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 1 July 2004 No. D-173/2004 "On constitutionality of sub-item 1.3 of point 1 of Decision of Vilejka region executive committee of 27 February 2003 No. 84 "On additional measures on economy of budgetary funds in 2003"

Summary
     Constitutional Court of the Republic of Belarus has examined the application on the lawfulness of setting by Decision of Vilejka region executive committee of reducing coefficients to the norms of overhead expenses and planned accumulation in building.
     In the course of study of the application in question it has been found that the norms of burden costs and planned accumulations for building and erection organizations which carry out building, erection and special building works by contract and their regulation are specified by enforceable enactments of the Government of the Republic of Belarus.
     Vilejka region executive committee, by carrying out recommendations of Minsk oblast executive committee, has adopted Decision of 27 February 2003 No. 84 and determined that organizations of communal ownership while concluding new treaties in building shall apply more lower reducing coefficient to maximum norms of burden costs and planned accumulations than those fixed by the Resolution of the Government.
     The Constitutional Court deems that the term "maximum norms" should be considered as the highest size, which is not the subject to be increased in case of concluding the treaties, but which may be reduced. In the opinion of the Constitutional Court Decision of Vilejka region executive committee in part of specifying reducing coefficients is directed to saving budgetary funds and that shall have positive social consequences for the region, in particular, shall make it possible to raise the amount of building and repair work at the expense of reduction of expenditure in the given sphere.
     Based on the stated above, the Constitutional Court has come to the conclusion that sub-item 1.3 of point 1 of Decision of Vilejka region executive committee shall be in line with the Constitution and acts of legislation of the Republic of Belarus.

• Decision of the Constitutional Court of the Republic of Belarus of 6 July 2004 No. P-106/2004 "On monetary compensation for the persons who do not take advantage of the right to sanatoria and health resorts"

Summary
     The given Decision has been adopted as a result of application of the citizen. The applicant raised the question on getting monetary compensation for unused voucher to sanatorium to the amount of the voucher, and not to the scale of the monthly pension, as it is stipulated by the Provision on medical and sanatorium and health resort securing of servicemen, persons transferred to reserve, members of their families, invalids of the Great Patriotic War and invalids from among servicemen approved by Resolution of the Council of Ministers of the Republic of Belarus of 2 December 1993 No. 814.
     Due to the fact that the issue is not within the jurisdiction of the Constitutional Court the applicant was rejected in consideration of his application.
     At the same time, the Constitutional Court has emphasized in its Decision that the rates of payments in return for the voucher should be equal, however, solution of the given issue shall be within the powers of the Government or, if the legislative body (Parliament) finds it necessary, the rates of payments may be fixed by the Law.

• Decision of the Constitutional Court of the Republic of Belarus of 23 July 2004 No. D-174/2004 "On constitutionality of point 10 of Decision of Minsk city executive committee of 4 March 2004 No. 453 "On results of implementation of budget of the city of Minsk and position of control and economic work in 2003, tasks on carrying out Decision of Minsk city Council of deputies of 30 December 2003 No. 72 and economy of budgetary funds in 2004"

