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, 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 proposals 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 on the need to make alterations and (or) addenda to acts of legislation

in a court session considered an appeal of the Supreme Economic Court of the Republic of Belarus concerning the issues of ranking the resolutions of the Supreme Council of the Republic of Belarus as legislative acts and determining their legal force.

In the appeal of the Supreme Economic Court it is alleged that, despite the current resolutions of the Supreme Council of the Republic of Belarus, the analysis of legislation does not allow to explicitly rank them as legislative acts. At the same time the practice raises the issue of possible application of the resolutions of the Supreme Council of the Republic of Belarus which contain legal rules. So, according to articles 197 and 198 of the Civil Code of the Republic of Belarus the general period of limitation shall be three years; special periods of limitation, reduced or prolonged in comparison with the general period, may be established by legislative acts for particular types of claims. The Regulations on the procedure for damages caused to economic entities by unlawful actions of state bodies and their officials, approved by the Resolution of the Supreme Council of the Republic of Belarus of June 16, 1993, stipulates one year period from the moment of creation of a right to bring suit in order to protect the right of economic entities to recover damages caused by unlawful actions of state bodies and their officials.

It is also noticed in the appeal that presently alterations to the current resolutions of the Supreme Council are made through laws. In the opinion of the Supreme Economic Court it may say for the equal legal force of resolutions of the Supreme Council and laws. However according to the Judgment of the Constitutional Court of December 15, 1995 “On the conformity of article 2 of the Law “On the Correlation of the Acts of the Supreme Council of the Republic of Belarus Having Legal Effects” to the Constitution”, article 2 of the previous Law of January 30, 1995 “On the Correlation of the Acts of the Supreme Council of the Republic of Belarus Having Legal Effects” was found nonconforming to the Constitution as to validating resolutions of the Supreme Council equally with laws and considered to have lost its legal force from the day of the adoption of the mentioned Judgment.

The Supreme Economic Court believes that the issue of legal force of the resolutions of the Supreme Council is important for the development of unified approaches to the practical application of limitation periods.

While preparing the proceedings the Constitutional Court examined the position of certain state bodies and organisations (the House of Representatives of the National Assembly of the Republic of Belarus, the Council of the Republic of the National Assembly of the Republic of Belarus, the General Prosecutor’s Office of the Republic of Belarus, the Supreme Court of the Republic of Belarus, the Ministry of Justice of the Republic of Belarus, the National Centre of Legislation and Legal Researches of the Republic of Belarus) concerning the possibility of ranking the resolutions of the Supreme Council of the Republic of Belarus as legislative acts and their legal force, stated in replies to its requests.

Having analysed the rules of the Constitution of the Republic of Belarus (hereinafter − the Constitution), the Constitution of the Republic of Belarus of 1994 prior to the introduction of changes and additions adopted at the republican referenda of November 24, 1996 (hereinafter – the Constitution of 1994), the Constitution of the Republic of Belarus of 1978 (hereinafter – the Constitution of 1978), the Law of the Republic of Belarus of December 21, 1994 “On the Supreme Council of the Republic of Belarus”, the Resolution of the Supreme Council of the Republic of Belarus of June 16, 1993 “On the approval of the Regulations on the procedure for damages caused to economic entities by unlawful actions of state bodies and their officials” (hereinafter – the Resolution of the Supreme Council) and other normative legal acts, the Constitutional Court of the Republic of Belarus found the following.

1. According to the Constitution in the Republic of Belarus as in a state ruled by law (part one of Article 1) the principle of the supremacy of law (part one of article 7) is established. The principles of legality and legal certainty, based on it, assume strict adherence to the Constitution and other acts of legislation adopted in pursuance thereof in rule-making and law-enforcement, logic coherence of legal rules and reducing normative legal acts to the unified system also by way of defining the hierarchy of normative legal acts. All of them allow securing the constitutionality of legal regulation of social relations.

One of the ways to secure the rights and freedoms of citizens of the Republic of Belarus is the possibility of their protection by a competent, independent and impartial court (part one of Article 60 of the Constitution). By providing for judicial protection the Constitution enshrines the guarantees for equal protection of the rights and legitimate interests without any discrimination, owing to everyone’s equality before the law (Article 22). The specified constitutional guarantees cover as well those citizens who are individual entrepreneurs, and organisations.

According to part one of Article 112 of the Constitution the courts shall administer justice on the basis of the Constitution, the laws and other normative acts adopted in accordance therewith. The courts, obliged to follow the Constitution when administering justice, shall ensure the observance of the principles of legality, legal certainty, equal protection of the rights, freedoms of citizens and the rights, legitimate interests of organisations.

