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 9 October 2002 No. D-147/2002 "On the constitutionality of setting of local due from natural persons while crossing by them of the border of the Republic of Belarus through control-crossing points"

Summary
     The subject to examination of the Constitutional Court was the issue on the constitutionality of decisions of Brest city, Brest region and Kamenets region Councils of deputies in part of setting of local dues from natural persons while crossing by them of the boarder of the Republic of Belarus through control-crossing points "Warsaw bridge", "Brest - Central", "Peschatka", "Domachevo - Slovatychi" and "Tomashovka".
     Having analyzed the relevant provisions of the Constitution, the Law "On budget of the Republic of Belarus 2002", other enforceable legal acts, the Constitutional Court emphasized that under Article 121 of the Constitution setting in accordance with the law of local taxes and dues shall fall exclusively within the exclusive competence of local Councils of deputies. The list of local taxes and dues, which shall be imposed in 2002 by oblast, Minsk city Councils of deputies, Councils of deputies of based territorial level on the territory of the relevant administrative and territorial units, is specified in Article 10 of the Law "On budget of the Republic of Belarus 2002". Among those taxes and dues there are dues from natural persons while crossing by them of the boarder of the Republic of Belarus through control-crossing points.
     The Constitutional Court has found decisions of the above-indicated local Councils of deputies in part of imposition of the given local due to be in line with the Constitution and the laws of the Republic of Belarus.
     At the same time, the Constitutional Court has paid attention of Brest region Council of deputies to unconstitutionality of delegation of its exclusive competence to the executive committee and to presidium of Council of deputies and proposed the Council of deputies in question to make alterations in the practice of further approval of provisions on local dues and as regards alterations in those provisions after their adoption by executive committee and presidium of local Council of deputies.

• Decision of the Constitutional Court of the Republic of Belarus of 9 October 2002 No. D-148/2002 "On the constitutionality of point 23 of Decision of Minsk city Council of deputies of 11 January 2002 No. 219 "On budget of the city of Minsk 2002" and other issues connected with real-estate tax"

Summary:
     On the grounds of the provisions of the Constitution the Constitutional Court has examined the issues contained in collective and individual complaints of citizens connected with calculation of real-estate tax, issues on inequality of citizens who are private householders and citizens who are owners of flats in tenement-houses; on inequality of citizens who have houses in the city of Minsk with paying the tax under ascending tax scale approved by point 23 of Decision of Minsk city Council of deputies of 11 January 2002 No. 219 "On budget of the city of Minsk 2002" and citizens who live in other cities and regions of the republic with paying the tax under 0,1 per cent of the rate of the cost of buildings; on estimation of private houses and grounds.
     The Constitutional Court has emphasized that under Articles 97, 98 of the Constitution setting of republican taxes and dues shall be referred to the competence of the Parliament. The Parliament shall have the right to solve in the law not only such significant issues on taxation as subject, object, rate of tax and other without which tax obligation and the procedure of its fulfillment may not considered to be determined, but also other issues to which, in particular, shall be referred the specified in Article 4 of the Law "On real property tax" tax privilege as exemption from taxation of one of living accommodations in tenement-houses owned by natural persons.
     Decision of Minsk city Council of deputies in part of specification of the rate of real-estate tax was found to be in line with the Constitution of the Republic of Belarus and with the Law of the Republic of Belarus "On budget of the Republic of Belarus 2002". At the same time, the Parliament of the Republic of Belarus, in order to secure more fully the protection of constitutional rights of citizens and their guarantees, has been proposed to remove from inequality of payers of real-estate tax in different cities and regions of the republic and ensuring the adoption by local Councils of deputies of optimal decisions in the field of setting of the rates of the specified tax in question, to specify in the Law on budget of the Republic of Belarus for regular year the maximum limits within which local Councils of deputies may give rise the rates of the real-estate tax.
     The Constitutional Court has proposed the Council of Ministers of the Republic of Belarus to analyze the technique of evaluation of the owned by natural persons buildings (constructions) with a view to find the possibility of its revision for more full protection of the constitutional rights and lawful interests of citizens; to study the issue on referring the activities on evaluation of buildings (constructions) owned by natural persons to the concomitant with the state registration of real property types of activities; to systematize enforceable legal acts on the grounds of which there shall be carried out evaluation of buildings (constructions) owned by natural persons.

