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UPDATE: Guide to Legal Research in Belarus
By Tatyana Khodosevich & Nadia Shalygina
Update by Nadia Shalygina
Nadia Shalygina is the director of the International Law Library in Minsk. She is a graduate of the Belarusian University of Culture, Faculty of Librarianship and Bibliography, Minsk.
Published August 2011
(Previously updated by Nadia Shalygina on February 2008)
TABLE OF CONTENTS
The Parliament and the Government
Local Government and Self-Government
The Structure of the Legal Documentation in the Republic of Belarus
The Republic of Belarus is а unitary state in Eastern Europe. It gained independence after the liquidation of the USSR. The Declaration of the state sovereignty was signed on July 27, 1990. The Constitution was adopted on March 15, 1994. The presidential variant of the new edition of the Constitution, providing an essential expansion of powers for the head of state was accepted in November 1996. The head of state is the President of the Republic. The President is elected for a term of office of five years by universal, free, equal, and direct and secret ballot (article 81 of the Constitution). State power in the Republic of Belarus is exercised on the principal of division of powers between legislature, executive and judiciary.
The legislative power belongs to the bicameral parliament – the National Assembly (Natsionalnoye Sobranie) of the Republic of Belarus. It consists of the two chambers: the House of Representatives (Palata Predstaviteley) and the Council of the Republic (Soviet Respubliсi). The House of the Representatives consists of 110 deputies, elected by a system of direct representation, while the Council of the Republic is the chamber of territorial representation. It means that it consists of eight deputies from each region/oblast (6 regions) and the city of Minsk, elected by the meetings of deputies of local Councils of deputies. The President appoints eight members of the Council of the Republic. The term of the Parliament is 4 years.
The legislative process in Belarus reflects the ideas of "rationalised parliamentarism", borrowed from the French Constitution of 1958. The right of the legislative initiative belongs to the President, members of the House of Representatives and the Council of the Republic, to the Government, as well as to citizens who are eligible to vote, in a number no less than 50 000, and is implemented in the House of Representatives (art. 99 of the Constitution).
The Government (Council of Ministers) directs the executive branch in Belarus. The Council of Ministers is the main body of state administration. The government is accountable to the President and to the Parliament and responsible to the Parliament of the Republic of Belarus (art. 106 of the Constitution). The Prime Minister is the head of the Council of Ministers and the President of the Republic of Belarus with the consent of the House of Representatives appoints him. The Government issues acts that have binding force in the entire territory of the Republic. The competence of the Government and its activities shall be determined based on the Constitution and the Law of the Council of Ministers of the Republic of Belarus (art. 107 of the Constitution).
According to article 117 of the Constitution of the Republic of Belarus: “Citizens shall exercise local government and self-government through local councils of deputies, executive and administrative bodies, bodies of public territorial self-government, local referendum, assemblies and other forms of direct participation in state and public affairs.”
Executive committees are the executive branch of power in the local level (province, region, city, village, etc.). Councils of deputies are the legislative bodies in the same level. Local administration is the executive body in the district of the city.
The heads of the local executive and administrative bodies shall be appointed and dismissed by the President.
The Local councils of deputies are elected for the term of four years.
By the article 121 of the Constitution, the competences of the local councils of deputies are the following:
· the approval of programmers of economic and social development, and local budgets and accounts;
· the setting of local taxes and dues in accordance with the law;
· the determination, within the limits specified by law, of the procedure governing the management and disposal of municipal property;
· the calling of local referendum.
The people of the Republic shall elect the President of the Republic for the term of five years by universal, free, equal, secret and direct ballot. The potential Presidential candidates must collect no less than 100,000 voters’ signatures and present them to the Central Commission of the Republic of Belarus on Elections and National Referenda. The Central Commission of the Republic of Belarus on Elections and National Referenda will check them all and after that will register the official candidates.
The President of the Republic may be removed from his office for acts of state treason and grave crimes and in case of a bad health condition. The decision shall be taken by a resolution of the House of Representatives adopted by a majority of no less than two-thirds of the elected deputies and no less than two-thirds of the members of the Council of the Republic.
