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 4 October 2006 No. D-196/2006 "On technical normative legal acts"

Summary
     The Constitutional Court of the Republic of Belarus, as a result of the application on the issue of the necessity of timely and reliable information of citizens and legal entities about technical normative legal acts that are adopted (issued) by the republican state bodies and officials and about the time periods of their coming into legal force, on the grounds of Article 40 and part one of Article 116 of the Constitution has adopted Decision "On technical normative legal acts".
     Analysis of Articles 1, 7, 34, 52 and other articles of the Constitution signifies that declaration of the Republic of Belarus as the state ruled by law shall presuppose the obligation of the state bodies and officials to operate on the basis of the Constitution and the acts of legislation adopted in accordance therewith, to promulgate the normative acts of the state bodies by some other means stipulated by the law. For the purposes of observance of the Constitution and the laws, the citizens must have the possibility to familiarize themselves in good time with the content of adopted normative legal acts.
     Study of the legislation that regulates adoption of technical normative legal acts has specified that in the Republic of Belarus there is no secured complex approach towards the procedure of their adoption, publication and informing about them citizens and legal entities. At the same time, the given legal acts are subject to execution and in a number of instances shall involve legal responsibility, including criminal and administrative.
     Taking into account the abovementioned, the Constitutional Court has proposed to secure the citizens the possibility to familiarize themselves in good time with the content of adopting technical normative legal acts. The Administration of the President of the Republic of Belarus and the Council of Ministers of the Republic of Belarus were proposed for the period before the legislative regulation of the specified issue to determine the temporary procedure of their preparation, adoption, enforcement and promulgation.

• Decision of the Constitutional Court of the Republic of Belarus of 28 December 2006 No. D-197/2006 "On improvement of provisions of Model regulations of a housing and building co-operative"

Summary
     In its Decision of 28 December 2006 "On improvement of provisions of Model regulations of a housing and building co-operative" the Constitutional Court emphasized the imperfection of norms of the housing legislation related to creation and operation of a housing and building co-operative (HBC), as well as concerning having control over the activities of HBC by local executive and administrative bodies, availability of contradictions in it that impedes its application in practice. In a number of instances this fact shall exclude the possibility of proper exercise by HBC of their functions and, consequently, shall not secure to the full the protection of housing rights and lawful interests of members of HBC, owners of living accommodation in the houses of HBC, as well as the state interests.
     Whereas the provisions of the Model regulations of HBC have been adopted on the basis of the Housing Code (HC) of 1983 and in many respects they are out of date and are not in line with effective HC and with other norms of the housing legislation, the Constitutional Court has proposed the Council of Ministers of the Republic of Belarus before the adoption of new Housing Code to make the necessary alterations and addenda into the Model regulations of a housing and building co-operative with an allowance for the norms of the effective housing legislation, the Civil Code of the Republic of Belarus, the Law of the Republic of Belarus "On joint house and grounds" and other acts of legislation with the purpose of removal of legal obstacles for proper carrying out of the activities of HBC, in particular, that shall make it possible for HBC in case of necessity to adopt decisions not only at the general meeting but also in a different way, for example, by way of taking into account of the received in written form applications of its members, as it is stipulated by part five of Article 17 of the Law "On joint house and grounds".

• Decision of the Constitutional Court of the Republic of Belarus of 9 November 2006 No. P-195/2006 "To issue of granting the participants of military operations on defence of Native Land the measures of social protection stipulated by part two of Article 13 of the Law of the Republic of Belarus "On veterans"

