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 15 July 2002 No. D-144/2002 "On securing the constitutional right of imprisoned convicts to judicial appeal against incurred to them penalties"

Summary
     Adoption of the specified decision has been brought about by the necessity to confirm once again direct effect of the norms of the Constitution of the Republic of Belarus and, in particular, Article 60 which shall stipulate the right of everyone to judicial protection. Previous Decision of the Constitutional Court of 02 April 2002 "On the right of imprisoned convicts to judicial appeal against incurred to them penalties" which had not been taken into consideration by the courts of law and which still continue to refuse in taking and examining of the complaints of imprisoned convicts with regard to the incurred to them penalties by making reference to the absence in the criminal legislation and in the criminal legislation of procedure of the relevant procedure of examination of the complaints in question.
     Due to that, the Constitutional Court has re-pointed out that the Constitution shall have the supreme legal force and where there is a discrepancy between a law, decree or ordinance and the Constitution, the Constitution shall apply and that is enshrined by Article 137 of the Basic Law. Law applicable bodies, the courts of law included, should understand the given provision not as a declaration, but as a guidance to its practical application by being obliged to apply directly the norms of the Constitution in instances, if it takes place non-conformity with the Constitution of the enforceable enactments which are subject to application or they contain insufficient regulation of the constitutional provisions. There is no need at all of a special mechanism for realization of the norms of the Constitution. The Law "On enforceable legal acts of the Republic of Belarus" shall make it possible in those instances to use the institutes of the analogy of law and analogy of act (Article 72).
     The norms of the Criminal Code of Procedure of the Republic of Belarus shall also directly specify the possibility of the analogy in a criminal process, which envisage that where there is a discrepancy between the given Code and the Constitution, the provisions of the Constitution shall apply. The Supreme Court shall also make no exclusions from application of the analogy in the criminal process and that is specified in a number of rulings of its Plenum (references to them are given in the decision of the Constitutional Court under comments).
     Decision in question is also aimed at the fact that the fixed in part four of Article 10 of the Criminal Code of Executions right of the accused to make proposals, applications and complaints to the administration of a body or an establishment which shall execute sentences as well as other measures of criminal liability, the court of law, procurator' office and other state bodies, public associations on human right would be not only the proclaimed right but also the real right and Article 60 of the Constitution serves as to that as an article of its direct effect.

• Decision of the Constitutional Court of the Republic of Belarus of 19 July 2002 No. D-145/2002 "On legal regulation of conclusion foreign currency loan contracts by natural persons"

Summary:
     The Constitutional Court in its Decision of 19 July 2002 No. D-145/2002 "On legal regulation of conclusion foreign currency loan contracts by natural persons", adopted on the grounds of complaints of citizens and motion of Deputy of the House of Representatives of the National Assembly of the Republic of Belarus, has analyzed the legislation regulating conclusion foreign currency loan contracts by natural persons.
     The Constitutional Court has emphasized that the legislative acts of the Republic of Belarus (Civil and Banking Codes, Decree of the President of Republic of Belarus of 5 February 1997 No. 1 "On measures on securing the order while carrying out currency operations") have specified limitations for the use in payments of foreign currency, including among citizens under the loan contracts. Foreign currency may be used in the Republic of Belarus in the procedure of permission - in instances under the procedure and on the conditions specified directly by the legislation.
     Violation of the order of carrying out currency operations, which is expressed in making such an operation without a licence, shall entail confiscation of currency in accordance with Decree of the President of the Republic of Belarus of 5 February 1997 No. 1.
     Carrying out by citizens of currency operations without the relevant permission (licence) shall also entail application by the courts of law on the grounds of Article 170 of the Civil Code of such a measure as collection of everything the parties realized under the transaction into the revenue of the Republic of Belarus. According to point 2 of Article 167 of the Civil Code the requirements on finding the fact of a transaction to be null and void may be made by any of interested parties. The court of law shall be entitled to apply those consequences at its own discretion. Due to the fact that a void transaction is invalid by force of the specification in the law, the court of law shall have the right, in the opinion of the Constitutional Court, to apply the envisaged by the law consequences of such a transaction both in case of making by an interested party the requirement of finding the fact of its nullity and in case of finding the grounds of nullity while considering another requirement. That right of the court of law is also based on Article 273 of the Civil Code of Procedure.
     At the same time, Decision emphasizes the presence in the legislation, which shall regulate relations in the field of conclusion by citizens of foreign currency loan contracts, of the relevant contradictions and contains the proposal for the Procurator's Office of the Republic of Belarus to study the practice of application by the courts of law of the legislation in question with the object of its possible improvement.

• Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002 No. J-146/2002 "On the conformity between the Constitution of the Republic of Belarus and part two of Article 6 of the Law of the Republic of Belarus "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", point 13 of Rules of official registration of documents for leaving abroad citizens of the Republic of Belarus, sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad in part of fixing five-year term of effect of an obligatory note in passport of a citizen of the Republic of Belarus who is leaving abroad temporarily"

Summary:
     As a result of proposal of the House of Representatives of the National Assembly of the Republic of Belarus the Constitutional Court has brought of 4 July 2002 the case on verification of constitutionality of part two of Article 6 of the Law "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus" and other enforceable legal acts as concerns the establishment of five-year term of effect of an obligatory note in passport of a citizen of the Republic of Belarus who is leaving abroad temporarily.
     By making analysis of the norms of the Constitution, the Law in question, international legal acts, the Constitutional Court has come to the following conclusions. As regards the issue of collection of a state tax while drawing up the permission for exit the Republic of Belarus, that was the point of the proposal of the House of Representatives, the Court has emphasized that regulation of those relations shall be within the competence of the authorized bodies - the National Assembly and the Government who are competent to solve fairly the issues of both collection of the state tax and rate of the state tax, procedure of its collection and conditions of its repayment.
     The Constitutional Court has found the provisions of the enforceable enactments under verification which shall envisage putting down a note in passport of a citizen of the Republic of Belarus for temporary exit abroad to be not in full in line with the Constitution since the obligation of the specified note shall be determined for all the citizens of the Republic of Belarus who wish to leave abroad temporarily. That shall belittle the rights of the absolute majority of citizens who have no limitations for exit.
     The Constitutional Court deemed that the most reasonable variant, which shall allow the citizens of the Republic of Belarus more fully to realize the enshrined in Article 30 of the Constitution right to move freely and choose their place of residence within the Republic of Belarus, shall be the establishment of such a procedure under which a civil passport which meets the international standards may be used for leaving abroad without the note made in it. For that reasons the Constitutional Court has proposed the Council of Ministers, other state bodies which are competent to solve the specified issues, to take the relevant measures.
     Moreover, the National Assembly has been proposed to consider the issue on the improvement of the norms of the specified Law, as well as there have been pointed out the necessity to revise and to elaborate the list of limitations for temporary exit of citizens of the Republic of Belarus.

Problems, opinions, comments

• K.V. Akimenko. Formation and development of the concept of human rights and freedoms

Summary:
     Article is dedicated to the issue of forming the concept of human rights. Under analysis are the most important historical legal documents which had influenced on forming the whole institute of the protection of individual rights, - Declaration of Independence of USA of 1776, Declaration of the Rights of a Man and a Citizen of 1789, American Bill of Rights of 1791, Universal Declaration of Human Right of 1948 etc.

• I.I. Plyakhimovich. Notion of bases of constitutional system

Summary:
     The article is devoted to the leading constitutional law institution - the foundations of the constitutional system. The author proposes conception of a new constitutional law institution of civil society having excluded appropriate norms from the leading institution. The foundations of the constitutional system are united phenomenon in spite of the lack of specific content and subjects in relations which are regulated by the institution.

• V.P. Soroka. Peculiarities of regulation of labour in international private law

Summary:
     There is a study of international legal regulation of labour with the help of international agreements of the states and with the help of other international legal tools as regards the wage labour, improvement of its conditions, labour protection, protection of individual and collective interests of workers.
     Author considers in detail ILO conventions which equally with the norms of the effective international treaties of the Republic of Belarus, where Belarus is a party, - a part of effective in the territory of the Republic of Belarus legislation on labour which is subject to direct application except for the instances where an international treaty or a convention envisage issuing a national act.

Fundamental human rights and freedoms
in international law and their protection

     Conferences, seminars

     G.A. Vasilevich. Possibilities of Realization of European Convention for the Protection of Human Rights and Fundamental Freedoms in practice of the Constitutional Court of the Republic of Belarus and national courts
     
     K.I. Kenik. Realization of universally acknowledged principles of court proceedings in procedural legislation of the Republic of Belarus
     
     A.A. Sarkisova. Right of citizens of the Republic of Belarus to judicial protection
     
     L.L. Zaytseva. On realization of norms of European Convention in new Criminal Code of Procedure of the Republic of Belarus
     
     L.I. Kukresh. Presumption of innocence: international legal and constitutional approaches
     
     V.Z. Shuklin. On application of provisions of European Convention as regards court proceedings within reasonable time

     From practice of the European Court

     Decision "Allene de Ribene v. France" of 10 February 1995. Extracts.

International relations of the Constitutional Court

     G.A. Vasilevich. Conference in Stuttgart.