Case P-671/2011

Decision No. P-671/2011
Download Judgment: English Belarusian

The Constitutional Court considered the constitutionality of the Belarusian law On Making Alterations and Addenda to the Law of the Republic of Belarus ‘On guarantees on social protection of orphan children, children left without parental care, and also individuals who belong to the category orphan children and children left without parental care’ (“Orphan Law”). The Orphan Law established certain mechanisms to guarantees social protection for orphans or children without parental care.

The Court weighed the provisions contained in Articles 1, 2, and 7 of the Orphan Law regarding the social rights of orphan children and children without parental care, including appropriate education and adequate living conditions, with the obligations of the Belarus Constitution and the Convention on the Rights of the Child. The Court also assessed a new edition to Article 12, which regulated the process of granting guarantees on the right to housing.

The Court held that the Orphan Law was constitutional. The Court reasoned that the law was consistent with the social nature of the state, for example, by providing state support for orphan children and children left without parental care, irrespective of whether they received pension benefits, until after they get married. Likewise, the law allowed for leave for medical reasons or due to a call to military service to take care of a child under three years old.   The Court found these provisions to be consistent with constitutional requirements because the constitution allows the legislature to provide benefits and privileges for certain categories of people taking into account the financial capacities of the State.

“According to the Constitution childhood is under the protection of the State; parents or persons acting as parents have the right and are obliged to raise their children and to take care of their health, development and education; no child shall be subjected to cruel treatment or humiliation or engaged in work that may be harmful to its physical, mental or moral development; young people shall be guaranteed the right to their spiritual, moral and physical development (Article 32 parts 1,3, 6).” Page 2.

“To create for orphan-children and children left without parental care adequate living conditions, to provide them with decent living standards, Article 1 points 6,7 of the Law are dedicated, according to which the process of reimbursement of expenses for upbringing orphan-children and children left without the parental care are specified, including while they obtain an appropriate education in public educational institutions of the Republic Belarus.” Page 3.

“Based on the objectives of the Law and the subject of its regulation, the Constitutional Court finds that the replacement of direct action norms by reference norms shall not be considered as limitation of rights and lawful interests of citizens or as if it worsens the quality of the legislative regulations. The use of a reference norm is possible only in connection with provisions of other acts, what results a uniformity of the legislative regulation in part of defining the ground for recognition of the need in improving housing conditions and provision with social use housing of the state’s housing fund and law enforcement.” Page 4.