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, V.I. Shabailov, having considered on the grounds of Article 40 and part one of Article 116 of the Constitution address of A.M. Abramovich, Deputy Head of the Administration of the President of the Republic of Belarus, as well as of T.S. Protsko, Chairperson of Belarusian Helsinki Committee concerning opinion of the Constitutional Court on the effect of Article 57 of the Constitution and realization of the right of citizens of the Republic of Belarus to substitute military service by alternative service according to religious beliefs, found the following.

     Article 57 of the Constitution enshrines, that it shall be the responsibility and sacred duty of every citizen of the Republic of Belarus to defend the Republic of Belarus. The procedure governing military service, the grounds and conditions for exemption from military service and the substitution thereof by alternative service shall be determined by the law.

     Thus, the Basic Law does not consider military service as a unique and absolute, since it shall allow the possibility for exemption from military service and the substitution thereof by alternative one.

     It means that the responsibility and sacred duty of a citizen of the Republic of Belarus to defend Motherland shall correspond in reality one's right to perform the responsibility and duty in question in the forms specified in the Basic Law, by means of alternative service included.

     Moreover, the Law "On universal military duty and military service" directly specifies, that universal military duty shall envisage both contraction into military and alternative service, as well as to be in military and alternative service (part five of Article 1, part three of Article 14).

     Under Article 31 of the Constitution everyone shall have the right independently to determine one's attitude towards religion, to profess any religion individually or jointly with others, or to profess none at all, to express and spread beliefs connected with one's attitude towards religion, and to participate in the performance of acts of worship and religious rituals and rites, which are not prohibited by the law.

     Abovementioned norms of national legislation are corresponded to universally acknowledged principles and norms of international law, the supremacy of which the Republic of Belarus shall recognize (Article 8 of the Constitution).

     Thus, Article 18 of the Universal Declaration of Human Rights shall declare that everyone has the right to freedom of thought, conscience and religion; the right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

     International Covenant on Civil and Political Rights supplements the right in question by the provisions that no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others (points 2 and 3 of Article 18).

     In the Document of Copenhagen Conference on Human Dimension of CSCE the participating States note that the United Nations Commission on Human Rights has recognized the right of everyone to have conscientious objections to military service; note recent measures taken by a number of participating States to permit exemption from compulsory military service on the basis of conscientious objections; note the activities of several non-governmental organizations on the question of conscientious objections to compulsory military service; agree to consider introducing, where this had not yet been done, various forms of alternative service, which are compatible with the reasons for conscientious objections, such forms of alternative military service being in principle of a non-combatant or civilian nature, in the public interest and of a non-punitive nature; will make available to the public information on this issue; will keep under consideration, within the framework of the Conference on the Human Dimension, the relevant questions related to the exemption from compulsory military service, where it exists, of individuals on the basis of conscientious objections to armed service, and will exchange information on these questions (point 18).

     Article 77 of the effective Criminal Code determines criminal liability of the citizens of the Republic of Belarus for evasion regular conscription into military service. The analysis of law applicable practice indicates, that evasion military service according to religious beliefs (conscientious objection) shall entail criminal liability under the said Article of the Criminal Code.

     Having analyzed the norms of the Basic Law, first of all those norms as to the basic rights, freedoms and obligations of citizens, as well as guarantees of their securing (Articles 16, 21, 31, 57) as applied to the issue under consideration, the norms of aforestated international legal acts in respect to which the Republic of Belarus has assumed obligations to meet them, other norms of effective national legislation and practice of their application, the Constitutional Court has come to the conclusion, that citizens of the Republic of Belarus on the ground of religious beliefs shall have no possibility in practice to perform their duty to defend the Republic of Belarus by means of alternative service in connection with absence in legislation, in the Law "On universal military duty and military service" included, of the mechanism of substitution of military service for alternative one.

     The Constitutional Court notes, that the legislative gap in question gives grounds for conflicts between certain citizens and the State, since there is no due securing of the rights of citizens in the Republic of Belarus guaranteed by the Constitution, there is no specification of the limits of their exercise. The right of citizens to alternative service shall follow directly from both Article 57 of the Constitution and the Law "On universal military duty and military service" (part five of Article 1 and part three of Article 14).

     In accordance with Article 4 of the Law of 15 March 1994 "On the Procedure Governing the Entry into Force of the Constitution of the Republic of Belarus" the laws specified in the Constitution had to be adopted during two years after its entry into force, that means before 30 March 1996.

