The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, T.V. Voronovich, S.E. Danilyuk, V.P. Isotko, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, O.G. Sergeeva, A.G. Tikovenko, S.P. Chigrinov

with the participation of:

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

the General Prosecutors’ Office of the Republic of Belarus represented by V.L. Turco, Chief of Department for Supervision over the legality of judicial decisions in criminal matters of the General Prosecutors’ Office of the Republic of Belarus;

the Ministry of Internal Affairs of the Republic of Belarus represented by S.I. Protsenko, interim chief of the Department of the Execution of Punishment of the Ministry of Internal Affairs of the Republic of Belarus;

the State Institution «Research center on the issues of strengthening lawfulness and legal order of the General Prosecutor’s Office of the Republic of Belarus» represented by V.M. Khomich, Director of the named institution,

on the basis of part eight of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges

in the exercise of the right to submit to the President of the Republic of Belarus, Houses of the National Assembly of the Republic of Belarus, Council of Ministers of the Republic of Belarus, other state bodies within their competence proposals on the need to make alterations and (or) addenda to acts of legislation

in court session considered the appeal of Mr V.A. Ritvinsky on the gap in the criminal legislation in the field of the regulation of the relief of a convicted person from serving a sentence in form of deprivation of liberty due to a disease.

Having analysed the norms of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Criminal Code of the Republic of Belarus (hereinafter – the Criminal Code), Criminal Executive Code of the Republic of Belarus and other legislative acts of the Republic of Belarus, opinions of the state’s organs and other organisations, the Constitutional Court of the Republic of Belarus found the following.

1. In his appeal the applicant has indicated that his father, who was convicted by a court to a deprivation of liberty, has a serious disease that prevents the serving of sentence and is a ground for relief from serving a sentence or a mitigation of a punishment in accordance with Article 92 of the Criminal Code. However, the appealer's father fell ill with this serious illness before the sentence was rendered, and therefore he was refused in presentation for release from serving a sentence of imprisonment due to the disease. The courts, in turn, refused to convict with the application of Article 70 of the Criminal Code («The appointment of a mitigated sentence than prescribed for the offense») and apply a non-custodial sentencing, justifying it by the fact that his health status was taken into account when rendering a sentence. The appealer points out that these circumstances indicate a gap in the legislation, whose presence makes it difficult to ensure the implementation of the principles of justice and equality before the law.

From the analysis of the views of public authorities and other organizations on the considered issue follows the conclusion that there is no uniform understanding of the criminal law provisions defining the conditions for relief from punishment, or mitigation of punishment in case of a disease.

Thus, the Supreme Court of the Republic of Belarus believes that a relief from punishment or its mitigation in case of a disease is an independent institution of criminal law, which is optional and represents a practical implementation of principles of justice and humanism. The use of this institution by the courts is based on the strict observance of the law, so the grounds for the claim that part 2 of Article 92 of the Criminal Code creates a de facto inequality of individuals before the law are not seen.

General Prosecutors’ Office of the Republic of Belarus draws attention to the fact that person, who developed a serious disease before being sentenced in accordance with part 2 of Article 92 of the Criminal Code cannot get a relief from punishment or get its mitigation, and therefore has to serve a sentence imposed by a court often in extremely difficult state of health. As a result, individuals who developed a serious disease before being sentenced, and those who developed a serious disease after being sentenced, are placed in an unequal position that violates the principles of justice and equality before the law.

Ministry of Interior Affairs of the Republic of Belarus points out that the rights of convicts, who developed a serious disease before being sentenced, are taken into account by the legislator, their protection is provided by a number of rules of criminal law, in particular by part 1 of Article 62, Articles 70 and 86–89 of the Criminal Code, so the grounds for raising an issue of the constitutionality of part 2 of Article 92 of the Criminal Code are not seen.

According to the Ministry of Justice of the Republic of Belarus, the rules of the Criminal Code ensure the implementation of the principle of equality before the criminal law of all subjects of criminal liability, and do not restrict the constitutional rights of particular groups of individuals. However, in this situation there are prerequisites for improving the legislation in order to achieve an unambiguous understanding of certain rules of criminal law while applying them, particularly Article 92 of the Criminal Code.

