Decision of the Constitutional Court of the Republic of Belarus of 2 February 2005 No. D-183/2005 "On constitutional legality in the Republic of Belarus in 2004"

Summary

     Constitution - practicably effective document

     On 2 February 2005 the Constitutional Court has adopted the Message "On constitutional legality in the Republic of Belarus in 2004".
     The obligation to submit annual Messages on constitutional legality in the country is entrusted with the Constitutional Court by the law. Traditionally, all the specialized bodies of constitutional control of other countries shall have the specified right. Message is the concentrated expression of view of these bodies of power on the most actual issues of law development of the country.
     Messages of the Constitutional Court shall be forwarded to the Head of the State and to the Chambers of the Parliament. Just precisely these bodies shall adopt the most important enforceable enactments, which influence on the development of law system.
     Message shall be elaborated on the grounds of the materials examined in the Constitutional Court. The Constitutional Court shall have the right to specify the issues, which are the most actual for the present-day development of the country with the object of correcting the existing shortcomings.
     The present Message is dedicated to the problems of rule making and law enforcement activities. Estimations are given on the basis of activities of the Constitutional Court in 2004 on verification of constitutionality of enforceable enactments and on the information the Constitutional Court received while considering the applications of citizens.
     The Constitutional Court has emphasized that forward movement along the way of our state as the democratic social state ruled by law shall be impossible without significant improvement of rule making activities.
     If, in the early nineties Belarus has only just become an independent state, the most important task was "accumulation" of its own national law base, then now it is already high time to establish the due order in the existing system of legislation. How this system is balanced and optimal shall depend upon the level of economic activity, securing of the right and freedoms of citizens, how proper they perform their duties. Certainly, the fundamental aspect of attention of the Constitutional Court is the law enforceable practice, it may be written a good law, but it will be unsuitable for the implementation. Taking into account the fact that the Constitutional Court shall have its own competence and the Message has been prepared on the grounds of official information, which was the subject for the study, there are many other urgent problems, which still remain "off screen".
     The Constitutional Court of the Republic of Belarus as a specialized body is charged with the duty to carry out verification of the conformity between the Basic Law and all the other enforceable enactments. At the same time, along with the specified acts the subject to verification may be law enforcement practice, judicial practice included.
     The previous Messages of the Constitutional Court paid great attention to its concrete decisions (in 2004, for example, the Constitutional Court delivered 45 decisions and that may be compared with the number of cases examined as in first instance by the Supreme Court which is at the head of three sub-systems of judicial power).
     Message of 2005 shall emphasize that the most important aspects of rule making activities, and what is more from the point of view of reveal of the shortcomings in the given sphere for their elimination. Without this the state may not be developed as the democratic social state ruled by law.
     The most important task in our country shall be regulation (ranking) of acts with their hierarchy taking into account. Due to that the Constitutional Court has underlined that for the successful development of Belarus as the law governed state, the acts of current legislation must have the formed up on the ground of the Constitution law pyramid without the contradictions and gaps. It is known that there are many contradictions among the acts of the same and the different levels. Variant readings are appearing not only as regards the content, ill problems are emerging because of temporal discrepancy.
     Constitutional legality may be secured, if the legislation shall stipulate clearly and definitely, without any ambiguous interpretation of the rights and obligations of citizens and economic entities. In addition, the officials must learn that under the conditions of post-Soviet period the Constitution - is really effective document.
     In our country we have the necessary machinery of juridical services as well as the specialists dealing with the rule making, there is the necessary experience. However, professionalism in that sphere shall be subject to improvement. Moreover, it is gathering the impression that the law-quality preparation of the drafts shall make troubles not for many, because the wide circle of subjects shall take part in such a "creation", and thereby, the responsibility is washing out. There is no systematic control over the implementation of the adopted enforceable enactments, although carrying out of this control is especially advisable after the expiration of the short period of time after the enforcement of the act. Due to that it is useful to strengthen control in the given sphere of the Parliament and the local representative bodies.
     The quality of enforceable enactments may be upgraded significantly in case of strengthening of effectiveness of expert examination of drafts, including philological (to ensure the unity of terms, clarity and definiteness of legal regulations), logical (to exclude internal contradictions), system (to secure consistency of a new act with those previously adopted), criminological (to make it possible to evaluate the presence of threat to the development of criminal situation). While conducting the expert examination it is very important to prognosticate the consequences of the effect of the acts. There are a lot of examples when for the solution of a problem appears, as one would think, a simple formula - to make alterations in the legislation, but time passed and there is no outlined result.
     One of the excruciating problems is giving the acts of retrospective action. The Message contains brief analysis of the content of Article 104 of the Constitution and Article 67 of the Law "On enforceable enactments of the Republic of Belarus". At the same time, special attention is paid to the fact that the norms of Article 67 of the Law - on the right of the rule making body to fix the term for the enforcement of the act - shall be subject to application in case of observance of the requirements of the Constitution on inadmissibility of giving the act of retrospective effect, if it sets or aggravates responsibility, as well as the provisions of Article 23 of the Constitution which shall enshrine the grounds and the aims for restriction of the rights and freedoms of citizens.
     The Message shall pay attention to the fact that predictability and reasonable stability of the normative regulation taking into account the interests of the state, society and an individual will promote the protection of the interests of these subjects, by consolidating the confidence of the citizens in the state.
     In the field of vision of the Constitutional Court there are not only the positive law (acts of legislation), but also the practice of their application. By making estimation of these two phenomena (rule making and law application), the Constitutional Court shall act as the guard and curator of the Constitution. Of course, other bodies, which are specially created for the protection of legal values shall also take part in this. Specific nature of the activities of the Constitutional Court is that the Court shall make analysis of legal situation on the basis of complex approach, combination of scientific and practical conceptions. Hence, it may be stated that its activities are intellectual and legal.

