A person has the right to leave his or her property to one or several persons included or not included in the list of heirs under law, and has the right to deprive of an inheritance any and all of the heirs under law (including a surviving spouse) without giving a reason, in accordance with Art. 1041. Male and female heirs have the same right to inherit property in case the deceased does not leave a will, for example, the first-order heirs are the deceased’s children, surviving spouse, parents, and grandchildren, and second-order heirs are siblings and half siblings of the deceased, and their children in accordance with Arts. 1057-1061.
Belarus
Legislation
Marriage and Family Code Chapter 10: Personal Non-Property Relations in the Family (1999)
Under Art. 75, both parents exercise parental authority equally, meaning that all issues regarding the forms and methods of upbringing, education, religion, organization of free time among other child-rearing matters, require mutual agreement. Disagreements between parents on raising children are resolved in the courts.
Marriage and Family Code Chapter 6: Termination of Marriage (1999)
Under Art. 34, a marriage can be terminated upon a joint application of both spouses or at the request of one spouse. Under Art. 35, the termination of a marriage is prohibited during the pregnancy of the wife and before the child has reached the age of three without the written consent of the other spouse, unless the other spouse does not live with the child, or there is a decision determining that another person is the father of the child. In accordance with Art. 39, upon receiving a claim for divorce, the court grants the couple a three-month period to take measures for reconciliation and to reach an agreement on division of property and childcare; after the expiration of the three-month period, the court grants the divorce if it finds that “the preservation of the family has become impossible.” However, when considering the claim for divorce, the court takes measures aimed at preserving the family and may grant an additional reconciliation period of up to six months. The court decides with which of the former spouses the child/children will live and the participation in the upbringing of the child of the other parent, as well as the amount of alimony that the other parent will pay in accordance with Art. 39.
Marriage and Family Code Chapter 5: Rights and Obligations of the Spouses (1999)
Under Art. 20, spouses decide on issues related to their marriage and family relations jointly, by mutual agreement, and on the basis of equality. The relationship between the spouses must be based on mutual respect, assistance, and fair distribution of responsibilities. Spouses also have the right to resolve issues related to their personal interests independently. Spouses may choose any of their last names, a double last name, or leave their last name unchanged at their individual discretion in accordance with Art. 21. Both spouses are free to choose their occupation, profession, and place of residence in accordance with Art. 22. Under Art. 23, all property acquired during a marriage, even if one of the spouses did not have independent income during the time of the marriage due to being engaged in housekeeping or childcare, is the common joint property of the spouses. Both spouses have equal rights to the possession, use, and disposal of such property. However, property belonging to one spouse before marriage and property received during marriage by gift or inheritance remains the property of that spouse in accordance with Art. 26. In the event of division of the common joint property of the spouses, the property is divided equally in accordance with Art. 24.
Marriage and Family Code: Chapter 3 (General Provisions) and Chapter 4 (Entering into Marriage) (1999)
Marriage is a voluntary union between a man and a woman in accordance with Art. 12. Under Art. 18, the legal age for marriage is 18, but it can be reduced by up to three years in case of pregnancy, childbirth, or if the person has reached full legal capacity. Such reduction is carried out based on the application of the person wishing to marry and the consent of a parent or guardian is not required.
In accordance with Art. 1, all married couples and individuals have the right to freely decide on the number of children, periodicity and time of their birth, and to have the necessary information for such decisions.
The “social indications” noted in Art. 27 of the Law “on Healthcare” that allow performing an abortion up to the 22nd week of pregnancy are: (1) court decision on deprivation of parental rights regarding another existing child; and (2) pregnancy resulting from rape.
