Constitutional Court of the Republic of Belarus

Address

4 Krasnoarmeyskaya St.,
Minsk,
Belarus.
Tel.: +375-17-327-52-09

Bulletin of the Constitutional Court

1/2002

CONTENTS

Official Materials and Decisions
of the Constitutional Court
of the Republic of Belarus

Decision of the Constitutional Court of the Republic of Belarus of 11 January 2002 No. D-135/2002 "On the right to amnesty of the convicts with respect to whom effective sentences were subject to revision in the procedure of supervision"

Summary
     The Constitutional Court, having examined the issue on the right to amnesty of the convicts with respect to whom effective sentences later on were subject to revision in the procedure of supervision, noted that application of amnesty should not be geared to revision of those sentences in the procedure of supervision.
     There is no need of additional legislative regulation in those instances for application of amnesty, since on the day of entering into legal force of the law on amnesty the sentences delivered were effective.
     At the same time the Constitutional Court deems that equal right of the convicts to amnesty will be secured in full, if the lawmaker shall cover the effect of the laws on amnesty to the persons who committed crimes before enforcing of the specified laws, but the sentences with respect to those persons were not effective on the day of enforcing of the laws on amnesty.
     In this connection the National Assembly of the Republic of Belarus has been proposed to take into consideration position of the Constitutional Court while further adopting the laws on amnesty.

Decision of the Constitutional Court of the Republic of Belarus of 15 January 2002 No. D-136/2002 "On pay of state tax by persons who appeal judicially against refusal of registration of application on recognition to be refugees or refusal of recognition to be refugees"

Summary:
The Constitutional Court of the Republic of Belarus in its Decision of 15 January 2002 "On pay of state tax by persons who appeal judicially against refusal of registration of application on recognition to be refugees or refusal of recognition to be refugees" on the grounds of relevant provisions of the Constitution of the Republic of Belarus, Convention relating to the Status of Refugees, Laws of the Republic of Belarus "On refugees" and "On state tax" has proposed the Council of Ministers of the Republic of Belarus to examine the issue on reduction of the rate of state tax or on granting the privilege on pay of state tax for the persons who judicially appeal against refusal of registration of the complaint on recognition them to be refugees or refusal of recognition them to be refugees.

Judgment of the Constitutional Court of the Republic of Belarus of 7 February 2002 No. J-137/2002 "On the conformity between the Constitution of the Republic of Belarus and Instruction on procedure of forming rent rates by legal entities of non-governmental form of ownership while renting non-residential buildings (premises)"

Summary:
     The proceedings on the case "On the conformity between the Constitution of the Republic of Belarus and Instruction on procedure of forming rent rates by legal entities of non-governmental form of ownership while renting non-residential buildings (premises)" have been brought by the Constitutional Court of 7 December 2001 as a result of the proposal of the House of Representatives of the National Assembly of the Republic of Belarus. The House of Representatives in its proposal has specified that the provisions of the Instruction envisage unequal rights for carrying out economic activities by economic entities of private form of ownership in comparison with economic entities of the state form of ownership, as well as create unequal conditions for their development. Instruction has been approved by Resolution of the Ministry of Economy of the Republic of Belarus of 29 May 2001 No. 96, which has indicated, that the ground for the adoption of the Instruction was the legislation in the sphere of price setting. Under Article 14 of the Law "On price setting" for the violation of the fixed by the relevant state bodies of the levels of prices under regulation, their holding up and undercharges, as well as violation of the established procedure of their setting the legal entities and officials, entrepreneurs are subjects to economic sanctions. Heads and other officials of such an economic entity shall be also subject to responsibility. The Constitutional Court has come to the conclusion, that setting the rates of rental fee in the sphere of civil turnover are not referred to the relations which are regulated by the legislation on price setting. The Constitutional Court has found to be ill-grounded the arguments of the Ministry of Economy that such an approach to setting rates of rental fee is caused by the fact, that income for renting of non-residential buildings (premises) on the accounts of book records had become to be reflected as realization of production (works, services). The Court has pointed out that referring of incomes for renting property to another account had not changed economic essence of rental relations. Lease contract is aimed at chargeable transfer of property in use, and not to chargeable provision of services.
     Moreover, application of the legislation on price setting while fixing rent rates shall lead to additional obligation of lessors of private form of ownership to apply additional coefficients for their calculation and shall specify different approach to the enter of taxes, dues and other payments into the budget.
     The Constitutional Court has found the specified Instruction to be at variance with the Constitution, with the Civil Code, with other legislative acts of the Republic of Belarus and considered it to be null and void from the day of adoption of the Judgment, i.e. since 7 February 2002.