     This summary was prepared by the Chairman of the Constitutional Court of the Republic of Belarus, Dr., Prof. G.A. Vasilevich

Decision of the Constitutional Court of the Republic of Belarus of 5 January 2005 No. D-182/2005 "On legal regulation of procedure and conditions of return of shares for persons withdrawn from organizations of citizens having built"

Summary
     The Constitutional Court in its Decision of 5 January 2005 has analysed the problem of return of shares for the citizens withdrawn from organizations having built which is stipulated by incompleteness of legislation and that shall entail violation of the rights and lawful interests of the specified citizens for whom the shares are not returning in due time. In the opinion of the Constitutional Court, there is the need of regulation of interrelations of the citizens having built and Housing and Building Co-operatives, other related organizations. Effective Model Rules of a Housing and Building Co-operative is evidently out of date and its norms are not in line with the norms of the Civil and Housing Codes, other acts of legislation. Solution of many of issues on the level of constituent documents of the citizens having built is not efficient because they do not duly secure the rights and lawful interests of citizens. The Constitutional Court has proposed the Council of Ministers of the Republic of Belarus to solve the issues concerning real payment for the persons withdrawn from organizations of citizens having built of the due sums of money by securing optimum accounting of the interests of both organizations of citizens having built and citizens withdrawn from them.

Decision of the Constitutional Court of the Republic of Belarus of 2 March 2005 No. D-184/2005 "On constitutionality of point 2 of Decision of Minsk city executive committee of 11 April 1996 No. 240 "On registration of foreign citizens and stateless persons who arrive in Minsk temporarily and compensation of relevant municipal economy expenses"

