DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

the 27 of May 2010 No. D-450/2010

On the exercise of the right to judicial appeal against applied sanctions by the convicted to arrest, confinement, life imprisonment, by the detainees and persons under administrative arrest

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

on the basis of part eight of Article 22 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 the National Assembly of the Republic of Belarus, 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 acts of legislation

with participation of:

the Supreme Court of the Republic of Belarus represented by A.A. Fedortsov, First Deputy Chairman of the Supreme Court of the Republic of Belarus;

the General Prosecutor’s Office of the Republic of Belarus represented by Y.I. Goroshko, Head of the Department supervising the lawfulness of executed criminal punishment of the General Prosecutor’s Office of the Republic of Belarus;

the Ministry of Internal Affairs of the Republic of Belarus represented by S.Y. Nikel, Head of the Office of supervising and executive activity of the Ministry of Internal Affairs of the Republic of Belarus, and V.S. Krasikov, Chief of staff of the Department of executed punishment of the Ministry of Internal Affairs of the Republic of Belarus

in court session considered the issue of the right to judicial appeal exercised:

by the convicted to arrest, confinement, life imprisonment, by the detainees against sanctions imposed by the administrative officers of penal institutions and confinement facilities, who are authorised to apply sanctions, for the breach of the established procedure of serving sentence and nonfulfillment of imposed duties;

by persons under administrative arrest against disciplinary sanctions, imposed by the officers of special institutions executing administrative sanctions in the form of administrative arrest for nonfulfillment of imposed duties.

Having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Criminal Executive Code (hereinafter – the CEC), Procedural Executive Code of the Republic of Belarus on Administrative Offences (hereinafter – the PECAO), the Civil Procedure Code of the Republic of Belarus (hereinafter – the CPC), the Law of the Republic of Belarus of June 16, 2003 “On the Procedure and Conditions of Detention in Custody” as well as of other normative legal acts of the Republic of Belarus, the Constitutional Court found the following.

1. According to the Constitution the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State (part one of Article 2); safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State (part one of Article 21); 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 (part one of Article 23).

Restriction of personal rights and freedoms may be particularly linked with enforcement of prescribed punishment under a court sentence, detention in custody and application of administrative sanctions in the form of administrative arrest.

2. Punishment is an enforceable measure of criminal-legal nature imposed under a court sentence on a person convicted for crime. Deprivation or restriction of rights and freedoms of a convict prescribed by law is its peculiar feature. Both the rights and duties of the convicts and their restriction are determined due to the procedure and conditions of serving sentence and other measures of criminal liability.

The main duties of the convicted to arrest, confinement, life imprisonment are specified in article 9 of the CEC, in the Rules of internal regulations of penal institutions, approved by the Resolution of the Ministry of Internal Affairs of the Republic of Belarus of October 20, 2000 No. 174. The breach of the established procedure for serving sentence may involve sanctions to be imposed on in accordance with part two of article 61, articles 112, 173 of the CEC inclusive of punitive reprimand, punitive confinement and others.

The duties of the detainees and sanctions for their nonfulfillment (caution, punitive reprimand, incarceration or solitary confinement jug) are prescribed by the Law “On the Procedure and Conditions of Detention in Custody”.

The administrative sanction in the form of administrative arrest involves keeping an individual isolated in places to be determined by the body authorised to execute administrative sanctions. Its term shall be not longer than 15 days (part one of article 7.7 of the Code of the Republic of Belarus on Administrative Offence).

According to article 18.4 of the PECAO persons under administrative arrest shall fulfill duties, established by legislation of the Republic of Belarus on administrative sanctions execution regarding the procedure and conditions of serving sentence as well as legitimate requirements of the administration of a special institution, which executes administrative sanctions in the form of administrative arrest. Moreover the duties of persons under administrative arrest are determined by the Rules of internal regulations of special institutions of bodies of internal affairs executing administrative sanctions in the form of administrative arrest, approved by the Resolution of the Ministry of Internal Affairs of the Republic of Belarus of August 8, 2007 No. 194.

Nonfulfillment of the imposed duties may involve disciplinary sanctions provided in article 18.10 of the PECAO: punitive reprimand, snap tidying up of premises and territory of the institution, incarceration or solitary confinement jug.

The application of sanctions to persons serving sentence may have substantial legal consequences when the release on parole of the convicts from serving sentence, substitution of unserved part of punishment by milder punishment as well as amnesty or pardon and other are being considered. Owing to that the strictly lawful application of sanctions to the mentioned persons gains of importance.

3. In accordance with the Constitution 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 (part three of Article 21).

Article 60 of the Constitution guarantees everyone’s protection of the rights and liberties by a competent, independent and impartial court of law within time periods specified in law.

According to article 8 of the Universal Declaration of Human Rights of December 10, 1948 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.

