Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
25 September 2013 № D-846/2013
On the Procedure of Exemption from Payment of a State Fee for Filing Complaints against Rulings on Administrative Offences Cases

 

 

The Constitutional Court of the Republic of Belarus comprising the Presiding Officer – Chairman of the Constitutional Court P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, 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 Article 22.8 of the Code on Judicial System and Status of Judges
in the exercise of the right to submit to the President of the Republic of Belarus, houses of the National Assembly of the Republic of Belarus, Council of Ministers of the Republic of Belarus, other state bodies within their competence proposals on the need to make alterations and (or) addenda to acts of legislation
with participation of representatives of:
the Supreme Court of the Republic of Belarus – A.A. Fiedorzov, First Deputy of the Chairman of the Supreme Court of the Republic of Belarus;
the Prosecutor General’s Office of the Republic of Belarus – A.M. Lashin, Deputy of the General Prosecutor of the Republic of Belarus;
the Ministry of Taxes and Dues of the Republic of Belarus – V.B. Kamienko, Deputy of the Minister of Taxes and Dues of the Republic of Belarus;
the Ministry of Justice of the Republic of Belarus – I.G. Tushinsky, Deputy of the Minister of Justice of the Republic of Belarus,
in open court session considered the application of S.K. Govsha about gaps in the legislation on administrative proceedings concerning the exemption from payment of a state fee for filing complaints against rulings on administrative offences cases to the court.
Having analysed provisions of the Constitution of the Republic of Belarus (hereinafter, the Constitution), the Procedural and Executive Code of the Republic of Belarus on Administrative Offences (hereinafter, PECoAO) and other legislative acts of the Republic of Belarus as well as the position of a number of concerned state bodies, the Constitutional Court of the Republic of Belarus found the following.
1. In the application S.K. Govsha noted that his complaint against ruling on administrative offence case was dismissed due to nonpayment of a state fee. The judge did not satisfy application for exemption from a fee payment due to a difficult financial situation because the PECoAO makes no provision on exemption from a fee payment. On the applicant’s opinion, this issue  testifies to a gap in the legislation and it brokes the right of everyone to judicial protection, equality of all before the law, the right to equal protection of the rights and legitimate interests guaranteed by the Constitution without any discrimination because procedural rules of other legal branches, including civil and criminal procedural branches, provide for a possibility of exemption of individuals from court costs (remedial charges) in view of their property status.
2. The analysis of judiciary practice and the position of state bodies indicates different approaches to understanding and application of material and procedural rules on collection of state fees for appeals against rulings on administrative offences cases.
Thus, the Supreme Court of the Republic of Belarus notes that general courts apply Article 258.2 of the Tax Code of the Republic of Belarus (hereinafter, the Tax Code) in practice. According to the said provision a court (a judge) has the right to exempt individuals from a fee payment for filling complaints against all rulings, including rulings on administrative offences cases, in view of their property status.
The Prosecutor General’s Office of the Republic of Belarus considers that the actual procedure of exemption from a fee payment for filing complaints against rulingsis settled by the Tax Code in full. It does not impede the appeal of rulings and does not break the right to judicial protection. At the same time this body notes the necessity of the further improvement of the legislation to define clear criteria and reasons related to preferences on a fee payment for purposes of unified interpretation and application of the tax legislation concerning the procedure of exemption from а fee payment for filing complaints to courts and prosecutor’s bodies.
The Ministry of Justice of the Republic of Belarus specifies that Article 258 of the Tax Code on the right of a court (a judge) to exempt individuals from a judicial fee, fully or partially, in view of their property status does not provides for exceptions regarding a fee collection for filing complaints against rulings on administrative offences cases. However, the above-mentioned Ministry notes that the concretisation of provisions of PECoAO on а fee payment in administrative process will promote implementation of a constitutional right of everyone on judicial protection and provide for unified legal regulation of similar relations in spite of various law branches.
According to the position of the Ministry of Taxes and Dues of the Republic of Belarus regulation of а fee payment, including the filing complaints against rulings on administrative offences cases, should be carried out by provisions of the tax legislation. The Ministry points out that the absence of a direct rule providing for possibility of exemption of a state fee in PECoAO does not impede a general court (a judge) or a prosecutor to apply rules of the Tax Code stipulating such procedure.
3. Having considered legal approaches on exemption from a fee payment for filing complaints against rulings on administrative offences cases,the Constitutional Court of the Republic of Belarus proceeds from the following.
