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, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov,

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 forward proposals to the President of the Republic of Belarus, the chambers of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence on the need to make alterations and (or) addenda to the acts of legislation, considered in court session the legal regulation of the additional ground for terminating an employment agreement under point 5 of Article 47 of the Labour Code of the Republic of Belarus.

Having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – The Constitution), the Labour Code of the Republic of Belarus (hereinafter – The Labour Code), the Law of the Republic of Belarus “On Combating Corruption”, other normative legal acts of the Republic of Belarus, the Constitution Court found the following.

1. In accordance with article 1 of the Constitution the Republic of Belarus is a state based on the rule of law and bound by the principle of the supremacy of law (the first part of Article 7 of the Constitution). The establishment of the supremacy of law is largely connected with the creation of a legal system in which regulations are consistent with each other and there are no conflict of law. As noted by the Constitutional Court in its message "On Constitutional Legality in the Republic of Belarus in 2008”, legislative activities should be based on the principle of legal certainty that suggests the clarity, accuracy, consistency, logical coherence of legal norms.

Article 47 of the LC establishes additional grounds for terminating an employment agreement with some categories of employees under certain conditions. In accordance with point 5 of this article an employment agreement with an employee authorised to perform state functions may be terminated in cases of either the refusal to be bound or the breach of written commitment to carry out the legislative measures to prevent corruption.

In accordance with the Law of the Republic of Belarus of June 26, 1997 "On Measures to Combat Organised Crime and Corruption" (hereinafter - the Law of June 26, 1997) preventive measures were provided in written commitments for persons authorised to perform state functions, and they included the prohibition to interfere in the activities of other governmental and nongovernmental bodies and organisations, if it does not fall within the scope of their responsibilities, to use his/her official position in dealing with issues that affect their personal interests or those of their family members and close relatives; to give unwarranted benefits and privileges to individuals or legal persons or to assist in their provision, as well as to commit other acts of corruption (parts 1 - 3 of article 8 of the specified Law).

According to the seventh part of Article 1 of the Law of June 26, 1997 among the persons authorised to perform state functions there were public authorities, including law enforcement officials, judges, members of the House of Representatives and the Council of the Republic of the National Assembly of the Republic of Belarus, deputies of local Councils of deputies, public servants, persons determined by law as officials, including the Armed Forces of the Republic of Belarus and other military formations; officials of those economic entities where the share of state ownership is predominant.

In accordance with the fourth and fifth parts of Article 8 of the Law of June 26, 1997 either the refusal of the persons to be bound or the violation of the requirements of this article as reflected in commitments, served as a ground to deny their employment application or to terminate their employment in the procedure prescribed by law.

These provisions were enshrined in point 5 of Article 47 of the LC as an additional ground for terminating an employment agreement with an employee authorised to perform state functions. However, owing to the adoption of the Law June 27, 2007 “On Combating Organised Crime" the Law of June 26, 1997 ceased to be in force, and the term "employees authorised to perform state functions” is no longer applied in the anti-corruption legislation.

2. Further measures to fight corruption have been stipulated by the Law “On Combating Corruption". These Law envisages subjects of offences, who create conditions for corruption, and of corruption-related crimes. State officials are also included therein (Article 3).

According to the third point of Article 1 of the Law "On Combating Corruption" among state officials there are the President of the Republic of Belarus, deputies of the House of Representatives, members of the Council of the Republic of the National Assembly of the Republic of Belarus, deputies of local Councils of deputies who exercise their powers on a professional basis, as well as other public servants, persons who hold positions in state organisations, the Armed Forces of the Republic of Belarus, other troops and military formations of the Republic of Belarus and who belongs to the officials under the legislation of the Republic of Belarus.

Article 16 of the Law "On Combating Corruption" contains the provision according to which in order to avoid actions that may lead to the use of his/her official position and related opportunities and his credibility based on it for personal, group and other off-duty benefits, a state official shall make a commitment to follow the restrictions stipulated by Article 17 of the mentioned Law, as well as the legislation of the Republic of Belarus on the public service for public servants (unless the position of a state official is considered as public service), and shall be informed about the legal consequences of the default on commitments.

