CONTENTS
- Constitutional Court of the Republic of Belarus — 10 years.
Introductory article of chief editor of the Bulletin - Chairman of the Constitutional Court of the Republic of Belarus Mr G.A. Vasilevich, Doctor, Professor, Honoured Lawyer of the Republic of Belarus
Official Materials and Decisions
of the Constitutional Court
of the Republic of Belarus
- Decision of the Constitutional Court of the Republic of Belarus of 12 January 2004 No. D-167/2004 "On constitutionality of decisions of Vitebsk, Polotsk and Novopolotsk city Councils of deputies on setting of local due for the right to deal with gambling business (right to locate a gambling institution)"
Summary:
12 January 2004 the Constitutional Court has adopted its Decision concerning constitutionality of setting by Vitebsk, Polotsk and Novopolotsk city Councils of deputies of local due for the right to deal with gambling business (right to locate a gambling institution). The specified type of the due shall be related to the local due from the users.
On the basis of analysis of the relevant provisions of the Constitution, decrees of the President and laws of the Republic of Belarus, the Constitutional Court has come to the conclusion that decisions of the specified Councils of deputies had realized their exclusive powers to set the local due for the right to deal with gambling business (right to locate a gambling institution) within the rights granted by Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2003".
At the same time, the Constitutional Court has paid attention to the fact that the rates of the local due in question set by local Councils of deputies are different: 30 base units (Vitebsk), 300 EURO (Novopotsk) and 600 EURO (Polotsk). While studying the given issue, the Constitutional Court has confirmed its legal position worded in its Decision of 3 November 2003 concerning the procedure of setting the local due for the right to trade. For example, if the legislative acts of the Republic of Belarus set duties and dues for enjoying the special right, for the purposes of inadmissibility of making the rates of local dues from the user to be excessive, the right to set the specified due by the local Councils of deputies should be specified in details by the law-maker.
In this connection the Constitutional Court has proposed the National Assembly of the Republic of Belarus for the purposes of observance of the constitutional provision on 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 to specify in the law the exhaustive list of local taxes and dues, which local Councils of deputies may set in the relevant territory, 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).
- Judgment of the Constitutional Court of the Republic of Belarus of 30 January 2004 No. J-168/2004 "On the conformity to the Constitution of the Republic of Belarus of point 3 of Article 760 of the Civil Code of the Republic of Belarus"
Summary:
The case on verification of the constitutionality of point 3 of Article 760 of the Civil Code (CC) of the Republic of Belarus has been brought by the Constitutional Court of 16 December 2003 as a result of the petition of the House of Representatives of the National Assembly. The provision of the specified norm of CC shall envisage that foreign currency and currency valuables may be the subject-matter of the loan contract in the territory of the Republic of Belarus with the observance of the rules of Articles 141, 142 and 298 of the Code in question.
In accordance with Article 141 of CC Belarusian rouble is the legal tender, which is obligatory to be taken according to the nominal cost in the territory of the country, the instances, procedure and conditions of the use of the foreign currency in the Republic of Belarus shall be specified by the legislation. According to Article 142 of CC the types of the property as the currency valuables, as well as the procedure of carrying out transactions with them shall be specified by the legislation. The right of ownership to the currency valuables shall be subject to protection in the Republic of Belarus on common grounds. Article 298 of CC shall envisage the possibility of payment of pecuniary obligation in Belarusian roubles in the sum equivalent to the definite sum in foreign currency or in standard (conventional) monetary units; the use of the foreign currency and payment documents in foreign currency while making payments in the territory of the Republic of Belarus under the obligations shall be admissible in instances, procedure and under the conditions specified by the legislation.
Having analysed the norms of the Civil Code and the Banking Code, Law "On the National Bank of the Republic of Belarus", acts of the National Bank and other enforceable enactments in the field of currency regulation, the Constitutional Court concluded that before enforcing the Law of 22 July 2003 "On currency regulation and currency control" the specified provisions were imperfect, contradictory, uncertain, and that gave the grounds for their multi-valued understanding and application in practice. That found its reflection not only in numerous instances of conclusion of the foreign currency loan contracts between natural persons - residents and their further complaints to the court of law for the protection, as they deemed, of the violated rights, but also in finding the lawfulness of those contracts at the moment of examination of the case in the Constitutional Court by a number of state bodies, as well by certain scientific organizations and higher educational institutions.