In addition to the Parliament, the President carries out the legislative authority. The powers of the President of the Republic of Belarus are among the widest reaching in the world. The President declares referendums, extraordinary elections, dismisses chambers of Parliament in cases stipulated by the Constitution, and nominates, with the consent of the Council of Republic, the Chairman of the Central Commission of the Republic of Belarus on Elections and National Referenda, the General Prosecutor, and the Chairman of the National Bank. He also appoints, with the consent of the Council of the Republic, the judges and the Chairmen of the Constitutional, Supreme, and Supreme Economical Courts, and all the judges of the Republic, etc. The President independently nominates and releases from the office the Chairman of the Committee of State Control of the Republic of Belarus, etc.
The 1996 Constitution of the Republic of Belarus expanded the competence of the Head of state in law-making activities. The President issues Decrees (valid as law), Edicts, and Orders, Directives (5) which have obligatory force in all territories of the Republic.
The judicial system of Belarus is formed according to the Constitution of the Republic of Belarus, the Code of Judicial Organizations and Status of Judges and specialized laws about different types of courts.
The system of courts in Belarus is based on the territorial principle and specialisation.
The Supreme Court is the higher judicial body which carries out justice on civil, criminal cases and affairs about administrative offences, carries out supervision of judicial activity of the general courts and realizes other powers according to law.
The system of the general courts consists of:
In the system of the general courts, some specialized courts can be created: such as juvenile courts, family, administrative, etc.
The economic courts carry out justice in the field of the economic relations, with the purposes of protecting the rights and interests of corporations and individuals. The Supreme Economic Court is the main court in this branch.
The system of the economic courts consists of:
· provincial (and Minsk city) economic courts;
· the Supreme Economic Court of the Republic of Belarus.
Constitutional control is carried out by the Constitutional Court. The Constitutional Court consists of 12 judges, 6 of them are appointed by the President of the Republic and the other 6 by the Council of the Republic. According to the Constitution, the Constitutional Court draws the conclusions about the conformity of law, decrees, edicts, international agreements, and decisions and other acts of the Council of Ministers etc. to the Constitutional of the Republic of Belarus and to the other instruments of international law ratified by the Republic of Belarus.
The International Court of Arbitration at the Belarusian Chamber of Commerce and Industry is a non-state non-commercial organisation, carrying out its activities on a payable basis (art. 6 of the Law “On International Arbitration Court (Tribunal)”. Civil and legal disputes between any subjects of law, arising during carrying out foreign trade and other types of International economic activities may be referred to the International Arbitration Court as agreed by the Parties, if at least one of them is located outside the Republic of Belarus, as well as other disputes of economic nature, if the contract between the parties stipulates a reference of a dispute for settlement to the International Arbitration Court, and of this is not prohibited by the legislation of the Republic of Belarus (art. 4 of the law ).
The CIS (Commonwealth of the Independent States) Economic Court was formed according to article 5 of the Agreement about measures on maintenance of improvement of calculations between the economic organisations of the countries-participants of the Commonwealth of Independent States from May 15th, 1992. The agreement on the status of Economic Court of the Commonwealth of Independent States was signed in July, 6th, 1992 by Republic of Armenia, Republic of Belarus, Republic of Kazakhstan, the Kirghiz Republic, Republic of Moldova, the Russian Federation, Republic of Tajikistan and Republic of Uzbekistan.
The Court of the Eurasian Economic Community (EurAsEC) will start its work in Minsk on January 1, 2012. Until that date, the CIS Economic Court carries out its functions. Under the new Charter, the EurAsEC Court shall deal with economic disputes within the Customs Union. It shall be entitled to issue binding rulings, including on matters relating to the Commission of the Customs Union. In addition to the EurAsEC Member States and the Customs Union Member States, the right to appeal to the EurAsEC Court has been granted to the bodies of EurAsEC, bodies of the Customs Union, and to business entities of the Customs Union Member States. On 6 July 2010, the Customs Code of the Customs Union (not official translation) will come into effect in the relations between Belarus, Russia and Kazakhstan.
The international arbitration court «Chamber of arbitrators at the Union of lawyers » (the International Chamber of Arbitrators) is constantly operating not state, non-commercial organisation which competence includes consideration of disputes of economic character as between non-residents, and residents of the Republic of Belarus.
Bodies of judicial community are:
According to the article 62 of the Constitution, all the people have right for the judicial help.