Summary
     The Constitutional Court has studied the issue on giving retroactivity Decision of Minsk city executive committee in part of the norms specifying reducing coefficients to planned accumulation and burden costs.
     Under Decision of Minsk city executive committee of 4 March 2004 it shall be enforced since 1 January 2004, i.e. the specified enforceable enactment has been given retrospective effect. Decision was included into the National register of legal acts of the Republic of Belarus of 1 April 2004.
     The Constitutional Court has specified that under Article 104.6 of the Constitution the law shall have no retrospective effect unless it extenuates or revokes the responsibility of citizens. Article 67 of the Law "On enforceable legal acts of the Republic of Belarus" envisages that the enforceable enactment shall have no retrospective effect, i.e. shall not cover the relations originated before its enforcement, unless it extenuates or revokes the responsibility of citizens or by some other way improve the position of persons whom it covers or if the enforceable enactment or the act on its enforcement stipulates directly that it covers the relations originated before its enforcement.
     The Constitutional Court has also expressed its opinion that the enshrined in the Constitution and the Law rule of retroactivity of an enforceable enactment shall imply inadmissibility of giving retroactivity the enforceable enactment not only while solving the issue on imposition of legal liability, but also in case of such an alteration of the legislation as a result of which the status of citizens or legal entities is aggravating. The Constitutional Court underlined that in instances when the enforceable enactment itself or the act of its enforcement specifies directly that it shall cover its force over the law relations arising before its enforcement, retroactivity may be given only those norms of the enactment in question which do not aggravate the position of citizens or legal entities. The Constitutional Court noted that giving retroactivity the challenging norms may be at variance with the principles of supremacy of the law and equality of the rights of participants of civil relations specified in Article 2 of the Civil Code of the Republic of Belarus.
     The Constitutional Court pointed out the necessity of observance of the constitutional principle of the freedom of contract due to which Decision of Minsk city executive committee is the ground for the negotiations of organizations-customers with contractors about alteration of conditions of the contract or, in case of failure to reach an agreement, - about its termination. Exclusion, taking into account the provisions of the Civil Code, may be only the instances when the customer and contractor under the contract are the unitary communal enterprises.

• Decision of the Constitutional Court of the Republic of Belarus of 23 July 2004 No. P-107/2004 "On application of Article 255 of the Civil Code of the Republic of Belarus and measures on protection of the rights of a minor"

Summary
     Decision of 23 July 2004 No. P-107/2004 "On application of Article 255 of the Civil Code of the Republic of Belarus and measures on protection of the rights of a minor" has been adopted by the Constitutional Court on the grounds of consideration of the complaint of citizen Mrs. M.V. Gavdulevich as regards rejection of the court of law of Chashniki region of the executive committee of Vitebsk oblast and higher courts of common law of the suit of the educational division of Chashniki region of the executive committee in the interests of her grandson under age - A.V. Gavdulevich.
     The Constitutional Court found to be faulty application by the courts of common law of the specified Article of the Civil Code and due to that it took place violations of the norm of part one of Article 21, part one, two, three and five of Article 44, part one of Article 60, part one of Article 112 and part one of Article 137 of the Constitution of the Republic of Belarus.
     The Constitutional Court has forwarded the given complaint with detailed specification of its position to the Supreme Court as the highest judicial instance on civil cases for securing proper application of the legislation and protection of the rights of the minor.

• Decision of the Constitutional Court of the Republic of Belarus of 23 August 2004 No. D-175/2004 "On application on the issue of finding to be at variance with the Law of the Republic of Belarus "On applications of citizens" of certain norms of Instruction on procedure of personal reception of citizens in Gomel oblats executive committee approved by Decision of Gomel oblast executive committee of 17 April 2003 No. 267"

Summary
      Decision has been adopted on the grounds of application of Mrs. I.E. Rudyak who challenged the legality of Instruction on procedure of personal reception of citizens in Gomel oblast executive committee approved by Decision of Gomel oblast executive committee of 17 April 2003 No. 267 in part excluding the possibility of oral application of citizens at personal reception to the Chairperson of oblast executive committee, as well as establishing the necessity of giving reasons by the citizens of the legality of their requirements.
     The Constitutional Court emphasized that its legal position as regards the procedure of realization of the constitutional right of citizens to appeal to the state bodies, other organizations was expressed in its Decision of 15 April 2004 "On constitutionality of Provision on procedure of reception of citizens in Minsk city executive committee approved by Decision of Minsk city executive committee of 1 October 2002 No. 1430".
     Since the subject of examination of the Constitutional Court were both the specified Decision of Minsk city executive committee and the analogous decisions of certain oblast executive committees, including Gomel oblast executive committee, the Constitutional Court in its Decision has paid attention of both Minsk city executive committee and other local executive and administrative bodies to the necessity of proper securing of the constitutional right of citizens to lodge their applications to the state bodies, including the right to oral applications at personal reception, and that presupposed bringing both the enforceable enactments they adopted and the law applying practice into line with the requirements of the Law "On applications of citizens".
     The Constitutional Court held that constitutional and legal meaning of Article 5 of the Law revealed in Decision of the Constitutional Court of the Republic of Belarus of 15 April 2004 shall be obligatory and shall exclude any other its interpretation by by-laws, including by decisions of local executive and administrative bodies. On the ground of above stated the Constitutional Court found that for the solution of the issue raised in the application of citizen Mrs. I.E. Rudyak there is no need to deliver new decision envisaged by Article 35 of the Law of the Republic of Belarus "On Constitutional Court of the Republic of Belarus".

