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 5 April 2007 No. D-199/2007 "On the right of appeal to the court of law against written notice on violation of legislation by the religious organization"

Summary
     The Constitutional Court of the Republic of Belarus has examined the application of the religious organization on the right of appeal to the court of law against actions of the Authorized Person on religious matters and nationalities who made for the religious organization the written notice on violation of the legislation of the Republic of Belarus.
     The application specifies that the courts of law refuse to take the application on judicial appealing against the written notice made by the Authorized Person on religious matters and nationalities (hereinafter is also referred to as Authorized Person on religious matters) motivating the refusal by the absence in the legislation of the norms that shall regulate the procedure of appealing against the actions in question.
     Having analyzed the provisions of the Constitution, international legal documents, laws and other normative legal acts of the Republic of Belarus, the Constitutional Court emphasized that even though the Law on freedom of conscience stipulates no right of judicial appealing against written notice made with respect to a religious organization in case of violation by the religious organization of the legislation of the Republic of Belarus, the Civil Code of Procedure contains Chapter 29 that envisages, in particular, the procedure of appealing against actions of officials that infringe upon the right of legal entities.
     Previously the Constitutional Court in its Judgments of 24 June 1998, of 13 May 1999, as well as in annual Messages on constitutional legality in the Republic of Belatrus for several times paid attention to the direct effect of part one of Article 60 of the Constitution due to the requirements fixed in Article 137 of the Basic Law, and underlined that the right to judicial protection shall be referred to the universally acknowledged principles of international law, the priority of which the Republic of Belarus recognizes and ensures that its laws comply with such principles under Article 8 of the Constitution.
     The Constitutional Court in its Decision of 5 April 2007 has confirmed the already expressed its legal position on direct effect of the norm of Article 60 of the Constitution of the Republic of Belarus that guarantees legal persons the right to judicial protection.

• Decision of the Constitutional Court of the Republic of Belarus of 15 June 2007 No. D-200/2007 "On right of natural persons to legal aid in administrative process"

Summary
     Due to the appeal that specifies imperfections of the norms of legislation concerning securing the right of natural persons to legal aid in administrative process, the Constitutional Court at its sitting of 15 June 2007 has analyzed the provisions of the Constitution, Administrative Procedural Code of Executions of the Republic of Belarus (hereinafter is also referred to as APCE), the Criminal Code of Procedure of the Republic of Belarus (hereinafter is also referred to as CCP), other normative legal acts of the Republic of Belarus and found the following.
     According to Article 62.1 of the Constitution everyone shall have the right to legal aid to exercise and defend his rights and freedoms, including the right to use, at any moment, the assistance of lawyers and one's other representatives in court, other state bodies, bodies of local government, enterprises, institutions, organizations, public associations and also in relations with officials and citizens.
     The analysis of the relevant norms of APCE signified that they provide participants of administrative process with different scope of rights on rendering legal aid: a natural person who is subject to administrative process may carry out defence individually or to use legal aid of the legal counsel who may be an advocate only; at the same time the victim shall have the right to use the service of the representative who may be not only the advocates but also other persons whom he/she has trusted representation of his/her interests.
     Thereby, under the violation are the principle of equality of every person, who participates in the administrative process, before the law, as well as the right without any discrimination to equal protection of their rights and lawful interests.
     The Constitutional Court has also emphasized that in its turn the legislator in spite of the gravity of possible consequences (conviction to imprisonment and other penitentiary measures) has stipulated in CCP a wider scope of persons who exercise defence of the accused than it is envisage with respect to the person who is subject to administrative process.
     Thus, in case of participation in the criminal process, that was later on discontinued due to application of administrative measures, as the defender of the accused of his/her next of kin, in the administrative process, the next of kin shall loose his/her right to defend the person in question, although he/she previously had already taken part in defending within the criminal case and had already been acquainted with all the circumstances of the criminal case. This may lead to delay of the trial that is conditioned by the necessity of involving in the administrative process of other persons (in particular, an advocate), delay in acquainting them with the materials of the case, as well as realization of other measures.
     Taking into account the above mentioned, the Constitutional Court has proposed the House of Representatives of the National Assembly of the Republic of Belarus with a view to secure the equal rights to legal aid by both victims and natural persons who are subject to administrative process to introduce the relevant alterations and addenda into ACPE. In addition, the Constitutional Court pointed out the necessity of coordination in this part of the norms of the criminal legislation of procedure and the norms of ACPE.

