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 2011, 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, 2011” (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, 2011” 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 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

ON CONSTITUTIONAL LEGALITY
IN THE REPUBLIC OF BELARUS, 2011

According to the Constitution of the Republic of Belarus (hereinafter – the Constitution) the Republic of Belarus is proclaimed a democratic, social State based on the rule of law which exercises supreme control and absolute authority over the whole of its territory and implements an independent internal and foreign policy, defends its independence and territorial integrity, its constitutional system, and safeguards legality and law and order.

The formation of a democratic, social State is impossible without the law, which not only secures the achieved level of social relations, but also acts as a vector of their civilised development.

The democracy and supremacy of law are two interdependent and interrelated constitutional values.

The democracy as sovereignty of the people, being a component of the constitutional system of the Republic of Belarus, is expressed primarily in the electoral system, organisation of powers in the State as well as in the variety of political institutions, ideologies and opinions. According to the Basic Law 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 democracy relates to realisation of such values as legality, equality, justice, human rights and freedoms.

Further improvement of constitutional democracy involves filling it with new forms and content that meet the requirements of the Belarusian society and the State at the present stage.

The principle of supremacy of law stipulated in the Constitution means an absolute priority of the law against the State, its bodies and officials who are obliged to act within confines of the Constitution and acts of legislation adopted in accordance therewith. A State based on the rule of law may not succeed without the supremacy of law in political, social and economic life.

In a democratic State, based on the rule of law and separation of powers, an important role is played by the judiciary which is designed through administration of justice to protect constitutional values, above all constitutionally guaranteed rights and freedoms of every individual and citizen. The role of constitutional justice in the protection of these values is determined by a common functional mission of the Constitutional Court that consists in the review of constitutionality of normative legal acts in the State in accordance with Article 116 of the Constitution.

In 2011 the activities of the Constitutional Court were aimed at ensuring the supremacy and direct effect of the Constitution, at protecting the constitutional system as well as the law and order, at maintaining balance of interests of an individual, society and the State, at forming a democratic social State based on the rule of law in which an individual, his rights, freedoms and guarantees of their realisation are the supreme value and goal.

Based on constitutional values the Constitutional Court has adopted decisions aimed at positive impact on legislative and law-enforcement practice, consolidation of constitutional legality, development of constitutional democracy, maintenance of the supremacy of law, protection of rights and freedoms of an individual, rights and interests of organisations.

I

Exercising powers conferred by the Decree of the President of the Republic of Belarus of June 26, 2008 No. 14 «On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus» in 2011 the Constitutional Court examined 109 laws in the exercise of obligatory preliminary review of constitutionality.

The Constitutional Court, in assessing constitutionality of law rules in the exercise of obligatory preliminary review, proceeds from the principles and rules of the Constitution, revealed constitutional and legal meaning of the rules under review as well as takes into account the generally recognised principles and rules of international law expressed in its legal positions.

The legal positions of the Constitutional Court act as a reference point to rule-making bodies in adopting new legal rules. They also allow elimination of conflicts that arise in legislation and law-enforcement, promote the formation of coherent constitutional and legal environment and ensure the constitutional legality.

1. According to the constitutional provisions the Republic of Belarus shall be bound by the principle of supremacy of law, thereby the State and all bodies and officials thereof shall operate within the confines of the Constitution and the acts of legislation adopted in accordance therewith. Pursuant to them the Constitutional Court cleared up the constitutional and legal meaning of the law rules and formulated the legal positions aimed at avoiding conflicts and legal uncertainty in their wording, with a view to protect rights, freedoms and legitimate interests of citizens, rights and interests of organisations, to prevent an unconstitutional law-enforcement.

Thus, in reviewing the constitutionality of the Law «On Making Alterations and Addenda to the Tax Code of the Republic of Belarus» the Constitutional Court in the decision of December 26, 2011 drew attention to the regulation of the procedure provided for the tax authorities and their officials applying to the notary for an executive inscription about the collection of tax, fee (duty), penalty fee from property of a payer (other obliged person). According to the Constitutional Court these provisions have legal uncertainty: the additions to Article 59 of the Tax Code of the Republic of Belarus suggest establishing an applying procedure at the level of a legislative act, while the addition to Article 81 of the Code provides for the establishment of such a procedure in legislation. The executive inscription about the collection of tax, fee (duty), penalty fee from the property of payer (other obliged person) affects to a certain extent the right of property. Thus, the Constitutional Court considers that the procedure provided for tax authorities and their officials applying to notary for such an inscription should be established at the legislative level. By this the Constitutional Court confirmed in its decision the legal position stated in the decisions of December 23, 2009 and October 11, 2010. According to this position in case when tax authorities and their officials in exercise of powers vested in them violate rights and legitimate interests of citizens, the latter may exercise their constitutional right to appeal to state authorities for judicial protection by filing a relevant complaint under the procedure provided in Articles 85–87 of the Tax Code. The right to appeal against decisions of tax authorities, actions (inaction) of their officials is one of the fundamental rights of payers and is crucial for protection by citizens and organisations of their legitimate rights and interests.

In reviewing constitutionality of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Implementation of Administrative Procedures» in its decision of May 10, 2011 the Constitutional Court revealed the constitutional and legal meaning of the provisions of Article 34 of the Law of the Republic of Belarus «On Patents for Plant Varieties» and noted that the establishment of liability for the infringement of the rights of varieties authors (selectionists), expressed in misappropriation of the authorship, personal restraint to co-authorship, disclosure of the contents of the application without the consent of the author of a variety (selectionist) is reasonable and proportionate to protected rights of the author of a variety (selectionist). At the same time it is stated in the decision that the legislator has not completely followed the principle of the legal certainty in determining liability in the Law for violation of rights of varieties authors (selectionists) for it has not specified the occurrence of liability in accordance with legislative acts. The Constitutional Court concluded that in the examined rule the legislation should be understood as legislative acts and this rule should be applied according to the revealed constitutional and legal meaning since it is unacceptable to restrict the rights and freedoms of an individual by subordinate acts.

A similar conclusion was made by the Constitutional Court in its decision of November 16, 2011 adopted on the results of reviewing constitutionality of the provisions of part 1 of Article 29 of the Law of the Republic of Belarus «On Archives and Record Management in the Republic of Belarus». It provided for «another violation of legislation» as a ground for restriction of access to archival documents. Given the fact that the laws must be observed not only by citizens but also by state authorities as well as by all the other subjects who are competent to assume their vested powers, the Constitutional Court considers that the legitimacy of restrictions on access to archival documents should correlate with accessibility of documents having historical and cultural value, maintaining the balance of public and private interests, so such restrictions should be established at the level of a legislative act.

