DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 08 of December, 2014 No D-952/2014
On the Conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Law of the Republic of Belarus “On Combating Trafficking in Human Beings” to the Constitution of the Republic of Belarus

The Constitutional Court of the Republic of Belarus comprising the Presiding Officer Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, N.AKarpovich, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, 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 Addenda and Alterations to the Law of the Republic of Belarus “On Combating Trafficking in Human Beings”.
 
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 Making Addenda and Alterations to the Law of the Republic of Belarus “On Combating Trafficking in Human Beings” 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 Addenda and Alterations to the Law of the Republic of Belarus “On Combating Trafficking in Human Beings (hereinafter, the “Law”) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 10 November 2014, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 28 November 2014 and submitted for signing to the President of the Republic of Belarus.
 
The adoption of the Law is grounded by the necessity to improve organisational and legal basis for combating trafficking in human beings, including the system of measures on protection and rehabilitation of victims of trafficking in human beings, as well as by subsequent implementation in the legal system of the Republic of Belarus of requirements resulting from international standards in the mentioned sphere.
 
While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
 
1. The Constitution establishes that the Republic of Belarus, as a state based on the rule of law, ensures the legality and legal order (Articles 1.1 and 1.3); the individual, his rights, freedoms and safeguards of their realisation are the supreme value and goal of the society and the state; 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 strictly discharge the duties imposed by the Constitution (Article 2); the state shall safeguard the rights and freedoms of citizens of Belarus enshrined in the Constitution, laws and state international obligations (Article 21.3).
 
The Republic of Belarus acknowledges the supremacy of the generally recognised principles of international law and ensures the compliance of legislation therewith (Article 8).
 
The Constitutional Court notes that the Law is aimed at the implementation of these constitutional provisions as well as at the performance of international obligations assumed by the Republic of Belarus.
 
2. The Republic of Belarus acceded to the most significant international legal acts in the sphere of combating trafficking in human beings, including Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005 (entered into force for the Republic of Belarus on 1 March 2014) based on the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime of 15 November 2000 (entered into force for the Republic of Belarus on 25 December 2003); provisions thereof are reflected in the Law.
 
Article 1.1 of the Law specifies definitions of terms “trafficking in human beings” and “exploitation”.
 
Thus, according to the Law trafficking in human beings is defined as the recruitment, transportation, transfer, harbouring or receipt of a person with the purpose of exploitation committed by means of the deception, abuse of confidence or use of force or threat to use force; the consent of an individual to the intended exploitation shall not be taken into consideration where any of the mentioned means have been used; the recruitment, transportation, transfer, harbouring or receipt of a minor for the purpose of exploitation shall be considered as trafficking in human beings even if it does not involve any of the mentioned means.
 
The definition of exploitation is set forth in a new wording meaning the unlawful coercion of an individual to work or provide services (including actions of sexual nature, surrogate maternity, removal of organs and (or) tissues) in case he cannot refuse to work or provide services for reasons beyond his control, including slavery or practices similar to slavery.
 
The Constitutional Court is of an opinion that the introduction by the legislator of additional criteria in determining the mentioned terms is intended to criminalize a wider scope of socially dangerous acts related to trafficking in human being and various forms of exploitation of individuals, including their formerly unpunishable manifestations. It aims to strengthen the legality and legal order and complies with the constitutional obligation of the state to protect the life of individual against any unlawful infringements, safeguard personal liberty, inviolability and dignity (Article 24.2, Article 25.1 of the Constitution).
 
The extension of content of the term “trafficking in human beings” by indication of acts committed with the purpose of exploitation of minors regardless of use of such means as deception, abuse of confidence, threat or use of force is aimed at the protection of interests of minors and the highest possible ensuring of safeguards of their well-being. It conforms to the rule of Article 32.1 of the Constitution prescribing that the childhood is placed under the protection of the state as well as ensures due execution by the Republic of Belarus of commitments assumed under the Convention on the Rights of the Child (the Republic of Belarus is a Contracting Party) adopted by the UN General Assembly Resolution of 20 November 1989.
 
At the same time the Constitutional Court draws attention of the legislator to the necessity of making timely amendments to the Criminal Code of the Republic of Belarus in order to specify criteria of appropriate corpus delicti with the view of guaranteeing unambiguous understanding of terms introduced by the Law and ensuring uniform law enforcement practice. 
 
The necessity of such a specification is caused by a requirement to observe the principle of the rule of law that is enshrined in the Constitution (Article 7); the said principle gives rise to the principle of legal certainty presupposing an obligation of mutual consistency of normative legal acts, the systematicity and complexity of legal regulation of social relations, the use of uniform terminology.
 
3. The Law enshrines a definition of identification of victims of trafficking in human beings as a complex of actions carried out with the purpose of obtaining data on committing trafficking in human beings and related crimes with regard to individuals (Article 1.1).
 
At the same time the Law “On Combating Trafficking in Human Beings” is supplemented by Article 171 “Identification of victims of trafficking in human beings” (Article 1.4 of the Law). The Article establishes that the identification of victims of trafficking in human beings is put into practice by state bodies responsible for combating trafficking in human beings (para. 1); the identification of victims of trafficking in human beings may be initiated by diplomatic missions or consular offices of the Republic of Belarus, public health organisations, education institutions, authorities in the field of labour, employment and social security, centers for protection of victims of trafficking in human beings and providing them assistance before state bodies (para. 3); identification of victims of trafficking in human beings is realised within 30 days from filling in of application of an individual, who could suffer from trafficking in human beings and related crimes (para. 4). Para. 6 of the Article prescribes that an individual, who could suffer from trafficking in human beings and related crimes, is entitled to application with regard to him of measures on protection and rehabilitation of victims of trafficking in human beings.
 
Adduced provisions of the Law conform to requirements of Article 59 of the Constitution stipulating 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 citizens of the Republic of Belarus that are prescribed in the Constitution (para. 1); state bodies, officials and other individuals, who have been entrusted to exercise state functions, shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (para. 2).
 
The Constitutional Court also notes that provisions on the identification of victims of trafficking in human beings implement rules of the Council of Europe Convention on Action against Trafficking in Human Beings whereby a State Party to the Convention shall adopt such legislative or other measures as may be necessary to identify victims (Article 10.2); shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim (Article 13.1). 
 
The Constitutional Court considers that the legislator while assigning appropriate powers related to the identification of victims of trafficking in human beings to competent state bodies and organisations creates necessary conditions for due execution of regulations of the said Convention as well as for adoption of grounded decision within the recommended time.
 
Therefore, the Law is intended to improve legal regulation of social relations in the sphere of combating trafficking in human beings, to specify criteria of the mentioned socially dangerous act, to take into consideration provisions of international legal acts. In general, the Law aims to raise the efficiency of combating this type of crime and to protect duly human rights and freedoms.
 
The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the competence under Article 97.1.2 of the Constitution, 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. 
 
Therefore, the Constitutional Court concludes that the Law is in conformity with the Constitution as regards the content of rules, form of the act and procedure of 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 Making Addenda and Alterations to the Law of the Republic of Belarus “On Combating Trafficking in Human Beings” 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 the legislation.
 
Presiding Officer –
O.G. Sergeeva,
Deputy Chairwoman
of the Constitutional Court

of the Republic of Belarus

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