Under Art. 26, sterilization of a person may be performed in a State healthcare organization upon the written application of the person who has reached the age of 35 or has at least two children. In case there are “medical indications,” sterilization can be performed with the consent of the person if he or she is an adult, or a parent, guardian, etc., regardless of the age of the person or the number of existing children. Under Art. 27, women have the right independently to decide the issue of motherhood. A woman can terminate her pregnancy (abort) at a State healthcare organization, after consultation with a specialist doctor, if the term of pregnancy is no more than 12 weeks; if there are “social indications” listed in Resolution of the Council of Ministers of the Republic of Belarus No. 1580 dated 23 October 2008, a woman can terminate her pregnancy if the term of pregnancy is no more than 22 weeks. Pregnancy may be terminated regardless of the term of the pregnancy if there are “medical indications” and the pregnant woman consents to the termination. If the pregnant woman is a minor, abortion may be performed on the same conditions, however, the consent of her legal representative (parent/guardian) is required. Healthcare organizations must provide counselling for women who have applied for an abortion. A doctor may refuse to carry out an abortion if the refusal does not threaten the life or health of the woman and must make arrangements for another specialist doctor to perform the abortion.
Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus No. 35 (2014)
The Resolution lists “hard” work and work with harmful or hazardous conditions in which the employment of women is prohibited. The list features, for example, work that includes manually lifting and moving heavy loads, underground work in the mining and construction industries, work in the processing of oil, gas, and petroleum products among many others.
Art. 262 prohibits employing women in “hard” work and work with harmful or hazardous conditions (see Resolution of the Ministry of Labor and Social Protection of the Republic of Belarus No. 35 dated 12 June 2014 for a full list). Art. 263 prohibits engaging pregnant women in overtime work, work on holidays and weekends, work at night, and sending pregnant women on business trips; women with children under the age of 14 (and disabled children under the age of 18) can be engaged in such work with the worker’s written consent. Under certain conditions, pregnant women and women with children under the age of one and a half years are transferred to an “easier” position while maintaining the average earnings of her previous job under Art. 264. Under Art. 265, upon the application of a parent or stepparent raising a disabled child or two children under the age of 16, an additional paid day off is granted per week or month depending on the age of the child. Under Art. 267, women with children under the age of one and a half years are entitled to additional breaks to feed the child. It is prohibited to refuse to enter into an employment contract with a worker or reduce his or her wages for reasons related to pregnancy or the existence of children under Art. 268.
Labor Code Chapter 12: Employment and Social Vacations (1999)
Women are granted leave for reasons of pregnancy and childbirth for 126 calendar days (140 days if there are complications at birth). After the birth of the child, women are entitled to maternal leave for a period of up to three years in accordance with Arts. 184-185. During this time, women are paid a monthly allowance by the State.
Labor Code: Chapter 1 (General) and Chapter 2 (Conclusion of an Employment Contract) (1999)
Art. 14 prohibits employment discrimination; which is defined as restricting labor rights or obtaining privileges based on certain qualities or circumstances of a person, including gender. A person that believes he or she has been discriminated against can apply to a court to eliminate such discrimination. Art. 16 prohibits the unjustifiable refusal to conclude an employment agreement with a pregnant woman, woman with a child under three years of age, or a single parent of a child under 14 years of age or a disabled child under 18. Under Art. 23, conditions of an employment contract of a “discriminatory nature” are invalid.
Law No. 350-3 “on Countering Human Trafficking” (Amended 2014) (2014)
Law No. 350-3 defines human trafficking and sets out measures to prevent human trafficking and related crimes. These include identifying victims of trafficking, educating, and providing information to citizens on related issues. The law further sets out measures for the protection and rehabilitation of victims of trafficking, including ensuring their safety, providing temporary accommodation, legal, medical, and psychological assistance, among others. The law provides that persons guilty of trafficking in persons or related crimes are punishable in accordance with the legislative acts of the Republic of Belarus and the victim's "unwillingness or inability" to change his or her "anti-social behavior" caused by the trafficking does not eliminate or mitigate the offender's liability.\
The law includes a set of preventative measures aimed at preventing domestic violence among others crimes and administrative offenses. Art. 1 defines domestic violence as the intentional actions of a physical, psychological, or sexual nature against a family member that violate his or her rights, freedoms, or legitimate interests causing physical and/or mental suffering. Art. 1 further defines family members to include relatives, dependents and other persons that live together in a common household. Art. 5 defines the “actors of prevention,” which include various State agencies and Non-Governmental Agencies. The “actors of prevention” must annually develop and approve comprehensive regional programs for crime prevention, including programs to prevent domestic violence in accordance with Art. 11. Art. 17 provides the basic preventative measures against domestic violence, including identification and elimination of causes of domestic violence, educational and informational work to prevent domestic violence, record-keeping of domestic violence instances, provision of temporary shelters to victims of domestic violence, among others. Finally, Art. 31 allows the issuance of a protective order against a person who has committed domestic violence. A protective order can compel the offender temporarily to leave the premises jointly occupied with the victim and prohibit disposition of joint property.