• Decision of the Constitutional Court of the Republic of Belarus of 5 November 2002 No. D-149/2002 "On the constitutionality of Decisions of Gomel oblast Council of deputies of 28 March 2002 No. 153 in part of use of increasing coefficients to the rates of single tax from individual entrepreneurs"

Summary:
     Decision of Gomel oblast Council of deputies of 28 March 2002 No. 153 "On setting of rates of single tax from individual entrepreneurs and from other natural persons who carry out realization of goods, works (services) within base rates of single tax specified in List of types of activities where individual entrepreneurs and other natural persons while their realization shall pay single tax, as well as base rates of single tax approved by Decree of the President of the Republic of Belarus No. 12 of 17 May 2001" has determined as to the rates of single tax increasing coefficients for individual entrepreneurs who do not use wage labour by retail realization of goods through detached market trade places outside stationary trade network from trade places the size of which shall exceed the size fixed by the owner of the market.
     In the opinion of the Constitutional Court oblast Council of deputies has not gone beyond its powers by giving specification that those instances shall refer to other peculiarities and to other conditions for carrying out entrepreneur activities.
     At the same time, since the size of the trade place at the market is directly connected with determination by the lessor of the rental payment the rate of which shall be specified by the lessor in accordance with the legislation, as well as since those trade places shall be referred to the selling places and depending on their quantity and the size there shall be determined the rate of the single tax, the Constitutional Court has proposed the Council of Ministers for securing more fully the protection of the rights and legitimate interests of individual entrepreneurs to determine on the normative level the minimum size of those trade places.

• Decision of the Constitutional Court of the Republic of Belarus of 6 November 2002 No. D-150/2002 "On constitutionality of reduction by banks unilaterally of rates of interest under the contracts of bank deposit"

Summary:
     The Constitutional Court, by recognizing the presence in the Republic of Belarus of legitimate grounds for unilateral alterations of the terms and conditions of the contract of bank deposit in part of payment for the depositor of interest rate, has found the following.
     The sense of Article 13 of the Constitution shall mean recognition of the principle of freedom of contract as one of the guaranteed by the State personal freedoms and freedoms of citizens which are proclaimed by the Civil Code to be the principles of the civil legislation. At the same time, the freedom of contract shall not be an absolute one, this freedom shall not be the result to deny or to belittle the universally acknowledged rights and freedoms (part one of Article 23 of the Constitution).
     The method of restriction of the freedom of the contract shall be, in particular, the institute of public contract which shall eliminate from the right of a profit-making organization to withdraw from conclusion of the contract in question, except for the instances specified in the legislation, as well as the institute of the contract of acceding and the terms and conditions of which may be accepted precisely by way of acceding to the proposed contract as a whole. The contract of bank deposit shall be referred to the contracts in question. As a result the citizens-depositors as a party in the contract are deprived from the possibility to influence on the content of the contract and that is the restriction of the freedom of the contract and, as such, need the observance of the principle of proportion. A citizen, as an economically weak party in those legal relations is in need of special protection of his/her rights and that shall entail the necessity of the relevant legal restriction of the freedom of contract as regards the other party too, i.e. the banks. In the opinion of the Constitutional Court such an approach shall be promotion for the realization in full of the principle of equality of the participants of civil legal relations fixed in the civil legislation of the Republic of Belarus. The possibility to refuse from conclusion of the contract of the bank deposit, which outwardly shall signify the recognition of the freedom of the contract, may not considered to be adequate for its real securing for the citizens.
     The lawmaker, while regulating relations between the banks and the citizens-depositors, should adhere to Articles 2, 13 and 44 of the Constitution under which the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State which shall encourage and protect the savings of citizens and guarantee conditions for the return of deposits, and regulation of economic activities for social purposes. For all that, based on the constitutional freedom of contract, the lawmaker shall have no right to limit oneself by formal recognition of legal equality of parties and should grant certain privileges the economically weak and dependent thereon party in order to prevent unfair competition in the sphere of bank activities and guarantee practicably the observance of the principle of equality while carrying out entrepreneur and other not banned by the law economic activities.
     In accordance with point 2 of Article 29 of the Universal Declaration of Human Rights in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
     Under Article 23 of the Constitution it is the lawmaker who shall determine the instances of necessary restrictions in proportion to the purposes specified in the given constitutional norm. Therefore, in the opinion of the Constitutional Court, only the law should specify whether it is possible (if it is possible - than in what instances) to make reductions by the banks unilaterally of interest rates in order to elimination from arbitrary aggravation of the terms and conditions of the contract for a citizen-depositor in the absence of any objective prerequisites.