The legal position of the Constitutional Court stated in the decision of December 29, 2011 in reviewing constitutionality of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Administrative-Territorial Structure» is aimed at the need to follow the constitutional principle of the supremacy of law and the legality principle deriving from it in rule-making activities. In assessing the provisions of Article 7 of the Law of the Republic of Belarus «On Administrative-Territorial Structure of the Republic of Belarus» the Constitutional Court specified that the grounds, conditions, procedure for establishing a special regime of public administration and of declaring administrative-territorial and territorial units as closed as well as the powers of relevant state authorities in this area should be determined in legislative acts. As to forms, methods, and other procedural matters related to the exercise of powers by state authorities administering the said territories they can be regulated by other acts of legislation.

It appears from the meaning of legal positions of the Constitutional Court in the above-mentioned and other decisions that the legislator should exercise legal regulation of social relations, under which the legal rules would be stated clearly and exactly in accordance with constitutional provisions. The Constitutional Court has repeatedly drawn attention in its decisions to that ambiguity and uncertainty in the rules of some legal acts generate an ambiguous understanding and application of these rules and, therefore, may lead to violations of rights and legitimate interests of citizens.

1.1. In a number of decisions the Constitutional Court stated legal positions addressed directly to the legislator. Their content is determined by the necessity of improvement of the relevant legal regulation of social relations on the basis of the rules and principles enshrined in the Constitution, as well as the need to fill the identified gaps in the laws under review, to eliminate conflicts and legal uncertainty.

Thus, in assessing the constitutionality of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus Concerning the Legal Status of Foreign Citizens and Stateless Persons in the Republic of Belarus» the Constitutional Court in the decision of June 24, 2011 drew the attention of the legislator to that the legal uncertainty, as expressed in the ambiguity of understanding of the term «citizens» may result in inconsistent law-enforcement associated with an arbitrary extension or exemption of provisions of Article 7 of the Law of the Republic of Belarus «On the Basis of the State Social Insurance» to foreign citizens and stateless persons.

In the decision of the Constitutional Court of May 26, 2011 «On the conformity of the Law of the Republic of Belarus «On Making Alterations to Certain Laws of the Republic of Belarus» to the Constitution of the Republic of Belarus» it is pointed out that the legislator has made an inconsistency in determining the competence of local assemblies in the Law of the Republic of Belarus «On the Republican and Local Assemblies» with the Law of the Republic of Belarus «On Local Government and Self-government in the Republic of Belarus» which may lead to legal uncertainty in law-enforcement. In Article 36 of the Law «On Local Government and Self-government in the Republic of Belarus» it is established that either the bodies of public territorial self-government or local assemblies may decide on fund-raising of the costs and (or) refunding of the relevant local budget as specified by the local assembly (means of self-assessment), which is not within the competence of local assemblies as provided for in Article 14 of the Law «On the Republican and Local Assemblies».

In reviewing constitutionality of the Law of the Republic of Belarus «On Making Alterations and Addenda to the Law of the Republic of Belarus «On Trade Unions» the Constitutional Court in its decision of May 10, 2011 noted that the Law under review stipulates the guarantee for its representatives, authorised in accordance with legislation to exercise public inspection, and employees, authorised by a trade union to participate in committees on collective bargaining, labour disputes, in conciliation commissions, not to be subject to disciplinary action without the prior consent of the trade union.

At the same time the Constitutional Court pointed out that the terms and conditions for subjecting the aforesaid individuals to disciplinary action, including termination of the labour contract are regulated by the Labour Code of the Republic of Belarus. But the latter does not provide for such a condition of subjecting to disciplinary action as the prior consent of the trade union body. The presence of this provision in a special law regulating the activities of trade unions creates legal uncertainty in the application of disciplinary action which may be overcame by stipulating the relevant provisions in the Labour Code.

When reviewing constitutionality of rules of the Law of the Republic of Belarus «On Counteracting Human Trafficking» which provide that according to the decision of the Supreme Court of the Republic of Belarus the property owned by an organisation (including an international or foreign one), implicated in trafficking, shall be subject to expropriation. In its decision of December 29, 2011 the Constitutional Court noted that these rules of the Law are consistent with the provisions of the Constitution (articles 44, 59). At the same time the attention of the legislator was drawn to the absence of proper mechanisms to realise these provisions of the Law regarding expropriation of the property of organisations that does not satisfy the principle of legal certainty.

1.2. The legal positions formulated in some of the Constitutional Court decisions are addressed to both the legislator and law-enforcement bodies with a view to prevent arbitrary application of the provisions of laws characterised by legal uncertainty, which in practice may result in violation of rights and legitimate interests of citizens.

Thus, in the decision of November 17, 2011 «On the conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Issues of Exit from the Republic of Belarus and Entry into the Republic of Belarus» to the Constitution of the Republic of Belarus» the Constitutional Court pointed out that in law-enforcement, relating to exercise by individuals of the right to leave the Republic of Belarus or to enter into it, the term «civil claim» should be understood as a claim to be initiated in civil, economic and criminal proceedings. Such an approach will ensure the rights of the participants of not only criminal but also civil and economic processes.

Based on the provisions of Articles 7, 33 and 35 of the Constitution in its decision of October 28, 2011 the Constitutional Court revealed the constitutional and legal meaning of the rule of paragraph 3 of point 1 of Article 1 of the Law of the Republic of Belarus «On Making Alterations and Addenda to the Law of the Republic of Belarus «On Mass Events in the Republic of Belarus». According to this rule the picketing is equal to a joint mass presence of people in a predetermined public place (including in the open air) at a specified time to perform a predetermined action organised (including via a global computer network Internet or other networks) for public expression of their social and political interests or protest. The Constitutional Court pointed out that the application of this rule should be based on its constitutional and legal meaning and understanding in relation to other rules of the Law under review which regulate the issues of citizens’ participation in mass events. They do not say about any presence of people in the place of picketing, but about their participation in the joint mass event, held to perform a predetermined action in view of public expression of their social and political interests or protest.

At the same time the Constitutional Court noted that in applying the Law of the Republic of Belarus «On Mass Events in the Republic of Belarus» in order to create conditions for exercise of the constitutional rights and freedoms of citizens, to secure public safety and order during these events the constitutional and legal meaning of the provisions that establish their organisation and holding in the Republic of Belarus should not be falsified. And any restrictions on the freedom of mass events should be proportionate with, and really necessary in a democratic society. State authorities, political parties, trade unions and other organisations, and citizens have no right to interfere with and prevent the holding of mass events if they are held in compliance with the requirements of the said Law.

