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 Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danyluk, V.P. Isotko, L.G. Kozyreva, 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, 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 some measures to improve the functioning 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 Addenda and Alterations to Certain Laws of the Republic of Belarus on Notarial Activity”.

Having heard the reporting judge T.V. Voronovich, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter – the Constitution), the Law of the Republic of Belarus “On Making Addenda and Alterations to Some Laws of the Republic of Belarus on Notarial Activity”, the Civil Procedure Code of the Republic of Belarus (hereinafter – the Civil Procedure Code), the Law of the Republic of Belarus “On Notaries and Notarial Activity” (hereinafter – the Law on Notaries) 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 Addenda and Alterations to Some Laws of the Republic of Belarus on Notarial Activity” (hereinafter – the Law) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on June 21, 2012, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on June 29, 2012 and submitted for signing by the President of the Republic of Belarus.

Provisions that make addenda and alterations to the Civil Procedure Code and the Law on Notaries are aimed at improving the order of consideration of indisputable claims of citizens and legal persons for recovery of money sums (debt), harmonisation of provisions of these legislative acts with the regulatory requirements of the Decree of the President of August 11, 2011 No. 366 “On Some Issues of Notarial Activity” and the rules of other legislative acts.

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

1. Point 1 of article 1 of the Law adds part five to Article 6 of the Civil Procedure Code. This part sets forth that for the realisation of the right to judicial protection the person concerned must observe the order of prior-court settlement of the case, if it is provided by the legislation for the notary’s executive inscription to recover indisputable money sums (debt) from the debtor, as well as in other cases stipulated by the legislative acts.

According to the Constitution the Republic of Belarus shall be bound by the principle of the supremacy of law (part one of Article 7); the State shall take all measures at its disposal to create the domestic and international order necessary for the full enjoyment of the citizens’ rights and freedoms that are specified in the Constitution (part one of Article 59); everyone shall be guaranteed protection of one’s rights and freedoms by a competent, independent and impartial court within time periods specified in law (part one of Article 60).

As the Constitutional Court stated in its decision of 17 October 2008 “On the Conformity to the Constitution of the Republic of Belarus of the Law “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Notaries and Notarial Activity”, the legislator is authorised to establish the legal regulation of social relations in a certain field, as well as the peculiarities of this regulation, including, according to the composition of the subjects, in the interests of the State, individuals and organisations.

Confirming this legal position, the Constitutional Court notes that the introduction of the law established procedures for handling indisputable claims of the creditor as to the debtor to recover money sums (debt) on the basis of notary’s executive inscription is aimed at the maximum simplification of the process of consideration of documents, reducing the time of their examination, and period for debt collection for the creditors. The main advantage of an executive inscription for both writ proceedings, and action proceedings in civil court proceedings consists of a more prompt resolving of issue on the satisfaction of indisputable claims of creditors (citizens and legal entities).

So, being a notary instruction for the forced levy from the debtor of money sums, executive inscription is at the same time the executive document, which comes into force on the date of its execution. The executive inscription is made by a notary on the day of the filing of an application, without the need to obtain the statement of objections from the part of debtors or the need of their personal presence. The executive inscription can be made by any notary, regardless of place of residence of the debtor (except for recovery from the parents of the funds spent by the State for the maintenance of children in public care). After receiving the executive inscription, the creditor can immediately transmit it to the bailiff for the commencement of proceedings.

The Constitutional Court believes that provisions of the Constitution, on the basis of the objectives of the rule of law and guaranteeing the right to judicial protection, do not exclude the possibility of applying on certain conditions extrajudicial forms of protecting rights and freedoms. With the requirement of the Law to observe prior extrajudicial settlement of a case does not deprive the person concerned in an event of a dispute of the right to protection of his/her rights and legitimate interests in courts by filing a claim.

2. The constitutional principle of the rule of law determines the content of the current system of legislative acts, which are issued on the basis of and in accordance with the Constitution, should be accurate, logical and consistent, providing clear understanding of law and uniform application of it in practice.

Revision of Article 394 of the Civil Procedure Code, which defines the notion of writ proceedings, as well as cases where the writ proceedings may have to improve the legal regulation of relations in part of withdrawal of a number of indisputable claims from the court's jurisdiction and transferring them to notaries for extrajudicial consideration.

The Constitutional Court believes that such change of the order of resolving a case in writ proceedings will not affect the quality of consideration of relevant applications, as they are based on indisputable demands of a creditor. The new legal regulation is aimed at achieving efficiency and timeliness of settling the request, as well as improving the efficiency and economy of civil justice as a whole.

3. The Constitutional Court in the Message “On constitutional legality in the Republic of Belarus in 2011” stated that the principle of the supremacy of law provided in the Constitution implies an absolute priority of a right in relation to the State, its agencies and officials, who must act within the limits of the Constitution and legal documents adopted in accordance with it. A rule-of-law State cannot be established without the supremacy of law in political, social and economic life.

