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Commentary to the Law of the Republic
of Belarus "On introduction of changes and amendments to several legislative
acts of the Republic of Belarus on the issue of strengthening responsibility
for acts against a person and public security"
While drafting the Law
of the Republic of Belarus "On
introduction of changes and amendments to several legislative acts of the
Republic of Belarus on the issue of strengthening responsibility for acts
against a person and public security" due attention had been given to
experience and legislation of other states, for instance, the Russian
Federation, Belgium, Germany, the Netherlands, Denmark, Sweden, and
Switzerland.
The Law
has
established responsibility for the activities of political parties, other
public associations and religious organisations that entail impediment of
the execution by citizens of their state, public and family duties (Part 1,
Article 193 of the Criminal Code of the Republic of Belarus as amended by
the Law). This amendment corresponds to the provision, contained in Part 3,
Article 16 of the Constitution of the Republic of Belarus, which states that
activities of religious organisations are prohibited if such activities
impede the execution by citizens of their state, public and family duties.
The obligatory requirement for the
criminal responsibility to occur is that activity of a political party,
other public association, or a religious organisation is associated with
violence against citizens or with causing them physical injuries, or with
infringement of rights, freedoms and lawful interests of citizens, or with
impeding fulfilment by citizens of their state, public, family commitments,
i.e. those commitments which are imposed upon them by the legislation.
New Article 193-1 contains the provisions
that supplement article 193 of the Criminal Code. According to the Laws of
the Republic of Belarus "On political parties", "On public associations",
"On freedom of conscience and religious organisations" political parties,
public associations and religious organisations are subject to the mandatory
state registration. For example, Article 7 of the Law of the Republic of
Belarus "On political parties" stipulates that the activity of
non-registered political parties and associations on the territory of
Belarus is prohibited. These laws also provide for the terms and procedure
of suspending, prohibiting and liquidating of such public associations.
At the same time, until recently there
were no effective mechanisms in Belarus to apply these norms. The purpose of
the new article is to stop activities of political parties, public
associations, religious organisations and foundations which are subject to
liquidation (suspension of activity) in accordance with a decision of an
authorized state body, as well as those aforementioned organisations that
have not been re-registered in line with the existing procedure.
Article 193-1 of the Criminal Code sets
responsibility for failing to implement a decision of the court or another
state authority, which has prohibited or suspended activity of a political
party, other public association, a religious sect or a foundation, or for
continuing their activities in spite of the denial of their registration.
It is important that actions to correct
the violations that have created legal grounds to suspend activity of a
party, other public association, a foundation or a religious organisation do
not form a criminal offence (corpus delicti).
Persons who voluntary cease their unlawful
activity and inform about this appropriate state authorities, for example,
the Prosecutor’s Office or other law-enforcement agencies,
are exempted from the criminal responsibility.
The law provides for additional measures
to maintain public order, preservation of which is directly linked to the
protection of an individual and of his/her constitutional rights and legal
interests. To this end articles 293 and 342 that envisage responsibility for
mass disorder and group violation of public order, are supplemented with the
norms that introduce responsibility for actions to train or in any other way
to prepare persons for participation in committing such crimes.
International practice of recent years has
demonstrated the insufficiency of opposing new global challenges and threats
by force alone. Nowadays we are facing the task to create effective
mechanisms to counter challenges and threats at an early stage and in a
pre-emptive way.
These amendments in the legislation pursue
an aim of suppression of aforementioned crimes at the stage of preparation
to commit them by introducing enhanced responsibility for actions directed
at destabilization of public order and public security in comparison with
the common order of legal assessment, described in Article 13 of the
Criminal Code.
The point at issue is not about "any
educational activity" or "mass events", but about the deliberate training on
how to organize mass disorders, accompanied by violence, arsons, pogroms and
destruction of property, as well as on how to organize and conduct armed
resistance to the authorities.
The amendments to the Articles of the
Criminal Code do not extend to preparation and carrying out unauthorised
mass events (including gatherings, meetings, street processions,
demonstrations and picketing), if such events are not directed at organizing
mass disorders or group activities that breach public order. Carrying out
unauthorised mass activities and breaching the order of their conduct imply
only administrative responsibility, set in Article 167-1 of the Code of
Administrative violations of the Republic of Belarus of December 6, 1984.
