DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
the 25 of January, 2011 No D-565/2011

On constitutional legality in the Republic of Belarus in 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 2010, 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, 2010” (attached).

 2. To publish 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, 2010” 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, 2010

According to the Constitution of the Republic of Belarus the people shall be the sole source of state power and the bearer of sovereignty in the Republic of Belarus. The people shall exercise their power directly, through representative and other bodies in the forms and within the confines determined by the Constitution.

The Belarusian people expressed their sovereign will in the course of the elections of the President of the Republic of Belarus which were held in accordance with the rules and principles of the Constitution and pursuant to it electoral laws that ensured free and democratic nature of elections.

The Fourth All-Belarusian People's Assembly, which represents a constitutional form of direct participation of citizens in running public and state affairs, approved the main provisions of the Programme of Economic and Social Development of the Republic of Belarus for 2011–2015.

Last year citizens of the Republic of Belarus exercised their constitutional right to run state affairs through the elections of deputies of local councils of deputies.

The activities of the Constitutional Court, the mission of which is to review the constitutionality of normative legal acts in the state, was aimed at ensuring the supremacy of the Constitution and its direct effect in the territory of the Republic of Belarus, the conformity of normative legal acts to the Constitution, and at maintaining constitutional legality in rule-making and law-enforcement.

The Constitutional Court took decisions in which it stated its legal positions in the light of such constitutional values as the democratic social state based on the rule of law, human rights and freedoms, supremacy of law, equity and equality, parliamentarism, constitutional economics, bearing in mind the need of their further development.

I

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 is entrusted among other powers with the right to exercise the obligatory preliminary constitutional review of all the laws adopted by the House of Representatives and approved by the Council of the Republic of the National Assembly of the Republic of Belarus before their signature by the President of the Republic of Belarus.

The legal positions of the Constitutional Court, stated in the decisions which were taken in the exercise of obligatory preliminary review of the constitutionality of laws, aim at preventing the violations of constitutional legality, eliminating possible negative effects of unconstitutional provisions of laws, attaining a uniform law-enforcement. This improves the quality of laws and the efficiency of legal regulation in general. Thus, in the Republic of Belarus the conditions are created for better implementation of the constitutional principle of the supremacy of law, ensuring the constitutional rights and freedoms of citizens, rights and legitimate interests of organisations.

In 2010 in the exercise of obligatory preliminary review of the constitutionality of laws the Constitutional Court examined 129 laws, including 80 laws on ratification of international treaties.

In the exercise of obligatory preliminary review of the constitutionality of laws in its decisions the Constitutional Court set out positive legal positions. Therein it stated the stipulation of the mechanisms implementing the constitutional principles and rules of a democratic social state based on the rule of law, including the supremacy of law as well as of the generally recognised principles of international law, state guarantees to provide everyone with equal opportunities for free utilisation of abilities and property for entrepreneurial activities, everyone’s equality before the law, restrictions on individual rights and freedoms only in the instances prescribed by law as well as the constitutional bases for financial and tax policies.

While reviewing the constitutionality of the rules of laws regulating political, economic, social and other public relations the Constitutional Court properly made their legal evaluation following the principles of the supremacy of law, legal certainty, commensurability of restrictions on individual rights and freedoms with the values and goals protected by the Constitution, as well as basing on the constitutional rules which guarantee the protection of everyone’s rights inter alia in the economic field.

1. The constitutional principle of the supremacy of law and pursuant to it principle of legality imply strict observance of the Constitution and other acts adopted in pursuance thereof in rule-making and law-enforcement. In certain decisions taken in the exercise of obligatory preliminary review of the constitutionality of laws the Constitutional Court stated its legal positions aiming to reveal the constitutional and legal meaning of provisions of laws proceeding from the rules and principles of the Constitution with a view to prevent from unconstitutional law-enforcement.

In order to unify the practical implementation of the principle of direct effect of the constitutional rules, in particular of Article 60, guaranteeing everyone’s protection of his rights and freedoms by a competent, independent and impartial court within the time-limits specified by law, thereby fully ensuring the constitutional right of citizens to judicial protection the Constitutional Court in its decision of April 29, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Criminal Procedure Code of the Republic of Belarus” to the Constitution of the Republic of Belarus” formulated a relevant legal position. It consists in that the imposition of a criminal procedural sanction in the form of removal from office of a suspected person involves the consequences which are beyond the scope of criminal procedural relations. These consequences essentially restrict such individual constitutional rights and freedoms as right to work, honour, dignity and personal business standing. The suspect’s right to judicial appeal against this criminal procedural sanction is not stipulated at a law level that impedes his access to justice and derogates from his right to free choice of legal remedy. The Constitutional Court pointed out that when imposing the criminal procedural sanction in the form of a suspect’s removal from office he should be provided with the possibility, guaranteed by the Constitution, to appeal before the court with a view to protect his rights and freedoms.

