The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, 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 Addenda and Alterations to Certain Laws of the Republic of Belarus on Combating Terrorism”.

Having heard the reporting judge S.Y. Danilyuk, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the “Constitution”), the Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus on Combating Terrorism” 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 Addenda and Alterations to Certain Laws of the Republic of Belarus on Combating Terrorism” (hereinafter – the “Law”) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 25 May 2016, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 14 June 2016 and submitted for signing to the President of the Republic of Belarus.

The Law makes addenda and alterations to the laws of the Republic of Belarus “On the Fight against Terrorism” (hereinafter – the Law on the Fight against Terrorism) and “On the Armed Forces of the Republic of Belarus” (hereinafter – the Law on the Armed Forces).

The adoption of the Law is conditioned by to the need to improve the legal bases of prevention, detection, suppression and minimisation of consequences of terrorist activities, protection of the rights of persons exposed to danger as the result of terrorist activities as well as to ensure the national security of the Republic of Belarus.

While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.

 1. The Constitution stipulates that the Republic of Belarus shall defend its independence and territorial integrity, its constitutional system, and safeguard lawfulness and law and order (Article 1.3); the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 2.1); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1); restriction of personal rights and freedoms shall be permitted only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons (Article 23.1); the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1).

Article 8 of the Constitution provides that the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith.

The Republic of Belarus adhered to such most important international instruments in the field of prevention of terrorism, such as the International Convention for the Suppression of Terrorist Bombings of 15 December 1997, the International Convention for the Suppression of the Financing of Terrorism of 9 December 1999, the International Convention for the Suppression of Acts of Nuclear Terrorism of 13 April 2005, etc.

In the Resolution No. 1822 (2008) of the UN Security Council “Threats to International Peace and Security caused by Terrorist Acts”, adopted on 30 June 2008, it was stated that terrorism in all its forms and manifestations constitutes one of the most serious threats to peace and security and that any acts of terrorism are criminal and unjustifiable regardless of their motivations, whenever and by whomsoever committed.

In the Resolution 61/171 of the UN General Assembly “Protection of human rights and fundamental freedoms while countering terrorism” adopted on 19 December 2006 that unequivocally condemns all acts, methods and practices of terrorism in all its forms and manifestations, wherever and by whomsoever committed, regardless of their motivation, as criminal and unjustifiable, attention is drawn to the fundamental importance, including in response to terrorism and the fear of terrorism, of respecting all human rights and fundamental freedoms and the rule of law.

Taking into account the above-mentioned constitutional and international legal principles and rules the Constitutional Court assesses the constitutionality of the Law.

 2. The provisions of the Law make addenda and alterations to the Law on the Fight against Terrorism.

2.1. The Law extends the competence of certain state bodies directly engaged in combating terrorism.

Thus, Article 2.3 of the Law vests the state security bodies of the Republic of Belarus with power to prevent, detect and suppress the activities of illegal armed groups, and the bodies of internal affairs of the Republic of Belarus – with power to prevent, detect and suppress the activities of terrorist organisations.

At the same time the Law clarifies the competence of the Ministry of Defence of the Republic of Belarus that ensures protection and defence of weapons, military equipment and military facilities of the Belarusian Armed Forces, participates in ensuring security of the airspace of the Republic of Belarus, performs other functions in accordance with the Law on the Fight against Terrorism and other legislative acts of the Republic Belarus (Article 2.3.5 of the Law).

2.2. The legislator gives a more precise definition in the definition to the notion of the counterterrorist operation, providing for the possibility of its conduct is not only in order to prevent an act of terrorism, activities of illegal armed groups, but also in order to prevent the activities of a terrorist organisation (Article 2.2.5 of the Law).

In order to harmonise Articles 10, 13, 14 and 16 of the Law on the Fight against Terrorism with this definition these articles have been amended and establish that the counterterrorist operation may be carried out in order to prevent the activities of a terrorist organisation (Articles 2.6-2.8 of the Law).

2.3 The Law enshrines a new term “state response” which is understood as the realisation of measures in order to prevent, detect and suppress acts of terrorism, activities of terrorist organisations, illegal armed groups and to minimise their effects by the state bodies and other state organisations within their scope of competence (Article 2.2.3).

At the same time the Law on the Fight against Terrorism is added by provisions according to that the subjects of the fight against terrorism, as well as state bodies and other organisations that are not the subjects of the fight against terrorism shall participate in the state response in accordance with the legislation of the Republic of Belarus (Articles 2.4 and 2.5 of the Law).

This updating of legislation is made in order to improve the effectiveness of measures to counter terrorism, which, in accordance with the addendum made by Article 2.2 of the Law, is defined as a socio-political criminal phenomenon representing the ideology and practice of the use of violence or threat of violence in order to influence decision-making of bodies of power, to impede political or other public activity, to provoke international tension or war, to frighten the population and to destabilise the public order (Article 3.9 of the Law on the Fight against Terrorism). These amendments are also aimed at harmonising the Law on the Fight against Terrorism with the acts of the President of the Republic of Belarus regulating issues of responding to acts of terrorism, activities of terrorist organisations, illegal armed groups and riots.

The Constitutional Court notes that terrorism is one of the most socially dangerous and destructive phenomena of modern times which takes on more and more diverse forms and threatening scope. Terrorism undermines the stability of the society and the state, involves mass casualties, provokes international armed conflicts and causes irreparable damage to the sustainable development of human civilisation and the global world order.

