The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court 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

on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, supboint 1.1 of point 1 and point 3 of Decree by the President of the Republic of Belarus of June 26, 2008 No. 14 «On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus»

in open court session in the exercise of obligatory preliminary control considered the constitutionality of the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Codes of the Republic of Belarus Regarding Criminal and Administrative Liability».

Having heard the reporting judge T.V. Voronovich, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Codes of the Republic of Belarus on Criminal and Administrative Liability» and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

The Law of the Republic of Belarus «On Making Alterations and Addenda to Some Codes of the Republic of Belarus on Criminal and Administrative Liability» (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on December 4, 2009, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on December 11, 2009 and submitted to the President of the Republic of Belarus for signature.

The Law makes alterations and addenda to the Criminal Code of the Republic of Belarus, the Code of the Republic of Belarus on Administrative Offences, the Procedural-Executive Code of the Republic of Belarus on Administrative Offences (hereinafter – respectively, the CC, the CAO, the PECAO). The Law was adopted due to the necessity to improve certain provisions of these codes and harmonise the norms of the CAO with the norms of other legislative acts of the Republic of Belarus.

When examining the constitutionality of the Law the Constitutional Court proceeds from the following.

1. According to the principle of mutual responsibility stated in the second part of Article 2 of the Constitution the State shall bear responsibility towards the citizen to create the conditions for the free and dignified development of his identity. The citizen bears a responsibility towards the State to discharge unwaveringly the duties imposed upon him by the Constitution.

Everyone in the territory of the Republic of Belarus shall abide by its Constitution and laws and respect national traditions (Article 52).

Under article 59 of the Constitution 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.

The Law is aimed at the realisation of those constitutional provisions.

2. Alterations to the general part of the CAO are made to clarify the provisions of legal norms regulating general conditions for the onset of administrative liability and the imposition of administrative penalties for their unambiguous comprehension and uniform application. Inter alia they include the expansion of the list of actions that incur administrative liability only by the request of the victim; the refinement of the concept and application of such measures of administrative liability as confiscation and recovery of the cost of an object of the administrative offence; the imposition of administrative penalties, including on legal persons in case of committing several administrative offences by both full and partial summation of administrative penalties; the optimisation of time limits to impose administrative penalties; the definition of minor offences enshrined in law.

According to the Law the Article 7.6 of the CAO is presented in new wording: point 4 of part 1 of this article presents the exhaustive list of administrative offenses for which are applied longer time limits for imposing administrative penalties – not later than three years from the date of commission and six months from the date of discovery. Thus, the decision of the Constitutional Court of the Republic of Belarus of December 29, 2008 «On application of longer time limits for imposing administrative penalties» is executed.

In order to improve legal regulation of administrative liability for offences committed in certain spheres of social relations (for example, in banking, business, customs, public order and morals, traffic safety and operation of transport), the Special part of the CAO is supplemented by the new norms.

In addition to the Law the exclusion of administrative liability or mitigation of the sanctions on a number of administrative offences are provided, what indicates the liberalisation in legislation regulating the issues of administrative liability. These provisions of the Law derive from the constitutional duty of the State to take all measures to establish domestic order necessary for the full exercise by citizens of their rights and freedoms.

A number of modifications to the Special Part of the CAO, aims to harmonise the norms of the Code with ones of other legislative acts that corresponds to the principle of legal certainty, involving the clarity, accuracy, consistency, logical coherence of legal norms.

3. Alterations and addenda of the Law to the PECAO take into account the practical application of the Code and are aimed to improve the administrative process. In particular, they clarify the jurisdiction of courts and bodies, which participate in the administrative process, that consider administrative cases; they grant additional procedural rights to prosecutors, witnesses, head and representative of the body that presented the case on administrative offence to the court; they expend the list of officials authorised to exercise administrative detention of an individual. In order to simplify the consideration of administrative cases the study of the evidence and the recordation meanwhile are not required if the person against whom the administrative process is being held voluntarily pleads guilty, and none of the parties to a trial insist on the study of all the evidence.

According to the alterations to the CAO and PECAO, while determinating the application of the CAO in time (Article 1.5), the principal offender (part 3 of Article 2.4 of the CAO), continued offence (Article 2.6 of the CAO), as well as all the circumstances that either except the administrative process (part 4 of Article 9.6 of the Procedural Executive CAO) or involve the termination of the execution of administrative penalties imposition (part 3 of article 13.4 of the Procedural Executive CAO), the unlawfulness of an act may be established or excluded by legislative acts.

The Constitutional Court considers necessary to draw attention to the following.

