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 21 October 2003 No. D-160/2003 "On the grounds of review of sentences in accordance with the rule of retroactivity of the criminal law"

Summary
     The specified Decision has been adopted as a result of unsound restriction of application in practice of the rule of retrospective effect of the criminal law.
     Under the conditions of improvement of the criminal legislation of the Republic of Belarus many of its norms shall be subject to alterations towards mitigation of liability. In those instances there shall be applied the rule of retrospective effect of the criminal law, fixed in part two of Article 9 of the Criminal Code (CC) under which more soft criminal law shall be the criminal law, making an act not criminal, mitigating punishment or otherwise improving the position of a person who committed a crime. In all those instances the sentences passed by the courts of law shall be subject to revision. However, due to absence in CC of definition of the law, making an act not criminal, as well as because of contradictoriness of the provisions of the laws stipulating the procedure of revision of sentences on the basis of the rule of retrospective effect in practice the rule in question shall find no full realization. In particular, there is no revision of sentences, where new laws reduce minimum limits of punishment or if sanctions of the relevant articles of CC prescribe alternative, more mild sentencing.
     For example, sanction of part four of Article 209 of CC stipulating liability for an act of fraud committed by an organized group or in particularly great amount has been changed twice in 2003 towards mitigation. At the same time, there have been reduced both the maximum and minimum terms of punishment as deprivation of liberty. The initial wording of the Article in question has fixed the term of deprivation of liberty from 7 to 15 years. The Law of 4 January 2003 has reduced those limits up to 5 and 13 years. The Law of 22 July 2003 has reduced those terms once again, and now the act of fraud shall be punishable by restriction of freedom for a term of 3 to 10 years. However, the sentences with respect to the convicts for the crime in question shall be subject to revision only in instances, if they were prescribed the sentence for the term with exceeding the maximum limit fixed by a new law.
     There is also no revision of sentences in other instances of mitigation of liability of guilty persons (they are specifying in the Decision under commentary).
     The Constitutional Court has found such a practice to be at variance with the Constitution, which enshrines the rule of retrospective action of the law of universal nature (part six of Article 104). Restrictions of the sphere of application of the given law shall entail violation of the principles of fairness and constitutional legality while inflicting a punishment on guilty persons. This is also entail violation of the principle of equality of all before the law, which is stipulated in Article 22 of the Constitution.
     The Constitutional Court has also emphasized that provisions of part two of Article 9 of CC of the Republic of Belarus, Article 16 of the Law of the Republic of Belarus of 18 July 2000 "On enforcing the Criminal Code of the Republic of Belarus" and point 2 of Article 4 of the Law of the Republic of Belarus of 22 July 2003 "On making addenda and alterations into the Criminal Code and the Criminal Code of Procedure of the Republic of Belarus" as regards the retrospective effect of laws, which otherwise improving the position of persons who have committed crimes, shall also allow to apply the rule in question in the specified above instances. However, for the purposes of securing the constitutional principle of equality of all before the law and real giving the retroactive effect to the law, mitigating liability of citizens, the National Assembly of the Republic of Belarus has been proposed to give official interpretation of the relevant norms of the given laws.

• Decision of the Constitutional Court of the Republic of Belarus of 3 November 2003 No. D-161/2003 "On guarantees for the accused while terminating preliminary investigation due to expiry of the limitation period"

