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

with the participation of:

the Committee of State Control of the Republic of Belarus represented by V.N. Gerasimov, head of the Main expert and legal Department;

the Ministry of Finance of the Republic of Belarus represented by I.Ch. Morozova, head of the Legal Department;

the Ministry of Economy of the Republic of Belarus represented by V.A. Hlabordova, head of the Legal Department of the Ministry of Economy;

the Ministry of Justice of the Republic of Belarus represented by A.V. Bileychik, First Deputy Minister of Justice,

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, houses 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

in court session considered the issue of the temporal effects of a normative legal act if the delegated powers to adopt (issue) it have been terminated.

The Constitutional Court was referred to by the Committee of State Control of the Republic of Belarus. It appealed that during the Committee's inspection it had established the violation of the Basic Regulations on the costing structure of production (works, services), approved by the Resolution of the Ministry of Economy of the Republic of Belarus, the Ministry of Finance of the Republic of Belarus, the Ministry of Labour and Social Protection of the Republic of Belarus of October 30, 2008 No. 210/161/151. The powers to adopt this act had been delegated to these bodies by the Resolution of the Council of Ministers of the Republic of Belarus of July 23, 2001 No. 1081 “On the costing structure of production (works, services)” (hereinafter – the Resolution No. 1081), and the Council of Ministers, in its turn, had been delegated the similar powers by the Edict of the President of the Republic of Belarus of February 5, 1997 No. 132 “On the extension of powers of the Council of Ministers of the Republic of Belarus” (hereinafter – the Edict No. 132).

In the appeal it was also stated that the Edict No. 132 had been declared to have lost force by the Edict of the President of the Republic of Belarus of September 23, 2010 No. 484 “On the declaration of the Edict of the President of the Republic of Belarus of February 5, 1997 No. 132 to have lost force”. Due to the fact that the empowered state bodies have lost the right to adopt the above mentioned Basic Regulations, the Committee of State Control, when establishing a violation in pricing caused by the failure to meet the costing requirements as provided in the Basic Regulations on the costing structure of production (works, services), faced a problem of whether imputing the said violation upon the relevant officials is lawful. In the Committee’s opinion the application of the administrative penalties in this case would be justified, since the Law of the Republic of Belarus “On Normative Legal Acts of the Republic of Belarus” does not provide for simultaneous abrogation or declaration of a normative legal act, issued under delegated powers, to have lost its force when the delegating act, by which the aforementioned powers had been granted, has been declared to have lost force.

Thus, the law-enforcement revealed uncertainty as to whether a normative legal act, issued by a state body under delegated powers, is in effect if these powers to adopt (issue) it have been terminated.

Having analysed the norms of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law “On Normative Legal Acts of the Republic of Belarus”, the Edict No. 132 and Resolution No. 1081 both declared to have lost force, other acts of legislation of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following.

1. In accordance with part one of Article 7 of the Constitution of the Republic of Belarus the Republic of Belarus shall be bound by the principle of supremacy of law. It follows from the constitutional and legal meaning of the rule that in rule-making practice the principle of legal certainty should be adhered, which requires clarity, accuracy, noncontradiction, logical consistency of legal provisions.

By virtue of article 5 of the Law “On Normative Legal Acts of the Republic of Belarus” normative legal acts shall be reduced to a unified system by their mutual harmonisation. In accordance with article 7 of this Law rule-making shall particularly follow the principles of constitutionality, conformity of the acts of inferior state bodies (officials) to the acts of the President and higher state bodies as well as of systematic and comprehensive legal regulation of social relations.

2. In accordance with article 55 of the Law “On Normative Legal Acts of the Republic of Belarus” a rule-making body (official) may delegate a part of its rule-making powers to other rule-making bodies (officials) if it does not contradict the Constitution and other legislative acts of the Republic of Belarus. A delegating normative legal act shall specify both the state body (official) to which the powers are granted and the time-limit of delegation as well as determine other terms, including those establishing the scope of delegated powers. When adopting (issuing) a normative legal act under delegated powers a state body (official) shall refer to the relevant delegating legal act.

According to point 5 of the Rules on preparation of draft normative legal acts, approved by the Edict of the President of the Republic of Belarus of August 11, 2003 No. 359 “On measures to improve the rule-making” the state bodies (organisations) and officials who do not have relevant powers in accordance with the Law “On Normative Legal Acts of the Republic of Belarus” shall not be permitted to adopt (issue) acts unless otherwise provided by legislative acts.

In point 35 of the said Rules it is stipulated that a rule-making body (official) shall delegate a part of its rule-making powers to other rule-making bodies (officials) if it does not contradict the Constitution and other legislative acts. In doing so the delegation of powers to adopt (issue) acts to another law-making body (official) of equal level shall not be permitted.

Thus, the legislation regulates the relations concerning the possibility of delegating powers to adopt (issue) a normative legal act by one rule-making body to any other similar bodies (officials).

3. The temporary effects of a normative legal act are particularly characterised by its loss of effect.

Legal approaches to issues relating to the loss of effect of a normative legal act are stipulated in the Law “On Normative Legal Acts of the Republic of Belarus”. In accordance with article 69 of the Law, a normative legal act (part thereof) shall cease to have effect in the following cases: expiration of a temporary act (part thereof), declaration of a normative legal act (part thereof) unconstitutional under the procedure prescribed by law, declaration of a legal act (part thereof) to have lost force, its abrogation in the cases provided by the Constitution and other legislative acts of the Republic of Belarus.

Article 58 of the Law “On Normative Legal Acts of the Republic of Belarus” defined the procedure for declaring a normative legal act to have lost its force. Thus, in view of the adoption (issuance) of a normative legal act, all the acts of the same or lesser legal force or parts thereof shall be declared to have lost force if they either contradict normative legal provisions of a new act or have been absorbed by them or have actually lost their importance.