Summary
     As a result of application of the Ministry of Defence of the Republic of Belarus on granting the participants of battles on defence of Native Land the measures of social protection envisaged by part two of Article 13 of the Law of the Republic of Belarus "On veterans" the Constitutional Court at its sitting of 9 November 2006 has analyzed the provisions of the Constitution, laws, international legal acts on the specified issue and emphasized the following.
     The effective Law "On veterans" contains sufficiently precise specification of criteria of referring the persons to the veterans of battles in the territory of other states. In addition, the battles in question are not connected directly with defence of Native Land, and related to the international duty. As regards referring to the veterans of the Great Patriotic war of persons who took part in battles on defence of Native Land which are directly connected with the period of the Great Patriotic war, the Constitutional Court has recommended the Ministry of Defence of the Republic of Belarus to appeal to the House of Representatives of the National Assembly of the Republic of Belarus for the official interpretation of the relevant norm of the Law "On veterans" or for making alterations that shall make it possible to settle the emerged legal problem in a single way.
     Moreover, the Constitutional Court has not excluded the possibility of more wide-ranging approach to granting the specified persons the measures of social protection.

• Decision of the Constitutional Court of the Republic of Belarus of 16 November 2006 No. P-196/2006 "On some issues of application of contract form of employment of workers"

Summary
     The Constitutional Court of the Republic of Belarus on the basis of applications of citizens had adopted Decision of 16 November 2006 that is directed to granting additional measures for stimulation of labour while concluding contracts stipulated by sub-item 2.5 of point 2 of Decree of the President of the Republic of Belarus of 26 July 1999 No. 29 "On additional measures on improvement of labour relations, strengthening of labour and executive discipline".
     The Constitutional Court ruled that granting additional measures for stimulation of labour envisaged by sub-item 2.5 of point 2 of the Decree by moving to contractual form of employment of workers of real sector of economy is secured as a whole, since the expenses related to the rise of tariff rates (salaries) in accordance with the Decree shall be ascribed to the product cost. However, while realizing additional measures for stimulation of labour in organizations that are budgeting and that are using the governmental subsidies, there are the issues because of insufficient financing.
     The Constitutional Court emphasized that failure to grant the workers of budget sphere of additional measures for stimulation of labour while concluding with them the contracts is not in conformity with sub-item 2.5 of point 2 of the Decree.
     Due to the abovementioned, the Constitutional Court has proposed the Council of Ministers to consider the issue on execution of sub-item 2.5 of point 2 of the Decree while concluding the contracts with the workers of organizations that are budgeting and that are using the governmental subsidies or about initiation of making alterations in point 2 of the Decree in order to stipulate the measures for stimulation of labour which the employer will be able to secure in reality.

Citizen lodged an appeal with the Constitutional Court

     On personal reception of citizens by Mr. G.A. Vasilevich, the Chairman of the Constitutional Court of the Republic of Belarus, of 23 November 2006

Scientific information

• S.P.Chigrinov. Elements of constitutional control in states of antique era

Annotation
     The article examines forms of activity of the state bodies and officials in ancient Athens and Rome which realized powers to control the ordinary legislation for the purpose of its conformity to the legal norms of constitutional character.
     The author pays attention to the fact that there were detailed juridical procedures on legal appraisal and abolition of the normative acts that contradict to established law and order.
     In Athenian polis officials and citizens could lodge a complaint against illegality with the requirement of abolition of an illicit act. Such complaints were examined by jury trial and decision on abolition of the act was ratified by Assembly of the People.
     In republican Rome Senate originally was a consultative body attached to magistrates. But by way of resolutions it was able to abolish the laws adopted by Assembly of the People.
     There is the conclusion that institution of constitutional control is an immanent category. Constitutional control is objectively inherent in a state of any historical type or political form.

• N.V.Silchenko. Acts of the Constitutional Court of the Republic of Belarus in system of sources of modern Belarusian law