The Constitutional Court has also emphasized the contradictoriness and inconsistency of judicial practice on the disputes between natural persons - residents, which are following from the foreign currency loan contracts, when there were the instances where the courts of law enforced the recovery of money in Belarusian roubles for the benefit of an appellant, but in the proceedings the parties made no refusals as regards the fact of conclusion of the foreign currency loan contract, and there were transactions found to be invalid and the foreign currency as the subject-matter of the transaction was returned to the state revenues. In this connection, there have been paid attention of the Supreme Court of the Republic of Belarus, as the body directing judicial practice and which has changed this practice in 2001 with preservation of the same norms of the legislation, to the fact that its turn was made against the interests of the participants of foreign currency loan contracts who counted on the protection of their interests on behalf of the state and, owing to uncertainty of the content of legal norms, had the grounds to take on behalf the state bodies the measures on fair solution of the disputes.
In such a situation, in the opinion of the Constitutional Court, for the delivery of lawful decisions it should be used all the possibilities including improvement of the acts of the legislation for the purposes of securing their strict and unique understanding or to meet the requirements of part two of Article 112 of the Constitution for the timely verification by the Constitutional Court of the constitutionality of the norms of legal acts, which are subject to application while solving the specified disputes.
Taking into consideration the peculiarities of the situation, the Constitutional Court found that the law relations as regards the foreign currency loan contracts concluded by natural persons - residents in accordance with point 3 of Article 760 of the Civil Code before the enforcement of the Law of 22 July 2003 "On currency regulation and currency control" the disputes on which are at the stage of examination in the courts of law or have been already examined by the courts of law, but decisions thereon are not exercised in full or partly, there should be applied the provisions of Article 11 of the Law "On currency regulation and currency control". This conclusion shall be based on part six of Article 104 of the Constitution and part one of Article 67 of the Law "On enforceable enactments of the Republic of Belarus" under which an enforceable enactment shall have no retrospective action, i.e. shall not cover the relations arising before its enforcement, except for the cases when it not only mitigates or repeals the responsibility of citizens, but also improves in some other way the position of the persons in question.
The Constitutional Court has proposed the National Bank to bring its acts into line with the Law "On currency regulation and currency control" as well as to ensure unique legal regulation of relations and application of the given acts, as well as together with other state bodies to take the measures on more wide explanation for the citizens of their rights and obligations in the specified field of law relations.
As for point 3 of Article 760 of the Civil Code where the law maker has stipulated that the foreign currency and currency valuables may be the subject-matter of the loan contract in the territory of the Republic of Belarus with the observance of the rules of Articles 141, 142 and 298 of the specified Code, the Constitutional Court has found it to be in line with the Constitution of the Republic of Belarus.
- Decision of the Constitutional Court of the Republic of Belarus of 6 February 2004 No. D-169/2004 "On constitutional legality in the Republic of Belarus, 2003"
- Message of the Constitutional Court of the Republic of Belarus to the President of the Republic of Belarus, the House of Representatives of the National Assembly of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus on constitutional legality in the Republic of Belarus, 2003
Summary:
In the Message to the President of the Republic of Belarus, the House of Representatives of the National Assembly of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus on constitutional legality in the Republic of Belarus in 2003 the Constitutional Court has generalised the results of forming in the Republic of Belarus, on the grounds of adopted in 1994 Constitution, of a democratic social state ruled by law, making, development and strengthening of constitutional justice.
Adoption in 1994 of the Constitution was the important milestone in the development of the constitutional processes in Belarus. The Constitution is a political and legal basis for forming and development of social and legal State organization, the main factor of law making and law applying processes. During ten years period of time there have been created the wide legislative base for economic, political and social transformations, securing the rights and freedoms of citizens, guarantees of their realization, formed new legal system reflecting present-day achievements of European legal culture.
The constitutional justice has become the reality, one of the component parts of the constitutional principles of State organization. Decisions of the Constitutional Court have been the contribution to strengthening the constitutional system, realization of human rights and freedoms, as well as the real factor of improvement of legal system, forming of new feeling for law and order, law applying practice.
The Constitutional Court is striving to both understanding genuine content of the constitutional norms, principles and their direct effect in order the State bodies and officials to bare responsibility for their activities, as well as the citizens are responsible towards the State for the exercising their obligations (Articles 2, 59 and other Articles of the Constitution).
In 2003 the scope of attention of the Constitutional Court has been securing the rights and freedoms of citizens, as well as realization of the fundamental constitutional principles. The Constitutional Court has adopted 36 Decisions which contain the positions directed to securing the social rights as the right to education, the right to social security and protection of the rights of invalids, the right to health protection and accessibility of medical care.
The Constitutional Court in 2003, just like the previous years, on the grounds of part one of Article 116, part four of Article 122, Article 137 of the Constitution has also verified the constitutionality of the enforceable enactments of local Councils of deputies, executive and administrative bodies.
