The Constitutional Court of the Republic of Belarus comprising of 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. Izotko, 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, subpoint 1.1, point 1 and paragraph 3 of 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”

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 Law of the Republic of Belarus “On Investigative Activities”.

Having heard the reporting judge L.M. Ryabtsev, 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 the Law of the Republic of Belarus “On Investigative Activities” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

Law of the Republic of Belarus “On Making alterations and addenda to the Law of the Republic of Belarus “On Investigative Activities” (hereinafter - the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus, on December 2, 2010, approved by the Council of the Republic of the National Assembly of the Republic Belarus on December 10, 2010 and submitted for signing by the President of the Republic of Belarus.

Adoption of the law is due to the need for improving legal regulation of relations in the investigative activities with a view to establishing additional guarantees of legality in carrying out search operations.

The Law makes alterations and addenda to the Law of the Republic of Belarus “On investigative activities”, according to which the bodies (officials), carrying out investigative activities, are forbidden to incite, induce, encourage individuals to commit illegal acts (provocation); artificially create conditions (situation), as well as to exert pressure, precluding the possibility of free choice by the person of his behaviour, including the right to voluntary refusal to commit crime.

In reviewing the constitutionality of the Law the Constitutional Court proceeds from both the Constitution and the generally recognised principles of international law.

In accordance with the Constitution the Republic of Belarus safeguards legality and order (part three of Article 1), all shall be equal before the law and entitled without discrimination to equal protection of their rights and legitimate interests (Article 22), no one may be found guilty of a crime unless his guilt is proven under the procedure specified in law and established by the verdict of a court o law that has acquired legal force; a defendant shall not be required to prove one’s innocence (Article 26), evidence obtained in violation of the law shall have no legal force (Article 27); justice shall be administered on the basis of adversarial proceedings and equality of the parties involved in the trial (part one of Article 115).

Generally recognised principles of international law envisaged by the Article 10 of the Universal Declaration of Human Rights, which provides that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 14 of the International Covenant on Civil and Political Rights also establishes that all persons shall be equal before the courts and tribunals; in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The alterations and addenda to the Law “On Investigative Activities” are also consistent with European standards, as enshrined in the Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, as well as the European Court of Human Rights. Despite the fact that these standards are not binding for the Republic of Belarus, they are considered by the national legislator as a guide used in the improvement of legislative regulation of the relationship.

In carrying out investigative activities as fundamental, in the opinion of the Constitutional Court, should be considered and observed guarantees of the fair trial, as the complaints about the actions of law enforcement officials suggest the applicant's right to judicial protection guaranteed by the Constitution, including the right to an adversarial process and equality of the parties.

One of the principles of criminal responsibility is equality before the law and equity. The goals of the criminal procedure law is the approval of equity and ensuring that every offender has been subjected to a fair punishment. Sources of evidence in criminal proceedings include information of investigative activities that are obtained to establish the circumstances relevant to lawful, reasonable and fair resolution of the criminal case.

In view of the aforementioned the Constitutional Court concludes that the alterations and addenda make by the Law are based on the rules and principles of the Constitution, generally recognised principles of international law, restrain the interference of the bodies (officials) carrying out the investigative activities in the field of rights of citizens, act as a guarantees of legality in carrying out investigative activities, ensuring fair justice, competitiveness, and equality of parties in the trial, protection of the interests of the defendant, which corresponds to the constitutional principle of the rule of law that imply fairness and equality.

The law is passed by the House of Representatives of the National Assembly of the Republic of Belarus under the competence and in accordance with point 2 of part one of Article 97 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with paragraph 1 of part one of Article 98 of the Constitution.

Based on the aforementioned the Constitutional Court concludes that the content of provisions, the form of the act and the procedure of the adoption of the Law is constitutional.

Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eighth, 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 of the President of the Republic of Belarus of June 26, 2008 № 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus” the Constitutional Court of the Republic of Belarus

RULED:

 1. Recognise the Law of the Republic of Belarus “On Making alterations and addenda to the Law of the Republic of Belarus “On investigative activities” 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 in accordance with the legislation.

Presiding Officer –
Chairman of the Constitutional Court
Republic of Belarus

P.P. Miklashevich