Acts of the Constitutional Court
JUDGMENT OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
12 June 2014 № J-928/2014
12 June 2014 № J-928/2014
On the conformity of Articles 29.1.7 and 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus to the Constitution of the Republic of Belarus
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer − Chairman P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, N.A. Karpovich, L.G. Kozyreva, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov
with participation of representatives from:
the House of Representatives of the National Assembly of the Republic of Belarus − V.O. Cherevach, Deputy Chairman of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus; I.D. Lapeko, Head of Division Ensuring Activities of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus;
the Council of the Republic of the National Assembly of the Republic of Belarus − V.V. Timoschenko, Deputy Head of Department – Head of Division on Legal Analysis and Juridical Expertise of Draft Legislation of Expert-Juridical Department of the Secretariat of the Council of the Republic of the National Assembly of the Republic of Belarus;
in open court session has considered the case “On the conformity of Articles 29.1.7 and 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus to the Constitution of the Republic of Belarus”.
In court session have taken part:
authorised representative of the President of the Republic of Belarus in the Constitutional Court − V.V. Mitskevich, Deputy Head of the Administration of the President of the Republic of Belarus;
authorised representative of the House of Representatives of the National Assembly of the Republic of Belarus in the Constitutional Court − L.S. Mikhalkova, Chairwoman of the Standing Commission on Law of the House of Representatives of the National Assembly of the Republic of Belarus;
authorised representative of the Council of the Republic of the National Assembly of the Republic of Belarus in the Constitutional Court − L.F. Moroz, Chairwoman of the Standing Committee on Legislation and State Administration of the Council of the Republic of the National Assembly of the Republic of Belarus;
representatives of state bodies:
the Supreme Court of the Republic of Belarus − V.L. Kalinkovich, Deputy Chairperson of the Supreme Court of the Republic of Belarus;
the Prosecutor General’s Office of the Republic of Belarus − A.M. Lashin, Deputy Prosecutor General of the Republic of Belarus;
the Investigative Committee of the Republic of Belarus − V.A. Gaiduchenok, Deputy Chairperson of the Investigative Committee of the Republic of Belarus;
the Ministry of Justice of the Republic of Belarus − I.G. Tushinski, Deputy Minister of Justice of the Republic of Belarus.
The legal proceedings were instituted by the Constitutional Court of the Republic of Belarus on 12 May 2014 on the basis of Articles 116.1 and 116.4 of the Constitution of the Republic of Belarus (hereinafter − the Constitution), Article 22.1 of the Code of the Republic of Belarus on Judicial System and Status of Judges and Article 32 of the Law of the Republic of Belarus “On the Constitutional Proceedings” on the proposal of the authorised body − the House of Representatives of the National Assembly of the Republic of Belarus.
The ground for submitting a proposal to the Constitutional Court was an application lodged to the House of Representatives of the National Assembly by T.I. Belyasova who had expressed a disagreement with a termination of a criminal investigation with regard to her deceased son I.V. Belyasov. The criminal investigation has established I.V. Belyasov’s guilt of committing a road accident carried away his life and the life of a passenger. According to T.I. Belyasova’s arguments both the mere fact of terminating a criminal case on the non-rehabilitative grounds and possible legal consequences thereof considerably affected the honour and good name of the deceased as well as legitimate interests of his close relatives. As a result the decision on termination of preliminary investigation of the criminal case was appealed to the Prosecutor’s Office, preliminary investigation body and courts. These bodies recognised that the termination of criminal proceedings had been lawful. T.I. Belyasova is of an opinion that a termination of a criminal case on the non-rehabilitative grounds without the consent of close relatives of a deceased violates provisions of Articles 26 and 60 of the Constitution enshrining the presumption of innocence and right to be heard in court.
The House of Representatives of the National Assembly assumes that the T.I. Belyasova’s doubts of the constitutionality of Articles 29.1.7 and 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus are reasonable as after a termination of a criminal case with respect to a deceased follows a termination of further proof of his guilt while the suspicion or accusation of committing a crime remain in force. Moreover, a person in relation to whom a criminal case is terminated by reason of his death is objectively deprived of a possibility to defend his dignity and honour. As regards close relatives of a deceased the legislation on criminal procedure does not prescribe provisions on necessity to obtain their consent in order to terminate a criminal prosecution. On these grounds the House of Representatives of the National Assembly submitted a proposal to the Constitutional Court to make a judgment on the conformity of the above-mentioned rules of the Code of Criminal Procedure to Articles 26 and 60 of the Constitution.