By making analysis of the norms of the effective legislation in the sphere of local taxation, the Constitutional Court has expressed for several times its legal position concerning the fact that for the securing of the protection of the constitutional rights and lawful interests of tax payers, as well as for the purposes of pursuing in the territory of the Republic of Belarus of a unified fiscal, tax, credit and currency policy (Article 132 of the Constitution) it is necessary for the law maker to specify the exhaustive list of local taxes and dues, which may be set by the local Councils of deputies in the relevant territory. The Constitutional Court has also paid attention to the fact that the parameters of the most important elements of local taxes and dues (payers, objects of taxation, rates, procedure and terms for payment), within which the local Councils of deputies should realize their exclusive powers to set the local taxes and dues, should be also specified in the law. Legal positions of the Constitutional Court have found its legal securing in the Law "On budget of the Republic of Belarus for 2004".
On the basis of Decision of the Constitutional Court the Novopolotsk city Council of deputies has repealed the local due for the right to delivery of hydrocarbon raw materials for industry processing under supply giving conditions. The payers of the due in questions have been returned from the local budget (in other due budget payments) the money resources in sum of 652 m. of roubles. Pinsk city Council of deputies has executed Decision of the Constitutional Court which found to be at variance with the Constitution and the laws of the Republic of Belarus, as well as to be null and void from the date of its adoption point 1 of the Provision on the local due from the users of infrastructure of the city, and other norms of the Provision based on the given point. Taxpayers have been returned the money resources in sum of 30023,6 thous. of roubles from the relevant local budget.
The Constitutional Court has upheld successively the principles of fairness and equality in the field of criminal law regulation, secured optimal realization of democratic institutions of the criminal law in law applying practice by stimulating its transition from the formed stereotypes to the new approaches which are fully in line with the requirements of the Constitution and international legal acts.
In its Decisions the Constitutional Court, by adhering strictly to the principle of direct effect of Article 60 of the Constitution, which guarantees everyone the protection of his rights and freedoms by the competent, independent and impartial court of law, shall carry out the policy on ensuring the constitutional right of everyone to access to justice. The Constitutional Court underlines that the norm in question as the norm of direct effect shall have supremacy owing to Article 137 of Constitution and, therefore, the right to judicial protection may not depend on its stipulation in by-constitutional acts.
Constitutional control shall cover all the branches of law and the spheres of law applying activities. However, the Constitutional Court is not the single State body, responsible for the constitutional legality in the State, for the creation of the law and order, which is necessary for the full exercise of the rights and liberties of an individual. Article 59 of the Constitution shall oblige all the State bodies and officials to protect the rights and freedoms of an individual and impose on them responsibility for their violations.
- Judgment of the Constitutional Court of the Republic of Belarus of 20 February 2004 No. J-170/2004 "On the conformity between the Constitution of the Republic of Belarus, Article 15 of the Law of the Republic of Belarus "On public health protection" and Provision on licensing of medical activities, as well as Provision on licensing of pharmaceutical activities approved by Resolution of the Council of Ministers of the Republic of Belarus of 20 October 2003 No. 1378"
Summary:
The case "On the conformity to the Constitution of the Republic of Belarus, Article 15 of the Law of the Republic of Belarus "On public health protection" and Provision on licensing of medical activities, as well as Provision on licensing of pharmaceutical activities approved by Resolution of the Council of Ministers of the Republic of Belarus of 20 October 2003 No. 1378" has been brought by the Constitutional Court of 8 December 2003 as a result of the petition of the House of Representatives of the National Assembly of the Republic of Belarus concerning the issue on verification of the constitutionality of the specified Provisions envisaging the procedure and the conditions of issue of special permissions (licenses) for carrying out medical and pharmaceutical activities, in particular, those which shall set more higher requirements towards the professional level of the heads of organizations of public health protection (heads of organizational departments) who carry out directly medical or pharmaceutical activities, individual entrepreneurs, as well as the workers they engaged.
Based on the essence of the proposals made by the House of Representatives, the Constitutional Court in accordance with Article 11 of the Law "On the Constitutional Court of the Republic of Belarus" has made verification of the constitutionality of the norms of point 9 of the Provision on licensing of medical activities, points 9 and 10 of the Provision on licensing of pharmaceutical activities.
