Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
18 December 2008 № D-303/2008
On the realisation of a subjective right in loss of effect of the legal norms
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus P.P.Miklashevich, Deputy Chairman A.V. Maryskin, judges S.Y. Danilyuk, V.P.Isotko, L.G. Kozyreva, L.M.Ryabtsev, O.G.Sergeeva, A.G. Tikovenko, S.P.Chigrinov, V.Z. Shuklin, examined the application of a citizen concerning realisation of Decree No. 17 by the President of the Republic of Belarus «On the Procedure of Providing Housing Quarters for Servicemen, Enlisted and Senior Ranks of the Ministry of Internal Affairs, Financial Investigation Agencies, Emergencies Bodies and Units» of June 13, 2001 (hereinafter – Decree No. 17). The citizen had explained that according to the named Decree he as an internal affairs worker had been provided (by the certain decision) with free financial aid to repay the preferential loan for housing construction. Edict No. 128 by the President of the Republic of Belarus «On Some Issues of Provision and Use of Housing Quarters out of the State Housing Funds» of March 19, 2007 (hereinafter – Edict No. 128) declared Decree No. 17 invalid. In this connection the financial aid hadn’t been received in full by the applicant. The citizen considers that he has the right to the gratuitous financial aid in full for he had addressed for it before the mentioned Decree was declared invalid. 
            It should be noted that in December 2007 the President of the Republic of Belarus (after Decree No. 17 had been declared invalid) entrusted the Prime minister of the Republic of Belarus with providing financial aid for those people who in the procedure set forth by Decree No. 17 had been decided for such aid at the cost of and within the means provided on these purposes in the budget of the Republic of Belarus in 2007 before Decree No. 128 came into force. 
            Having analysed the appropriate provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), Decree No. 17, Edict No. 128, the Law of the Republic of Belarus «On Normative Legal Acts of the Republic of Belarus» and other legislative acts of the Republic of Belarus, the Constitutional Court found the following. 
According to Article 2 of the Constitution the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State. The State shall bear responsibility towards the citizen to create the conditions for the free and dignified development of his identity. 
            Safeguarding the rights and freedoms of the citizens of the Republic of Belarus shall be the supreme goal of the State. The State shall guarantee the rights and liberties of the citizens of Belarus that are enshrined in the Constitution and the laws and specified in the state international obligations (Article 21 of the Constitution). 
            No one shall be compelled to discharge duties that are not specified in the Constitution of the Republic of Belarus and its laws or renounce his rights (Article 58 of the Constitution). 
            The Constitution (Article 59) entrusts the state with a duty to take all accessible measures to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus specified in the Constitution. State bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual and shall be held responsible for actions violating the rights and liberties of an individual.
            The above constitutional provisions indicate that both at the level of legislation and other normative legal acts that establish or terminate (deny) rights of the citizens and at the level of the law-enforcement decisions there should be provided the realisation of the rights of the citizens stipulated by the Constitution, other legislative acts and guaranteed by the state. It is therefore obligatory to observe the balance of interests of the citizens and the state, the principles of rationality and social justice. 
            The mentioned provisions of the Constitution are realised in Edict No. 359 by the President of the Republic of Belarus «On the Measures to Improve Norm-making Activity» of August 11, 2003 that sets forth as particular criteria of conformity of a draft normative legal act to the Constitution the reflection therein of the constitutional principles as well as the binding of the draft act contents to norms of the Constitution (point 121 of the Rules of preparation of drafts normative legal acts approved by this Edict), along with Article 73 of the Law «On Normative Legal Acts of the Republic of Belarus» obliging to implement the appropriate organisation in realisation of normative legal acts after their adoption (enactment). 
            The practice of rule-making activity shows that in some cases of legal norms termination and annulment of the entitled rights the legislator decided for the possibility of legal regulation of the relations which had arisen within the invalid norms, but had not been definitely executed according to the mentioned norms. 
            Thus, by virtue of point 15 of Edict No. 618 by the President of the Republic of Belarus «On the State Purchases in the Republic of Belarus» of November 17, 2008 it is settled that this Edict doesn’t have any effect on goods (works, services) if the procedures of purchasing or making contracts on delivery of goods (execution of works, rendering of services) have been started before this Edict coming into force. It is established that as the beginning of the procedure of a state purchase should be considered the date of the approval of the task for the state purchase of goods (works, services) by the head (the deputy authorised by him) of the ordering party (the organiser, the authorised organisation) or by the individual entrepreneur. These purchases come to their end under the legislation being in effect before Edict No. 618 of November 17, 2008 entry into force. 