     By adopting such a decision the lawmaker has come from real terms for elaboration of both other laws specified in the Constitution and the law on alternative service. However, neither the Supreme Council of XII calling nor the Supreme Council of XII calling had carried out that demand and had resolved the issues on the grounds and conditions for substitution of military service for alternative and on the procedure of the service by means of adoption of special law or by means of making relevant alterations and addenda into effective Law "On universal military duty and military service".

     It is necessary to take into account, that the Constitution of 1994 adopted at the republican referendum with alterations and addenda thereto has preserved Article 57 in its original wording. There are no reservations in final and transitional clauses of the Constitution concerning the given Article, as it took place, for a example, for certain Articles of the Basic Law.

     Thus, effective wording of the Constitution contains no norms which may allow for the Parliament on the legislative level to delay realization of the provisions of Article 57 of the Constitution in part concerning performance of military duty by way of alternative service.

     Under 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 the rights and liberties of the citizens of the Republic of Belarus that are specified in the Constitution. State bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual. These bodies and persons shall be held responsible for actions violating the rights and liberties of an individual.

     Notwithstanding that there have been passed more than six years of the effect of the constitutional norm on alternative service, there have been adopted no relevant law. That circumstance has been pointed out several times by the Constitutional Court in its Messages on constitutional legality.

     The Constitutional Court emphasizes, that yearly some dozens citizens of the Republic of Belarus of call-up age, with their religious beliefs taken into account, are being sent to railway troops, the service there, unlike in other military units, shall make it possible under the circumstances to take into consideration both the interests of the State and of an individual, shall secure the performance by citizens of the Republic of Belarus of their responsibility and duty to defend the Republic of Belarus, including by those who may not in full perform military service under religious beliefs. Big role in solution of the issues connected with overcoming conflict situations by calling up those citizens to military service with the absence of the relevant legislative mechanism shall belong to enlistment commissions.

     Under Article 112 of the Constitution the courts shall administer justice on the basis of the Constitution, the laws and other enforceable enactments adopted in accordance therewith. If, during the hearing of a specific case, a court concludes that an enforceable enactment is contrary to the Constitution, it shall make a ruling in accordance with the Constitution and raise, under the procedure specified in Article 6 of the Law "On the Constitutional Court of the Republic of Belarus", the issue of whether the enforceable enactment in question should be deemed unconstitutional. In spite of that, the courts, while examining criminal cases on conscientious objection, put no question to the Constitutional Court on unconstitutionality of legislative gap concerning realization by citizens of the right to substitution of military service for alternative.

     Article 137 of the Basic Law proclaims, that the Constitution shall have supreme legal force. Under Article 142 of the Constitution the laws, decrees and other acts which were applied in the territory of the Republic of Belarus prior to the entry into force of the present Constitution shall apply in the particular parts thereof that are not contrary to the Constitution of the Republic of Belarus.

     In that connection the Constitutional Court deems that calling citizens of Belarus to liability under Article 77 of the Criminal Code may take place with the demand of aforestated norms of the Constitution taken into account, as well as with an allowance for the practice which took place on making conditions for military service of the citizens of the Republic of Belarus by way of securing respect of their religious beliefs.

     At the same time evasion exercise of constitutional duty to defend Republic of Belarus without valid excuse should entail relevant liability, criminal included.

     Based on the aforestated and guided by Article 40 and part one of Article 116 of the Constitution, Articles 7 and 36 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court

RULED:

1. To note, that citizens of the Republic of Belarus in accordance with the Constitution and the Law "On universal military duty and military service" (Articles 1 and 14) shall have the right, in particular, under religious beliefs to substitute military service for alternative one, which should be secured by effective mechanism of its realization. In that connection to consider it immediate to adopt the law on alternative service or make necessary amendment to the Law "On universal military duty and military service" in order to determining the mechanism for realization of the right to alternative service.

For the period before solving on the legislative level of the issues on the grounds and conditions of substitution military service for alternative and on the procedure of the service to give consent, with exclusiveness of the circumstances taken into account, to the practice of creation by competent State bodies under Articles 31, 57 and 59, as well as other Articles of the Constitution of the conditions for performance by citizens of the Republic of Belarus of the vested in them duty to defend the Republic of Belarus in the forms which shall not violate their religious beliefs.

2. While solving by competent State bodies of the issues on the liability for evasion military service, it is necessary to determine to what extent these or those actions of a citizen are connected with realization by him of his constitutional right to substitution military service under religious beliefs for alternative or with conscientious objection which shall not secure respect of his religious beliefs. In each concrete case the bodies in question should take all measures on detailed and due study of all circumstances of a case both with a view of securing the rights and freedoms of citizens, who wish to perform one's duty to defend the Republic of Belarus in other allowed forms, and of excluding abuses on the part of certain persons, who, thus, have intention to evade military service.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich