Legal Research in Belarus

By Darya Sarbay

Darya Sarbay is the Attorney at Law of the Allford Group Law Office. Darya is a member of the Firm’s dispute resolution practice and deals with general commercial practice. Previously she worked at the Legal & external affairs department of the British American Tobacco (Minsk office). Darya is a graduate of the Belarusian State University, Law Faculty. Nowadays Darya is LLM student at the Belarusian State University, Legal Regulation of Foreign Economic Activity (Minsk, Belarus). She is a participant of the prestigious competitions in law, including Willem C. Vis Commercial Arbitration Moot 2018 (Vienna, Austria), M. Rosenberg Competition in International Commercial Arbitration “VAVT-2019 – International Sale” (Moscow, Russia).

Published March 2019

(Previously updated by Nadia Shalygina in February 2008, August 2011, and October 2013)

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1. Introduction

The Republic of Belarus is а unitary state in Eastern Europe. It gained independence after the liquidation of the USSR. The declaration of 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 a 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 the legislature, executive and judiciary.

2. The Parliament and the Government

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 the Council of the Republic consists of 8 deputies from each region (oblast) (6 regions) and the city of Minsk, elected by the meetings of deputies of local councils of deputies. The 8 members of the Council of the Republic are appointed by the President. 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 exercised 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 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. He is appointed by the President of the Republic of Belarus with the consent of the House of Representatives. 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).

3. Local Government and Self-Government

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 (region, city, etc.). Councils of deputies are the legislative bodies at 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.

4. The Presidency

The people of the Republic 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 Holding Republican Referenda. The Central Commission of the Republic of Belarus on Elections and Holding Republican 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 Parliament 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 Holding Republican 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 and Supreme Court, 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, which have obligatory force in all territories of the Republic.

5. The Judicial System

The judicial system of Belarus is formed according to the Constitution of the Republic of Belarus, the Judicial System and the Status of Judges Code and by the Constitutional Justice Act.

The system of courts in Belarus is based on the territorial principle and specialisation. It includes the Constitutional Court and the System of courts of general jurisdiction.

The system of courts of general jurisdiction is:

  • the Supreme Court of the Republic of Belarus,
  • regional (Minsk city) courts,
  • economic courts of the regions (the city of Minsk),
  • district (city) courts.

The Supreme Court is the highest judicial body which carries out justice on civil, criminal cases and affairs about administrative offences, carries out supervision of judicial activity of the courts of general jurisdiction and realizes other powers according to law.

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.

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 are elected 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 Constitution of the Republic of Belarus and to the instruments of international law ratified by the Republic of Belarus.

Bodies of judicial community are:

  • The Congress of Judges (the highest body of the judicial community, which exercise its powers in the composition of judges of the Constitutional Court, courts of general jurisdiction and retired judges);
  • The Republican Council of judges (the body of the judicial community, exercising their powers between the congresses of judges and the republican conferences of judges);
  • Conferences of judges of regional (Minsk city) courts and economic courts of regions (Minsk city);
  • Higher Qualification Board of Judges of the Supreme Court, Qualification boards of judges of regional (Minsk city) courts and economic courts of regions (Minsk city).

According to the article 62 of the Constitution, the protection of the rights and freedoms by a competent, independent and impartial court is guaranteed for everyone.

Only the members of the Belarusian Bar Association have right to protect and to represent individuals and organizations in criminal, civil and economic cases and cases of administrative offences. All these attorneys must have the license for advocacy. They can work in their own bureaus or in the bars.

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 International Arbitration Court (Tribunal) Act). 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 International Arbitration Court (Tribunal) Act).

The International Arbitration Court, the “Chamber of arbitrators at the Union of lawyers” (the International Chamber of Arbitrators) “has a status of a non-governmental, non-commercial organization operating on a reimbursable basis, which is created by a non-commercial organization, the main purpose of which is to assist external economic relations with foreign legal entities and individual entrepreneurs.” (Art. 6 and 7 of the Law On International Arbitration Court). Its competencies include consideration of disputes of economic character between non-residents and residents of the Republic of Belarus.

According to the Arbitration Tribunals Act (18th July 2011) 4 arbitration tribunals have been created in the Republic of Belarus as the independent legal entities, also 26 tribunals as the structural divisions of the legal entities have been created, 229 arbitrators have been licensed and registered. The control over the activities of the tribunals and arbitrators is carried by the Ministry of Justice.

Mediation is also used in Belarus as a form of alternative dispute resolution. The Mediation Act regulates relevant relations.

Economic Court of the Commonwealth of Independent States was formed according the Agreement on the measures on improvement of payments between entities of the Commonwealth of Independent States (CIS) countries. 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) started its work in Minsk on January 1, 2012. In conformity with article 13 of the Statute of the Court of the Eurasian Economic Community of July 5, 2010 the jurisdiction of the Court comprises:

  • ensuring uniform application of the Treaty on the Establishment of the Eurasian Economic Community of October 10, 2000 and of other international treaties in force within the Community and of decisions of the EurAsEC bodies;
  • adjudicating economic disputes between the Parties, arising in point of implementation of either decisions of the EurAsEC bodies or provisions of the international treaties in force within the EurAsEC;
  • interpreting provisions of the international treaties in force within the EurAsEC and of the decisions of the EurAsEC bodies.

