26 January 2010 № D-430/2010
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
in court session having considered the constitutional legality in the Republic of Belarus in 2009, on the basis of Articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges
RULED:
1. To adopt the Message of the Constitutional Court of the Republic of Belarus to the President of the Republic of Belarus and chambers of the National Assembly of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus, 2009” (attached).
2. To publish the Message of the Constitutional Court of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus, 2009” in the National Register of legal acts of the Republic of Belarus, newspapers “Zvyazda” and “Narodnaya Gazeta” and 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
President
Republic of Belarus
House of Representatives
National Assembly
Republic of Belarus
Council of the Republic
National Assembly
Republic of Belarus
MESSAGE
OF CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
ON CONSTITUTIONAL LEGALITY
IN THE REPUBLIC OF BELARUS, 2009
The last 2009 was a year of the 15-th jubilee of the Constitution of the Republic of Belarus in which were enshrined the fundamentals of the constitutional order, the most important principles of society and the state, basic rights, freedoms and duties of the citizens, constitutional values and goals.
The Constitution provides a basis for further strengthening of Belarusian statehood and legal system, development of a state for the people, reaching of social consensus and socio-political stability in the country.
As a judicial review body the Constitutional Court of the Republic of Belarus examines the constitutionality of normative legal acts, functions with a view to ensure the supremacy of the Constitution to implement constitutional rules and principles in rule making and law enforcement, to establish constitutional legality.
While taking decisions and stating legal positions the Constitutional Court in the exercise of its conferred powers provides for protection of such fundamental constitutional values as a democratic, social state based on the rule of law, individual rights and freedoms, supremacy of law, justice and equality, parliamentarism, legal economy. It also keeps their actual constitutional and legal balance.
I
On the basis of the Constitution and the Decree of 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” the Constitutional Court exercises the obligatory preliminary constitutional review of all the laws adopted by the National Assembly of the Republic of Belarus before their signature by the President of the Republic of Belarus. What speaks for an emerging role of constitutional justice in the achievement of the supremacy of the Constitution, creation of legislative mechanisms to exercise and protect constitutional rights and freedoms of the citizens as well as to ensure guarantees thereof. The obligatory preliminary review of constitutionality of laws results in revealing the constitutional legal meaning of normative provisions by the Constitutional Court and thereby aims to prevent the violation of constitutionality in law making and to eliminate probable negative consequences of law enforcement in future when laws are not in conflict with the Constitution but they have certain defects in approaches which may be corrected in practice in light of the Constitutional Court positions.
In 2009 in the exercise of the obligatory preliminary review of constitutionality of laws the Constitutional Court examined 104 laws including 44 laws on the ratification of international treaties of the Republic of Belarus.
In the Constitutional Court decisions it was noted that adopted laws were developing the guidelines and rules of the Constitution which draw up objectives and a substantial aim to be attained by legislative regulation of most important social relations. Those laws enshrined the mechanism for the exercise of constitutional rights and freedoms of the citizens, guarantees for everyone’s equality before the law as well as admissibility of rights’ and freedoms’ restrictions if only provided by law.
In its decisions based on the results of the obligatory preliminary constitutional review of laws the Constitutional Court proceeded from the assessment of the revealed constitutional legal meaning of law provisions and stated its legal positions. They were laid down in pursuance of constitutional provisions in order to ensure the supremacy of the Constitution and they promoted better understanding of the meaning of normative content of law articles with respect to the balance of constitutional values enshrined therein and establishment of both system links and mutual dependence of legal rules. In its legal positions the Constitutional Court concluded not only about the implementation and development of constitutional rules and principles in the examined laws, but about legal gaps left, conflicts of legal rules and their inherent inconsistency as well, that may translate into both ambiguous comprehension and practical application of legal provisions.
The Constitutional Court exercised its powers of the obligatory preliminary review of constitutionality of laws adopted by the Parliament without getting involved in law making.
In the exercise of obligatory preliminary review the Constitutional Court examined the constitutionality of laws and applied such constitutionality criteria as conformity of provisions of law to the rules and principles of the Constitution, universally acknowledged principles of international law; commensurability of restrictions imposed by law on individual rights and freedoms to other constitutionally protected values and goals as well as respect for their limits; legal certainty, which embodies clarity, accuracy, consistency, logical coherence of provisions of law and opportunities for their future uniform application in practice.
1. In a number of decisions taken after the review of constitutionality of laws the Constitutional Court offered positive legal positions which either stated those provisions of laws under examination which were aimed at enshrinement and further development of constitutional rules and principles or concluded that legislative regulation had provided for due guarantees and protection of rights and freedoms of the citizens as well as rights and legitimate interest of organisations.
