8 July 2019 № D-1180/2019
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman N.A. Karpovich, judges A.N. Bodak, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev,
L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov
in accordance with Article 116.1 of the Constitution of the Republic of Belarus (hereinafter – the Constitution), 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 considered the case on constitutionality of the Law of the Republic of Belarus «On Making Amendments to the Criminal Code of the Republic of Belarus» in the exercise of obligatory preliminary review.
Having heard the reporting judge T.V. Voronovich, having analysed the provisions of the Constitution, the Law of the Republic of Belarus «On Making Amendments to the Criminal Code of the Republic of Belarus» 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 Amendments to the Criminal Code of the Republic of Belarus» (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 13 June 2019 and was approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 27 June 2019 and was submitted to the President of the Republic of Belarus for signing.
The Law makes amendments to certain articles of the Criminal Code of the Republic of Belarus» (hereinafter – the Code) and introduces rules establishing criminal liability for inducing an athlete to use prohibited substances and methods in sports, for the intentional use of such substances and methods in relation to an athlete.
- The Constitutional Court considers the constitutionality of the Law proceeding from the provisions of the Constitution stipulating that:
the Republic of Belarus is a unitary, democratic, social state based on the rule of law (Article 1.1);
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);
the Republic of Belarus shall be bound by the principle of supremacy of law; the State and all the bodies and officials thereof shall operate within the confines of the Constitution and acts of legislation adopted in accordance therewith (Articles 7.1 and 7.2);
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);
the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and the laws, and specified by the State's international obligations (Article 21.3);
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 (Article 59.1).
While considering the constitutionality of the Law, the Constitutional Court, guided by Article 54.1 of the Law “On the Constitutional Proceedings”, establishes its compliance with the Constitution, international legal instruments ratified by the Republic of Belarus in terms of its content, form, delineation of competence between state bodies and the procedure for its adoption.
- The Constitution enshrines that the Republic of Belarus is a unitary, democratic, social state based on the rule of law (Article 1.1) where 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 the 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 in 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 Constitution also provides that the citizen shall assume responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution; everyone in the territory of the Republic of Belarus shall abide by its Constitution and laws and respect national traditions; everyone shall respect the dignity, rights, liberties and legitimate interests of others (Articles 2.2, 52 and 53).
In the opinion of the Constitutional Court, the legislator, based on these constitutional provisions and in accordance with Articles 97.1.2 and 98.1.1, is entitled at the legislative level to determine what socially dangerous acts shall be considered as crimes, to establish the grounds and conditions of criminal liability, to establish punishments and other measures of criminal liability that may be applied to persons who have committed crimes.
At the same time, according to the Constitutional Court, the measures of criminal liability established in the criminal law shall have a reasonable restraining potential sufficient to comply with the relevant prohibitions so that their application meets the purpose of state coercion, which, within the meaning of Articles 1.1, 2.1, 21.1 and 23.1 of the Constitution includes, among other things, the preventive use of its legal means to protect human and citizens’ rights and freedoms and other constitutional values.
- According to the Constitution, everyone has the right to life; the State shall protect life of the individual against any unlawful infringements; citizens of the Republic of Belarus shall be guaranteed the right to health care; the right of citizens of the Republic of Belarus to health care shall also be secured by the development of physical training and sport (Articles 24.1, 24.2, 45.1 and 45.3).
According to the Law (Article 1.3), the Criminal Code is supplemented by Article 3311 “Inducing an Athlete to Use a Substance and/or Method Included in the Republican List of Prohibited Substances and Methods in Sports” and Article 3312 “Intentional Use of a Substance and/or Method Included in the Republican List of Prohibited Substances and Methods in Sports in Relation to an Athlete”.
The provisions of the Law in this aspect are also based on the provisions of a number of international legal instruments ratified by the Republic of Belarus.
The Anti-Doping Convention (1989) stipulates that the Parties shall adopt where appropriate legislation, regulations or administrative measures to restrict the availability as well as the use in sport of banned doping agents and doping methods (Article 4.1); to this end, they shall encourage their sports organisations to clarify and harmonise their respective rights, obligations and duties, in particular by harmonising their procedures for the imposition of effective penalties for officials, doctors, veterinary doctors, coaches, physiotherapists and other officials or accessories associated with infringements of the anti-doping regulations by sportsmen and sportswomen (Article 7.2.e).