Only the members of the Belarusian Bar Association have right to protect and to represent individuals and organizations in criminal, civil cases and cases of administrative offences. All these attorneys must have the license for advocacy. The lawyers who are not the members of the Bar Association protect and represent individuals and organizations in commercial cases and they support all kind of commercial actions. These lawyers also must have the license for this kind of action.
The main law-enforcement institute in Belarus is the General Prosecutor Office of the Republic of Belarus. It entrust to supervise the implementation of the laws, decrees, regulations and other acts by ministers and other state bodies, as well as the local representative and executive bodies, enterprises, organizations, establishments, public organizations, officials and citizens.
The Committee of State Control of the Republic of Belarus carries out the control of execution of the state’s budget, the use of state property, the execution of the acts of the President, the parliament and the government, which regulates economic, financial and tax relations.
The modern legal system of the Republic of Belarus belongs to the Romano-German (Roman-Germanic) Law family. The main characteristics of the Romano-Germany Law Family are rule of law, dividing law into public and private one, separating one branch of law from another. A normative legal act is the main legal source.
The Republic of Belarus has the great background for developing and improving its legal system. The Statutes of the Grand Duchy of Lithuania (Litovskae) (of 1529, 1566, 1588 years) were the great achievements of the Belarusian Law. They were written during the 16th century in Belarusian language and they are among the first European constitutions and codes. They have served later as model to some other European legislation. The Statutes of the Grand Duchy of Lithuania are considered to be of the main treasures of Belarusian, Lithuanian and Polish cultures.
The system of law in Belarus consists of different branches such as: civil law, civil procedure law, criminal law, criminal procedure law, law of execution of criminal punishment, administration law, administration procedure law, international public law, international private law, labour law, family law, financial law, banking law, social security law, commercial law, contract law, environmental law, etc.
All the legal acts of the Republic of Belarus can be divided into two groups: legislative acts and secondary legislation. The Constitution of the Republic is the Fundamental Source of Law and has the supreme legal force. All the other legislative acts can be enacted by the Parliament (such as Laws), Codes or by the President (such as Decrees (have the force of law)). The most important sources of the secondary legislation are Edicts, and Orders, Directives and Decrees of the President, decisions of the Government, decisions of the Ministries, State Committees and other state bodies, acts of local Councils of Deputies and Executive Committees.
The judicial precedent, (court decisions) like in the case of other countries of the Romano-German Legal Family, is not the source of law. However, the explanations of Plenums of the Supreme Court and the Supreme Economic Court are obligatory for courts and bodies using the law. Decisions of the Constitutional Court are also obligatory for execution.
International treaties are also an important source of taw. The Republic of Belarus recognises the principles of international law and conforms to them in its legislation. However, the Constitution does not speak about the priority of ratified international acts above the laws of the Republic.
The National Centre of the Legal Information (NCLI) is the state institute that publishes the official legal documentation of the Republic of Belarus, both in print and electronically. According to the Decree of the President, entitled “About the order of distribution of the legal information in the Republic of Belarus”, the activity of distribution of the legal information is rigidly regulated and supervised. All commercial publishing houses and private firms that publish and distribute commercial legal databases must have а license and publish information obtained only from official sources.
The main sources of law in the Republic of Belarus are:
· The Constitution;
· Codes;
· Directives of the President;
· Decrees and Edicts of the President;
· Laws;
· Decisions of the Government and Ministries.
The Constitution is the supreme law of the country. It has the supreme juridical power in the Republic. All laws, decrees, decision and other legislation acts issued on the base and correspond to the Constitution.
There are constitutional laws and common laws. Constitutional laws are legislative acts like the “Declaration of the state sovereignty” from August 25, 1991; laws that enact changes and explain the Constitution, etc. Sometimes they have even more juridical power than the Constitution (for example, Declarations). They are enacted by 2/3 of the full complement of the both chambers of the Parliament/Natsionalnoye Sobranie of the Republic of Belarus (House of Representatives/Palata Predstaviteley and Council of Republic/Sovet Respublici). Constitutional laws, like other laws, are published in the “National Register of the Legal Acts of the Republic of Belarus” (official journal), “Zvyazda”, and “Narodnaya gazeta” (official newspapers).