• Decision of the Constitutional Court of the Republic of Belarus of 12 November 2002 No. D-151/2002 "On definition of notion "income" for purposes of qualification of unlawful entrepreneur activities by calling to criminal liability"

Summary:
     The Constitutional Court of the Republic of Belarus has adopted Decision of 12 November 2002 "On definition of notion "income" for purposes of qualification of unlawful entrepreneur activities while calling to criminal liability". The given Decision is directed to the forming of single judicial practice based on the law.
     The Constitutional Court in its Decision has emphasized that according to part one of Article 233 of the Criminal Code (CC) unlawful entrepreneur activities shall be recognized as the crime, if those activities entail earning the income in a big amount. Part two of the given Article shall envisage heightened liability for unlawful entrepreneur activities which entail earning the income in a big amount. The note to Chapter 25 of CC envisages what shall be a big amount and an extra big amount of the income. However, there is no specification of the notion of income itself, its composition and the way of its calculation in the criminal law.
     The notion of income shall be contained in other legislative acts - in the Laws "On income tax from natural persons", "On measures on prevention of legalization of fraudulent gains", in Decree of the President of the Republic of Belarus of 23 December 1999 No. 43 "On taxation of income in certain spheres of activities" etc. The analysis of the content of the specified enforceable legal acts signifies that the notion of income shall be defined in different ways depending on the purposes it shall be used for.
     For the purposes of qualification of unlawful entrepreneur activities as a criminal action the notion of income has been specified by Ruling of Plenum of the Supreme Court of the Republic of Belarus of 28 June 2001 No. 6 "On judicial practice on the cases of unlawful entrepreneur activities". Point 6 of the given Ruling has explained that "income from unlawful entrepreneur activities shall mean all the sum of proceeds in cash and in kind without the expenses for receipt of the proceeds. Income in kind is subject to specification in money terms."
     The Decision has emphasized that by giving its explanations on the issue of what one shall understand as income from unlawful entrepreneur activities, Plenum of the Supreme Court has practically given the notion of income under which those activities resulted in making income in a big amount or in an extra big amount shall be found to be a crime. Thus, Plenum of the Supreme Court had acted as the lawmaker.
     Based on the Provisions of the Constitution (Articles 97 and 98), the Criminal Code (Articles 1 and 3), the Law "On enforceable legal acts of the Republic of Belarus" (Articles 70 and 72), the Law "On judicial system and status of judges in the Republic of Belarus (Article 49), the Constitutional Court has specified that for the purposes of unique and exact application of the terms used in CC only the lawmaker shall have the right to define the notion "income" as regards unlawful entrepreneur activities, and as for the other crimes against the procedure of carrying out economic activities; that the definition of the notion "income" as applied to unlawful entrepreneur activities should not be contained in the Ruling of Plenum of the Supreme Court, but in the Criminal Code or shall be revealed by way of interpretation of that notion as applied to the criminal legal relations by the legislative body.
     The Constitutional Court has proposed the National Assembly of the Republic of Belarus to adopt the law in accordance with Decision of the Constitutional Court of 12 November 2002.

• Decision of the Constitutional Court of the Republic of Belarus of 24 December 2002 No. D-152/2002 "On constitutional guarantees of the right of imprisoned convicts to judicial appeal against incurred to them penalties"