Summary
     The given Decision has been adopted as a result of petition to the Constitutional Court concerning part one of Article 140 of the Criminal Code of Procedure of the Republic of Belarus (CCP) in the wording of Law of 4 January 2003, which has specified that the complaints against decisions as regards refusal to bring the criminal case, termination of preliminary investigation on the criminal case or criminal prosecution may be lodged within limitation periods of calling to criminal liability, shall restrict the right of citizens to judicial protection in instances, when termination of investigation on the criminal case has been the result of expiration of those limitation periods.
     Having studied the criminal legislation of procedure in part of fixation of the terms in the criminal process, the Constitutional Court has held that it is not at variance with Article 60 of the Constitution which shall guarantee everyone the right to judicial protection within the time periods specified in law.
     According to part three of Article 29 of CCP the criminal case due to expiration of limitation periods may be terminated with the consent of the accused only, and the consent shall be indicated in the relevant ruling. However, by giving this consent the accused persons often do not realize the legal consequences of termination of criminal prosecution under non-rehabilitated circumstances. In those instances they may be subject to other liability, since termination of criminal proceedings according to the specified ground shall not presume a person to be guiltless. Therefore, the Constitutional Court found it necessary to explain to the accused persons the legal nature of termination of criminal proceedings due to expiration of limitation periods, and the obligation to give those explanations should be enshrined directly in the law.
     Moreover, the Constitutional Court has paid attention to the fact, that after termination of the criminal proceedings due to expiration of limitation periods of calling to criminal liability the accused may not appeal to the court of law, because those terms expiry, as a rule, before delivery of the ruling on termination of the proceedings on the case, when he or she have no time to lodge the complaint, the necessity of which may be also appeared due to other issues contained in the relevant ruling. Accordingly, for the specified instances it is advisable to set in the law the reasonable term, during which he or she may have the possibility to make appeal to the court of law.
     The Constitutional Court has proposed the National Assembly of the Republic of Belarus to settle the specified issues by the legislative way.

• Decision of the Constitutional Court of the Republic of Belarus of 3 November 2003 No. D-162/2003 "On constitutionality of decision of Novopolotsk city Council of deputies of 27 December 2001 No. 56 "On approval of provisions on the procedure of calculation and payment of local dues imposed for 2002" in part of the local due for the right to trade"

Summary
     In its Decision of 3 November 2003 the Constitutional Court of the Republic of Belarus, based on the relevant provisions of the Constitution and acts of tax legislation, has specified that Novopolotsk city Council of Deputies, while approving the Provision on the procedure of calculation and payment of the local due for the right to trade, has realized its right to set the type of the local due in question granted it by sub-item 1.1 of point 1 of Article 10 of the Law "On budget of the Republic of Belarus for 2002". Novopolotsk city Council of deputies had set all the necessary elements, which shall make it possible to consider the obligation to pay the local due for the right to trade to be determined. Therefore, Decision of Novopolotsk city Council of deputies of 27 December 2002 No. 56 "On approval of the provisions on the procedure of calculation and payment of local dues set for 2002" (with alterations and addenda) in part of the local due for the right to trade had been found by the Constitutional Court of the Republic of Belarus to be adopted within the powers granted by the Law "On budget of the Republic of Belarus for 2002".
     At the same time, the Constitutional Court in its Decision has paid attention to the fact that, if the legislative acts of the Republic of Belarus set the taxes and dues for the right to trade, for the purposes of exclusion of ill-grounded raising of the rates of the local dues from the user, the right to set such a local due by the local Councils of deputies should be specified in details by the lawmaker. In this connection, the Constitutional Court has proposed the National Assembly, for the purposes of observance of the constitutional provision on the unified fiscal, tax, credit and currency policy which shall be pursued in the territory of the Republic of Belarus (part two of Article 132 of the Constitution of the Republic of Belarus) and for securing the protection of the rights and lawful interests of taxpayers while adopting the law on budget of the Republic of Belarus for 2004, to pay attention to the necessity of specification of exhaustive list of local taxes and dues, as well as to determine the parameters of the most important elements of local dues from the user (payers, objects of taxation, limits of rates).