While reviewing the constitutionality of the Law of the Republic of Belarus “On State Secrets” the Constitutional Court in its decision of July 8, 2010 noted that according to article 34 of the said Law the participants of criminal, civil, economic, administrative proceedings who do not have access to state secrets, the access is given under the decisions of bodies, conducting accordingly criminal, civil, economic or administrative proceedings. In the Constitutional Court opinion, the establishment of such a procedure for access of the participants criminal, civil, economic, administrative proceedings is consistent with provisions of articles 60 and 62 of the Constitution which guarantee the citizens’ rights to judicial protection and legal assistance, including the right to make use, at any time, of assistance of lawyers and his other representatives in court, other state bodies, bodies of local government, enterprises, institutions, organisations and public associations, and also in relations with officials and citizens. Thereat the Constitutional Court found that the refusal to give access to state secrets to the participants of criminal, civil, economic, administrative proceedings should be reasoned and justified, it should also strictly follow current legislation.

With a view to implement the constitutional principles of legality and inviolability of property in the decision of the Constitutional Court of December 22, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Criminal and Criminal Procedure Codes of the Republic of Belarus” to the Constitution of the Republic of Belarus” it was noted that the Law introduced alterations into article 132 of the Criminal Procedure Code (“Imposition of Arrest on Property”). Those alterations allowed the suspect, accused or persons, materially liable for their actions as set forth by law, to dispose of the arrested property in order to repair a damage (harm) caused by the crime, pay the unlawful income and other penalties under control of a body trying the criminal case. Those alterations are designed to motivate the said persons to commit the specified positive actions at the pretrial stage. To eliminate probable violations of the constitutional rights and freedoms of citizens the Constitutional Court brought into view of the officials of a prosecuting agency that in law-enforcement they need to strictly observe the principle of free will of a person to terminate the rights of ownership, as well as to avoid any pressure on the citizens, held criminally liable, to commit these transactions on alienation of property in order to repair a damage (harm) caused by the crime, pay the unlawful income and other penalties. Taking into account the particular social significance of legal regulation of ownership and the constitutional guarantees of inviolability of property the Constitutional Court considers it reasonable to stipulate at the legislative level the procedure for disposing of property exempt from arrest, providing the possibility of prosecutor's supervision over its disposal when improving the legislation in future.

Such approach to the clarification of the constitutional and legal meaning of normative provisions of the above mentioned laws contributes to their unambiguous comprehension and uniform application in practice, to ensuring of the fundamental constitutional principles of equality and equity as necessary conditions for the exercise and protection of the rights and freedoms of citizens, the rights and legitimate interests of organisations.

2. Proceeding from the supremacy of the rules of the Constitution in its decisions taken in the exercise of obligatory preliminary review of the constitutionality of economic laws the Court stated certain legal positions aiming to reveal the constitutional and legal meaning of the rules of the examined laws in the context of the implementation of the constitutional principles of a social state, guarantees of equal protection and equal conditions for the development of any type of ownership, freedom of entrepreneurship, constitutional provisions on economic and social rights.

According to the legal position set out by the Constitutional Court in its decision of July 6, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Economic Societies” to the Constitution of the Republic of Belarus” citizens, while exercising their constitutional right to free utilisation of abilities and property for entrepreneurial and other types of economic activities which are not prohibited by law (part four of Article 13 of the Constitution), shall have the right to determine the field of these activities and carry them out individually or jointly with others through participation in economic partnerships, societies or production co-operatives, that is, by creating a commercial organisation as a form of collective enterprise, which follows part two of Article 44 of the Constitution.

However the Constitutional Court noted that entrepreneurial activities in the legal form of a joint-stock company affects the interests of a large number of people – shareholders, investors, creditors and others as well as state interests. When regulating the forming, reorganising and liquidating procedures of joint stock companies, their legal status, rights and duties of shareholders, as well as when protecting the rights and legitimate interests of shareholders, the legislator believes that the state has no right to deprive joint stock companies of the powers that constitute the main body of the constitutional right to free utilisation of one’s abilities and property for entrepreneurial activities. As entrepreneurial activities of a joint stock company may involve the conflicts of interests of various parties, one of the main objectives of legislation on economic societies is to balance their legitimate interests taking into account the fact that, in accordance with the requirements of the Constitution the exercise of the right of ownership shall not infringe upon the rights and legally protected interests of others (part six of Article 44).

In the exercise of obligatory preliminary review of the constitutionality of the Law of the Republic of Belarus “On the Support of Small and Medium Enterprise” the Constitutional Court in its decision of June 22, 2010 pointed out that the rules of chapter 2 of the said Law aim at the development of the constitutional principle of state regulation of economic activities in the interests of an individual and the society. They define the principles of state policy as regards the support of small and medium entrepreneurship; forms and conditions of the state support inclusive of financial, material, informative ones, as well as the support of foreign economic activity of small and medium entrepreneurship, the assistance of the subjects of small and medium enterprise in training, further training and retraining of the staff; the competence of the republican bodies of state administration, local executive and regulatory bodies, councils on the development of enterprise.

From the Constitutional Court legal position it follows that the regulation of economics and entrepreneurship, which is aiming to create favourable conditions for economic activities of entrepreneurs in the Republic of Belarus and the ensuring of optimum interference of the state in economic relations, is based on the constitutional rules and principles providing everyone with equal rights to conduct economic or other activities, with guarantees of equal opportunities for free utilisation of abilities and property for entrepreneurial and other types of economic activities which are not banned by law; the regulation of economic activities is carried out in behalf of an individual and the society; the direction and coordination of state and private economic activities are provided for social purposes; restrictions on the rights and freedoms are imposed only by law in the interests of national security, public order, protection of the morals, health, rights and freedoms of others.