Annotation
     The article studies the legal nature of the acts of the Constitutional Court of the Republic of Belarus in system of sources of modern Belarusian law, the bases of which were enshrined in the Constitution of the country. This is the approach for motivation of the provision under which the judgments of the Constitutional Court together with the rulings of plenums of the Supreme Court and the Supreme Economic Court form the specific group of sources of law - modified sources of modern Belarusian law.
     The author deems that the judgments of the Constitutional Court may be referred neither to normative legal acts nor to the legal precedents. According to the spirit and to the letter of the Constitution they shall be an independent type of sources of law along with the domestic and international legal sources. Judgments of the Constitutional Court of the Republic of Belarus contain no legal provisions that could give the grounds to refer them to the basic or to the additional sources of modern Belarusian law.
     Uniqueness of the acts of the Constitutional Court of the Republic of Belarus is conditioned by political and legal nature of the body of constitutional justice of Belarus, by its functions in the system of separation of powers, as well as by the controlling function of judgments of the Constitutional Court in system of sources of law with the purpose of securing the conformity of all the sources of law with the Basic Law of the country.
     There is the proposal to adopt the legal act on the level of the law (code) where on the normative level it could be settled numerous of problems in system of sources of modern Belarusian law, in the field of law making and law application.

• A.N.Pugachev. On "juridical nature" of legal acts (to issue on content of notion that is open to discussion)

Annotation
     The article studies the meaning of the phraseological term "juridical nature" that is widely used in modern jurisprudence, opens the problem of accuracy of use of the given word-combination, covers the issue on the availability of essential descriptions of the phenomenon which is under analysis.
     The author presumes that at present the term "juridical nature" shall not be referred to the notions, categories, metaphors. Study of the content shall make it possible to rate this term as the class of speech stock phrase. At the same time, the author emphasizes the possibility of use of the specified term in theoretical and methodological constructions and proposes the scheme that makes it possible to attach to the term "juridical nature" the preciseness and concreteness while studying the acts of the constitutional proceedings.
     There is the conclusion that it is difficult to make the exhaustive list of explicit criteria as regards the term "juridical nature" because of specificity of the legal sphere - constitutional justice. There are the reasons for the opinion on the possibility of its use as a component of theoretical and legal knowledge and as a relatively independent fragment of modern legal science but under the condition of observance of the main requirements of methodological characteristics.

• N.L.Bondarenko. On principles of civil law in decisions of the Constitutional Court of the Republic of Belarus

Annotation
     The article provides that the Constitutional Court of the Republic of Belarus regularly considers the normative legal acts in the field of civil legislation. This fact makes actual the issue about the role of the constitutional control in the improvement of the civil law regulation. The basis of constitutional justice shall be the principles enshrined in the Constitution of the Republic of Belarus. However, since the principles of the civil legislation are the constitutional provisions transferred to the civil law principles under the influence of specific character of public relations that are regulated by the civil law, the author comes to the conclusion that their violation is simultaneously the violation of the constitutional principles.
     The author underlines that even in those instances when decisions of the Constitutional Court and its legal positions on civil cases contain no concrete reference to the principles of the civil law and the constitutional principles are subject to application, there are the grounds for the conclusion about approval and realization in norm creating and law applying practice of the fundamental principles of the civil law by way of the constitutional control.

• E.A.Vorobei. Legal regulation of law-making process: shortcomings and proposals on improvement

Annotation
     In the article it is stated that at present in practice there is the transition mainly to regulation of new relations but not to good ordering of the formed relations, and that is resulted in "accelerated" law creation and "overregulation" of public relations. In addition, the legislation specifies two at first sight contradictory typical peculiarities - stability and dynamics. On the one hand the laws are called to regulate the formed public relations in order to avoid groundless alterations and addenda thereto during the short period of time after adoption. On the other hand they must reveal dynamics of development of society, the changing public relations.
     The author motivates the conclusion that the law maker must undertake the exhaustive measures on regulation and improvement of law making activities on the basis of study of processes of development of society, taking into account the level of feeling for law and order, legal culture of population, as well as prognostication of after-effects of adoption of laws that undoubtedly shall help to upgrade the quality and effectiveness of the following laws.
     The article points out the problematical issues that are typical for the modern process of law creation in our country. The author proposes the way for solution of the specified issues, forms the proposals on improvement of legal regulation in the given sphere.
     

