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.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 the Genocide of the Belarusian people”.

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 the Genocide of the Belarusian people”, 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 the Genocide of the Belarusian people” (hereinafter, the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 14 December 2021, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 22 December 2021 and submitted for signing to the President of the Republic of Belarus.

The pending Law was adopted to preserve historical memory, counteract the falsification of events and outcomes of the Second World War and strengthen national security.

1. Within the framework of its competence the Constitutional Court exercises obligatory preliminary constitutional review and examines the constitutionality of the Law based on the rules of the Constitution, according to which:

the People of the Republic of Belarus (of Belarus) recognise themselves a full-fledged subject of the international community and confirm their adherence to the values common to all mankind (third paragraph of the preamble);

the Republic of Belarus is a democratic, social state based on the rule of law; it shall safeguard lawfulness and law and order (articles 1.1; 1.3);

the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State; safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (articles 2.1; 21.1);

any actions aimed at changing the constitutional system and seizing state power by forcible means or by way of any other violation of laws of the Republic of Belarus shall be punishable by law (Article 3.2);

the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1);

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 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);

the State shall assume responsibility before the citizen to create the conditions for free and dignified development of his personality; the citizen shall assume responsibility before the State to discharge unwaveringly the duties imposed upon him by the Constitution, including obligations to observe the Constitution and laws and respect rights, freedoms and legitimate interests of others (articles 2.2; 52; 53);

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).

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.

2. The preamble to the Law notes that it was adopted to commemorate the millions of Soviet citizens who had lived in Belarus and become victims during the Great Patriotic War (1941–1945) and the post-war period, in accordance with the Constitution of the Republic of Belarus, as well as on the basis of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 26 November 1968. The Law is also aimed to protect the fundamental values of the Belarusian people at the legislative level, to prevent attempts to falsify the events and outcomes of the Second World War, to assess fairly the atrocities of Nazi war criminals and their accomplices, nationalist units during the Great Patriotic War and the post-war period.

In article 1 of the Law, the genocide of the Belarusian people means any of the atrocities, committed by Nazi war criminals and their accomplices, nationalist units during the Great Patriotic War and the post-war period, with intent to physically destroy the Belarusian people by deliberate murder and other actions recognised as genocide under legislative acts and international law.

For the purposes of the Law, as is noted in its preamble and article 1, the Belarusian people refer to the Soviet citizens who lived in the territory of the Belarusian Soviet Socialist Republic during the Great Patriotic War and (or) the post-war period (the period until 31 December 1951).

The Constitutional Court points out that the fact of genocide of the Belarusian people during the Great Patriotic War and (or) the post-war period has been recognised for the first time at the legislative level.

This conclusion of the legislator is based on irrefutable evidence of atrocities committed by Nazis and their accomplices in the territory of Belarus, that have been documented in official investigation procedures and court proceedings, including international ones.

Thus, the Extraordinary State Commission for the Establishment and Investigation of the Crimes of the Fascist German Invaders and their Accomplices and the Damage they Caused to Citizens, Collective Farms, Public Organisations, State Enterprises and Institutions of the USSR, created by the Decree of the Presidium of the Supreme Soviet of the USSR of 2 November 1942, found that the Nazis had set up more than 260 death camps in the occupied territory of the Belarusian Soviet Socialist Republic to exterminate prisoners of war and the civilian population. More than 400 thousand people were destroyed in the 9 largest death camps of Minsk and its suburbs: the camp Trostenets (more than 206.5 thousand people); the camp near the village of Masyukovshchina (over 80 thousand people); the camp in Shirokaya street in Minsk (about 20 thousand people).

And the exact number of victims and their identities are still uncertain.

During 1941–1944 the Nazis carried out more than 140 large punitive operations in the territory of Belarus, in which the vast majority of Belarusian villages and hamlets (about 9200) were burned. 5295 of them suffered the same fate as the village of Khatyn, that is, they were destroyed along with the population, in whole or in part. 186 of the burned villages were never rebuilt. Some localities were burned several times in the Vitebsk and Minsk regions.

In total, 399 474 people were deported from Belarus to Germany, of which tens of thousands died, unable to endure the hardships of exploitation. At least 1.4 million people were exterminated in places of forced detention of the civilian population. During the war years Belarus lost about 2.2 million people, or every third of its inhabitants.