While reviewing the constitutionality of the Law of the Republic of Belarus “On the Republican Budget for 2011” in the exercise of obligatory preliminary review in its decision of October 8, 2010, based on the provisions of Article 13 of the Constitution, the Constitutional Court came to the conclusion about the social orientation of the Law, which corresponds to the nature of a social state as the Republic of Belarus was proclaimed. The decision of the Constitutional Court states, in particular, that the Law aims at the implementation of Article 49 of the Constitution, which guarantees to citizens of the Republic of Belarus the right to education, accessible and free general, secondary and vocational and technical education, the possibility to get secondary specialised and higher education free of charge on a competitive basis in state educational institutions. The provisions of the said Law which provide for budgetary expenditures on education, act as guarantees of the implementation of these rights.

In its decision of October 11, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Tax Code of the Republic of Belarus” to the Constitution of the Republic of Belarus” the Constitutional Court stated its legal position. According to it the constitutional right to ownership and the constitutional duty of citizens to participate in financing of state expenditures are interrelated and interdependent. The taxation, restricting the right of ownership, proceeds from the state powers to regulate economic activities in the interests of the individual and society, including those relating to the imposition of taxes and liability of a citizen to the State to discharge unwaveringly the duties imposed on him by the Constitution. Nevertheless, the tax rate shall be fair and reasonable and provide for the optimum combination of state, public and personal interests.

Thus, setting out its legal positions the Constitutional Court directs the legislature and other state bodies to the formation of constitutional economics, referring to such legal regulation of relations in the economic field, which is able to ensure the attainment and protection of constitutional values and goals.

3. In the exercise of obligatory preliminary constitutional review of laws the Constitutional Court was guided inter alia by such principle of a state based on the rule of law as the proportionality of restrictions on personal rights and freedoms to values protected by the Constitution which derives from the rules of Article 23 thereof.

In the decision of November 22, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Code of the Republic of Belarus on Administrative Offences and the Procedure and Execution Code of the Republic of Belarus on Administrative Offences” to the Constitution of the Republic of Belarus” the Constitutional Court emphasised that point 31 of article 2 of the Law added the Procedure and Execution Code of the Republic of Belarus on Administrative Offences with article 8.111 establishing the right of officers of the State Automobile Inspection of the Ministry of Internal Affairs of the Republic of Belarus to apply blocking of vehicle wheels in case of an administrative offence as provided by new parts three and four of article 18.22 of the Code of the Republic of Belarus on Administrative Offences (“Violation of Rules of a Vehicle Stop and Parking as Well as Other Traffic Rules”), if the driver is not in a vehicle or in immediate proximity from it.

In the Constitutional Court opinion the mentioned restrictive measures fixed in the Procedure and Execution Code of the Republic of Belarus on Administrative Offences are in line with part one of Article 23 of the Constitution according to which the restriction on personal rights and freedoms shall be permitted only in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons. The specified restrictions do not falsify the essence of constitutional rights and freedoms, do not lead to the loss of their real content and are applied only to certain categories of persons. Such restrictions are a means of legal protection of public order, rights and freedom of other persons and are proportional to values and goals protected by the Constitution.

Having examined the constitutionality of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Criminal Procedure Code of the Republic of Belarus” the Constitutional Court in its decision of April 29, 2010 pointed out that exceptions from the general rules of pretrial proceedings are allowed in the fast track criminal proceedings. It assumes the need of adequate guarantees to prevent from the violation of constitutional rights and freedoms of the individual and citizen. The legal position of the Constitutional Court consists in that the alterations made to the criminal procedure legislation, which impose certain restrictions on the rights and legitimate interests of criminal case participants, are justified if these alterations are directed on the attainment of the constitutionally valuable goals. It is inadmissible in a state based on the rule of 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 in the fast track criminal proceedings as well.

While reviewing the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Laws of the Republic of Belarus on the Prevention of Legalisation of Proceeds from Crime and Financing of Terrorist Activities” in the exercise of obligatory preliminary review the Constitutional Court in its decision of June 4, 2010 recognised the given Law to be conforming to the Constitution. Thereby a number of legal positions was set out as regards the restrictions established by the Law in identifying the parties to a financial transaction by finding out and fixing the surname of a physical person, his proper name, patronymic (if any), citizenship, date and place of birth, place of residence (temporary residence), requisite elements of an identity document, taxpayer identification number (if any), in stipulating the duties of the persons carrying out financial transactions to suspend these transactions as well as in refusal to carry out them in cases provided by the Law. The Court pointed out that the restrictions on constitutional rights should be legally admissible, socially justified; they should meet the equity requirements and be adequate, commensurable and necessary to protect constitutional valuable goals. In the cases where constitutional rules permit the legislator to impose restrictions on rights and freedoms they should not falsify the real essence of constitutional rights and freedoms. As for the duty established by the Law on identification of the parties to a financial transaction the Constitutional Court came to the conclusion that the legislator, who established the legal mechanism to prevent legalisation of proceeds from crime and to block financing of terrorism, has the right to prescribe measures either preventing legalisation of proceeds from crime and financing of terrorist activities or finding out physical and legal persons committing such actions as well as to oblige persons carrying out financial transactions to identify the parties to financial transactions.