According to Article 8 of the Universal Declaration of Human Rights, everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law.

International Covenant on Civil and Political Rights stipulates an obligation of each State participating in the Covenant to ensure that any person whose rights or freedoms are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity, and to develop the possibilities of judicial remedy (subparagraphs “a” and “b”, paragraph 3 of Article 2).

In assessing constitutionality of addenda and alterations made by the Law to Articles 6 and 394 of the Civil Procedure Code, the Constitutional Court proceeds from the related provisions of these international instruments and of Article 60 of the Constitution. According to the Constitutional Court, the legislator in establishing the obligation of prior extrajudicial resolution of the case, stipulated by legislative acts, as a prerequisite to the right to appeal for judicial protection, which is motivated by the need to reduce the burden on the courts considering civil matters, first of all should consider the duty of the State to provide access to justice and to ensure the protection of everyone's rights and freedoms by a competent, independent and impartial court.

In connection with the abovementioned the Constitutional Court notes that the development of market relations requires establishment of a more effective mechanism for the protection of property rights, inviolability of which is protected by law, and that improvement of legislation, regulating public relations in the field of notarial activities, must be carried out not by removing a number of civil cases from the courts’ competence, but on the basis of the functional purpose of notary, the main task of which is to protect the rights and interests of citizens, legal entities, and the public interest by notarial activity.

4. Safeguarding the rights and freedoms of citizens of the Republic of Belarus is the ultimate goal of the State. State agencies, officials and other persons entrusted with the execution of state functions shall take necessary measures within their competences to implement and protect individual rights and freedoms (Article 21, Part Two of Article 59 of the Constitution).

A number of regulations of the Law is aimed at the implementation of these provisions of the Constitution.

Thus, in accordance with point 13 of Article 2 of the Law, Article 38 of the Law on Notaries is complemented with a provision stipulating the right of a notary, while representing a person(s) who have applied for a notary, to sign the application for state registration, to submit the application and other documents necessary to perform registration activities to the organisation of state registration of immovable property, rights to it and deals with it, to receive a certificate of state registration and (or) other documents, as well as to appeal actions (inaction) of a registrar.

The Constitutional Court finds that provisions of the Law providing for the expansion of services provided by notaries, timely fulfillment of state registration of immovable property, rights to it and deals with it, aim to guarantee the proper implementation of the constitutional rights and legal interests of citizens and organisations.

5. Ensuring the constitutional principle of the rule of law (Article 7 of the Constitution) and the ensuing principle of legal certainty means that legal regulation must be clear and unambiguous, excluding duplication of rules and their multiplicity on the same subject, and normative legal acts should be harmonised.

The Law makes a number of addenda and alterations to the Law on Notaries with a view to harmonise its provisions with provisions of other laws, including the laws of the Republic of Belarus “On the Basics of Administrative Procedures”, “On State Registration of Immovable Property, Rights to It and Deals with It”, and “On Mortgage”, as well as the Decree of the President of October 16, 2009 No. 510 “On Improvement of the Control (Oversight) Activities in the Republic of Belarus”, of September 1, 2010 No. 450 “On Licensing Certain Types of Activities” and of 25 February 2011 No. 72 “On Some Issues of Regulation of Prices (Tariffs) in the Republic of Belarus”.

In particular, point 25 of Article 2 of the Law provides a new wording of point 2 of Article 67 of the Law on Notaries, according to which the territorial principle of attestation of a pledge agreements is set only for land attestation of mortgage contracts, namely at the location of the land.

The exclusion of the territorial principle of attesting pledge agreements of other assets is conditioned by the fact that the majority of notarially certified mortgage agreement secure credit obligations. At present, due to the application of the territorial principle, pledger and pledgee have to go to a local notary to sign contracts on the mortgage not where the liability is incurred (residence of the borrower, place of the bank and non-bank financial institutions), but where the property is located, which causes additional financial (travel expenses) and time costs.

To create the most favorable conditions for the conclusion of agreements and notarisation of the mortgage for persons concerned the Law fixed the possibility to access any notary, regardless of the location of immovable property transmitted to mortgage (excluding land), which is consistent with point 1 of Article 11 of the Law “On Mortgage”.

Based on the identified constitutional and legal meaning of the Law, the Constitutional Court notes that the realisation of appropriate constitutional rights and freedoms of citizens is secured by notarial activities. Given the fact that the implementation of notarial functions carried out on behalf of the State, the provisions of the Law are aimed at establishing of legal mechanisms for the protection and defense of the rights and freedoms of citizens in this area of public relations.

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 Addenda and Alterations to Certain Laws on Notarial Activity” conforming to the Constitution of the Republic of Belarus.

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.

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