11 July 2016 № D-1063/2016
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 Alterations and Addenda to Certain Laws of the Republic of Belarus on Forced Migration”.
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 Certain Laws of the Republic of Belarus on Forced Migration” 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 Certain Laws of the Republic of Belarus on Forced Migration” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 28 June 2016, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 30 June 2016 and submitted for signing to the President of the Republic of Belarus.
The Law introduces alterations and addenda to the laws of the Republic of Belarus “On Social Services”, “On Citizenship of the Republic of Belarus”, “On State Dactyloscopy”, “On Legal Status of Foreign Nationals and Stateless Persons in the Republic of Belarus”, “On Combating Human Trafficking”. The Law of the Republic of Belarus “On Granting Refugee Status, Complementary and Temporary Protection in the Republic of Belarus to Foreign Nationals and Stateless Persons” has been hereby amended and restated in its entirety to read as the Law of the Republic of Belarus “On Granting Refugee Status, Complementary Protection, Asylum and Temporary Protection in the Republic of Belarus to Foreign Nationals and Stateless Persons” (hereinafter – the Law on the Protection of Refugees).
When reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
1. It is established in the Constitution 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 (Article 8.1); foreign nationals and stateless persons in the territory of Belarus shall enjoy the rights and freedoms and execute duties on equal terms with citizens of the Republic of Belarus, unless otherwise specified by the Constitution, laws and treaties (Article 11); the Republic of Belarus may grant the right of asylum to persons persecuted in other states for political or religious beliefs or their ethnic identity (Article 12); in its foreign policy the Republic of Belarus shall proceed from the principles of equality of states, non-use of force or threat of force, inviolability of frontiers, peaceful settlement of disputes, non-interference in internal affairs and other generally recognised principles and norms of the international law (Article 18.1).
The Universal Declaration of Human Rights stipulates, in particular, eeveryone’s right to leave any country, including his own, and to return to his country (Article 13.2); everyone’s right to seek and to enjoy in other countries asylum from persecution (Article 14.1). It is recognised in the preamble of the Declaration on Territorial Asylum, adopted by the Resolution 2312 (XXII) of the United Nations General Assembly of 14 December 1967, that the grant of asylum by a State is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State.
By virtue of the mentioned constitutional and international legal provisions the Republic of Belarus has the right to grant refugee status, complementary protection, asylum and temporary protection to foreigners where they leave their country of nationality (origin) for the territory of the Republic of Belarus due to well-founded reasons to fear persecution on political, social, religious or ethnic grounds. It is within this state power the constitutional principle of humanism declares itself, arising from the provisions of the Constitution, according to which 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); the State shall safeguard personal liberty, inviolability and dignity (Article 25.1). In view of Article 11, Article 97.1.2 of the Constitution the legislator is entitled to consider draft laws, including those on status of foreigners and stateless persons. It also falls within its competence to establish a residence regime for individuals, who have been granted refugee status, complementary protection, asylum and temporary protection in the Republic of Belarus.
2. Article 1 of the Law on the Protection of Refugees lays down that if a treaty of the Republic of Belarus establishes otherwise than stipulated by the Law, the rules of the treaty shall apply except in the case envisaged in Article 1.3 (Article 1.2); if the present Law and (or) other legislative acts of the Republic of Belarus provide for a greater scope of legal, economic and social guarantees granted to protect rights and legitimate interests of foreigners seeking protection and of those who have been granted refugee status, complementary protection, asylum or temporary protection in the Republic of Belarus, than stipulated by treaties of the Republic of Belarus, the provisions of this Law and (or) other legislative acts of the Republic of Belarus shall apply (Article 1.3).
The Constitutional Court notes that the provision of Article 1.2 of the said Law is consistent with Article 8.1 of the Constitution establishing 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; it is also in line with the generally recognised principle of international law pacta sunt servanda, stipulated in Article 26 of the Vienna Convention on the Law of treaties of 23 May 1969, according to which every treaty in force is binding upon the parties to it and must be performed by them in good faith.
The provision of Article 1.2 of the said Law is also consistent with Article 2.1 of the Constitution as well as with the approach laid down in paragraph 23 of the World Summit Outcome “Transforming our World: the 2030 Agenda for Sustainable Development”, adopted by the Resolution 70/1 of the UN General Assembly on 25 September 2015, suggesting that people who are vulnerable including refugees, internally displaced persons and migrants must be empowered.
