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, V.P. Isotko, L.G. Kozyreva, A.V. Maryskin, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov

 in court session having considered the constitutional legality in the Republic of Belarus in 2012, 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, 2012” (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, 2012” on the National Legal Internet Portal, 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 –
Petr P. Miklashevich,
Chairman of the Constitutional Court
Republic of Belarus

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, 2012

According to the Constitution of the Republic of Belarus (hereinafter – the Constitution) the individual, his rights and freedoms are the supreme value and goal of the society and the State as well as guarantees of their implementation. It determines the content of political, economic, social and legal relations, established and protected by the Constitution.

Recognition of an individual and his human dignity, equal and inalienable rights is a basis for freedom, justice and universal peace. This is enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, which are a part of the Belarusian legal system.

Such values as democratic, social State based on the rule of law, democracy, supremacy of law, justice and equality, parliamentarism, constitutional economy, which are interrelated and require appropriate balance in the democratic development of the society and the State, are stipulated in the Constitution. In this case, the constitutional values have an organising effect on the relevant areas of public relations, act as guidelines, standards for public authorities and officials, citizens and society as a whole.

Exercising its constitutional functions and powers the Constitutional Court of the Republic of Belarus with the purpose to protect the constitutional order, human rights and freedoms considered cases and matters in the light of constitutional values and thus ensured the supremacy and direct effect of the Constitution, asserted constitutional legality in rule-making and law enforcement.

 I

 The present stage of development of the legal system of the Republic of Belarus is characterised by improvement of mechanisms for protecting the rights and freedoms of a man and a citizen. According to the Decree of the President of the Republic of Belarus of 26 June 2008 No.14 “On Certain Measures to Improve the Activities of the Constitutional Court of the Republic of Belarus” the Constitutional Court exercises the obligatory preliminary review of the constitutionality of laws adopted by the Parliament before their signature by the President of the Republic of Belarus.

The legislative body – the National Assembly of the Republic of Belarus – adopted 113 laws in 2012.

Exercising the obligatory preliminary constitutional review the Constitutional Court evaluated laws proceeding from the basis of constitutional rules and formulated legal positions, stated in the decisions. The legal positions reflect the scale of development and provision of protection of constitutional values in the laws, as well as the revealed constitutional and legal meaning of the rules of the laws to prevent their violation in the process of law-enforcement.

1. In legal positions the Constitutional Court revealed the meaning of rights and freedoms of a man and a citizen, examined their interconnection and interdependency with other constitutional values, and paid attention to inadmissibility of substitution or diminishment of one constitutional value for another.

While reviewing the constitutionality of the Law of the Republic of Belarus “On Making Addenda and Alterations to Some Laws of the Republic of Belarus Regarding Notarial Activity” the Constitutional Court in its Decision of 5 July 2012 noted the need to ensure the everybody’s right to judicial protection (Article 60 of the Constitution) as one of the fundamental human rights recognised and guaranteed according to the universally recognised principles and rules of International Law, which is also a guarantee of other rights and freedoms. This Decision specified the following. In cases stipulated by legislative acts the legislator sets forth the obligation to comply with preliminary non-judicial procedure as a mandatory condition of exercising the right to judicial protection that is motivated by the need to reduce the work-load of courts in civil cases. The Court underlined that in the first place the State’s obligation to provide access to justice and to ensure the protection of everyone's rights and freedoms by a competent, independent and impartial court must be considered.

Having examined the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to the Budget Code of the Republic of Belarus” the Constitutional Court in its Decision of 16 October 2012 confirmed the legal position stated in the Decision of 8 October 2010 and noted that the legislator provided the procedure of enforcement of court decisions at the expense of the budget in the Budget Code and thereby the claimant’s rights to judicial protection and indemnity stipulated in Article 60 of the Constitution are implemented.

While reviewing the constitutionality of the Law of the Republic of Belarus “On Legal Regime of the Territories That Were Exposed to Radioactive Contamination Due to Chernobyl Nuclear Power Plant Disaster” the Constitutional Court in Decision of 17 May 2012 pointed out that the legislator establishes the ability to produce products on the territory of radioactive contamination and to sell them on the condition that the content of radionuclides correspond with the levels, which are permissible in the Republic, but does not sets forth standards for such levels. The legislator provided that such levels are to be determined by relevant republican bodies of state administration upon consultation with the state republican body exercising administration and control in the sphere of consequences of the catastrophe on Chernobyl Nuclear Power Plant.

According to the Constitutional Court opinion, this approach can not provide the constitutional right to health care in full. According to the Constitution (point 2 of part one of Article 97) the main meaning and principles of the rights and freedoms of individuals should be established by law. Fixing in law the levels of content of radionuclides in the production will create additional conditions for protection of life and health of citizens from harmful effects of radionuclides.

In this decision the Constitutional Court also underlined that the procedure of provision and dissemination of the information on the radiation situation, legal regime of the territories of radioactive contamination and responsibility for its violation is established in the verified Law by reference to the legislation on environmental protection, on appeals of individuals and legal persons and other legislation, that is in fact to the general rules, relating to any available information. That indicates incomplete guarantee of the constitutional right to receive complete, accurate and timely information on the state of the environment, as regards the radiation situation. Due to the special importance of this information to the health of the population of the Republic of Belarus, the particularities of the procedure of provision and dissemination of the information on the radiation situation need to be stipulated on the legislative level.