In reviewing constitutionality of the Law of the Republic of Belarus «On Making Addenda and Alterations to Certain Laws of the Republic of Belarus» the Constitutional Court assessed the rules including those which provide for criminal responsibility for certain acts of crime, specify the formal element of a number of penal acts and administrative offences. The Constitutional Court drew attention of the law-enforcement bodies to that the understanding of the said rules of the Law should be based on the provisions of the Constitution. In this regard rights and legitimate interests of an individual guaranteed by the State as well as other values and goals proclaimed in the Constitution should be ensured while bringing him to criminal or administrative liability and applying the rules of the Criminal Code of the Republic of Belarus, the Code of the Republic of Belarus on Administrative Offences.

The basis of the legal positions of the Constitutional Court is the principle of the supremacy of law set by the Constitution and the principles of legality and legal certainty arising from it. In virtue of them the legal regulation should be predictable to let the participants of legal relations be certain of the stability of their legal status, in the strength of the State and public order. These principles serve as the main instrument for achieving the goals of a democratic social State based on the rule of law, the most important tasks of which are to ensure and protect the constitutional rights and freedoms of an individual as well as to balance the constitutionally protected values and goals.

2. In the State based on the rule of law the principle of free access to justice is of a great importance. It is the value of a democratic State based on the rule of law including the Republic of Belarus. Access to justice is closely linked with the right to judicial protection – one of the fundamental human rights that is universal.

The issues of stipulation of individuals’ right to judicial protection, guaranteed by Article 60 of the Constitution, at the legislative level are often subject to constitutional review. In resolving issues of constitutionality of laws the Constitutional Court analyses consistently and comprehensively the rules of law on access to justice as means of guaranteeing the constitutional right to judicial protection. In a number of its decisions while identifying the constitutional and legal meaning of the rules of the examined laws that ensure this constitutional right, the Constitutional Court formulated the legal positions in view of its proper understanding and application.

Thus, in reviewing constitutionality of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Codes of the Republic of Belarus on Improving the Legal Mechanism of Judicial Decisions Revision» the Constitutional Court in the decision of July 7, 2011 concluded that the proceedings in revision of the court rulings which have entered into legal force is designed to ensure either the equitable judicial decision or legal stability, including the recognition of the legal force of judicial decisions. Without them the balance of public and private legal interests is unattainable. In this regard it was admitted that the legislator, while fixing the possibility of revision in order of judicial review of regulations of the Presidium of the Supreme Court on civil and criminal matters, was guided primarily by the priority of rights and freedoms of an individual and a citizen.

In addition, in the Constitutional Court’s opinion, the adoption by the Plenum of the Supreme Court of a final decision on legality and well founded nature of court rulings is aimed to a certain extent to implement the provisions of Article 61 of the Constitution. Pursuant to them everyone shall have the right in accordance with the international instruments ratified by the Republic of Belarus to appeal to international organisations to protect their rights and freedoms if all available interstate means of legal protection have been exhausted.

In the decision of July 7, 2011 «On the conformity of the Law of the Republic of Belarus «On the Appeals of Individuals and Legal Persons» to the Constitution of the Republic of Belarus» a legal position of the Constitutional Court concerning the constitutional right of everyone to judicial protection was developed. In assessing constitutionality of the rules of this Law regulating, in particular, the possibility of appealing against answers (decisions, refusals) of an organisation, first to the parent one (if any), and then – in court, the Constitutional Court pointed out that in case where his rights, freedoms and legitimate interests are violated every subject of legal relationship may use all the legal remedies provided by legislation, including recourse to a court. Article 60 of the Constitution contains no clause on inadmissibility of judicial protection after pre-trial dispute settlement, therefore, the access to the latter in order to protect rights, freedoms and legitimate interests serves as an additional legal remedy and should not be considered as limiting the constitutional right to judicial protection and restricting the jurisdiction of the court.

In reviewing constitutionality of the Law of the Republic of Belarus «On Arbitration Courts» the Constitutional Court in its decision of July 7, 2011 recognised that the rules of Articles 47 and 48 of the Law, stipulating the possibility to appeal against the decision of arbitration court under the procedure provided by law, by filing to the court an application in order to reverse the arbitration court decision, are aimed at the realisation of the constitutional right to judicial protection. It implies not only the right to appeal to a court, but the possibility of real judicial protection in the form of restoration of the violated rights and freedoms in accordance with rules laid down by legislation, defining a court and procedure to appeal against a specific decision. The possible reversal by the state court of a decision of the arbitration on the grounds specified in Article 47 of the Law can not be considered as violating the constitutional right of parties to the arbitration agreement to judicial protection. The reversal of the decision of the arbitration court does not prevent its participants to appeal subsequently for protection of their violated rights and legitimate interests to the arbitration court or ordinary or economic court within their jurisdiction.

This legal position of the Constitutional Court was confirmed in its decision of December 27, 2011 in the exercise of the constitutional review of the rules of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus». According to them the Code of Civil Procedure of the Republic of Belarus was added by section VIII1 «Proceedings on an application to reverse the decision of the arbitration court». The Constitutional Court considers that the regulation in this Code of procedural issues related to proceedings on an application to reverse the decision of the arbitration court indicates the establishment of the real mechanism ensuring guaranteed realisation of the constitutional rules on everyone’s right to judicial protection (Article 60) and right to appeal against court rulings (Article 115).

The need to implement the principle of free access to justice was aimed in the decision of May 6, 2011 adopted in the exercise of the review of constitutionality of the Law of the Republic of Belarus «On Copyright Law and Neighbouring Rights». In assessing the rules of the Law stipulating the right to appeal against the decisions on state accreditation or its denial, early termination of state accreditation of an organisation for collective management of property rights the Constitutional Court noted that the right to appeal in court against decisions is provided only in respect of denial of state accreditation, although its early termination may also be linked with violation of the rights of an organisation for collective management of property rights. According to the Constitutional Court the organisations for collective management of property rights in case of early termination of their state accreditation should be guaranteed judicial protection of their rights and legitimate interests. The guaranteed judicial protection relates to the lawful and well-founded court ruling, availability of its review and revision, including by appeal under established procedure.

Thus, pursuant to the rule of Article 60 of the Constitution as well as the international legal acts ratified by the Republic of Belarus, the legislator is obliged to provide access to justice, ensuring everyone’s protection of his rights and freedoms by a competent, independent and impartial court. The Constitutional Court confirmed its earlier legal position on the direct effect of the rule of part 1 of Article 60 of the Constitution by the requirements laid down in Article 137 of the Constitution. The right to judicial protection is one of the fundamental human rights and freedoms which are recognised and guaranteed in accordance with generally recognised principles and rules of international law, and the Republic of Belarus in pursuance of part 1 of Article 8 of the Constitution recognises the supremacy of generally recognised principles of international law and ensures that its legislation complies with them.