• Decision of the Constitutional Court of the Republic of Belarus of 12 November 2003 No. D-163/2003 "On legal regulation of payment of national duty for filing of cassation and supervision complaints against judicial rulings under the claims on alimony recovery"

Summary
     The specified Decision contains analysis of the provisions of enforceable enactments on payment of national duty for filling of cassation and supervision complaints against judicial rulings under the claims on alimony recovery.
     The Constitutional Court held that under Article 4 of the Law "On national duty" the demandants under the suits on alimony recovery shall be exempted from payment of the national duty in judicial institutions. According to part one of Article 142 of the Civil Code of Procedure of the Republic of Belarus the national duty shall be recovered from the defendant in proportion to the satisfied portion of lawsuits.
     In practice the demandants under the suits on alimony recovery shall be also exempted from payment of the national duty while filing cassation and supervision appeals against judicial rulings under the given suits into the higher judicial instances.
     The Constitutional Court emphasized that as regards supervision complaints against judicial rulings under the suits on alimony recovery filing to the bodies of the Procurator's Office the specified privilege is not stipulated by the Law.
     The Constitutional Court has come to the conclusion that in practice of application of the legislation on the national duty by the courts of law and by the bodies of the Procurator's Office there are the differences which are not stipulated by the legislation.
     Due to that the House of Representatives of the National Assembly of the Republic of Belarus has been proposed to consider the issue on making into the Law of the Republic of Belarus "On national duty" alterations and addenda establishing equal conditions of payment (or exemption from payment) of the national duty while appealing against judicial rulings under the suits on alimony recovery both to the higher judicial instances and to the bodies of the Procurator's Office.
     The Council of Ministers of the Republic of Belarus has been proposed to set the rates of the national duty recovering by the courts of law from the defendants on the results of examination of the suits on alimony recovery and which shall be paid for making cassation and supervision complaints against judicial rulings under the specified suits to the higher judicial instances and supervision complaints - to the bodies of the Procurator's Office.
     Before consideration by the National Assembly of the Republic of Belarus of the issue on making into the Law "On national duty" of the specified alterations and addenda on the grounds of Article 5 of the Law in question to consider the issue on exemption of the demandants under the suits on alimony recovery from payment of the national duty for filing cassation and for filing of appeals against judicial rulings under the given suits to the higher judicial instances and for making supervision complaints under the specified suits against judicial rulings to the bodies of the Procurator's Office.

• Decision of the Constitutional Court of the Republic of Belarus of 21 November 2003 No. D-164/2003 "On legal regulation of the issues of payment for technical maintenance of the houses of dwelling and building co-operatives considering land tax"

Summary
     Decision of the Constitutional Court of the Republic of Belarus of 21 November 2003 No. D-164/2003 "On legal regulation of the issues of payment for technical maintenance of the houses of dwelling and building co-operatives considering land tax" has made analysis of the provisions of the Constitution of the Republic of Belarus, Land Code of the Republic of Belarus, Law of the Republic of Belarus "On payments for land" and other enforceable enactments.
     The Constitutional Court has found that according to the Law "On payments for land" (hereinafter - Law) the payers of the land tax shall be legal and natural persons who were granted the plots of land for possession, use or into the ownership (Article 5).
     Articles 30, 31 of the Land Code of the Republic of Belarus (hereinafter - Code) shall stipulate that the right to regular use, the right to inheritable life-long possession by the plot of land and the right to private property of the plot of land shall be certificated by the state act which is the starting point for originating the right in question. In certain instances under petition of the landowner, the land user the relevant executive and administrative body may give permission to use the given plots of land until the issue of the document in question under condition of specification of the borderlines of the plot of land in kind (in the locality).
     Land tax from the plots of land, where dwelling houses of state housing stock are located, which are in factual use of dwelling maintenance servicing associations (hereinafter - DMSA), shall be calculated and paid in proportion to the site of building. The payers of the land tax in accordance with Article 5 of the Law shall be legal entities - DMSA.
     The payer of the land tax from the plots of land, where the houses of housing and building co-operatives (HBC) are located, shall be HBC.
     According to the effective legislation DMSA shall pay the land tax from the sums of payment made by the tenants for technical servicing of the house where the sum of this tax is included in its value.
     The source of payment of the land tax by the dwelling and building co-operative, which is the payer of the tax, shall be money of the members of the co-operative.
     At the same time, when technical services of the houses of dwelling and building co-operatives are rendered by DMSA, while making calculation for technical servicing by them, there is no consideration of the fact that dwelling and building co-operatives, due to the Law, shall calculate and pay the land tax independently. Therefore, the sums of the land tax paying by DMSA are subject to no inclusion into the cost of services concerning technical maintenance of the houses of dwelling and building co-operatives and that shall in fact increase the sum of the land tax imposed on members of HBC.
     Having studies the specified problem, the Constitutional Court held that for the purposes of securing protection of the rights and legitimate interests of citizens of the Republic of Belarus living in the houses of dwelling and building co-operatives the issues of payment of the services of DMSA for maintenance of the houses of dwelling and building co-operatives shall be subject to normative regulation taking into account the constitutional principle of social equity and the provisions of the Law "On payments for land".
     Due to that, the Constitutional Court has proposed the Council of Ministers of the Republic of Belarus to secure normative regulation of the issues of payment of the services of dwelling maintenance and servicing associations on maintenance of the houses of dwelling and building co-operatives by excluding ungrounded difference of citizens in payment of the land tax and giving no allowance for increase of payments for technical maintenance.