In the Decision of 19 October 2012 taken in connection with the examination of the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Issues of Fighting Terrorism and Countering Extremism” the Constitutional Court found that provisions for exemption of a person who participated in the preparation of acts of terrorism from criminal liability, if he/she timely warned the state bodies or otherwise prevented committing the crime, are aimed at further development of the penal institution of actual repentance, which provides for measures of incentive nature, encouraging the positive behavior after the crime of individuals involved in acts of terrorism.

In the Constitutional Court opinion reasonable compromise between the State and such person, expressed in the refusal to prosecute that person in exchange for his voluntary actions to prevent the occurrence of serious consequences of acts of terrorism, including the loss of life, is legally valid and socially justified, and also consistent with the constitutional provision that individual, his rights and freedoms are the highest value and the purpose of the society and the State as well as guarantees of their implementation.

In several decisions the Constitutional Court paid attention to the fact that it is not enough while adopting the law to proceed only from everyone’s formal equality before the law and the court, but should also take into account the need to ensure and protect the rights of the most vulnerable segments of society.

While examining the constitutionality of the Housing Code of the Republic of Belarus the Constitutional Court in its Decision of 29 June 2012 noted that the constitutional obligation of the State to care for children predetermines the powers of guardianship authorities in the sphere of housing. The provisions of the Housing Code provide for the necessity to get consent of the mentioned authorities to change the status of home accommodation (living space), to conduct transactions with it if a minor resides in this home accommodation, who is declared as being in a socially dangerous situation or being in need for state protection, or this home accommodation (living space) is reserved for an orphan or a left without parental care child, or this home accommodation is a property of minors.

There are also other rights of certain exposed categories of children enshrined in the Housing Code that differ from the general ones. For example, according to paragraph 3 of Article 93 of the Code eviction of pupils and students, who are orphans or children left without parental care, or persons from amongst the orphans or children left without parental care, from the premises of public housing stock is not allowed until other premises are provided for them at the location of their registration as being in need of better housing conditions.

The Constitutional Court believes that in respect of certain categories of children such particularities do not violate the principle of equality before the law (Article 22 of the Constitution), as it is based on the social character of the State, obligation of which is to care for the welfare and social security of citizens. If a human can’t actually take care of himself due to the age or other circumstances beyond his/her control, the appropriate assistance from the State looks fair. This advantage corresponds to part two of Article 23 of the Constitution according to which no one can take benefits and privileges contrary to law.

In the Decision of 9 July 2012 “On Making Alterations and Addenda to the Law of the Republic of Belarus “On Pension Provision” the Constitutional Court confirmed the legal position stipulated in the Decision of 27 September 2011 “On the Legislative Definition of the Term “Able-bodied Person” as Used in Point “e” of Part Two of Article 51 of the Law of the Republic of Belarus “On Pension Provision”. It concerns the inadmissibility of limitation of individual’s right (for individuals upon reaching a generally established pension age or if the person is disabled and has a limited ability to work) on including the period of care for persons mentioned in point “e” of part two of article 51 of the Law of the Republic of Belarus “On Pension Provision” (upon condition that they comply with other requirements of the Law). The Constitutional Court notes that the physical ability of a person to exercise full care for the disabled person of the first group, disabled children, elderly who achieved 80-years old must have the decisive importance for the purposes of classifying individuals to the category of able-bodied. The care for disabled persons of the first group, disabled children, elderly is an important social function that is exercised mostly by the members of their families, other relatives. The State also takes certain obligation upon itself pursuant to the humanitarian goal of promoting the quality of life of every citizen.

The Constitutional Court stated that the task of the legislator is not only to provide for the legal regulation of emerging relations, but also to create legal mechanisms that would not weaken the social protection of citizens who need social support and constant care, would not create prerequisites for the formation of possible conflicts between them and individuals who are able to perform such a care, but according to the legislative definition of the term “able-bodied person” do not fall under this category.

Implementation of the rights and freedoms of a man and a citizen should not lead to violation of the rights and freedoms of other individuals as well as other constitutional values. Proportional limitation of rights and freedoms of a man and a citizen is permitted in case of necessity in the interests of protection of constitutional values and maintaining the balance between the constitutional rights and freedoms of a citizen and public interests of the State and the society. The Constitution provides for the possibility of limitation of the rights and freedoms, i.e. envisaging of concrete limits of implementation of the rights and freedoms on the legislative level (but not their derogation or denial). At the same time the limitations ought to be established by the legislator not arbitrarily, but based on the Constitution and values, such as the rule of law, equality and justice, enshrined in it.

Thus, while assessing the constitutionality of the Law “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Issues of Preventive Measures for Neglected Minors and Delinquency of Minors” the Constitutional Court proceeded from the State's duty to ensure the implementation and effective protection of the rights and legitimate interests of minors. The Decision of the Constitutional Court of 17 May 2012 stated that the ban regarding the minors being outside the home at night time without an adult is aimed at improving the safety of children and youth, strengthening safeguards to protect their lives and health, prevention of their involvement in crimes and other socially dangerous acts. At the same time, the ban limits the right to personal liberty prescribed by the Constitution (Article 25), including the right to move freely within the Republic of Belarus (Article 30).

However, according to the Constitutional Court opinion, such measures are socially justified and respond to the Constitution, according to which the restriction of rights and freedoms is allowed only in instances specified by law in the interests of public order (Article 23). These measures do not distort the essence of the constitutional rights and freedoms and shall not lead to the loss of their real meaning. They apply only to the extent permitted by law, proportionate to protect the public and state interests, rights and freedoms of others.