Documents and other material in evidence of the crimes committed by Nazis and their accomplices in the territory of Belarus were particularly important in accusation of fascism by the International Military Tribunal in Nuremberg (Germany), held from 20 November 1945 to 1 October 1946.

The Constitutional Court points out that the provision of article 1 of the Law, that specifies acts constituting the definition of the crime of genocide of the Belarusian people, corresponds to the rules of international law. According to them genocide means any of the acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; сausing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group (Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948).

The Constitutional Court deems that the examined legal regulation is in conformity with the provisions of the Constitution, under which the Republic of Belarus exercises supreme control and absolute authority over its whole territory and implements an independent domestic and foreign policy; it shall defend its independence and territorial integrity, its constitutional system, and safeguard lawfulness and law and order (article 1.2; 1.3); the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1); 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 laws, and specified by the State's international obligations (Article 21.3); 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).

The Constitutional Court also believes that the legislative recognition and condemnation of the fact of genocide of the Belarusian people will engrave in historical memory of the people a fair assessment of the atrocities of the Nazis and their accomplices in the territory of Belarus, will encourage the descendants to pay tribute to millions of the victims of fascism. It will also have an important constitutional and legal, as well as political significance, since it will serve as the basis to raise the issue of recognising the genocide of the Belarusian people at the international level.

3. According to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 26 November 1968 (entered into force for the Belarusian Soviet Socialist Republic on 11 November 1970) no statutory limitation shall apply to the crimes of genocide (articles I, II and IV).

The Rome Statute of the International Criminal Court of 17 July 1998 states that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes, which include the crime of genocide (Preamble, articles 5, 6, 25 and 33).

The Law entrusts the Prosecutor’s Office with the authority to undertake additional measures for a comprehensive, complete and objective investigation of the genocide of the Belarusian people, for identification of its perpetrators and for criminal prosecution of them (article 3).

The Constitutional Court emphasises that the established legal regulation is based on the universal internationally recognised principles and rules and that it complies with Article 8.1 of the Constitution. It also proceeds from Article 7.2 of the Constitution providing that 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 and that it is in line with the constitutional provisions on the competence of the Prosecutor’s Office to exercise supervision of implementation of laws at investigation of crimes, in instances provided by law, carry out preliminary investigation and present state charges in the courts (Article 125.2).

4. The Law provides for the competence of the Council of Ministers of the Republic of Belarus to regularly undertake measures to memorialise victims of the genocide of the Belarusian people, as well as to recognise and condemn the genocide of the Belarusian people at the international level; to disseminate reliable information and to educate citizens on the issues of the genocide of the Belarusian people; to undertake within six months other measures to implement the Law (article 4).

The Constitutional Court notes that the Government as the central body of state administration shall exercise executive power in the Republic of Belarus; take measures to secure the rights and freedoms of citizens, protect the interests of the State, national security and defence; ensure execution of the Constitution, laws, decrees, edicts and executive orders of the President; exercise other powers entrusted to it by the Constitution, laws and acts of the President (articles 106.1; 107.6; 107.8; 107.10 of the Constitution).

The Constitutional Court considers that the exercise of the Council of Ministers’ competence, provided by the Law, contributes to memorialise the victims of genocide, to prevent attempts to challenge the moral and historical authority of the Belarusian people who have defeated fascism in military co-operation with other peoples of the USSR. It is intended to enhance the quality of communication, education and training to stimulate an adequate moral, social and political attitude of citizens that meets the relevant provisions of the Constitution on the duty of the State to defend its independence, constitutional system, and safeguard lawfulness and law and order (Article 1.3); on the recognition by the Republic of Belarus of the supremacy of the generally recognised principles of international law and on ensuring the compliance of laws therewith (Article 8.1); on guaranteeing the corresponding constitutional rights, freedoms and legitimate interests (articles 2.1; 21.1; 21.3; 22 etc.).

5. In the Republic of Belarus, as a democratic state based on the rule of law, everyone may have one’s own views and preferences and may freely and openly express different beliefs.

