CONTENTS

Official Materials and Decisions
of the Constitutional Court
of the Republic of Belarus

• Message of the Constitutional Court of the Republic of Belarus to A.G. Lukashenko, 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, 2005". Approved by Decision of the Constitutional Court of the Republic of Belarus of 1 February 2006 No. 193/2006

Summary
     Message on constitutional legality in the Republic of Belarus, 2005, which was adopted this year on 1 February at the session of the Constitutional Court, traditionally reflects the state of the national legislation, practice of its application on the basis of cases and materials considered by the Court, as well as underlines the progress of forming Belarusian state as a social, democratic state ruled by law.
     Message of the Constitutional Court emphasizes that constitutional legality is not a deduction category, and situation with public relations under which the law as the most important social regulator shall contribute to achievement of tasks and aims that are enshrined in the Basic Law of our country. Due to that the assessment of legislation and practice of its application shall be carried out with an allowance for influence on the well-being of citizens, development of democracy and legal nature of the state.
     In 2005 the Constitutional Court has received about six thousand citizens with individual and collective applications, there were considered 29 motions of deputies. At personal reception, including during the meetings with labour collectives, judges and specialists of the Secretariat of the Constitutional Court, there have been received more than 300 persons. More than 30 draft normative legal acts were subject to analysis.
     The Constitutional Court emphasized that proceeding from available natural, intellectual, legal, organizational and other sources, the Republic of Belarus is developing successfully enough as a social state. The ground for this shall be the norms of Articles of Belarusian Constitution, as well as laws, decrees, edicts, resolutions of the Government and other juridical documents that shall be adopted on the basis of the Constitution.
     Having pointed out the circumstances that signify about successful development of Belarusian state as a social (with quantity indicators that are achieved in different areas of social and economic development, in particular, on the increase of Gross National (Domestic) Product, money incomes of population, increase of average wages, average monthly pensions, volumes of house building etc.), the Constitutional Court emphasized the shortcomings in the legislation and in practice of its application.
     In this sphere the Constitutional Court mentioned as examples the cases considered by the Court on the motions of citizens dealing with correlation between Housing and Building Cooperatives (HBC) as a collective of citizens builders and former members of HBC in part of repayment of assets, inheritance of dwelling of members of HBC who died, who didn't register the right of property of dwelling, granting office accommodation, etc.
     On the basis of analysis of cases concerning social protection of citizens (on payment of temporary disability allowances to individual businessmen, insurance sums on obligatory personal insurance, taxation of severance pays, taxation of lands of gardening partnerships, etc.), the Constitutional Court outlined sharing the opinion of the Constitutional Court by other state bodies, real execution of decisions that were adopted before.
     The Court noted also that in 2005 the situation with solving the issues on making legal normative acts to be retroactive. In the opinion of the Constitutional Court, similar practice should also be applied in future that shall require strategic thinking from the initiators of projects, not only skills in planning and predicting the needs of legal regulation, but also the consequences that are created by the adopted acts.
     In the provisions of the Message devoted to realization of constitutional norms about democracy (sovereignty of people) the Constitutional Court emphasized real operation of democratic constitutional legal institutes (elections, referenda, nation-wide discussions, republican and local assemblies), underlined that people's character of power in our state is revealing both by way of the policy of social protection of citizens and the people's right to define realistically their own destiny and life, to take the most important decisions, thus, in practice there is the realization of the idea of people's sovereignty.
     The Constitutional Court estimated positively the updating legislation concerning applications of citizens. The Constitutional Court also pointed out that applications of citizens reflect real social and economic processes, promote effective functioning of the state bodies, restoration of violated rights and strengthening of legality, control of contradictions and elimination of other deficiency of legislation, practice of its application.
     In the opinion of the Constitutional Court, the present-day formation of the practice of consideration of applications of citizens related to realization themselves of their rights under the principle of "one window", signify in favour of the basic principle of state government - authority for people, instead of people for authority.
     The Constitutional Court considers that applications of citizens receiving by the state bodies, including by the Constitutional Court, shall oblige the state bodies and officials to exercise their activities according to the daily needs and demands of citizens, to see better the problems and to evaluate efficiency of legal regulation of social relations for the sake of building a democratic social state ruled by law.