In the Decision of 29 June 2012 the Constitutional Court noted that the list of premises that are not subject to privatisation stipulated by the Housing Code conforms with the principle of proportionality following from part one of Article 23 of the Constitution. Such regulation is not an excessive measure in order to reach the constitutional objective of protecting the rights of others persons who reasonably rely upon their support in the field of housing relations. The State has to create opportunity and conditions thereto.

While identifying the constitutional and legal meaning of the provisions of the Law “On Making Addenda and Alterations to the Banking Code of the Republic of Belarus” the Constitutional Court proceeded from the principle of proportionality in the Decision of 5 July 2012. The Constitutional Court stated that the essence of the principle of proportionality is that the restrictions, whatever are the reasons for their establishment, should ensure a proper balance between the interests of citizens and the State, to be legally valid, socially justified, meet the requirements of justice. They should be appropriate, proportionate and necessary to protect other constitutionally significant values.

In the same decision the Constitutional Court assessed the rule of the reviewed Law, according to which the bank, non-bank financial institution may refuse an individual or a legal entity to open a current (settlement) bank account in case they do not submit the documents required for their identification in accordance with the legislation on prevention of legalisation of proceeds from crime and financing of terrorist activities. Considering the legal position, expressed in the Decision of 4 June 2010 on the Law “On Making Alterations and Addenda to Certain Laws on the Prevention of Legalisation of Proceeds from Crime and Financing of Terrorist Activities”, the Constitutional Court concluded that the mentioned rule limited to some extent the rights of citizens enshrined in the Constitution. However, according to the Constitutional Court, such restriction is legitimate and acceptable, because it is established in law, in proportion to the constitutionally protected interests of national security.

Reviewing the constitutionality of the Law “On Economic Insolvency (Bankruptcy)” the Constitutional Court in the Decision of 29 June 2012 stated that the regulation of civil relations arising during bankruptcy proceedings is to protect above all the rights and legitimate interests of the creditors. It entails certain restrictions on the right of ownership, the free use of property, and the rights of possession, use and disposition of property, freedom of contract in the first place for the subjects for which this procedure is conducted. These restrictions of the ownership right, freedom of enterprise and other economic activities can be introduced by the law if they are necessary to protect other important constitutional values including the rights and freedoms of others; meet the requirements of justice; are necessary and proportionate to the constitutionally recognised purposes of such restrictions.

The mentioned legal positions of the Constitutional Court guide the state bodies that ought to implement the constitutional principles and rules in rule-making consistently and systematically, to develop legal mechanisms for promotion and protection of constitutional values and to guarantee the rights and freedoms.

2. Effective legal mechanism for ensuring human rights and freedoms and guarantees of their implementation depends on compliance with the constitutional principle of the rule of law in rule-making and law enforcement primarily.

The implementation of the principle of the rule of law and the principle of legal certainty in rule-making determines creation of such a legal system, in which normative legal acts are interrelated, consistent with each other, as well as clarity, accuracy, coherence and logical consistency of the law are ensured. The Constitutional Court drew attention of the legislator to the necessity to respect the said principle in a number of the legal positions.

Thus, while assessing the constitutionality of the Law of the Republic of Belarus “On Annulment of Certain Legislative Acts of the Republic of Belarus and their Certain Provisions” the Constitutional Court on the basis of the analysis of relevant provisions of the Constitution of the BSSR of 14 April 1978, the Constitution of the Republic of Belarus of 15 March 1994 (with alterations and addenda adopted on the republican referendum on 24 November 1996) concluded that the National Assembly is a functional legal successor to the Supreme Council and its Presidium in the sphere of rule-making. This means that normative legal acts of the Supreme Council and its Presidium may be declared no longer in force by a normative legal act of the National Assembly. In this connection the Constitutional Court noted the validity and legitimacy of choosing the law as a form of a normative legal act to declare resolutions of the Supreme Council and resolutions of the Presidium of the Supreme Council to be no longer in force.

In the decision of 5 June 2012 the Constitutional Court pointed out that according to part three of Article 109 of the Constitution the judicial system in the Republic of Belarus is determined by Law. Such the Law is the Code of the Republic of Belarus on Judicial System and Status of Judges. It establishes the competence of the courts which form the judicial system of the Republic of Belarus. In particular, the competence of district (city), interpost military and specialised courts is defined in Article 31 of the Code.

The extension of the jurisdiction over civil and criminal cases of interpost military courts by the rules of the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Codes of the Republic of Belarus Regarding Jurisdiction of Cases of the Military Courts” provided for the necessity to stipulate the competence of the mentioned courts also in the Code of the Republic of Belarus on Judicial System and Status of Judges. However, paragraph two of part two of Article 31 of the mentioned Code is stated in new wording, according to which an interpost military court decides on cases that are attributed to its competence by legislative acts. According to the Constitutional Court the formulation of a reference rule by the legislator instead of a concrete definition of the competence of interpost military courts indicates a legal gap that needs elimination by the way of making appropriate alterations and addenda to the Code of the Republic of Belarus on Judicial System and Status of Judges.