• Decision of the Constitutional Court of the Republic of Belarus of 14 April 2007 No. P-211/2007 "On granting mothers having many children financial assistance of the state in repaying of debts on soft credits"

• Decision of the Constitutional Court of the Republic of Belarus of 25 April 2007 No. P-212/2007 "On land tax"

• Decision of the Constitutional Court of the Republic of Belarus of 10 May 2007 No. P-213/2007 "On development of provisions of the Law of the Republic of Belarus" "On motor transport and motor transportation"

• Decision of the Constitutional Court of the Republic of Belarus of 29 May 2007 No. P-214/2007 "On the right to pension for special service to the Republic of Belarus"

• Decision of the Constitutional Court of the Republic of Belarus of 4 June 2007 No. P-215/2007 "On application of point 6 of Provision on procedure of registration of citizens who are" in need of improvement of living conditions, granting of living accommodation of state housing fund"

On realization by state bodies of decisions of the Constitutional Court of the Republic of Belarus

      V.D. Skirda. On execution of decisions of the Constitutional Court of the Republic of Belarus in April - June 2007

Citizen lodged an appeal with the Constitutional Court

     On realization of the right to freedom of public associations
     On reservation of purchasing capacity of cheques "Zhilye" ("Housing") as a result of a denomination of 1994
     On finding a person as a member of the family of a renter of a housing accommodation of the state housing fund
     On validity of recovery of debts on shares for building a flat in a Housing and Building Co-operative (HBC)
     On property consequences of voluntary construction
     On legality of requirement on giving the reference of the Fund of social protection for access of individual entrepreneurs to realization of goods
     On possibility of conclusion of a new contract before the expiry of the time period of effectiveness of a previously concluded contract
     On dismissal of workers for absence from work without a reasonable excuse during the period of notification of them by the employer about decision to cease labour relations due to expiry of the contract
     On appeal to the court of law in case of delay through the fault of the employer of payoff and service record due to dismissal
     On realization of the right to social security in part of calculation of the record of work
     On licensing of legal service as regards representing the interests of clients in international (arbitration) courts
     On privileges on the state due, on legal aid with respect to the citizens for exercising and protection of their rights and freedoms
     On income tax exemption of persons who took part in liquidation of disastrous effects at Chernobyl Nuclear Power Station disaster
     On collection of the national due for granting the right to hunting
     On non-application of punishment as correctional works or restriction of freedom with respect to AIDs infected persons

Scientific information

• G.A. Vasilevich. Right of CIS and national legislation: problems and ways of harmonization

Annotation
     Issues related to the necessity of harmonization of law of the Commonwealth of Independent States and the national legislation are subject to study on the grounds of basic documents of CIS (Agreement on creation of Commonwealth of Independent States, 1991 and the Statute of the Commonwealth of Independent States, 1993), as well as the norms of Constitutions of the CIS Member States. The article makes a comparative analysis of the specified acts with the documents adopted within the European and Asian Economic and European Community.
     The author makes an attempt to consider the reasons of low level of realization of decisions adopted within CIS, as well as to find the possible ways of enhancing the effectiveness of their realization.
     The article contains examples of concrete decisions of the Constitutional Court that emphasize the experience of use of normative requirements of agreements of the Commonwealth of Independent States.