     While characterizing the process of forming the Republic of Belarus as a state ruled by law, the Constitutional Court noted that such features as supremacy of law, the fact that the state is bound up with its own decisions, become more and more obvious. Modern legislative base that meets world and all-European standards, stability of legal regulation, separation and interaction of powers, security of the rights and freedoms of citizens, judicial protection, development of constitutional justice are those legal values which are inherent in the modern Belarusian state and which should be strengthened and developed to the utmost.
     Having mentioned the success in the way of creation of modern legislative base, systematizing and codification of the legislation, the Constitutional Court pointed out that now the main centre of gravity should be transferred to the improvement of legislation, its maintenance in such a condition which influences adequately on new public life phenomena and takes into consideration the directions of social progress. On the grounds of international standards, this circumstance objectively calls forth the necessity of carrying out more delicate and balanced work of the state bodies in legal sphere that exercise supervision and control, the institute of constitutional control included. The influence of universally acknowledged principles and norms of international law on the content of enactments and practice of their application should be progressively strengthened.
     In the opinion of the Constitutional Court, development of social relations is usually accompanied by modification of effective legislation. Collisions arising here in the legislation and in law enforcement to a certain extent are explicable with the complexity of performing tasks. In this connection, in the developed countries the settlement of disputes by civilized way, including by the way of their consideration in the Constitutional Court, has already become a standing rule. The Constitutional Court emphasizes that, unfortunately, legal disputes, claims of citizens that quite often within long-term period of time are subject to no settlement because of untimely institution of the issues before the Constitutional Court or the legislator on the necessity of their settlement. There are also facts of unqualified legal analysis while passing decisions by some state bodies and officials. In certain instances there are the norms that lost their actuality or that are of low efficiency, however, they impose additional duties upon the citizens.
     The conclusions of the Constitutional Court concerning the above mentioned issues were also made on the ground of consideration of the issue on prolongation of the term of realization of Judgment of the Constitutional Court of 27 September 2002 under which there were found unconstitutional the enforceable enactments that stipulate putting down the obligatory note in the passport.
     The Constitutional Court ruled that the competent state bodies responsible for realization in practice of the right of citizens to the freedom of movement failed to take all the necessary measures on execution of the specified Judgment and ordered to inform the citizens about the perspectives of abolition in future of the note in passport and the possible legal regulation of the procedure of exit the Republic of Belarus and enter the Republic of Belarus. For the period of preservation of the notes in passports for going abroad, the Constitutional Court suggested to take additional measures concerning simplification of the procedure of their putting down, including reduction of the terms for obligatory adoption of the relevant decisions. The Court also emphasized that certain measures in this direction have been taken.
     In 2005, as well as during the previous period, the Constitutional Court paid special attention to the constitutional right of everyone to judicial protection enshrined in the Constitution, and that is also in line with all-European standards. The Constitutional Court in its decisions did it all the best to exclude from the legislation and practice of its application of restrictions in this sphere, as well as to bridge the gaps.
     The Constitutional Court outlined that execution of decisions of the Constitutional Court, realization of its proposals really promote strengthening of constitutional legality in law making and law enforcement. In this area the Constitutional Court fruitfully cooperates with the bodies of representative and executive powers. The Constitutional Court emphasizes that the increase of effectiveness of legal system, the further realization of principles of social state ruled by law set up by the Constitution, will favour securing direct application of the norms of the Constitution, as well as elimination of existing shortcomings connected with collisions of norms and deficiency of legislation, exceeding by the state bodies of their powers, inconsistency of enactments of different levels, untimely clarification and relevant interpretation of the norms of law, negative law enforcement practice.
     The gradual work of State and the bodies thereof as regards securing of the supremacy of constitutional norms, human rights and freedoms and rights and liberties of a citizen and, in the opinion of the Constitutional Court, strengthening of constitutional legality in all the spheres of public life shall be the main condition of development of the Republic of Belarus as a democratic social state ruled by law.