In the Decision of 28 April 2012 on the Law of the Republic of Belarus “On the Preservation of Historico-cultural Heritage of the Republic of Belarus” the Constitutional Court stated the following. The regulation of the Law on the forced termination of the right of ownership (right of possession) of a historical and cultural value that is kept with mismanagement should be done taking into account the rules of Article 241 of the Civil Code of the Republic of Belarus. In connection with this the necessity to provide the conformity of the rules of the laws while further improving the legislative regulation of the mentioned relations is noted.

While reviewing the constitutionality of the Law “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Issues of Fighting Terrorism and Countering Extremism” the Constitutional Court in the Decision of 19 October 2012 confirmed the legal position, stated in the Decision of 27 December 2008, according to which the provisions on making alterations and addenda to programme laws ought to be adopted in the form of separate laws.

The reviewed Law made alteration to point 8 of Chapter 1 of the Military Doctrine of the Republic of Belarus, approved by the Law of the Republic of Belarus of 3 January 2012. The Constitutional Court noted that according to the Constitution the Laws regarding basic guidelines of domestic and foreign policy of the Republic of Belarus and the Military Doctrine of the Republic of Belarus are considered programme laws and are deemed to be adopted if no less than two thirds of the full composition of the Houses voted for them (part four of Article 104). The Constitutional Court drew attention of the legislator on the necessity to observe this constitutional requirement, because making alterations and addenda to the programme laws by the laws, whose rules provide alterations and addenda to other laws that require adoption by simple majority of votes of the full composition of each House, may lead to conflicts of law if the rules of programme laws will be adopted by a simple majority of votes.

According to the Constitutional Court opinion stated in the Decision of 25 April 2012 the rules of the Law of the Republic of Belarus “On Making Addenda and Alterations to Certain Laws of the Republic of Belarus on the Public Service Issues” do not contradict the principle of equality before the law. These rules provide for the possibility of public officials to stay in public service, as well as of judges holding public positions that are included in the personnel register of the Head of the State and who achieved the age of 65 – the age limit for public service.

The Constitutional Court noted that the possibility of extending the period of stay in public service for certain public officials ought to be conditioned by their professional and business qualifications and respond to the requirements stipulated in Article 39 of the Constitution. For purposes to provide for effectiveness of public service and performance of public duties by public officials the legislator should also envisage reasonable age limits to extend public officials’ service period including judges who have reached 65.

While reviewing the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to Some Laws of the Republic of Belarus Regarding Transplantation of Human Organs and Tissues” the Constitutional Court in the Decision of 9 July 2012 pointed out the necessity of further development of legislative regulation of the procedure and conditions of access of interested individuals to the Unified Register of Transplantation, determination of the precise mechanism of informing citizens about the existing presumption of consent to the collection of organs for transplantation in case of absence of relative negative will of the person or his relatives or legal representatives.

The Constitutional Court underlines that the significance of observance of the principle of systemacy and comprehensiveness of legal regulation in rule-making is one of the conditions of ensuring the rule of law. The laws should not contain gaps, conflicts of rules and legal uncertainty.

3. In a number of cases the Constitutional Court, while formulating legal positions, paid attention of law enforcement officials that rules of laws are to be applied taking into account the constitutional and legal meaning revealed and stated in decisions of the Constitutional Court.

So, in the Decision of 25 April 2012 “On Making Alterations and Addendum to the Law of the Republic of Belarus “On Consumer Rights Protection” the Constitutional Court proceeded from the constitutional and legal meaning of the provisions of the reviewed Law based on the gratuitous character of services provided to the consumer by a public association of consumers and the necessity of reimbursement of incurred expenses to the association. For purposes to exclude ambiguous approach to determine the amount of expenses to be reimbursed in case of satisfying the consumer claims, as the Constitutional Court stated, all the incurred expenses are to be reimbursed, including litigation costs as well as other necessary expenses that occurred before applying to the court in connection with case hearing, including the costs of expertise.

The Decision of 28 June 2012 was adopted on the Law, which made alterations and addenda to the Laws of the Republic of Belarus “On the Status of Deputy of a Local Council of Deputies”, “On the State Control Committee of the Republic of Belarus and its Regional Offices”, “On the Prosecutor’s Office of the Republic of Belarus”. The Constitutional Court paid attention to the rules of the Law that established personal reception with regard to representatives of legal entities. At the same time the right of legal entities to appeal may be exercised also through their bodies, because according to Articles 4 and 6 of the Law “On Appeals of Individuals and Legal Entities” personal reception is carried out in respect of citizens, including individual entrepreneurs, their representatives, bodies and representatives of legal entities. Herewith the general term “representative of a legal entity” is specified in Article 6 of the mentioned Law which determined the list of persons taken at personal reception. Bodies and representatives of legal entities are understood by this term in Article 4 of the Law.

In this regard the Constitutional Court noted that the rules of the mentioned laws, which are specified by the Law of the Republic of Belarus “On Making Alterations and Addendum to Some Laws of the Republic of Belarus on the Issues of Considering Appeals of the Individuals and Legal Persons”, should be considered in connection with provisions of the Law “On Appeals of Individuals and Legal Entities”. The constitutional and legal meaning of these rules is that legal entities can apply at personal reception through its bodies or representatives. This approach should be used by law enforcement officials for purposes to exercise the right of legal entities to appeal to organisations.

