Constitutional Court of the Republic of Belarus

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Acts of the Constitutional Court

DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
26 March 2009 № D-319/2009

On the Rules of Procedure of the Council of Ministers of the Republic of Belarus

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

according to the eighth part of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges in the exercise of the right to submit to the President of the Republic of Belarus, chambers of National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence proposals on the need to make alterations and (or) addenda to the acts of legislation, to adopt new normative legal acts considered the Rules of Procedure of the Council of Ministers of the Republic of Belarus.

Having analysed the relevant provisions of the Constitution of the Republic of Belarus, the Code of the Republic of Belarus on Judicial System and Status of Judges (hereinafter –the Code), the Laws of the Republic of Belarus «On the Council of Ministers of the Republic of Belarus», «On Normative Legal Acts of the Republic of Belarus», «On the Constitutional Court of the Republic of Belarus», Decree by the President of the Republic of Belarus «On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus» of June 26, 2008 No. 14 (hereinafter – Decree No. 14), the Rules of Procedure of the Council of Ministers of the Republic of Belarus approved by the Resolution of the Council of Ministers of the Republic of Belarus of February 14, 2009 No. 193 (hereinafter – the Rules of Procedure), the Constitutional Court found the following.

1. The Rules of Procedure have been adopted by the Council of Ministers pursuant to Article 38 of the Law «On the Council of Ministers of the Republic of Belarus» and they regulate the organisation and operating procedures of the Council of Ministers that had not been specified in this Law, other laws and acts of the President of the Republic of Belarus.

Pursuant to Article 107 of the Constitution the Government shall exercise the powers entrusted to it by the Constitution, laws and acts of the President of the Republic of Belarus.

The organisation and operating procedures of the Government established in the Rules of Procedure are focused on ensuring the exercise of powers by the Council of Ministers.

2. According to Article 21 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.

Pursuant to the mentioned provisions Article 59 of the Constitution establishes that the State shall take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus that are specified in the Constitution. State bodies, officials and other persons who have been entrusted to exercise state functions shall take necessary measures to implement and safeguard the rights and liberties of the individual. These bodies and persons shall be held responsible for actions violating the rights and liberties of an individual.

Pursuant to part four of Article 116 of the Constitution and part two of Article 22 of the Code the Council of Ministers along with other authorised bodies and persons shall have the right to forward motions to the Constitutional Court on examining normative legal acts (hereinafter – acts) constitutionality.

In Article 19 of the Law «On the Council of Ministers of the Republic of Belarus» it is stated, that the Council of Ministers pursuant to the Constitution, laws and acts of the President of the Republic of Belarus ensuring law and order shall move the motions to the Constitutional Court on examining the acts constitutionality. This right may be exercised by the Council of Ministers both on its own initiative and on the ground of the petitions with the initiative to examine the acts constitutionality that had been submitted to the Council of Ministers pursuant to part three of Article 22 of the Code by those state bodies which are not entitled to forward motions of this kind to the Constitutional Court, by public associations, other organisations and citizens (hereinafter – citizens and organisations).

At the same time the Rules of Procedure have not defined the procedures for consideration by the Government of these citizens` and organisations` petitions with the initiative to examine the acts constitutionality and decision-making procedures on their admission or non-admission as well as peculiarities of consideration of the issue on forwarding a motion to the Constitutional Court on examining an act constitutionality by the Council of Ministers on its own initiative.

According to the Constitutional Court the mentioned legal gap may invoke a poor performance of state duties specified in Article 59 of the Constitution to take all measures at its disposal to create the domestic and international order necessary for the exercise in full of the rights and liberties of the citizens of the Republic of Belarus and as to state bodies, officials and other persons who have been entrusted to exercise state functions they shall take necessary measures to implement and safeguard the rights and liberties of the individual.

The Constitutional Court believes that the stipulated in part three of Article 22 of the Code right of citizens and organisations to appeal with the initiative to examine an act constitutionality to bodies and persons entitled to forward motions to the Constitutional Court on examining an act constitutionality should be corresponded with the duty of these bodies and persons to consider petitions of this kind. Therefore it is necessary to make alterations and addenda to the Rules of Procedure in order to define the procedure for consideration by the Government of the mentioned initiative of citizens and organisations as well as decision-making procedures based on its results thus providing for the exercise mechanism of the factual right of citizens and organisations laid down in part three of Article 22 of the Code to appeal in an indirect way to the Constitutional Court with a proposal to examine an act constitutionality.