The positive legal position on the conformity of provisions of law to the Constitution was laid down in the Constitutional Court decision of June 26, 2009 “On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Laws of the Republic of Belarus on Labour Protection” to the Constitution of the Republic of Belarus”. According to the constitutional principle of mutual responsibility the Constitutional Court explained that not only the state, all its bodies and officials should behave according to law and in respect of that principle, but other legal entities as well inclusive of individuals. In the mentioned decision it was noted that provided rights of the citizens to healthy and safe working conditions and to health care do not free them from corresponding duties’ performance. An optimum and well-balanced combining of rights and duties is in compliance with constitutional provisions on the citizen’s responsibility towards the state to stand to the duties imposed by the Constitution and to the responsibility of the state towards the citizen to create conditions for free and dignified development of his identity (Article 2), on the duty of everyone in the territory of the Republic of Belarus to abide by its Constitution and laws (Article 52) and on that no one shall be compelled to discharge duties that are not specified in laws (Article 58).
When analysing the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Laws of the Republic of Belarus on Holding Elections and Referenda and on the Law “On Central Commission for Elections and National Referenda of the Republic of Belarus” to have lost its force” (decision of December 24, 2009) the Constitutional Court emphasised provisions on extended participation of political parties and public associations representatives in electoral commissions. In the Constitutional Court opinion those rules will promote both democratisation of the procedure for preparing and holding elections and referenda and better implementation of the first part of Article 5 of the Constitution under which political parties and other public associations acting within the framework of the Constitution shall contribute towards ascertaining and expressing the political will of the citizens and participate in elections. In the mentioned decision of the Constitutional Court it was also noted that some provisions of that Law aim at the development of constitutional provisions of Article 70 that stipulates terms and procedures for establishing the electoral funds of presidential candidates and candidates for deputy of the House of Representatives of the National Assembly of the Republic of Belarus.
On December 28, 2009 the Constitutional Court took a decision after having reviewed the constitutionality of the Law of the Republic of Belarus “On Local Government and Self-Government” where it emphasised the implementation of Articles 3, 37, 60, 117, 118, 120-123 of the Constitution in the examined Law. So is developed in those provisions of the Law the rule of Article 117 of the Constitution under which the citizens shall exercise local government and self-government through local councils of deputies, executive and administrative bodies, bodies of public territorial self-government, local referenda, assemblies and other forms of direct participation in state and public affairs. The provisions of the Law refine the concepts and principles of local government, self-government and direct participation of the citizens in local decision-making. The requirements of Article 120 of the Constitution are met by the provisions conferring on local councils of deputies, executive and administrative bodies appropriate powers and guarantees for securing the electorate’s rights, local decision-making in the interests of the state and local population.
At the same time in a number of decisions the Constitutional Court had to state its legal positions with a view to provide for better understanding of the constitutional legal meaning of particular normative provisions of laws and for prevention of their misuse.
So did the Constitutional Court in its decision of December 28, 2009 “On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Laws of the Republic of Belarus on Administrative Procedures” to the Constitution of the Republic of Belarus”. The Law was generally deemed to be in line with the Constitution. Yet at the same time was expressed the legal position of the Constitutional Court that aimed at clarifying the alterations made by that Law on the procedure for appeal of administrative decisions. The legal position of the Court was stated in order to ensure unambiguous comprehension and practical application of those alterations as well as the exercise of constitutionally protected rights of the citizens and organisations. Again and again standing for the value of the ensured constitutional right of access to justice the Constitutional Court noted that by virtue of a direct effect of Article 60 of the Constitution everyone shall be guaranteed protection of rights by a competent, independent and impartial court of law. Therefore the appeal against a decision of a body before the higher state body, specified in alterations to the Law of the Republic of Belarus “On Securities and Stock Exchanges”, does not preclude the individual right to appeal to a court in case of his/her disagreement with the passed decision.
In summary, while stating its positive legal positions in the decisions which were adopted in the exercise of the obligatory preliminary review of constitutionality of laws, the Constitutional Court confirms the realisation of constitutional values therein. Those statements on constitutional rules and principles to have been observed and several legal positions of the Court on approaches to the observance of normative provisions of laws promote the supremacy of the Constitution, establish the rules and principles thereof in law making and law enforcement, protect rights and freedoms of the citizens, foster constitutional mentality.