The Article 23 of the Constitution entertains the possibility of restriction on personal rights and freedoms. Thus, as it appears from the legal positions of the Constitutional Court, the restrictions should be determined by the need to ensure the interests of national security, public order, protection of the morals, health of the population, rights and freedoms of other persons. Restrictions on rights and freedoms of citizens shall be established in view of the constitutional criteria of commensurability, providing for a balance of state, public and personal interests.

4. While reviewing the constitutionality of laws the Constitutional Court examines the observance of the principle of legal certainty. The Constitutional Court believes that legislative activities shall be based on this principle, which embodies clarity, accuracy, consistency, logical coherence of legal rules. The observance of the given principle forestalls ambiguous comprehension and, consequently, unlawful application of legal rules which may entail the violation of the rights and freedoms of citizens, the rights and legitimate interests of organisations.

In its decision of July 7, 2010 “On the conformity of the Law of the Republic of Belarus “On Exclusive State-owned Assets and Types of Activities Subject to Exclusive Right of the State” to the Constitution of the Republic of Belarus” the Constitutional Court took notice of some uncertain rules of the specified Law. In particular, this Law specifies a number of assets, which intended use termination shall be decided by the President of the Republic of Belarus, the Council of Ministers or under the procedure established by local councils of deputies. The Law does not define bodies (persons) who shall decide on other assets, which have not been listed in the Law. The implementation of such rules may lead to their ambiguous comprehension and application. Besides, in the Constitutional Court opinion, it is not clear how to apply the Civil Code of the Republic of Belarus which admits inheritance not only under the law, but under one’s will as well, together with the provisions of the Law forbidding to citizens to make any property deals with property, ranged as assets which shall, according to this Law, be owned exclusively by the state, except for the take-over of these assets by the state, unless otherwise established by legislative acts. The Constitutional Court noticed that the stated positions concerning legal uncertainty of some provisions of the Law “On Exclusive State-owned Assets and Types of Activities Subject to Exclusive Right of the State” may be taken into consideration by the legislator when developing the provisions of this Law, including practical law-enforcement.

In the exercise of obligatory preliminary review the Constitutional Court examined the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Laws of the Republic of Belarus and Declaring Some Legislative Acts of the Republic of Belarus and Particular Provisions thereof on Privatisation of State-owned Property as Ceased to be in Force”. In the decision of July 6, 2010 the Constitutional Court specified that there is some uncertainty of legal regulation in the new wording of article 31 of the Law of the Republic of Belarus “On Denationalisation and Privatisation of State-owned Property in the Republic of Belarus”. The Constitutional Court noticed that the new wording of the specified Law does not provide for possible shares sale on concessionary terms, and it will go on during a certain time period after the Law entering into force. Therefore the article 31 of this Law should establish the rules in certain acts of legislation according to which the shares shall be sold at a discount to the employees of state unitary enterprises and persons set equal to them. Based on the revealed constitutional and legal meaning of the provisions of the Law “On Denationalisation and Privatisation of State-owned Property in the Republic of Belarus” their interrelation implies the conclusion about possible sale on concessionary terms of the shares of open joint-stock companies created in the process of reorganisation of the state unitary enterprises prior to this Law entering into force.

In its decision of July 6, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addendum to Some Laws of the Republic of Belarus” to the Constitution of the Republic of Belarus” the Constitutional Court noted that the criminal procedure legislation, failing to list the persons, authorised to bring submissions to the Houses of the National Assembly with a view to obtain the approval for the detention or any other personal restraint of a deputy of the House of Representatives, a member of the Council of the Republic, may entail ambiguous interpretation and application of the rules regulating the procedure of detention or personal restraint of the mentioned persons in practice.

In its decision of December 30, 2010 “On the conformity of the Law of the Republic of Belarus “On Making Addenda and Alterations to the Land Code of the Republic of Belarus” to the Constitution of the Republic of Belarus” the Constitutional Court paid attention of the legislator to insufficient compliance to the principle of systematic and integrated approach to legal regulation of public relations, to the requirements of stability of the legal system fixed in articles 7 and 38 of the Law of the Republic of Belarus “On Normative Legal Acts of the Republic of Belarus” when making addenda and alterations to the Land Code of the Republic of Belarus. So, articles 24 and 50 of the Land Code of the Republic of Belarus were already altered by the Law of the Republic of Belarus of May 6, 2010. Besides, owing to the adoption of the Edict of the President of the Republic of Belarus of June 2, 2009 No. 276 (with alteration and addendum made by the Edict of the President of the Republic of Belarus of August 3, 2010 No. 402) some provisions of the Laws of the Republic of Belarus “On Mortgage” and “On Lien” are subject to be altered as well, but the necessary alterations and addenda were not made by the Law and that may lead to uncertainty in law-enforcement.

