DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 27 of May, 2015 No D-983/2015
On the Conformity of the Law of the Republic of Belarus “On Alternative Service” 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.A. Karpovich, 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 Alternative Service”.
 
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 Alternative Service” 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 Alternative Service” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on 13 May 2015, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on 20 May 2015 and submitted for signing to the President of the Republic of Belarus.
 
When reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
 
1. According to the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law; 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 (Articles 7.1, 7.2); the Constitution shall have the highest legal force; laws, decrees, edicts and other acts of state bodies shall be issued on the basis of and in accordance with the Constitution (Article 137.1).
 
Article 57 of the Constitution provides that defence of the Republic of Belarus shall be the responsibility and sacred duty of the citizen of the Republic of Belarus; the procedure regulating military service, grounds and conditions for exemption from military service or its substitution by alternative service shall be determined by law.
 
In the Decision of 26 May 2000 “On Some Issues of Realisation of Article 57 of the Constitution of the Republic of Belarus” the Constitutional Court pointed out the necessity to secure the right of the citizens of the Republic of Belarus to substitute alternative service for military service, in particular on the basis of individual religious beliefs, and to develop an appropriate mechanism in order to secure it.
 
The Constitutional Court notes that the Law has been adopted with a view to fill a gap in the constitutional and legal regulation of social relations involving the exercise of the citizens’ constitutional right to perform alternative service.
 
2. In accordance with the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the State (Article 2.1); 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); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1); 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).
 
In Article 31 of the Constitution it is provided that everyone shall have the right to determine independently his attitude towards religion, to manifest any religion alone or in community with others, or to manifest none at all, to express and spread beliefs connected with his attitude towards religion, and to participate in the performance of acts of worship and religious rituals and rites, which are not prohibited by law.
 
Article 18 of the Universal Declaration of Human Rights stipulates that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
 
According to Articles 18.2, 18.3 of the International Covenant on Civil and Political Rights no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice; freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
 
Based on the mentioned provisions of the Constitution and international legal acts linked with Article 57 of the Constitution the Law defines alternative service as socially useful activity which the citizens of the Republic of Belarus shall perform in substitution of military service and which is not related to the service in the Armed Forces of the Republic of Belarus, other forces and military units of the Republic of Belarus (Article 1). The Law also determines the areas where the individuals may perform alternative service, notably in public health care facilities, social service, housing and communal services, agriculture and forestry, in landscaping enterprises, construction and repair of roads and rail facilities (Article 4.1).
 
So, the definition provided by the Law for alternative service as socially useful activity in the said areas of the public life emphasises its social nature.
 
3. The Law provides that alternative service may be offered to those individuals conscripted for compulsory military service, reserve service, medically and physically qualified, but who personally objected to either taking oath, weapons bearing and use or direct involvement in manufacture and maintenance of weapons, service ammunition and war equipment as contradicting their religious convictions to the extent that prevents them from performing military service (Article 3.1). Therewith it is established that given the said grounds an individual conscripted for compulsory military service, reserve service may file a written application to the district (municipal) conscription commission where he lives at least 10 consecutive days prior to the expiration of conscription. In the application a conscript shall state the reasons inspiring him to apply for alternative option in substitution of military service. The application shall enclose a personal history. The individual may file other materials to corroborate information provided therein (Articles 15.1–15.3).
 
Examining the constitutionality of the given provisions of the Law the Constitutional Court deems that the obligation of an individual conscripted for compulsory military service, reserve service to provide direct evidence to show his religious objections are so strong as to prevent him from performing military service, shall not be regarded as contradicting Article 31 of the Constitution for it has been caused by his own will to perform alternative service in substitution of military one.
 
The Constitutional Court also notes that the decision to substitute alternative service for military service (Article 16.5 of the Law) depends on how deep are the individual’s religious objections so as to prevent him from doing military service. The legislator does not bind the right to substitute alternative service for military service merely by membership in any religious group or by other convictions, in particular pacifistic beliefs.
 
In addition the Constitutional Court focuses attention on the legal position stated by the European Court of Human Rights in its Judgment of 7 July 2011 in the case “Bayatyan v. Armenia”. It is noted therein that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 “Freedom of thought, conscience and religion” of the Convention for the Protection of Human Rights and Fundamental Freedoms.
 
4. In accordance with the Constitution 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).
 
Article 60 of the Constitution guarantees protection of everyone’s rights and freedoms by a competent, independent and impartial court within the time limits specified by law.
 
According to Article 8 of the Universal Declaration of Human Rights everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
 
Article 2.3 of the International Covenant on Civil and Political Rights enshrines undertakings of each State Party to the Covenant to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity, and to develop the possibilities of judicial remedy (subparagraphs “a” and “b”).
 