In the Decision of 29 June 2012 “On the Conformity of the Law of the Republic of Belarus “On Economic Insolvency (Bankruptcy)” to the Constitution of the Republic of Belarus” the Constitutional Court noted the following. According to the reviewed Law, after considering manager’s report on the results of liquidation proceedings and recognising it to be justified, an economic court makes a decision on the completion of liquidation proceedings that is a final document of this proceedings. According to the Constitutional Court opinion the results of completion of liquidation proceedings affect the rights and legitimate interests of persons, participating in bankruptcy case. Consequently, these persons should have the possibility to verify in court the legality and validity of such decisions.

The Constitutional Court noted that as the cases on bankruptcy are considered by economic courts in procedure, established by the Economic Procedure Code of the Republic of Belarus, the absence in Article 151 of the Law “On Economic Insolvency (Bankruptcy)” of the provision on the possibility to appeal the decision on the completion of liquidation proceedings does not exclude the right of interested persons to judicial protection in terms and procedure, established by the Code.

The revealing of the constitutional and legal meaning of rules of laws reviewed under the procedure of obligatory preliminary review of the constitutionality provides for their understanding from the point of their conformity to the Constitution and aims at preventing of their unconstitutional interpretation in law enforcement practice, eliminating violations of rights and legitimate interests of individuals and organisations.

4. The obligatory preliminary review of the constitutionality of laws on ratification of international treaties by the Republic of Belarus is one of the forms of Constitutional Court activities. It is carried out by reviewing constitutionality in substance of norms, in form of a normative legal act, on procedure of adoption, as well as with regard to distribution of powers between state bodies while adopting these laws.

In 2012 the Constitutional Court adopted 60 decisions on the results of the review of the constitutionality of laws on ratification of international treaties.

The decisions, adopted by the Constitutional Court under the procedure of obligatory preliminary review of the constitutionality of laws, and legal positions, formulated in them, are aimed at improvement of legislative regulation of appropriate public relations, safeguarding the rights and freedoms of individuals, other constitutional values, as well as preventing unconstitutionality in law enforcement.

 II

 According to part four of Article 116 of the Constitution part two of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court on the proposals of the President of the Republic of Belarus, the House of Representatives, the 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, the Council of Ministers of the Republic of Belarus is empowered to decide on the constitutionality of normative legal acts under the subsequent review procedure.

In 2012 the entitled subjects have not applied to the Constitutional Court with proposals to review the constitutionality of normative legal acts.

The right of individuals and organisations to indirect access to the constitutional justice is specified in the Code of the Republic of Belarus on Judicial System and Status of Judges. According to part three of Article 22 of this Code the state bodies that are not mentioned in part two of this Article, public associations, other organisations, as well as individuals shall initiate the review of the constitutionality of normative legal acts by virtue of bodies and officials entitled to request the Constitutional Court to review the constitutionality of the act.

In 2012 individuals filed 73 applications to the bodies entitled to request the Constitutional Court directly. Among these applications 68 are from individuals and 5 are from organisations. More than a half of the applications were addressed to the legislative body – the National Assembly.

The initiative to request the Constitutional Court was motivated by individuals as a rule by exhaustion of all other remedies. Most of the initiative applications concerned the necessity to review normative legal acts or their certain provisions on their conformity to the Constitution due to the presence, on applicants’ opinion, of unjustified limitations of constitutional rights and freedoms.

The entitled subjects have not requested the Constitutional Court to review the constitutionality of normative legal acts on the basis of such initiative applications of individuals and organisations.

According to part two of Article 112 of the Constitution, if a court while hearing a specific case concludes that a normative legal act does not conform to the Constitution, it takes a decision according to the Constitution and brings up the issue of declaring the act unconstitutional. In 2012 the courts have not made any decision based on this constitutional rule, and have not brought up any issue of recognizing an act (that is to be implemented) unconstitutional.

The foregoing shows the actuality of improvement of the constitutional review in part of establishing the prejudicial request, when a court, while considering a specific case and arising the doubt about the constitutionality of the act applied to the case, requests the Constitutional Court on the constitutionality of such act.

The Constitutional Court also notes that appropriate legal regulation of the procedure of considering and resolving the initiative applications of individuals and organisations to the entitled subjects is necessary to provide for the implementation of the right of individuals and organisations to indirect access to the constitutional justice. This would become an effective measure for realisation of everybody’s right to judicial protection, specified in Article 60 of the Constitution, including the right to apply to the Constitutional Court.

 III

 According to the Constitution and part eight of Article 22 of the Code of the Republic of Belarus on Judicial System and Status of Judges the Constitutional Court of the Republic of Belarus is entitled to submit to the President of the Republic of Belarus, houses of the National Assembly, the Council of Ministers, other state bodies within their competence proposals on the need to make alterations and (or) addenda as well as to adopt new normative legal acts.

772 applications, including 740 applications from individuals and 32 applications from organisations come to the Constitutional Court in 2012. On the basis of the information contained in these applications the Constitutional Court adopted a number of decisions aimed at elimination of gaps, conflicts of rules and legal uncertainty, creating thereby conditions to prevent violations of rights and freedoms of individuals, to provide their realisation and protection.

1. In its Decision of 16 February 2012 the Constitutional Court come to the conclusion that the medical criteria stipulated in Article 92 of the Criminal Code of the Republic of Belarus, according to which a person can be released from serving sentence or the punishment can be mitigated if the person gets a disease after being convicted, indicates the existence of legal uncertainty, because it is impossible in certain cases to determine the time of occurrence of the disease.