The International Covenant on Civil and Political Rights of December 16, 1966 enshrined the obligation of every state which is a party to it to ensure an effective remedy to any person whose rights or freedoms are violated, notwithstanding that the violation has been committed by persons acting in an official capacity (subpoint a of point 3 of article 2) and to develop the possibilities of judicial remedy (subpoint и ща point 3 of article 2).

In view of those provisions of the Constitution and international legal instruments to which the Republic of Belarus is a party the right to judicial appeal against applied sanctions by the convicted to arrest, confinement, life imprisonment (part three of article 61, part eleven of article 113, part seven of article 173 of the CEC), by the detainees (part five of article 34 of the Law “On Procedure and Conditions of Detention”) and persons under administrative arrest (part six of article 18.11 of the PECAO) is enshrined in special laws. It turns to be an important guarantee to protect the violated rights of this category of individuals, to provide a lawful execution of criminal punishment, administrative arrest and detention in custody.

4. On the basis of the Constitutional Court decisions of April 2, 2001 “On the right of imprisoned convicts to judicial appeal against penalties incurred to them”, of July 15, 2002 “On securing the constitutional right of imprisoned convicts to judicial appeal against penalties incurred to them”, of December 24, 2002 “On constitutional guarantees of the right of imprisoned convicts to judicial appeal against penalties incurred to them” the Law of the Republic of Belarus of January 4, 2003 “On Making Alterations and Addenda to Some Legislative Acts of the Republic of Belarus” provided the convicted to imprisonment with the right to judicial appeal against applied sanctions (part eleven of article 113 of the CEC). At the same time the procedure to examine such appeals in court has not been established yet by the legislator.

In its Message “On Constitutional Legality in the Republic of Belarus, 2009” the Constitutional Court pointed to that the observance of the principle of legal certainty deriving from the constitutional supremacy of law (Article 7 of the Constitution) is of vital importance when legal liability is instituted, legal relations concerning rights and freedoms issues are regulated and their exercise is guaranteed. As to legal gaps and conflicts due to infringement of the legal certainty may translate into both ambiguous comprehension of laws (their particular provisions) and their illegal enforcement what interferes with the ensuring of a due constitutional legality.

In view of the foregoing the Constitutional Court points to a gap in legal regulation of appeal proceeding initiated against applied sanctions not only by the convicted to confinement, but also by the convicted to arrest, life imprisonment, by the detainees and persons under administrative arrest that does not ensure the full exercise of the citizens’ constitutional right of access to justice.

5. In circumstances where the convicted, detainees and persons under administrative arrest are actually confined, they are subordinated to representatives of administration of institutions executing punishment or administrative sanction in the form of administrative arrest as well as of detention facilities as provided by the CEC, PECAO and other acts of legislation of the Republic of Belarus.

So, the officers of penal institutions and confinement facilities, specified in article 117 of the CEC and article 34 of the Law “On the Procedure and Conditions of Detention in Custody” are authorised to apply incentives and sanctions to the convicts. The similar powers to impose disciplinary sanctions on persons under administrative arrest are vested in representatives of the administration of a special institution executing administrative sanction in the form of administrative arrest (article 18.11 of the PECAO). Again, one of the main duties of the convicts, detainees and persons under administrative arrest is to fulfill legitimate requirements of the administration (part one of article 9 of the CEC, article 18.4 of the PECAO), be courteous to staff of the bodies and institutions executing punishment (part two of article 9 of the CEC).

In the Constitutional Court opinion, sanctions which are applied for the breach of the established regime to the convicted to arrest, confinement, life imprisonment, the detainees and persons under administrative arrest should be considered as measures of disciplinary liability. The special thing about which is that it results from administrative legal relations between actually confined persons and authorised officers ensuring the regime of service, administrative arrest or detention in custody.

6. The proceedings raised from administrative legal relations have been defined in article 29 of the CPC. Along with cases specified in article 335 of the CPC the legislator provides for proceedings in other cases resulting from administrative legal relations in instances prescribed by law.

In view of the foregoing, pursuant to Article 60 of the Constitution together with part three of article 61, part eleven of article 113, part seven of article 173 of the CEC, part five of article 34 of the Law “On the Procedure and Conditions of Detention in Custody”, part six of article 18.11 of the PECAO, which provide the convicted to arrest, confinement, life imprisonment, the detainees and persons under administrative arrest with the right to judicial appeal against imposed sanctions, the Constitutional Court deems it necessary to add to article 29 of the CPC certain rules regulating the procedure and peculiarities of appeal proceeding initiated by the specified categories in view of their legal situation.

In view of the foregoing, pursuing to part one 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 exercise everyone’s constitutional right to judicial appeal to recognise necessary to define in law the appeal proceeding initiated by the convicted to arrest, confinement, life imprisonment, by the detainees and persons under administrative arrest against applied disciplinary sanctions.

2. To propose to the Council of Ministers of the Republic of Belarus to make a relevant draft law on making due alterations and addenda to the Civil Procedure Code of the Republic of Belarus and submit it in 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