1 November 2019 № D-1196/2019
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, Deputy Chairwoman N.A. Karpovich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev, O.G. Sergeeva, 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 Amendments to the Law of the Republic of Belarus “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster” to the Constitution of the Republic of Belarus”.
Having heard the reporting judge A.G. Tikovenko, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Amendments to the Law of the Republic of Belarus “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster” to the Constitution 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 Law of the Republic of Belarus “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster” to the Constitution 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 2 October 2019, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 25 October 2019 and submitted for signing to the President of the Republic of Belarus.
The Law was adopted for the purpose of further improvement of the legal regime of the Pripyat Polesie area that is exposed to radioactive contamination as a result of the Chernobyl disaster in order to update their regime of use for economic and other activities as well as safeguarding the area with the goals of radionuclides nonproliferation and mitigation of harmful effects on human health and the environment.
When reviewing the constitutionality of the Law, the Constitutional Court reasons as follows.
- The Constitutional Court, based on the provisions of the Constitution, guided by Article 54.1 of the Law “On the Constitutional Proceedings”, reviews the constitutionality of the Law, taking into account the required supremacy and direct effect of the Constitution. In doing so the Constitutional Court assesses the compliance of the Law with the constitutional requirements in the light of the following:
constitutional recognition of the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (Article 2.1, Article 21.1 and Article 21.3 of the Constitution);
Article 8.1 of the Constitution, stating 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 provisions of the Constitution, providing for, that the exercise of the right of property shall not be contrary to social benefit and security, or be harmful to the environment or historical and cultural treasures, or infringe upon the rights and legally protected interests of others (Article 44.6); that the State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for development of all forms of ownership; regulate economic activities in the interests of the individual and society, and shall ensure the direction and co-ordination of state and private economic activity for social purposes (Article 13.2 and Article 13.5);
citizens of the Republic of Belarus shall be guaranteed the right to health care, which shall also be secured by measures to improve the environment (Article 45.1 and Article 45.3 of the Constitution)
Article 46 of the Constitution, stating that everyone shall have the right to a conducive environment and to a compensation for the loss or damage caused by violation of this right; that the State shall supervise the rational utilisation of natural resources to protect and improve living conditions, and to preserve and restore the environment;
that 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; that State bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect individual rights and freedoms (Article 59.1 and Article 59.2 of the Constitution).
- The revised Article 17 of the Law “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster” is set out with the goal of aligning it with the requirements of Decree of the President of the Republic of Belarus of 21 January 2013 № 41 “On the Polesie State Radioecological Reserve” taking into account the changes, implemented by the decree of the President of the Republic of Belarus of 6 November 2018 № 431 (Article 1.3 of the Law). In Article 17 the goals of establishing the Polesie State Radioecological Reserve (hereinafter – Reserve) are: the restriction of citizen’s access to the radioactively contaminated zones and territories from where the population had been evacuated; ensuring protection of the population from radiation; prevention of further spread of radionuclides; radiation monitoring; radio-ecological research; the study of flora and fauna, typical and unique ecosystems and landscapes, the natural flow of natural processes, typical of the Pripyat Polesie area (chapter 1). In chapter 9 of the same Article the main tasks of the institution, responsible for the Reserve’s management are defined: the prevention of transfer of radionuclides to neighboring territories activities; monitoring the changing radionuclides situation; the evaluation of the effects of radiation contamination on the flora and fauna, their habitat and environment; the preservation of natural complexes and objects, conditioning the natural flow; conducting scientific and experimental work.
The Constitutional Court notes that these provisions of the Law enshrining the goals of establishing of the preserve and outlining the tasks of implementing are aimed at ensuring radiation safety, guarantee human rights to health care and a conducive environment, as provided for in Articles 45 and 46 of the Constitution. They are also in compliance with international recommendations, including those enshrined in the UN General Assembly Resolution 71/125 “Persistent legacy of the Chernobyl disaster” of December 8, 2016, which focuses on sustained international cooperation and coordination of efforts in the matters of studying, mitigation and minimizing of the consequences of the Chernobyl disaster.
- The revised Article 17 of the Law “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster”, ensuring protection of the population from radiation, guaranteeing the human rights to health care and a conducive environment, provides for that the conservation area and the experimental economic zones are identified (chapter 6), that the list of activities which are permitted in these zones is defined (chapters 7 and 8).
In chapter 8 of Article 17 it is stated that, in the experimental economic zone, in addition to the actions permitted in the conservation area, also permitted are: intermediate felling and other logging procedures (if the radionuclides levels are compliant with the republican standards); prior to any logging procedures, the cutting of sample trees is done to test radionuclides levels, with the issuing of a permit; the building and service of permanent structures (buildings, structures), used in the protection of the Reserve; conducting scientific, experimental and economic activities; the realization of the afforestation and reforestation action plan; conducting pilot testing; sanitary and veterinary, medical and preventative as well as biotechnical activities with a view to prevent wild animals diseases; beekeeping; horse breading; tourism; horticulture; plant nurseries; the organization of hunting; animal dispersal and numbers regulation activities.
The expansion of the types of activities permitted by the Law in the Reserve with high levels of radiation contamination preconditions in the opinion of the Constitutional Court, determines the need for a special procedure for economic activity, which is to be based on the priority of human safety, prevention of harmful effect on human health and the environment as well as on a reasonable balance between private and public interests in the economic sphere and the field of environmental safety. The Constitutional Court notes that the law enforcement agencies (administrations of exclusion and resettlement zones; the Reserve’s administration), while carrying out their activities, should refer not only to the provisions of the national legislation but also take into account international treaties of the Republic of Belarus, acts constituting the law of the Eurasian Economic Union, including relevant technical regulations, other international legal acts in the field of radiation safety.
- In chapter 7 of Article 17 “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster” the types of scientific activities to be exercised on the territory of the reserve zone of the Polesie Reserve are defined so as to implement corresponding provisions of the Declaration of the International Conference “Chernobyl 30 Years Later: from an Emergency to the Revival and Sustainable Socio-Economic Development of the Affected Territories”, held on April 25, 2016 in Minsk. Activities on the territory of the reserve zone with regard to environmental monitoring, radiation safety, maintaining natural complexes and objects in a natural state, scientific research confirm the Reserve’s international scientific value, have important scientific significance in the field of environmental and radiation security both for the Republic of Belarus and for the whole world.
The Constitutional Court notes that the established legal regulation is aimed at the further development of international research cooperation in the field of environmental and radiation safety, at ensuring the realization of constitutional rights to health care and a conducive environment and is in accordance with Article 51.4 of the Constitution.
Thus, the provisions of the Law are aimed at updating the legal regime of the Reserve’s territory, creating legislative foundations for carrying out experimental and economic activities, taking into account radiation and environmental safety, carrying out of international scientific studies in environmental and radiation security; further strengthening the guarantees of constitutional human rights to health care and a conducive environment; achieving a reasonable and fair balance of environmental and economic interests when carrying out economic and other activities, that is consistent with the constitutional legal sense of Article 46 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 in accordance with Article 97.1.2 and Article 98.1.1 of the Constitution.
In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the contents of its rules, form of the act, procedure of its 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:
- To recognize the Law of the Republic of Belarus “On Amending the Law of the Republic of Belarus “On Legal Regime of Territories Affected by Radioactive Contamination as a Result of the Chernobyl Disaster” to be conforming to the Constitution of the Republic of Belarus.
- The present Decision shall come into force from the date of adoption.
- To publish the present Decision in accordance with legislative acts.
Presiding Officer –
Petr Miklashevich,
Chairman
Constitutional Court
Republic of Belarus