2. While reviewing the constitutionality of laws the Constitutional Court considers whether the restrictions of rights and freedoms of the citizens established by law meet the criteria of commensurability. It means whether a law satisfies the proportionality principle which derives from the constitutional provisions of Article 23 and implies balancing human rights and freedoms as well as rights and legitimate interests of organisations to be protected against state and public interests when legal restrictions are to be imposed. Such restrictions should answer a purpose of real social significance and value that is to be achieved with the minimum of them. At the same time the court finds out whether the law is in accordance with constitutional provisions of Article 7 (the principle of supremacy of law), Article 8 (the supremacy of the universally acknowledged principles of international law) and Article 22 (everyone’s equality before the law).
Having examined the constitutionality of the Law of the Republic of Belarus “On State Protection” (decision of May 4, 2009) the Constitutional Court considered certain powers of a state protection body the exercise of which may involve human rights and freedoms’ restrictions. The court applied the proportionality principle and came to a conclusion that the rules of law under which a state protection body is vested in these powers are in line with part one of Article 23 of the Constitution because they provide for restrictive measures which are also adequate and commensurable to constitutionally protected values.
When revealing the constitutional legal meaning of Article 3 of the Law of the Republic of Belarus “On Legal Status of Foreign Citizens and Stateless Persons in the Republic of Belarus” in the Constitutional Court decision of December 24, 2009 it was noted that under the Constitution foreign citizens and stateless persons in the territory of Belarus shall enjoy rights and liberties and execute duties on equal terms with the citizens of the Republic of Belarus. In accordance with the Constitution, laws and other legislative acts develop rights, freedoms, duties of foreign citizens and stateless persons, establish their facilities, privileges, principles, forms and methods for the legal regulation of their rights’ and freedoms’ exercise as well as their duties’ performance. They also determine state bodies’ competence to regulate the legal status of the mentioned persons. The procedures for exercising rights, freedoms, facilities and privileges and for performing duties by foreign citizens and stateless persons as well as the procedures for exercising the competence to regulate the legal status of the mentioned persons by state bodies may be established in bylaw acts. The restrictions of rights and freedoms of foreign citizens and stateless persons to be imposed in bylaw acts are inadmissible.
Proceeding from the provisions of Articles, 25, 29 and 56 of the Constitution, in its decision of December 23, 2009 the Constitutional Court considered the provisions of the Law of the Republic of Belarus “On Entry into Force of the Special Part of the Tax Code of the Republic of Belarus, Making Alterations and Addenda to the General Part of the Tax Code of the Republic of Belarus and on Invalidating Some Legislative Acts of the Republic of Belarus and their Particular Provisions on Taxation”. It was pointed by the court that the examined rules of law embody the duly performed actions either aimed at ensuring the access of tax officials to the premises or other legal property of an individual in spite of or against his/her will or at personal search of tax and dues (fees) payers.
In the Constitutional Court opinion questions of admissible and limited restrictions on individual rights and freedoms are of current concern primarily in their practical respect with legislative approaches to solve them on the basis of the proportionality.
In accordance with the Constitution the restriction of personal rights and liberties shall be permitted only in the instances specified in law, in the interest of national security, public order, the protection of the morals and health of the population as well as rights and liberties of other persons (Article 23). Whatever they were imposed for legal restrictions should base on the proportionality principle and keep a due balance of interests of the citizens and the state. Restrictions on constitutional rights should be legally admissible, socially justified; they should meet the justice requirements and be adequate, commensurable and necessary to protect other constitutional values. In the instances where constitutional rules permit the legislator to impose restrictions on rights and freedoms they should not falsify the essence of constitutional rights and freedoms.
In view of its legal positions which have been stated in light of the revealed constitutional legal meaning of provisions of law the Constitutional Court either determines the restrictions on individual rights and freedoms to be founded because of their conformity to the Constitution or deems laws (their particular provisions) to be contrary to it. Being the unique specialised body to deal with constitutional review in the country the Constitutional Court aims at safeguarding the supremacy of the Constitution, preventing both unfounded restrictions on individual rights and freedoms and their unlimited application in practice.
3. One of the constitutionality criteria to be used in the exercise of the obligatory preliminary constitutional review of laws is the principle of legal certainty deriving from the constitutional supremacy of law (Article 7 of the Constitution). To adhere to this principle is of vital importance when legal liability is instituted, legal relations concerning rights and freedoms issues are regulated and their exercise is guaranteed. The Constitutional Court has repeatedly emphasised the need to arrive at clarity and unambiguity in normative legal acts as well as accuracy and consistency in legal regulation of social relations in order to ensure uniform comprehension and practical application of provisions of law in future.