3. The major component of the rule of law is respect for the constitutional rights, freedoms and legitimate interests of an individual and a citizen. In this regard the Constitutional Court in a number of its decisions has formulated legal positions of positive content, indicating the stipulation and development in laws under review of provided by the Constitution rights and freedoms of citizens, as well as guarantees of their security by the State, including freedom of assembly, meetings, street processions, demonstrations and picketing which do not violate the law and order and rights of other citizens of the Republic of Belarus; everyone’s right to file personal or collective appeals to state bodies; right to legal assistance; right to a healthy environment; right of citizens of the Republic of Belarus to health protection; right to social security in old age, illness, disability, loss of ability to work, loss of breadwinner and in other cases provided by law etc.

In the decision of December 23, 2011 «On the conformity of the Law of the Republic of Belarus «On Advocacy and Advocate Activity in the Republic of Belarus» to the Constitution of the Republic of Belarus» the Constitutional Court was guided by part 1 of Article 62 of the Constitution in conjunction with the provisions of Articles 21 and 59 of the Constitution, as well as the legal position set out earlier in its decision of October 5, 2000. The Constitutional Court concluded that these constitutional rules were reflected and developed and that provisions of international legal acts were taken into account in the Law under review.

At the same time the Constitutional Court examined constitutionality of point 2 of Article 26 of the Law, under which the professional protection of rights and interests of clients in criminal and civil cases, in cases arising from economic (business) disputes and cases of administrative offences in ordinary and economic courts, bodies conducting criminal or administrative process shall be provided only by advocates, and pointed out the following. Given the constitutional nature of justice, the administration of which is assigned to the courts as bodies of state (judicial) power (Article 6, part 1 of Article 109 of the Constitution), as well as the responsibilities of the State to guarantee everyone’s judicial protection, including by providing qualified legal assistance, the access of advocates is justified as they are persons providing professional protection of rights and interests of clients in ordinary and economic courts, bodies, conducting criminal or administrative process and as one of their main tasks is to provide legal assistance in a professional manner to clients with a view to ensure protection of their rights, freedoms and interests.

In assessing constitutionality of laws the Constitutional Court was also guided by the principle of mutual responsibility of the State and the citizen that has a constitutional content. The Constitution, enshrining the rights and freedoms of an individual, the State's responsibility towards a citizen to create conditions for free and dignified personal development, simultaneously sets the constitutional duties of the citizen, who is responsible for their strict performance before the State.

The legal position of the Constitutional Court stated in the decision of July 7, 2011 adopted on the results of review of constitutionality of the Law of the Republic of Belarus «On the Appeals of Individuals and Legal Persons» was based on that principle. It was noted in the decision that the regulation of exercise of everyone’s constitutional right to appeal, which provides not only rights but also responsibilities of applicants, is aimed at ensuring proper exercise of this right, at preventing cases of abuse and thereby creates conditions for enjoyment and protection of rights and freedoms of citizens, rights and legitimate interests of legal persons who are applicants, as well as rights and interests of state bodies and other organisations, rights and freedoms of individual entrepreneurs who consider appeals.

In the decision of October 28, 2011 the Constitutional Court noted that the legislative approach aimed at clarifying the legal regulation concerning organisation and holding of mass events, providing security during them is consistent with Article 35 of the Constitution, which declared the freedom to hold such events and its state guarantee if they neither disturb law and order nor violate the rights of other citizens of the Republic of Belarus.

The Constitutional Court considers that the principle of mutual responsibility of citizens, the State and other subjects of public relations should be seen as a basis for balance of constitutional values, showing the consolidation and development of constitutional democracy. It is a democratic State based on the rule of law that creates the conditions for the mutual responsibility of an individual and the State in the priority of the rights and freedoms of an individual and a citizen.

4. The principle of proportionality of restrictions on rights and freedoms of individual is of particular importance to the protection of the rights, freedoms and legitimate interests of citizens and other participants of legal relations. Given this principle the Constitutional Court assesses the rules of laws under review that impose restrictions on constitutional rights and freedoms of an individual and a citizen, rights and legitimate interests of organisations.

Thus, assessing constitutionality of restrictions associated with the freedom of assemblies, meetings, street processions, demonstrations and picketing, the Constitutional Court in its decision of October 28, 2011 indicated that the restrictions imposed by the Law under review are means of legal defense of the public order and public safety, morals, health of population, rights and freedoms of others. The possibility to establish such restrictions at the level of a law is not excluded also by the rules of international acts (point 2 of Article 29 of the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights).

In the decision of October 28, 2011 «On the conformity of the Law of the Republic of Belarus «On Making Addenda and Alterations to Certain Laws of the Republic of Belarus» to the Constitution of the Republic of Belarus» the principle of proportionality was taken into account in reviewing constitutionality of the rules of this Law which establish several restrictions. Thus, the addenda to the Law of the Republic of Belarus «On Public Associations» prohibit the activities of public associations, unions, aimed at assistance of granting privileges and advantages by foreign States to the citizens of the Republic of Belarus due to their political, religious beliefs or national origin in violation of the legislation of the Republic of Belarus. These restrictions serve to ensure equal conditions for activities of all the public associations and unions, prevent use of freedom of association at the expense of national sovereignty.

In accordance with the additions introduced by the Law under review to part 4 of Article 481 of the Electoral Code of the Republic of Belarus the list of sources of donations to the election funds of candidates for Presidency of the Republic of Belarus, deputies of the House of Representatives of the National Assembly shall be limited. In particular, the Law establishes a requirement according with which donations to the election funds of candidates for the organisations, which received foreign gratuitous aid during the year preceding the date of donation from foreign States, foreign organisations, international organisations, foreign citizens and stateless persons, as well as anonymous donors shall be prohibited. The prohibition to make such donations is also provided to organisations which were registered under the established procedure at least one year prior to the date of donation.

The Constitutional Court concluded that such legal regulation is consistent with part 2 of Article 66 of the Constitution providing for an equal basis for candidates participating in elections for public office, as well as with Article 70 of the Constitution under which the expenditure incurred in the preparation and conduct of elections shall be covered by the State within the limits of the funds assigned for that purpose. In cases determined by law, the expenditure for preparation and conduct of elections may be carried out at the expense of public associations, enterprises, offices, organisations and citizens.

