The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman P.P. Miklashevich, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, L.G. Kozyreva, V.N. Ryabtsev, L.M. 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 Amending the Laws”.

Having heard the reporting judge T.V. Voronovich, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Amending the Laws” 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 Amending the Laws” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 27 November 2019, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 3 December 2019 and submitted for signing to the President of the Republic of Belarus.

A number of codes and laws of the Republic of Belarus are hereby amended with a view to ensure more active and effective out-of-court dispute resolution, including mediation, in certain areas of public relations; to improve legislative regulation of marriage and family relations in the light of application of the Marriage and Family Code of the Republic of Belarus; to implement the provisions of international legal acts, safeguarding and protecting the rights and legitimate interests of children, including the Hague Convention on the Civil Aspects of International Child Abduction, in legislative acts.

When considering the constitutionality of the Law the Constitutional Court proceeds from the provisions of the Constitution:

declaring the Republic of Belarus to be a democratic, social state based on the rule of law (Article 1.1);

defining the individual, his rights, freedoms and guarantees to secure them to be the supreme value and goal of the society and the State (Article 2.1);

establishing that the Republic of Belarus shall be bound by the principle of supremacy of law, according to which 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. (Article 7.1, Article 7.2);

providing 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);

guaranteeing by the State 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 21.3);

envisaging everyone’s right to protection against unlawful interference with his private life (Article 28);

providing the State protection to marriage, family, motherhood, fatherhood, and childhood (Article 32.1) and the right and obligation of parents or persons acting as parents to raise their children and to take care of their health, development and education (Article 32.3);

establishing the State obligation to 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);

guaranteeing everyone’s protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law. (Article 60.1).

When reviewing the constitutionality of the Law the Constitutional Court, guided by article 54.1 of the Law on the Constitutional Proceedings determines whether the contents of the Law provisions, it form, delineation of competencies between state bodies and the procedure for adoption are conforming to the Constitution, international legal instruments, ratified by the Republic of Belarus. 

1. The Republic of Belarus as a social state based on the rule of law, where the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations are guaranteed; the legality and the rule of law are secured; 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, including the right to protection of his rights and freedoms by a competent, independent and impartial court on the basis of the adversarial proceedings and equality of the parties to the trial (Article 1.1, Article 1.3, Article 2.1, Article 21.3, Article 59.1, Article 60.1, Article 115.1 of the Constitution).

It follows from the above provisions of the Constitution that the legislator should create such legal mechanisms that will ensure an up to date, complete and effective protection of the rights and legitimate interests of citizens and legal entities through both justice that meets the requirements of equity and economy, and additional forms of protection, including out-of-court dispute resolution.

In order to improve the legal mechanisms for out-of-court dispute resolution the Law (articles 1 and 2, paragraphs 1–9 of article 3, paragraphs 4, 11 and 12 of article 4, paragraphs 2 and 3 of article 5, article 7) amends the Civil Code, the Economic Procedure Code, the Civil Procedure Code, the Tax Codes, the Marriage and Family Code of the Republic of Belarus (hereinafter – the MFC) and the Law of the Republic of Belarus “On Mediation”.

Thus, the Law provides that prior to filing a court action in a dispute between legal entities and (or) individual entrepreneurs, either a claim (a written suggestion about voluntary settlement) shall be laid or mediation shall be used, unless otherwise established by the Civil Code, other legislative acts or an agreement. The procedure for laying a claim, as well as the procedure for using and conducting mediation shall be established by law and (or) an agreement (article 10.2 of the Civil Code).

As the new wording of paragraph 1 of Article 401 of the Economic Procedure Code provides, a business (economic) dispute, arising from civil relations and being within the jurisdiction of the economic court, may be sent for resolution by the parties with a mediator (mediators) by written agreement of the parties or with their consent at the initiative of the court prior the court’s withdrawal to deliberation and delivery of a judgment on the merits of the dispute.

A similar rule enabling the parties to resolve a dispute with a mediator (mediators) prior the court’s withdrawal to deliberation and delivery of a court ruling is also provided for in a civil proceeding (article 391 of the Civil Procedure Code).