According to the Constitution, the Republic of Belarus shall be bound by the principle of supremacy of law (Article 7.1); the State shall guarantee the rights and freedoms of citizens of Belarus that are enshrined in the Constitution and laws, and specified by the State's international obligations (Article 21.3); state bodies, officials and other persons who have been entrusted to exercise state functions shall, within their competence, take necessary measures to implement and protect personal rights and freedoms (Article 59.2).
Everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law; the courts shall administer justice on the basis of the Constitution and other normative acts adopted in accordance therewith (Article 60.1, Article 112.1 of the Constitution).
According to Article 8 of the Universal Declaration on Human Rights everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
According to the International Covenant on Civil and Political Rights each State Party to the Covenant undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity (Article 2.3.(a)), as well as to develop the possibilities of judicial remedy (Article 2.3.(b)).
In the Judgment “On the Conformity of Article 207.2, Article 268.1, Article 269.1, Article 291.1 of the Code of Civil Procedure of the Republic of Belarus to the Constitution of the Republic of Belarus and International Legal Acts” (23 June, 1999, No. J-81/99) the Constitutional Court emphasised that one of the real guaranties of exercising constitutional right to judicial protection and delivering by the courts of lawful and well-grounded decisions is the right to appeal and protest against courts' rulings. Decision of the court may not be deemed to be fair and justifiable and judicial protection - full and effective, if a judicial mistake is made. The state is binding to guarantee protection of human rights and freedoms and rights and freedoms of the citizens from judicial mistake. By establishing the procedure of exercising justice in legislation there shall be envisaged effective mechanism (procedure) of correction of those mistakes.
The Court confirms the said legal position and notices that state undertakes to establish such legislative mechanism of implementation of the right to the appeal against rulings on administrative offences cases (including a procedure of a fee exemption) which would guarantee to everyone protection of its rights and freedom by court. It follows from given provisions of the Constitution and international legal instruments in which Belarus participates.
4. According to the Constitution citizens of the Republic of Belarus shall contribute to funding public expenditure by means of state taxes, duties and other payments (Article 56); no one may be compelled to perform duties that are not specified in the Constitution and its laws or to renounce his rights (Article 58).
Consideration of the complaints submitted to the general courts as well as cassation and supervisory complaints is recognised as object of taxation liable to a state fee along with other objects (Article 249.1.1 of the Tax Code). Rates of a state fee for filing complaints against rulings on administrative offences cases provide for Appendix 14.3 to the Tax Code.
The Tax Code establishes the duty of individuals to pay a state fee for filing complaints against court rulings to courts of general jurisdiction. At the same time Article 258.2 of the mentioned Code enshrines the right of a court (a judge) to exempt individuals, fully or partially, from a judicial state fee (on objects liable to a state fee) in view of their property status if they are not related to the entrepreneurial activity.
A similar rule to specified provision of the tax legislation is enshrined by some procedural acts that regulate the concrete type of legal proceedings carried out by the general courts. In particular, possibility of exemption of persons from a fee payment by a court (a judge) is provided by the Code of Civil Procedure (hereinafter, CCP).
The court or the judge has the right to exempt persons, fully or partially, from fee (on objects liable to a judicial state fee) in view of their property status if they are not related to the entrepreneurial activity under Article 130.1 of the CCP. The procedure of submission of application for exemption from payment of court costs and the duty of individual to annex to his application of documents on his financial and family status is stipulated by Article 131.1,2 of the CCP.
According to Article 1.1 of the PECoAO this Code is the unique act which establishes administrative proceedings applied on the territory of the Republic of Belarus. Provisions of other legal acts which establish the rules of procedure within the scope of the administrative proceedings, rights and obligations of its parties are to be included in the PECoAO (paragraph two); administrative proceedings established by the given Code is unified and obligatory for all state bodies, other organisations and officials conducting administrative process as well as other participants (paragraph four).
One of stages of administrative process is the appeal and protest against ruling on administrative offence case (Chapter 12 of the PECoAO).
Article 12.2.3 of the PECoAO states that complaints to a court against rulings on administrative offences cases are liable to a state fee according to the legislation of the Republic of Belarus. In case of nonpayment of a state fee this complaint is to be returned to the complainant. The Code does not contain the procedure of exemption of individuals from payment of a state fee. Absence of this rules leads to the controversial practice of law enforcement. In a number of cases courts dismiss complaints against rulings on administrative offences cases due to nonpayment of a state fee and do not satisfy applications for exemption from payment of the fee in view their property status because the PECoAO makes no provision for a court (a judge) to take such a decision.