According to Articles 29.1.7 and 303.1.1 of the Code of Criminal Procedure of the Republic of Belarus of 16 June 1999 (Bulletin of the National Assembly of the Republic of Belarus 1999, No 28-29, p. 433) entered into force on 1 January 2001, with alterations and addenda, criminal proceedingswith regard to a deceased may not be instituted and proceedings already instituted shall be terminated, including cases at trial, with the exception of instances when the criminal proceedings shall be carried out with the view of rehabilitation of the deceased.
Having heard the reporting judge T.V. Voronovich, arguments of representatives of parties in the case − the House of Representatives of the National Assembly, the Council of the Republic of the National Assembly, opinions of authorised representatives in the Constitutional Court of the President of the Republic of Belarus, the House of Representatives of the National Assembly, the Council of the Republic of the National Assembly, statements of representatives of the Supreme Court, the Prosecutor General’s Office, the Investigative Committee, the Ministry of Justice, having analysed provisions of the Constitution, Code of Criminal Procedure and other legislative acts, having examined materials of the case, the Constitutional Court found the following.
1. According to Articles 116.4.1-2 of the Constitution, Articles 22.1.1-2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 114.1 and 118.1 of the Law “On the Constitutional Proceedings” the Constitutional Court on proposals of the President of the Republic of Belarus, the House of Representatives of the National Assembly, the Council of the Republic of the National Assembly, the Supreme Court, the Council of Ministers of the Republic of Belarus shall make a judgment on the conformity of laws, decrees and edicts of the President of the Republic of Belarus, obligations under treaties and other international commitments of the Republic of Belarus to the Constitution and international legal acts ratified by the Republic of Belarus.
Under Articles 54.1-2 and 177 of the Law “On the Constitutional Proceedings” the Constitutional Court may also make a judgment with regard to the acts based on a reviewed act or reproducing certain provisions thereof even if they were not mentioned in the proposal on review of the constitutionality of this act.
In court session representatives of the initiator − the House of Representatives of the National Assembly − on the basis of Article 19.3 of the Law “On the Constitutional Proceedings” enlarged the scope of the proposal submitted to the Constitutional Court, having explained that Article 29.1.7 of the Code of Criminal Procedure underlies not only a rule contained in Article 303.1.1, but also provisions of Articles 250.1 and 279.1 of the Code of Criminal Procedure. According to these provisions if a circumstance indicated in Article 29.1.7 of the Code is established, a preliminary investigation of a criminal case shall be terminated. A judge while fixing a date for court session makes a judgment on termination of criminal proceedings. Representatives of the initiator suppose that the scope of the constitutional review shall include interrelated provisions of Articles 29.1.7, 250.1, 279.1, 303.1.1 of the Code of Criminal Procedure as regards a situation when close relatives of a deceased do not agree with the termination of criminal case.
Representative of the party − the Council of the Republic of the National Assembly − seconded this proposal of the initiator.
2. According to Article 39 of the Law “On the Constitutional Proceedings” the Constitutional Court submitted requests to the Supreme Court, Prosecutor General’s Office, Investigative Committee and Ministry of Justice. The state bodies expressed their opinion on the case in written replies.
The Supreme Court assumes that for the purpose of granting to individuals additional guarantees of the implementation of rights under Articles 26 and 60 of the Constitution it is possible to introduce alterations and addenda to the Code of Criminal Procedure allowing close relatives to demand a continuation of criminal proceedings with respect to a deceased for his rehabilitation, including consideration of a case in court on the merits of a charge.
The Prosecutor General’s Office points out that refusing further criminal proceedings the state does not dispute his innocence guided by constitutional principle that in order to find somebody guilty a court sentence entered into legal force is required. A criminal prosecution in respect of a deceased shall be terminated without adjudging him guilty in view of the absence of a crime committer.
The Investigative Committee finds reasonable to make alterations to the Code of Criminal Procedure aimed to ensure judicial protection of a deceased suspect (accused) by considering such criminal cases in court if close relatives insist on this. It is possible to specify a list of other persons that apart from close relatives can be granted the mentioned right, procedural forms of their admission to the case and an appropriate legal status.
The Ministry of Justice notes that a rehabilitation of a deceased excludes claims to his property in civil suits from parties concerned that confirms a direct interest of close relatives of the deceased in the institution of criminal action, conduct of preliminary investigation and court trial. Accordingly, the provision on necessity to obtain by a prosecuting body or court the consent of close relatives of the deceased in order to terminate criminal proceedings in respect of him on non-rehabilitative grounds may be established in the Code of Criminal Procedure.