The positive legal position was laid down in the Constitutional Court decision of October 29, 2009 on the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On State Registration of Immovable, on Rights to Immovable and Transactions therewith”. It was pointed out therein that as to the terminology used in the provisions of the examined Law it was well-grounded and met the requirements of consistency and certainty of legal regulation, was able to ensure the uniform application of legal rules.
In pursuance of the principle of legal certainty the Constitutional Court in its decision on the constitutionality of 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” directed its attention to the fact that the unlawfulness of an action in blanket rules of administrative offence is featured by the following. In general the unlawfulness is set by the disposition of a relevant article of the Special Part of the Code of Administrative Offence in which the offence (breach) of the order or rules of certain activities is prohibited under the threat of legal administrative sanctions, while specific actions that constitute one of the elements of the objective side of the administrative offence body, are detailed in other acts of legislation, establishing the order or rules of such activities. With regard to these rules, the action is unlawful and involves the application of administrative liability measures in the presence of both conditions. But to exclude the unlawfulness of an action and, therefore, the administrative liability, the lack of at least one of the foregoing elements is enough: a provision of the CAO or corresponding regulations of an act of legislation. For that matter the Constitutional Court pointed the legal certainty to have been violated by the examined Law that resulted in inconsistency of legal rules of both General and Special Parts of the Criminal Code of the Republic of Belarus.
The observance of the legal certainty principle imposes on acts of legislation the need to be timely brought in conformity with later acts or these ones establishing state policies and providing for complex regulation of corresponding relations.
Pointing to the well founded alterations and addenda to the Law of the Republic of Belarus “On Transport Activities Bases” in its decision of October 29, 2009 the Constitutional Court drew attention of a legislator to the importance of timely bringing prior legislative acts in conformity with later acts with a view to optimise legal regulation. It expressed the opinion that this requirement being met precludes overlapping and discrepancy between provisions of laws thus prevents from ambiguous law enforcement practice.
Despite the rules which do not follow the legal certainty principle to the full extent that had many times been noted by the Constitutional Court in its decisions, the laws containing such rules were not found unconstitutional for the reason because the revealed deficiency in legal regulation do not concern basic approaches to legislative regulation and may be corrected in practice in view of the legal positions of the Constitutional Court.
4. The Constitutional Court recognised all the laws on ratification of international treaties of the Republic of Belarus that were examined in the exercise of obligatory preliminary constitutional review to be conforming to the Constitution. As to the form of the laws or content of the rules stipulated therein in view of separation of powers between state bodies and procedures for their adoption and signature the above laws are in line with constitutional provisions of Articles 97, 98 and 100.
In summary, in the exercise of obligatory preliminary constitutional review the Constitutional Court states its legal position thereby determines the conformity of the provisions of laws to the Constitution, reveals the constitutional legal meaning of legal rules or finds gaps and collisions in legal regulation. In its legal positions the Constitutional Court offers its interpretation of constitutional rules and principles and universally acknowledged principles of international law as well as clarifies the constitutional legal meaning of provisions of laws, takes approaches to the solution of constitutional legal issues and provides legal bases for final conclusions of the Constitutional Court on the constitutionality of laws.
II
In accordance with Article 116 of the Constitution the Constitutional Court shall give conclusions on the constitutionality of normative legal acts in the exercise of subsequent constitutional review when the motions are filed by one of the subjects specified in part four of that Article – the President of the Republic of Belarus, the House of Representatives, the Council of the Republic of the National Assembly of the Republic of Belarus, the Supreme Court of the Republic of Belarus, the Supreme Economic Court of the Republic of Belarus, the Council of Ministers of the Republic of Belarus.
Those motions of the authorised subjects do not only entitle the Constitutional Court to perform its constitutional functions of review of normative legal acts, but under part two of Article 59 of the Constitution they represent a duty of the specified state bodies and officials to some extent.
Over a period of 15 years since its foundation the Constitutional Court has given 73 conclusions on the constitutionality of normative legal acts. In 47 of which normative legal acts or their particular provisions have been found nonconforming to the Constitution and acts of higher legal force. The Constitutional Court decisions advantage the legal system of the Republic of Belarus. The establishment of either the constitutionality or nonconformity to the Constitution of a normative legal act as well as stated legal positions of the Constitutional Court on the need to improve acts of legislation and law enforcement practice promote the further legislative progress and the development of the rule-of-law state. But in recent years, what had repeatedly been emphasised by the Constitutional Court, the activity of the bodies which are entitled by Article 116 of the Constitution to forward motions to the Constitutional Court to review the constitutionality of a normative legal act has been slowed down (the last motion was filed to the Constitutional Court in 2007).
