System and Status of Judges, paragraph 1.1 and 3 of the Ordinance 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. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On the Population Register”to be conforming to the Constitution of the Republic of Belarus.
2. The present Decision shall come into force since the date of its adoption.
3. To publish the present Decision in accordance with the legislation.
 
Presiding Officer –
Petr P. Miklashevich,

Chairman of the Constitutional Court
of the Republic of Belarus