• .M. Bocharov., A.N. Sokolov. Law in Russian legal conception

Annotation
     The article studies the role and significance of the law in Russian legal idea. The authors pay attention to the basic provision of legal doctrine of the Russian Federation on the necessity of considering the previous experience: amount of works of pre-revolutionary Russian lawyers, approaches to the law during the Soviet and modern period of time.
     Absence of clearly elaborated conception of a draft law and inefficiency of the mechanism of realization of the law are specified as weak moments in modern Russian legal system.
     There is also an attempt to specify the conditions that promote effectiveness of laws. Among them are: scientific prognostication of social and other consequences of adoption of the law in law making process; analysis of effect of the law through certain time periods; observance of the rules of law making activities.

• I.I. Plyakhimovich. Legal nature of conceptions of development of legislation and other political and program documents

Annotation
     The article is a complex study of legal significance of national conceptions, programs, strategies, basic directions and other similar documents that secure the aims, directions of policy of the state, as well as concrete tasks and measures the execution of which is necessary for realization of this policy. The author names these acts as political and program documents and underlines their active use at the modern stage of development of Belarusian state. Under more detail consideration is Conception of improvement of the legislation of the Republic of Belarus, as well as other documents that specify the activities of the state in the field of law. The article emphasizes that political and program provisions may be contained also in legal acts. Moreover, the regularity of development of legal regulation in the Republic of Belarus is increase of the scope of political and program norms in the legislation.
     There is the motivation of the idea that political and program documents are independent sources of law equally with normative legal acts, science (doctrine) and other sources of law.
     Under analysis are juridical features of conceptions of development of the legislation, there is the specification and relation of conceptions with state programs and plans of preparation of draft normative legal acts. The author considers the issue in correlation of provisions of the Conception of improvement of legislation of the Republic of Belarus with the norms of law.
     The author emphasizes also inconsistency between the stipulated measures on realization of conception and its contents. There is the proposal to work out the Conception on improvement of legal system of the Republic of Belarus on the basis of the document in question.

• A.N. Pugachev. Idea of judicial norm controlling in context of problem of "negative law making"

Annotation
     The article deals with the role of the constitutional court as a "negative law maker". The author studies historical aspect on the development of views on nature of judicial norm control.
     The author pays special attention to the methodological approaches of H. Kelzen who proposed the idea of founding specialized constitutional control in the state. The model of constitutional justice is analyzed under the basic postulates of Kelzen's "pure law theory".
     The author specifies the peculiarity of constitutional justice in "new democracies" in comparison with highly developed Western models that had taken Kelzen's model of judicial constitutional control. There is a critical appreciation of certain approaches of modern scientists concerning essence of the constitutional control function as a "negative law making". The author goes on to say that the matter of topical interest deals with the investigation of the role of constitutional court as a "positive law maker".

• L.A. Kozyrevskaya. Principles of legal regulation of corporative relations

Annotation
     The article specifies that modern legislation is based on the system of principles - general valid ideas that found their normative fixation, as well as carry out the system and subsidiary law regulative role. As a result of adoption of the Civil Code of the Republic of Belarus in 1998 the principles of civil law found the legal expression in Article 2 of the mentioned act. This legislative solution requires the review and adjustment of legal grounds of certain civil law institutions, in particular, such a relatively new institution as corporate relations.
     The author proposes also the system of corporate law principles that involves the principles of law supremacy, autonomy, free membership, protection of third persons' interests, property participation, intracorporate democracy, free realization of corporate rights; information accessibility, as well as makes analysis of the content taking into account general legal (constitutional) and branch principles.

• K.I. Kenik. Termination of civil service: problems of legal regulation

Annotation
     The article is dedicated to the study of the problem of legal regulation of termination of civil service. Actuality of the problem is conditioned by imperfection of the legislation in the given field and that makes difficulties while its applying in practice.
     The author makes analysis of certain grounds of termination of civil service, underlines incompleteness of their legal regulation, absence of stipulation by the law of the procedure of dismissal due to termination of civil service.
     On the grounds of the study there is the conclusion on the necessity of addenda of the Law on civil service with the relevant norm, moreover, there is the wording of this norm made by the author. There are other proposals on the improvement of the legislation on civil service, including on the necessity of qualifying the grounds of termination of civil service, stipulation of the procedure of dismissal under certain grounds of termination of civil service.