The Constitutional Court noted that the principle of legal certainty is the necessary element of the rule of law and the necessary guarantee for effective protection of rights and freedoms of individuals both in rule-making and law enforcement. On the basis of the constitutional principle of equality before the law, persons with serious disease that impedes further serving of sentence should be guaranteed that the court decides on the possibility of his/her release from punishment or its mitigation and takes into account seriousness of the crime, personality of the convicted person, nature of the disease and other circumstances whenever the disease occurred in time – before or after sentencing.

Equality before the law can be provided only on the condition of unified understanding and implementation of legal rules in practice, which requires clarity and certainty of legislative regulation of public relations.

In this regard the Constitutional Court recognised the necessity to make alterations to the above mentioned Article of the Criminal Code in part of establishing the possibility for a relief from punishment or its mitigation for a person with other serious disease that impedes further serving of sentence, whenever the disease occurred in time.

2. In the Decision of 31 October 2012 for the purposes to eliminate legal uncertainty related to the protection of property interests of creditor, who’s money the debtor unlawfully used, the Constitutional Court noted that the exercise of creditor’s right to demand from the debtor to reimburse the debt in view of inflation in the part exceeding the amount of interest is not stipulated by the rules of civil legislation. There were not established a range of cases, where indexation of debt in view of inflation is possible for all legal monetary liability relations. As a result the legal uncertainty appeared for participants of legal civil relations while exercising the right to reimbursement of the debt increased in view of inflation in part of the amount of money.

The Constitutional Court paid attention to the fact that the absence of an appropriate legal regulation of mentioned relations results in ambiguous understanding of law and, accordingly, lack of uniformity in its application that entails violation of property interests of creditors. This contradicts the constitutional principle of the rule of law from which follows the principle of legal certainty. The latter requires logical conformity of legal rules in the system of legal regulation, their clarity, accuracy and consistency.

 The Constitutional Court of the Republic of Belarus deems that it is possible to eliminate existing legal uncertainty by providing for in point 2 of Article 366 of the Civil Code directly the reimbursement of the sum of the debt, in view of inflation in part that exceeds the sum of interest that is to be paid to the creditor on the basis of point 1 of Article 366 of the mentioned Code, in cases envisaged by the legislation or an agreement. In connection with that the Council of Ministers is proposed to prepare a draft law on making relative alterations and addenda to the Civil Code and to propose it to the House of Representatives of the National Assembly by established procedure.

3. In the Decision of the Constitutional Court of 14 November 2012 it is pointed out that the protection of sovereignty and territorial integrity of the Republic of Belarus, its constitutional order is the essence of the military duty.

Provisions of Article 57 of the Constitution stipulate unity of obligation and sacred duty of a citizen of the Republic of Belarus for purposes to protect his own country. That makes special significance of the military service in comparison with other types of state services and labour activities, the necessity to establish guarantees of its fulfilment as by the draft as by the volunteer.

The Constitutional Court considered the mentioned rules in their systemic link with Article 22 of the Constitution, according to which all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination. The Court come to the conclusion that entrusting citizens of the Republic of Belarus with the obligation and sacred duty to protect the Republic of Belarus means the necessity to treat equally all the citizens that enter military service, as this service is single in legal nature.

To ensure constitutional principles of the rule of law, equality and social justice in realisation of the constitutional obligation and sacred duty to protect the Republic of Belarus by the citizens of the Republic of Belarus the Constitutional Court recognised the necessity to fill the constitutional legal gap in regulation and stipulate the right of graduates of higher level and other educational institutions to exemption from reimbursement of the funds spent by the State for their training, if they are volunteers for military service on the contract basis.

4. The Constitutional Court on the basis of applications of citizens took also the Decision of 28 November 2012 “On the Right of Employees to Reimbursement of Travel Expenses for Business Trip”.

By that the Constitutional Court took the constitutional principle of the rule of law and the constitutional obligation of the State to secure the rights and freedoms of citizens stipulated in laws, as well as provision of part one of Article 23 of the Constitution that allows for the possibility of restriction of personal rights and freedoms only in instances specified by the law. The Constitutional Court come to the conclusion that the right of employee to the compensation of expenses for business trips stipulated in the Labour Code of the Republic of Belarus cannot be limited by normative legal acts of the Ministry of Finance of the Republic of Belarus and the Ministry of Labour and Social Protection of the Republic of Belarus. The mentioned Ministries actually acted outside their powers, because the legal regulation of the procedure and amount of reimbursement of expenses, established by them, in some cases excluded the possibility of realisation of employee’s right to compensation of travel expenses. Such regulation of the procedure and amount of compensation of travel expenses resulted in conflict of relevant provisions of the acts of mentioned republican state administration bodies with the rules of the Labour Code.

The Constitutional Court, pointed out the necessity to eliminate the conflict of rules in legal regulation of the procedure and amount of reimbursement of travel expenses for business trips to employees based on the constitutional principle of the rule of law, principle of legality and justice, provisions of Article 23 of the Constitution in their interrelation, taking into account Article 95 of the Labour Code.

While deciding on the necessity to fill gaps in legal normative acts, to eliminate conflicts of rules and legal uncertainty, the Constitutional Court proceeded from the fact that human rights and freedoms have to determine the content and proper application of normative legal acts. While grounding its conclusions and legal positions the Constitutional Court was guided by constitutional provisions that oblige the State to create conditions to exercise and safeguard human rights and freedoms.

 IV

 The Constitutional Court notes that the State bodies of the Republic of Belarus carry out consistent activities on the execution of decisions of the Constitutional Court by the way of adoption of new normative legal acts, making necessary alterations and addenda to legislative acts.