Article 6 of the MFC is hereby added with a provision establishing that if agreed by the parties, concerned persons shall be entitled to resolve a dispute involving a mediator (mediators) prior to filing a lawsuit against violation or contestation of rights arising from marriage and family relations.

The Law “On Mediation” enshrines the possibility of arranging an information meeting with a mediator (articles 1 and 91); stipulates the right of the parties to a mediation agreement to take the matter to court, under the procedure provided in civil or economic procedural legislation, to get a writ of execution to enforce the mediation agreement (article 15.4).

The Law regulates the procedure for issuance of a writ of execution to enforce the mediation agreement in civil proceedings (Chapter 351 of the Civil Procedure Code), and also specifies the relevant procedure in economic proceedings (article 2623 of the Economic Procedure Code).

Assessing the compliance of the above rules of the Law with constitutional provisions, the Constitutional Court holds that these amendments to legislative acts are aimed at empowerment of individuals, individual entrepreneurs and legal entities in choosing forms of protection of their rights and legitimate interests, and at improving existing legal mechanisms of mediation, thereby promoting effective restoration of the rights and ensuring the legitimate interests.

At that the established proceedings for issuance of a writ of execution to enforce the mediation agreement, based on Article 60.1 of the Constitution, have the object to ensure the legality and validity of the mediation agreement concluded by the parties. 

2. The rule of the Constitution stating that parents or persons acting as parents have the right and are obliged to raise their children and to take care of their health, development and education (Article 32.3) is the constitutional basis of legal relations the content of which is determined by parental rights and duties and corresponding rights and legitimate interests of children.

This constitutional rule corresponds to the provisions of certain international legal instruments that enshrined the right of the family to protection by society and the State; the need to protect any children in the case of dissolution of marriage; special measures of protection and assistance on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions (Article 16.3 of the Universal Declaration of Human Rights, Article 23.1 and Article 23.4 of the International Covenant on Civil and Political Rights, Article 10.3 of the International Covenant on Economic, Social and Cultural Rights).

As Article 3.1 and Article 3.2 of the Convention on the Rights of the Child provide, in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration; States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

On the basis of the interrelated provisions of the Constitution and international legal acts, the Law “On Amending the Laws” defines the consideration of the best interests of the child in the decisions concerning children, undertaken by the state bodies or other organisations, as one of the objectives of the legislation of the Republic of Belarus on marriage and family (article 1 of the Marriage and Family Code.

In view of that rule the MFC is amended to require a father not to suspend child support payments under a court ruling in case of a lawsuit against a record about parenting (article 58.4); to secure the right of parents, whether married or unmarried, to conclude a shared parenting agreement (article 761); to clarify the conditions and procedure for termination of parental rights and restoration thereof (articles 80.1 and 84); to allow for child support payments for the future (articles 104.4; 4.14; 4.16–4.18; 4.27) etc.

The Constitutional Court notes that the legislative regulation, established with a view to ensuring the primary consideration of the rights and legal interests of minors, is aimed at improving the legal mechanisms for protecting the constitutional rights of the child, creating appropriate conditions for their full exercise, fulfilling the international obligations of the Republic of Belarus in accordance with treaties concerning the rights and legitimate interests of children. 

3. According to the Constitution the citizen shall assume responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution (Article 2.2); children may be separated from their family against the will of their parents or persons acting as parents only according to a court decision if the parents or persons acting as parents fail to perform their duties (Article 32.4).

In light of those constitutional provisions the said Law (article 4.17) amends Article 80.1 of the MFC and stipulates that parental rights of the parents or of one of them in relation to a minor child may be terminated should they have been found to avoid their parental duties.

The Constitutional Court draws the attention of law-enforcement bodies to the relevance of a number of interrelated provisions of the Constitution and international legal acts in applying this legal rule.

The Constitution establishes that 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 21.3); 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); everyone shall have the right to protection against unlawful interference with his private life (Article 28).