In addition, legal regulation envisaged by Article 1.2 of the Law on the Protection of Refugees is in line with Article 5.2 of the International Covenant on Civil and Political Rights, according to which there shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any State Party to the Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognise such rights or that it recognises them to a lesser extent. According to the Constitutional Court from the provisions of the Covenant arises the right of the state to stipulate in domestic law a greater scope of rights and freedoms than in international instruments.
3. In accordance with Article 4 of the Law Article 3 of the Law on the Protection of Refugees stipulates that the Republic of Belarus may not grant refugee status, complementary protection, asylum and temporary protection to foreigners in respect of whom there are objective reasons for considering that they have committed crimes against peace, war crimes or crimes against humanity as defined in the international instruments adopted in order to implement measures against such crimes; serious non-political crimes outside the Republic of Belarus before arriving in its territory; or who are guilty of acts contrary to the purposes and principles of the United Nations; as well as to those recognised by the competent authorities of the country, in which they have taken permanent residence and which is not a country of their nationality, as having the rights and obligations that are attached to the possession of the nationality of that country (Article 3.1).
In Article 3 of the Law on the Protection of Refugees it is also provided that refugee status, complementary and temporary protection may not be granted to those foreigners who are receiving from organs or agencies of the United Nations other than the United Nations Office of the High Commissioner for Refugees protection or assistance (Article 3.2); provisions of Article 3.2 shall not apply to foreigners when such protection or assistance has ceased without the position of such persons being definitely settled in accordance with the relevant resolution of the United Nations General Assembly (Article 3.3).
The Constitutional Court notes that the said provisions in Article 3 of the Law on the Protection of Refugees are in line with Article 8.1 of the Constitution as well as with sections «D», «E», «F» of Article 1 of the Convention Relating to the Status of Refugees of 28 July 1951 and are aimed at implementation of Article 59.1 of the Constitution according to which 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.
4. The legislator has laid down in Article 5.1 of the Law on the Protection of Refugees that may not be expelled from the Republic of Belarus in the foreign country those foreigners who apply for protection; who have been granted refugee status, complementary protection, asylum or temporary protection; whose applications for protection have been dismissed; who have been refused refugee status and complementary protection; who have been refused to renew their complementary protection; who have lost refugee status, complementary protection or asylum; whose refugee status or complementary protection have been annulled; whose asylum has been ceased where their lives or freedom would be threatened on account of race, religion, citizenship, nationality, membership of a particular social group or political opinion. Neither may they be expelled to a foreign country where they would be threatened on account of the death penalty, or their lives being threatened due to violence in both international and non-international armed conflict. According to Article 5.3 the benefit of this provision may not, however, be claimed by foreigners being a danger to the national security of the Republic of Belarus or having been convicted of a crime referred to in the Criminal Code of the Republic of Belarus as a very serious crime (Article 4 of the Law).
Thereat Article 5.4 of the Law outlines a new version of Article 171 of the Law of the Republic of Belarus “On Legal Status of Foreign Nationals and Stateless Persons in the Republic of Belarus” (hereinafter – the Foreigners Law). The article specifies the circumstances under which foreigners may not be expelled from the Republic of Belarus. Articles 171.1 and Article 171.3 of the mentioned Law establish the provisions concerning foreigners that are similar to the provisions of Article 5.1 and Article 5.3 of the Law on the Protection of Refugees.
The Constitutional Court deems that Article 5.1 of the Law on the Protection of Refugees and Article 171.1 of the Foreigners Law are consistent with Article 2.1 of the Constitution. As to the third parts of these articles they conform to the constitutional rule stipulating possible restriction of personal rights and freedoms 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 of the Constitution). They also meet international approaches set out in Article 3 of the Declaration on Territorial Asylum, according to which no person seeking asylum shall be subjected to measures such as expulsion or compulsory return to any State where he may be subjected to persecution; exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population (paragraphs 1 and 2).
Moreover Article 5.2 of the Refugee Law provides that may not be expelled from the Republic of Belarus in the foreign country those foreigners who apply for protection; who have been granted refugee status, complementary protection, asylum or temporary protection; whose applications for protection have been dismissed; who have been refused refugee status and complementary protection; who have been refused to renew their complementary protection; who have lost refugee status, complementary protection or asylum; whose refugee status or complementary protection have been annulled; whose asylum has been ceased where they would be threatened on account of tortures. Article 171 of the Foreigners Law stipulates a provision concerning foreigners similar to the mentioned provision of Article 5 of the Law on the Protection of Refugees.