• S.I. Viktorova. Certain issues of characteristics of law relations in the field of labour and their legal regulation

Annotation
     The article is dedicated to complex study of classification of law relations, regulated by the norms of labour law (individual, collective, material, procedural). Under analysis are existing collisions and omissions in the norms of labour legislation. There are concrete proposals on their elimination.
     It is underlined that the specific nature of public relations in the process of organization of labour stipulates objectively their regulation by different branches of law. Just here there is the ground for interaction of branches of law, origination and existence of so called interbranches, complex, boundary, complicated and other institutes of law.
     The author considers peculiarities of legal regulation of labour relations in practice and formulates recommendations on improvement of labour legislation of the Republic of Belarus. In particular, there are the proposals on improvement of procedural labour relations while settling labour disputes of workers with employer.

• A.A. Kostuzik. Significant aspects of development of local normative regulation of labour and other related relations in the Republic of Belarus

Annotation
     The author on the basis of the dialectical law of unity and struggle of opposites examines the sources of development of local normative regulation of labour and the relevant relations. In addition, the development of the above pointed regulation is considered in the context of interconnected and interstipulated internal and external factors. The substantial contradiction of employer’s and employee’s interests is defined as a source of inner development, the contradiction of economic and social interests of the society (state) – as a source of outer development. The author underlines the dependence of positive influence of external factors of the development of normative regulation of labour and the relevant relations on the procedures of local legislative activity envisaged by the legislation of the Republic of Belarus. There is the proposal of the mechanism of differential adoption of local normative legal acts in the sphere of labour based on the principles of law and law norms of lesser generalization.

• N.A. Ramult. Finding of juridical facts in the field of pension security as a type of procedure or process activity

Annotation
     The author studies the content of activity on finding legal facts in the field of a pension security, taking into account the character of the activity from the point of view of its essence and the organization form. In the opinion of the author, the essence of activity of bodies of social security on finding legal facts in the field of pension security is that it shall be referred to the law executive activity, but as for the bodies of social security, they do not safeguard the rights of citizens in the field of social security while exercising the given kind of activity and guarantee them.
     Attention is paid to the fact that activity in the field of pension security on finding legal facts is subordinated to a definite mode, to rules, procedure, but there is no process in standard in the theory of the law of sense. Activity of the state bodies on finding the facts of legal value in the field of pension security may contain only some features of process, therefore, it is correct to speak not about the process, but about the procedure in their activity.
     There is the conclusion that the maximum degree of procedural regulation in the specified sphere has now the activity of court, unlike activity of other state bodies.

• Y.I. Ovchinnikova. Constitutional grounds of payment by organizations of state taxes, dues and other payments

Annotation
     The article considers the grounds of taxation of the organization that consist of two items: economic and juridical.
     By analyzing the juridical reasons for taxation of organizations, the author pays attention to the fact that the grounds of the tax law are based on the constitutional provisions. The author makes the conclusion that the complete subject structure of the participants of tax relationship, on whom the obligation of paying taxes, dues, customs and other payments is laid, should be reflected in the very Constitution, i.e. there should be defined the range of tax relationship subjects, that later will be specified in tax legislation, as soon as taxation turns out to be a peculiar kind of depriving of property in a non-judicial way.
     The author also analyzes some opinions in the special scientific and educational literature considering constitutional provisions of paying state taxes, duties and other payments by the organizations. There is the comparative analysis of the provisions of the Constitution of the Republic of Belarus with the constitutions of foreign countries on the question of constitutional grounds of taxation of organizations.