Responsibility has also been established
for those who finance such training or preparation, create for these
purposes necessary conditions, for example, provide premises, training
grounds and necessary equipment for trainees, etc. There are similar
supplementary amendments contained in the article, which sets responsibility
for organisation or participation in group acts that breach public order and
involve evident disobedience to the legitimate demands of the authorities or
interfere with the normal operation of transport, enterprises,
establishments or organisations.
Article 357 of the Criminal Code provides
for the responsibility for seizure or retaining of the state power in an
unconstitutional way as well as for a conspiracy with such a purpose.
Presently other activities (except for a
conspiracy) that are aimed at seizure or retaining of the state power in an
unconstitutional way are meant to be qualified as the preparation for
seizure of state power or an attempt to commit that crime.
As a result of the amendments, introduced
into Article 357 of the Criminal Code, the moment of having committed a
crime, stipulated in this article, shifts to an earlier stage. As a result,
actions with a view to seize or retain the state power in an
unconstitutional way will be considered as a crime that has already been
committed.
The Law contains norms that provide for
additional measures to protect constitutional foundations of the Belarusian
state and society, and to protect Belarus from insults and other kinds of
fabrications meant to undermine the authority and reputation of the state
and its credibility at the international scene.
Such norm has been included in part 2,
which supplements Article 361 of the Criminal Code setting responsibility
for public appeals to overturn or change the constitutional system of the
Republic of Belarus or to commit crimes against the state. In accordance
with this amendment, appeals to a foreign state, foreign or international
organisation to take actions harmful to the external security of the
Republic of Belarus, its sovereignty, territorial integrity and defence as
well as dissemination of materials containing such appeals (written,
electronic, audio-video materials) will be considered a crime.
Article 369-1 "Defamation of the Republic
of Belarus" has established responsibility for providing a foreign state,
foreign or international organisation with knowingly false information on
political, economic, social and military situation in the Republic of
Belarus, legal standing of Belarusian citizens.
Contrary to the criminal legislation of
Poland, which provides for the responsibility for the insult of the Nation
or the Republic of Poland, or, for example, the legislation of the
Netherlands, which provides for the responsibility for defamation, Article
369-1 contains a detailed definition of this crime with a minimal number of
evaluative notions.
In the context of this criminal norm
knowingly false information is defined as unreliable and not corresponding
to reality data (information) on facts, events and phenomena. One's personal
views, opinions and judgements do not constitute the notion of
"information".
"False information" will be considered the
data about facts, events, actions that have never taken place in reality
("entirely fictitious information") or the data, which substantially distort
facts, events or activities that took place in reality. For example, actions
could have taken place, but at different time or place, in relation to a
different state or authority (organisation), or by a different state or
authority (organisation), to which they are attributed.
False information may be provided in oral,
written or electronic form, including in fraudulent documents, audio- or
video records and non-existing legislative documents.
By its content false information
discredits, i.e. presents in a negative context political, social, military
or international situation in Belarus or legal standing of Belarusian
citizens, undermines the trust to Belarusian state, diminishes the authority
of Belarus or its state bodies before other countries, foreign or
international organisations.
It is pointed out in the article that
information must be knowingly false, i.e. a person must perceive that
information provided by him/her to a foreign state, a foreign or an
international organisation is not credible. If a person is mistakenly
presuming that this information corresponds to reality, then this person is
exempted from criminal responsibility.
Providing a foreign state, a foreign or an
international organisation with one's personal opinions, views or judgments
of the situation in Belarus or legal standing of Belarusian citizens without
adduction of knowingly false data does not constitute a crime.
The Law supplements Article 382
"Unauthorized assumption of an official title or functions of an official"
with a provision according to which criminal responsibility will be extended
to acts of unauthorized assumption of the title or functions of an official
of the Republic of Belarus, which involves on this grounds participation on
behalf of the Republic of Belarus in negotiations or meetings with official
representatives of foreign states, foreign and international organisations
or in sessions of international organisations.
In this article "unauthorized" means that
a perpetrator has no legal grounds to perform functions of an official (a
representative of authority), but makes others believe that he/she is the
official thus misleading other persons about his/her status and authority. |