Pursuant to the said provisions of the Constitution and international legal acts the Constitutional Court points to the following. According to Article 17.2 of the Law the individual is entitled to appeal to the regional (Minsk municipal) conscription commission or the court against the denial to substitute alternative service for military service. When applying this Article of the Law it should be remembered that the decision of the regional (Minsk municipal) conscription commission to reject such appeal does not deprive the individual of his right to judicial remedy.
 
In accordance with Articles 2 and 3 of the Civil Procedure Code of the Republic of Belarus proceedings in civil cases shall be governed by the Constitution, the Code and other legislative acts of the Republic of Belarus. The civil procedure legislation shall regulate the procedure for consideration and adjudication in courts of civil, family, labour and other claims, cases arising from administrative-legal relations, cases of special proceedings, writ proceedings as well as other cases and the procedure for execution.
 
In a number of its decisions the Constitutional Court reiterated that when governing relations affecting the rights and freedoms of the individuals and guarantees for their exercise, the failure to comply with the constitutional principle of the supremacy of law and the principle of legal certainty, based on it, may lead to ambiguous understanding of normative legal acts or their separate provisions as well as to their improper application that will not contribute to ensuring a required level of constitutional legality.
 
In this regard the Constitutional Court notes that along with securing the individual’s right to appeal to the court, in particular, against the denial of the district (municipal) conscription commission to substitute alternative service for military service, the legislator should specify the procedure for adjudication of such appeals due to the nature of the relations regulated by the Law.
 
5. 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); no one may be compelled to perform duties that are not specified in the Constitution of the Republic of Belarus and its laws or to renounce his rights (Article 58); national expenditure shall be covered by the republican budget on its expenditure side (Article 133.3).
 
A number of provisions of the Law aim to pursue these constitutional provisions. In particular, the Law sets periods of alternative service for individuals not having higher education – 36 months; having higher education – 24 months (Article 19); the Law establishes the rights and duties of individuals performing alternative service (Article 21); it provides them with a monthly rate of pay at the expense of the republican budget (Article 24); it imposes penalties on individuals doing alternative service and governs their administration (Article 27).
 
When regulating certain matters of alternative service the legislator takes into account provisions of the current legislation on military service. So, an individual shall file his written application for substitution of alternative service for military service to the district (municipal) conscription commission where he lives. The conscription commission shall take a relevant decision. One of the grounds to reject the individual’s application shall be his failure to appear without good reason before the conscription commission as specified in Article 10.2 of the Law of the Republic of Belarus “On Military Duty and Military Service”; within one month from the date of discharge from alternative service the individual shall appear before the military commissariat and another body of military registration in order to be military registered; individuals discharged from alternative service shall be enlisted by the military commissioner to the reserve of the Armed Forces of the Republic of Belarus and shall fall in the second category of reserve military service (Articles 15, 16, 17.1, 21.4, 30.1 of the Law).
 
In view of the foregoing it is evident that relevant legal regulation aims to generally enable alternative service for individuals irrespective of whatever agencies have been determined as their placements for service.
 
6. One of the requirements of alternative service is that the individual abide by certain restrictions. According to Article 23 of the Law those restrictions prohibit from being on strike, being engaged in any other paid employment (work), conducting entrepreneurial activity.   
 
The Constitutional Court holds the above mentioned requirements of alternative service not to infringe the rights of the citizens of the Republic of Belarus stipulated in Articles 36 and 41 of the Constitution, that is, the right to freedom of association, right to work, right to protection of their economic and social interests, including the right to strike, as the individual exercised of his own free will the right secured in Article 57 of the Constitution to perform alternative service in substitution of military one.
 
7. The Article 28 of the Law provides that those individuals who evade alternative service shall bear responsibility as set forth by legislative acts (part 1). This provision is based on the rules of Articles 2.2, 57.2 and 58 of the Constitution.
 
In the said Article of the Law the legislator has determined offences in case the individual evades alternative service (part 2) as well as listed justifiable reasons for his failure to come within the prescribed period of time to the placement of alternative service (part 3). The legislator has also regulated the procedure to find out the reasons behind the individual’s failure to come (part 4). All these bear evidence of the implementation of the constitutional principle of supremacy of law (Article 7 of the Constitution), an essential element of which is the principle of legal certainty suggesting that the law rules shall be noncontradictory, logically consistent, set out strictly and clearly in order to ensure their uniform application in practice.   
 
In view of the revealed constitutional and legal meaning of the Law the Constitutional Court deems the contents of the Law aims to secure at a law level the exercise of the constitutional right of the citizens of the Republic of Belarus to substitute alternative service for military service due to individual religious objections to perform it.
 
The Law has been 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.
 
The Constitutional Court therefore concludes that the Law is in conformity with the Constitution as regards the contents 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 Alternative Service” 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
Constitutional Court
Republic of Belarus

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