The Constitutional Court notes that legal regulation established by the Law is consistent with Article 8.1 of the Constitution as well as with the requirement of Article 3.1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, pursuant to which no State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
5. It is established in Article 20 of the Law on the Protection of Refugees that a foreigner who has been granted refugee status shall be entitled inter alia to medical care on equal terms with the citizens of the Republic of Belarus, as well as to education on equal terms with the citizens of the Republic of Belarus unless otherwise provided by the legislative acts and treaties of the Republic of Belarus. According to Article 26 of this Law similar rights shall be provided to foreigners who have been granted asylum (Article 4 of the Law).
The Constitutional Court notes that such approach of the legislator is based on the rule of Article 11 of the Constitution, which provides that fforeign nationals and stateless persons in the territory of Belarus shall enjoy the rights and freedoms on equal terms with the citizens of the Republic of Belarus; it also develops the provisions of the Constitution guaranteeing citizens the right to health care (Article 45.1), everyone’s right to education (Article 49) as well as implements a generally recognised principle of humanism.
6. According to the Law (Article 4) the Law on the Protection of Refugees stipulates that asylum shall be granted to a foreigner by the decision of the President of the Republic of Belarus if there are grounds for the purpose. In Article 4.2 it is defined that asylum shall not be granted particularly to a foreigner being a danger to the national security of the Republic of Belarus; having been convicted in the Republic of Belarus of a crime with the exception of convicts without sentencing or sentenced to deprivation of the right to occupy determined posts or to engage in a determined activity, the conviction being not released or served; being or having been a person who carries out extremist, including terrorist activities, being or having been involved in activities aimed at damaging the national security of the Republic of Belarus, in illegal trafficking in weapons, ammunition, explosives, explosive devices, objects with explosive power based on use of flammables, in radioactive materials, narcotic drugs, psychotropic substances, precursors and analogues, in organisation of illegal migration, human trafficking (Article 54.1).
The Constitutional Court considers that these measures are aimed at protecting rights and freedoms of the citizens of the Republic of Belarus and that they are in line with Article 59.1 of the Constitution, according to which 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. By the way possible nongranting of asylum to a foreigner being a danger to the national security of the Republic of Belarus is based on the constitutional rule which establishes that the President of the Republic of Belarus shall inter alia take measures on protection of the national security of the Republic of Belarus (Article 79.2).
7. In accordance with Article 4 of the Law the Law on the Protection of Refugees specifies the grounds for loss of refugee status, complementary protection or asylum by a foreigner. It also envisages a provision justifying refugee status and complementary protection annulled and asylum ceased (Articles 65–67).
The Constitutional Court notes that according to the UNHCR Executive Committee Conclusions on International Protection No. 96 (LIV) – 2003 any return of persons should be undertaken in a humane manner, in full respect for human rights and dignity and, in all actions concerning children, the best interests of the child shall be a primary consideration.
Taking into account the relevant international legal instruments that require the rights of the child to protection and assistance to be of special concern the Constitutional Court finds that in deciding on loss or annulment of refugee status or complementary protection as well as loss or cease of asylum as regards foreigners having children as their dependents the law-enforcement bodies should be guided by the principle of the best interests of the child.
8. 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 emphasised that the rule of law includes a number of elements including legal certainty, which implies clarity, accuracy, consistency and logical coherence of legal rules. The compliance with the legal certainty principle in rule-making provides conditions for uniform and predictable law-enforcement that increases the confidence of citizens in the State.
The Law introduces alterations and addenda to the laws of the Republic of Belarus “On Social Services”, “On Citizenship of the Republic of Belarus”, “On State Dactyloscopy”, “On Legal Status of Foreign Nationals and Stateless Persons in the Republic of Belarus”, “On Combating Human Trafficking” which specify the rights and obligations of those foreigners who have been granted refugee status, complementary protection, temporary protection and asylum.
All the forms of refugees protection (refugee status, complementary protection, asylum and temporary protection) specified in the Law on the Protection of Refugees, as well as amendments of other laws of the Republic of Belarus with a view to harmonise the terminology used therein with the terminology of the mentioned Law meet the principle of legal certainty.
Proceeding from the revealed constitutional legal meaning of the Law the Constitutional Court finds that the Law is aimed at creating an appropriate legal basis for granting assistance to forced migrants in accordance with international instruments, as well as at improving the efficiency of law-enforcement in the fight against illegal immigration and, as a consequence, at maintaining lawfulness and law and order pursuant to the requirements of Article 1.3 of the Constitution.
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 Forced Migration” 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 Miklashevich,
Chairman of the Constitutional Court
of the Republic of Belarus