Thus, the observance of the principles of legality and legal certainty enhances unambiguous comprehension of legal rules, their lawful application and, as a result, ensures proper exercise and protection of the rights and freedoms of citizens, rights and legitimate interests of organisations.

2. According to part one of Article 97 of the Constitution of 1978 the Supreme Council was the highest standing body of state authority in the Republic of Belarus.

The Supreme Council was empowered to admit for consideration and to resolve any issue within the competence of the Republic of Belarus (part two of Article 97 of the Constitution of 1978).

According to point 14 of part three of the specified article of the Constitution of 1978 the exclusive competence of the Supreme Council covered the legislative regulation within the competence of the Republic of Belarus, including the procedure for exercising the constitutional rights, freedoms and duties of citizens, property relations, other relations.

Article 97 of the Constitution of 1978 also stipulated that the Supreme Council shall adopt laws of the Republic of Belarus and resolutions. The procedure for adopting these acts by the Supreme Council was identical in its essence. Both the laws and the Supreme Council resolutions were adopted by a majority vote of the full number of deputies. According to Article 108 of the Constitution of 1978, laws and other acts adopted by the Supreme Council were signed by the Chairman of the Supreme Council.

The possibility of the Supreme Council to adopt other acts of normative nature along with laws of the Republic of Belarus was also stipulated in the Law of the Republic of Belarus of July 3, 1990 “On the Procedure for Publishing and Coming into Force of the Laws of the Republic of Belarus and Other Acts Adopted by the Supreme Council of the Republic of Belarus and Its Bodies”. According to part one of article 3 of this Law either laws of the Republic of Belarus or any other acts of the Supreme Council having normative nature should come into force at the end of ten days after their official publication.

Besides, according to article 119 of the Temporary Rules of Procedure of the Supreme Council of the Republic of Belarus approved by the Resolution of the Supreme Council of the Republic of Belarus of May 31, 1990, the drafts of the most important resolutions of the Supreme Council concerning the state, economic and sociocultural development may be considered in two readings under the provisions of these Rules of Procedure established for consideration of draft laws.

All the laws and other acts of state bodies of the Republic of Belarus should be issued on the basis and in accordance with the Constitution of the Republic of Belarus (Article 171 of the Constitution of 1978).

The Regulations on the procedure for damages caused to economic entities by unlawful actions of state bodies and their officials, approved by the Resolution of the Supreme Council of the Republic of Belarus of June 16, 1993 (hereinafter – the Regulations on the procedure for damages), defines the procedure and conditions for the exercise of the right of economic entities to recover damages caused by unlawful actions of state bodies and their officials.

The Regulations on the procedure for damages sets the damages to economic entities, the procedure for filing a claim by an economic entity with a view to repeal the act (instruction of an official), and in the damaging event – a claim to recover damages, including a lawsuit to the economic court, the limitation period for to protect the rights of economic entities to recover damages. It also regulates other issues relating to damages to an economic entity.

Point 3 of the Resolution of the Supreme Council, which approved the Regulations on the procedure for damages, prescribes that current acts of legislation, prior to bringing the legislation of the Republic of Belarus in accordance with these Regulations, and shall be applied in so far as they do not contradict the latter.

The analysis of the requirements of the Regulations on the procedure for damages shows they are normative in nature, because they contain obligatory rules, are designed for an indefinite number of persons and multiple applications. As to the said Resolution, it was adopted within the competence of the Supreme Council concerning legal regulation of public relations defined by the Constitution of 1978.

According to the Constitutional Court, as the Constitution of 1978 envisaged the possibility of the Supreme Council of the Republic of Belarus to adopt either laws or regulations without specification of their subjects of regulation, the legislation regulation of public relations, coming within the exclusive competence of the Supreme Council, could be carried either through laws of the Republic of Belarus or through resolutions of the Supreme Council. Consequently, the resolutions adopted by the Supreme Council within the legislative regulation, were ranked as legislative acts.

The resolutions of the Supreme Council were of higher legal force than the resolutions and orders of the Council of Ministers of the Republic of Belarus, which in accordance with Article 115 of the Constitution of 1978 was the supreme executive and administrative body of state authority of the Republic of Belarus. In accordance with Article 120 of this Constitution it issued its acts on the basis of and pursuant to laws of the Republic of Belarus, other decisions of the Supreme Council as well.

3. In the Constitution of 1994 the Supreme Council was defined as the highest representative standing body and the sole legislative body of state authority of the Republic of Belarus (Article 79).

In accordance with point 3 of part one of Article 83 of the given Constitution, the Supreme Council along with other powers was empowered to adopt laws and resolutions, supervise their execution. Either laws or resolutions were adopted by the Supreme Council under the same procedure – they were deemed to be adopted if they were approved by a majority of elected deputies, unless otherwise provided in the Constitution (part two of Article 84).