In accordance with Article 9 of the International Convention against Doping in Sport 2005, States Parties shall themselves take measures or encourage sports organisations and anti-doping organisations to adopt measures, including sanctions or penalties, aimed at athlete support personnel who commit an anti-doping rule violation or other offence connected with doping in sport.
Pursuant to Article 21 of the World Anti-Doping Code 2015, Athlete Support Personnel shall be knowledgeable of and comply with all anti-doping policies and rules adopted pursuant to the Code and which are applicable to them or the Athletes whom they support; they shall use his or her influence on Athlete values and behavior to foster anti-doping attitudes (Articles 21.2.1 and 21.2.3).
The Constitutional Court notes that the public danger of doping in sport, considered in accordance with Article 49.1 of the Law of the Republic of Belarus “On Physical Culture and Sport” as one or more violations of anti-doping rules established by the Regulation on Anti-Doping Rules of the Republic of Belarus based on the World Anti-Doping Code, lies in the fact that the use of doping damages the ideology of sport and leads to the loss of its values and also poses a real threat to the health of athletes.
Thus, the establishment of criminal liability for crimes related to doping in sport is based on the constitutional provisions and international legal instruments, is left up to the discretion of the Parliament and is aimed at protecting the values and ideology of sports, the health of athletes against criminal attacks.
- The Law (Article 1.1) makes an addendum to Article 130 of the Criminal Code, which, along with the stipulated liability for intentional acts aimed at inciting racial, national, religious or other social hostility or hatred based on racial, national, religious, linguistic or other social affiliation, establishes responsibility for deliberate actions for the rehabilitation of Nazism.
According to the Resolution 73/157 adopted by the UN General Assembly on 17 December 2018 “Combating glorification of Nazism, neo-Nazism and other practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance” the General Assembly encourages States to take appropriate concrete measures, including legislative and educational ones, in accordance with their international human rights obligations, in order to prevent revisionism in respect of the Second World War and the denial of the crimes against humanity and war crimes committed during the Second World War (para 18).
The Constitutional Court considers that the establishment of criminal liability for the public rehabilitation of Nazism is caused by an increased degree of danger of such activities, which are aimed at changing the consciousness and will of a significant number of people, replacing their values, forming the feeling of social hostility, inciting to socially destructive behavior.
In that way, the reviewed provision of the Law establishes criminal liability for the rehabilitation of Nazism as one of the most dangerous manifestations of extremism, which corresponds to the constitutional provisions on the prohibition of propaganda of social, national, religious and racial hatred (Article 5.3), on the recognition by the Republic of Belarus of the supremacy of generally recognised principles of international law and ensuring compliance of laws therewith (Article 8.1).
- The Law (Article 1.2) provides for the mitigation of criminal liability for certain crimes related to the illicit trafficking of narcotic drugs, psychotropic substances, their precursors and analogues: minimum custodial penalties for crimes under Article 328.2 of the Criminal Code have been reduced from 5 to 3 years, and for crimes under Article 328.3 of the Criminal Code – from 8 to 6 years.
The Constitutional Court notes that this legal rule is aimed at ensuring the individualisation of criminal liability and proportionality of criminal legal consequences for a person who is prosecuted, for harm caused as a result of his unlawful actions, and it is consistent with the provisions of Articles 1.3 and 2.2 of the Constitution stipulating that the Republic of Belarus shall safeguard lawfulness and law and order and that the citizen shall assume responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution.
The Constitutional Court considers that the content of the reviewed Law, proceeding from the rule of law and the supremacy of the Constitution, is aimed at further strengthening of the legality and legal order, effective performance of the tasks of the criminal law at the present stage of development of society and the state in order to guarantee and protect the constitutional rights and freedoms of individuals.
The Law was adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the framework of powers in accordance with Article 97.1.2 of the Constitution and was 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.
In the light of the foregoing, the Constitutional Court comes to the conclusion that from the point of view of the content of the rules, the form of the act, the procedure for its adoption, the Law is conforming to the Constitution.
By virtue of Articles 116.1 and 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:
- To recognise the Law “On Making Amendments to the Criminal Code of the Republic of Belarus” to be conforming to the Constitution of the Republic of Belarus.
- The present Decision shall come into force from the date of its adoption.
- To publish the present Decision in accordance with the legislative acts.
Presiding Officer –
Petr Miklashevich,
Chairman of the Constitutional Court
of the Republic of Belarus