Summary:
     Adoption of the given decision is conditioned by repeated complaints to the Constitutional Court of the imprisoned convicts for whom the courts of law refuse to take and to examine the complaints against application of the incurred to them penalties of administration of reformatories.
     Irrespective of the fact that Article 60 of the Constitution of the Republic of Belarus, which has direct nature of its effect, shall guarantee everyone the right to judicial protection, that the Constitutional Court has adopted twice the decisions on the specified issue by confirming the right of imprisoned convicts to judicial appealing against the incurred to them penalties, the courts of law still continue to refuse those persons to examine their complaints motivating this by the lack in the legislation of the norms envisaging the procedure of the appealing in question.
     Due to that the Constitutional Court was bound to examine again the specified issue and to adopt its decision and to confirm once again the constitutional right of the imprisoned convicts to appeal to the court of law in connection with imposition on them of the penalties. The given right is also guaranteed by the instructions of the Constitution (Articles 59, 60, 137), as well as by Decree of the of the President of the Republic of Belarus of 26 July 1999 No. 29 "On additional measures on improvement of labour relations, strengthening of labour and execution discipline".
     The Constitutional Court has also emphasized that the persons, who previously have been illegally refused in judicial protection, shall have the right to judicial protection, since time limitation for appealing to the court of law shall not be subject to application.
     As for the persons, who have been refused in judicial protection, they shall have the right to make their addresses to the bodies of the procurator's office for the application of the procurator's measures and for the rehabilitation of the violated constitutional rights.

Problems, opinions, comments

• G.A. Vasilevich. Rights' protecting activities of the Constitutional Court in the field of securing the right to work

Summary:
     Author gives analysis of certain lately adopted decisions of the Constitutional Court in the field of protection of the right to work and their positive influence on the currently effective legislation and law applying practice in the labour law relations.

• O.A. Antonova. Problems of realization of the right to discussion of draft laws and the issues of republican and local significance

Summary:
     Article deals with the issues of realization of one of the institutes of direct democracy - the institute of all-nation and local discussions and its correlation with other forms of direct democracy. Under analysis are the legislative acts envisaging the right of citizens to discussion of draft laws and the issues of republican and local significance. Attention is paid to the practice of certain foreign states. Author studies legal norms and practice of holding in the Republic of Belarus of republican and local meetings. On this ground there are proposals on the improvement of mechanism of realization of the right of citizens to discussion in the form of republican and local meetings, as well as the necessity of stipulation of other forms of discussions in a single law.

• A.P. Derbin. On some aspects of restriction of individual rights and freedoms

Summary:
     Author gives analysis of possibilities of restriction of individual rights and freedoms enshrined in the legislation. The issue is subject to consideration in the light of principles of formal and essential nature with the securing of the observance of those principles. There is a description of the positive experience in that respect realized in the Constitution of the Republic of Poland of 1997. Article contains proposals on improvement of Belarusian legislation in the specified sphere.

• O.V. Petrova. Grounds and procedure of restriction of individual constitutional rights in the criminal procedure (as an example, right in respect of inviolability of home)

Summary:
     Article deals with the issues of grounds and procedure of restriction of individual constitutional rights. Special attention is paid to the right in respect of inviolability of the home. It has been offered the ways of improvement of legal regulation of making search with the consent of the owner, urgent search, specification of the object of search, reasons for procedural decisions. There is a description of development of the legislation which shall stipulate the subject authorized to decide on restriction of the individual fundamental rights. It is pointed out the role of the right to access to the courts of law as a guarantee of lawful restriction of individual constitutional rights.

• D.P. Rybka. Scientific and educational security as the most important factor of national security

Summary:
     Article deals with the issue of the role of science, education and upbringing as central links in the system of means ensuring the balanced development of society. It is indicated that the content and the nature of science, education and bringing shall be determined by the barest necessity of society, by the position and the policy of the state.

• N.G. Shishko. Legal regulation of determination of qualifications of employees

Summary:
     Under consideration are the issues of determination of qualifications of employees by concluding by them of labour contracts with employees also during the period of their labour activities on the grounds of effective labour legislation of the Republic of Belarus. Article contains the proposals on the improvement of the legislation regulating the procedure and the form of determination of qualifications of employees.

Fundamental human rights and freedoms
in international law and their protection

     From practice of the European Court:

     Decision "Hakkar v. France" (1997). Extracts.

International relations of the Constitutional Court

     A.V. Maryskin. International Conference in Romania

     K.I. Kenik. Training in Max-Planck-Institute

     G.A. Vasilevich. Acts of European Court of Human Rights as determinant of development of national law systems
     
     Conferences, seminars:

     Information on Conference in the National Academy of Sciences of Belarus (12 December 2002)