In addition according to Article 12.2.1 of the PECoAO rulings (or resolutions of bodies conducting administrative process) on administrative offences cases can be appealed (protested) to court (to higher court) if they did not enter into force.
Therefore, in case of nonpayment of a state fee for filing complaint to court against resolution of a body conducting administrative process by individual the complaint returns to individual. Thereby the right of everyone to judicial protection is limited because according to Article 258.2 of the Tax Code the right to exempt individuals, fully or partially, from a judicial state fee in view of their property status is given a court (a judge). PECoAO does not provide for regulation of this issue in question and that testifies to a legal gap.
Besides the above mentioned appeal procedure against rulings on administrative offences cases that not entered into force, Article 12.11 of the PECoAO provides for possibility of the appeal (protest) and revision of rulings entered into force. However, procedure to exempt individuals from a judicial state fee against rulings on administrative offences cases entered into force also is absent in the Code.
According to the Constitutional Court’s opinion impossibility of a person to pay a state fee due to his property status should not impede the exercise of his constitutional right to judicial protection, including in administrative proceedings. Other would mean nonobservance of rules of the Constitution, guaranteeing to everyone protection by the state of its rights and freedom, including judicial protection. One of the important guarantees of implementation of such right is the procedure of exemption of individuals from payment of a state fee for filing complaints against rulings on administrative offences cases stipulated by administrative procedural legislation. Absence of the unified rules on exemption from payment of a state fee not promotes the unified practice of law enforcement, observance of the constitutional principle of supremacy of law that can infringe of everyone’s constitutional right to judicial protection.
5. In the Message of the Constitutional Court “On Constitutional Legality in the Republic of Belarus, 2012” it is pointed out that effective legal mechanism for ensuring human rights and freedoms and guarantees of their implementation depends on compliance with the constitutional principle of supremacy of law in rule-making and law enforcement primarily. In Message the Court emphasised 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 supremacy of law. Laws should not contain gaps, conflicts of rules and legal uncertainty.
The Constitutional Court noted that the principle of supremacy of law means along with other completeness and accuracy of rules on the rights and duties of persons, their coincidence in various acts. Legal gaps lead to ambiguous understanding of normative legal acts, controversial practice of law enforcement and weaken guarantees of protection of constitutional rights and freedom.
One of the important elements of legal regulation related to implementation of everyone’s constitutional right to judicial protection is possibility to appeal against resolutions adopted by state bodies and officials, including resolutions on administrative offences cases. Thereby for the purposes of appropriate implementation of everyone’s constitutional right to judicial protection the Constitutional Court considered that the legislator should define a procedure of exemption of individuals from payment of a state fee for filing complaints against rulings on administrative offences cases in view of their property status.
The Constitutional Court made the conclusion that in order to ensure the constitutional principle of supremacy of law, implementation of everyone’s constitutional right to judicial protection and to fill a legal gap on administrative proceedings, it is necessary to establish the procedure of exemption of individuals from payment of a state fee for filing complaints against rulings on administrative offences cases to the court in the PECoAO.
 
In view of the foregoing, guided by part one of Article 116 of the Constitution, Articles 22 and 24 of the Code on Judicial System and Status of Judges, the Constitutional Court of the Republic of Belarus
 
RULED:
 
1. Aiming to ensure the constitutional principle of the rule of law, implementation of everyone’s constitutional right to judicial protection and aiming to fill a legal gap on administrative proceedings to recognise the necessity to make addenda to the PECoAO by establishing the procedure of exemption of individuals by a court (a judge) from payment of a state fee for filing a complaint to the court against rulings on administrative offences cases.
 
2. To propose to the Council of Ministers of the Republic of Belarus to prepare a draft law on the appropriate addenda to the PECoAO and to introduce it in the established order to the House of Representatives of the National Assembly of the Republic of Belarus.
 
3. The present Decision shall come into force from the date of its adoption.
 
4. To publish the present Decision in accordance with the legislation.

 

Presiding Officer – Petr P. Miklashevich,

Chairman of the Constitutional Court of the Republic of Belarus