The abovementioned motions shortage may be supplemented by the exercise of the right granted to the individuals and organisations by part three of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges. Under this right the individuals and organisations may apply in order to initiate constitutional review of normative legal acts to those bodies and officials who are entitled to forward motions on the matter to the Constitutional Court. So they apply to the court indirectly. The individuals currently do not have the right to file motions to review the constitutionality of a normative legal act directly to the Constitutional Court i.e. the right to constitutional complaint. The initiation of such review with entitled bodies and officials represents one of the ways Article 60 of the Constitution may be exercised and judicial protection of everyone’s rights and interests may be ensured. The Constitutional Court has subsequently maintained a position on the need to faithfully execute the provisions of that constitutional article with a view to ensure everyone’s access to justice inclusive of constitutional one.
In 2009 the entitled bodies were filed with more than 100 applications of individuals and organisations who requested to initiate constitutional review of normative legal acts in the Constitutional Court. It was alleged therein that certain provisions of normative legal acts did not conform to the Constitution and therefore might be examined in the Constitutional Court.
On this occasion values highly a clear, stipulated in law procedure for the entitled subjects who are filed with applications of individuals and organisations containing the initiative to review the constitutionality of a normative legal act. Accordingly in the Constitutional Court decisions of March 26, 2009 the lack of legal regulation for the specified procedure was underlined, and the Council of Ministers, the House of Representatives and the Council of the Republic of the National Assembly were suggested to make due alterations and addenda to their Rules of Procedure with a view to establish the procedure for taking decisions to support or refuse such applications.
In view of the Constitutional Court legal position by Resolution of August 26, 2009 No. 1112 the Rules of Procedure of the Council of Ministers were supplemented by article 81 “Council of Ministers Procedure of considering issues concerning motions to the Constitutional Court”.
An efficient mechanism providing individuals and organisations, who initiate constitutional review of the act with the entitled bodies and officials, with that procedure of consideration will promote the proper exercise of individuals and organisations’ right to indirect access to constitutional justice as well as their real participation in constitutional process. All that will contribute towards constitutional rights and freedoms protection and strengthening of constitutional legality.
III
In pursuance of part one of Article 116 of the Constitution and according to part eight of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court has the right to submit proposals on the need either to make alterations and (or) addenda to acts of legislation or to issue new normative legal acts to the President of the Republic of Belarus, the Houses of the National Assembly, the Council of Ministers, other state bodies within their powers.
The Constitutional Court is charged to ensure the supremacy of the Constitution, a direct force thereof in the territory of the Republic of Belarus, the conformity of normative legal acts of state bodies to the Constitution, to establish constitutional legality in rule making and law enforcement. In view of those tasks of the Constitutional Court its decisions taken within its powers should aim at the improvement of legislation, elimination of the revealed gaps and conflicts of acts of legislation.
In 2009 the Constitutional Court took 10 decisions having analysed some legal problems of vital importance for the constitutional rules and principles implementation. Some of those problems were pointed in applications of individuals and organisations.
The total amount of applications to the Constitutional Court in 2009 comes up to 1274, of which 1217 are individual (53 of them are collective ones signed by 5320 persons) and 51 come from organisations. The applications of individuals and organisations are an informational source of state bodies activities in following constitutional rules, protecting individual rights and freedoms, rights and legitimate interests of organisations. They also enable the assessment of efficiency of public relations legal regulation as well as the conclusions on the degree of legal safety of different categories of people.
For example the decision of the Constitutional Court of February 18, 2009 was taken in pursuance of individual applications and aimed to implement the constitutional principle of everyone’s equality before the law. The Constitutional Court concluded therein that by the Regulations on repaying state investments on the training of a worker (an officer), a specialist to the national and (or) local budget, approved by the Resolution of the Council of Ministers of September 23, 2006 No. 1255 were established unequal grounds for relieving young specialists who had got vocation-technical or secondary special education in the Republic of Belarus and had been enrolled to educational institutions of the Russian Federation for full-time education of a higher level from repaying state investment on their training as provided by part fourteen of Article 10 of the Law of the Republic of Belarus “On Education”.
According to the specified Regulations young specialists who had been enrolled to educational institutions of the Republic of Belarus for full-time education of a higher level, were relieved from repaying state investment on their training while the same category of young specialists in institutions of the Russian Federation did not exercise the equal right.