• Decision of the Constitutional Court of the Republic of Belarus of 15 September 2004 No. D-176/2004 "On legal regulation of recovery of harm caused the life and health of citizens due to liquidation of legal entities which are bound to effect payments in compensation for the specified harm"

Summary
     Decision of the Constitutional Court of 15 September 2004 has been adopted on the issue of legal regulation of recovery of injury caused to life or health of citizens in case of liquidation of enterprises, which are bound to effect payments in compensation of the specified injury.
     The Constitutional Court has analyzed the relevant provisions of the Constitution, the Civil Code, Law "On economic insolvency (bankruptcy)", other acts of legislation of the Republic of Belarus and found the following.
     In case of liquidation of an enterprise, which was found to be responsible for the injury caused to the life or health of a citizen, the relevant payments should be capitalized for their payment for the victim. It is also necessary to consider that the requirements of citizens, before whom the enterprise under liquidation is responsible for the injury, should be satisfied primarily.
     Specification of the scope of requirements of a citizen, before whom the enterprise under liquidation is responsible for the injury to his/her life or health, shall be carried out by way of capitalization no less than for the period of 15 years of the relevant periodical payments fixed for the date of opening by the economic court of the procedure of liquidation of enterprises. The payments shall be effected for the victim before his/her age of seventy. If the age of a natural person is more than seventy, the term for capitalization of the relevant periodical payments shall be 15 years.
     As for the instances of recovery of the damage caused as a result of industrial accidents and occupational diseases, the legislation shall also envisage the right of victims to get the relevant payments in full, irrespective of the sufficiency of the means obtained as a result of liquidation of an enterprise.
     The right to claim from the enterprise under liquidation in the sum of capitalizing periodical payments in the presence of consent of a natural person shall be passed on to the Republic of Belarus and is fulfilling by the Republic of Belarus in accordance with the legislation under the procedure stipulated by the Council of Ministers of the Republic of Belarus.
     The Law "On economic insolvency (bankruptcy)" has been adopted in 2000 and envisaged within six months period taking the measures, including adoption of enforceable enactments for securing realization of the given provisions of the Law. However, until now there is no specification of the procedure of realization of the right of citizens to recovery of damage.
     The Constitutional Court has proposed the Council of Ministers for the purposes of securing the constitutional rights to fix the procedure of realization of the right of citizens to recovery of injury in the given case.

• Decision of the Constitutional Court of the Republic of Belarus of 15 September 2004 No.D-177/2004 "On constitutionality of Instruction on procedure of calculation and payment of local due for use of infrastructure while locating the object of trade, public catering and other entrepreneur activities in the territories within administrative subordination to city Councils of deputies and city executive committee approved by Decision of Novopolotsk city Council of deputies of 30 December 2003 No. 41"