According to the Constitutional Court the established legal regulation is aimed at strengthening the powers of the subjects of the fight against terrorism, creating conditions for more active and effective participation of state bodies and other organisations in the state response to terrorism and other anti-social, harmful phenomena, as well as extending the scope of application of the counterterrorist operation. This legislative approach is based on the constitutional provisions stipulating that the Republic of Belarus shall defend its independence and territorial integrity, its constitutional system, and safeguard lawfulness and law and order (Article 1.3); the State shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus that are specified by the Constitution (Article 59.1).

2.4. Article 13 of the Law on the Fight against Terrorism, regulating the legal regime in the area of a counterterrorist operation, is added with a provision according to which the persons conducting the mentioned operation shall be entitled, in particular, to enter freely, if necessary with damage to the locking devices and other items, at any time in the home or other lawful possession of individuals, in facilities and (or) other properties of state bodies and other organisations and to examine them when pursuing persons suspected of an act of terrorism, creation of a terrorist organisation, illegal armed group, their direction or any participation in their activities with the subsequent notification of the prosecutor within 24 hours (Article 7.2 of the Law).

The Constitutional Court notes that such measures entail interference with privacy of individuals and limit to a certain extent the rights to protection against unlawful interference with the private life (Article 28 of the Constitution) and to inviolability of home and other legitimate possessions of individuals (Article 29).

However, according to the Constitutional Court such restriction is objectively conditioned and forced way to achieve the socially justified goal of the fight against terrorism, as in accordance with Article 23.1 of the Constitution such restriction shall be permitted only in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons.

The analysis of the restrictions of the human rights and freedoms established in Article 13 of the Law on the Fight against Terrorism shows that they are not excessive, they are consistent with the provisions of international legal instruments, including Article 29.2 of the Universal Declaration of Human Rights according to which in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

At the same time the Constitutional Court draws attention of the law-enforcement bodies to the need of strict compliance of reasonable proportionality of permissible and justified restrictions of the human rights and freedoms with the goals of protection of the constitutional foundations of the security of the society and the state by achieving the balance of the protected values.

2.5. Article 18 of the Law on the Fight against Terrorism providing for social rehabilitation of persons who have suffered from an act of terrorism is set out in the new wording (Article 2.9 of the Law).

According to the introduced alterations, social rehabilitation, that is legal assistance granted at the expense of the republican budget, psychological, medical and professional rehabilitation, employment assistance and housing, shall be applied not only to the victims of an act of terrorism, but also to persons who have suffered from the activities of terrorist organisations, illegal armed groups or in the course of their suppression.

The Constitutional Court notes that the social rehabilitation which is aimed at social adaptation and integration into society of these affected persons is a manifestation of the principle of humanism resulting from the constitutional provisions that the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State, ensuring the rights and freedoms of citizens of the Republic of Belarus – the supreme goal of the state.

 3. Article 1 of the Law provides for adding Article 111 to the Law on the Armed Forces stipulating that the armed forces may be involved in strengthening the protection of critical facilities in cases stipulated by legislative acts of the Republic of Belarus. This legal regulation is conditioned by the need to strengthen the protection of such facilities against threats of terrorist attacks as well as to harmonise such regulation with the acts by the President of Belarus regulating the issues of the fight against terrorism.

When evaluating the constitutionality of the said provision the Constitutional Court notes that according to Article 11 of the Law on the Armed Forces involvement of the armed forces in carrying out tasks not related with ensuring military security and armed defence of the Republic of Belarus, its sovereignty, independence and territorial integrity, shall not be permitted except cases calling for the need to protect the population and to give aid in emergency situations in accordance with the legislation of the Republic of Belarus as well as other cases established by legislative acts of the Republic of Belarus.

According to the Decree of the President of the Republic of Belarus of 17 August 2015 No. 356 “On the Commission on Counteraction to Extremism and Fight against Terrorism” the critical facilities are understood as facilities of social, industrial, engineering and transport, energy, information and communications and other infrastructure; the violation of their functioning as a result of an act of terrorism or mass disorders may contribute to the destabilization of the public order and the achievement of other objectives of terrorism and (or) cause human casualties, harm to human health or environment, considerable material losses and violation of conditions of personal and social activity.

These facilities are of the utmost importance for the sustainable functioning of the national economy, given the danger of numerous victims among the staff of these facilities and the high probability of their destruction as a result of terrorist attacks. Taking into account the special importance of these facilities, the Constitutional Court finds that the legal regulation of the protection of critical facilities, set by the legislator and providing for the involvement of the Armed Forces of the Republic of Belarus, complies with the provisions of the Law on the Armed Forces and meets the constitutional provisions on safeguarding lawfulness and law and order (Article 1.3), protection of human life against any unlawful infringements (Article 24.2), as well as on the powers of the President of the Republic of Belarus to take measures on protection of sovereignty of the Republic of Belarus, its national security and territorial integrity, ensure its political and economic stability, (Article 79.2).

Based on the revealed constitutional and legal meaning of the Law the Constitutional Court finds that the Law is aimed at creating an appropriate legal framework adequate response to modern threats of terrorism and other socially dangerous activities based on the principles and rules of the Constitution in order to protect the rights, freedoms and legitimate interests of the individual, the constitutional order, independence and territorial integrity of the Republic of Belarus, ensure the security of society and state.

The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the competence under Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 98.1.1 of the Constitution.

Therefore, the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the content of rules, form of the act and procedure of adoption.

By virtue of Articles 116.1, 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 Addenda and Alterations to Certain Laws of the Republic of Belarus on Combating Terrorism” to be conforming to the Constitution of the Republic of Belarus.

2. The present Decision shall come into force from the date of its adoption.

3. To publish the present Decision in accordance with the legislation.