The State Institution «Research center on the issues of strengthening lawfulness and legal order of the General Prosecutor’s Office of the Republic of Belarus» believes that the court in dealing with an issue of a relief from punishment should not proceed from the time of occurrence of the disease, but from the fact that while serving a sentence, the person suffers a serious disease which clinical course is progressive, and therefore the further serving of sentence is incompatible with the functions of ensuring the health and easing his suffering. Part 2 of Article 92 of the Criminal Code contains the medical criteria of grounds for exemption from serving the sentence and introduces an uncertainty in the application of the rule. The functional manifestation of the disease (the diagnosis) and time of occurrence of the disease should be distinguished, whereby it is impossible to determine exactly when a person developed a disease.

The position of the Department of Criminal Law of the Law Faculty of the Belarusian State University comes to the opinion that the Criminal Code does not limit the possibility of a relief of a person from criminal punishment or its mitigation in case of a serious disease that developed after the commission of a crime and that was noted while rendering a sentence. Subsequent changes in the disease course progressive deterioration of such person after conviction does not preclude the application of part 2 of Article 92 of the Criminal Code.

Educational Institution «Institute for training and retraining of judges, prosecutors of courts and justice institutions of the Belarusian State University» believes that the relief from punishment or its mitigation in accordance with part 2 of Article 92 of the Criminal Code is the right of the court, which in addition to the severity of the crime takes into account the personality of the convicted person, the nature of disease and other circumstances. The mere fact of the development of a disease before the verdict is not a reason to refuse a convict of an act of humanity. In connection with that a wrongful interpretation of part 2 of Article 92 of the Criminal Code, which is based solely on the letter, but not on the sense of the law, creates a inequality de facto before the law of persons serving sentences having a severe disease, which prevents serving of a sentence, depending on when such disease developed: before or after the person was sentenced.

2. In evaluation of approaches of a legislator to the regulation of a relief from punishment or its mitigation in case of a disease, the Constitutional Court proceeds from the following.

Under the Constitution, the Republic of Belarus is a rule of law state, which ensures legality and law and order (first and third parts of Article 1), the individual, his rights, freedoms and guarantees for their attainment manifest the supreme goal and value of society and the State (Article 2), and safeguarding the rights and liberties of the citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21).

The Constitution (part 3 of Article 25) and international instruments, in particular Article 7 and paragraph 1 of Article 10 of the International Covenant on Civil and Political Rights, Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, paragraph 4 of Article 5 of the Convention on the Human Rights and Fundamental Freedoms of the Commonwealth of Independent States stipulate that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, and all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person.

In accordance with the rules and principles of the Constitution and international legal acts the criminal liability in Belarus is also based on the principles of justice and humanity, embodied in the Criminal Code. According to the rules of Article 3 of the Criminal Code, penalties and other measures of criminal liability ought to be fair, that is to be established and awarded considering the nature and degree of social danger of the crime, the circumstances of its commission and the individuality offender (part 6); the Criminal Code provides for the physical, mental, material, environmental, and other security of a human; the person who committed a crime should be imposed with a punishment or other measures of criminal liability that are necessary and sufficient for its correction; the punishment and other measures of criminal responsibility are not intended to cause physical suffering or humiliation of human dignity (part 7).

The Constitutional Court notes that implementation of the principles of justice and humanity, which are the principles of criminal law and criminal liability, applies to a system of penalties under the Criminal Code, and to the order their execution.

In particular, the presence of serious illness of a person (not mental) is not an obstacle to a sentence under the General Part of the Criminal Code. In addition, the actual (physical) opportunity of a person to serve the appropriate penalty usually associated with a disability of persons called to criminal liability provided for in the Criminal Code as a circumstance that prevents a number of types of punishment, in particular such types of punishment as public works, corrective work, restriction of freedom. In the event of circumstances specified above in the period of serving a sentence the court upon a submission by body, entrusted with the execution of the sentence, reliefs a person from further serving of sentence or mitigates it for the unserved part of a sentence (part 4 and 5 of Article 49, part 3 and 6 of Article 52, part 5 and 7 of Article 55).

3. According to Article 22 of the Constitution everyone is equal before the law and entitled without any discrimination to equal protection of the rights and legitimate interests.

