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

on the basis of part one of Article 116 of the Constitution of the Republic of Belarus, subpoint 1.1 of point 1 and point 3 of the Decree by the President of the Republic of Belarus of June 26, 2008 No. 14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus”

in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addendum to the Law of the Republic of Belarus “On Consumer Rights Protection”.

Having heard the reporting judge V.V. Podgrusha, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Alterations and Addendum to the Law of the Republic of Belarus “On Consumer Rights Protection” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:

The Law of the Republic of Belarus “On Making Alterations and Addendum to the Law of the Republic of Belarus “On Consumer Rights Protection” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on April 2, 2012, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 18, 2012 and submitted for signing by the President of the Republic of Belarus.

The Law makes alterations and addendum to several articles of the Law of the Republic of Belarus “On Consumer Rights Protection”, aimed to clarification of certain provisions and their harmonization with the norms of legislative acts adopted later, as well as to improve the legal regulation of activity of public consumer associations for the protection of consumer rights.

While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.

1. According to Article 1 and 7 of the Constitution, the Republic of Belarus has been declared a rule-of-law State, in which the supremacy of law principle is established.

The mentioned principle is a fundamental constitutional and legal principle, under which the principles of equality and justice are implemented, the constitutional values and goals are ensured and achieved in the State and society.

According to Article 59 of the Constitution the State shall take all measures at its disposal to create domestic and international order, necessary for the full enjoyment of the rights and freedoms of citizens of the Republic of Belarus, provided by the Constitution.

One of the measures to ensure the full realisation of rights and legitimate interests by citizens, is a guarantee for everyone by the Constitution of protection of one’s rights by competent, independent and impartial court within the terms, defined by law (part one of Article 60 of the Constitution).

Article 62 of the Constitution declares the right of every citizen to legal assistance, including the right to use at any time the assistance of lawyers and one’s other representatives in court.

Ensuring of conformity of legislative regulation of the corresponding relations with the provisions of international legal instruments is essential for the proper functioning of national consumer rights protection mechanisms.

Thus, Guidelines for consumers protection, adopted by the UN General Assembly Resolution 39/248, April 9, 1985, establish the obligation of governments to establish or maintain legal and/or administrative measures to enable consumers or, as appropriate, relevant organizations to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Such procedures should take particular account of the needs of low-income consumers (point 28).

In accordance with the Agreement on the main areas of cooperation of states – members of the Commonwealth of Independent States in the field of consumer protection of 25 January 2000, governments of member-states of the Agreement contribute to the creation of the conditions, including legal, to the activities of independent associations of consumers, development of legal regulations that affect the lawful rights and interests of consumers, and procedures for handling consumer complaints, as well as creating systems for sharing consumer information between the parties (Article 5).

Analysis of the Law which make alterations and addendum to the Law “On Consumer Rights Protection”, indicates that they contain provisions generally aimed at the implementation of the constitutional principles and norms with a view to ensure, through clarification of certain legal provisions, clear and unambiguous understanding and uniform law enforcement and thus properly protect the rights of citizens – consumers of goods and services.

2. Point 9 of Article 1 of the Law is aimed to the adjustment of legislative regulation of certain relations, arising from activities of public associations in protection of consumer rights, according to which the Law “On Consumer Rights Protection” is supplemented by Article 48. This Article defines, in particular, consumer rights protection mechanism, carried out free of charge on behalf of consumer by public associations of consumers, as well as conditions of expenses compensation, incurred by public associations of consumers in such activities.

2.1. Thus, part 1 of point 2 of Article 48 states, that the manufacturer (seller, supplier, representative, executor, repair organization) should indemnify expenses of public association of consumers that are related to filing an application on behalf of the consumer with a claim to the manufacturer (seller, supplier, representative, executor, repair organization) to eliminate the violations and recover losses caused by these violations, appeal to court with the complaint to protect consumer rights, represent and protect in a court the rights and lawful interests of a consumer. It is also defined, that the compensation of mentioned expenses is possible at the written request of a public association of consumers after the satisfaction of claim by manufacturer (seller, supplier, representative, executor, repair organization) with which the public association of consumers addressed on behalf of the consumer or after the court decision in favor of consumer, if public association of consumers has not demanded so when applied to court for consumer’s rights protection; by a court decision on a public association of consumers’ complaint for protection of consumer’s rights.

The Constitutional Court, noting the established mechanism for recovery of public associations’ costs, draws attention of legislator on certain omission in the regulation of amount of expenses, associated with consumer’s rights protection, levied by a public association of consumers.

Proceeding from the identified constitutional and legal meaning of the provisions of the Law about the gratuitous nature of the services, provided to the consumer by a public association of consumers, and the need of compensation of expenses, incurred by mentioned association, the Constitutional Court supposes, that in the case of satisfaction of customer claims, in order to avoid ambiguous approaches in determining the amount of expenses to be compensated, all expenses incurred in the case, including court costs, as well as other necessary expenses, arising prior to going to court and related with hearing of a case by court, including the costs of examination, are to be compensated.

2.2. Point 3 of Article 48 states, that realization by the public association of consumers of its rights to give advice to consumer on the protection of his rights, filing an application on behalf of the consumer with a claim to the manufacturer (seller, supplier, representative, executor, repair organization) on the elimination of violations and on compensation to the consumer of losses caused by these violations, address to court with a complaint for the protection of consumer’s rights, representation and protection in a court of rights and lawful interests of a consumer (indefinite number of consumers) is available, if an employee of the public association of consumers, who exercises the mentioned rights of this public association, possesses a certificate of qualification.

The Constitutional Court considers that setting up on the legislative level of such requirement to employees of a public association of consumers can not be considered as a provision, limiting rights and lawful interests of public association of consumers and its employees, in particular the constitutional right to work as a right to choose the profession, type of occupation and work in accordance with one's vocation, capabilities, education and vocational training, and having regard to social needs (part one of Article 41 of the Constitution). Establishing requirements for certification of mentioned employees, which is carried out to test the knowledge of the legislation on consumer protection, is directed both to protect the rights and legitimate interests of consumers by improving the quality of advice for consumers, receiving quality services under the contract of gratuitous services by them, as well as to protect the legitimate rights and interests of the public association of consumers. The high qualification of employees of a public association of consumers will contribute to a more qualitative assessment of the circumstances for consumer protection in order to obtain maximum compensation of incurred expenses, the exclusion of abuse by a consumer of his right.

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

In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.

Guided by parts one, seven of Article 116 of the Constitution of the Republic of Belarus, parts eight, thirteen, fourteen of Article 24 of the Code of the Republic of Belarus on Judicial System and Status of Judges, subpoint 1.1 of point 1 and point 3 of the Decree by 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 of the Republic of Belarus

RULED:

1. Recognise the Law of the Republic of Belarus “On Making Alterations and Addendum to the Law of the Republic of Belarus “On Consumer Rights Protection” conforming to the Constitution of the Republic of Belarus.

To draw attention of law-making bodies at the necessity of specification of consumer rights protection mechanism with participation of public association of consumers taking into account the identified constitutional legal meaning of the rules of Article 48 of the Law of the Republic of Belarus “On Consumer Rights Protection” (point 9 of Article 1 of examined Law), on the grounds of validity of compensation to public association of consumers of all expenses incurred in the case, including court costs, as well as other costs arising prior to going to court and related to necessary proceedings, including examination.

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

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

Presiding Officer – O.G. Sergeeva,
Deputy Chairwoman
of the Constitutional Court
of the Republic of Belarus