• D.G.Vasilevich. Citizenship of the Republic of Belarus and the right to freedom of movement

Annotation
     On the basis of consideration of the notion "citizenship", the issue on the scope of "action" of the state in the given sphere, the article analyses the mutual influence of the citizenship and the freedom to movement. The author is of the opinion about political and legal relationship of an individual and the state.
     Attention is paid to the available approaches towards the solution of the issue on citizenship in the republics of the former USSR.
     The article emphasizes that the freedom to movement, choice of place of residence may not be conditioned by the national and other affiliation, otherwise it would be of a discrimination character.
     By studying the norms of the Law "On citizenship of the Republic of Belarus" the author comes to the conclusion that the national legislation is in line with the international practice in the given field.
     The terms such as "place of residence" and "place of permanent living" are subject to examination from the point of view of existing collisions between certain norms of the legislation on citizenship and the tax legislation.
     Taking into account the research, the author formulates the concrete proposals on making alterations and addenda into the legislation on citizenship of the Republic of Belarus.

• O.V.Tsegelnik. Investment treaties in the field of competitive privatization of stock, enterprise that owned by state

Annotation
     The article is devoted to the analysis of social and economic essence of privatization, legislation that regulates obligatory relations arising on the basis of contracts concluded as a result of the competition, in case of selling of stock, enterprise owned by state, in the process of privatization, in the course of practice of drawing up the specified contracts.
     The author motivates the position according to which and in case of such a method of privatization as alienation of the state-owned stock, enterprise as a result of competition, the Republic of Belarus has the aim not only to transfer the right of ownership to the specified objects to the new owner but also to begin with realization of investment projects as regards the enterprises in question for support of social and economic stability in its territory.
     The author underlines also that the contract of purchase and sale of the state enterprise and the contract of purchase and sale of stock and (or) the contract on the procedure of adherence to the conditions of the competition (investment contracts in the field of privatization of stock, enterprise owned by state, as a result of the competition) shall be referred to the group of contracts on joint activities, since the object of obligations to which they give rise shall be realization of the investment project under the terms and conditions of the competition.

• S.I.Viktorova. On legal essence and place of labour law relation in system of legal regulation

Annotation
     The author emphasizes that recently in the field of legal regulation of the labour law relations there were essential improvements caused by radical changes in the sphere of labour under influence of economic reform in public and social life. The role and significance of the labour law have been increased considerably.
     The article is devoted to research of the nature of the labour law relation and to specification of its place in the system of legal regulation. The author analyses the existing theoretical and practical concepts and positions in the specified area.
     There are proposals on development of labour legislation. The quality of legislative acts on labour should secure effective regulation of public attitudes in the sphere of the organization of wage labour and simplicity of understanding of legal instructions by all the interested parties, should exclude double interpretation. The conformity of issuing acts with the requirements of modern reality shall be of a special significance.

• N.S.Berezutskaya. Legal regulation of additional leaves for the work with harmful production conditions as realization of the constitutional right of citizens to health protection

Annotation
     The article is devoted to the problem of realization of the constitutional human right to the health protection by way of granting additional leave for the work with harmful production conditions.
     With the help of the study of the modern legislation and collective and contractual practice the author comes to the conclusion about the absence of unified criteria of specification of adequacy of the size of compensation to the scope of damage. Due to this the author makes also an attempt to elaborate the reasonable proposals as regards the improvement of the mechanism of granting additional leave for the work with harmful production conditions.
     On the basis of synthesis of opinions of lawyers who are scientists and recommendations of hygienists, on the grounds of generalization of practical material there is the justification of the new mechanism of stipulation of additional leaves granting for the work with harmful production conditions. Within the frames of well-founded new approach towards legal regulation of the leave in question and with a view of improvement of legislation there are proposals on making alterations in Article 157 of the Labour Code of the Republic of Belarus.