3. Under the Constitution the individual, his rights, freedoms and guarantees to secure them are the supreme value and goal of the society and the state, while safeguarding the rights and freedoms of citizens of the Republic of Belarus − the supreme goal of the state; the state shall guarantee the rights and freedoms of citizens of the Republic of Belarus that are enshrined in the Constitution, laws and state's international obligations (Articles 2.1, 21.1 and 21.3).
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 his honour and dignity (Article 28).
Article 60.1 of the Constitution guarantees to everyone protection of his rights and freedoms by a competent, independent and impartial court within the time limits specified by law.
International legal acts enshrine the following rules. All human beings are born free and equal in dignity and rights; everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him (Articles 1 and 10 of the Universal Declaration of Human Rights). In the determination of any criminal charge against him everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law (Article 14.1 of the International Covenant on Civil and Political Rights).
At the same time under rules of Articles 29.1.7, 250.1, 279.1, 303.1.1 of the Code of Criminal Procedure the death of a suspect or accused is a circumstance that excludes a conduct of proceedings in a criminal case on the non-rehabilitative grounds.
Therefore, when terminating a criminal prosecution with regard to a deceased the subsequent proof of his guilty is terminated as well. However, the suspicion or charge of committing a crime is not lifted. Moreover, as it was pointed out in the Judgment on termination of criminal proceedings in respect of I.V. Belyasov, in this case a commission of a crime by the deceased is stated and the authorised state body dismisses subsequent criminal proceedings only because of the death of the named person. The Code of Criminal Procedure does not contain any provisions on necessity to obtain the consent of close relatives of the deceased to terminate the criminal prosecution.
An unlawful and unjustified criminal prosecution is, first of all, an encroachment upon such personal non-pecuniary constitutional rights as the dignity and honour that are inalienable and belong to a human being since birth. For the purpose of realisation of constitutional provisions on safeguarding the personal dignity by state and ensuring to everyone the right to be protected from encroachments upon his honour and dignity (Article 25 and 28 of the Constitution) the Code of Criminal Procedure sets out a possibility to rehabilitate a person affected by unlawful acts of a body conducting criminal proceedings.
The Constitutional Court notes that taking into account the establishment in the Republic of Belarus of the rule of law, recognition by the Republic of Belarus of the supremacy of the generally recognised principles of international law (Articles 7.1 and 8.1 of the Constitution) the above-mentioned constitutional provisions and rules of international legal acts may not be applied selectively, but shall operate at all stages of criminal proceedings. In this regard the Constitutional Court holds that the rules of the legislation on criminal procedure, to the extent they allow to indicate the guilt of committing a crime by an individual without delivering a judgement of conviction by court and do not fix any provisions on review of the legality and reasonableness of the criminal prosecution of the deceased person with participation of his close relatives in proceedings before the court, excludes a possibility to rehabilitate the deceased individual with the view of protection of his dignity and honour.
4. The Republic of Belarus ensures the legality and legal order; the state shall take all measures at its disposal to establish the domestic and international order necessary for the full exercise of the rights and freedoms of the citizens of the Republic of Belarus specified by the Constitution (Articles 1.3 and 59.1 of the Constitution).
Article 7.2 of the Code of Criminal Procedure corresponds to the mentioned constitutional provisions and states that the procedure for consideration of materials and criminal cases established by this Code is dedicated to ensure the legality and legal order, the prevention of crimes, the protection against a groundless accusation or conviction, unlawful restrictions of rights and freedoms of an individual and citizen as well as − in case of accusation or conviction of an innocent − to safeguard his immediate and complete rehabilitation, the compensation for his physical, pecuniary and non-pecuniary damages, the reinstatement of violated labour, pensionary, housing and other rights. According to Article 27.1 of the Code of Criminal Procedure a prosecuting body within its competence is obliged to institute criminal proceedings in every case of discovery of indications of a crime, take all measures provided by law to establish a socially dangerous act prescribed by criminal law and to expose persons being guilty of committing a crime, to punish them as well as to take measures aimed at the rehabilitation of an innocent.
Thus, by virtue of rules of the Code of Criminal Procedure innocent persons are subject to rehabilitation in case of their unlawful accusation or conviction. Nevertheless, while refusing to institute criminal proceedings or when terminating the instituted proceedings in respect of a deceased with a statement of his guilt of committing a socially dangerous act entailing the criminal responsibility such constitutional rights of the deceased as the personal dignity and honour may be violated.
