Belarusian law students enrolled at European Humanities University are filing reports with JURIST on current circumstances in Belarus under the constitutionally-disputed presidency of Alexander Lukashenka. Ulyana Belaya and Katsiaryna Vasilionak file this dispatch from Vilnius, Lithuania.   

Back in 2020 presidential elections happened in Belarus, followed by massive protests and even more massive waves of repressions. Since then, the Belarusian regime has been “inventive” in the legal ways of the pressure. This way, in 2022 the Criminal Code was changed, introducing an opportunity for criminal proceedings to be brought in the absence of the accused. Another example of  pressure on political activisits (even if they flee from the country and act in exile) is the confiscation of their property.

For example, some days ago Veranika Tsepkala posted on her Facebook page that her flat in Minks is being sold at an auction. Veranika’s husband, Valer Tsepkala, had applied to be a candidate for the presidential election in 2020. However, he denied of registration as a candidate. He and his wife, thus, joined the campaign of the only alternative candidate – Sviatlana Tsikhanouskaya. Later they left the country under the regime’s pressure. It may seem that living outside the regime means there are no ways it can affect you. Nevertheless, their flat was destroyed by security forces and is being sold at the moment.

Let us explain how such violation of the fundamental right to private property is possible.

On December 21, 2022 the Law of the Republic of Belarus “On the seizure of property” was adopted. Before explaining how it contradicts both national legislation and principles of international law, the way it was adopted must be mentioned.

According to the Belarusian Constitution, an adoption of a law is done firstly by the vote of the House of Representatives (the lower parliamentary house) and then by the Council of Republic (the upper house of the Parliament), later being signed by the President. All these procedures happened to the named law late at night on December 21, 2022. The session in the houses of Parliament were closed without any reasoning for that being published. Also, there had been no public discussion of the bill, despite legal provisions requiring for that. Moreover, the law was officially published with delay.

Moving to the substantive violations, the essence of the law is to create a process that can affect any citizen of the Republic of Belarus, regardless of where they are, facilitating political persecution.

The regime in Belarus asserts that:

1. The law was adopted “considering the need for immediate and effective response to existing threats to the national interests of the Republic of Belarus under a regime of special restrictive measures.”
2. Property confiscation will be carried out according to the following formulation: “compulsory seizure of property rights objects on the grounds of public necessity for the benefit of the Republic of Belarus, based on and in the order established by this Law.”
3. Confiscated property rights objects should become the property of the Republic of Belarus, with funds being transferred to the state budget.

It should be noted that the law mentions but does not elaborate on the enabling concepts of “unfriendly actions” and does not specify how to determine if a person is “under the control of foreign entities.” The understanding of “national interests” and “public necessity” also lies beyond legal norms. International bodies, such as the Human Rights Committee, regularly note that Belarus uses broad formulations in various legislative areas to lend formal legality to repressive restrictions.

The right to property is guaranteed by the Constitution of the Republic of Belarus: Article 13 enshrines it, and Article 44 guarantees the right to inviolability of property.

The law violates one of the fundamental principles of international law – the principle of good faith fulfillment of obligations. Article 8 of the Constitution of the Republic of Belarus recognizes the authority of international law principles.

The principle of the inviolability of private property is one of the fundamental principles of private law since Ancient Rome. It is enshrined as a principle in the Universal Declaration of Human Rights (Article 17).

Furthermore, although the International Covenant on Civil and Political Rights does not include direct protection of the right to property, it protects against arbitrary deprivation of property in the context of its provisions on the right to privacy. In many countries, such as the United Kingdom, the right to inviolability of property is enshrined at the highest level.

The Fifth Amendment to the United States Constitution states: “No person shall be deprived of life, liberty, or property without due process of law.”

This is not the case in Belarus, where, inheriting from the Soviet legal system, the following formulation is used: “property acquired by lawful means is protected by the state.” For instance, the Republic of Lithuania, aiming to depart from the Soviet legacy, enshrined the “sanctity” of the right to private property in its Constitution (Article 23).

Thus, both procedurally and in essence, this law violates the Constitution of the Republic of Belarus and international legal norms.

There are already cases of applying this law, including the auctioning of properties belonging to individuals active in the political process in recent years:

1. The apartment of Sviatlana and Siarhei Tsikhanouski was put up for auction (February 2023 for $66,000, much below market price). The auction started on March 6, and it was sold on July 26.
2. On March 6, the Minsk City Court decided to keep the property and bank accounts of Paval LAtushka under arrest. A land plot belonging to Latushka in the Minsk region, a building in the agro-town of Zhdanovichi, more than €31,800 and $21,800 in bank accounts, and other properties were seized.
3. In 2022, the property of the political prisoner Viktar Babaryka and his son Eduard Babaryka was put up for sale. Notably, among the sold assets were shares in companies.

The exact number of such enforcement proceedings is unknown. We can only see the tendency to have more of such cases, as now the procedure is quite usual for the authorities. The case of Tsepkala’s family is a notable example, especially taking into account that the Belarusian regime confiscates the flat their children are registered. According to Belarusian law, it is impossible to basically deprive minors of place of residence.

In conclusion, this law and its examples is another obvious demonstration of the legal crisis in Belarus.