The Belarusian legal system has 28 codes (site in Russian), which regulate all spheres of life: the Civil Code, Code of Civil Procedure, Criminal Code, Code of Criminal Procedure, Commercial Code, Code of Commercial Procedure/Economic Procedural Code of the Republic of Belarus , Investment Code, Labor Code, Tax Code (2 parts), Code of Education, Banking Code, Family Code, Electoral Code, Administrative Code, Procedural Executive Code of Administrative Offences, Custom Code, Code of Land, Code of Interior Water Transport, Forest Code, Code of Commercial Navigation, Air Code, House Code, Code of Depths (subterranean mining), Budget Code, Code of Judicial Organizations and Status of Judges and etc. The most important codes of Belarus are based on the modelling legislation approved by Inter Parliamentary Assembly of the States of the participants of the Commonwealth of Independent States (CIS). They all have the same juridical power in their own fields. All codes are published in the “National Register of the Legal Acts of the Republic of Belarus” (the Official Journal).
Laws have the same power as codes, but, for example, the Civil Code has more juridical power than any legislation act in the field of civil law, the same is true for the Criminal Code, and so on. Laws can be adopted by the Parliament (Natsionalnoye Sobranie) and through referendum. The official publications are in the “National Register of the Legal Acts of the Republic of Belarus” (official journal), “Zvyazda”, and “Narodnaya gazeta” (official newspapers). Before 2001, the official publications were in the “Register of the Supreme Soviet/ Natsionalnoye Sobranie of the Republic of Belarus”.
Parliament also enacts Regulation of the Parliament and Decisions of the chambers of the Parliament (both sites in Russian). The Regulation defines the structure and activity of the Parliament, while the Decisions are such acts of legislation as appointment of a referendum and the date of the President election; the resignation of the President and giving consent about Prime-Minister appointment; a vote of no confidence in the Government; etc. They are enacted about common questions of the state government and control and published in the “National Register of the Legal Acts of the Republic of Belarus” (official journal), “Zvyazda”, and “Narodnaya gazeta” (official newspapers). Before 2001, the official publications were in the “Register of the Supreme Soviet/ Natsionalnoye Sobranie of the Republic of Belarus”.
Decrees and Directives of the President (site in Russian) are valid as laws. These decrees are issued under the Constitution 1996, in accordance with special powers granted to the President by the Parliament. They are published in the “National Register of the Legal Acts of the Republic of Belarus” and “Sovietskaya Belorussia”.
Edicts of the President (site in Russian) recognize the President’s powers (authority). Some edicts are not sources of law, such as an appointment to office, giving honorary titles (degrees) and so on. They are published in the “National Register of the Legal Acts of the Republic of Belarus”, “Sovietskaya Belorussia”.
In 1997, they were published as the “Collection of the Actual Decrees and Edicts of the President of the Republic of Belarus 1994 – 1997” and in 2000, they were published as “Collection of the Actual Decrees and Edicts of the President of the Republic of Belarus 1994 – 2000” and in 2006 in the “Collection of the Actual Decrees and Edicts of the President of the Republic of Belarus 1994 – 2005” in 3 volumes.
International treaties are also important sources of law. The Republic of Belarus recognizes all principles of the international law and provides conformity with them in its legislation. According to the national legislation, the Republic of Belarus does not conclude international treaties that contradict Constitution and national legislation. International treaties are ratified by the Parliament (if it is mentioned in the treaty) and by the President. Inter-government treaties are ratified by the Council of Ministers. The official publication of the international treaty is always with the law that ratified it and is published in the “National Register of the Legal Acts of the Republic of Belarus” (official journal), “Zvyazda”, and “Narodnaya gazeta” (official newspapers). Before 2001, the official publications were in the “Register of the Supreme Soviet/ Natsionalnoye Sobranie of the Republic of Belarus”.
Decisions of the Government (site in Russian) are the acts of legislation regarding general questions of management, economy, culture, science, etc., under the Constitution of 1996. They are published in the “National Register of the Legal Acts of the Republic of Belarus”, “Respublica”. Before 2001, the official publications were in the “Collection of the Decisions of the Government of the Republic of Belarus” and “Collection of the Decrees and Edicts of the President and Decisions of the Government of the Republic of Belarus”.