In essence the Code stipulates a special subject of a citizens’ and organisations’ petitions being the initiative to examine an act constitutionality. It also establishes that petitions may be referred to organs and officials empowered to forward motions to the Constitutional Court (part four of Article 116 of the Constitution, part two of Article 22 of the Code) as well as special legal proceedings to consider an act constitutionality. Therefore petitions of this kind should be considered under separately prescribed rules but not according to the legislation on citizens’ and organisations’ appeal.

According to the Constitutional Court the consideration of citizens’ and organisations’ petitions with the initiative to examine an act constitutionality could be carried out by republican state administration bodies subordinated to the Council of the Ministers. In case of the approval by republican state administration bodies of the initiative to forward the motion to the Constitutional Court on examining an act constitutionality this issue should be referred for consideration to the Presidium of the Council of Ministers with a view to adopt given the grounds the Resolution of the Council of Ministers on forwarding a motion of this kind to the Constitutional Court. In case of a reasonable refusal to forward a motion on examining an act constitutionality to the Constitutional Court a petitioner (a citizen or an organization) shall be given an answer resulting from its petition consideration by republican state administration bodies or on the basis of the decision of the Presidium of the Council of Ministers.

Moreover it is necessary to enshrine in the Rules of Procedure appropriate rules for making and considering the proposals of members of the Council of Ministers on adopting the decision by the Council of Ministers to forward motions to the Constitutional Court on examining an act constitutionality on its own initiative.

3. Pursuant to subpoint 1.5 of point 1 of Decree No. 14 the Constitutional Court on the motions of the President of the Republic of Belarus and certain state bodies inclusive of the Council of Ministers shall state its position on the documents adopted (enacted) by foreign states, international organizations and (or) their bodies and affecting the interests of the Republic of Belarus to the extent concerning conformity thereof to the universally acknowledged principles and norms of international law.

However the Rules of Procedure have not provided for the initiation procedures of the specified proposals.

Pursuant to part one of Article 7 of the Constitution the Republic of Belarus shall be bound by the principle of supremacy of law. This constitutional norm also means legal regulation completeness and certainty, acts consistency, legal definiteness.

In view of the foregoing the Constitutional Court deems that the Rules of Procedure should envisage the consideration procedures in the Council of Ministers and forwarding motions by the Council of Ministers to the Constitutional Court on stating its position on documents adopted (enacted) by foreign states, international organisations and (or) their bodies and affecting the interests of the Republic of Belarus to the extent concerning conformity thereof to the universally acknowledged principles and norms of international law.

According to the Constitutional Court the consideration of the issue on forwarding the specified motion to the Constitutional Court is possible at the Presidium of the Council of Ministers by collegial decision-making.

Therefore in view of the foregoing pursuant to part one of Article 116 of the Constitution of the Republic of Belarus, part eight of Article 22, part two of Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court of the Republic of Belarus

RULED:

1. In order to provide for an appropriate exercise of citizens’ and organisations’ rights and legitimate interests, the realisation of the constitutional principles of the right supremacy and legal regulation definiteness to recognise as necessary to make due alterations and addenda to the Rules of Procedure of the Council of Ministers of the Republic of Belarus approved by the Resolution of the Council of Ministers of the Republic of Belarus of February 14, 2009 No. 193 with a view to establish the procedure for forwarding motions of the Council of Ministers of the Republic of Belarus to the Constitutional Court of the Republic of Belarus:

on examining normative legal acts constitutionality including motions resulting from the initiative of citizens and organisations who appealed to the Council of Ministers of the Republic of Belarus with proposals of this kind;

on stating by the Constitutional Court of the Republic of Belarus of its position on documents adopted (enacted) by foreign states, international organisations and (or) their bodies and affecting the interests of the Republic of Belarus to the extent concerning conformity thereof to the universally acknowledged principles and norms of international law.

2. To propose to the Council of Ministers of the Republic of Belarus to make in the established procedure due alterations and addenda to the Rules of Procedure of the Council of Ministers of the Republic of Belarus.

3. The present decision shall come into force from the date of its adoption.

4. To publish the present decision in the Bulletin of the Constitutional Court of the Republic of Belarus.

Presiding Officer–

Chairman of the Constitutional Court of

the Republic of Belarus

P.P.Miklashevich