Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
16 December 2015 № D-1006/2015
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 Citizenship 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, 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 Alterations and Addenda to the Law of the Republic of Belarus “On the Citizenship of the Republic of Belarus”.
 
Having heard the reporting judge S.P. Chigrinov, 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 Citizenship 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 Alterations and Addenda to the Law of the Republic of Belarus “On the Citizenship 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 19 November 2015, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 9 December 2015 and submitted for signing to the President of the Republic of Belarus.
 
The Law aims to improve the legal regulation of relationship concerning the procedures and terms for citizenship to be acquired.
 
When reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
 
1. According to Article 10 of the Constitution a citizen of the Republic of Belarus shall be guaranteed protection and patronage of the State both in the territory of Belarus and beyond; no one may be deprived of the citizenship of the Republic of Belarus or the right to change his citizenship; a citizen of the Republic of Belarus may not be extradited to a foreign state, unless otherwise provided by treaties to which the Republic of Belarus is a party; acquisition and loss of the citizenship shall be carried out in accordance with the law.
 
Developing these constitutional rules the legislator provided in Article 1 of the Law of the Republic of Belarus “On the Citizenship of the Republic of Belarus” (hereinafter – the Law on the Citizenship) that the citizenship of the Republic of Belarus is an effective legal bond between a man and the Republic of Belarus; that bond shall be formed by the complex of reciprocal rights, obligations and responsibility based upon acknowledgment and respect for dignity, fundamental rights and freedoms of a man; Belarusian citizenship is an inherent element of the state sovereignty of the Republic of Belarus.
 
On the basis of analysis of the mentioned provisions of the Constitution and the Law on the Citizenship the Constitutional Court notes that being a constitutional and legal institute the citizenship represents constitutional and legal regulation of a specific political and legal bond between a citizen and the Republic of Belarus. That bond determines the scope of their reciprocal rights and obligations which in total constitute the political and legal status of a citizen. Citizenship is marked by extraterritorial and real effect and is free to choose. Furthermore the State guarantees its protection and patronage both in the territory of Belarus and beyond; a citizen may not be deprived of Belarusian citizenship or the right to change his citizenship.
 
2. The rules of the Law under review are consistent with the provisions of basic international legal acts on human rights which enshrine, inter alia, the right to citizenship.
 
As has been established in the Universal Declaration of Human Rights everyone has the right to a nationality (Article 15.1); no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality (Article 15.2). The International Covenant on Civil and Political Rights provides that every child has the right to acquire a nationality (Article 24.3). The European Convention on Nationality of 6 November 1997 determines that the rules on nationality of each State Party shall be based on the following principles: (a) everyone has the right to a nationality; (b) statelessness shall be avoided; (c) no one shall be arbitrarily deprived of his or her nationality; (d) neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse (Article 4).
 
Thus, the most important international legal acts enshrine as fundamental principles the universal, real and effective character of citizenship and avoidance of statelessness.
 
However, declaring these principles of citizenship the international legal instruments likewise recognise the prerogative of the State to determine in national legislation different principles, grounds, terms and procedures for citizenship to be acquired and terminated. In the Helsinki Document 1992 “The Challenges of Change”, adopted by the Conference for Security and Co-operation in Europe, the participating States underline that all aspects of nationality will be governed by the process of law; they will, as appropriate, take measures, consistent with their constitutional framework not to increase statelessness (paragraph 56 of the Helsinki Decisions of the CSCE on human dimension). According to Article 3 of the European Convention on Nationality each State shall determine under its own law who are its nationals; this law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality.
 
Moreover, the sovereign right of states to regulate nationality issues has been accepted in international jurisprudence. Thus, the International Court of Justice, established in accordance with the Charter of the United Nations, in its judgment of 6 April 1955 in “Nottebohm Case (Liechtenstein v. Guatemala) second phase” pointed out that nationality serves above all to determine that the person upon whom it is conferred enjoys the rights and is bound by the obligations which the law of the State in question grants to or imposes on its nationals; this is implied in the wider concept that nationality is within the domestic jurisdiction of the State.
 
In the Report on Consequences of State Succession for Nationality, adopted by the European Commission for Democracy through Law (Venice Commission) on 13–14 September 1996, it is also noted that the States grant nationality at birth on the basis of the principles of jus sanguinis and jus soli, and nationality is either open or closed; the criteria for granting nationality at another time than birth depend on both objective (religion, language, race or ethnic origin, usual place of residence, marriage, domicile) and subjective considerations (adequate knowledge of a language, respect for the values, laws and Constitution of the State, national service, services rendered to the nation, degree of integration, lawful means of subsistence) (paragraph 18).
 
In the said Report it is underlined that the subject of nationality, an essential prerogative of state sovereignty in the determination and identity of its population, requires a distinct reference to the notion of the rule of law (paragraph 36); the concept of the rule of law involves in particular: codifying the nationality issue with legislation accessible and comprehensible to the citizen; removing any discriminatory elements in terms of human rights and the fundamental freedoms from the definition of nationals; observing the proportionality principle in the granting, refusal or change of nationality; providing an effective judicial remedy for acts involving deprivation of nationality; seeking the optimum solution for compliance with the principles of the Constitution and the fundamental rights in implementing and interpreting the law (paragraph 39).
 