Summary
     The Constitutional Court has brought the case on verification of point 2 of Decision of Minsk city executive committee of 11 April 1996 "On registration of foreign citizens and stateless persons who arrive in Minsk temporarily and compensation of relevant municipal economy expenses" as a result of application of a citizen on the grounds of part four of Article 122 of the Constitution.
     The given Decision has approved Provision on registration of the foreign citizens and stateless persons who arrive in the city of Minsk. The Provision regulates the procedure of accounting of the specified persons in the city of Minsk, registration of their passports etc. Point 2 also stipulates the obligation of foreign citizens, who are at the age of 18, to deduct the money funds at the rate of 20 per cent of minimum wage for each day of residing in the city of Minsk with a view to compensate budget expenditure for the social sphere and for the development of infrastructure of the city. According to point 6 of the provision, control over making payments for residence and registration in the city of Minsk is vested in the bodies authorized for carrying out registration.
     There have been analysed the relevant provisions of the Constitution, Laws "On legal status of foreign citizens and stateless persons in the Republic of Belarus", "On national due", "On local government and self-government in the Republic of Belarus", "On status of the capital of the Republic of Belarus - the city of Minsk" and other enforceable enactments of the Republic of Belarus.
     The Constitutional Court has ruled that foreign citizens and stateless persons on the territory of Belarus shall enjoy rights and liberties and execute duties on equal terms with the citizens of the Republic of Belarus entitled without discrimination to equal protection of their rights and legitimate interests. Legislation of the Republic of Belarus shall grant no right the local bodies to set any taxes and dues for the foreign citizens and stateless persons who arrive in the Republic of Belarus temporarily. Collection of the specified money funds from the foreign citizens shall also violate the norms of international treaties of the Republic of Belarus as a part of effective law in the territory of the Republic of Belarus.
     The Constitutional Court found to be at variance with the Constitution of the Republic of Belarus, laws and other enforceable enactments of the Republic of Belarus, international legal acts of point 2 of Decision of Minsk city executive committee of 11 April 1996 No. 240 "On registration of foreign citizens and stateless persons who arrive in Minsk temporarily and compensation of relevant municipal economy expenses" and point 1 of Decision of Minsk city Council of deputies of 8 June 1999 No. 27 which approved the given Decision of Minsk city executive committee in part of collection from the foreign citizens and stateless persons of money funds for each day of residence in the city of Minsk.

Decision of the Constitutional Court of the Republic of Belarus of 1 March 2005 No. P-125/2005 "On terms of communal payments and wages' repayment"

Decision of the Constitutional Court of the Republic of Belarus of 10 March 2005 No. P-126/2005 "To the issue on retroactivity of Decision of Novopolotsk city Councils of deputies of 24 September 2004 No. 119"

Decision of the Constitutional Court of the Republic of Belarus of 10 March 2005 No. P-127/2005 "On forwarding materials to the court for settlement the issue on application of the rule of retroactivity of more soft criminal law"

Problems, opinions, comments

• G.A. Vasilevich. Legal nature of acts of the Constitutional Court of the Republic of Belarus and their legal significance

Summary
     Article considers two points of view of scholars as regards legal nature of the acts of the Constitutional Court of the Republic of Belarus: normative legal acts and case law.
     There is the specification that decision of the Constitutional Court shall have special feature: the force of its "case law" is more higher than the case law created by the bodies of other sub-systems of the Judiciary.
     Author emphasizes that notwithstanding the peculiarities of the acts of the Constitutional Court from the point of view of their structure, form, procedure of their adoption, they are of general normative significance.

     

• A.A. Golovko. Legality and time

Summary
     Article gives analysis of the notion, role and use of time (terms) for securing legality and order in the state, significance of the fixed by legislation terms for all the elements of political system of society.
     Author specifies that the problem of the terms in jurisprudence shall be of global nature. However, since in each branch it has its own peculiarities, the author propounds only certain issues and practice of their interpretation.

• V.I. Reut. Problems of specification of concept of draft law in context of improvement of national legislation

Summary
     Article studies in detail the complex of theoretical and applied problems related to specification of the concept of draft laws. Motivation is given the necessity of evaluation of the concept of a draft law at all the stages of the legislative process, there is the indication of influence of this evaluation on the process and the results of consideration of the draft law of the Parliament. Author proposes definition of the notion "concept of draft law", explains the rules of scientific and objective statement of the concept. On the grounds of theoretical conclusions there are the proposals as regards improvement of the legislative procedure, the reasons are given the necessary alterations of the effective legislation in the sphere in question.

