Protection of the Rights of Foreign Citizens in the Republic of Belarus

Today, Belarusian lawyers more frequently than ever have to deal with the situations when not only legal entities, but citizens of foreign nations seek protection of their legal interests and rights on the territory of the Republic of Belarus. This tendency is directly connected with the country’s increasing involvement in the international processes of exchange of persons, labor, and capital. Nowadays foreign citizens have become more engaged in various types of activity in the republic, business as well as matters of non-commercial nature. Due to their special legal status, foreigners need to regard carefully every legal aspect of their life and activity in Belarus.

Legal protection of the foreign citizens’ interests in the Republic of Belarus is provided by national legislation as well as international obligations of the Republic of Belarus. Meanwhile, the Constitution of the republic declares prevailing legal force of the provisions of international law over national laws.

The basic legislative act outlining the legal status of foreign citizens is the Law on Legal Status of the Foreign Citizens and Stateless Persons dated June 3rd, 1993 (hereinafter – “the Law”). According to the Law, foreigners in the Republic of Belarus enjoy the same rights and freedoms as citizens of the republic, with some exceptions concerning mandatory military service, right to vote and to be elected, official state posts, etc. Among these rights, the Law specifically provides for: personal immunity, inviolability of the home, choice of the place of residence, right to conduct labor or business activity, right to education, right to enter into marriage, and other rights and freedoms. The state guarantees protection of all these rights which can be restricted only on exceptional occasions, for example, for the purpose of protection of rights and basic freedoms, health of the Belarusian citizens, provision of national security, enforcement of public order. Besides, the Law establishes the principle of reciprocity, i. e. certain limitations may be imposed on rights of citizens of the states which infringe the respective rights of the citizens of the Republic of Belarus.

The effective Belarusian legislation provides for a sufficient protection of the activity of the foreign citizens that invest in the economy of the republic. Thus, in compliance with the Investment Code of the Republic of Belarus that entered into force on October 9th, 2001, the foreign investors – physical persons – are granted the same rights and guarantees as the other categories of the investors. The state guarantees to the investor the right of ownership and other lawfully acquired rights of property, and protects these rights. According to the provisions of the Code, stability and equality of the investor’s rights with the other investors, and their protection is guaranteed to the investor. A foreign investor has a right to dispose at his own discretion of the income from the investment activity, including unhampered transfer of such income beyond the boundaries of the Republic of Belarus. The legislation excludes the possibility of non-repayable nationalization or requisition of the investments. In case of non-observance of the above mentioned guarantees and rights the investor has a right to seek protection of his lawful interests in court. In the present day conditions, foreign citizens have broad opportunities of investing their capital in the Republic of Belarus, including such as organization of industrial manufactures, founding of the enterprises in the sphere of services, investing in the securities of the Belarusian companies, purchasing of the real estate. Investments in the real estate demand especially thorough legal supervision, basically examination of the legal paperwork proving the rights to the immovable assets, elaboration of the contracts related to the purchase, as well as lawyer’s control of all legally binding actions in the process of purchasing. Besides that, it is important to be familiar with the practical application of legislation on the real estate: it may become an unexpected detail for the investor that foreign citizens may not purchase apartments in the capital of the republic – Minsk, and the contract on sale of the apartment is a typical one, so every desired additional term of the contract is subject to negotiation with the notary public that will certify the contract.

The principle of granting to the foreign citizens equal rights and freedoms with the citizens of the Republic of Belarus established by the Constitution is applied in all spheres, including family relations. Thus, according to the Code of the Republic of Belarus on Marriage and Family dated July 9th, 1999 foreign citizens may enter into marriage on the territory of the republic and enjoy the same rights with the citizens of Belarus, including parental rights and the opportunities of their protection. The practice proves that foreign citizens need legal assistance in connection with their family matters rather frequently: for example, elaboration of a marriage contract, fair division of property in case of divorce, protection of the rights to participate in upbringing of the children, living and communicating with them.

Common have become the situations when foreign citizens seek to protect their rights in Belarusian courts in compliance with the Belarusian legislation on civil procedure. Rules of jurisdiction stipulated by the new Code on Civil Procedure of the Republic of Belarus (effective since January 11th, 1999) allow a foreign citizen to file a claim to a Belarusian court against civil defendants who have their domicile, or residence, or center of location on the territory of the republic. Foreigners bear all civil procedure rights equally with the Belarusian citizens, such as: the right to file claims, alter subject, grounds, and amount of the claim, conclude agreement of lawsuit, renounce a suit. In general, the effective legislation provides substantial guarantees for the foreigner to have his lawful interests protected in the fair and impartial court hearing.

However, one should note that the above listed rights and opportunities provided by the Belarusian law may be realized to their highest extent only with professional assistance. A tendency to rely on personal experience, as well expectations that provisions of law and court procedures in Belarus should be similar to those existing in the foreigner’s home country, appear to be false and misleading. Such attitude towards protection of the rights of a foreign citizen may significantly deteriorate his chances of to achieve these goals.

Besides, language barrier may become a significant obstacle to ensuring the interests of a foreigner. Therefore, in order to avoid misunderstanding concerning the requirements of the legislation, or false interpretation of the court procedures or legally binding actions, a foreigner should either employ a translator with good knowledge of legal/other necessary special terminology, or resort to the assistance of a qualified lawyer who is fluent in the foreigner’s native language.

The Republic of Belarus has undertaken, in compliance with its international treaties, a wide range of obligations that ensure protection of lawful interests of foreign citizens. Nowadays, bilateral treaties on mutual legal assistance, covering a wide range of legal issues in the relations between the parties, have proven to be the most effective tools to enforce rights of the foreign citizens on the territory of the Republic of Belarus. However, up to date such treaties have been concluded with a limited range of nations including China, Cuba, Hungary, Latvia, Lithuania, Poland. The republic is also a party to universal conventions, including those elaborated and concluded under the auspices of the United Nations. One should note that universal conventions, as a rule, have a special mechanism of application, so the extent of the measures of legal protection may vary in relation to the citizens of the states – parties to a convention.

Foreign citizens in the Republic of Belarus dispose of a sufficient range of measures and legal tools provided by the effective legislation to protect their rights and interests, whether they need legal assistance in business, family life, or other type of relations. The full realization of these measures depends on the foreigner’s careful and thoughtful approach towards the matters of protection of his rights, as well as professional assistance of an experienced and qualified domestic lawyer.

Maksim V. SALAHUB,

Attorney-at-law

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