13 decisions of the Constitutional Court were executed in 2012, including by the way of implementation of legal positions, set out in them, in the legislation.

1. The legal positions of the Constitutional Court expressed in a number of decisions are taken into account by the legislator, which elaborated the rules of the Housing Code of the Republic of Belarus of 28 August 2012.

Particularly these are the Judgment of 27 June 1996 “On the Conformity of the Resolution of 11 June 1993 of the Supreme Council “On the Procedure of Purchase-Sale of Flats (Houses) in the Republic of Belarus” and the Provisional Regulation on the Procedure of Purchase-Sale of Flats (Houses), approved by the Resolution of the Council of Ministers of August 31 1993 No. 589 to the Constitution and Laws of the Republic of Belarus” and the Decision of 25 March 1997 on the interpretation of the mentioned Judgement. The Constitutional Court pointed out that a citizen is deprived of the possibility to move freely and to choose his place of residence within the borders of the Republic, to go abroad and to return without being able to freely sell the flat (house) or purchase it in another town. Citizens of the Republic of Belarus including those residing abroad have the right to purchase flats (houses) under a contract of purchase-sale in all localities of the Republic of Belarus regardless of the place of residence. Foreign citizens and stateless persons permanently residing in the Republic of Belarus and having a legitimate source of income also have the right to purchase flats (houses) in Belarus on the basis of purchase-sale contracts. These decisions are realised in Article 73 of the Housing Code that regulates the right of individuals and organisations to purchase housing premises.

In the Decision of 6 April 2007 “On Legal Regulation of Systematic Lease of Housing Premises by Individuals for a Short Term Residence” the Constitutional Court paid attention to the absence of proper legal regulation of the systematic lease of housing premises by individuals for a short period of time. The term “providing of places for short term residence” is explained in the Housing Code; it is stipulated that such an activity is an entrepreneurial activity; it is provided that citizens undertaking such activity are required to ensure that tenants (subtenants) of housing premises observe sanitary and technical requirements, rules of fire safety, environmental requirements and rules of use of housing premises, maintenance of residential and ancillary facilities; issues on conclusion of a relevant contract of tenancy (subtenancy) of housing premises are resolved.

2. It was found necessary in the decisions of the Constitutional Court of 19 November 2001 and 31 March 2003 to resolve issues of the order of priority of expenses payments, emerging from the procedure of the liquidation of the debtor, including the salary of employees, with whom labour agreements (contracts) were concluded after the commencement of liquidation proceedings. The attention was also drew to the validity of raising standards for persons to be appointed as managers in bankruptcy proceedings, and to improvement of control mechanism over their activities. These decisions of the Constitutional Court are realised in Articles 62, 83 and 141 of the Law of the Republic of Belarus of 13 July 2012 “On the Economic Insolvency (Bankruptcy)”.

3. In the Decision of 6 November 2008 “On a Term of Validity of the Power of Attorney to Receive Monetary Funds from a Deposit of a Citizen Opened in a Bank to Which Pension is Transferred” the Constitutional Court stated that relations regarding the validity of a power of attorney to receive pensions entered on a deposit of a citizen in a bank are regulated by the rules of civil and not pension legislation. Therefore the limitation of the term of the power of attorney in pension legislation must be coordinated with the requirements of civil and banking legislation. This Decision is realised in the Law of 26 October 2012 “On Making Addenda and Alterations to the Law of the Republic of Belarus “On Pension Provision”. Part one of Article 87 of the said Law stipulates that the term of validity of a power of attorney to receive monetary funds from a deposit of a citizen in the bank, to which his pension is transferred, shall be determined in accordance with Article 187 of the Civil Code.

4. The Law of the Republic of Belarus of 9 July 2012 “On Amnesty of Some Categories of Persons Who Have Committed Crimes” took into account the legal position of the Constitutional Court expressed in the Decision of 11 October 2011 “On Effect of Amnesty Laws in Time”. According to the position the legislator establishes a time period of the execution of amnesty laws and regulates cases where the application of amnesty is allowed after the expiry of that period, including the case if a person objectively acquired the right to amnesty under the law of amnesty at the time of its entry into force. In Article 20 of the Law the rule is stipulated that the Law shall be executed within six months from the date of its entry into force. In part three of Article 18 of the Law the rule is stipulated that if there are no grounds for denial of amnesty on the day of coming into force of the Law, the absence of a decision on amnesty cannot be regarded as a circumstance precluding the application of amnesty in the future. With this, amnesty can be applied to a person beyond the period specified in Article 20 of the Law.

5. During realisation of powers for obligatory preliminary review of the constitutionality of laws the Constitutional Court formulated more than 70 legal positions in its decisions. There are 20 of them, adopted in 2012, that pointed out legal gaps in laws under review and justified the necessity for implementation of legal positions of the Constitutional Court in acts of legislation and in law enforcement practice. The Constitutional Court did not replace the legislator, who is entitled to carry out official interpretation of adopted laws and to specify a particular legislative approach.

The Constitutional Court notes that recently the legislator takes into account legal positions of the Constitutional Court stated as a result of review of the constitutionality of laws.

