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 T.S. Boiko, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha,  L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov, V.Z. Shuklin considered the motion by the State Control Committee of the Republic of Belarus on application validity of longer terms of imposed administrative penalties provided in point 4 of part one of Article 7.6 of the Code of Administrative Offences of the Republic of Belarus (hereinafter – CAO) within the administrative process on particular constituents of administrative offences specified in Article 21 of CAO against the order of architectural and town planning activities, construction and amenities.

Having analysed the provisions of the Constitution of the Republic of Belarus, the relevant norms of CAO and other normative legal acts of the Republic of Belarus, the Constitutional Court found the following.

The individual, his rights, freedoms and guarantees for their realisation appear to be the supreme goal and value of the 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. (Article 2 of the Constitution).

Safeguarding the rights and liberties 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's international obligations (Article 21 of the Constitution). Restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons (part one of Article 23 of the Constitution).

According to the second and third parts of Article 59 of 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 mentioned constitutional provisions show that the exercise of citizens’ rights stipulated by the Constitution and other legal acts and guaranteed by the State should be safeguarded both at the level of legislative acts and other normative legal acts and at the level of law enforcement decisions. Whereby should be observed the balance of the person’ and the State interests and the principles of rationality and social justice.

The specified constitutional provisions are realised in CAO norms that define the acts to be administrative offences. Therein are enshrined the bases and conditions of administrative responsibility, are established administrative penalties which may be applied to the natural persons who have committed administrative offences and to the legal persons who had been found guilty and administratively responsible according to the Code (part one of Article 1.1 of the CAO). One of the main task of the Code is to safeguard the individual, his rights and freedoms, legitimate interests, rights of the legal persons (part one of Article 1.2 of the CAO). 

Pursuant to the points 1 and 2 of part one of Article 7.6 of the CAO the administrative penalty can be imposed: 

for commission of administrative offence — not later than two months from the date of its commission;

for commission of a lasting administrative offence — not later than two months from the date of its revealing.

Point 4 of part one of Article 7.6 of the CAO provides with longer terms of the administrative penalties imposed for commission of administrative offences in certain areas of activities. They come up to three years from the date of commission of an administrative offence and six months from its date of revealing. Among these are administrative offences in the financial area, bond market, banking and entrepreneurship or offences against tax order and custom regulation.

In point 4 of part one of Article 7.6 of the CAO it is also established that administrative penalty may be imposed in specified longer terms for the commission of «other administrative offences expressed in non-execution or improper execution of the legislative acts regulating economic relations ».

The legislation of the Republic of Belarus does not bring to light the concept of «economic relations» what provokes ambiguous comprehension of the provision «other administrative offences expressed in non-execution or improper execution of the legislative acts regulating economic relations».

On the one hand the absence of definition of the term «economic relations» allows the longer terms of administrative offences to be applied for practically every administrative offence, excluding administrative offences obviously irrelevant to economic activities.

On the other hand proceeding from the verbal interpretation of the considered provisions of point 4 of part one of Article 7.6 of the CAO the longer terms of administrative penalties may be imposed only for the non-execution or improper execution of the legislative acts regulating economic relations. 

Besides, the above-named norm does not specify particular legislative acts stipulating the constituents of other administrative offences. Whereas the point of part two of Article 1.1 of the CAO is that administrative penalty may be provided in various legislative acts until they will be included in the CAO. Accordingly «other administrative offences» mean administrative offences which constituents are specified in the Special part of the CAO as well as in the acts by the President of Republic of Belarus.

The approach defined by the legislator in point 4 of part one of Article 7.6 of the CAO shows that the given norm should be comprehended in its contents unity and considered as the open list of administrative offences for commission of which longer terms of administrative penalties may be imposed.

Law enforcement practice also develops on the basis of the given approach. So during legal proceedings on the administrative offences within the general courts jurisdiction, longer terms of administrative penalties are imposed, in particular on administrative offence cases contained in part one of Article 21.7 of the CAO: over-scaling and overrating by the contractor (subcontractor), the ordering party (to the exclusion of budget organisations) of construction-assembly works and others, of construction costs (reconstruction, improvement), executed and carried out using the budgetary funds, state special-purpose budget funds, state non-budgetary, innovation funds or using preferential loans. Otherwise apart from the administrative offences committed in the cited by point 4 of part one of Article 7.6 of the CAO areas these terms of administrative penalties are imposed for commission of other administrative offences enshrined in the CAO and other legislative acts and expressed in non-execution or improper execution of the legislative acts regulating economic relations.

Thus point 4 of part one of Article 7.6 of the CAO does not contain the full list of administrative offences constituents which commission involve longer terms of administrative penalties to be imposed. The application of the mentioned terms is therefore possible either for commission of the administrative offences implicit in Chapters 11-14 of the CAO providing their expression in non-execution or improper execution of the legislative acts regulating economic relations.

Moreover, the Constitutional Court is of opinion that general wording of point 4 of part one of Article 7.6 of the CAO may provoke broad interpretation of its norms by the legal practitioners. Taking into account a large number of economic activities the effect of point 4 of part one of Article 7.6 of the CAO may be spread on an unreasonably large list of administratively punishable acts. Owing to absence of restrictive mechanisms the wide application of a legal practitioner’s discretion is possible. Whereas Article 7.6 of the CAO establishes general rules to define the terms of imposed administrative penalties the exception from these rules by specifying longer terms of imposed administrative penalties should be fixed in the CAO in particular including the administrative offences constituents expressed in non-execution or improper execution of the legislative acts regulating economic relations subjected to this exception.

Securing uniform comprehension and application of laws guarantees everyone’s protection of rights and freedoms on the basis of the principles of supremacy of law, legal equality and justice. Unsecured unity of comprehension and practical application of laws involves in turn the uncertainty of a law and the opportunity of its illegal and discretionary application. Thereby is violated the fundamental constitutional principle of equality as the necessary condition for realisation of rights and freedoms of the citizens.

With a view to safeguard the principle of supremacy of law, constitutional rights and legitimate interests of natural and legal persons, uniform comprehension and application of the norms on administrative responsibility the list of administrative offences constituents which commission involves longer terms of administrative penalties to be imposed, should be defined in full and enshrined at the legislative level.

On the basis of stated, being guided by article 40, part one of Article 116 of the Constitution of the Republic of Belarus, Articles 22, 24 of the Codes of Judicature and Status of Judges of the Republic of Belarus the Constitutional Court

            1. To find as necessary with a view to safeguard the constitutional legality the introduction into point 4 of part one of Article 7.6 of the Code on administrative offences of the Republic of Belarus of respective alterations and addenda, having defined the full list of administrative offences constituents which commission involves longer terms of administrative penalties to be imposed.
            2. To forward the proposal to the House of Representatives of the National Assembly of the Republic of Belarus to make the above alterations and addenda to point 4 of part one of the Article 7.6 of the Code of the Republic of Belarus on administrative offences within the legal terms.
            3. The present Decision shall come into legal force from the date of its adoption.  

 

Presiding Officer-

Chairman of the Constitutional Court

of the Republic of Belarus   

P.P.Miklashevich