• T.S. Maslovskaya. Principle of subsidiarity: notion, content, relation with principle of separation of powers
  

Summary
     Article studies the notion of subsidiarity as the principle of social philosophy, principle of functioning of the European Union, principle of federalism. Author points out the essential features of the principle of subsidiarity. Article contains the analysis of the relation between the principle of subsidiarity and the principle of separation of powers.

• A.N. Pugachev. Bases of classification of acts of constitutional proceedings

Summary
     Article is devoted to the foundations of the classification of the constitutional legal procedure acts. Article contains analysis for the acts of constitutional courts, its chief justices and other officials; final and intermediate judgments; substantive and procedural acts. It has been shown that the classification as a method of juridical knowledge regulating has scientific and practical value.

• V.N. Kivel. Relations of national law in field of securing and protection of human rights

Summary
     Article is devoted to the actual problem of relationship of international and national law in the field of securing and protection of human rights. Author considers in detail the issues of direct effect of the norms of international law in the law system of the Republic of Belarus.

• L.O. Murashko. Securing of freedom of speech and independence of mass media: European experience of law making and law enforcement

Summary
     In the context of application by the European Court on Human Rights of Article 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms the author studies one of the most important issues of securing of freedom of speech and independence of mass media. This issue shall be worded in the broad outline: where is the brink of the absolute freedom towards which the mass media according to their nature gravitates, and protection from that freedom by way of relevant control of the state and society.

• L.N. Balitsevich. Limits of realization of the right to freedom of demonstrations

Summary
     The main goal of the article is to disclose the essence of the boundaries of realization of the right to freedom of demonstrations and to deal with their legislative basis in the Republic of Belarus. In the present paper a great attention is drawn to the research of the restrictions of freedom of demonstrations by time, by place, by persons, etc. The author analyzes the foreign legal practice in this sphere and makes the proposal of perfecting of the national legislation, what would be the realization of the right to freedom of demonstrations more full and effective in our country.

• T.I. Makarova. Constitutional grounds of environmental and legal status of citizens of the Republic of Belarus

Summary
     The article is devoted to the constitutional fixing of basis of the legal status of the person in terms of protection of environment. The author determines the contents of the environmental status of the citizen based on the constitutional right on the favorable environment in aggregate with other rights of the citizens in the sphere of protection of environment.

• E.V. Malikova. On pension security of judges of the Republic of Belarus under conditions of improvement of system of pension security

Summary
     Taking into account the fact that the judges according to their social status shall be referred to a special category of the officials because of the complexity of their work and psychological load and are under specific state protection, the author motivates the necessity of proper social protection of judges also after retirement. On the ground of analysis of effective legislation of the Republic of Belarus on pension security of judges, article contains proposals on improvement of the relevant enforceable enactments.

• G.A. Vorobei, L.A. Lavnikevich. To the issue on improvement of legislation regulating relations concerning Marriage-contract

Summary
     Article covers theoretical issues of the Marriage-contract - new institute in matrimonial and family legislation of the Republic of Belarus. Under analysis are the issues related to inadequate regulation of certain aspects: as regards subjective structure, protection of the rights of emancipated persons under age, partially efficient and incapable persons. Authors formulate proposals on making addenda and alterations into matrimonial and family legislation of the Republic of Belarus.

Sphere of law creation

     Improvement of labour legislation in the Republic of Belarus (Interview of V.I. Krivoi, G.B. Shishko)

Human rights - the focus of attention of high education

      Women Trafficking: legal aspect of problem (On materials of "Round table" held on 10 March 2005 by Students' scientific society of the Law Faculty of Belarusian State University with participation of professorial and teaching staff and students of the Faculty, as well as with the assistance of N.N. Lukanov - First Deputy Head of Department of morals and counteraction of turnover of drugs of the Minister of Internal Affairs of the Republic of Belarus)

International relations of the Constitutional Court of the Republic of Belarus

Moroz V.I. International UniDem Seminar "Administrative justice and inter-ministerial communication within public administration" (Trieste, Italy, 14-18 March 2005)