Art. 343 prohibits the production and distribution of pornographic materials or items of a pornographic nature depicting minors, which is punishable by correctional work for up to two years, administrative arrest, restraint on liberty, or imprisonment for a term of up to four years, and by a term of up to eight years in case of aggravating circumstances.
Criminal Code Article 199 (Violation of Labor Legislation) (1999)
Art. 199 prohibits the unjustified refusal to hire or the unlawful firing of a person, including a woman for reasons related to her pregnancy. This crime is punishable by a prohibition to occupy certain offices or be engaged in certain activities, correctional labor, or imprisonment for a term of up to three years.
Criminal Code Article 190 (Violation of the Equality of Citizens) (1999)
Art. 190 prohibits intentional violation or restriction of rights and freedoms, or the establishment of advantages for citizens based on, for example, gender resulting in substantial harm to the rights, liberties, and lawful interests of citizens. This crime is punishable with a fine, correctional labor, restraint on liberty, or imprisonment for a term up to two years, as well as restrictions to occupy certain offices or be engaged in certain activities.
Criminal Code Articles 139 (Murder), 154 (Torture), and 291 (Taking a Person Hostage) (1999)
For several crimes set out in the Criminal Code, knowing commission against a pregnant woman is an aggravating circumstance that increases the sentence. Murdering a pregnant woman is punishable by imprisonment for a term of 8 to 12 years, life imprisonment, or the death sentence under Art. 139. Torture of a pregnant woman is punishable by restraint on liberty for a term of one to three years or imprisonment for a term of one to five years under Art. 154. Taking a pregnant woman hostage is punishable by imprisonment for a term of 6 to 12 years under Art. 291.
Art. 181 defines trafficking in persons as the “recruiting, transporting, transferring, harboring, or receiving a person” for the purposes of exploitation by deception, abuse of trust, or use of violence, or threat of such violence. Trafficking in persons is punishable by imprisonment for a term of three to seven years and for a term of up to 15 years if committed in aggravating circumstances, such as, knowingly against a pregnant woman or a minor, or with the removal of the person outside of the country, among others. Art. 181 also notes that “exploitation” means the illegal coercion of a person to work or provide services, for example, sexual acts and surrogacy when the victim, for reasons beyond his or her control cannot refuse to perform such work or services. Art. 1811 criminalizes the use of slave labor and other forms of exploitation. In the absence of signs of criminal behavior described in Art. 180, the crime is punishable by imprisonment for a term of two to five years, with a fine, but for a term of up to 12 years if committed in aggravating circumstances, such as knowingly against a pregnant woman or minor. Arts. 182-185 criminalize kidnapping, unlawful deprivation of liberty, and coercion. Art. 186 prohibits threats of murder, infliction of grievous bodily harm, or destruction of property if there was reason to fear fulfillment of the threats. An Art. 186 crime is punishable by community service, fines, correctional labor, or restraint on liberty or imprisonment for a term of up to two years.
