On August 8, 2024, the president of Belarus submitted to the parliament a draft law "On Amending the Codes on Criminal Liability Issues". This draft proposes significant amendments to the Criminal Code. Among other things, amendments are also proposed to Article 369-2 of the Criminal Code, which provides for criminal liability for violations in the area of foreign gratuitous aid. On September 17, the lower house of parliament passed the bill in the first reading.
As of today, the receipt and use of foreign aid is regulated by Decree of the President No. 3 "On Foreign Gratuitous Aid" dated May 25, 2020. In general, an authorisation-based procedure for receiving foreign aid has been in place in Belarus since 2001, meaning foreign aid must be registered with a state agency, recipients need to request a separate decision from the state for tax exemptions, and receipt of foreign aid is only possible for closed list of purposes, broad powers of the state to restrict its use. Due to the amendments to the Constitution in February 2022, this decree must now be replaced by a special law "On Foreign Gratuitous Aid". Its development was announced by state agencies, but the details have not yet been communicated to the public.
Back in 2011, Belarus introduced criminal liability for violations in the field of foreign aid when Article 369-2 was added to the Criminal Code, currently called “Use of foreign gratuitous aid in violation of the legislation of the Republic of Belarus.”
The current draft law enumerates the same punishments as in Article 369-2 - a fine, an arrest, restriction of freedom for up to three years, or imprisonment for up to two years. Similarly, criminal liability occurs only in the case of a repeated violation when it is committed within a year after the imposition of an administrative penalty for the same violation. Administrative liability for using aid without registration, misuse or failure by legal entities to deposit the received foreign aid into bank accounts provides for a fine and the confiscation of aid for its recipients (including secondary recipients).
Not only violation of the use of aid, but also the violation of the procedure for receiving it will now be punished
The previous version of the law provided for criminal liability when foreign aid was used for a number of enumerated prohibited purposes (terrorist, extremist and other prohibited activities, funding political parties or holding rallies, preparing elections, producing or distributing campaign materials, holding seminars or other forms of political and mobilization activities).
The new proposal expands this to include the receiving and/or use in cases prohibited by the legislation. The proposed new version appears more concise and comprehensive: the receiving and/or use of foreign gratuitous aid in cases prohibited by legal acts is recognised as punishable. Thus, criminal prosecution extends not only to the stage of using the aid, but also to the receipt of the aid itself. It is also significant that the concept of "cases prohibited by the legislation" is extremely broad and includes an undefined field of possible violations of restrictions established by by-laws (the term "legislation" covers not only laws, but the entire system of regulatory enactments) and which may not be related to the purposes for which it is prohibited to attract foreign aid.
Foreign aid restrictions used to clamp down on people supporting political prisoners
It should be noted that Article 369-2 of the Criminal Code has not been widely applied in practice, even administrative liability under Article 24.14 of the Code of Administrative Offenses, which is a necessary prerequisite for its application, has been relatively rarely used in practice. However, in early 2024, there were several dozens identical cases of application of Article 24.14 of the Code of Administrative Offenses against persons providing aid to political prisoners from funds raised from foreign sources. According to human rights activists, they know about at least 126 court cases since January 2024 related to administrative prosecution for using foreign aid to prepare aid parcels for political prisoners, and at least 30 from them updated into criminal accusations under pretext of counter-extremism criminal legislations.