Based on the principle of proportionality the Constitutional Court assessed constitutionality of restrictions and prohibitions provided in the rules of other laws of the Republic of Belarus: Articles of Chapter 4 of the Law «On Copyright Law and Neighbouring Rights» (decision of May 6, 2011), Articles 8, 18 and 26 of the Law «On Advocacy and Advocate Activity in the Republic of Belarus» (decision of December 23, 2011), point 41 of Article 1 of the Law «On Making Alterations and Addenda to the Tax Code of the Republic of Belarus» (decision of December 26, 2011), point 31, paragraphs three–five of point 62 of Article 1 of the Law «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus» (decision of December 27, 2011), Articles 19-21 of the Law «On the Prevention of Spread of Diseases that Pose a Hazard to Public Health, of Human Immunodeficiency Virus» (decision of December 28, 2011); Articles 6 and 20 of the Law «On Assisted Reproductive Technologies» (decision of December 28, 2011) and others.

In identifying the constitutional and legal meaning of restrictions and prohibitions imposed by legislator the Constitutional Court proceeds from the fact that legal restrictions regardless of the reason for their establishment should ensure a proper balance between constitutional rights and freedoms of citizens and public interests of the State and society. Any restrictions on constitutional rights and freedoms should not only be legally valid, socially justified, but comply with requirements of justice, be necessary and proportionate to constitutionally recognised purposes of such restrictions. As such purposes the Constitution sets interests of national security, public order, protection of the morals, health of the population, rights and freedoms of others. The principle of the supremacy of law implies that restrictions and prohibitions shall be established by the legislator not arbitrarily but based on principles and rules of the Constitution. Only when the legislator respects the said constitutional requirements the implementation of the principle of supremacy of law is guaranteed.

II

According to the Decree of the President of the Republic of Belarus of June 26, 2008 № 14 «On Certain Measures to Improve Activities of the Constitutional Court of the Republic of Belarus» the Constitutional Court, along with the exercise of obligatory preliminary review of constitutionality of laws, is vested with other powers.

Under subpoints 1.2-1.5 of point 1 of the called Decree the Constitutional Court on the President's proposal sets forth a position on constitutionality of international treaties before the President of the Republic of Belarus signs normative legal acts of the Republic of Belarus that express its consent to be bound by these treaties; by order of the President of the Republic of Belarus it gives official interpretation of decrees and edicts of the President of the Republic of Belarus concerning constitutional rights, freedoms and duties of citizens; on the proposal of the Presidium of the National Assembly of the Republic of Belarus takes a decision on the existence of instances of systematic or flagrant violation by the local Council of deputies of legislative requirements; on proposals of the President of the Republic of Belarus, 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 Council of Ministers of the Republic of Belarus it sets forth its position on documents adopted (issued) by foreign States, international organisations and (or) their bodies and affecting interests of the Republic of Belarus, in terms of compliance of these documents with generally recognised principles and rules of international law.

In 2011 the House of Representatives of the National Assembly of the Republic of Belarus has addressed the Constitutional Court with proposal to set forth a position of the Constitutional Court on the conformity of the Law of the Republic of Poland «On the Pole’s Card» with generally recognised principles and rules of international law.

The Constitutional Court has considered the proposal and took its decision on April 7, 2011. In reaching this decision the Constitutional Court started from the fact that citizens of the Republic of Belarus are recognised as subjects of relations regulated by the Law. Republic of Belarus as a sovereign State under the first point of Article 10 of the Constitution guarantees its citizens the protection and patronage in Belarus and abroad.

This decision of the Constitutional Court takes into account such generally recognised principles of international law as non-interference in internal affairs and sovereign equality of States. Thus, the principle of noninterference in internal affairs suggests that no State or group of States has the right to intervene, directly or indirectly, for any reason in internal or external affairs of any other State. Consequently, all forms of intervention against the legal personality of the State are in violation of international law. The principle of sovereign equality of States includes following elements: legal equality of States, enjoyment of rights inherent in full sovereignty by the State; legal duty to respect other nations; inviolability of territorial integrity and political independence of the State, right of the State to freely choose and develop its political, social, economic and cultural systems, and obligation of each State to comply fully and faithfully with its international obligations and to live in peace with other nations.

The Constitutional Court noted that point 3 of part 1 of Article 2 of the Law provides associations, registered and operating in the territory of the Republic of Belarus, with authority to give citizens of the Republic of Belarus a document that has legal value for receiving Pole’s Card in consulates of the Republic of Poland in accordance with administrative procedures regulated by legislation of the Republic of Poland. Direct imposition of powers by State’s authority bodies of the Republic of Poland on entities, including associations, registered and operating in the territory of the Republic of Belarus in accordance with its legislation, is also provided by part 4 of Article 13 of the Law, according to which the Chairperson of the Council of Ministers of the Republic of Poland declares in the Official Gazette of the Republic of Poland «Monitor Polski» a list of Polish and polonic organisations authorised to issue abovementioned certificates.

These provisions of the Law show that they cover not only subjects under the jurisdiction of the Republic of Belarus, but also other subjects on its territory, since these subjects are authorised to carry out legal actions in the territory of the Republic of Belarus in order to ensure legal procedures stipulated by the legislation of the Republic of Poland.

The Constitutional Court concluded that rules contained in point 3 of part 1 of Article 2, part 4 of Article 13 of the Law are not consistent with such generally recognised principles of international law as the principle of sovereign equality of States and non-interference in affairs within the domestic jurisdiction of another State.

Under the principle of sovereign equality the State enjoys full sovereignty and exercises jurisdiction within its territory. No State can exercise jurisdiction in the territory of another State without its consent.

The Constitutional Court drew attention of the House of Representatives to an opportunity, in protecting interests of the Republic of Belarus, to take into account the position set forth by the Constitutional Court while improving provisions of certain laws.

Regarding the realisation by the Constitutional Court of any other powers provided for in the Decree of the President of the Republic of Belarus of June 26, 2008 № 14, the Constitutional Court notes that it had not received relevant proposals from authorised subjects in 2011.

III

On the basis of part 4 of Article 116 of the Constitution, the Constitutional Court in order of the subsequent constitutional review gives opinions on constitutionality of legal acts on proposals of the President of the Republic of Belarus, the House of Representatives and Council of the Republic of the National Assembly of the Republic of Belarus, the Supreme Court of the Republic of Belarus, the Supreme Economic Court of the Republic of Belarus, Council of Ministers Republic of Belarus.

In 2011 competent authorities did not address to the Constitutional Court with proposals of reviewing constitutionality of normative legal acts.