In accordance with Article 9.1 of the Convention on the Rights of the Child States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject, to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

Based on the above provisions of the Constitution and the Convention on the Rights of the Child, the Constitutional Court notes that the termination of parental rights is an exceptional (extreme) measure of family law responsibility, that such measure entails serious legal effects not only for parents, but also for their minor children. In this regard, when deciding on the termination of parental rights, it is necessary to proceed from whether the parents are guilty and from the evidence of that other measures have not forced the parents to perform their parental duties in the required way, and besides from the fact that family connection between parents and their minor children have been lost and it is impossible to otherwise protect the rights and legitimate interests of the child guaranteed by the Constitution. 

4. The Law (article 4.18) sets out the article 84 of the MFC in a new wording and determines that restoration of parental rights shall be carried out only by a court of law at the suit of a person whose parental rights have been terminated, but not earlier than at the end of the 6-month period after the date of entry into force of the court ruling on the termination (paragraph one). When bringing and considering a suit for restoration of parental rights the opinion of the child shall be taken into account. When restoring parental rights in respect of a child who has reached the age of ten years, his or her consent is required (paragraph two).

The Constitutional Court holds that the purpose of restoring parental rights is to reestablish the child’s natural and necessary connection with his (her) parents. Such purpose indicates that the provided legislative regulation is aimed at the implementation of the constitutional provision on the State’s protection of marriage, family, motherhood, fatherhood and childhood (Article 32.1 of the Constitution).

The Constitutional Court also notes that the new wording of the article 84 of the MFC implements the provisions of the Convention on the Rights of the Child envisaging the child’s opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law (Article 12.2).

As it was emphasised by the UN Committee on the Rights of the Child in its General Comment no. 12 (2009) “The right of the child to be heard”, article 12 of the Convention on the Rights of the Child imposes no age limit on the right of the child to express her or his views, and discourages States parties from introducing age limits either in law or in practice which would restrict the child’s right to be heard in all matters affecting her or him. (paragraph 21).

The specified legal rule governing the restoration of parental rights thereby allows to fully ensure the consideration of minor children’s interests, so it is consistent with the abovementioned provisions of the Constitution and international legal instruments. 

5. According to the Constitution, parents or persons acting as parents have the right and are obliged to raise their children and to take care of their health, development and education (Article 32.3). 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).

These constitutional rules are consistent with the provisions of article 27 of the Convention on the Rights of the Child, envisaging that States Parties recognise the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development (paragraph 1);  the parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child's development (paragraph 2).

The Constitutional Court notes that one of the ways to implement the above provisions of the Constitution and the Convention on the Rights of the Child is to provide by law the child’s right to support payments, being of particular social importance, since the regular payments receipt may be one of the main means of existence for minor children. In this regard, the Republic of Belarus, as a social state based on the rule of law, shall guarantee adequate protection of the rights and legitimate interests of minor children. All that in compliance with the principles of equity, equality, proportionality, stability, following from the provisions of the Constitution and the Convention on the Rights of the Child, require the improvement of legal mechanisms designed to guarantee an adequate standard of living for the support beneficiary – a minor child.

With a view to guarantee the exercise of the minor children rights to support, the Law specifies that support payments shall be granted monthly, unless otherwise provided by the marriage agreement, the shared parenting agreement, and the agreement on support payments. The Law amends the approaches to debt estimate relating to support payments within an unemployment period of a debtor or when a debtor was not able to present documents confirming his earnings and (or) other income (based on the average minimum subsistence budget per capita) (articles 4.27 and 4.28).

In the Constitutional Court opinion, in this respect the provisions of the Law are aimed at securing, at the maximum extent possible, the child’s previous level of support, subject to a balance of interests of minor children and their parents in the framework of support relations.

The Law (article 4.28) establishes the amount of child support payments to be repaid for a period when a debtor was in the Armed Forces of the Republic of Belarus, other troops and military units in basic military service, alternative service. Where the amount of child support payments is not determined by the marriage agreement, the shared parenting agreement and the agreement on support payments, the payments shall amount to 25 % of the actual income earned for one child, 33 % of it for two children, 50 % of it for three or more children. At the same time, an exception is established from the provision of article 92.1 of the MFC providing for the minimum amount of child support payments (articles 110.6: 110.7 of the MFC).

