T.A. Evdokimenko filed an individual complaint with the Constitutional Court to review the constitutionality of Article 91 of the Law of the Republic of Belarus “On Measures to Prevent the Legalisation of Proceeds from Crime, the Financing of Terrorist Activities and the Financing of the Proliferation of Weapons of Mass Destruction” (hereinafter – the Law No. 165-Z), applied by the court when considering a civil case with her participation.
The contested article establishes the obligations of persons carrying out financial transactions to apply measures related to the freezing of funds and (or) blocking of financial transactions of persons involved in terrorist activities.
The submitted materials show that during the marriage, the applicant's spouse entered into a financial lease agreement (leasing) for a truck. Payments under the agreement, including the payment of the redemption price, were made by the spouses during the marriage using joint funds.
The applicant's spouse was convicted by the court and sentenced to imprisonment, after which he was included in the list of organistions and individuals involved in terrorist activities (hereinafter – the List). On this basis, the lessor, acting in accordance with the provisions of the Law No. 165-Z on freezing funds owned or held by an individual, including an individual entrepreneur included in the List, imposed a ban on the use of the vehicle transferred to the applicant's spouse as a leased item and sent a demand to the lessee for its return to the lessor, which was subsequently executed.
T.A. Evdokimenko believes that Article 91 of the Law No. 165-Z violated her constitutional right to property without legal grounds (Article 44 of the Constitution), since she did not commit any illegal act and is not included in the list of persons involved in terrorist activities; the truck was not purchased by the spouses using funds obtained by criminal means and is not related to the crime committed; in addition, according to the applicant, her husband is not the sole owner of the frozen property.
In its ruling the Constitutional Court indicated that the Law No. 165-Z defines the legal and organisational foundations of the state policy of the Republic of Belarus in the sphere of preventing the legalisation of proceeds from crime, the financing of terrorist activities and the financing of the proliferation of weapons of mass destruction, that is, it is aimed at protecting the rights and legitimate interests of individuals, society and the state from the aforementioned illegal encroachments.
Freezing of funds, being a ban on disposal, use of funds (except for use of real estate for personal needs) of persons included in the List, limits the constitutional right of ownership, property rights of owners of this property, including the rights of other participants in common property, jointly owning and using common funds.
Based on the content of the provision of Part one of Article 23 of the Constitution, which allows for the restriction of the rights and freedoms of the individual, in conjunction with the provision of Part six of Article 44 of the Constitution, stipulating that the exercise of the right of property shall not be contrary to social benefit and security, or infringe upon the rights and legally protected interests of others, the right of ownership may be limited by the legislator in accordance with the general legal principle of proportionality to the extent necessary to achieve constitutionally significant goals.
The Constitutional Court noted that, taking into account the high degree of public danger of financial transactions related to the legalisation of criminal proceeds, the financing of terrorist activities and the financing of the proliferation of weapons of mass destruction, restrictive measures established by law are objectively justified, aimed at ensuring national security, public order, protecting public health, the rights and freedoms of others, comply with the principle of proportionality and are consistent with the Constitution.
Being such a preventive measure, the freezing of funds meets the requirements of proportionality and admissibility, is not associated with the deprivation of the right of ownership and property rights of the owners of these funds, but is only a restriction on the possibility of disposing of and using this property at the discretion of its owner, holder. This restriction is temporary, since the basis for unfreezing funds is the exclusion of an organisation, an individual, including an individual entrepreneur, from the List (Part eight of Article 91 of the Law No. 165-Z).
Taking into account the need to ensure the vital activity of an individual included in the List, the legislator has provided for the right of this person, who has no other sources of income, whose funds are frozen, to send a reasoned written petition to the financial monitoring body to carry out financial transactions to ensure his/her vital activity. This body has the right to allow financial transactions to be carried out in the amount of the state-established budget of the subsistence minimum on average per capita per month or to issue a reasoned refusal (Part five of Article 91 of the Law No. 165-Z).
Consequently, the contested provisions of the Law No. 165-Z cannot be considered as violating the constitutional rights of the applicant in a specific case.
The discussion of the factual circumstances of a specific case and the assessment of the court decision on the merits of the case when reviewing the law applied in a specific case on a constitutional complaint are not within the competence of the Constitutional Court (paragraph 2 of Article 161 of the Law “On the Constitutional Proceedings”).
Based on the results of the consideration of the submitted materials, the Constitutional Court refused to initiate proceedings on the case on the individual complaint, since there are no signs of violation of the constitutional rights of the applicant. The constitutional complaint does not meet the admissibility condition defined by subparagraph 1.1 of paragraph 1 of Article 153 of the Law of the Republic of Belarus “On the Constitutional Proceedings”.