Citizens and organisations in absence of institute of individual constitutional complaint in the Republic of Belarus may implement their right to access to the constitutional justice by contacting organs and persons who have the right to make proposals to the Constitutional Court on the review of constitutionality of a legal act. Such right is granted to citizens and organisations in accordance with part 3 of Article 22 of the Code of the Republic of Belarus on judicial system and status of judges.

In 2011, the competent authorities received from citizens and organisations 58 applications, in which applicants have raised the question of the need to consider compliance of certain normative legal acts with the Constitution. These applications often addressed legal issues relating to administrative, criminal, criminal procedure, penal, labour, pension, and civil procedure legislation and some of its other spheres, as well as resolutions of Government, acts of ministries and other central state administration bodies, decisions of local executive and administrative bodies.

However, not one of such initiative proposals was supported by competent authorities due to the absence, in their opinion, of sufficient grounds for the application to the Constitutional Court.

Previously, the Constitutional Court initiated a proposal for amendments to national legislation with a view to precise legal regulation of procedure of indirect access to constitutional justice through authorised subjects. At present, the drafting of laws of the Republic of Belarus «On Constitutional Court Proceedings» and «On Making Addenda and Alterations to the Code of the Republic of Belarus on Judicial System and Status of Judges» comes to an end. It is supposed that the abovementioned procedure will be regulated by these acts.

The Constitutional Court believes that the legislative regulation of matters of indirect individual access to constitutional justice will ensure consistency of their settlement by all competent authorities. However, the lack of proposals to the Constitutional Court from a part of mentioned subjects, including those based on the initiative of citizens, shows a certain misunderstanding of the role and importance of the institute of constitutional control as generally recognised by the international community as civilised method of resolving legal disputes, which has special significance for the State and society.

IV

In accordance with part 1 of Article 116 of the Constitution and part 8 of Article 22 of the Code of Judicial System and Status of Judges the Constitutional Court may submit to the President of the Republic of Belarus, the House of the National Assembly, the Council of Ministers, other state organs, in accordance with their authority, proposals to introduce alterations and (or) addenda to acts of legislation and (or) adoption of new normative legal acts.

The Constitutional Court in its work exercises the mentioned authority, aimed at identifying legal gaps and contradictions in legislation with the view to constitutional principles and rules for their subsequent elimination by the legislator. In some cases, the Constitutional Court has taken decisions on the basis of applications of citizens and organisations.

In 2011 the Constitutional Court received a total of 837 applications, including 676 written applications by citizens (from which 21 was collectively signed by 476 people) and 30 applications by organisations.

Many applications are an important source of information about the existing problems of legal regulation. Their timely resolution can improve the quality of legislation, provide a more complete and effective realisation of rights and lawful interests of citizens and organisations.

1. In connection with the application by citizens, the Constitutional Court, on September 27, 2011, took a decision that is aimed at implementing the principle of legal equality and non-discrimination on grounds of age, or disability.

In considering the legislative definition of «able-bodied person» for purposes of applying point «d» of part 2 of Article 51 of the Law of the Republic of Belarus «On Pension System» the Constitutional Court has examined a number of constitutional provisions guaranteeing the right of citizens of the Republic of Belarus to labour, social security, etc. The decision of the Constitutional Court stated that the implementation of constitutional rules expresses a balanced approach of the State to ensure a decent standard of living: the State is accountable to a citizen to create conditions for free and dignified human development, given the primacy of citizen’s activity, his willingness and ability to self-expression and self-assertion, also through the implementation of the right to work in all possible forms and manifestations. The object of the State in this case is a creation of economic, organisational and legal conditions that would facilitate the realisation of the rights guaranteed by the Constitution, all-round development of personality, of its potential. At the same time, the social State is obliged to provide assistance and support based on their financial, economic and material resources to certain categories of citizens.

2. In order to eliminate the legislative gap, the implementation of the constitutional principles of equality before the law and rules that guarantee the right to work, the Constitutional Court took a decision on October 4, 2011, in which it considered the legality of failure to provide a leave to care for a child under the age of three years to the working father, other relatives of a child, in case if child's mother is an active self-entrepreneur.

The Constitutional Court pointed out that the failure to provide leave to care for a child under the age of three years to his working father, other relatives of a child, if his mother is a self-entrepreneur, is not based on constitutional principles and rules deriving from the nature of the Republic of Belarus as a social State under the rule of law, but is caused by a gap in the regulation of relations in this sphere, which leads in practice to a violation of rights and lawful interests of citizens.

The decision notes that the legislator is obliged to provide legal regulation, which takes into account objectives of social, including demographic, policy on the concrete historical stage of development of the State, and create especially for families, mothers and fathers caring for children, social conditions that are favorable to realise meaningful public function of education of young children with the highest possible regard to the interests of the family.

The Constitutional Court stressed the importance of respecting constitutional principles of legal equality, proportionality of restrictions of rights and freedoms of citizens, rules guaranteeing the right to labour and social security, non-discrimination in employment and related relationships, as well as social equity, efficient mechanisms to protect family, motherhood , fatherhood and childhood. In this regard, the Constitutional Court has recognised the need to eliminate the gap in legal regulation of relations concerning providing of parental leave until a child reaches the age of three, legally securing the right of the working father and other relatives of a child in fact caring for a child to provide them with the specified leave as well if the mother is self-entrepreneur.

3. On the basis of citizens' application of 21 October, 2011 the Constitutional Court took a decision, in which was emphasised that unlike other procedural codes of the Republic of Belarus (Civil Procedure, Economic Procedure, Criminal Procedure) the Procedural Executive Code of Administrative Offences does not contain rules that define the concept of procedural costs and court charges, their composition and order of recovery, suggesting that there is a gap in the law and a disregard of the principle of consistency and comprehensiveness of the legal regulation of social relations laid down in Article 7 of the Law «On Normative Legal Acts of the Republic of Belarus».

In order to ensure the constitutional rule of law and equality before the law and eliminate the gap in the legislation the Constitutional Court found it necessary to make alterations and addenda to the Procedural Executive Code of Administrative Offences in the definition, composition and order of recovery of procedural costs and court charges in administrative proceedings and suggested that the Council of Ministers prepares a draft law on making appropriate alterations and addenda and submits it in the established order to the House of Representatives.

4. On the basis of an application of the Supreme Economic Court of the Republic of Belarus the decision «On Legislative Acts of the Supreme Council of the Republic of Belarus» was taken on April 12, 2011. Decision deals with issues of leveling regulations of the Supreme Council of the Republic of Belarus to legislative acts and determining their legal validity.