Having examined the materials of the case, the Constitutional Court held that the norms of Article 15 of the Law "On public health protection" shall have no reference to the issues of licensing of medical and pharmaceutical activities as those having regard to special regulation and specify the conditions and requirements for securing the right of persons to deal with medical and pharmaceutical activities as a physician or as a pharmaceutical chemist, but not as the heads of legal entities (heads of organizational departments) and individual entrepreneurs who organize the realization of the types of the activities which are subject to licensing and bear the absolute responsibility for the due medical or pharmaceutical service.
The Court has emphasized that the physicians and pharmaceutical chemists under Article 41 of the Constitution shall realize their right to work, i.e. the right to choose the line of business following one's vocation, abilities, education, professional training, as well as taking into consideration social needs, by way of concluding of labour and civil legal contracts with the relevant economic entities of both state and private forms of ownership which should organize carrying out medical and pharmaceutical activities in accordance with the requirements and the standards of the state.
In addition, the Constitutional Court paid attention to the fact that before the enforcement of new requirements towards the applicants for licenses and license-holders for carrying out medical and pharmaceutical activities it was effective the Provision on the procedure of issue for the economic entities (legal persons and entrepreneurs without making a legal entity) of special permissions (licenses) for carrying out the types of activities which are under the authority of the Ministry of Public Health approved by Order of the Ministry of Public Health of the Republic of Belarus of 15 January 1998 No. 15, according to which the issue of licenses for medical practice, wholesale and retail of the medicines and herbs (sub-items 2.3.2 and 2.5 of point 2) has been exercised within the lower extent of the requirements and conditions made on the applicants of licenses (license-holders).
In accordance with previously effective legislation obtaining by the economic entity of the license for carrying out medical or pharmaceutical activities has not been laid with the presence or absence of the head of organization (head of organizational department), individual entrepreneur, as well as of the engaged by them workers of the first and higher qualified category.
Based on the aforementioned the Constitutional Court found that by restricting of already acquired rights, it is necessary to make special consideration for the principles of fairness, proportionality, maximum respect to private and public interests. Such an approach shall promote the formation of trust of the citizens to the state. The most important principle of legal regulation of relations in the state ruled by law, and the Republic of Belarus has been proclaimed as such, should be predicting, reasonable stability of the normative regulation which shall be based on combination of the interests of the state and the citizens, as well as the economic entities.
Therefore, the Constitutional Court held it lawful to make additional requirements towards new persons who wish to obtain licenses for carrying out medical or pharmaceutical activities by way of creation of a legal entity or by way of work as an individual entrepreneur.
As for the economic entities of state and private forms of ownership who obtained the licenses for carrying out medical or pharmaceutical activities on the basis of previously effective legislation, the Constitutional Court deems that for elimination from liquidation (suspension of activities) of economic entities for the reasons they have not anticipated at the moment of their creation, for the heads of those organizations of public health, for other persons specified in point 9 of the Provision on licensing medical activities and in points 9, 10 of the Provision on licensing of pharmaceutical activities there shall be given the possibility to take part in attestation for obtaining the relevant category taking into account the length of their service, as well as other consideration-worthy circumstances within the time period after the adoption of the present Judgment which is sufficient for the solution of the given issues.
As regards the specified persons the authorized state bodies shall be entitled to mitigate the requirements stipulated by the Provision on the procedure of awarding qualifying categories for the medical and pharmaceutical workers approved by Resolution of the Ministry of Public Health of the Republic of Belarus of 1 July 2002 No. 45 in part of awarding qualifying categories out of the established sequence, taking into account the length of the service, level of professional training and other circumstances, including also the fact of creation by them of economic entities which had carry out medical or pharmaceutical activities on the basis of the licences issued previously by the state bodies.
- Judgment of the Constitutional Court of the Republic of Belarus of 11 March 2004 No. J-171/2004 "On the conformity between the Constitution of the Republic of Belarus, the international treaties of the Republic of Belarus and the provisions of the Criminal Code of the Republic of Belarus stipulating application of death penalty as a punishment"
Summary:
The given case had been brought on the initiative of the House of Representatives of the National Assembly of the Republic of Belarus which proposed the Constitutional Court to produce the Judgment on the conformity between the Constitution of the Republic of Belarus, the international treaties of the Republic of Belarus and the provisions of the Criminal Code of the Republic of Belarus stipulating as a punishment the death penalty, and considering, that the specified provisions of the Criminal Code are at variance with Articles 2, 21 and 25 of the Constitution of the Republic of Belarus and contrary to the international principles and standards establishing unconditional, without any exceptions, right of everyone to life and directing all the states towards the necessity of refusal of the punishment as the death penalty, towards their aspiration to secure the most important human right in question.