Taking into account the right to freedom of thoughts and beliefs and their free expression guaranteed to everyone as well as the right of the citizens of the Republic of Belarus to disseminate information (articles 33.1 and 34.1 of the Constitution), the state, based on the need to protect constitutional interests from destructive impact that could harm them, may, however, prohibit the use of propaganda or agitation that is likely to incite racial, national, ethnic or religious hatred and violence. The state shall prevent manifestations of social aggression due to demonstrative (public) denial or neglect of constitutionally significant moral values.

Thus, Chapter 17 of the Criminal Code “Crimes against the Peace and Security of Humanity” providing for criminal liability for genocide and rehabilitation of Nazism (articles 127 and 130-1) is added the denial of genocide as a separate crime involving liability (article 130-2). The elements of objective nature of this crime cover the denial of genocide of the Belarusian people in a public speech, or in a printed or publicly demonstrated work, or in the media, or in information posted on the global computer network Internet, other public telecommunication network or allocated telecommunication network.

The Constitutional Court deems that the legal regulation established by the Law is aimed at counteracting the mentioned destructive use of information, at preventing from incorrect peoples’ beliefs and misperceptions of historical events, acts of violence to exterminate the Soviet citizens who lived in the Belarusian Soviet Socialist Republic during the Great Patriotic War and (or) the post-war period; of enormous losses the Belarusian people endured. The formation of misperceptions may destroy the ideological, spiritual and moral values of the society and defile memory of the innocent victims of the civilian population. The provisions of the Law contribute to the protection of historical truth about the Second World War, counteraction to falsification of the facts of history.

The denial of crimes against the peace and security of humanity, committed publicly or with the use of a publicly demonstrated work, or the mass media, or the global computer network Internet, or other information network is an element of the rehabilitation of Nazism as manifestation of extremism (article 1.1.15 of the Law of the Republic Belarus “On Countering Extremism”, articles 1.1.6; 1.1.8 of the Law of the Republic of Belarus “On Preventing the Rehabilitation of Nazism”).

The Constitutional Court states that the denial of genocide of the Belarusian people has a negative impact on the population, especially on children and youth, misinforming about the danger of a destructive (misanthropic) ideology. Such denial leads to escalation of modern forms of intolerance based on social, racial, national and other prejudices.

The Constitutional Court deems that the criminal and legal prohibition of the public denial of the genocide of the Belarusian people enables the state to respond in a more effective and extensive way to any manifestation of rehabilitation of Nazism threatening national security of the Republic of Belarus, the rights and freedoms of its citizens. It thereby improves the legal mechanism for preventing those socially dangerous acts and meets the constitutional provisions on the duty of the State to defend its independence, constitutional system and safeguard lawfulness and law and order (Article 1.3 of the Constitution), as well as complies with the rules of the Constitution that guarantee the implementation of constitutional values and interests (articles 1.3; 2.1; 21.3; 59.1). The provisions of the Law establishing criminal liability for denying the genocide of the Belarusian people correspond to articles 52 and 53 of the Constitution which oblige everyone to observe the Constitution and laws and to respect dignity, rights, freedoms and legitimate interests of others.

The Constitutional Court also notes that the Parliament being a representative and legislative body is empowered to consider draft laws, including fundamental concepts and principles of exercise of the rights, freedoms and duties of citizens; issues of criminal liability (articles 90.1; 97.1.2 and 98.1.1 of the Constitution), – based on the requirements of Article 23.1 of the Constitution which allows for 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. Within the framework of its discretionary powers the legislator determines which of the acts shall be prohibited taking into account the degree of their public danger, severity of the consequences and other circumstances.

The Constitutional Court considers that criminal liability for denying the genocide of the Belarusian people as provided in article 2 of the Law is at the discretion of the legislator which is competent to choose the criminal legal means of affecting the perpetrators, to determine required and adequate scope of such effect.

Reviewing the content of the provisions of the Law the Constitutional Court deems that the established legal regulation is aimed to protect the fundamental values of the Belarusian people at the legislative level, to prevent attempts to falsify the events and outcomes of the Second World War, to give a fair assessment of the atrocities of Nazi criminals and their accomplices, nationalist units during the Great Patriotic War and the post-war period, to preserve historical memory, not to let the rehabilitation of Nazism, to counteract neo-Nazi manifestations in the modern Belarusian society, to strengthen national security and that is consistent with the rules of the Constitution and the provisions of international legal acts.

The Law was 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 the Genocide of the Belarusian people” 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