In that decision, the Constitutional Court, having concluded that regulations of the Supreme Council that have normative nature should be considered as legislative acts, noted that in accordance with part 3 of Article 6 of the Law «On Normative Legal Acts of the Republic of Belarus» a change in the status of a state body (its official), which adopts (emits) relevant normative legal acts, does not entail the termination of previously adopted (issued) normative legal acts. Given this rule, despite the fact that, in accordance with the Constitution the representative and legislative body of the Republic of Belarus is the Parliament – National Assembly, and not the Supreme Council, and that regulations of 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 leveled to legislative acts, regulations of the Supreme Council will remain in effect in the system of normative legal acts of the Republic of Belarus.

However, the Law «On Normative Legal Acts of the Republic of Belarus» does not envisage legal regulation of relations related to the definition of a place of regulations of the Supreme Council in the system of normative legal acts of the Republic of Belarus and their legal effect. In this regard, the Constitutional Court came to the conclusion that a legislative gap creates preconditions to violate constitutionally guaranteed rights and freedoms, rights and lawful interests of organisations; triggers a possibility of ambiguous interpretation and application of regulations of the Supreme Council. That is inconsistent with the established in the Constitution rule of law and equality before the law, as well as consequences of the rule of law demand a consistency of legal rules, their certainty and clarity, bringing the regulations into a single system.

The Constitutional Court has proposed to the House of Representatives to provide legislative regulation of relations connected with the definition of the status of regulations of the Supreme Council that are normative in nature and of their legal effect, through making alterations and addenda to the Law «On Normative Legal Acts of the Republic of Belarus».

5. As a result of considering the application of the General Prosecutor’s Office of the Republic of Belarus the Constitutional Court stated its position on whether laws on amnesty are perpetual normative legal acts in the decision of 11 October 2011.

In this decision it was noted that laws on amnesty, adopted by the Parliament of the Republic of Belarus, have certain characteristics, but also meet the general requirements of the normative legal act according to the Law «On Normative Legal Acts of the Republic of Belarus», including the provision that the normative legal the act is valid indefinitely, if something different is not specifically stated in the text. Laws on amnesty contain the rule on the period of the execution of the law (six months from the date of its entry into force). That rule imposes on the competent authorities the obligation to perform at a certain time requirements of these laws in respect of prosecuted or sentenced persons, while not setting limits of the amnesty in time.

Pointing to the absence of a gap in the law, the Constitutional Court drew the attention of the General Prosecutor's Office and other law enforcement bodies of the Republic of Belarus to the fact that for the correct application of amnesty to specific individuals the criteria of determining persons, who are subject to amnesty, conditions of amnesty application, while differentiating period of validity and period of the execution of such laws, set out by the legislator, should be considered in aggregate.

The realisation of proposals of the Constitutional Court to eliminate gaps in legislation, exclude conflicts and legal uncertainty is an important factor in strengthening constitutional legality in rule-making and law enforcement, improving the country's legal system and creating necessary conditions for free and dignified human development.

V

Timely and proper execution of Constitutional Court’ decisions is essential for securing of constitutional legality and rule of law principle.

The Constitutional Court admits positive in general results of state bodies’ and officials’ activities on implementation of legal positions, contained in Constitutional Court’s decisions expressed in adoption of new normative legal acts, as well as in making alterations and addenda to current legislation.

1. So, the legal position of the Constitutional Court, contained in the decision of October 21, 2008, have received its implementation in the Law of the Republic of Belarus of July 3, 2011 «On Making Alterations and Addenda to the Civil, the Economic Procedural and the Civil Procedural Codes of the Republic of Belarus». In this decision the Constitutional Court, while considering the question of holding public auctions during courts’ decisions implementation in civil procedure, stated that the restoration of violated rights and interests of subjects of civil proceedings on the stage of executive proceedings ought to be based on reasonable and fair account of interests of subjects of civil proceedings. Admission of a decrease in value of initial cost of put up for sale property as well as limiting of such decrease in value is justified. However, because Article 23 of the Constitution allows restrictions on individual rights and freedoms only in instances prescribed by law, the rule on limiting the amount of decrease in value of initial cost of property, that is sold on repeated auctions, ought to be stipulated on legislative level. The legal position of the Constitutional Court have found its implementation in the new wording of Article 511 of the Civil Procedural Code.

2. The necessity of legal regulation of the order and particularities of courts’ consideration of complaints of persons sentenced to confinement, deprivation of liberty, life imprisonment, persons held in custody, administrative detainees on application on them of disciplinary penalty in aim of implementation of everybody’s right to court protection is admitted in the decision of the Constitutional Court of May 27, 2010. The Constitutional Court has already drawn attention to the need to ensure the right of persons sentenced to imprisonment to judicial review of punishments implied on them in decisions of April 2, 2001 and of December 24, 2002.

These decisions and legal position of the Constitutional Court are taken into account in the Law of the Republic of Belarus of January 4, 2012 «On Making Alterations and Addenda in Certain Laws of the Republic of Belarus». Chapter 29 of the Civil Procedural Code in accordance with it is supplemented with paragraph 61 «The particularities of consideration and resolution of complaints of persons sentenced to confinement, deprivation of freedom, life imprisonment, persons held in custody on application of punishments to them and complaints of administrative detainees on the application of disciplinary penalties to them».

3. The Constitutional Court, having analysed rules of the Constitution and appropriate legal acts of the Republic of Belarus, in its decisions of December 10, 2009 and of March 4, 2010 has come to the conclusion that decisions of higher tax authorities made on requests, connected with taxation (explanations of tax legislation), are legal acts of non-normative nature. In aim of implementation of the right of everyone to judicial protection as well as providing tax-payers’ rights the Constitutional Court has admitted the need to provide the possibility to appeal decisions of higher tax authorities adopted on requests, connected with taxation (explanations of tax legislation) in court.

The legal position of the Constitutional Court is implemented in the Law of the Republic of Belarus of December 30, 2011 «On Making Alterations and Addenda to the Tax Code of the Republic of Belarus». Point 3 of Article 21 of the Tax Code in accordance with it is supplemented with a new part. The application of the provision of part 1 of Article 21 of the mentioned Code, in accordance with which tax-payers are guaranteed administrative and judicial protection of their rights and legal interests in the manner determined by this Code and other legislative acts, on tax-payers in calculation and payment of taxes, dues (duties) on the basis of written explanations on the use of acts of tax legislation, received by them from the Ministry of Taxes and Duties, is stated in this part.