The Constitutional Court, having studied the dynamics of development of the criminal legislation of the Republic of Belarus regulating the application of the death penalty, the practice of application of this punishment, experience of other states and, first of all, the countries of the European region, held that the Republic of Belarus has come nearer to the solution of the issue on the abolition of the death penalty or on declaration of moratorium on its application in accordance with the international approaches and standards. The joining by the Republic of Belarus of the Council of Europe and signing, first of all, the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, Protocol No. 6 concerning abolition of the death penalty (1983) and Protocol No.13 concerning abolition of the death penalty in all circumstances (2002) will contribute unconditional adoption of the decision on the abolition of the penalty in question.
The Constitutional Court has also paid attention to the fact that at present there is no factual fulfillment of the Recommendations of the House of Representatives of the National Assembly adopted of 13 June 2002 on the results of the Parliamentary hearings on the subject of "Political and legal problems of the abolition of the death penalty in the Republic of Belarus", which were addressed to the Council of Minister, the Ministry of Internal Affairs, the Ministry of Education, the Ministry of Justice, the Supreme Court, the Ministry of Information for the purposes of creation of the conditions for the solution of the issue on declaration of moratorium on application of the death penalty. The Constitutional Court has also emphasized that the tendency to the reduction of extra grave crimes connected with intentional infringement on the human life, which had been outlined only in 2003, should be secured by the efforts of the law enforcement bodies.
The Constitutional Court, having found part three of Article 24 of the Constitution of the Republic of Belarus, which has enshrined the possibility of application of the death penalty as the exceptional measure of punishment only until its abolition, as the legal ground to take the decision on declaration of moratorium on the application of the death penalty or complete abolition of the punishment in question, as well as taking into account the mentioned above circumstances and the fact that the Second Optional Protocol to the International Covenant on Civil and Political Rights has not been ratified by the Republic of Belarus, there have not been solved the issue of its Full Membership in the Council of Europe, and due to that there have not been signed and ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the relevant Protocols thereto, and that would stipulate by force of Article 8 and 116 of the Constitution of the Republic of Belarus the supremacy of the specified international acts in the system of the national law, underlined that the specified issue shall be referred to the competence of the Head of the State and of the Parliament.
Problems, opinions, comments
- G.A. Vasilevich. Constitution of the Republic of Belarus - the basis of transformations of the state and society
On the basis of a comparative analysis of the provisions of the effective Constitution of the Republic of Belarus, as well as of the previous Constitutions, the article specifies the traces of the constitutional building in the Belarusian State.
Author considers the Constitution of the Republic of Belarus as the act of direct effect for those who apply the law (state bodies, officials and citizens).
Special attention is given the system nature of the Basic Law, which shall determine the organization and interaction of the powerful structures, the state in general and the system of law.
The Constitution is characterized as the Basic Law of the State, which is democratic in its content, and only with strengthening of the guiding by its text, it is possible to achieve the effectiveness of the legal system.
Author reveals the content of a number of constitutional principles, as well as the role of the state bodies, including the Constitutional Court, on securing the supremacy of the Constitution.
- A.G. Tikovenko. Problems of improvement of legal grounds of realization of human rights and freedoms
On the grounds of analysis of the Constitution and the legislation, messages, judgments and decisions of the Constitutional Court of the Republic of Belarus article studies the issues of realization and restriction of the constitutional human rights and freedoms. Author proposes recommendations concerning further strengthening the guarantees of the constitutional human rights and freedoms.
- R.I. Filipchik. Problems of realization of the right to judicial protection while performing the loan contract
Article successively follows the idea of the fact that the justice should be accessible, and judicial rulings lawful, well-grounded and fair.
Author considers in details Judgment of the Constitutional Court of the Republic of Belarus of 30 January 2004, which found to be constitutional the provisions of the Civil Code stipulating that foreign currency and currency valuables may be subject of the loan contract in the territory of Belarus. Due to that there is a thorough analysis of previously existed practice with the use of different approaches while examining the category of cases in question.
Author has come to the conclusion that the specified Judgment of the Constitutional Court shall improve realization of the constitutional rights to judicial protection.
From history of development of constitutionalism in Belarus
M.Ph. Chudakov. Constitutional process in the Republic of Belarus (1990 - 1994). Creation of the fifth Belarusian Constitution)
International relations of the Constitutional Court
K.I. Kenik. International UniDem Campus Seminar "The civil servant's guide to the Council of Europe and the European Commission" (Strasbourg, France, February 16 - 18, 2004)
Dates, events, facts
Jubilee congratulations.
Republican Scientific Conference dedicated to 10th anniversary of the Constitution (3 March 2004, Minsk)
Presentation of novelties of legal literature