Summary
     On 15 September 2004 the Constitutional Court of the Republic of Belarus has examined the issue on constitutionality of Instruction on procedure of calculation and payment of local due for use of infrastructure while locating the object of trade, public catering and other entrepreneur activities in the territories within administrative subordination to city Council of deputies and executive committee approved by Decision of Novopolotsk city Council of deputies of 30 December 2003 No. 41 and adopted its Decision (hereinafter is also referred to as the Instruction).
     Having analyzed the relevant provisions of the Constitution of the Republic of Belarus, General part of the Tax Code of the Republic of Belarus, the Law of the Republic of Belarus of 29 December 2003 "On budget of the Republic of Belarus for 2004" and other acts of legislation, the Constitutional Court found that the types of local taxes and dues, which may be imposed in the territory of the relevant administrative and territorial units in 2004 by oblast, Minsk city Council of deputies, Council of deputies of the based territorial level, are specified in Article 10 of the Law of the Republic of Belarus of 29 December 2003 "On budget of the Republic of Belarus for 2004" (hereinafter is also referred to as the Law).
     Sub-item 1.4 of point 1 of Article 10 of the Law envisages imposition of the dues from the users. Both organizations, individual entrepreneurs and natural persons who are not individual entrepreneurs may be the payers of the dues in question. The list of objects of taxation as regards the dues from the user is not an exhaustive one. Minsk city Council of deputies, the Council of deputies of the based territorial level shall be granted the right to specify other types of use by infrastructure of the relevant territorial and administrative units. The tax rates shall be fixed depending on the object of taxation in percentage of the tax base and (or) to the tunes multiple of the base ratio.
     Instruction No. 41 has specified as the payers of the due the organizations and individual entrepreneurs who have the objects for carrying out entrepreneur activities (retail trade, public catering, gambling institutions, objects of rendering tourist services, paid parking, filling stations); as the object of taxation shall be specified the use of operating systems and communications while locating the objects of trade, public catering, gambling business etc.
     The Constitutional Court emphasized in its Decision that imposition of the due from the users shall not violate the provisions of part two of Article 132 of the Constitution which enshrines pursuing a unified fiscal, tax, credit and currency policy in the territory of the Republic of Belarus, as well as is not at variance with point 3 of Article 28 of the General part of the Tax Code of the Republic of Belarus under which the same object may be liable to tax, due (duty) at single payer only once within the relevant tax period.
     The Constitutional Court held no legal grounds for finding to be sound the arguments of the applicant that the due from the users specified by Instruction No. 41 should be of once-only nature. In the opinion of the Constitutional Court, the content of sub-item 1.4 of point 1 of Article 10 of the Law envisaging the possibility of setting the due from the users not only in base ratio, but in percentage of the tax base, shall not exclude the right of local Councils of deputies to fix the periodical nature for payment the due in question.
     The Constitutional Court found Instruction No.41 to be in line with Articles 121 and 132 of the Constitution and Article 10 of the Law of the Republic of Belarus "On budget of the Republic of Belarus for 2004".



Problems, opinions, comments

• Vasilevich G.A. Judicial precedent and its correlation to other sources of law

Summary
     Article considers the points of view of both supporters and opponents of acknowledging judicial practice as a source of law.
     Author gives concrete examples, including the practice of the Constitutional Court on the basis of position that judicial ruling is the source of law until the law maker confirms the specified ruling by way of adoption of a legal norm or until it passes another decision. It is also pointed out the right of the Constitutional Court to verify the constitutionality of the acts of higher judicial instances.
     Judicial precedent is characterized by both the flexible mechanism of elimination of errors of the lawmaker and the important instrument for the protection of the rights and freedoms of citizens.

• Filipchik R.I. Role of appeal in realization of the right to judicial protection

Summary
     Article analyses the role of appeal against judicial rulings and notes advantages of examination of cases under the cassation and appellate procedure while realizing the right to judicial protection.
     Moreover, guiding by provisions of the civil legislation of procedure of Belarus, Russia, Ukraine, as regards the limits for examination of the cases by the court of appellate instance, the author pays attention to the fact that introduction of the institute of appeal should promote realization of the constitutional right to judicial protection, accessibility of justice. Effectiveness of appellate institute shall depend on the limits of examination of cases by appellate instance. The most effective it shall be found with the obligation of the appellate instance to verify legality and validity of the ruling of the court of first instance both in appealed (protested) and non-appealed (non-protested) part, as well as with respect to the persons who made no application. Author proposes to make alterations and addenda into the Economic Code of Procedure of the Republic of Belarus.