• Decision of the Constitutional Court of the Republic of Belarus of 1 December 2003 No. D-165/2003 "On ensuring the right to file the supervision complaints by convicts"

Summary
      The specified Decision has been adopted as a result of repeated petitions of the imprisoned convicts who have no means to pay the national duty while filing supervision complaints. The convicts have specified impossibility for their provision with paid work under conditions of reformatories as one of the reasons of their material inability.
      The Constitutional Court, having analysed the effective legislation concerning setting of the national duty while filing supervision complaints and exemption from its payment in certain instances specified by the enforceable enactments, has come to the conclusion that the legislation in question shall not prevent from realization by the convicts of the right to file the supervision complaints. In the absence of the material means for payment of the national duty in those instances they shall have the right to appeal to the executive and administrative bodies or to the courts of law with the request on exemption of them from payment the given duty. At the same time, the study of practice shall specify that in the majority of instances their applications are giving satisfaction. If this practice will be further in progress in this direction and the convicts will be subject to exemption from payment of the national duty while filing both the initial and repeated supervision complaints taking into account the objective causes of their material inability, then all that shall promote more full securing the right of the convicts to lodge the complaints on revision of the sentences delivered with respect to them.

• Decision of the Constitutional Court of the Republic of Belarus of 16 December 2003 No. D-166/2003 "On constitutionality of sub-item 2.1 of point 2 of Provision on the due for services in the territory of the city of Mogilov for 2003 approved by decision of Mogilov city Council of deputies of 24 December 2002 No. 23-2 "On budget of the city of Mogilov for 2003" in part of imposition of local due for services concerning guarding the flats and installation of guarding signallization"

Summary
     16 December 2003 the Constitutional Court of the Republic of Belarus has passed its decision concerning lawfulness of setting of the local due for the services on guarding the flats and installation of guarding signalization in the territory of the city of Mogilev.
     Having acknowledged the right of Mogilev city Council of deputies to set the local due for the services as the right based on the provisions of Article 10 of the Law "On budget of the Republic of Belarus for 2003", the Constitutional Court simultaneously noted, that the lawmaker shall not specify the exhaustive list of objects of service which are subject to imposition by the due for the services, as well as determine no criteria of regarding them as services.
     The analysis of the provisions of the relevant enforceable enactments regulating guarding activities in the Republic of Belarus shall give no grounds for the unified referring of association "Guard" under the Ministry of Internal Affairs to the objects of service, and the types of their activities - to the subjects of service.
      Decision emphasizes that the concrete list of objects of service, which may be subject to local due for the services, should be specified on the legislative level. Such an approach towards regulation of the issues of local taxation will be in line in full with the provisions of Article 121 of the Constitution according to which the setting of local taxes and dues in accordance with the law shall fall exclusively within the exclusive competence of the local Councils of deputies.
      Taking into account the abovementioned, the Constitutional Court has proposed the National Assembly of the Republic of Belarus for the purposes of following unified tax policy in the Republic of Belarus and removal from ill-grounded practice of setting by the local Councils of deputies of the dues for the services to specify in the law the criteria of referring of organizations (types of activities) concerning rendering services to the objects of service.