Criminal Law (part 2 of Article 92 of the Criminal Code) provides for relief by the court from serving a sentence or its mitigation for a person who fell ill after the verdict with another, except psychic, serious disease that prevents from serving a sentence, that is, if the convict developed a disease of such severity that the physical relief from suffering associated with the manifestation of the disease is impossible while serving a sentence. In this case the severity of the offense, the personality of a convict, the nature of disease and other circumstances are taken into account.

In accordance with the Criminal Executive Code the serious disease is one of the reasons for a relief of a person from serving a sentence (part 6 of Article 186). Part 6 of Article 187 of the Criminal Executive Code prescribes that the submission for a relief from serving a sentence due to a serious disease is sent to the court by the chief body or institution that are responsible for the execution of a sentence other measures of criminal liability. Along with the submission an opinion of medical or medical rehabilitation expert committee and a personal record of the convict are sent to the court. The submission must contain data describing the behavior of the convicted person while serving a sentence.

Instruction on the procedure for medical examination of convicts and the list of diseases that prevent the further serving of a sentence are set out in the Resolution of the Ministry of Internal Affairs and the Ministry of Health of the Republic of Belarus of February 16, 2011 No. 54/15.

From the applicant's appeal to the Constitutional Court and from the presented materials it is seen that his father was refused to submit to the court the issue of a relief from serving a sentence due to a disease, because a special medical commission has determined that the disease of the convicted person that prevents him from serving a sentence, developed before the person was sentenced.

According to the Constitutional Court, from analysis of the constitutional-legal content of Article 92 of the Criminal Code it follows that the will of the legislator aimed at the expression of humanism from the State to a person with a serious disease that prevents further serving of a sentence, and therefore setting a possibility that the court relieves the person from serving a sentence or it is mitigated. The time condition in this article of the Criminal Code in relation to occurrence of a serious disease, i.e. the medical criteria under which a person may be relieved from serving a sentence or it could be mitigated, if that person developed a disease after the verdict, indicates the presence of legal uncertainty, which is expressed in the inability to establish in some cases the time of occurrence of the disease.

The Constitutional Court considers that the uncertainty of the content of legal rule implies the possibility of ambiguous understanding and law enforcement, as pointed by the applicant's appeal to the Constitutional Court, what could lead to a violation of the constitutional principles of equality before the law and the rule of law.

4. In the Message «On constitutional legality in the Republic of Belarus in 2011» the Constitutional Court pointed out that the legislator must make such appropriate legal regulation of social relations and legal rules set out clearly and precisely, in accordance with constitutional provisions. Ambiguity and uncertainty in the rules of certain legal acts give rise to an ambiguous understanding and application of these rules and, therefore, may lead to violations of the rights and lawful interests of citizens.

In confirming this legal position the Constitutional Court notes that the principle of legal certainty, being an integral part of the rule of law, both in law-making and law enforcement serves as the necessary guarantees to ensure the effective protection of the rights and freedoms of citizens.

Based on the constitutional principle of equality before the law, persons who have a serious disease that prevents further serving of a sentence, must be guaranteed a consideration by the court on the possibility of their relief from serving a sentence or its mitigation considering the gravity of the offense, the personality of a convicted, the nature of the disease and other circumstances, regardless of time of occurrence of the disease: before or after the person was sentenced.

Equality before the law can be ensured only if the uniform interpretation and application in practice of legal rules curried out. This implies the requirement of clarity and certainty of legal regulation of social relations in a particular area.

According to the Constitutional Court, the removal of a legal uncertainty in the regulation of a relief from serving a sentence or its mitigation due to a disease that prevents the serving of a sentence, will ensure the realization of the constitutional principles of the rule of law, equality before the law, justice and humanity.

In view of the foregoing and being guided by part one of Article 116 of the Constitution of the Republic of Belarus, Articles 22 and 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus

RULED:

1. In order to comply with the constitutional principles of the rule of law, equality before the law, justice and humanity, to eliminate the legal uncertainty it is necessary to introduce of changes to the Article 92 of the Criminal Code to establish the possibility for a relief of a person from serving a sentence or its mitigation due to a serious disease that prevents serving of a sentence, regardless of the time of the occurrence of such disease.

2. Propose to the Council of Ministers to prepare a draft law on amending the Criminal Code of the Republic of Belarus and submit it in the established order in the House of Representatives of the National Assembly of the Republic of Belarus.

3. This Decision shall come into force from the date of adoption.

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

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