• E.I.Astapov. Scientific and practical validity of categories and notions of labour protection, their influence on effectiveness of legal norms of the specified institute

Annotation
     The article analyses scientific and practical validity of categories and notions of labour protection as the institute of labour law. The author considers legal problems of use of terms "institute of labour protection", "effectiveness of legal norms", "conservation of life and health of workers", "specialist on labour protection" etc. There is a systematization of specific differentiation of the institute of labour protection.
     The article provides proposals on improvement of terminology while elaborating normative legal acts, as well as regarding determination of effectiveness of legal norms by way of comparative characteristic of their certain peculiarities.
     The author argues with a number of researchers on issues of basic and substantial characteristics of the institute of labour protection, in particular, subject, method, aims, means, etc.
     The grounds are given to the fact that the qualitative theoretical elaboration of categories and notions, their connection with practical constituent are determinative for enhancing efficiency of norms of the institute of labour protection that as a result shall promote realization of basic aims and tasks of the problem under study.

• P.V.Ragoisha. Parental rights and duties in context of realization of rights to maternity and paternity: problem of definition of the moment of origination

Annotation
     The present article is devoted to examination of issues of legal definition of the moment of origination of the rights and obligations of citizens in the context of realization of their rights to maternity and paternity.
     The author considers the right to maternity and paternity as the unity of parental and reproductive rights of an individual, analyses legal grounds of origination of parental rights and duties in interaction with the rights of a child and comes to the reasonable conclusion that the law establishing fact of the parental right shall be the birth of a child.
     The article provides in detail the scope of parents' legal and active capacity depending on the sex of a parent and gives grounds for novelties of family legislation dedicated to normative specification of the moment of origination of parental rights.

• A.S.Batenin. Content of civil and legal protection of copyrights

Annotation
     The article is devoted to study of such an institute of the civil law as the protection of the rights and lawful interests of citizens and legal entities. The author examines categories of "protection of rights", "right to protection", "content of subjective right to protection", "subjects of the right to protection" as applied to the rights of the authors of works of science, literature and art.
     It is noted that the notion "protection of rights" may be considered in objective sense (as system of legal measures) and in subjective sense (possibility of a person to protect one's own rights and interests).
     The author also specifies the necessity of differentiation of terms "protection of rights" and "safeguard of rights", as well as "protection" and "responsibility". There is the author's definition of the notion "measures of protection of rights".

• D.E.Shelepov. Peculiarities of realization of author's competences in Internet

Annotation
     The article emphasizes that at present the development of communication technologies creates new conditions for realization of the rights to the objects of intellectual property. In case of making digital product and its placement, as well as in case of other use in digital Internet the realization of the rights of the holder of the right to the objects of the copyright and related rights are closely interwoven with technological and communication peculiarities that are using in interactive medium.
     It is pointed out that the state shall act as the guarantor of realization and protection of the rights and freedoms of citizens of Belarus that are stipulated in the Constitution, the laws of the Republic of Belarus and that are envisaged by international obligations of the state. The legislative acts of the Republic of Belarus and international agreements specify for the authors of works a number of individual property and non-property rights.
     The article examines the peculiarities of realization of the most weak rights in digital medium of rights, such as the right to reproducing, the right to universal informing and spreading, the right to publication. The article provides also the approaches towards regulation of disputable situations emerging while using the protected by the copyright works in Internet. The are also the proposals on specification of the national legal norms with the purpose of securing the rights of an author.

International experience of constitutionalism

• Zh.I. Ovsepyan. Constitutional and legal grounds of forming of multi-party system in systems of legislative and executive power in the Russian Federation: beginning of XXI century

• A.V. Gusev. Functions of bodies of constitutional control of the Russian Federation that are effective at federal and regional levels

• Z. Stubryte. Introduction of constitutional complaint institution in the Republic of Lithuania

News of science

     Round table "Institutes of direct democracy: legislation and practice" (20 November 2006)

International relations of the Constitutional Court

     G.A. Vasilevich. About international conference in Moscow dedicated to the problems of building and development of the Union State (13-14 December 2006)

     V.I. Moroz. International seminar "Management of irregular migration in Europe and strategies to combat trafficking in human beings" (Trieste, 9-12 October 2006)

     V.I. Seledevsky. International seminar "Freedom of association and freedom of assembly - sources, principles and proper implementation in practice (Trieste, 27-30 November 2006)