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, O.G. Sergeeva, S.P. Chigrinov

on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, subpoint 1.1 of point 1 and point 3 of the 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 review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Criminal Procedure Code of the Republic of Belarus”.

Having heard the reporting judge T.V. Voronovich, having analysed the relevant provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Criminal Procedure Code of the Republic of Belarus” and other legislative acts of the Republic of Belarus, the Constitutional Court found the following.

The Law of the Republic of Belarus “On Making Alterations and Addenda to the Criminal Procedure Code of the Republic of Belarus” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on April 9, 2010, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 19, 2010 and submitted for signing by the President of the Republic of Belarus.

The Law makes alterations and addenda to the Criminal Procedure Code of the Republic of Belarus (hereinafter – the CPC) aimed to improve the provisions of the present Code: they specify the powers of agencies to deal with criminal cases, correct the rules on preliminary investigation of criminal cases and the procedure for calculating the time periods of inquiry and investigation, as well as the norms on fast track criminal proceedings.

While reviewing the constitutionality of the Law the Constitutional Court has to ensure the commensurability of constitutionally significant values and pursued goals, in respect of the provisions of Article 2 of the Constitution, according to which the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State.

1. In accordance with the alterations to the CPC the inquiry agency head shall have the right to confirm the order on removal from office of a suspected person (part five of article 38), and the public prosecutor shall sign this criminal procedure sanction to be applied (point 13 of part five of article 34). Similar powers to remove from office a suspected person are vested in the Minister of Internal Affairs of the Republic of Belarus, the Chairman of the Committee for State Security of the Republic of Belarus, Deputy Chairman of the State Supervisory Committee of the Republic of Belarus – director of Financial Investigation Department or in their acting persons (part five1 of article 38).

The effect of removal from office of a suspected person is beyond the scope of criminal procedure relations, it essentially restricts such individual constitutional rights and freedoms as right to work, honour, dignity and personal business standing. The absence of the suspect’s right to judicial appeal against this criminal procedure sanction impedes the access to justice and derogates from his/her right to free choice of legal remedy.

Pursuing to part one of Article 60 of the Constitution everyone shall be guaranteed protection of one's rights and liberties by a competent, independent and impartial court of law within time periods specified in law.

Article 8 of the Universal Declaration of Human Rights provides that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. And by virtue of point “a” of part three of article 2 of the International Covenant on Civil and Political Rights each State Party undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.

By virtue of the provisions of the Constitution and instruments of international law stated above the Constitutional Court believes that by the imposition of the criminal procedure sanction of a suspect’s removal from office this person should be enabled to appeal before the court with a view to protect his rights.

2. The tasks of the criminal procedure are to protect a personality, his/her rights and freedoms, interests of society and the state by way of fast and full-scale investigation of offences, socially dangerous acts by mentally incompetent persons, by exposure and criminal prosecution of guilty persons. The criminal procedure should also provide for adequate law enforcement in order to recompense every offender and prevent any not guilty person to be held criminally liable and condemned (part one of article 7 of the CPC).

Pursuing to these tasks a number of alterations have been made to the CPC: before initiation of a criminal case it is allowed to get specimen for the comparative study and take a dead body out of the burial place (exhumation) (part two of Article 173 of the CPC); if the accused person is on the wanted list, a criminal case agency is entitled to carry out an expertise without this person being notified of the relevant order (part four of article 227 of the CPC).

The cited provisions of the Law have imposed certain restrictions on the rights and legitimate interests of criminal case participants. At the same time according to part one of Article 23 of the Constitution 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.

The alterations made to the CPC are not contrary to the Constitution as aimed to protect social law and order. Therewith the Constitutional Court turns attention of law enforcement bodies to the fact that while performing the criminal procedure tasks they must observe the rules of the Constitution pursuing to the exercise of constitutional rights and freedoms of both an individual and a citizen.

3. The Law amends a number of articles of Chapter 47 of the CPC on fast track criminal proceedings: it has broadened the list of offence of not grave social danger, and less grave offence subject to fast track criminal proceedings; to gather data material to legal proceedings has been allowed before initiation of criminal case; it has been provided to extend fast track proceedings up to 15 days.

Pursuing to ensure the rights and legitimate interests of the individuals participating in criminal case the provisions of the Law specify the grounds owing to which the inquiry and preliminary investigation of the criminal cases, that either have been initiated in fast track proceedings or the fast track proceedings have already begun, shall be executed according to general rules, stipulated in the CPC (articles 456, 457).

In fast track criminal proceedings the law allows for exceptions from general rules of pretrial proceedings, which suppose the necessity to ensure adequate guarantees to prevent from the violation of constitutional rights and freedoms of both an individual and a citizen. On this basis the Constitutional Court emphasises that law enforcement practice should adhere to the rule of part two of Article 59 of the Constitution, according to which 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, in coordination with the provisions of part one of article 10 of the CPC, which bind the prosecuting agency to ensure the protection of the rights and freedoms of the persons participating in criminal proceedings. Otherwise would be violated either the procedural rights of participants in criminal proceedings or their constitutional rights.

The Constitutional Court believes that provided alterations and addenda to the CPC are not contrary to the Constitution. Therewith it turns attention of legislative and law enforcement bodies to the inadmissibility in a state ruled by law to decrease the level of criminal procedure guarantees as the essential requirement to observe the constitutional rights and freedoms of both an individual and a citizen.

The procedure of adoption of the Law conforms to the rules of the Constitution under which the drafts laws shall be considered by the House of Representatives and submitted for adoption by the Council of the Republic of the National Assembly (point 2 of part one of Article 97, point 1 of part one of Article 98 of the Constitution). So, the chambers of the National Assembly of the Republic of Belarus have acted within their competence provided by articles 97-100 of the Constitution.

In the Constitutional Court opinion, as to the content of the rules, the form of the act and the procedure of its adoption, the Law is not contrary to the Constitution.

Guided by parts one, seven of Article 116 of the Constitutions of the Republic of Belarus, parts eight, thirteen, 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 the 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”, the Constitutional Court

RULED:

1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to the Criminal Procedure Code of the Republic of Belarus” to be conforming to the Constitution of the Republic of Belarus.

2. The present decision shall entry into force since the date of its adoption.

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

Presiding Officer-

Chairman of the Constitutional Court

of the Republic of Belarus P.P.Miklashevich