The provided regulation is aimed, in the Constitutional Court opinion, to ensure a fair balance of the rights and legitimate interests of persons obliged to pay child support in view of their simultaneous constitutional duties to be fulfilled: taking care of the health, development and education of a child (Article 32.3 of the Constitution) and doing military or alternative service (Article 57.2 of the Constitution). 

6. The Law (article 4.32) grants the guardianship in relation to adults who suffer from psychic problems (mental illnesses) or who abuse alcohol, drugs, psychotropic substances, their analogues, for the purpose of caring for such adults who may need a guardian, preparing the necessary materials for initiating legal proceedings for their incapacity or limited capacity and taking part therein – to the structural units of regional executive committees, Minsk city executive committee having public authority over healthcare, healthcare management; in relation to legally incapacitated or persons of limited capacity – to the structural units of regional, city, district executive committees, local administrations of districts in cities having public authority over labour, employment and social protection, housing and public services, as well as to the territorial centers of social public services (paragraphs 3–5 of article 143.2 of the MFC).

Proclaiming the individual, his rights, freedoms and guarantees to secure them to be the supreme value and goal of the society and the State, the Constitution guarantees everyone’s right to protection against unlawful interference with his private life; stipulates everyone’s obligation to respect dignity, rights, freedoms and legitimate interests of others; provides 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 (articles 2.1; 28; 53; 59.1).

As the Universal Declaration of Human Rights (articles 1, 6, 7, 12 and 17) and the International Covenant on Civil and Political Rights (articles 16, 17 and 26) prescribe, all human beings are born free and equal in dignity and rights, and have the right to recognition everywhere as a person before the law, and are entitled without any discrimination to equal protection of the law. They also envisage that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation., and no one shall be arbitrarily deprived of his property.

The Constitutional Court notes that authorising the structural units of executive committees and healthcare organisations with care of those adults who need guardianship, with preparation of the necessary materials for initiating legal proceedings for their incapacity or limited capacity, is based on the above provisions of the Constitution and international legal acts.

7. The Constitution establishes 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); motherhood, fatherhood, and childhood shall be under the protection of the State (Article 32.1); everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law (Article 60.1); the courts shall administer justice on the basis of the Constitution and other normative acts adopted in accordance therewith (Article 112.1).

The Republic of Belarus, as a sovereign state based on the rule of law, voluntarily committed itself to fulfill in good faith the provisions of the international legal instruments it ratified.

Articles 3 and 4 of the Convention on the Rights of the Child stipulate that for States parties in all actions concerning children the best interests of the child shall be a primary consideration;  States Parties shall undertake to ensure the child such protection and care as is necessary for his or her well-being, States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights of the child.

The objects of the Convention on the Civil Aspects of International Child Abduction (hereinafter – the Convention) are to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.

A number of provisions of the Law, governing civil law relations related to the international child abduction, are aimed at implementing the above provisions of the Constitution and international legal acts

According to article 3.10 of the Law the Civil Procedure Code is added the Chapter 282 regulating the proceedings on the return of the child or the exercise of the right of access. Thus, cases of the return of a child wrongfully removed to or retained in the Republic of Belarus or of the exercise of the right of access under the Convention shall be considered by the court in adversary proceedings in the compulsory presence of the prosecutor and the representative of the guardianship (articles 3349.1 and 3349.2 of the Civil Procedure Code).

The MFC is added the article 2351, which enshrines the right of a parent or another person, awarded custody or access rights in respect of the child, to claim for the return of a child wrongfully removed to or retained or for the exercise of the right of access under the Convention (article 4.43 of the Law).

The article 285.1 of the Tax Code is added subparagraph 1.1.15, which provides for exemption of the state fees when applications for the return of a child wrongfully removed to or retained or for the exercise of the right of access under the Convention are filed to a court (article 5.1 of the Law).

Thus, in the Constitutional Court opinion, the regulation established by the Law, is based on the provisions of the Constitution, international legal acts and is aimed at fulfilling the international obligations of the Republic of Belarus regarding the civil aspects of international child abduction. 

8. The Constitutional Court draws attention to that the protection of everyone’s rights and freedoms determines the legislative regulation of public relations in the relevant field, in which other constitutional values, including the rights and freedoms of others, would not be violated.