• Judgment of the Constitutional Court of the Republic of Belarus of 29 March 2006 No. J-194/2006 "On the conformity between the Constitution, other laws of the Republic of Belarus, international treaties of the Republic of Belarus and Resolution of the Council of Ministers of the Republic of Belarus of 18 December 1992 No. 758 "On conditions of awarding pensions for certain categories of workers of aviation of air test crew" in part of pension security of air stewards/stewardesses of civil aviation"

Summary
     The proceedings were brought by the Constitutional Court of the Republic of Belarus as a result of the proposal of the House of Representatives of the National Assembly of the Republic of Belarus. The subject to verification was Resolution of the Council of Ministers of the Republic of Belarus of 18 December 1992 No. 758 "On conditions of awarding pensions for certain categories of workers of aviation of air test crew" with further alterations and addenda.
     Proposal of the House of Representatives of the National Assembly of the Republic of Belarus to the Constitutional Court specified that with respect to the air stewards/stewardesses there are the conditions for awarding long service pensions that are differ from those conditions for awarding pensions as regards other categories of workers of aviation, including flight personnel (air crew) and air test crew. Under Air Code of the Republic of Belarus air stewards/stewardesses are referred to the members of the crew of the aircraft. Resolution No. 758 stipulates the same procedure and terms for awarding pensions for air traffic controllers as for the members of flight crew, at the same time, there are other procedure and terms for awarding pension as for the second member of cabin crew - air stewards/stewardesses. The specified Resolution, in the opinion of the House of Representatives, shall make unequal conditions for pension security of members of the crews of the aircrafts and that is not in line with Article 22 of the Constitution of the Republic of Belarus enshrining the equality of all before the law.
     By considering the case, the Constitutional Court ruled the following.
     Article 47 of the Law "On pension security" stipulates four categories of workers of aviation and air test crew who have the right to long service pension: 1) workers of flight and air test crew; 2) workers who carry out air traffic operation and who have the certificate of an air traffic control officer; 3) engineering staff; 4) air stewards/stewardesses. In addition, for each of the category the law maker stipulated different grounds, conditions and procedure for awarding long service pension and calculation of its scale. The Law "On pension security" charges the Council of Ministers to ensure additional regulation only as regards the workers of flight and air test crew, as well as engineering staff (points "a" and "b" of Article 47), and that was performed in Resolution No. 758.
     For the air stewards/stewardesses who were also in the composition of the crew of the aircraft the right to long service pension, terms and procedure of its awarding are envisaged by point "g" of Article 47 of the Law "On pension security" which is the norm of direct effect and needs no additional regulation of conditions and procedure for awarding them long service pension and calculation of its scale. Thus, the law maker referred air stewards/stewardesses to the separate category of workers of aviation, the pension security for whom was regulated directly in the law. The Law "On pension security" shall not grant the Council of Ministers the right to fix other than the law conditions for pension security of air stewards/stewardesses.
     Whereas the Council of Ministers had no right to determine conditions for pension security of air stewards/stewardesses, then Resolution No. 758 that regulates conditions for pension security of air crew shall not cover air stewards/stewardesses, pension security of air stewards/stewardesses is subject to no regulation and is subject to no application while awarding them pensions.
     Legislation had not granted and grants no right for air stewards/stewardesses to calculate them pension in accordance with the procedure prescribed for the workers of flight and air test crew. Scale of labour pensions of air stewards/stewardesses, as well as other categories of workers is conditioned by duration of the service and the amount of earning for calculation of pension.
     The Constitutional Court found Resolution No. 758 to be in line with the Constitution, laws of the Republic of Belarus and international treaties of the Republic of Belarus.
     At the same time, the Constitutional Court emphasized that in case of necessity the competent state bodies shall have the right to change approaches towards pension security of air stewards/stewardesses by way of relevant correction of pension legislation.
     The Constitutional Court has also paid attention of norm making bodies on the presence in legislation of contradictions, ambiguous wordings and definitions that is especially inadmissible, if it concerns the rights, freedoms and obligations of citizens, since it shall not promote the establishment of constitutional order.