In view of forming of the Customs Union the Court shall:

  • try cases on the compliance of the acts of the Customs Union bodies with international treaties that make up the legal framework of the Customs Union;
  • try cases concerning contested decisions, actions (omissions) of the Customs Union bodies;
  • interpret either international treaties that make up the legal framework of the Customs Union or decisions adopted by the EurAsEC bodies;
  • decide disputes between the Customs Union Commission and the member- states of the Customs Union as well as between the member-states of the Customs Union by themselves on the fulfilment of commitments undertaken within the Customs Union.
  • The jurisdiction of the Court may also comprise other disputes if their resolution is provided by the international treaties within the EurAsEC and the Customs Union.

6. The Legal System

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) 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, 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 , which 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 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.

7. The Structure of the Legal Documentation in the Republic of Belarus

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:

In accordance with the Decree of the President of the Republic of Belarus No. 3 from February 24, 2012, “On some issues of publication and entry into force of legal acts of the Republic of Belarus,” the printed edition of the National Register and its electronic version are official sources for legal acts publication. The electronic version of all regulatory legal acts is subject to publication on the National Legal Internet Portal of the Republic of Belarus.

The Constitution is the supreme law of the country. It has the supreme juridical power in the Republic. All acts, decrees, decision and other legislation acts issued on the base and correspond to the Constitution.

There are constitutional acts and common acts. Constitutional acts are legislative acts like the “Declaration of the State Sovereignty” from August 25, 1991 and acts 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. Constitutional acts, like other acts, are published in the “National Register of the Legal Acts of the Republic of Belarus.”

The Belarusian legal system has 26 codes, which regulate all spheres of life: Civil Code, Civil Procedure Code, Criminal Code, Criminal Procedure Code, Economic Procedure Code, Labor Code, Tax Code (2 parts), Education Code, 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, Air Code, Housing Code, Budget Code, Judicial System and Status of Judges Code and etc. The most important codes of Belarus are based on the modelling legislation approved by Inter Parliamentary Assembly of the States of the Commonwealth of Independent States (CIS). They all have the same juridical power in their own fields. All codes are published at the “National Legal Internet Portal of the Republic of Belarus.”

Acts 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.

Parliament also enacts the Regulation of the Parliament and Decisions of the Chambers of the Parliament. 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 on the “National Legal Internet Portal of the Republic of Belarus”.

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 on the “National Legal Internet Portal of the Republic of Belarus”.

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 on the “National Legal Internet Portal of the Republic of Belarus”. 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 English) are the acts of legislation regarding general questions of management, economy, culture, science, etc., under the Constitution of 1996. They are published on the “National Legal Internet Portal of the Republic of Belarus.” 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) 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 on the “National Legal Internet Portal of the Republic of Belarus”. 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 on the “National Legal Internet Portal of the Republic of Belarus.”

Decisions and the explanations of Plenums of the Supreme Court are published on the “National Legal Internet Portal of the Republic of Belarus,” “Sovietskaya Belorussia,” and in the “Sudovy vestnik.”

Acts of legislation of the local authorities regulate economic, political, cultural life in the distinct regions (6 total) and districts of Belarus. They issue decisions and publish them on the “National Legal Internet Portal 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 on the “National Legal Internet Portal of the Republic of Belarus”.

The main source of the legislation about normative acts is the Regulatory legal enactment from January 10, 2000 (the last update 02.07.2009).

8. Sources of Publication

Official:

  • The Code of Laws includes 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 Register consists of nine sections, each of which contains legal acts of a specified kind. The following acts are subject to inclusion into the National Register:
    • The Constitution of the Republic of Belarus;
    • Decisions of republican referenda;
    • Decrees, Edicts, Executive Orders of the President of the Republic of Belarus;
    • Laws of the Republic of Belarus;
    • Treaties of the Republic of Belarus;
    • Decisions of the House of Representatives and the Council of the Republic of the National Assembly of the Republic of Belarus;
    • Decisions of the Government of the Republic of Belarus and Executive Orders of the Prime-Minister of the Republic of Belarus;
    • Resolutions and other decisions of the Constitutional Court, except for inquiries, requirements and other procedural decisions;
    • acts of the Plenum of the Supreme Court on application of Belarusian legislation, arising at legal proceedings;
    • acts of the Plenum of the Supreme Economic Court on application of Belarusian legislation in the sphere of entrepreneurial and other economic activity in the territory of the Republic of Belarus;
    • legal acts of the Administration of the President of the Republic of Belarus, unless otherwise provided by the Head of the Administration of the President of the Republic of Belarus;
    • normative legal acts of state bodies directly subordinated to the President of the Republic of Belarus, except for the Administration of the President of the Republic of Belarus;
    • normative legal acts of the National Bank, the National Academy of Sciences of Belarus, ministries and other republican bodies of state administration;
    • normative legal acts of oblast, Minsk City Council of Deputies, oblast executive committees, Minsk City Executive Committee, local Councils of Deputies, executive and administrative bodies of base level;
    • decisions of oblasts, Minsk City and local referenda;
    • other normative legal acts of the Republic of Belarus.

Legal acts included into the National Register are published in the official printed edition of the National Register and its electronic version.

Since July 1, 2012, the only source of official publication of legal acts registered in the National Register of Legal Acts of the Republic of Belarus is the National Legal Internet Portal of the Republic of Belarus (Portal) – the main state Internet resource in the field of law and legal informatization. The date of official publication of the legal act is the date of its placement on the portal.

In addition, these legal acts may be made published in the following official periodicals:

Others:

Practically all Belarusian newspapers and journals have their own Internet sites, but they are all in Russian.

9. Legal Databases

  • 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 a 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.
  • Business-info – by LLC « Professional Legal System»
  • Expert – by the additional liability company «Expertcenter»

10. Internet Resources