19 June 2001 № D-121/2001
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, on the basis of Articles 7, 40, 116, 137, 142 of the Constitution of the Republic of Belarus has examined request of the Central Commission of the Republic of Belarus on elections and holding of republican referenda on position of the Constitutional Court concerning definitionthe notion "citizen of the Republic of Belarus by birth" which is used in Article 80 of the Constitution of the Republic of Belarus.
The request has specified that the Central Commission of the Republic of Belarus on elections and holding of republican referenda has received the documents about registration of an initiative group of citizens on nomination for the post of the President of the Republic of Belarus of Mr A.A. Lyashko who was born in Komi ASSR of the Russian Federation in 1949. Since 1958 A.A. Lyashko lives in the Republic of Belarus.
The Central Commission of the Republic of Belarus on elections and holding of republican referenda asks the Constitutional Court of the Republic of Belarus to express the legal position on the fact whether A.A. Lyashko under specified circumstances is a citizen of the Republic of Belarus by birth.
Having analyzed the provisions of Constitutions of BSSR of 1937, 1978 and Constitution of the Republic of Belarus of 1994, Constitutions of the USSR of 1936, 1977, laws on citizenship of the USSR of 1938, 1978 and 1990, Law "On citizenship of the Republic of Belarus" of 1991, the Electoral Code of the Republic of Belarus and other acts of legislation of the Republic of Belarus, the Constitutional Court has found the following. Article 80 of the Constitution of the Republic of Belarus any citizen of the Republic of Belarus by birth may be elected President. Analogous norm is contained in Article 57 of the Electoral Code of the Republic of Belarus. Similar requirements for holding the post of President are contained in Constitutions of some other states.
Under Constitutions of BSSR of 1937, 1978 Belarus, while joining in the USSR, has reserved for its sovereignty. One of the most important features of state sovereignty shall be one's own citizenship. Under Article 18 of the Constitution of BSSR of 1937 has stipulated that every citizen of BSSR shall be citizen of the USSR. The same norm has been contained in Article 31 of the Constitution of BSSR of 1978. Article 21 of the Constitution of the USSR of 1936 had established uniform Union citizenship. Every citizen of the Union Republic shall be citizen of the USSR.
Similar norm has been contained in Article 33 of the Constitution of the USSR of 1977. Grounds and procedure of acquiring and loss of Soviet citizenship have been specified by the laws on citizenship of the USSR. By force of provisions of Article 2 of the Law "On citizenship of the Union of Soviet Socialist Republics" of 19 August 1938 citizens of the USSR were: a) all those who took out citizenship of former Russian Empire by 7 November 1917 and did not lost Soviet citizenship; b) persons who had acquired Soviet citizenship in the procedure specified by the law.
According to Article 3 of the Law "On citizenship of the USSR" of 1 December 1978 citizens of the USSR were persons: a) who had acquired citizenship of the USSR in accordance with the Law in question. According to Article 10 of the same Law the citizenship of the USSR had been acquired by birth, as well as under other grounds. The same norms had been reproduced in Articles 4 and 13 of the Law "On citizenship of the USSR" of 23 May 1990. Union legislation had been established uniform citizenship. Its availability had signified that a citizen who resided in one of the Union republics was its citizen and the citizen of the USSR, but was not simultaneously a citizen of another Union republic.
It is universally acknowledged to consider to be a citizen by birth a person, who was born in the territory of the given state (principle of "the right of place") and (or) parents (one of the parents) of the person are citizen(s) of that state (principle of "the right of blood"). Concrete conditions for application and combination of those principles shall be specified by the legislation.
The given approach had been secured both in previously effective Union and republican legislation on citizenship and in the Law "On citizenship of the Republic of Belarus" of 18 October 1991 (Articles 9, 10, 11, 12 etc.). At the same time, the lawmaker by determining in the mentioned Law the grounds for acquiring citizenship has recognized the persons who resided in the territory of the Republic of Belarus on the day of coming into effect of the Law in question to be citizens of the Republic of Belarus (Articles 2, 8). However, it has not signified that all persons have been recognized by the lawmaker to be citizens of the Republic of Belarus by birth. The solution of that issue shall depend upon concrete circumstances (place of birth, citizenship of parents etc.). (Certain explanation as regards the norms of the Law in question have been given in Resolution of the Supreme Council of the Republic of Belarus of 18 October 1991 "On coming into effect of the Law of the Republic of Belarus "On citizenship of the Republic of Belarus").
Based on the aforestated the Constitutional Court emphasized that Lyashko A.A. who was born in 1949 in Komi ASSR of the Russian Federation whose parents, on the available information, were not citizens of the Republic of Belarus at the moment of his birth, had acquired the citizenship of BSSR (citizenship of the Republic of Belarus) not by birth, but as a result of removal in 1958 in the territory of BSSR.
The present Decision shall come into legal force from the date of its adoption and shall be subject to publication in accordance with effective legislation.
Presiding Officer —
Chairman of the
of the