Message of the Constitutional Court of the Republic of Belarus "On constitutional legality in the Republic of Belarus, 2001"

Summary:
     In accordance with the requirements of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court has prepared Message to the President and the Chambers of the Parliament of the Republic of Belarus, which shall reflect the constitutional legality in the Republic of Belarus, 2001.
     The Message shall establish that the constitutional legality in the country is appreciably strengthening. At the same time, characteristic is given those sphere of legal regulation where certain deviations from the requirements of the constitutional legality are come to light. It is emphasized, in particular, that there is still no proper securing the right of citizens to appeal to the court of law, there are violations of the rights of citizens in the sphere of taxation due to the absence of the systematized tax legislation. Thus, the Constitutional Court in its Decision of 11 June 2001 has determined, that taxation bodies, while collecting income succession duty were guided by the norms of Methodical instructions on calculation and pay of income tax from natural persons, approved by Order of State tax committee in 1999 which were not in conformity with the norms of the Law "On income tax from natural persons", as well as infringed upon the constitutional rights and lawful interests of citizens who draw succession duties. As a result of making the required alterations and addenda into the effective legislation in the field of tax relations 119 successors were returned from the budget the sums of financial suctions, which were collected as a result of wrong application by tax bodies of the tax legislation. Since 1 January 2002 incomes in kind and pecuniary incomes from natural persons as succession duties are subject to no income taxation. The subject to revision of the Constitutional Court were also enforceable enactments which regulate electoral, housing, labour, social, civil, administrative, tax, criminal legislation and criminal legislation of procedure and other law relations.
     Significant attention the Constitutional Court has paid the examination of the applications of citizens and public associations. Last year the Constitutional Court has received more than 1.500 written applications - 1.300 individual applications and more than 200 applications from public associations. Collective applications contained more than 3.500 signatures. All of them touched upon the interests of dozens and hundred thousands of citizens.
     On the grounds of those applications the Constitutional Court has adopted a number of decisions directed to the protection of the rights of citizens in the field of housing, labour, land, credit, tax, insurance, administrative and some other law relations. Many of applications concerned the issues of regulation of licensing economic activities, pension securing. In particular, incompleteness of legislation on pension security, in particular, equalizing approach towards the establishment of pensions as regards cut of the specified wage, absence of the mechanism of recalculation of pensions and restrictions on their pay in instances of continuation of employment gave rise to numerous unfavourable criticism on behalf of the citizens. The content of the applications to the Constitutional Court shall signify the increasing level of sense of justice of the citizens, their aspiration to further improvement of the national legislation and to strengthen the constitutionality in the state.
     Under the issues examined in 2001 the Constitutional Court has adopted in all 48 decisions, 20 decisions more than in 2000. The proposals contained in those decisions to the competent state bodies on the improvement of the effective legislation, as a rule, have found proper responses thereto.
     The Message also emphasizes the broadening of relations of the Constitutional Court with the bodies of constitutional control of other countries.
     Representatives of the Constitutional Court took part in many of international conferences, seminars, meetings in the Republic of Belarus and abroad and that made it possible to share the opinions with foreign colleagues on actual issues of the constitutional legal procedure.
     31 May - 1 June 2001 the Constitutional Court has held in the city of Minsk under the support of the Head of the State III International Scientific and Practical Conference of the bodies of constitutional control on the subject of "Implementation of the norms of international law into national legislation: theory and practice" in which representatives of 12 states took part.
     The Constitutional Court of the Republic of Belarus in the process of its constitutional legal procedure is constantly guiding by the provisions of international acts and conventions concerning the protection of fundamental human rights and freedoms, uses the practical experience of the bodies of equivalent jurisdiction of foreign states, as well as of the European Court of Human Rights.
     On the basis of the evaluation of the constitutional legality and of the decisions of the Constitutional Court adopted in 2001 there have been made suggestions to broad the circle of persons who shall be entitled to appeal to the Constitutional Court concerning the issues of the constitutionality of the enforceable enactments, in particular, to empower the Procurator-General of the Republic of Belarus to make constitutional motions to the Constitutional Court with the proposals on verification of the constitutionality of by-law enforceable enactments, as well as on the establishment of the institute of the constitutional complaint.