In accordance with Article 17 of the Law "On Combating Corruption", which envisages restrictions for state officials, a state official may not, in particular, hold entrepreneurs activity in person or by authorised representatives, assist close relatives in entrepreneurs activity using his/her official position, be a representative of the third parties on activities of either the public authority, other governmental organisation whose employee he/she is, or the subordinate and (or) controlled by him/her public authority, public organisation, as well as perform other paid work, which is not connected with the execution of service duties at the place of his/her main office (besides teaching, research, culture, creativity and health practice), unless otherwise stipulated by the Constitution of the Republic of Belarus; to participate personally or through authorised representatives in the management of a commercial organisation, except as stipulated in the laws of the Republic of Belarus; have accounts in foreign banks, except when executing state functions in foreign countries and other cases stipulated by legislative acts of the Republic of Belarus; execute instructions and orders of the political party, other public association, of which he/she is a member (except for deputies of the House of Representatives and members of the Council of the Republic of the National Assembly of the Republic of Belarus, deputies of local Councils of deputies) the nature of which is connected to the service (labour) activity of the state official.

In case of the refusal to be bound by the stipulated restrictions a state official shall be dismissed from office, and in case of the violation of signed commitments such a person shall be brought to responsibility, including the dismissal from office. In the named cases the dismissal from office shall be performed in accordance with the stipulated by legislative acts of the Republic of Belarus order (part two of Article 16 and part five of Article 17 of the Law "On Combating Corruption").

Thus, the Law "On Combating Corruption" specifies the list of restrictions aimed at prevention of corrupt acts, as well as the list of persons classified as state officials, who enter into a bond to follow such restrictions. As it was prescribed by the Law of June 26, 1997 the dismissal from office in the established procedure is one of the legal consequences of either the refusal to be bound or the default to follow the restrictive commitments.

3. Pursuing to the second part of Article 16, part five of Article 17 of the Law «On Combating Corruption» and taking into account the prescription of part one of Article 35 of the LC to terminate an employment agreement only on the grounds provided by the Labour Code, a state official who has not entered into a bond or violated a written commitment to follow the established restrictions, shall be dismissed from office in the procedure and on the grounds determined by the Code. It should be considered herewith that the prescription of Article 5 of the LC to apply the Labour Code to labour and labour-associated relations of certain categories of employees in cases and limits provided for by special legislative acts that determine their legal status and, corresponding prescription of the first part of Article 35 of LC does not apply to certain categories of state officials.

However, in point 5 of Article 47 of the LC a state official is not mentioned as an employee whose employment agreement will be terminated in case of the refusal to be bound or the default on written commitments to respect prescribed restrictions.

Despite the fact that the dismissal from office of a state official, who has not entered into a bond or violated a written commitment to follow the established restrictions, shall be carried out under point 5 of Article 47 of the LC, this norm applies to persons authorised to perform state functions. The category of employees authorised to perform state functions, is currently not defined in law, that excludes the possibility to establish, in specific cases, whether the employee should be referred to this category.

The stated above enables the Constitutional Court to fix the existence of a conflict between the norms of the Labour Code and the Law «On Combating Corruption» in part regarding the termination of the employment agreement with a state official who has not entered into a bond or violated a written commitment to follow the established restrictions.

According to Article 9 of the Law «On Normative Legal Acts of the Republic of Belarus» the consistency of a normative legal act with other ones is one of the general prescriptions to be respected by normative legal acts.

Meanwhile, after the adoption of the Law of July 20, 2006 «On Combating Corruption» and its promulgation in six months after the official publication corresponding alterations and addenda to some legislative acts were not made in due time. As to the relevant alterations to the Labour Code of the Republic of Belarus they have not been made to date. What has resulted in a conflict of legal norms, which may lead to their ambiguous comprehension and misuse in practice. And that is inadmissible in a rule-of-law state.

Thereby, guided by the first part of Article 116 of the Constitution of the Republic of Belarus, Articles 22 and 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. With a view to realise the principle of legal certainty and ensure a uniform comprehension and application of legal rules to recognise the need to resolve a conflict between the norms of the Labour Code and the Law of the Republic of Belarus "On Combating Corruption" with regard to establish the additional ground for terminating the employment agreement with state officials in cases of their refusal to enter into a bond or violation of a written commitment to follow statutory restrictions by making alterations to Article 47 of the Labour Code of the Republic of Belarus.

2. To propose to the Council of Ministers of the Republic of Belarus to make a draft law on introducing due alterations to the Labour Code of the Republic of Belarus and to submit it the established procedure to the House of Representatives of the National Assembly of the Republic of Belarus.

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

4. To publish the present decision in accordance with legislation.

Presiding Officer –

Chairman of the Constitutional Court

of the Republic of Belarus P.P. Miklashevich