Problems, opinions, comments

• G.A. Vasilevich. Constitutional factors of security of Belarusian state

Summary
      Under consideration are the peculiarities of national Belarusian legislation as regards securing state sovereignty, internal and external security of the Republic of Belarus. Author specifies criteria of state security (political stability of society, inviolability of frontiers, integrity of state, law and order etc.). Article contains analysis of effect of the Constitution and the laws concerning imposition of martial law and state of emergency, grounds and limits of restriction of the rights and liberties of citizens.

• A.G. Tickovenko. Forming of legal bases of the Commonwealth of Independent states

Summary
     On the basis of analysis of current legislation and law applying practice article considers the problems of realization of human rights and freedoms, as well as specifies the role of the Constitutional Court of Belarus in strengthening constitutional legality. Author proposes the measures directed to further securing of realization of human rights and freedoms.

• N.V. Silchenko. About "New law reality" in law system of the Republic of Belarus

Summary
     Article contains analysis of legal nature of a number of enforceable documents such as conception and doctrine that found their wide use in modern legal system of the Republic of Belarus. Author gives conclusion that doctrine (science) has become one of the main sources of law in Belarus.

• I.A. Solonevich. Social state: sources and constitutional strengthening

Summary
     Author considers the issues of origin of the term "social state", its nature and forming, as well as the process of its constitutional strengthening by various states.
      Article emphasizes that at the present moment all the highly developed countries of all over the world, regardless of the fact whether their basic laws have the relevant provisions, one way or another shall be de facto the social states.

• N.V. Cherevchenko. On basic principles of transference of goods and means of transportation through the customs border of the Republic of Belarus

Summary
     Article reveals the basic principles of customs policy of the Republic of Belarus related to transference of goods and means of transportation through the customs border. Author emphasizes that constitutionality and legality of the sources of the customs law which are regulating the principles of transference of goods shall assume strict conformity between the effective customs legislation and the Constitution of the Republic of Belarus, including obligatory conformity to the universally acknowledged norms of international law in the field of customs law relations (Article 8 of the Constitution). Special attention is paid to the norms specified in Chapter 3 of the Customs Code of the Republic of Belarus concerning equality of all legal and natural persons who transfer goods through the border; bans and limits as regards the transference; procedure of transference and choice of customs regulations. The given principles shall form the base of all the customs law relations and shall be subject to strict observance by all the participants of these law relations.

• E.A. Lopatievskaya. Improvement of legislative base in the sphere of regulation of compensation for moral damage in labour law

Summary
     Under consideration are the issues of labour law concerning compensation for moral damage caused the workers. Author gives analysis of interrelation of the norms of international and national law in the specified sphere.
     Article contains the proposals on improvement of the legislation of the Republic of Belarus regulating the specified issues taking into account the experience of the Russian Federation.

     "Round-table" on the issues of constitutional process and development of political system of society (18 December 2003)

From history of development of constitutionalism in Belarus

     M.Ph. Chudakov. Constitutional process in Belarus (brief historiography of the issue)

International relations of the Constitutional Court

     V.Z. Shuklin. II International legal forum of CIS and Baltic States (Yalta, the Ukraine, 1-4 October 2003)

     A.G. Tikovenko. "Round table" of Committee of the Council of Federation on CIS affairs (Moscow, Russian Federation, 20 November 2003)

     T.S. Boiko. International UniDem Seminar on the issues of reform of civil service in Europe (Trieste, 24 - 28 November 2003)