Criminal Code Chapter 20: Crimes Against Sexual Inviolability or Sexual Freedom (1999)
Art. 166 of the Criminal Code defines rape as “sexual intercourse against the will of the victim with the use of violence” or threat of such violence against the woman or her relatives, or using the woman’s helpless state. Rape is punishable by restraint on liberty for a term of up to four years or imprisonment for a term of three to seven years. Rape in aggravating circumstances, including repeated rape, rape by a group of people, or rape by a person who has previously committed sexually violent acts, is punishable by imprisonment for a term of five to thirteen years and knowing rape of a minor or rape that causes grave consequences (e.g., death, bodily harm, or HIV infection) is punishable by imprisonment for a term of 8-15 years. Art. 167 likewise prohibits violent acts of sexual nature, such as “sodomy” or “lesbianism” against the will of the victim with the use of violence or threat of such violence, or using the victim’s helpless state. The punishments for committing an Art. 167 crime in aggravated circumstances are the same as those for rape. Art. 168 prohibits sexual intercourse and other acts of a sexual nature with a person below the age of 16. This crime is punishable by, in case there are no signs of criminal acts set out above, restraint on liberty or imprisonment for a term of up to four years, with a fine. The punishment, in case the offender has previously committed the crimes described above, has duties owed to the victim, or the crime is committed by a group of persons, is imprisonment for a term of three to ten years. “Depraved acts” committed against a person below the age of 16 are punishable by imprisonment for a term of up to six years under Art. 169. Art. 170 criminalizes the compulsion to commit acts of a sexual nature by means of blackmail, threat of destruction of property, or by using the dependence (workplace, monetary, etc.) of the victim. The crime is punishable by restraint on liberty or imprisonment for a term of up three years, with a fine and prohibition to occupy certain offices. Such a crime knowingly committed against a minor is punishable by imprisonment for a term of three to six years. Arts. 171 and 171 prohibit the organization, use, or creation of conditions for prostitution, including by removing the victim outside of the country; such crimes are punishable by up to ten years of imprisonment.
Code of the Administrative Offences of the Republic of Belarus (2003)
Article 9.1 of the Administrative Code prohibits the intentional infliction of bodily harm and other acts of violence. This encompasses the intentional infliction of bodily injury which has not resulted in a short-term impairment of health or a minor permanent disability, battery, and the intentional infliction of pain, physical or mental suffering committed against a close relative or family member. If breached, the penalties are a fine or administrative arrest. Article 17.1 of the Administrative Code prohibits instances of insult and other actions that disturb public order. If breached, the penalties are a fine or administrative arrest.
Constitution of Belarus (2004)
The Constitution provides for the general principles of equality and non-discrimination. Article 4 provides that democracy shall be exercised based on diversity of political institutions, ideologies and opinions. It also provides that the ideologies of different entities may not be made mandatory for citizens. Article 14 provides that the State shall regulate relations among social, ethnic and other communities on the basis of principles of equality before the law and respect of rights and interests. Article 16 states that religions and faiths shall have equality before the law. Article 22 provides that “all shall be equal before the law and have the right to equal protection of their rights and legitimate interest without any discrimination.” Further, Article 32 of the Constitution contains general protections with respect to marriage, family, motherhood, fatherhood and childhood. In particular, it provides that “on reaching the age of consent, a woman and a man shall have the right to enter into marriage on a voluntary basis and found a family. Spouses shall have equal rights in family relationships” and women shall be guaranteed equal rights as men in their opportunities to receive education and vocational training, promotion in labor, social and political, cultural and other spheres of activity as well as in creating conditions safeguarding their occupational health and safety. Article 42 provides a right to equal pay. According to Art. 44, the State guarantees to every person the right to own property, meaning the right to own, use, and dispose of property individually or jointly with other persons. The right of ownership and inheritance are protected by law. Unofficial English translation available here.
Domestic Case Law
Decision of the Plenum of the Supreme Court No. 5 dated 22 June 2000 on Judicial Practice on Application of the Legislation when Considering Cases on the Termination of a Marriage Пленума Верховного Суда (Supreme Court of Belarus) (2000)
The Plenum of the Supreme Court held that divorce based on the claim of one spouse may be granted by the courts if “the preservation of the family has become impossible.” The passing of the three-month reconciliation period and the claim by one spouse is not enough for such a determination, rather, the courts must comprehensively analyze the relationship between the spouses, the motives for the claim for divorce, and the reasons for discord between the spouses with the participation of both spouses. The Plenum further held that if a court determines that there is evidence of the possibility of preserving the family, such as underage children, the duration of the marriage, the Court may, based on the request of one or both spouses, or on its own initiative, postpone the granting of the divorce and grant an additional six-months reconciliation period. The Plenum also determined that because divorce is not allowed during pregnancy and before the child reaches three years of age, unless the other spouse consents or certain other circumstances are established according to the Marriage and Family Code Art. 35, the husband is not permitted to bring a claim for divorce during this time. The Plenum further held that the common joint property of the spouses subject to division at the termination of a marriage is any movable and immovable property that can be the object of a person’s property rights acquired during the marriage. If it is established that one of the spouses alienated the common joint property against the will of the other spouse or contrary to the interest of the family, or hid property, such property or the value of it shall be taken into account at the division of property. If the spouses stopped running a common household before the division of property, only the property acquired during the existence of a common household shall be the joint common property subject to division. Property that was acquired during marriage through the personal funds of one of the spouses, property which belonged to one of the spouses before marriage, property acquired during marriage by gift or inheritance, or items “for individual use,” such as clothing, with the exception of jewelry and other luxury items, shall not be considered common joint property.