When examining the constitutionality of the Education Code of the Republic of Belarus in the exercise of obligatory preliminary review the Constitutional Court in its decision of December 30, 2010 noted that some rules of this Code do not provide for the entirety, consistency, integrity of legal regulation of a relevant sphere of public relations. So, according to point 5 of article 25 of the given Code the competence, composition and operating procedures of the Council of educational institution shall be defined by the Regulations on the Council of educational institution, which is to be approved by the Ministry of Education of the Republic of Belarus. At the same time as fixed in point 4 of article 25 of the Education Code of the Republic of Belarus the Council of educational institution is the main self-governing body of the educational institution and according to point 1 of the same article the management of educational institution is based on the combination of both principles of one-man management and self-management. That assumes more detailed regulation of operating issues of this Council by the Code.

In the Constitutional Court opinion it is reasonable to stipulate in the Education Code of the Republic of Belarus the procedure of appointment (dismissal) of teaching staff while in point 2 of article 50 of the given Code there is a reference rule according to which the procedure of appointment (dismissal) of teaching staff is defined by this Code and other acts of legislation.

In point 1 of article 86 of the Education Code of the Republic of Belarus it is provided that the graduates, directed to work according to the contract on training of a top skills researcher by means of the republican budget, the contract on target training of a specialist (worker, employee) and working, may be redirected to work (further job placement) during the period of essential work. Thus the grounds for further job placement are defined by the Government. However as the grounds for further job placement affect the rights and duties of citizens they should be established by a legislative act what the given Code is.

The common principle of legal certainty directly derives from the principle of the supremacy of law enshrined in the Constitution (Article 7). The Constitutional Court repeatedly emphasised that the inaccuracy and uncertainty of provisions of normative legal acts, their discrepancy and ambiguity may result either in violation of the rights and legitimate interests of citizens, or in abuse of their rights. The legal positions of the Constitutional Court concerning such rules of legislation, aiming to eliminate the defects of normative regulation, address the subjects of legislative activity and law-enforcement with a view to ensure unambiguous comprehension and interpretation of legal rules as well as their uniform application.

5. The preliminary constitutional review of laws on ratification of international treaties of the Republic of Belarus is an important direction in the activities of the Constitutional Court. Such laws are examined by the Constitutional Court with respect to the constitutionality of the content of legal rules, form of the act, procedure of its adoption, as well as in terms of delineation of powers between state bodies when adopting them.

The practice of obligatory preliminary constitutional review of laws shows that the comprehensive legal protection of the rights and freedoms of a man and a citizen is ensured subject to the proper implementation of international law rules into domestic legislation. In this connection it is necessary to create conditions for efficient application of international law in rule-making and law- enforcement standards.

In the decision of November 10, 2010 “On the conformity of the Law of the Republic of Belarus “On Accession of the Republic of Belarus to the International Convention on Simplification and Harmonisation of Customs Procedures” to the Constitution of the Republic of Belarus” the Constitutional Court noted that the Republic of Belarus should accede to this Convention taking into account international commitments within the Customs Union. In this case, according to the Constitutional Court, account should be taken of that the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation (hereinafter – the Parties) on October 6, 2007 signed the Treaty establishing the common customs territory and formation of the Customs Union. In accordance with article 5 of the Treaty after the creation of the common customs territory the regime of customs duties levied on import or export of goods, methods of levying such duties, regulations and administrative procedures applied to import or export of goods, which is provided by every Party to any third country on the basis of an international treaty or in fact, may not be more favorable than the regime provided by the Party to other Parties. The aforesaid states are also parties to the Treaty on the Customs Code of the Customs Union, signed in Minsk on November 27, 2009. According to point 2 of article 1 of the Customs Code of the Customs Union the customs regulation in the Customs Union is carried out as provided by customs legislation of the Customs Union, and if not regulated thereby prior to the establishment of appropriate legal relations at the level of customs legislation of the Customs Union – as provided by domestic legislation of its members-states.

The Constitutional Court stressed that the authorised bodies, guided by part four of Article 116 of the Constitution, are entitled to submit proposals to the Constitutional Court with a view to review treaty obligations and other international commitments of the Republic of Belarus as to their conformity to the Constitution and international legal acts ratified by the Republic of Belarus. However, the Constitutional Court was addressed with such proposals neither in 2010 nor before.

When taking decisions in the exercise of obligatory preliminary constitutional review the Constitutional Court, based on the provisions of the Constitution, sought to provide not only the understanding of the true content of the constitutional rules and principles, but also their direct effect. It formed the constitutional thinking, guided by the supremacy of law, equality, equity, proportionality and freedom of entrepreneurship, noting in the decisions that the state, its bodies and officials shall have duties and bear responsibility before the people, as well as the citizens shall assume responsibility before the state to discharge their duties (article 2, 59 and other articles of the Constitution).

II

The Constitutional Court, while reviewing the constitutionality of normative legal acts in the state in accordance with Article 116 of the Constitution, shall deliver its judgments on their constitutionality in the exercise of subsequent constitutional review.

The right to submit proposals to review the constitutionality of normative legal acts in the exercise of subsequent constitutional review is granted to the President of the Republic of Belarus, the House of Representatives of the National Assembly, the Council of the Republic of the National Assembly, the Supreme Court, the Supreme Economic Court, the Council of Ministers.

In 2010 the authorised subjects did not address the Constitutional Court with the proposals to review the constitutionality of normative legal acts.

Besides the right of the specified subjects to address the Constitutional Court, the legal system of the Republic of Belarus provides for a special form of indirect access of citizens and organisations to constitutional justice – through the subjects, authorised to address the Constitutional Court with the proposals to review the constitutionality of normative legal acts.