Both the Constitution of 1994 and the Constitution of 1978 enshrined the right of the Supreme Council to adopt laws and resolutions, but did not define the area of issues to be resolved by every type of acts.

In furtherance of the above constitutional provisions the article 49 of the Law of December 21, 1994 “On the Supreme Council of the Republic of Belarus” established that the Supreme Council, exercising the legislative power, should adopt laws and resolutions. Part one of article 54 of this Law stipulated a binding effect of laws and resolutions adopted by the Supreme Council in the whole territory of the Republic of Belarus. It confirms the right of the Supreme Council to take resolutions on various issues within its competence with a view to regulate the most important public relations, which are thereby legislative acts. So, on October 18, 1994 the Supreme Council adopted the Resolution “On making alterations and addenda to the Regulations on the restoration of the rights of citizens, who suffered from repressions in the 20’s and 80’s”, and on September 6, 1995 it adopted the Resolution “On the notion of state policy of the Republic of Belarus in the field of environment”.

Article 146 of the Constitution of 1994 enshrined that the Constitution should have the highest legal force; laws and other acts of state bodies should be issued on the basis and in accordance with the Constitution of the Republic of Belarus; if there is inconsistency between a law and the Constitution, the Constitution shall be applied; and if there is inconsistency between another normative act and a law, the law shall be applied. Given this requirement of the Constitution, the Constitutional Court in its Judgment of December 15, 1995 declared unconstitutional the article 2 of the Law “On the Correlation of the Acts of the Supreme Council of the Republic of Belarus Having Legal Effects” in so far as validating resolutions of the Supreme Council equally with laws of the Republic of Belarus. Such solution was based on the conclusion of the Constitutional Court that the Constitution, placing laws and other normative acts in the system of legal acts thus establishes their legal force: the law has a higher legal force in relation to other acts, including the resolutions of the Supreme Council.

At the same time the Constitutional Court notices that the rank of the Supreme Council resolutions in the national legal system was kept. According to the Law “On the Correlation of the Acts of the Supreme Council of the Republic of Belarus Having Legal Effects” they were acts which have legal effects and were binding upon all state bodies, officials, enterprises, institutions, organisations, political parties and other public associations, citizens of the Republic of Belarus, foreign nationals and stateless persons, being in the territory of the Republic of Belarus.

Taking into account the legal status and constitutional powers of the Supreme Council a steady notion of “legislative acts” became firmly established in the law-making theory and practice during the considered period of time in the absence thereof in the Constitution of 1978 and the Constitution of 1994. It included laws of the Republic of Belarus and resolutions of normative nature adopted by the Supreme Council. These acts distinctly differed from other acts of the Supreme Council, normative acts of the Government, ministries and other state bodies. The notions of “legislation”, “acts of legislation” were applied to all these acts in their entirety.

In view of the foregoing and based on the provisions of the Constitution of 1978, the Constitution of 1994 as well as the Constitutional Court Judgment of December 15, 1995 the Constitutional Court considers that the Supreme Council resolutions adopted by the Supreme Council in the course of legislative activities are legislative acts.

4. According to part three of article 6 of the Law of the Republic of Belarus of January 10, 2000 “On Normative Legal Acts of the Republic of Belarus” the change of the status of a state body (official) which adopts (issues) relevant normative legal acts does not entail the termination of the previously adopted (issued) normative legal acts. Taking into account the given rule – and notwithstanding that in accordance with the Constitution the representative and legislative body of the Republic of Belarus is the Parliament – the National Assembly of the Republic of Belarus, not the Supreme Council, and the resolutions of the Houses of Parliament – the House of Representatives and the Council of the Republic – under article 1 of the Law “On Normative Legal Acts of the Republic of Belarus” are not ranked as legislative acts, – the Supreme Council resolutions in the system of normative legal acts of the Republic of Belarus keep their effect.

In practice the Supreme Council resolutions are recognised as legislative acts in so far as they are altered, added and declared as ceased to be in force by laws (for example, the resolutions of the Supreme Council of the Republic of Belarus of June 16, 1993 “On Enterprises (Associations), Organisations and Types of Property which are not Subject to Denationalisation and Privatisation” and “On State Privatisation Programme» were declared as ceased to be in force by the Law of the Republic of Belarus of July 16, 2010; as for the Regulations on the restoration of the rights of citizens, who suffered from repressions in the 20’s and 80’s, approved by the Resolution of the Supreme Council of the Republic of Belarus of December 21, 1990, they were altered by the Law of the Republic of Belarus of January 4, 2003).