The Constitutional Court found that whereas the legislation provides for the need to ensure the access and equal rights for the individuals to education, inclusive of a higher one, these rights must be asserted while granting guarantees of other rights and duties protection in education. As a result the Council of Ministers was proposed to clarify in the established procedure relevant provisions of the Regulations on repaying state investments on the training of a worker (an officer), a specialist to the national and (or) local budget.
Pursuant to the principle of legal certainty in its decision of March 5, 2009 the Constitutional Court noted an ambiguous comprehension and application of legal rules on the payment of dismissal benefits and minimum compensation for deterioration of the employee’s legal situation in the case of cancellation of the contract due to nonfulfillment or improper fulfillment of its terms through employer's fault. In fact it deprived employees the dismissal benefits provided by part three of Article 41 of the Labour Code of the Republic of Belarus. In the Constitutional Court opinion the instances when the dismissal benefit is not provided should be determined only at a law level. Therefore the Constitutional Court recognised as necessary to make alterations and addenda to part three of Article 41 and part three of Article 48 of the Labour Code and proposed to the Council of Ministers to submit in the established procedure a relevant draft law to the House of Representatives of the National Assembly.
The inadmissibility of restrictions of the constitutional right to work guarantees was pointed by the Constitutional Court in its decision of July 17, 2009. It was underlined therein that facts of that the employers had included the terms and conditions on age and place of residence of an employee as well as other terms which do not regard business qualities in their job (vacancies) offers make backgrounds for violation of individual constitutional rights enshrined in Articles 30, 32 and 41 of the Constitution. The Constitutional Court deemed that the omission of such conditions as age and residence in the discriminatory conditions list established by labour legislation as well as a closed composition of that list considerably restricts guarantees of the exercise of the constitutional right to work. So the Council of Ministers was proposed to prepare a draft law on making relevant addenda to the Labour Code and the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus”.
In the Constitutional Court decision of December 16, 2009 it was emphasised that there was a conflict between rules of part two of Article 16, part five of Article 17 of the Law of the Republic of Belarus “On Combating Corruption” and point 5 of Article 47 of the Labour Code regarding the termination of the employment agreement with a state official who has not signed or has violated its written commitment to observe the established limitations. With a view to eliminate this conflict and ensure uniform comprehension and application of legislative rules the Constitutional Court made a proposal to the Council of Ministers to prepare a draft law on introducing relevant alterations to the Labour Code.
The improvement of practice in the application of law provisions as well as the prevention and elimination of violations of legislation were focused on in other Constitutional Court decisions.
While assessing the state of constitutional legality in rule making and law enforcement the Constitutional Court notes that actual legislation quality requirements are rising. As legislation provides for necessary legal stability and creates legal conditions for the development of different spheres of social life. Therefore the Constitutional Court points out that the exercise of rights, freedoms and legitimate interests of individuals and organisations, their full protection by a court may be true, provided that all the state bodies, other organisations, officials and individuals faithfully execute the rules and principles enshrined in the Constitution.
IV
The execution of the Constitutional Court decisions turns to be an essential criterion of constitutional legality assessment, an important feature of constitutional mentality of officials, one of the ways to ensure legal stability and order.
The Constitutional Court notes that of late the state bodies of the Republic of Belarus have consistently executed the legal positions of the Constitutional Court decisions as well as its proposals to improve legislation and law enforcement practice in normative legal acts.
During 2009 there were put into practice the legal positions and proposals to improve legislation offered in 22 decisions of the Constitutional Court.
In respect of the Constitutional Court decision of May, 2005 the rules of the Decree of the President of the Republic of Belarus of April 29, 1999 No.21 “On Certain Measures to Adjust Retirement Insurance of the Citizens Who Suffered from the Chernobyl Nuclear Power Plant Accident” (with alterations and addenda introduced by Decree of December 18, 2006 No.19) and the Law of the Republic of Belarus of January 6, 2009 “On Social Security of Citizens Who Suffered from Chernobyl NPP Accident and Other Nuclear Accidents” confirmed a unified approach to the establishment of casual relation of injuries or illnesses, that had involved the loss or deprivation of occupational ability, disability or death, with Chernobyl accident or other nuclear accidents. This approach concerns breadwinners and other persons.
The Edict of the President of the Republic of Belarus of November 16, 2009 No. 543 “On Making Alterations and Addenda to the Edict of the President of the Republic of Belarus of November 29, 2005 No.565” pursued to the Constitutional Court proposal from its decision of October 21, 2008. That decision resulted from the consideration of the rule of point 67 of the Regulations “On registration of citizens who need housing improvement, on provision with housing out of the state housing funds”, approved by the Edict of the President of November 29, 2005 No.565. The rule envisages that in case of death of a social housing tenant there shall be concluded a permanent lease agreement for social housing out of the state housing funds with one of his/her family members. With a view to implement the constitutional principle of social justice the specified rule is applied to ablebodied family members of a social housing tenant of majority age provided that the tenant died after the Presidential Edict No.565 came into force.