• Decision of the Constitutional Court of the Republic of Belarus of 12 January 2006 No. D-191/2006 "On legal regulation of relations connected with passage of citizens in city public transport in case of alteration of rates for transportation of passengers"

Summary
     Minsk city executive committee shall have the right to change the rates for carriage of passengers by city public transport. However, alteration of rates (increasing of rates) shall affect the rights of citizens, it is necessary to observe strictly the rules on enforcement of normative legal acts that fix new rates, the more so that the passage under the ticket (coupon) of old type under conditions of validity of new rates shall be considered as administrative offence, as well as shall entail liability.
     The Constitutional Court, having examined the issue on enforcement of decision of Minsk city executive committee of 14.12.2005 No. 2199 on alteration of rates, found that it was enforced of 20.12.2005, i.e. before its official publication in newspaper "Minsky courier" of 26.12.2005, and that shall signify about violation of the right of citizens to receive reliable and timely information.
     Moreover, the Constitutional Court found that normative legal acts do not stipulate the rule on validity of the ticket of old type within 10 days period of time after imposition of new rates. The rule in question was adopted by carrier organization - Agency of Communal Unitary Enterprise "Minsktrans".
     In the opinion of the Constitutional Court, citizens must have the right to receive timely the relevant information under Article 34 of the Constitution, as well as to fair recovery of their expenses while altering the rates for carriage of passengers by city public transport.
     Due to that the Constitutional Court proposed to secure strictly the observance of requirements of legislation on procedure of enforcement of decisions concerning alteration of the rates for transportation of passengers by city public transport, as well as proper legal regulation of relations concerning alterations of the rates for transportation of passengers by city public transport, in particular, to consider the issue on possibility of accounting of the nominal value of coupons of old type while buying coupons of new rates.

• Decision of the Constitutional Court of the Republic of Belarus of 3 January 2006 No. P-174/2006 "On right of workers of bodies of internal affairs to payment of insurance sums for disablement due to disease acquired while serving and performing duties on liquidation of disastrous effects at Chernobyl Nuclear Power Station disaster"

• Decision of the Constitutional Court of the Republic of Belarus of 3 January 2006 No. P-175/2006 "On lawfulness of taxation of service benefits stipulated by collective contracts"

• Decision of the Constitutional Court of the Republic of Belarus of 9 January 2006 No. P-176/2006 "On legal regulation of succession of plots of land by citizens of Russian Federation"

• Decision of the Constitutional Court of the Republic of Belarus of 26 January 2006 No. P-177/2006 "On legal regulation of collection of funds for share in development of branches of municipal economy of the city of Minsk"

• Decision of the Constitutional Court of the Republic of Belarus of 26 January 2006 No. P-178/2006 "On right of citizens to preferential privatization of living accommodation according to international agreements"

• Decision of the Constitutional Court of the Republic of Belarus of 9 February 2006 No. P-179/2006 "On some issues of legal regulation of realtor's activities"

• Decision of the Constitutional Court of the Republic of Belarus of 16 February 2006 No. P-180/2006 "On legislation placing a ban on transactions with jewelry and consumer articles made of precious metals without state hallmark of the Republic of Belarus or hallmarks of state inspections of hallmarks supervision of the former USSR"

• Decision of the Constitutional Court of the Republic of Belarus of 23 February 2006 No. P-181/2006 "On improvement of legal regulation of procedure of acceptance of documents about education"

• Decision of the Constitutional Court of the Republic of Belarus of 23 February 2006 No. P-182/2006 "On lawfulness of confiscation of property owned by bona fide acquirer"

• Decision of the Constitutional Court of the Republic of Belarus of 15 March 2006 No. P-183/2006 "On application of Article 43 of the Law "On budget of the Republic of Belarus for 2006"

Realization by state bodies of decisions of the Constitutional Court

     V.D.Skirda. On execution of decisions of the Constitutional Court of the Republic of Belarus in January - March 2006

Citizen lodged an appeal with the Constitutional Court

      On part of subsidy unused for building a flat
      On execution of decision of the court on awarding wages
      On application of legislation on licensing of activities on safety of legal persons
      On competence to increase the rate of rental fee for land
      On relation of institute of propiska with realization of housing rights of citizens
      On inclusion in the length of civil service of the periods of previous activities
      On granting and payment of retirement pension for junior officers of Armed Forces