In this case, according to article 59 of the said Law, a list of normative legal acts (their structural elements) to be declared to have lost force owing to the adoption (issuance) of a normative legal act, shall be contained in its final provisions or annex to it. Lists of legal acts to be declared to have lost force, may be drafted separately and submitted along with the draft basic act if there is a considerable number of such normative legal acts. After the adoption (issuance) of a normative legal act the draft list of acts to be declared to have lost force shall be permitted as an exception if their preparation requires a long time. In this case the instruction to develop relevant draft lists shall point out which state bodies (organisations) are entrusted with their preparation and determine the deadline for submission of these drafts to a rule-making body (official).

The above normative provisions of article 59 of the Law “On Normative Legal Acts of the Republic of Belarus” in view of their legal meaning, determine the mechanism of the declaration of normative legal acts to have lost force by the same state body that has previously adopted (issued) them. As to the loss of effect of the acts by way of declaration of the normative legal acts, adopted (issued) under delegated powers, to have lost their force, the relevant procedure has not been provided in the Law “On Normative Legal Acts of the Republic of Belarus”, while both the right and procedure for delegating such powers have been regulated. This Law neither defines the requirements for setting the time (moment) for declaring a normative legal act to have lost its force. In the opinion of the Constitutional court, the mentioned gaps in the Law “On Normative Legal Acts of the Republic of Belarus” involve uncertainty in legal regulation and enforcement.

4. The rule-making practice points out that when declaring an act, delegating the powers to adopt (issue) any normative legal act, to have lost its force, the rule-making body instructs relevant state bodies to bring their normative legal acts in conformity with the adopted (issued) act on termination of delegated powers. In doing so this rule-making body follows the requirements of article 58 of the Law “On Normative Legal Acts of the Republic of Belarus” on the need (in view of the adoption (issuance) of a normative legal act) to declare acts of the same or lesser force to have lost force if they either contradict legal provisions included in a new normative act or have been absorbed by them or have actually lost their importance.

In view of the foregoing the Constitutional Court finds that if the delegated powers to adopt (issue) a normative legal act are terminated, based on the content of the rules of article 10 of the Law “On Normative Legal Acts of the Republic of Belarus” on the validity of normative legal acts, the moment (time) for declaring a normative legal act, adopted under delegated powers, to have lost its force shall usually coincide with the moment (time) of the termination of delegated powers. Such a procedure would eliminate the ambiguity and arising relevant dispute concerning the application of normative legal acts.

Along with the foregoing in the presence of certain objective circumstances it is necessary to set in the act terminating the delegated powers the time-limit upon expiration of which the act will come into force as well as the instructions for state bodies to ensure in due time harmonisation of its normative legal acts with the adopted one. In this case, the draft normative legal acts on declaration to have lost force, alterations and (or) addenda or drafts of new acts shall be developed and adopted by authorised state bodies in order of their coming into force from the date of the entry into force of a new normative legal act.

In the Constitutional Court opinion, due to the adoption (issuance) of a normative legal act terminating the delegated powers of a rule-making body to adopt (issue) normative legal acts, the effects of the act to be declared to have lost force are also possible till adopting another normative legal act by another state body (official), or its effects within a certain time, if the adopted (issued) act provides for the procedure of the loss of effect of the act to be declared to have lost force. In legal contemplation such an approach is justified and substantiated, since it would ensure certainty, clarity and precision of legal provisions, their consistency in the system of legal regulation. It is important to set a reasonable time-limit of validity of such an act, taking into account the fact that the legal regulation of social relations has been changed with the termination of delegated powers.

The Constitutional Court expresses opinion to the fact that the precise setting of the scope of temporary effects of normative legal acts is required by the legal regulation. This is because it provides for a normative legal act, which currently regulates specific social relations; it also allows to ensure the efficiency of legal provisions and to realise the objectives of legal regulation. The scope of temporary effects of a normative legal act is linked to the implementation of the requirements of legal certainty. The regulation of such scope in a new normative legal act shall provide for a timely abrogation of other normative legal acts in order to prevent from unjustified, arbitrary application of the act to the relations, which are no longer subject to its effects.

The Law “On Normative Legal Acts of the Republic of Belarus” is a legislative act that establishes a common procedure for preparing, drawing, adopting (issuing), including the case of delegating powers to adopt (issue) an act, and for implementing normative legal acts. But there are no relevant provisions to regulate the procedure and time-limits for declaring the normative legal acts, which have been adopted (issued) pursuant to delegated powers, to have lost their force when the rule-making powers are terminated.

The Constitutional Court considers that the stipulation in the normative legal acts of the provisions on the procedure and time-limits for declaring the normative legal acts to have lost force owing to the termination of delegated powers of a state body to adopt (issue) normative legal acts will promote the constitutional principle of supremacy of law and pursuant to it legal certainty.

In view of the foregoing, pursuing part eight of article 22 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 ensure the constitutional principle of supremacy of law, pursuant to it legal certainty and fill a gap in legislation as regards temporary effects of legal provisions, to recognise as necessary to regulate at a law level the issues related to the establishment of the procedure and time-limits for declaring the normative legal acts, which have been adopted (issued) pursuant to delegated powers, to have lost force when these rule-making powers of a state body have been terminated.

2. To propose to the Council of Ministers of the Republic of Belarus to elaborate and make a relevant draft law on making appropriate alterations and addenda to the Law of the Republic of Belarus “On Normative Legal Acts of the Republic of Belarus” and submit it under 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
Republic of Belarus

P.P. Miklashevich