The Law (article 6.4) amends the Law of the Republic of Belarus “On the Procedure for Exit from the Republic of Belarus and Entry into the Republic of Belarus of the Citizens of the Republic of Belarus”. These amendments provide, inter alia, a temporary restriction on the right to leave the Republic of Belarus if a person is a defendant in a case of the return of a child wrongfully removed to or retained in the Republic of Belarus or of the exercise of the right of access under the Convention, or a child in respect of whom the case is being considered.

The Constitutional Court notes that the legal grounds provided for in this Law for the restriction of the rights and freedoms of citizens are consistent with the provisions of the Civil Procedure Code, including Article 33410. According to these provisions the court, where necessary, along with other measures under Chapter 25 of the Civil Procedure Code, may prohibit the defendant to change the place of residence (place of stay) of the child and may temporarily restrict the defendant’s and (or) child’s right to leave the Republic of Belarus prior to the entry into force of a court ruling in the case of the return of a child or the exercise of the right of access.

In the Constitutional Court opinion the reviewed provisions of the Law are aimed at ensuring the principle of legal certainty in the implementation of legislative regulation as the most important component of the rule of law, which implies the logical consistency of legal rules and their unambiguous understanding, as well as uniformity and predictability of law enforcement practice.

In addition, to a certain extent the above provisions of the Law affect the constitutional right of the citizens of the Republic of Belarus to leave freely the Republic of Belarus and to return thereto without hindrance (Article 30 of the Constitution).

The citizens of the Republic of Belarus shall have the right to move freely and choose their place of residence within the Republic of Belarus, to leave it and to return thereto without hindrance.

According to the Constitution restriction of personal rights and freedoms shall be permitted only in the instances specified by law, in the interests of protection, inter alia, of the rights and freedoms of other persons (Article 23.1).

As the legal positions developed by the Constitutional Court provide, restriction by the law of personal rights and freedoms shall be permissible only where it meets simultaneously the criteria of proportionality of restrictions to constitutionally determined interests and prevention of the real content of the law to be lost.

The Constitutional Court holds that the restrictions imposed by the Law are based on the constitutional provision on the citizen’s responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution (Article 2.2 of the Constitution). Those restrictions focus on the protection of the rights and freedoms of other persons through the establishment of a legal mechanism to ensure the State’s protection of the family, motherhood, fatherhood, and childhood, thereby conforming to Article 23.1 of the Constitution. 

9. As it was set out in a number legal positions in the decisions of the Constitutional Court, the constitutional everyone’s right to protection by a court

Includes not only the right to apply to court, but also to the timely and full enforcement of court rulings in order to get effective protection by restoring violated rights and freedoms in compliance with the law.

Article 8.2 of the Law provides for a new wording of article 115 of the Law of the Republic of Belarus “On Enforcement Proceedings”. The procedure relating to the enforcement of the enforceable documents on the transfer or removal of a child, contact with a child, parenting , his (her) return to or exercise of the right of access is determined therein, as well as the procedure relating to the enforcement of the enforceable documents on the return of a child wrongfully removed to or retained in the Republic of Belarus or of the exercise of the right of access under the Convention.

The Constitutional Court believes that the above provisions of the Law are aimed at ensuring the constitutional principle of binding nature of court rulings

for all the citizens and officials, thereby realising everyone’s constitutional right of protection by a court that acts as a guarantee to secure other constitutional personal rights and freedoms (Article 115.2, Article 60.1 of the Constitution).

The Constitutional Court considers that the content of the Law is aimed at ensuring the legal conditions for active mediation to be used in out-of-court dispute resolution; improving the legislative regulation of public relations connected with the exercise of parental rights and duties, rights and legal interests of minors.

The Law has been adopted by the House of Representatives of the National Assembly of the Republic of Belarus within its competence in accordance with Article 97.1.2 of the Constitution, and 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 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, delineation of competence between state bodies and 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:

1. To recognise the Law of the Republic of Belarus “On Amending the Laws” 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 legislative acts.

Presiding Officer –

Petr Miklashevich,

Chairman

Constitutional Court

Republic of Belarus