Scientific information

• G.A.Vasilevich. Constitutional reform in Belarus in 1989

      Article, with retrospective glance at the development of constitutional democracy in Belarus, gives general description of Constitution of BSSR of 1978, when the Republic was in the composition of the former USSR, in the territory of which the Union Constitution of 1977 was in legal force.
     The second part of the study considers alterations and addenda into the Constitution of BSSR of 1978 made in 1989 for the purpose of development of socialist democracy, self-government of people, improvement of electoral system, structure and activities of the Soviets of People's Deputies and bodies that administer justice.

• O.I.Chupris. General theoretical and constitutional grounds for definition of essence of civil service

     Article specifies that the basic feature of essential understanding of civil service is indissoluble connection with the state, with all the state organization.
     Author emphasizes that correlative connection of the state and civil service shall make it possible to formulate general substantial purpose of civil service - realization of state power in the interests of the whole society.
     It is also underlined that by developing the theory and practice of civil service, it is important not to displace accents in formulation of the purpose of civil service towards its understanding only as the element of mechanism of realization of state power or, vice versa, the interests of citizens.

• K.I.Kenik. On some issues of improvement of legislation on civil service

      Article considers the issues on the necessity of improvement of legislation on civil service. In particular, author specifies the need of normative stipulation of system of civil service in the Republic of Belarus, inclusion in it civil, military and law enforcement service. There are concrete proposals on making alterations and addenda into the Law "On civil service in the Republic of Belarus" related to specification of prescribed restrictions for civil servants on the issues of combining jobs, specification of restrictions as regards civil service employment as previous convictions, revision of approach to the inclusion of certain periods of previous work in the civil service record.

• A.V.Gulyakevich. Constitutional control and constitutional supervision as elements of legal safeguard of Constitution

     Article considers the issues of constitutional supervision and constitutional control as components of legal safeguard of the Constitution that by legal means shall secure the observance of constitutional legality in the country.
     It is emphasized that the scope of powers granted the bodies of control and supervision is different, because they have different tasks for realization of the common goal - establishment in society of constitutional law and order.
     Author motivates the expediency of use of term specialized and non-specialized constitutional control.

• I.M.Serebryakova. Legal regulation of activities of law enforcement bodies at present stage of constitutional development of the Republic of Belarus

      Author analyses the problems of correlation of international law and articles of the Constitution of the Republic of Belarus, as well as the laws on the national law enforcement bodies. Special attention is paid to the influence of these problems on the international agreements with the participation of Belarus and on the national law enforcement activities.

• A.V.Karavai. Features and composition of objects of civil rights

      Article emphasizes that development of civil legislation, involvement of new objects in the sphere of civil law effect, modification and origination in new capacity of traditional objects need specification of existing approaches towards the issues of essence, composition and system of objects of civil rights. Author makes an attempt to determine the necessary features and composition of objects of civil rights.

• T.S.Taranova. Institute of evidence and proof of evidence as element of legal system and system of law

      Author considers the institute of evidence and proof of evidence as both the complex institute of civil law procedure, as well as functional and borderline complex institute of different branches.
     Due to that there is a difference as regards the significance of the issue on unification of legislation of different branches that shall regulate the process of proof of evidence while considering the cases in the courts of law. This shall be conditioned by necessity of judicial protection of subjects of civil law relations, shall presume the integral nature of legal remedies and methods of protection of their rights and lawful interests irrespective of the form of legal proceedings on the strength of understanding judicial protection as the unique function of the judiciary.

• S.V.Korzik. Constitution as basis of legislation on freedom of conscience, beliefs and religious organizations

      Article, by way of illustration of improvement of the Law on freedom of conscience and religious organizations, specifies the necessity of distinct and explicit stipulation in the laws of supremacy of Constitution of the Republic of Belarus and this is very important for wading the attitude to it as a simple democracy.