Decision of the Constitutional Court of the Republic of Belarus dated 17 July 2009 No. R-360/2009 Конституционного Суда (Constitutional Court of Belarus) (2009)
The Constitutional Court reviewed the constitutionality of Art. 14 of the Labor Code and Arts. 10 and 21 of the law “on Employment of the Population of the Republic of Belarus” and decided that, to ensure the completeness of legal regulation in the field of labor relations and the implementation of the constitutional right of citizens to work, it was necessary to add age and place of residence to the list of circumstances, based on which employment discrimination is prohibited. The Court specifically noted that the employer’s inclusion of requirements based on age, place of residence, or other circumstances that could be deemed discriminatory in job announcements creates the prerequisites for the violation of citizens’ constitutional rights, including the right of women to opportunities equal to those of men at work and career advancement.
Decision of the Constitutional Court of the Republic of Belarus 28 December 2011 No. P-672/2011 Конституционного Суда (Constitutional Court of Belarus) (2011)
The Constitutional Court reviewed the constitutionality of the law “on Amendments and Additions to the Code of the Republic of Belarus on Marriage and Family” dated 2011. The Court noted that the Constitution protects marriage, family, motherhood, fatherhood, and childhood. It further noted that the protection and strengthening of the family institution is an integral part of the State’s social policy and held that amendments to the Code are aimed at protecting the family. The Court further noted that the Constitutional guarantee on the equality of both spouses means equal rights and obligations, including the obligation, financially, to support the other spouse. This constitutional guarantee is implemented by the amendments to the Code as it expands the list of circumstances when one spouse can apply to a court for maintenance, including when that spouse is caring for a disabled common child. The Court also held that amendments to the Code establishing that certain contracts between the spouses, such as a prenuptial agreement and agreement on payment of alimony if they contain conditions regarding immovable property, have to be registered with the appropriate State organs, are aimed at ensuring legal certainty and consistency of legal regulation of marriage and family relationships. The Court held that the law “on Amendments and Additions to the Code of the Republic of Belarus on Marriage and Family” dated 2011 was constitutional as it was aimed at strengthening marriage and family institutions, and increasing the spouses’ awareness of their rights and responsibilities.
Decision of the Plenum of the Supreme Court No. 7 dated 27 September 2012 on Judicial Practice in Cases involving Crimes against Sexual Inviolability or Sexual Freedom (Arts. 166-170 of the Criminal Code) Supreme Court of Belarus (2012)
The Plenum of the Supreme Court explained (i) that rape (Art. 166 of the Criminal Code) can be committed against women only, while violent sexual acts (Art. 167 of the Criminal Code) can be committed against both women and men, and (ii) that the victim’s circumstances, for example previous commission of a crime, lifestyle, or marital relationship to the offender, do not prohibit conviction of the offender for these crimes. The Plenum further held that “violence,” which is one of the conditions for commission of rape or violent sexual acts, shall be understood as a physical act against the victim (or relatives of the victim in case of rape). Examples of violence include tearing the victim’s clothes, causing physical pain, beating, strangulation, making the victim take alcohol or drugs against his or her will, restricting the victim’s freedom by tying, or locking the doors. Threat of violence shall be understood as specific words, actions, or gestures showing the intention of the offender to harm the victim. The Plenum noted that non-violent acts, such as obtaining consent by deception or abuse of trust (such as the promise to marry or to reward sexual favors) do not qualify under Arts. 166-167 of the Criminal Code. The Plenum further explained that “using the helpless state of the victim,” which is the alternative condition to violence or threat of violence for the commission of rape or violent sexual acts, shall mean that the victim due to young age, mental disorder, loss of consciousness, alcohol or drug intoxication could not understand the nature of actions performed with him or her or that due to a physical disability could not oppose it. The Plenum noted that it does not matter whether the offender made or witnessed the victim take alcohol or drugs or other intoxicating substances, rather the offender simply has to be aware of the intoxication that renders the victim helpless. The Plenum also explained that a person is not guilty of attempted rape or commission of violent acts of sexual nature if that person voluntary abandons the commission of the crime. Abandonment caused by circumstances beyond the control of the offender, such as resistance by the victim, third party interference, or physiological inability to commit the crime is not voluntary.