Indirect access of citizens and organisations to constitutional justice is one of the ways of the implementation of Article 60 of the Constitution, which guarantees everyone’s judicial protection of his rights and interests.

According to part three of article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges the citizens and organisations shall initiate the review of the constitutionality of an act with state bodies and officials, entitled to submit proposals to the Constitutional Court of the Republic of Belarus to review it. By its legal nature the right of a citizen and organisation to address the authorised subjects represents itself the right to indirect access to constitutional justice, i.e. the right to address a body of constitutional review in the indirect form.

In 2010 the authorised bodies were filed about 60 appeals of citizens and organisations with the request to submit proposals to the Constitutional Court to review the constitutionality of normative legal acts because the applicants considered there were contradictions resulting in unreasonable restriction on constitutional rights and freedoms. However none of the initiatives was approved by the authorised bodies. In this context citizens in some of their appeals to the Constitutional Court indicate that such treatment by the respective authorised bodies interferes with the exercise of their right to access to constitutional justice.

In the opinion of the Constitutional Court, in the absence of the individual right to direct constitutional complaint to the Constitutional Court it is necessary to establish clear legal regulation of indirect access through the authorised subjects. Such procedure will give the opportunity to realise the initiatives of citizens and organisations to review the constitutionality of normative legal acts.

III

On the basis of part one of Article 116 of the Constitution and 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 shall be entitled to submit proposals to the President of the Republic of Belarus, the houses of the National Assembly of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, other state bodies within their competence, on the need to make alterations and (or) addenda to acts of legislation, to adopt new normative legal acts.

With a view to attain the objectives in securing the supremacy of the Constitution and its direct effect within the territory of the Republic of Belarus, the conformity of normative legal acts to the Constitution, maintaining the legality in law-making and law-enforcement, resolving other issues stipulated by the Constitution, the Constitutional Court within its competence established in part eight of article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges, on the basis of the analysis of legal problems having the importance for the implementation of constitutional rules and principles, submitted the proposals, aiming to fill the gaps, eliminate conflicts and legal uncertainty in acts of legislation.

Some of the decisions taken by the Constitutional Court are based on the analysis of information on the existence of legal gaps, conflicts and uncertainty in acts of legislation, which was provided in the appeals of citizens and organisations.

In total there were about 1181 appeals to the Constitutional Court in 2010, including 1138 appeals of citizens (including 52 collective ones, signed by 2243 persons) and 43 appeals of organisations.

The citizens’ appeals, as a rule, reflect real social and economic processes in the country. Timely reaction to the issues raised therein promotes the restoration of the violated rights and strengthening of the legality, elimination of contradictions and other defects in legislation and its practical application.

For example, the decision of the Constitutional Court of March 23, 2010, aiming to implement the constitutional principles of everyone’s equality before the law and equity, was taken in view of the citizens’ appeals. The said decision deals with the issues of legal regulation of relations in granting and payment of educational maintenance allowance to the citizens in the instances of their training, retraining, and advanced training according to the grounds for termination of an employment agreement. It also deals with the issue of specifying the instances in which the above persons may be refused unemployment benefits. The Constitutional Court came to the conclusion that legal regulation of the termination of an employment agreement as to determining its grounds, which affect the rate of educational maintenance allowance and the opportunity to be granted unemployment benefits, shall be clarified. For it does not provide the individuals of the same category (who were dismissed for the reasons irrelevant to their unlawful acts and were recognised as unemployed) with equal unemployment protection what is inconsistent with the equality and equity principles.

With a view to stipulate in legislation the opportunities to exercise everyone’s right to unemployment protection the Constitutional Court recognised as necessary to make alterations and addenda to the Law of the Republic of Belarus “On Employment of the Population of the Republic of Belarus” in order to clarify the list of the grounds for termination of an employment agreement involving educational maintenance allowance to the unemployed that is lower as related to the standard one, and the list of the grounds for termination of an employment agreement involving the refuse of unemployment benefits to the unemployed. In this context the Council of Ministers was proposed to make a relevant draft law and submit it in the established procedure to the House of Representatives of the National Assembly.

In the decision of the Constitutional Court of 27 May, 2010, aiming to implement everyone’s constitutional right to judicial protection, the attention was paid to the existence of a gap in legal regulation of the procedure for consideration of appeals before the court against applied sanctions lodged by the convicted to arrest, confinement, life imprisonment, by the detainees and persons under administrative arrest, that does not fully ensure the exercise of the constitutional right to individual access to justice.

Proceeding from the rules of Article 60 of the Constitution, the right of the persons actually deprived of freedom, as fixed in special laws, to appeal against disciplinary measures applied to them is the important guarantee for the protection of the violated rights of the given category of citizens, securing the legality while executing criminal punishment, administrative arrest and holding in custody. However the legislator has not established the procedure for consideration of such appeals before the court.

With a view to ensure the exercise of this constitutional right the Constitutional Court recognised as necessary to define in legislation the appeal proceeding initiated by the convicted to arrest, confinement, life imprisonment, by the detainees and persons under administrative arrest against applied disciplinary sanctions. In this respect it proposed to the Council of Ministers to make a relevant draft law on making due alterations and addenda to the Civil Procedure Code of the Republic of Belarus.