In order to secure both the guarantees for the individual constitutional right to work and the entireness of legal regulation in the labour sphere the Law of the Republic of Belarus of December 28, 2009 “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus” put into effect the Constitutional Court decision of July 17, 2009, namely made addenda to articles 10 and 21 of the Law “On Employment of the Population of the Republic of Belarus”. Those addenda aimed at preventing an employer to establish age and residence conditions in job offers and at stipulating an open list of discriminatory conditions at a law level.
Based on the Constitutional Court decision of April 10, 2008 the Law of the Republic of Belarus of December 28, 2009 “On Making Alterations and Addenda to Some Codes of the Republic of Belarus” introduced an addition to article 520 of the Civil Procedural Code of the Republic of Belarus. It included craft activity income into the incomes equal to salary.
The provisions of the Law of the Republic of Belarus of December 28, 2009 “On Making Alterations and Addenda to Some Codes of the Republic of Belarus on Criminal and Administrative Liability” included the Constitutional Court proposals from the decisions of July 12, 2008, December 3, 2008 and December 29, 2008. So with a view to impose an administrative penalty under article 12.7 of the Code of Administrative Offences of the Republic of Belarus this Code was added by a provision that determined the notion of “illegal entrepreneurial activity income”. In point 4 of part one of article 7.6 of the Code was also established a closed list of administrative offences involving longer terms of administrative penalties imposition – they come up to three years from the date of commission of an administrative offence and six months from its date of revealing. As to article 1.4 of the Code of Execution Procedure of Administrative Offences of the Republic of Belarus, it was added by the definition of the notion “a procedural term” with a specified way to calculate it.
The Law of the Republic of Belarus of December 29, 2009 “On the Republican Budget for 2010” took into account the legal position of the Constitutional Court decision of October 31, 2008 “On the conformity of the Law of the Republic of Belarus “On the Republican Budget for 2009” to the Constitution of the Republic of Belarus”. The position aimed at bringing the rules of the Law of the Republic of Belarus on the republican budget for the coming year into compliance with the Budget Code of the Republic of Belarus as to powers vested in the Ministry of Finance of the Republic of Belarus to make alterations in particular republican budget key figures during its performance.
Based on the provisions of Article 121 of the Constitution in several decisions of the Constitutional Court was stated a legal position on the need to stipulate essential taxation elements inclusive of rates’ limits for every category of local taxes and dues at a law level. That legal position was applied in the Special Part of the Tax Code of the Republic of Belarus in which rates’ limits were fixed for every local tax and due.
The Constitutional Court decision of February 18, 2009 “On equal conditions for relief from repayment of state investment on a young specialist’s training” was reflected in the Council of Ministers Resolution of June 1, 2009 No.708 “On making alterations and addenda to some Resolutions of the Council of Ministers of the Republic of Belarus”. According to alterations introduced in the Resolution on repayment to the republican and (or) local budgets of state investment on a worker’ (employee’s), specialist’s training, which had been approved by the Council of Ministers Resolution of September 23, 2006 No.1255, young specialists who have got vocation-technical or secondary special education and have been enrolled to educational institutions of either the Republic of Belarus or the Russian Federation for full-time education of a higher level shall be relieved from repaying to the republican and (or) local budgets of state investment on their training.
In its decision of February 9, 2006 the Constitutional Court emphasised the restriction of rights of persons applying for a realtor certification due to their profit-motivated offences to have been committed and for which the conviction has been overturned and discharged in the procedure specified in law. In the Resolution of the Ministry of Justice of the Republic of Belarus of January 6, 2009 No.1 “On some issues of licensing legal services rendering” the above restriction was eliminated.
In order to execute the Constitutional Court decision of August 28, 2007 the Ministry of Defence issued a Resolution of March 31, 2009 No.16 “On Approving the instructions for calculating expenditures to education of servicemen of the Armed Forces of the Republic of Belarus and the Transport Corps of the Republic of Belarus”. That resolution regulated the procedure to size up recovered training costs in educational establishments which carry out officer staff training in order to timely repay to the budget investments on their training.