• D.I. Dmitrenok. State sovereignty and function of minimization of effects at Chernobyl Nuclear Power Station disaster in activities of the Government of the Republic of Belarus

Annotation
     The article is devoted to research in interrelation of the sovereignty of the Republic of Belarus with the function of the minimizing consequences of the Chernobyl accident in the activities of the national Government. In the cause of analysis of complex character of the state sovereignty the author comes to conclusion that starting and development of functions of the state and the law occurs at state realization of the sovereignty in different spheres of public security. Sides of the sovereignty are the constitutional foundation on the basis of which the rise is given various state and legal objects. This is the method of formation of concrete state and legal mechanisms, including the mechanism of minimizing the consequences of the accident on the Chernobyl Nuclear Power Station.
     The author's position proves in defining of essence of the function of the Chernobyl accident consequences minimizing; the state and the law functions signs are pertain to this function that is realized by the system of public and administration authorities. The Government of the Republic of Belarus is one of the important elements of present system forming corresponding state and legal mechanism.
     The author formulates concrete proposals on perfecting constitutional and legal security Belarusian Government activities in the sphere of overcoming the consequences of the nuclear accident and functioning of the “chernobyl” state and legal mechanism as a whole.

• V.V. Saskevich. On legal regulation of use of lands for non-agricultural production activities

Annotation
     The article is devoted to the land-law problems that appear in the process of utilization of land for accomplishing non-agricultural producing activity. Special attention is paid to the complex of legal regulations of these relations. On the basis of analysis of special legislation of the Republic of Belarus, normative legal acts of Russian Federation, juridical literature the author defines legal nature of the shore as a zone with special conditions of use. In the article the lack of provision of rights and interests of land users, lease holders and owners during the use of their land lots by other persons for carrying out research works, building and reconstructing of line structures is pointed out. The author examines the reasonability of implementation of public servitude in the Republic of Belarus, grounds the necessity of legal appointing of possibility of compensating these persons the sums, paid for land, land lots or their parts, the use of which is completely limited as a result of holding such works. In the conclusion of the article the author suggests the ways of perfection of land and special legislation.

• E.I. Orlova. To issue on administrative responsibility for offences in the field of the market of securities

Annotation
     The article studies the problems of administrative liability for revealing the information and manipulating prices on the securities’ market and the order of circulation of promissory notes. On the basis of the analysis the author formulates range of conclusions and suggestions on perfection of legislation in this sphere.
     In particular, bringing to administrative liability the persons for revealing commercial or other secret (closed information, as well as data, included in the register of securities’ holders), that became known to them in connection with their professional or official activity, in case the misdeed doesn’t draw criminal liability, should be performed in accordance with Article 22.13 of the Administrative Code. In case legal persons violate legislation considering the register of share holders, they are brought to liability in accordance with Article 11.14 of the Administrative Code.
     The author emphasizes that the Administrative Code of the Republic of Belarus should be added with the article that will stipulate the liability for violation of legislation on counteraction of legalization of illegal incomes, and financing terrorists’ activity by analogy with Article 15.27 of the Administrative Code of Russian Federation. Equally the necessary alterations and addenda should be made into other normative legal acts of the Republic of Belarus.

• A.M. Sanko. Certain criminological aspects of controlling thefts in building with use of false enterprises

Annotation
     The article contains the analysis of struggling against pseudo-cooperation. The author has studied the published practice of foreign states activity in preventing pseudo-entrepreneurship and defined positive aspects of their activity. The author considers the main technologies of realizing misappropriation in building with the use of pseudo-enterprises. Basing on the experience of different countries of the world, there are some directions of work of departments of fighting economic crimes with a view of effective investigation of misappropriation in the sphere of building, committed with the help of pseudo-enterprises. The author concludes that necessary changes in the relation of operational departments to the facts of revealing pseudo-enterprises with a view of decreasing temporal and material efforts, connected with investigation of the complete chain of criminal acts and all members of the criminal group should be imposed.

News of science

     L.E. Zemlyakov, D.A. Krivoshei. State. Religion. Society (following the materials of International Scientific and practical Conference that took place on 7 June 2007)

International relations of the Constitutional Court

     V.Z. Shuklin. Seminar on the issues of environmental protection (4–5 June 2007, Kyiv)

     G.N. Zmachinskaya. Execution of judicial rulings as criteria of effectiveness of judicial activity in the state

     V.I. Moroz. About participation in seminar dedicated to the issues of legislative evaluation (11–14 June 2007, Trieste)