BAJ turns to the Constitutional Court and the Council of the Republic

Belarusian Association of Journalists appeals to the Council of Republic to reject the draft of law ‘On additions and corrective changes to several legislative acts of the Republic of Belarus as regards the responsibility for acts against individuals and social security’ under the redaction adopted by the Chamber of Representatives. It also addresses to the Constitutional Court of the Republic of Belarus with appeal to make a lawful assessment of changes to the Criminal Code. (08-DEC-05)

Appeal To the Council of Republic of the National Assembly of Republic of Belarus and Constitutional Court

On December the 8th 2005 the Council of Republic is to consider the draft of law ‘On additions and corrective changes to several legislative acts of the Republic of Belarus as regards the responsibility for acts against individuals and social security.’ In particular, the draft previews modification of the article 361 of the Criminal Code ‘Calls for actions aimed at damaging external security of the Republic of Belarus, its sovereignty, territorial inviolability, national security and defense’ as well as additions to the articles 369-1 of the Criminal Code ‘Discredit of the Republic of Belarus’

We believe that additions, if adopted, would violate the Article 21 of the Belarusian Constitution. The Article says that ensuring of citizens’ rights and liberties is the higher value of the State. And the State guarantees them. Moreover, they are secured by the Constitution and international obligations of the Republic of Belarus.

Legal regulations, which are to be added, are, however, formulated in a vague way, which makes their broad and ambiguous interpretation possible. Thus, the regulations threaten constitutional rights of citizens on freedom of opinion and expression as well as right on acquisition, storage and dissemination of information (Articles 33, 34 of the Belarusian Constitution). Moreover, the draft does not comply with legal international obligations of the Republic of Belarus and, in particular, contradicts to Article 19 of the International Pact on Civil and Political Rights as well as Article 19 of the UN General Declaration of Human Rights, which limit intervention by State into the right of freedom of expression. Thereby Article 8 of the Belarusian Constitution, according to which the Republic of Belarus accepts priority of universally recognized principles of international law and brings the national legislation to the conformity with them, has been ignored.

Belarusian courts while examining different appeals, as a rule, do not make a distinction between evidences (information as regards concrete events or facts) and opinions (evaluative statements). Being aware of the situation the Constitutional Court of the Republic of Belarus had already drawn attention to the ambiguity of the legal practice and possibility of court mistakes as regards criminal cases initiated on the basis of critical statements, which in fact were not subject to criminal persecution. Thus, the Constitutional Court in its resolution as of September the 1st 2003 ‘On addition to the Criminal Code of the Republic of Belarus¡’ issued as a result of the appeal submitted to it by the Belarusian Association of Journalists proposed to the Chamber of Representatives to consider the issue and to make corrections to Articles 367 ¡V369, which could exclude ‘mistaken legal evaluations as regards critical public statements made by journalists and other persons’ and provide citizens with additional guarantees of “their constitutional rights on access to complete, reliable and well-timed information as well as with legal defense of the press and other media.”

It is a pity but the decision by the Court was not implemented. In the meantime regulations proposed nowadays are similar to those, which had already existed in the Belarusian legislation. Thus, the Criminal Code of the Belarusian Soviet Socialist Republic as of 1961 contained Article 67 “Anti-Soviet agitation and propaganda.” The Article was used against dissidents.

In view of the exposed situation the Belarusian Association of Journalists:

Appeals to the Council of Republic to reject the draft of law “On additions and corrective changes to several legislative acts of the Republic of Belarus as regards the responsibility for acts against individuals and social security” under the redaction adopted by the Chamber of Representatives. As they are proposed, the changes in the Criminal Code will restrain constitutional rights and liberties of citizens, will repudiate the principle of practicing democracy on the basis of variety of democratic institutions, ideologies and opinions in the Republic of Belarus as it is exposed in the Article 4 of the Belarusian Constitution and will further plunge the Belarusian society into the atmosphere of fear;
Addresses to the Constitutional Court of the Republic of Belarus with appeal to make a lawful assessment of changes to the Criminal Code as regards their conformity to the Constitution, international legal obligations of the Republic of Belarus and to enforce the implementation of the Constitutional Court’s decision as of September the 1st 2003.