Chapter 48 “Proceedings for compensation of damages of individuals and legal entities caused by unlawful acts of a prosecuting body” of the Code of Criminal Procedure provides that a prosecuting body in case of recognition of its actions and decisions as unlawful shall take measures to compensate physical, pecuniary and non-pecuniary damages inflicted on an individual and to reinstate his violated labour, pensionary, housing and other personal non-pecuniary rights (Article 460.2).
It follows form the analysis of Articles 29.1.7, 250.1, 279.1 and 303.1.1 of the Code of Criminal Procedure that a refusal to institute criminal proceedings, termination of preliminary investigation, termination of criminal proceedings by a judge in assigning a day for court session or at court session by reason of the death of a suspect or accused shall not be an impediment for the rehabilitation of this person in case of damages caused by unlawful actions of a prosecuting body, particularly, for the reinstatement of such personal non-pecuniary rights as the personal dignity and honour.
5. Under Article 22 of the Constitution all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination.
Article 29.3 of the Code of Criminal Procedure enshrines a legal rule fixing that a termination of criminal proceedings on the grounds established in Articles 29.1.3 and 29.1.4 (due to expiry of period of limitations or in case of amnesty act) is permitted only with the consent of a suspect or accused. Thus, it confirms the implementation of such constitutional principles as the presumption of innocence, right of everyone to protection of dignity and honour, ensuring protection of rights and freedoms in court.
The Constitutional Court is of an opinion that rules of Articles 29.1.3 and 29.1.4 of the Code of Criminal Procedure have a similar nature with a rule of Article 29.1.7, as they prescribe circumstances excluding criminal proceedings on the non-rehabilitative grounds. However, if the termination of criminal proceedings on the grounds indicated in Articles 29.1.3 and 29.1.4 is allowed only with the consent of a suspect or accused, in case of termination of criminal proceedings with regard to a deceased (Article 29.1.7) this person, because of death, is deprived of a possibility to file an objection in order to protect his dignity and honour, whereas a receipt of the consent of his close relatives is not provided by the Code of Criminal Procedure.
This denotes different approaches of the legislator to regulation of similar legal relations regarding termination of criminal proceedings on the non-rehabilitative grounds. Consequently, in the legislation on criminal procedure it is necessary to fully implement the constitutional provision on the equality of everyone before the law and right to equal protection of rights and legitimate interests in court.
6. The Constitutional Court reiterates that a right to judicial protection, enshrined in Article 60 of the Constitution, presupposes the existence of concrete effective legal remedies to reinstate one’s rights. The analysis of this Article in conjunction with provisions of Articles 6, 109.1 and 115.1 of the Constitution on independence of judicial power that resides in courts and on administering the justice on the basis of adversarial proceedings and equality of parties before the court shows that the constitutional right to judicial protection means not only a right to apply to the court, but also a right to get a real protection in the issue of exercising judicial power through different types of proceedings.
According to the principle enshrined in Article 115.1 of the Constitution the justice in criminal proceedings is administered on the basis of the adversarial nature of the trial and equality of the prosecution and the defence (Article 24.1 of the Code of Criminal Procedure). For the purpose of safeguarding equal rights of the parties at trial a public prosecutor, private accuser, accused, his defence counsel and legal representative as well as an aggrieved, civil claimant, respondent and their representatives enjoy equal rights to challenge a judge, to make a motion, to adduce evidence and examine them, to take part in a debate as well as to participate in consideration of other issues emerged at criminal trial (Article 292 of the Code of Criminal Procedure).
Under motion of an accused court may issue a procedural ruling (judgment) to admit one of his close relatives or legal representatives as a defence counsel in court (Article 44.3 of the Code of Criminal Procedure). Nevertheless, in case of the death of a suspect or accused his close relatives have no possibility to carry out his defence in criminal proceedings and, therefore, to make a motion to rehabilitate the deceased as well as to exercise other powers of defence counsel. Thus, it denotes the existence of actual inequality of the prosecution and the defence in criminal proceedings.
Furthermore, the actual inequality of the prosecution and the defence is confirmed by the content of Article 49.4 of the Code of Criminal Procedure that provides that in criminal cases involving the death of an aggrieved his rights and duties prescribed by Article 50 of the Code are exercised by members of his family, close relatives and legal representatives. However, in case of the death of a suspect or accused his close relatives are deprived of a possibility to vindicate in criminal proceedings individual non-pecuniary rights enshrined in the Constitution.