Topic of the issue: Realization of constitutional principle of separation of powers

• H.-D.Horn. Separation of powers as principle of constitutional and European law

      Article considers the issues related to origination and development of the principle of separation of powers as the principle of governing. In particular, author points out that the principle of separation of powers shall encourage the protection of individual and public rights of citizens in the state, as well as with respect to the state. There are also the description of each of the branches of power and proposals of effective mechanisms of safeguarding the balance among them.
     Special attention is given the role of constitutional justice where decision on a disputable situation shall be adopted on the grounds of the supremacy of the Constitution.
     Under analysis are specific issues concerning differentiation of competence in vertical and horizontal interrelations between EC and Member-States.

• S.P.Chigrinov. Constitutional reform in Great Britain: on way to real separation of powers

      Article concerns modern constitutional reform in the United Kingdom of Great Britain and Northern Ireland. On the grounds of analysis of Scotland Act 1998, Northern Ireland Act 1998, Government of Wales Act 1998, House of Lords Act 1999 and Constitutional Reform Act 2005 author issues changing in a legal status of state authorities in the United Kingdom.
     Author considers establishments of Legislatures and Executive Offices in Scotland, Wales and Northern Ireland, a membership in the House of Lords, functions and composition of the Supreme Court, constitutional status of Lord Chancellor, Department for the Constitutional Affairs activities.

• A.V.Yassinskaya-Kazachenko. Interconnection of executive body with other branches of state power: system of checks and balances

      Article gives legal-constitutional analysis of the system development of the executive in the context of political, economical and social changes in modern state. Author studies the key issues, understanding of which shall allow to give an objective estimation of the processes where the executive authorities are involved. There is an attempt to determine the place and the role of the executive body in the system of power separation in modern state by means of theoretical generalization, to generalize the domestic and foreign constitutional experience of creation of contemporary model of the executive, to show the main trends of legal-constitutional development of the executive authority system in modern state, to define the scope and limits of the executive powers.

Foreign experience of constitutionalism

• G.Gornig. Nation-wide voting and European Constitution

      Article covers the issues of national sovereignty, interrelationship of direct and representative democracy. Initiatives of citizens are considered as the effective mechanism and political socialization.
     Author characterizes the stages of preparation, signing, ratification and enforcement of the Constitution of Europe. Special attention is given the process of holding the referendum.

• A.N.Sokolov. Russian federalism: problems and discrepancy of state sovereignty

      Author emphasizes that theoretical-conceptual and practical issues of federalism are becoming actual on the one hand by transformation of Russian federalism in the spirit of modern requirements of strengthening of Russian State system and on the other hand - legal regulation of Union State of Belarus and Russia.
     Article is dedicated to the issue of state sovereignty: whether this sovereignty is unique and indivisible for the federative state or it takes place the divided sovereignty, i.e. sovereignty of federation and sovereignty of its subjects.

• N.A.Karpovich. Grounds and procedure of restriction of individual rights and freedoms in Constitutions of European countries

      Author makes analysis of some issues of specification of the grounds and conditions of restriction of basic individual rights. Article contains generalization of approaches towards regulation of the given issues in the Constitutions of European countries. There are also conclusions about possible directions of optimization of normative definition of legal status of an individual in a democratic state ruled by law.

Case-law of European Court of Justice

• L.E. Kamenkova, L.O. Murashko. Judicial mechanism of protection of equality of rights of citizens in European legislation (aspect of positive discrimination). Beginning

      Article gives description of European mechanism of protection of equality of rights of citizens that includes the process of implementation of Directive on racial equality (2000/43/EC) and Directive on equality of the right to labour (2000/78/EC) into European legislation, efficiency of EU sub-national judicial mechanism, in particular, European Commission against racism and intolerance, European Court of Justice. Authors' conclusions are based on recent judicial cases related to the issues of discrimination.

News of science

      Sitting of Scientific and Consultative Council under the Constitutional Court of the Republic of Belarus (30 January 2006)

      About Round table "Constitutional duties of state: notion, content, limits" (23 March 2006)

Scientists of Belarus

Mr. V.I. Shabailov. (to 75th birthday Anniversary)

Mr. V.I. Krivoi. (to 50th birthday Anniversary)