PUBLISHED: SEPTEMBER 30, 2002

PREPARED BY PROFESSOR W. COLE DURHAM, JR., MELINDA PORTER, AND BRIAN GROSS* OF THE BYU INTERNATIONAL CENTER FOR LAW & RELIGION STUDIES

Executive Summary: Analysis of the 2002 Belarusian Draft Law, “On the Introduction of Changes and Amendments to the Law of the Republic of Belarus ‘On Religious Freedom and Religious Organizations’”

While the proposed 2002 amendments to the Belarusian law On Freedom of Religion and Religious Organizations (hereinafter the Draft Law) deserve credit for bringing Belarusian law into better compliance with international human rights standards addressing freedom of religion or belief in some respects, many provisions remain inconsistent with the Belarusian Constitution and with international human rights standards, including Belarus’ OSCE commitments.

The Draft Law significantly increases the obstacles many religious groups face in obtaining legal entity status. It imposes special requirements on newer religions that are not consistent with international standards, with the requirement of Article 16 of the Belarus Constitution, which provides that “All religions and faiths shall be equal before the law, and for that matter, with Article 6 of the law itself, which echoes the Belarusian constitutional requirement of equality before the law for all religions. Major problems with the Draft Law include the following: Specifically, tightened requirements for registration that distinguish between religious organizations based on meeting a 20 year presence requirement are inconsistent with international standards requiring that states make legal entity status accessible to all religious groups.

• The Draft Law defines religion far too narrowly, thereby affording insufficient protection to the full scope of freedom of religion.
• Re-registration requirements make the Draft Law impermissibly retroactive with respect to some religious groups.
• The requirement of substantive review by a body of state experts of a group’s religious principles and other religious materials violates the right of religious groups to autonomy in their internal affairs and to freedom of expression.
• A number of provisions of the Draft Law are impermissibly vague and permit arbitrary interference with rights to freedom of religion or belief.
• The role of the “Republican Body of State Governance on Religious Affairs” (the “Governing Body”) is not defined with sufficient clarity, and possible divisions of responsibility with other governmental bodies may lead to arbitrary enforcement.
• Provisions assuring judicial review and establishing other mechanisms for the enforcement of rights to freedom of religion or belief must be strengthened in order to comply with international legal standards.
• Standards for liquidation of religious entities do not provide sufficient protections for the religious groups affected.
• The Draft Law creates a privileged status for religious groups eligible for association status because they either are or are linked with groups that have been present and operating in the Republic of Belarus for twenty years, thus violating equality provisions of the Belarusian Constitution and opening possibilities for discrimination against newer religious groups that are inconsistent with international standards.

In general, while the Draft Law creates an environment in which many religious organizations can function, its provisions are not sufficiently protective of freedom of religion or belief. Action with respect to the Draft Law should be postponed until these defects have been remedied.

* Professor Durham is the Gates University Professor of Law at the J. Reuben Clark Law School of Brigham Young University and the Director of the BYU International Center for Law and Religion Studies (the “Center”). He is also Co-Chair of the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion or Belief. He has been assisted in preparing this analysis by Melinda Porter, a Research Associate of the Center and a practicing attorney with the law firm of Kirton & McConkie, and by Brian Gross, a 2002 Summer Research Fellow at the Center. This analysis has been prepared as an expert document and does not represent the official views of the OSCE, ODIHR, or the OSCE/ODIHR Advisory Panel of Experts on Freedom of Religion and Belief.