The Resolutions of the Ministry of Labour and Social Security of the Republic of Belarus of April 24, 2009 No.53 and the Ministry of Justice of the Republic of Belarus of July 20, 2009 No.54 included the Constitutional Court legal positions stated in the decisions of November 6, 2008 and February 18, 2009 on terms of validity of powers of attorney to return cash assets from a personal bank deposit where a pension (benefit) is transferred. The provisions inconsistent with the rules of civil and banking legislation were excluded from the relevant normative legal acts.
Either were executed the Constitutional Court decisions with legal positions on ensuring equal rights for particular categories of citizens, defining legal regulation concerning deputies of the local councils of deputies etc.
With its overall favourable view on the execution of decisions the Constitutional Court emphasises the need to better and timely application by state bodies and officials of the Constitutional Court legal positions and proposals focused on legislation improvement, protection of individual rights and freedoms.
V
While assessing the constitutional legality in the Republic of Belarus in 2009 the Constitutional Court notes that it is under the influence of either quality and consistency of legislation, legality and equity of law enforcement, or constitutional mentality of officials as well as public legal consciousness.
Based on the results of obligatory preliminary review of the constitutionality of laws all the examined laws in their content were found to be in line with the Constitution. In its legal positions the Constitutional Court stated that in the last year laws were enshrined and developed relevant constitutional rules and principles as well as universally acknowledged principles of international law. Legislative regulation duly provides for the guarantees of the exercise and protection of individual rights and freedoms and of other constitutional values. The legal restrictions which were imposed at the legislative level and adhered to the principle of proportionality, secure a proper balance of the individual and state interests, commensurability to the constitutionally protected values and goals.
The law making level achieved on the basis of the Constitution results from the political and social stability in society and the state, interaction and co-operation of state authorities as well as of all the participants of law making process.
The quality of issued laws should be defined by their entirety, consistency, complexity of legislative regulation with due account for objective conditions of modern development. Gaps and conflicts of law deriving from the breach of the legal certainty principle involve not only ambiguous comprehension of laws (particular rules thereof), but their unlawful application as well. That discourages ensuring of the constitutional legality due level.
Pointing out certain defects in some laws the Constitutional Court offered its legal positions based on the revealed constitutional legal meaning of provisions of law, thereby directed state bodies and other organisations as well as officials and citizens to the constitutionally adjusted approach to law enforcement in compliance with constitutional requirements and the Constitutional Court positions.
The Parliament goes on issuing laws on fundamental regulation of public relations in particular spheres. In the Constitutional Court opinion, such a legislative approach was justified at a starting point of national legal system development when in the absence of legislative framework the legislator had to determine fundamental principles and trends of legal regulation. The present stage of development of society and the state should be provided with up-to-date laws that regulate most important public relations in a complete, clear and definite way, that contain definite mechanisms for the exercise of individual rights and freedoms. The laws should ensure either the solution of actual social and economic questions as well as the stability of social and state development, or the achievement of constitutional goals and the protection of fundamental constitutional values as well as further democratisation and humanisation of public relations. The priority of laws in legal regulation makes the essential constituent of a state ruled by law.
The well timed bringing of acts of legislation into compliance with new rules establishing new approaches to legal regulation of similar relations, complete and consistent exclusion from legislation of acts (rules) invalid in fact are necessary.
The stability of legislation is the most important task at the present stage. Most of the laws passed by the Parliament make alterations and addenda to the previous laws. In some cases those alterations and addenda do not concern the subject matter and are introduced owing to the terminology changes. According to the Constitutional Court the achievement of legislative regulation stability is the primary requirement for a sustainable development of society and the state at the present stage.
Moreover, the process of improving the legislation should be pursued in view of the need to better implement the constitutional principles and rules, to create additional legal mechanisms and legal procedures to properly ensure individual rights and freedoms and guarantees of their exercise, safeguard of other constitutionally protected values.
As to law enforcement it should also aim at the achievement of constitutional legality of a higher level. Access to justice, including a constitutional one does not derive from the statement of a formal guarantee of protecting everyone’s rights and freedoms by a competent, independent and impartial court in due time determined by law, but from the administration of justice in a strict accordance with the provisions of the Constitution, values and goals thereof. A real safeguard of the citizens’ right to judicial protection inclusive of indirect access to constitutional justice makes up a prerequisite to be met in order to provide firmer guarantees for individual constitutional rights and freedoms as well as rights and legitimate interests of organisations.
Both the Constitutional Court and all the state bodies and officials are obliged to enhance constitutional legality, secure constitutional values and goals protection through their development in legislation and implementation in practice.
The present Message was adopted at the session of the Constitutional Court of the Republic of Belarus on January 26, 2010.
Presiding Officer–
Petr P. Miklashevich
Chairman of the Constitutional Court
Republic of Belarus