International Case Law
Abromchik v. Belarus Human Rights Committee (ICCPR) (2018)
Abromchik attended a peaceful assembly on 19 December 2010 with friends in Minsk following the announcement of presidential election results. After the event, when she and her friends were stopped by a special unit of riot police and tried to escape, they were blocked and beaten. An officer punched her on the leg with a rubber truncheon several times. She realized she had a broken leg and told the police officer. She was not taken to the hospital for several hours. She made a complaint to the prosecutor of Minsk about the unlawful actions of the police. She provided details about the incident and witnesses were questioned, but no other actions were taken to investigate the incident or to identify the police officer who had beaten her. The prosecutor’s office suspended the investigation, stating that it was impossible to find those responsible. The office resumed the investigation and then suspended it again on the same grounds. In her appeal to the Committee, Abromchik claimed that she was physically assaulted and affected mentally in violation of article 7 of the Covenant because authorities wanted her to feel helpless and to victimize her and that her age and gender should be taken into account when assessing the gravity of the ill treatment. She also noted that her complaint of ill-treatment was not investigated promptly and impartially by the authorities, contrary to article 7. The Committee found that, in the absence of any information from Belarus that it undertook to address the allegations made, due weight must be given to the allegations. On this basis, the Committee concluded that Belarus failed in its duty to adequately investigate the allegations made in violation of article 7, read in conjunction with article 2(3) of the covenant. The Committee determined that Belarus was required to provide an effective remedy, including conducting a full investigation of the ill treatment in order to prosecute the perpetrators and to punish them with appropriate sanctions, providing adequate compensation, including reimbursement of legal and medical expenses and non-pecuniary losses, and issuing a formal apology to Abromchik. Further, the Committee stated that Belarus was under an obligation to take necessary steps to prevent similar violations from occurring in the future.
Abramova v. Belarus CEDAW Committee (2011)
Ms. Abramova, a citizen of Belarus, is a journalist who was arrested for her activism on behalf of the “For Freedom” movement and convicted of “minor hooliganism.” She was held in a temporary detention facility for five days, where she shared a small, unheated cell with an unenclosed toilet area that lay in open view of the all-male staff. During her detention, the male prison staff directed numerous humiliating comments at Ms. Abramova, treatment that the male detainees at the facility did not receive. Upon her release, Ms. Abramova submitted a complaint of violation of her rights in detention to authorities at the Interior Department, who informed her that her allegations had not been verified. Ms. Abramova then filed a complaint with the Prosecutor’s Office, again with a response that her claims had not been confirmed. Next, Ms. Abramova filed an application to the District Court under civil procedure, but the court claimed that it lacked jurisdiction and rejected her application. She appealed, and the Judicial Board rejected her appeal. Ms. Abramova proceeded to file a complaint to the District Court under administrative procedure, which again refused to initial civil proceedings. On appeal, the Judicial Board reversed the decision of the District Court and remanded the case for new consideration; on remand, the District Court dismissed Ms. Abramova’s complaint on procedural grounds. She submitted a complaint to the CEDAW Committee alleging that the conditions under which the State detained her constituted inhuman and degrading treatment, and that such treatment amounted to discrimination against her on the basis of gender. The Committee found that Ms. Abramova’s temporary detention in poor, unhygienic conditions, in a facility staffed exclusively by men, amounted to inhuman and degrading treatment and discrimination on the basis of her gender. Further, the Committee found that the State was in violation of its obligations under the Convention (CEDAW).