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The Constitutional Court of the Republic of Belarus considered the case «On the Conformity of Article 29.1.7 and Article 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus to the Constitution of the Republic of Belarus»
On June 12, 2014 by virtue of the provisions of the Constitution of the Republic of Belarus, the Code of the Republic of Belarus on Judicial System and Status of Judges, the Law of the Republic of Belarus «On the Constitutional Proceedings» on the proposal of the House of Representatives of the National Assembly of the Republic of Belarus the Constitutional Court of the Republic of Belarus considered the case «On the Conformity of Article 29.1.7 and Article 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus to the Constitution of the Republic of Belarus» (reporting judge – Tadeush V. Voronovich).
The application of Ms. T.I. Belyasova submitted to the House of Representatives was the ground for the proposal to the Constitutional Court. The applicant expressed her disagreement with the termination of the preliminary investigation of the criminal case against her dead son stating his guilt in committing the road accident led to his death and the death of the passenger because the fact of the termination of the criminal case on non-rehabilitating ground as well as its possible legal consequences significantly affected the honour and good name of the deceased and legitimate interests of his close relatives. Ms. Belyasova considers that the termination of the criminal case on non-rehabilitating grounds without the consent of the close relatives violates the provisions of Articles 26 and 60 of the Constitution of the Republic of Belarus enshrining the presumption of innocence and the right of everyone to judicial protection.
According to the Constitution the State shall safeguard personal liberty, inviolability and dignity(Article 25.1); no one may be found guilty of crime unless his guilt is proven under the procedure specified by law and established by a court sentence that has come into legal force(Article 26); everyone shall have the right to protection against unlawful interference with his private life, including encroachments on the privacy of his correspondence and telephone and other communications, and on his honour and dignity(Article 28); everyone shall be guaranteed protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law(Article 60.1).
The provisions of the Code of Criminal Procedure of the Republic of Belarusstipulate that the criminal case against the deceased can not be initiated and the preliminary investigation of the initiated case and criminal proceedings with fixing the court session shall be terminated including in the court session, unless the proceedings are necessary for the rehabilitation of the deceased (Articles 29.1.7, 250.1, 279.1 and 303.1.1).
In case of the termination of criminal proceedings against the deceased the proof of his guilt shall be ceased, but at the same time he is not cleared of the suspicion or accusation of committing the crime. However, illegal or unjustified criminal prosecution, first of all, is infringement of such intangible personal rights enshrined in the Constitution as the dignity and honour that belong to human being by birth and are inalienable. The individual the criminal case against whom is terminated on the mentioned ground due to his death is objectively deprived of the opportunity to protect his dignity and honour. In regard to the relatives of the deceased the Code of Criminal Procedure does not provide for the necessity to obtain their consent for the termination of the criminal prosecution.
In this regard the Constitutional Court in its Judgment points out that the rules of the criminal procedure law admitting the declaration of guilt of an individual in committing the crime without the court conviction, not providing for the possibility of verifying the legality and validity of the criminal prosecution of the deceased with the participation of his relatives in court, do not ensure the possibility of rehabilitation of the deceased in order to protect his dignity and honour. The constitutional right of everyone to protection from attacks on his honour and dignity shall not be limited by the period of human life; this right shall oblige the state to provide for the necessary legal guarantees to ensure judicial protection of human rights after his death including the right of close relatives to require the rehabilitation of the deceased in the frame of the criminal proceedings in compliance with the constitutional principle of the adversarial nature of the judicial proceedings and equality between prosecution and defence.
Based on the foregoing, the Constitutional Court made the decision to recognise the provisions of Articles 29.1.7, 250.1, 279.1 and 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus stipulating that the criminal case against the deceased can not be initiated and the preliminary investigation of the initiated case and criminal proceedings with fixing the court session shall be terminated including in the court session, unless the proceedings are necessary for the rehabilitation of the deceased not to be conforming to Articles 25.1, 26, 28 and 60.1 of the Constitution of the Republic of Belarus insofar these provisions of the current legislation allow the body conducting the criminal proceedings in case of death of the suspect or the accused to refuse to initiate criminal proceedings or to terminate the proceedings on the initiated case without the consent of his close relatives.