            The law specifies the possibility for its norms to be applied after their amendments. In particular by Article 2 of the Law of the Republic of Belarus of July 20, 2007 «On Making Alterations and Addenda to Labour Code of the Republic of Belarus» it is established that labour holidays (their parts) the right to which has been created but not exercised by an employee before this Law coming into force should be granted (compensated) in full or proportionally to time worked till December 31, 2008 according to the legislation being in effect before this Law coming into force. 
            It is important for a full realisation of rights of the citizens to date the start of respective legal relationship between a citizen and a state organisation. For example there were issues regarding instances (terms and conditions) where the exercise of the right to privatisation of service housing out of the state housing funds by 1 January 2008 provided by Edict No. 128 had been found as terminated before the set term. As it had not been defined in Edict the Ministry of Housing and Communal Services of the Republic of Belarus has explained that to find the right of a citizen to transfer of a service housing to his ownership as exercised by January 1, 2008 it had been sufficient to apply when due hereunder till December 31, 2007. 
            In view of the foregoing the Constitutional Court deems it legally relevant to specify the instance which turns to be the start for exercise of the given right by a citizen in the normative legal act stipulating a subjective right termination. It is this very instance acting as investitive fact will define a due legislation. The issue gets a special urgency when actions of citizens exercising their right do not coincide in time with actions of state organisations providing with this right (for example, the moments of filing an application on privatisation and decision-making thereof). 
            The Constitutional Court pays attention to that between the citizen and the state organisation arise public legal relations generated by the investitive fact (set of the facts) that carry a binding character excluding unilateral refusal to execute obligations. 
            As to cases where it is possible to complete realisation of legal relations after normative legal acts being declared invalid the Constitutional Court points out the following. Either subjective rights which have arisen on the basis of the rule of law or legal duties of participants of legal relations are not always carried out at the same time. As a result at loss of effect by a normative legal act which has settled the certain rights and duties of a citizen, an organisation, there is a necessity to regulate for a certain period of time the relations which had arisen before the normative legal act became invalid. From a legal point of view such effect of the law is justified and grounded as it promotes realisation of subjective rights and legal duties in full that conforms to the above-stated provisions of the Constitution, to the constitutional principles of human rights guarantee and mutual responsibility of the state and the citizen in particular. It means that if the annulment of the normative legal act denies the right which realisation has begun the legislator should define the facility and procedure for a full realisation of the granted subjective right. 
            According to the Constitutional Court opinion the preservation of the set forth positions in normative legal acts will foster in necessary cases the safeguarding of rights and freedoms of the citizens guaranteed by the state. The Law «On Normative Legal Acts of the Republic of Belarus» is a normative legal act that establishes the general procedure of preparation, registration, adoption (enactment), publication, effect, interpretation and systematisation of normative legal acts. It does not contain provisions providing that in every normative legal act forfeiting rights it should be compulsorily regulated the issue on the opportunity of a legal act application after its loss of effect including subjective rights created but not realised on its basis. 
In view of the foregoing, being guided by Articles 40, 116 of the Constitutions of the Republic of Belarus, Articles 22, 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court 
 
RULED:
 
            1. To propose to the Council of Ministers of the Republic of Belarus being the subject of the right of a legislative initiative to provide making out and introduction when due hereunder in the House of Representatives of the National Assembly of the Republic of Belarus of a draft law of the Republic of Belarus on the alterations to the Law of the Republic of Belarus «On Normative Legal Acts of the Republic of Belarus» stipulating the necessity of regulation of issues on a full realisation of rights of the citizens in the instance of adoption of a normative legal act on their annulment. 
            2. The present Decision shall come into legal force from the date of its adoption. 
            3. To publish the present Decision in accordance with the legislation. 
 
Presiding Officer-
Chairman of the Constitutional Court
of the Republic of Belarus                                                                              
P.P.Miklashevich