• Pugachev A.N. Notion, features and form of legal acts of constitutional proceedings

Summary
     On the basis of analysis of current Law on the Constitutional Court of the Republic of Belarus and practice of administration of Belarusian constitutional justice, the article gives the definition of an act of the Constitutional Court. This definition is the first one in Belarusian legal science. The author considers the basic characteristics of an act of the Constitutional Court in the frames of discussion about essence and system of legal acts.
     Special attention is given the analysis of legal nature of the acts of constitutional justice. The author scrutinizes problems of the forms of acts of the constitutional justice, peculiarities of abidance of the form at different stages of court constitutional judicial process and draws distinction between an act in form of an action and an act in form of a document.

• Bodak A.N. Actual problems of securing constitutional legality in law creation activities

Summary
     Article considers the problems of securing of constitutional norms in norm creating activities. Author specifies that at present it takes place forming of the legislation which meet the features of a democratic social state ruled by law.
     With an allowance for the fact that the information of the Ministry of Justice of the Republic of Belarus, lately a great number of draft enforceable enactments are at variance with the Constitution of the Republic of Belarus, article contains the analysis of the main grounds for the incompatibility in question.
     As a result of this analysis, there is the formulation of the proposal on the necessity of preparation of the Concept of the policy of legal regulation, which could find uniform approaches, forms and methods of realization of the constitutional provisions in the process of norm creating.

• Antonova O.A. Recall of a deputy as one of the forms of direct democracy in the Republic of Belarus: some legal aspects

Summary
     Article studies the issues of realization of one of the institutes of direct democracy - institute of recall of deputies. Attention is paid to the role and significance of the recall in the Republic of Belarus.
     Author uses different opinions expressed both by Belarusian and Russian authors on the necessity of stipulation of the institute of recall in the legislation of the country.
     Analysis is given the legislative acts specifying the right of citizens to recall the deputy they elected. Under consideration is practice of certain foreign states (first of all subjects of the Russian Federation).
     On this ground there are the proposals on improvement of mechanism of realization of the right of citizens to recall the deputy they elected.
     

• Solonevich I.A. Elements of social state system

Summary
     Article reveals the content of the elements of social state system, including worthy living standard, social equality, social security, common improve of well-being. Author proposes the directions of development of the state securing realization of the given elements in the Republic of Belarus.

• Retneva N.I. Human trafficking: implementation of international legal norms into national legislation

Summary
     Article contains analysis of international legal acts directed to struggle against slavery, slave-trade, holding in captivity, human trade, including women and children trade in comparison with the norms of the Criminal Code of the Republic of Belarus stipulating liability for criminal encroachment on individual freedom.

• Shpilevskaya T.E. Legal problems of competitive selection of professorial and teaching staff

Summary
     Article considers the issues of competitive selection of professorial and teaching staff. Special attention is paid to the study of the procedure of holding the competition, analysis of requirements on pretenders to the posts in question. Material contains analysis of the labour legislation of the Republic of Belarus and Russian Federation, certain theoretical provisions on the issues of holding the competition for the posts of professorial and teaching staff.
     Author expresses her proposals on improvement of the legislation regulating holding the competition for the posts of professorial and teaching staff, as well as other issues concerning labour relations concerning the lecturers of higher educational institutions.

• Bodakova O.V. Actual issues of job placement of women and youth in the Republic of Belarus

Summary
     Author emphasizes that adjustment of the policy of Belarusian state in the field of provision of employment for the population and securing of one of the most important fundamental human rights - right to labour should be considered as a result of alterations in economic and social spheres.
     The topic is covered on the ground of analysis of the effective legislation regulating the relations in the field of employment and practice of its application.
     Article specified that detailed regulation in the enforceable enactments of the rights of the groups of population of lesser protection as women and youth, granting them of additional privileges and guarantees will allow to make the process of their placing in job more effective.

Seminars, Conferences, Forums

     Karavai A.V. Constitutional control and development of social state ruled by law (materials of International Conference, Minsk, 9-10 September 2004)

Dates, events, facts

     Congratulations with jubilee

International relations of the Constitutional Court

     Seledevsky V.I. International UniDem Seminar dedicated to the problems of state security (Trieste, Italy, 5-9 July, 2004)