Orders and Instructions (directions) (in Russian) of the ministries, government committees, and departments include the acts of legislation that regulate the internal and external governmental relations. Some of the ministries/government committees have power to issue decisions for all government bodies (such as Ministry of Finance, Ministry of Defense, etc.). They are published in the “National Register of the Legal Acts of the Republic of Belarus” and “Respublica”. Before 2001, the official publications were in the “Collection of the Decisions of the Government of the Republic of Belarus” and “Collection of the Decrees and Edicts of the President and Decisions of the Government of the Republic of Belarus”
Decisions of the Constitutional Court are made about the constitutionality of international treaties, national legislation, and other acts of legislation. Decisions are published in the “National Register of the Legal Acts of the Republic of Belarus”, “Zvyazda”, “Narodnaya gazeta” and in the “Bulletin of the Constitutional Court of the Republic of Belarus”.
Decisions and the explanations of Plenums of the Supreme Court (in Russian) are published in the “National Register of the Legal Acts of the Republic of Belarus”, “Sovietskaya Belorussia”, and in the “Sudovy vestnik”.
Decisions and the explanations of Plenums of the Supreme Economic Court are published in the “National Register of the Legal Acts of the Republic of Belarus”, “Sovietskaya Belorussia”, and in the “Bulletin of the Supreme Economic Court of the Republic of Belarus”.
Acts of legislation of the local authorities (in Russian) regulate economic, political, cultural life in the distinct regions (6 total) and districts of Belarus. They issue decisions and publish them in the “National Register of the Legal Acts of the Republic of Belarus” and local official newspapers (for example in Minsk – “Minskaya Pravda”).
The Chairmen of the National Bank of the Republic of Belarus has the right to abolish decisions of the Government (Council of Ministers), the National Bank, and local authorities.
The Council of Ministers has the right to abolish orders and instructions of the state bodies (ministries, committees, departments).
Acts of the General Prosecutor Office of the Republic of Belarus include:
· protest (against acts of legislation or activity of persons that don’t correspond to the Constitution or legislation and breaks the law);
· declaration/statement (elimination of the infringement);
· decision (to institute proceedings, etc.);
· order/direction;
· official warning.
The acts of the legislation of the General Prosecutor Office are not sources of law. However, acts of the State Prosecutor are normative (sources of law) and are published in the “National Register of the Legal Acts of the Republic of Belarus”.
The main source of the legislation about normative acts is the law “About Acts of Legislation/Normative Acts” from January 10, 2000.
Official:
· The Code of Laws (from the 1st of January, 2008) - Consists of the Constitution of the Republic of Belarus, Laws, Decrees and Edicts of the President, acts of the Supreme Soviet, Inter-government and Inter-state treaties and acts, and all kinds of International treaties and the Laws about its implementation to our legislation and etc.;
· The “National Register of the Legal Acts of the Republic of Belarus”;
· The National Legal Internet Portal of the Republic of Belarus
· “Respublica”;
· “Zvyazda”;
· “Narodnaya gazeta”
· local official newspapers.
Others:
· Journals of the state bodies (“Taxes of Belarus” – orders and instructions of the Ministry on Taxes and Dues; “Tamozenny vestnik” – State Customs Committee; “Justice of Belarus” – Ministry of Justice; “Bulletin of the Supreme Economic Court of the Republic of Belarus” – court decisions, explanations of Plenums of the Supreme Economic Court; “Bulletin of the Constitutional Court of the Republic of Belarus” - court decisions of the Constitutional Court ; “Sudovy vestnik” - court decisions, explanations of Plenums of the Supreme Court;, etc.
· Practical journals for lawyers (“Lawyer”, “Industry-Trade Law”, “etc.);
· other professional and popular journals, which include legislation (“Chief Accountant”, etc.).
· ETALON - Belarus Legislation Database – the official database in the Republic of Belarus is produced by the National Center of the Legal Information (NCLI).
· JUSIAS – by the information-legal agency “Registr”. To work with this database you need to have password. Fee-based database.
· Consultant – by the “Yurespectr”, it is the department of a Russian firm. Only information about the firm and its products. To work with database you need to buy it.
· The National Legal Internet Portal of the Republic of Belarus - This portal contains (in English) all information about the legal system of the Republic, legal acts, information about state superior bodies, ministries and state committees, region administration bodies, and much other useful information. This is the main Internet legal resource of the Republic of Belarus and it has connection with all the others legal Internet resources of the Republic.
· The official site of the National Center of the Legal Information.
· The Internet version of the ETALON Belarus Legislation Database provides access to the actual Belarusian legislation.
Practically all Belarusian newspapers and journals have their own Internet sites, but they are all in Russian.