Decision of the Constitutional Court of the Republic of Belarus of 20 March 2002 No. D-139/2002 "On constitutionality of point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 1804 "On measures on protection of rights of trade union members"

Summary:
     The case on constitutionality of point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 1804 "On measures on protection of rights of trade union members" has been examined by the Constitutional Court as a result of the constitutional motion of the Commission on human rights, national relations and mass media of the House of Representatives of the National Assembly of the Republic of Belarus, leading trade union bodies, certain trade union members, applications of other bodies and organizations on the grounds of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus.
     Point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 1804 has established that payment of trade union membership fees shall be made by workers personally without deductions of fees from their wages.
     The Constitutional Court ruled that this normative rule has been adopted by the Government of the Republic of Belarus within its competence and is not at variance with the basic principles of organization and activities of trade unions fixed in the Constitution and in the laws of the Republic of Belarus.
     The Constitutional Court has specified that the established by point 2 of the given Resolution procedure of personal payment of trade union fees is not an optimal one and stands in need of improvement, and due to that the Council of Ministers has been proposed, with the purposes of development of social co-partnership, harmonious labour relations, to consider the issue on the improvement of the legislation concerning mechanism of deductions and transfer of trade union fees, including also while concluding General Agreement among the Government of the Republic of Belarus, republican associations of employers and trade unions.
     Decision has also indicated that the Resolution in question shall not exclude the right of workers - trade union members, for whom wages are transferring to the accounts in banking establishments, to make instructions for the banks on transfer of trade union fees cashless to the accounts of trade union organizations.

Problems, opinions, comments

G.A. Vasilevich. Social partnership between the state and trade unions - the most important constitutional principle

Summary:
Article is dedicated to the development of social partnership and co-operation between the state and trade unions. Attention is directed mainly to the analysis of Decision of the Constitutional Court of the Republic of Belarus of 20 March 2002 on the issue of the constitutionality of point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 1804 "On measures on protection of the rights of members of trade unions".

K.I. Kenik. Labour Codes of Russia and Belarus

Summary:
Article contains comparative analysis of the provisions of Labour Codes of Russia and Belarus. Attention is paid to the orientation of the Labour Code of Russia to the protection of rights and interests of both employees and employers. Author expressed the opinion of the necessity for the unification of the labour legislation of Russia and Belarus.

V.I. Zhishkevich, V.A. Kuchinski. Securing of constitutional legality as condition for forming the state ruled by law

Summary:
Article specifies as how by reserving legal status of the Constitutional Court of the Republic of Belarus, the basis of the legal status shall be the norms of Article 116 of the Basic Law of the country which has been adopted at the republican referendum of 24 November 1996, the activities of the Court on securing constitutional legality are constantly developing and find new forms. In the process of these activities the main attention is paid to the protection of human rights and freedoms, forming on constitutional ground the legal system of the social state, development of legal culture of the society. With a view to further improving effectiveness of control function of the Constitutional Court it is expressed the encouragement of well-founded proposals on the development of the legislation which are directed to the strengthening of its competence.

Y.A. Konon. Status of the Constitutional Courts of the Republic of Belarus and the Italian Republic

Summary:
Article contains comparative analysis of the status of the Constitutional Courts of the Republic of Belarus and Italian Republic. It is specified the common and the particular, there have been made proposals on the improvement of the effective legislation on the constitutional control in the Republic of Belarus.

Awards

     Decree of the President of the Republic of Belarus "On conferring to R.I. Filipchik and A.G. Tikovenko a honourable title "Distinguished Lawyer of the Republic of Belarus"

     Order of the President of the Republic of Belarus "On official Thank of the President of the Republic of Belarus for G.A. Vorobei"