Article 138 of the Code of Criminal Procedure prescribes that procedural actions and decisions of a prosecuting body affecting interests of participants to a criminal case, other individuals and legal entities may be appealed by them under procedure established by the Code.
The termination of a criminal prosecution on such a non-rehabilitative ground as the death of a suspect or accused may affect both non-pecuniary (dignity, honour, good name) and pecuniary rights of his close relatives (in particular, in case of bringing a claim to inherited property or to heirs that inherited this property).
Thus, close relatives of a deceased shall have the right to appeal against actions and decisions of a prosecuting body only insofar as their legitimate interests are affected.
By virtue of the foregoing the Constitutional Court comes to the conclusion that in case of refusal to institute criminal proceedings, termination of preliminary investigation or termination of criminal proceedings by a judge in assigning a day for court session or at trial by reason of the death of a suspect or accused the consent of close relatives is required in order to ensure the rehabilitation of the deceased for the purpose of protection of constitutional rights of an individual. In the absence thereof the criminal proceedings shall be continued on the basis of the adversarial nature of the trial and equality of the prosecution and the defence with the participation on the part of defence of close relatives of the deceased suspect or accused, that in appropriate circumstances entails the issue of a final decision by court.
7. As the main factors of the establishment of the constitutional legality in law-making and law-enforcement the Constitutional Court considers the strict observance of the principle of rule of law, safeguarding human rights and freedoms, setting up and implementation of such legal mechanisms that effectively contribute to the strengthening of the constitutional legality.
In considering the present case the Constitutional Court proceeds from interrelated rules of Articles 25.1, 26, 28 and 60 of the Constitution on ensuring personal dignity by state, presumption of innocence, right of everyone to protection against encroachments upon his dignity and honour, ensuring to everyone protection of his rights and freedoms by a competent, independent and impartial court as well as from provisions of international legal acts safeguarding to everyone a right to ascertain the reasonableness of criminal charges brought against him by a competent, independent and impartial court. On this basis the Constitutional Court comes to the conclusion that in case of refusal to institute criminal proceedings, termination of preliminary investigation, termination of criminal proceedings by a judge in assigning a day for court session or at trial the current legislation with respect to a deceased does not provide for a requirement to obtain the consent of close relatives of a suspect or accused to conduct the mentioned criminal procedural actions. Thus, it does not allow to ensure the rehabilitation of the deceased for the purpose of protecting his dignity and honour. The constitutional right of everyone to protection against encroachments upon his dignity and honour covers not only the life period of a human. This right obliges the government to set up legal guarantees to ensure judicial protection of personal dignity and honour after the death and thereby includes a right of close relatives to demand the rehabilitation of the deceased in criminal proceedings with observance of the constitutional principle of exercising the justice on the basis of the adversarial nature of the trial and equality of the prosecution and the defence.
The Constitutional Court finds that according to constitutional requirements and in view of the foregoing the legislator must set forth in the Code of Criminal Procedure provisions fixing a right of close relatives to claim the criminal proceedings to be continued with the purpose of possible rehabilitation of a deceased. Additionally, the provisions must establish the legal status of these participants to criminal proceedings, including their rights and duties, as well as lay down specifics of the preliminary investigation and court hearing in case of the death of a suspect or accused.
By virtue of the foregoing and guided by Articles 116.1 and 116.4 of the Constitution of the Republic of Belarus, Articles 22.1 and 24.1 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 74.1, 75, 77, 78.1, 80 and 84 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus
1. To recognise provisions of Articles 29.1.7, 250.1, 279.1, 303.1.1 of the Code of Criminal Procedure determining that criminal proceedings in respect of a deceased shall not be instituted and in case of proceedings already instituted the preliminary investigation and criminal proceedings shall be terminated by a judge in assigning a day for court session or at trial, except instances when a conduct of criminal proceedings is required for the rehabilitation of the deceased, as not conforming to Articles 25.1, 26, 28 and 60 of the Constitution of the Republic of Belarus to the extent that these provisions in the system of current legislation entitle a prosecuting body in case of the death of a suspect or accused to refuse to institute criminal proceedings and to terminate proceedings already instituted without the consent of his close relatives.
2. The present judgment comes into force from the date of its pronouncement. The judgment is final and not subject to appeal or protest. It has the direct effect and does not require confirmation by other state bodies, other organisations, officials.
3. To publish the present judgment in accordance with the legislation.
Presiding Officer − P.P. Miklashevich,
Chairman
of the Constitutional Court
of the Republic of Belarus