In order to ensure the constitutional principles of the supremacy of law and everyone’s equality before the law the Constitutional Court took the decision of November 17, 2010. It was noticed therein that the absence of the provisions in the Code of the Republic of Belarus on Administrative Offences as regards the liability for acts expressed in either non-payment or partial payment of the rent for state-owned land plots or delay in submission by rent payers of the rent calculation for these plots shows that there is a gap in legislative regulation of relevant relations. It may lead to either violation of the rights of rent payers or non-performance of their duty to pay the rent; it may raise the possibility of ambiguous interpretation and, therefore, arbitrary application of the law that contradicts the constitutional principle of everyone’s equality before the law. The Constitutional Court recognised as necessary to fill the gap in legal regulation of the liability of rent payers for either non-payment or partial payment of the rent for state-owned land plots or the delay in submission of the rent calculation for these plots, and proposed to the Council of Ministers to make a relevant draft law on making due alterations and addenda to the abovementioned Code.

In the decision of December 15, 2010 the Constitutional Court stated a gap in a legislative regulation of the issues related to the establishment of the procedure and time-limits for declaring the normative legal acts, which have been adopted (issued) under delegated powers, to have lost their force if these delegated powers of a state body to adopt (issue) the act have been terminated. With a view to ensure the constitutional principle of supremacy of law and pursuant to it legal certainty the Constitutional Court proposed to the Council of Ministers to elaborate and make a relevant draft law on making relevant alterations and (or) 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.

While assessing the constitutional legality in law-making and law-enforcement the Constitutional Court pays attention to that the efficiency of the national legal system substantially depends on the quality of legislation, in particular on coherence and consistency of legal rules on the whole, on the integrity and stability of the legal system. In this context the Constitutional Court notes that the realisation of its proposals to fill the gaps, eliminate conflicts of law and legal uncertainty in acts of legislation, referred to relevant state bodies ensures more efficient legal regulation of public relations on the basis of constitutional rules and principles.

IV

The execution of the Constitutional Court decisions – the major indicator of the constitutional legality state in society. The need of timely execution of the Constitutional Court decisions objectively follows the content of the constitutional principle of the supremacy of law. Appropriate and qualitative execution of the Constitutional Court decisions guarantees not only the protection of human rights, but also promotes the efficient state administration and increase of confidence in state institutes.

The Constitutional Court notes that state bodies take necessary measures to correct the defects of legislation revealed by the Constitutional Court.

So, in the Constitutional Court decision of June 15, 2007 it was specified that the rules of the Procedure and Execution Code of the Republic of Belarus on Administrative Offences give different scope of rights to render legal aid to participants of administrative proceedings. In particular, an individual against whom the administrative proceedings was initiated, may defend himself or have recourse to a defender, merely an advocate, whereas a victim has the right to be represented not only by advocates, but other persons to whom he entrusted to represent his interests as well. The Constitutional Court proposed to the House of Representatives of the National Assembly to make relevant alterations and addenda to the Procedure and Execution Code of the Republic of Belarus on Administrative Offences with a view to ensure the equality of the rights to legal aid granted either to victims or individuals against whom the administrative proceedings is initiated.

The mentioned proposals of the Constitutional Court were realised in the Law of the Republic of Belarus of November 30, 2010 “On Making Addenda and Alterations to the Code of the Republic of Belarus on Administrative Offences and the Procedure and Execution Code of the Republic of Belarus on Administrative Offences”. According to alterations, introduced to the latter, one of the individual’s close relatives or legal representatives may be admitted as his defender upon the petition of the individual against whom the administrative proceedings was initiated and under the decision of the body carrying out these proceedings.

With a view to ensure appropriate protection of the property right of bona fide purchasers of goods, the proposals of the Constitutional Court formulated in its decisions of May 24, 2005 and of February 23, 2006 were realised in the Code on Administrative Offences of the Republic of Belarus. According to the above-mentioned Law of the Republic of Belarus of November 30, 2010 the article 6.10 of this Code was added by a provision prohibiting the seizure of goods which are a subject of an administrative customs offence, purchased after its commission in the territory of the Republic of Belarus by a person who has not committed the offence, if such goods were got by retail and in other cases – if this person followed the established procedure and fulfilled the requirements, specified by certain acts of legislation, subjecting their placement to a customs procedure of production for domestic consumption.

The conclusion stated in the Constitutional Court decision of December 22, 2000 was taken into account by the legislator as well. In this decision the Court concluded that in cases where the inventions represent doubtless interest for the Republic of Belarus and confirm the every need to ensure their priority for the republic and appropriate protection of the authors’ rights, the terms of passing of the application materials from its registration up to the official publication of the application data need to be maximally reduced. According to the Law of the Republic of Belarus of July 15, 2010 “On Making Alterations and Addenda to Some Laws of the Republic of Belarus on the Legal Protection of Inventions, Utility Models, Industrial Designs” certain alterations and addenda were made to the Law of the Republic of Belarus “On Patents on the Inventions, Utility Models, Industrial Designs”, in particular to point 1 of article 20 of this Law. Now the application for an invention which passed the preliminary expertise and was approved may be published in the official bulletin after 18 months not only from the date of its filing, but also in cases of the priority request from the date of the earliest priority.