According to the Article 1 of the Law «On Normative Legal Acts of the Republic of Belarus» the acts of legislation are normative legal acts that make up the legislation of the Republic of Belarus, and, in turn, the legislation is a system of normative legal acts regulating social relations.

The CAO contains a large number of blanket norms, the objective side of which is expressed in committing offences envisaged by other legislative acts. The Constitutional Court considers that, with respect to such blanket norms the unlawfulness of an action has the following characteristics: in general the unlawfulness of an action is set by the disposition of a relevant article of the Special Part of the CAO, where the offence (breach) of the order or rules of certain activities is prohibited under the threat of legal administrative sanctions, while specific actions that are an element of the objective side of the administrative offence, are detailed in the acts of legislation, establishing the order or rules of such activities.

With regard to these standards, the action is unlawful and entails the imposition of administrative liability measures in the presence of both conditions. To exclude the unlawfulnes of an action and, therefore, the administrative liability, the lack of at least one of the foregoing elements is enough: a norm of the CAO or a corresponding norm of an act of legislation.

The Constitutional Court points out the fact that legislative acts may regulate only the unlawfulness issues. According to part 2 of Article 1.1 of the CAO, this Code is the only law on administrative offences, which is in force in the territory of the Republic of Belarus; norms of other legislative acts that provide for administrative liability, should be included therein.

4. In order to harmonise the rules of criminal and administrative legislation the Law makes alterations and addenda to the articles of the Criminal Code that envisage penalisation for crimes against the rules of economic activity, environmental safety and the environment, traffic safety and operation of transport. In particular, the legislator uniformly defined the notion of income from illegal business activity for cases involving administrative and criminal liability. Thus, the decision of the Constitutional Court of the Republic of Belarus of June 12, 2008 «On the definition of the notion «Income» for administrative penalty imposition for illegal business activities» is executed.

The Constitutional Court in its Message «On Constitutional Legality in the Republic of Belarus in 2008» indicated that the principle of legal certainty in legislation prevents ambiguous comprehension and, thus, the improper application of norms of legislation that involve violations of rights and lawful interests of citizens.

In this connection the Constitutional Court points out that, according to the Law the legislator sets the upper and lower (from three hundred to one thousand nominal units) limits of the financial penalty for committing a specific crime envisaged by the sanction of part 2 of Article 3171 of the Criminal Code.

Meanwhile, according to part 1 of Article 62 of the CC, the court shall impose a penalty taking into account the provisions of the General Part of the CC within the limits envisaged in article of the Special Part of the CC, providing for liability for the committed crime. When imposing a sentence such as community service, fines, deprivation of the right to hold certain offices or to be engaged in certain activities, the court is guided by the limits set in Articles 49, 50 and 51 of the Code.

According to part 2 of Article 50 of the CC the amount of fine is determined by taking into account the nominal unit amount on the day of criminal procedure, depending on the nature and degree of public danger of the crime and the financial position and it is set in a range from thirty to one thousand of nominal units. The amount of fines imposed on a person for the offence envisaged by an article of the CC, containing administrative issue preclusion, may not be less than the maximum fine imposed administratively.

The Constitutional Court deems that it resulted in contradiction between the norms of the General and Special parts of the CC because, under part 1 of Article 62 of the CC, when sentencing a fine the court is guided by the limits established by Article 50 of the CC, which excludes the possibility of a legislator to establish limits of the fine in the articles of the Special Part of the CC. The principles and system of construction of the norms of the General and Specific parts of the CC are also violated.

According to articles 97 and 98 of the Constitution the consideration of the issues covered by the Law is within the competence of the National Assembly of the Republic of Belarus: draft laws on the fundamental concept and principles of execution of rights, liberties and duties of its citizens, on issues of criminal liability shall be considered by the House of Representatives (point 2 of part one of Article 97), the Council of the Republic shall approve or reject draft laws adopted by the House of Representatives.

Thereby, the content of norms, the form and the adoption procedure of the Law conform to the Constitution.

Being guided by parts one and seven of Article 116 of the Constitution of the Republic of Belarus, part eighth, thirteen and fourteen of Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of Decree by the President of the Republic of Belarus of June 26, 2008 No. 14 «On Certain Measures to Improve the Activities of the Constitutional Court» the Constitutional Court of the Republic of Belarus

RULED:

1. To find the Law of the Republic of Belarus «On Making Alterations and Addenda to Some Codes of the Republic of Belarus Regarding Criminal and Administrative Liability» conforming to the Constitution of the Republic of Belarus.

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

3. To publish the present Decision according to the legislation.

Presiding Officer- Chairman of the Constitutional Court of the Republic of Belarus P.P.Miklashevich