27 September 2002 № J-146/2002
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin
with participation of representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus: V.V. Parfenovich - Deputy Head of Standing Commission on health protection, physical training, family and youth affairs; Y.A. Morozov - member of Standing Commission on human rights, national relations and mass media; L.K. Orlov, Head of Department of criminal and administrative legislation of Main expert and legal management of the Secretariat;
of the Council of the Republic of the National Assembly of the Republic of Belarus - A.G. Filanovich, consultant of management of state, administrative and criminal legislation of Main expert and legal management of the Secretariat;
of the Ministry of Internal Affairs of the Republic of Belarus - A.Y. Begoun, Deputy Head of Department on work with foreigners and leaving abroad - Head of Sector on organization of work with foreigners and stateless persons of the passport-visa service,
has examined in open Court session the case "On the conformity between the Constitution of the Republic of Belarus and part two of Article 6 of the Law of the Republic of Belarus "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", point 13 of Rules of official registration of documents for leaving abroad of citizens of the Republic of Belarus, sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad in part of fixing five-year term of effect of an obligatory note in passport of a citizen of the Republic of Belarus who is leaving abroad temporary".
The Court session was attended by: I.A. Mironichenko -Deputy Chairman of the Supreme Court of the Republic of Belarus; A.P. Yegorov - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V. Ivanovski - Deputy Procurator-General of the Republic of Belarus; A.S. Petrash - Deputy Minister of Justice of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of 4 July 2002 on the proposal of the House of Representatives of the National Assembly of the Republic of Belarus on the grounds of Article 116 of the Constitution, Articles 5, 6 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 43 of the Rules of Procedure of the Constitutional Court.
Under examination were part two of Article 6 of the Law "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus" (Vedamastsi Vyarkhovnaga Saveta Respubliki Belarus, 1993, No. 22, art. 274), point 13 of the Rules of execution of documents for leaving abroad of citizens of the Republic of Belarus approved by Resolution of the Cabinet of Ministers of the Republic of Belarus of 20 November 1995 No. 631 (Zbor ukazau i pastanou Kabineta Ministrau Respubliki Belarus, 1995 No. 32, art. 794), sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad, approved by Order of Minister of Internal Affairs of the Republic of Belarus of 27 August 1996 No. 166 (Bulletin of normative and legal information, 1966, No. 11) which envisage, in particular, putting down a note in the passport of a citizen of the Republic of Belarus who leaving abroad temporary which is effective till five years. After expiry of the indicated in passport term for leaving abroad, the documents drawn up in accordance with the specified Law shall become invalid, and an application on putting the note for the next term shall be submitted once again under the procedure specified by the Law in question.
The House of Representatives of the National Assembly of the Republic of Belarus has proposed to verify the constitutionality of the specified provisions of enforceable legal acts. The House of Representatives of the National Assembly has also emphasized that application for the permission for temporary exit out of the bounds of the Republic of Belarus shall involve collection of the state tax at the rate of five base values. After expiry of five-year term a citizen is obliged to appeal to the bodies of internal affairs in order to get a new note of permission and to pay the state tax once again.
Having heard V.Z. Shuklin, Judge-speaker, representatives as litigants, a specialist and a witness, having analyzed the relevant provisions of the Constitution, the Law "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus (hereinafter also referred to as the Law), other enforceable legal acts of the Republic of Belarus, International Covenant on Civil and Political Rights, other international legal acts, as well as having studied the practice of their application, other materials of the case, the Constitutional Court found the following.
Under Article 30 of the Constitution citizens of the Republic of Belarus shall have the right to move freely and choose their place of residence within the Republic of Belarus, to leave it and to return to it without hindrance. The content of the given Article of the Basic Law shall signify about inalienability of the constitutional right in question and that this is the right of each citizen of the Republic of Belarus, about the necessity of establishment of new relations of new quality between a citizen and the state and the essence of those relations shall be mutual rights, obligations and responsibility based on recognition and respect of dignity, fundamental human rights and freedoms. That shall presupposes creation of such a system of measures which secures in more full the realization by citizens of their inalienable rights, including the right to freely exit the Republic of Belarus and to return to it without hindrance.
In accordance with part four of Article 3 of the Law the procedure and the rules of drawing up the documents for exit the Republic of Belarus shall be determined by the Council of Ministers of the Republic of Belarus. Proper executed passport of a citizen of the Republic of Belarus shall be valid under the Law for exit the Republic of Belarus in all the countries of the world.