In the Decision of 26 December 2011 while examining the constitutionality of the Law “On Making Alterations and Addenda to the Tax Code of the Republic of Belarus” the Constitutional Court drew attention of the legislator to the rules on the procedure of tax authorities and their officials to address a notary for executive endorsement to collect taxes and duties (tolls), interest from the assets of the payer (or other responsible person). It is noted that there is a legal uncertainty in these provisions. The uncertainty consists in the fact that according to the addendum to Article 59 of the Tax Code of the Republic of Belarus such address procedure is regulated at the high level of legislative acts, while the addendum to Article 81 of the Code provides for the establishment of a similar procedure by the legislation. The Constitutional Court deemed that tax authorities and their officials’ address to the notary for an executive endorsement ought to be established at the high legislative level. This legal position is realised by the Law of 26 October 2012 “On Making Alterations and Addenda to the Tax Code of the Republic of Belarus” that provided for the rule that the mentioned procedure ought to be established by legislative acts.

However, in some cases the legislator did not take into account legal position of the Constitutional Court, expressed in previous decisions. For example, a legal position was expressed in the Decision of the Constitutional Court of 27 December 2008 “On the conformity of the Law “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus concerning State and Mobilization Material Reserves” to the Constitution of the Republic of Belarus”. Provisions on making alterations and addenda to program laws should be made in the form of a separate law in compliance with the constitutional requirement of a qualified majority vote while adopting them. However, alterations to the Military Doctrine of the Republic of Belarus, approved by the Law of 3 January 2002, which is a program law, was made not by a separate law, but by the Law of 26 October 2012 “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on the Issues of Fighting Terrorism and Countering Extremism”.

6. The Constitutional Court of the Republic of Belarus has the power to state its position on documents adopted (issued) by foreign States, international organisations or their bodies and which affect the interests of the Republic of Belarus as regards their compliance with generally recognised principles and rules of international law. In the Decision of 7 April 2011 “On the Position of the Constitutional Court of the Republic of Belarus on the Act of the Republic of Poland “On the Pole’s Card” the Constitutional Court drew attention of the House of Representatives of the National Assembly to the possibility, while improving rules of certain laws, to take into account the position of the Constitutional Court aiming to protect the interests of the Republic of Belarus.

This position of the Constitutional Court is realised by the legislator in the Law of 2 May 2012 “On Making Addenda and Alterations to the Law of the Republic of Belarus “On Status of Deputy of the House of Representatives, Member of the Council of the Republic of the National Assembly of the Republic of Belarus”. According to the Law a deputy of the House of Representatives, a member of the Council of the Republic is not entitled to receive from foreign States documents that grant rights to privileges and benefits in connection with political, religious beliefs or national origin, as well as to enjoy these benefits and privileges, if otherwise is not stipulated by international treaties of the Republic of Belarus.

In general, the Constitutional Court appreciates execution of its decisions positively and pays attention to inadmissibility of delaying the preparation of draft normative legal acts and their adoption that realise positions of the Constitutional Court, as this may result in improper regulation of public relations for a long time. At the same time state bodies and officials have to proceed from the necessity to maintain public confidence in justice and state bodies, and they have to create conditions for the timely provision and protection of human rights and freedoms and other constitutional values.

 V

 1. The Constitutional Court notes that in 2012 legislative mechanisms that ensured the full realisation of constitutional rights and freedoms of citizens in all spheres of the society and the State were elaborated and improved at the legislative level.

While exercising obligatory preliminary review all of the laws passed by the House of Representatives and approved by the Council of the Republic were recognized constitutional by the Constitutional Court.

Proceeded from constitutional legality as a regime of strict adherence to the Constitution by all subjects of constitutional law relations, the Constitutional Court found that in 2012 there were no significant violations of constitutional principles and rules in law-making process.

2. The Constitutional Court notes that the constitutional values and goals become legal standards and major landmarks in the law-making. At the same time it is necessary to keep their balance and to avoid depreciation of them considering both human values and democratic European standards as well as national particularities to build a democratic social State, ruled by the law.

3. Important safeguards of rights, freedoms and legitimate interests of citizens and legal entities are reasonable stability and predictability of legal regulation. The Constitutional Court notes that the principle of predictability should be ensured as the most important condition in legislative policy for confidence of participants of social relations in stability of their legal status, trust in legislative acts and their unconditional execution.

4. For purposes to improve the effectiveness of rule-making and law enforcement activities, to ensure quality of normative legal acts and their implementation the Constitutional Court considers that it is necessary to introduce legal monitoring as a systemic activity of State and other organisations to assess effectiveness of national legislation. Legal monitoring should be used to analyse effectiveness of legal rules that regulate public relations, to determine priorities and to achieve goals in social and socio-economic development and nation-building.

5. The human rights and freedoms, justice and equality are essential parts of the constitutional order as well as fundamental constitutional values. Guarantees of their realisation and provision are an important constitutional objective as well as obligation of the State. Therefore, state bodies and officials have to take all the necessary measures to create appropriate conditions for their development at the current stage.

Human rights and freedoms as a major guideline in the life of society serve as its basis that requires increase of the level of legal awareness, formation of constitutional culture, constitutionalisation of public relations.

Proceeding from this the Constitutional Court considers that not only state bodies and officials responsible for creation of the constitutional order must contribute to strengthening of the constitutional legality, but also citizens, organisations, and institutions of civil society, that will ensure the rule of law in all spheres of life of the society and the State, the consistent development of the Republic of Belarus as a democratic social State ruled by the law.

The present Message was adopted in the session of the Constitutional Court of the Republic of Belarus on January 22, 2013.

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