Besides, according to the Edict of the President of the Republic of Belarus of January 19, 1999 No. 34 “On Formation and Issuance of the Code of Laws of the Republic of Belarus” the Code of laws of the Republic of Belarus is formed in the Republic of Belarus since January 1, 1999. Since January 1, 2008 the issuance of the Code of Laws is carried out in the electronic form as a complete systematised collection of legislative acts of the Republic of Belarus. Along with laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus it contains resolutions of the Supreme Council of the Republic of Belarus of normative nature, including the Resolution of the Supreme Council of the Republic of Belarus of June 16, 1993 “On the Approval of the Regulations on the procedure for damages caused to economic entities by unlawful actions of state bodies and their officials”.

On the basis of the Constitution establishing the system of state authorities, the Law “On Normative Legal Acts of the Republic of Belarus” determines the types of normative legal acts of the Republic of Belarus and provides that legislative acts are the Constitution of the Republic of Belarus, laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus (articles 1 and 2). The Supreme Council as a body of state power now absent in the system of state bodies, so its resolutions are not included in the list of normative legal acts of the Republic of Belarus and are not ranked as legislative acts. Since July 23, 2008 the laws of the Republic of Belarus “On the Supreme Council of the Republic of Belarus”, “On the Correlation of the Acts of the Supreme Council of the Republic of Belarus Having Legal Effects” and “On Publication and Coming into Force of Laws of the Republic of Belarus and Other Acts Adopted by the Supreme Council of the Republic of Belarus and its Bodies” which regulated the issues concerning the Supreme Council resolutions, were declared as ceased to be in force in connection with the adoption of the Law of the Republic of Belarus “On the National Assembly of the Republic of Belarus”. At the same time a number of the Supreme Council resolutions of normative nature are in force now and in practice there are questions of legitimacy of their application as legislative acts.

Whereas the Law “On Normative Legal Acts of the Republic of Belarus” does not provide for legal regulation of relations as to ranking the Supreme Council resolutions in the system of normative legal acts of the Republic of Belarus and determining their legal force, the Constitutional Court comes to a conclusion that there is a gap in legislation. It makes backgrounds for violation of the rights and freedoms of citizens, the rights and legitimate interests of organisations guaranteed by the Constitution. It generates the possibility of ambiguous interpretation and application of the Supreme Council resolutions that is not consistent with the constitutional principles of everyone’s equality before the law and supremacy of law. It neither meets the requirements deriving from the principle of the supremacy of law on coherence of legal norms, their certainty and clarity, bringing the normative legal acts in a unified system.

Following the provisions of the Constitution of 1978, the Constitution of 1994 prior to the introduction of changes and additions adopted at the republican referenda of November 24, 1996 as well as the Judgment of the Constitutional Court of December 15, 1995 “On the conformity of article 2 of the Law “On the Correlation of the Acts of the Supreme Council of the Republic of Belarus Having Legal Effects” to the Constitution”, the Constitutional Court considers that the Supreme Council resolutions of normative nature, adopted prior to November 27, 1996 (the date of entry into force of the Constitution of the Republic of Belarus of 1994 with changes and additions adopted at the republican referenda of November 24, 1996), shall be ranked as legislative acts. In view of the provisions of part three of Article 137 of the Constitution of the Republic of Belarus, parts one, three and four of article 10 of the Law of the Republic of Belarus “On Normative Legal Acts of the Republic of Belarus” at present such resolutions of the Supreme Council have lower legal force in relation to laws of the Republic of Belarus, decrees and edicts of the President of the Republic of Belarus, bur they are of higher legal force in relation to other normative legal acts.

In accordance with article 72 of the Law “On Normative Legal Acts of the Republic of Belarus” if a gap has been revealed in normative legal acts those rule-making bodies (officials), which adopted (issued) them, shall make relevant additions or changes to them with a view to fill the gap.

In the Constitutional Court opinion filling a gap in legislation as regards ranking the resolutions of the Supreme Council of the Republic of Belarus and determining their legal force will ensure the implementation of the constitutional principles of everyone’s equality before the law and the supremacy of law.

In view of the foregoing and being guided by part eight of article 22, parts two and fourteen of article 24, articles 69 and 74 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 adequate protection of the rights and freedoms of citizens of the Republic of Belarus, rights and legitimate interests of organisations, as well as the respect for the principle of legal certainty, to recognise as necessary to fill the gap in legal regulation of the relations as regards ranking the resolutions of the Supreme Council of the Republic of Belarus, having normative nature, and determining their legal force.

2. To propose to the House of Representatives of the National Assembly of the Republic of Belarus to ensure legislative regulation of the relations following the present Decision by way of making relevant changes and additions to the Law of the Republic of Belarus “On Normative Legal Acts of the Republic of Belarus”.

3. The present Decision shall come into force from the date of its adoption.

4. To publish the present Decision in accordance with legislation.

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