As for temporary exit of a citizen of the Republic of Belarus abroad part two of Article 6 of the Law envisages putting down the note in passport which is effective within five-year term. After expiry of the specified in passport term of exit abroad the executed documents shall be null and void, and the application shall be made once again under the procedure specified in the Law. Similar provisions are contained in the Rules for drawing up documents for exit abroad for the citizens of the Republic of Belarus and in the Instruction on the procedure of drawing up passport of a citizen of the Republic of Belarus for exit abroad.
In accordance with Article 5 of the Law temporary exit abroad for a citizen of the Republic of Belarus may be limited: if he/she holds information of State secret, - until termination of effect of circumstances which prevent from exit; if against him/her a criminal case has been brought - until ending the trial; if he/she was convicted for the commitment of an offence - till ending of service of a sentence or release from punishment; if he/she avoids performing obligations imposed thereon by the court of law, - until fulfilment of the obligations; if a civil action he/she is brought thereagainst - until termination of the proceedings; if he/she gave wittingly false evidence while drawing up documents. The presence of the specified circumstances during the period of drawing up passport of a citizen for temporary exit abroad shall be the ground for refusal to put down the note, and their revealing during the period of effect of the note - for its annulment.
The Constitution shall assume establishment of restrictions of personal rights and liberties, however, it shall be permitted only in the instances specified in law, in the interests of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons (Article 23). Temporary restrictions of the rights and freedoms of citizens are also not excluded by the norms of international acts.
At the same time, the Constitutional Court emphasizes that equally with the grounds for temporary restrictions of the rights of citizens to exit the Republic of Belarus, the establishment of which shall meet the requirements of Article 23 of the Constitution and international legal acts, the Law shall also stipulate the grounds which practically are subject to no fulfilment (for example, in instance of bringing against a person of a civil act in the court of law) or which are disproportionate to the protected by the Constitution rights and liberties. In the opinion of the Constitutional Court restrictions for temporary exit abroad should be reasonable, fair and shall meet the purposes and principles of a democratic state ruled by law, as well as should be secured by effective mechanism of control.
By force of requirements of Article 59 of the Constitution the State shall take all measures at its disposal to create the domestic and international order necessary for the exercise in full of personal rights and liberties that are specified in the Constitution, including the right to move freely and chose their place of residence within the Republic of Belarus, to leave it and to return to it without hindrance.
Up to the present moment the State has expanded significantly the possibilities for realization by citizens of their right to free exit: it is near completion the issue of the passports of new model type which meet international standards and are effective and valid for exit abroad as it is directly specified in passport (page 29 of passport). With a view to realize Article 30 of the Constitution, as it follows from Decree of the President of the Republic of Belarus of 10 April 2002 No. 205 "On Conception of improvement of legislation of the Republic of Belarus", it is envisaged to create in perspective Register of population of the Republic of Belarus (sub-item 33.2 of point 33 of the Conception).
In spite of the measures taking by the State for achievement of international standards in the sphere of securing freedom of movement, currently effective acts of legislation for the present moment shall stipulate obligatory putting down the note while using the passport of new model type for exit abroad and that is based on the necessity to exercise control over the citizens with respect to whom temporary restrictions have been made.
Thus, the requirement in question on obligation to put down the note in passport shall cover all the citizens, including those, with respect to whom those restrictions have not been established, that shall entail imposition on them of additional obligations on realization by them of the constitutional right to exit abroad freely.
Under Article 12 of the International Covenant on Civil and Political Rights the right to liberty of movement and freedom to choose his residence shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with other rights recognized in the present Covenant (point 3). Therefore, by making no exclusion of the necessity of establishment of that control as regards certain citizens in full conformity with the Constitution and with international legal acts, the Constitutional Court emphasizes that legislative regulation of relations in the given sphere the fundamental human rights and freedoms should not be belittled and lawful interests of the absolute majority of citizens of the Republic of Belarus should not be infringed thereupon.
The Constitutional Court shall also underline that the Law "On procedure of exit and enter the Republic of Belarus by citizens of the Republic of Belarus" has been adopted in 1993, i.e. until adoption of 15 March 1994 of the Constitution when citizens had no passport of new model type, there were other reasons (in particular, material and technical and organizational) to be conditioned the adoption of the Law in the specified wording.
As it was established at the Court session putting down the obligatory note in passport which is fixed in term and essentially has the nature of permission, does not lead to achievement of the goals under the Law, since in practice to exit abroad may citizens who have no notes in their passports, as well as citizens whose passports contain those notes but restrictions appeared after putting down the notes which due to imperfection of the current control system have not been timely annulled. Moreover, unlike passport which is itself effective for exit abroad the note has no proper degrees of protection.