4. The Constitutional Court, while examining the conformity of the Law of the Republic of Poland on the Pole’s Card to generally recognized principles and rules of international law, drew the attention of the House of Representatives of the National Assembly on the possibility of consideration of the position of the Constitutional Court, contained in this decision with aim to protect interests of the Republic of Belarus in improving the Laws of the Republic of Belarus «On Public Service in the Republic of Belarus» and «On Public Associations», as well as in legal regulation of appropriate public relations concerned with Belarusian compatriots abroad.

The position of the Constitutional Court is taken into account in Laws of the Republic of Belarus: of November 8, 2011 «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus» and of December 30, 2011 «On Making Alterations and Addenda to the Law of the Republic of Belarus «On Public Service in the Republic of Belarus». Article 7 of the Law «On Public Associations» stipulates a ban on activities of public associations, unions, aimed at providing assistance to foreign countries to provide citizens of the Republic of Belarus with privileges and advantages in accordance with political or religious views or nationality in violation of the legislation of the Republic of Belarus. In subpoint 1.13 point 1 of Article 22 of the Law of the Republic of Belarus «On Public Service in the Republic of Belarus» a public official is not entitled to receive documents that provide rights to privileges and advantages in accordance with political or religious views or nationality, as well as to enjoy such privileges and advantages unless otherwise provided in international treaties.

5 The Constitutional Court, analysing the constitutionality of the Law of the Republic of Belarus «On the Budget of State Extra-budgetary Social Protection Fund of the Ministry of Labour and Social Protection of the Republic of Belarus in 2011», in decision of October 11, 2010 pointed out the inexactness of the name of this Law. Such a Law should approve the budget of state extra-budgetary Social Protection Fund of the Republic of Belarus, and the text of the Law should contain the provision that Social Protection Fund of the Ministry of labour and social protection of the Republic of Belarus is the manager of funds of this state extra-budgetary fund. The legal position of the Constitutional Court is taken into account in the Law of the Republic of Belarus of December 30, 2011 «On the Budget of State Extra-budgetary Social Protection Fund in 2011».

6. The Constitutional Court in its decision of June 24, 2011 «On Compatibility with the Constitution of the Republic of Belarus of the Law «On Making Alterations and Addenda to Certain Laws of the Republic of Belarus Regarding Activities of Prosecutor’s Office of the Republic of Belarus» has drew attention to the fact that further development of legislative regulation of prosecution is possible in the direction of a more clear distinction of supervision and procedural guide in criminal investigation functions.

This legal position of the Constitutional Court is taken into account in regulation of issues, connected with establishing of Investigative Committee of the Republic of Belarus. In particular, the discharge of prosecutor from procedural direction of preliminary investigation, which would allow investigators to exercise their powers in criminal investigation more effectively, and for the prosecutor – to carry out functions of supervision of the procedural activities of preliminary investigation bodies.

The Constitutional Court, analysing the activities of public bodies and officials aimed at the execution of Constitutional Court’ decisions and making appropriate alterations and addenda in legal normative acts adopted (issued) by them, draws attention of rule-making bodies (officials) to existence of facts of undue implementation of certain legal positions, expressed in its decisions, that negatively affects ensuring of constitutional rights and freedoms of citizens.

VI

The rule of law principle in rule-making and law enforcement serves as the main factor in providing the supremacy of Constitution, in assertion of constitutional legitimacy and development of constitutional democracy.

The rule of law as the most important feature of a State governed by law includes all the necessary elements which have not only of formal but also of material value. These elements are: legality, legal certainty, prohibition of arbitrariness, access to justice in independent and impartial courts, respect of human rights, and equality before the law.

Implementation of the principle of legality implies the need that laws are observed not only by individuals and legal entities, but also by state bodies and officials and other bodies which perform public functions and must act within their rights and responsibilities. Herewith formal application of law, which does not comply with the spirit of law and justice, ought to be excluded.

Conditions for consistency and predictability of judicial practice are created by implementing principle of legal certainty in rule-making, which increases the confidence of citizens in the State.

The Constitutional Court considers that imposition of restrictions and prohibitions on the State to carry out constitutional duties in modern difficult conditions should not be exercised arbitrarily, should not be unjust and unreasonable. Implementation of the principle of proportionality in establishing restrictions and prohibitions makes it possible to achieve balance between constitutional rights and freedoms of citizens and public interests of State and society. Any restrictions on constitutional rights and freedoms ought to not only be legally valid and socially justified, but also to comply with requirements of justice, must be necessary and proportionate to the constitutionally recognised purposes of such restrictions.

The rule of law principle is violated if there is no opportunity to appeal against action (inaction) of state bodies and officials and to resolve disputes in court. Enhancement of the use of alternative dispute resolution mechanisms, including conciliation, should not exclude the right to judicial protection.

Respect for human rights is a major component of the rule of law. The Constitutional Court carefully analysed if legal mechanism for implementing the constitutional rights and freedoms of citizens is sufficiently defined by the legislator. Herewith the Constitutional Court has repeatedly drawn and draws attention of the legislator and law enforcers that in accordance with Article 2 of the Constitution an individual, his rights, freedoms and guarantees of their realisation shall be the supreme goal and value of society and the State.

The Constitutional Court focuses particular attention on the need to perform such a requirement of the rule of law as ensuring equality before the law, not only formal but also real.

The Constitutional Court considers that unconditional observance of the rule of law principle in rule-making and law enforcement would allow the legislator to ensure a stable, clear and up to date legislation, and effective protection of rights, freedoms and lawful interests of citizens, rights and legitimate interests of organisations for law enforcers.

The objective tendencies of contemporary global processes are characterised by their further globalisation and growing interdependence of nations and peoples. Customs Union and Common Economic Space (CES) are aimed at closer economic cooperation and more complete implementation of socio-economic rights of citizens.

The Constitutional Court admits that the rule of law principle by virtue of its universality is fundamental also to international relations. In this regard acts of interstate formations and law enforcement practice ought to be based on the rule of law, which is consolidated in integration associations through the formation of supranational law, focused on the maximum possible harmonious combination and balance of national interests, universalisation of legal standards, first of all in the sphere of human rights.

Integration, acting as a natural way of development of modern States, creating uniting structures, presumes rising of the national legal systems to a new, higher level, establishment of effective mechanisms of protecting rights and lawful interests of citizens.

The Constitutional Court within its powers had been giving law assessment of constitutionality of laws and other normative legal acts of the Republic of Belarus, based on the rule of law principle with all its elements. Strict adherence to the rule of law principle in rule-making and law enforcement creates necessary conditions for the formation of democratic social State based on the rule of law, in which only respectable personal development, exercise of rights and freedoms of an individual and a citizen, and guarantees of their implementation are possible.

The present Message was adopted in the session of the Constitutional Court of the Republic of Belarus on January 18, 2012.

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