Based on the supremacy of the Constitution the Constitutional Court believes that the sovereign right of the Republic of Belarus to regulate at a law level relations involving citizenship provides for free discretion of the legislator to establish the principles, grounds, terms and procedures for acquiring and terminating Belarusian citizenship. At that the constitutional principle of the rule of law becomes crucial: it suggests that legal regulation in this area be based on the provisions of the Constitution and be in line with the generally recognised principles of international law and international obligations of the Republic of Belarus.
 
3. The Law develops the list of grounds for Belarusian citizenship to be acquired at birth. So, an alteration introduced by Article 1.4.2 of the Law to Article 13 of the Law on the Citizenship stipulates that a child shall acquire Belarusian citizenship at birth if on the day of his birth the child’s parents (a sole parent) who are (is) temporarily or permanently resident in the Republic of Belarus, are stateless provided that the child has been born in the territory of the Republic of Belarus.
 
Thus the legislator lawfully applied the jus soli principle in establishing a legal mechanism for Belarusian citizenship to be acquired by a child who was born in the territory of the Republic of Belarus and whose parents reside in the Republic of Belarus and are stateless.
 
The Constitutional Court notes that in introducing the mentioned alteration to the Law on the Citizenship the legislator adhered to the principle of law generally recognised with regard to statelessness of persons residing in the territory of the State that should be reduced. The Court was also guided by the nationality principle expressing the commitment of the Republic of Belarus to avoid statelessness (Article 3.6 of the Law on the Citizenship).
 
In addition, by virtue of Article 11 of the Constitution statelesspersonsintheterritoryofBelarusmayhaveaspecialstatusdefined by the Constitution, laws and treaties according to which not all therightsandfreedomsgrantedtothecitizensoftheRepublicofBelarusmaybeenjoyedbystatelesspersons.
 
In this regard the Constitutional Court finds that the said provision of the Law aims to implement the rules of Article 32.1 of the Constitution on childhood under the State’s protection as well as reflects the fact that the State recognises children of stateless persons permanently and temporary resident in the Republic of Belarus as full subjects of state legal relationship. That provision is also consistent with Article 7 of the Law of the Republic of Belarus “On the Rights of the Child” which stipulates that every child has the right to citizenship, the grounds and procedure for its acquiring and changing shall be established in the legislative acts and treaties on citizenship to which the Republic of Belarus is a party.
 
4. According to the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1).In its decisions the Constitutional Court repeatedly noted that the supremacy of law (rule of law) includes a number of elements such as legal certainty which implies clarity, accuracy, consistency and logical coherence of legal rules. When the principle of legal certainty is observed in rule-making it enables uniform and predictable law-enforcement that increases citizens’ confidence in the State.
 
In order to implement the principle of legal certainty relating to the period of continuous residence in the Republic of Belarus (residence requirement), which is among obligatory requirements to be admitted to Belarusian citizenship the Law clarifies the concept of continuous period of permanent residence in the Republic of Belarus (Article 1.5.5). Thus, in accordance with the addition to Article 14.1.4 of the Law on the Citizenship the period of residence in the Republic of Belarus shall be considered to be continuous if before applying for admission to Belarusian citizenship a person has left the Republic of Belarus for no more than three months for each year during the last seven years.
 
The principle of legal certainty is also adhered to in Article 1.11 of the Law according to which the Chapter 5 of the Law on the Citizenship (articles 23–27) has been restated.
 
So, the new version of Article 27.4 of the Law on the Citizenship provides that a child who is a foreign national or a stateless person shall become a citizen of the Republic of Belarus if in respect of him the parenthood of a Belarusian citizen has been established; the child acquires Belarusian citizenship from the day of such establishment.
 
Such approach of the legislator in regulating the mentioned relationship is based on the primacy of the jus sanguinis principle and is aimed to avoid conflicts of law and to develop uniform law-enforcement when the citizenship of a child is determined and in respect of whom the parenthood of a Belarusian citizen has been established.
 
In view of the revealed constitutional and legal meaning of the Law the Constitutional Court deems the contents of the Law aims to improve a legal mechanism of the exercise of constitutional provisions on citizenship of the Republic of Belarus. The rules of the Law under review are also based on the generally recognised principles of international law and treaties to which the Republic of Belarus is a party.
 
The Law has been adopted by the House of Representatives of the National Assembly of the Republic of Belarus and approved by the Council of the Republic of the National Assembly of the Republic of Belarus within the competence under Article 97.1.2, Article 98.1.1 of the Constitution.
 
The Constitutional Court therefore concludes that the Law is in conformity with the Constitution as regards the contents of rules, form of the act and procedure of adoption.
 
Guided by Article 116.1, Article 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
 
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 Citizenship 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 adoption.
 
3. To publish the present Decision in accordance with the legislation.
 
Presiding Officer –
Petr P. Miklashevich,
Chairman
Constitutional Court
Republic of Belarus