By determining its position on the issues under examination, the Constitutional Court has been based on the fact that provisions of Article 30 of the Constitution which stipulate the right of citizens of the Republic of Belarus to move freely, to leave the Republic of Belarus and to return to it without hindrance shall signify unconditional belonging of the constitutional right to each citizen of the Republic of Belarus, and restrictions for temporary exit of certain citizens abroad is possible in strict conformity with the requirements of Article 23 of the Constitution and should meet the purposes and principles of a democratic state ruled by law, should be proportional to the guaranteed by the Constitution values where the supreme value is a human being, her/his rights liberties and guarantees of their realization (Article 2 of the Constitution).
Due to that the Constitutional Court deems that the completion of already started work on creation of an effective control system used while leaving for abroad should secure in most full realization by citizens of the Republic of Belarus realization of the right to free exit abroad and to exclude unlawful exit abroad of the citizens for whom in accordance with the Constitution there were established restrictions.
As regards collection of the state tax while drawing up permission for exit from the Republic of Belarus the Constitutional Court emphasizes that regulation of the specified relations is within the competence of the authorized bodies - the National Assembly of the Republic of Belarus and the Council of Ministers of the Republic of Belarus which are competent to solve fairly the issues concerning both the collection of the state tax and its rates, procedure of collection and conditions of its repayment.
Grounded on the abovestated and guided by Articles 116, 137 of the Constitution, Articles 5, 6, 9, 34, 38, 40 and 43 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To be based on the fact that Article 30 of the Constitution which shall enshrine the right of citizens of the Republic of Belarus to move freely, to leave the Republic of Belarus and to return to it without hindrance signifies about inalienability of the basic right in question. Establishment of restrictions for temporary exit of certain citizens abroad is possible in strict conformity with Article 23 of the Constitution and should meet the purposes and principles of a democratic state ruled by law, should be proportional to the guaranteed by the Constitution values.
2. To find that the norms of part two of Article 6 of the Law of the Republic of Belarus "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", point 13 of Rules of drawing up documents for leaving abroad citizens of the Republic of Belarus, sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad envisaging putting down the note in passport of a citizen of the Republic of Belarus for temporary exit abroad is not in full conformity with the Constitution of the Republic of Belarus, since the obligation to put down the note in passport which is determined for all the citizens of the Republic of Belarus who wish to leave abroad temporary and the absolute majority of which has no restrictions for exit shall belittle their rights and is not in proportion with the guaranteed by the Constitution values.
3. To emphasize that the most reasonable variant, which shall allow the citizens of the Republic of Belarus to realize in more full manner the enshrined in Article 30 of the Constitution right to move freely, to leave the Republic of Belarus and to return to it without hindrance, is the establishment of the procedure under which all-civil passport which meets international standards will be subject to use for exit abroad without putting down the note. As regards the exclusion of exit of citizens abroad who have provisional restrictions, promotive will be creation of modern centralized accounting of persons with respect to whom in accordance with the Constitution of the Republic of Belarus restrictions for temporary exit abroad are admissible.
Due to that to propose the Council of Ministers of the Republic of Belarus, other state bodies, which are authorized to solve the specified issues, to complete as soon as possible but on or before 31 December 2005 the creation of such a system of accounting the use of which will make it possible to use all-civil passport as a document for exit the Republic of Belarus without putting down the note.
4. Before creation of the accounting system in accordance with point 3 of the given Judgement:
to find to be admissible putting down the note in passport of a citizen for temporary exit abroad what is envisaged by the enforceable enactment which were subject of verification;
the National Assembly of the Republic of Belarus:
to consider the issue on the improvement of the norms of the Law of the Republic of Belarus "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus" concerning the terms of effect of the note in passport of a citizen of the Republic of Belarus for temporary exit from the Republic of Belarus. As a possible variant under the existing accounting system the effect of the specified note in passport may be subject to prolongation (for example, may be brought in correlation with the terms of effect of all-citizen passport which shall be issued at the age of 16, 25 and 45). At the same time, in order to create for the citizens of favourable conditions for more full realization by them of the right to exit freely from the Republic of Belarus there may be established a simplified procedure of repeat putting down in all-civil passport of the note on temporary exit from the Republic of Belarus;
to reconsider and to elaborate the list of restrictions for temporary exit from the Republic of Belarus.
5. To publish the present Judgment within the period specified in the legislation in "Narodnaya gazeta" and "Zvyazda", as well as in National register of legal acts of the Republic of Belarus and in "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
6. The present Judgment shall come into legal force from the day of its proclamation, is final and subject to no appeal or protest.
Presiding Officer —
Chairman of the
of the