In the decision of December 6, 2000 the Constitutional Court stated that the procedure for personal employment scheduling of graduates of the state higher and secondary specialised educational institutions is established by the order of the Ministry of Education of the Republic of Belarus. The Court emphasised that it is reasonable to stipulate at the legislative level the procedure for employment scheduling of graduates of the named educational institutions as well as possibilities to grant corresponding privileges and guarantees to them. It would provide for the higher level of protection of the rights and legitimate interests of young specialists. To a certain degree this approach was realised in 2002 when alterations and addenda were made to the Law of the Republic of Belarus of October 29, 1991 “On Education in the Republic of Belarus” and after the adoption of the Law of the Republic of Belarus of July 11, 2007 “On Higher Education”. Now the position of the Constitutional Court was realised to a greater degree in the Code of the Republic of Belarus on Education where the issues of employment scheduling and rescheduling of graduates are regulated.

At the same time while assessing the execution of the Constitutional Court decisions the Court pays attention to the need of their timely execution. The reduction of time periods from the adoption of decisions by the Constitutional Court up to their execution by the authorised state bodies and officials will allow to fill gaps in legal regulation, to exclude conflicts or legal uncertainty in normative legal acts in shorter terms, providing thereby for appropriate quality of legislation, protection of human rights and freedoms as the supreme value and goal of the society and state as well as guarantees to secure them.

V

In 2010 while performing the assigned functions to review the constitutionality of normative legal acts in the state the Constitutional Court took the decisions where it formulated its legal positions aimed at ensuring the supremacy of the Constitution, maintaining constitutional legality in rule-making and law-enforcement.

In its decisions the Constitutional Court stated the stipulation in laws of mechanisms of implementation of constitutional rules and principles, as well as generally recognised principles of international law. The Constitutional Court noted that restrictions on rights and freedoms set in the laws were determined by the protection of constitutionally significant values. They conformed to the general legal principle of proportionality, secured the balance of state, public and private interests.

In its decisions the Constitutional Court formulated a number of legal positions that aimed at observing the principle of legal certainty, ensuring the stability of legal system and comprehensive approach to legal regulation. In this context the Constitutional Court drew the attention of the legislator to the failed accuracy, unambiguity of the content of certain provisions of laws, to their inconsistency, to frequent and not always justified alterations and addenda to them.

The Constitutional Court also notes that comprehensive approach to legal regulation may be realised by means of subsequent codification of legislation. However the adoption of a codified normative legal act is justified if it provides for fuller and more qualitative regulation of public relations which excludes the need to adopt a considerable number of subordinate normative legal acts.

In the decisions, taken in the exercise of obligatory preliminary review of the constitutionality of economic laws, the Constitutional Court stated the legal positions the essence of which consisted in ascertaining that the laws under review had developed the rules and principles of the Constitution granting equal rights to carry out economic and other activities, except for those prohibited by law; granting guarantees of equal protection and conditions for the development of all forms of ownership; equal opportunities for free utilisation of abilities and property for entrepreneurial and other economic activities not banned by law; the rules on economic activities regulation in the interests of the man and society, on securing the direction and coordination of the state and private economic activities in the social purposes. According to the Constitutional Court, on the basis of the constitutional provisions the conditions and mechanisms of formation of the constitutional economics are created in the Republic of Belarus as a major element of building of the social state.

The constitutional legality is influenced either by the quality of legislation, lawfulness and equity of law-enforcement, or by the constitutional culture in the state and society.

The constitutional culture in its entirety determines a democratic process of formation of the civil society, state based on the rule of law. It also stipulates the fuller ensuring and protection by citizens and organisations of their rights, freedoms and legitimate interests through legal remedies, the activities of state bodies and officials in the spirit of real respect for the law as a value, which secures stable and progressive development of the society and state. Legal conscience, based on the Constitution, reflecting the views and ideas about constitutional values, contributes to keep the balance of interests of the individual, society and state.

The level of constitutional culture in the state reached at a certain stage of development of a society, determines the efficiency of rule-making and law-enforcement. The understanding of the essence of constitutional regulation of the rights, freedoms of the individual and citizen and corresponding duties of the state and citizens shall promote the creation of the system of legislation based on the Constitution, developed and consistent to it. In its turn, the constitutional thinking of law-enforcers when choosing fair and efficient remedies for the rights, freedoms and legitimate interests stipulates their ability to directly apply the rules of the Basic Law in practice and to proceed from the constitutional principles in decision-making.

The Constitutional Court considers that the rights and freedoms of the individual and citizen, being the supreme value, shall determine the content and appropriate application of normative legal acts. As to ensuring a real mechanism for their implementation, it shall gain the priority in activities of the legislative, executive and judicial powers. The state, taking all measures at its disposal to create domestic and international order, necessary for the exercise and protection of the constitutional rights and freedoms of citizens, as well as the development of constitutional values, ensure the civic concord, inviolability of sovereignty democratic foundations and of constitutional order.

The present Message was adopted in the session of the Constitutional Court of the Republic of Belarus on January 25, 2011.

Presiding Officer–
Petr P. Miklashevich
Chairman of the Constitutional Court
Republic of Belarus