Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
20 June 2014 № D-931/2014
On the conformity of the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Improvement of Economic Judicial Proceedings” 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,
 
on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Article 98 and Article 101.1 of the Law of the Republic of Belarus “On Constitutional Proceedings”
 
in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Improvement of Economic Judicial Proceedings”.
 
Having heard the reporting judge L.G. Kozyreva, having analysed the provisions of the Constitution of the Republic of Belarus (hereinafter, the “Constitution”), the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Improvement of Economic Judicial Proceedings” and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:
 
The Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Improvement of Economic Judicial Proceedings” (hereinafter, the “Law”) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on June 5, 2014, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on June 12, 2014 and submitted for signing by the President of the Republic of Belarus.
 
The Law is aimed at improving the provisions of the Code of Economic Procedure of the Republic of Belarus (hereinafter, the “CEP”) taking into consideration its application and development of the legislation and also at harmonization of certain provisions of the CEP, laws of the Republic of Belarus «On the International Arbitration Court», «On Commodity Exchanges» with the provisions of the Decree of the President of the Republic of Belarus of November 29, 2013 No. 6 «On Improvement of the Judicial System of the Republic of Belarus», edicts of the President of the Republic of Belarus of November 29, 2013 No. 529 «On Certain Issues of Activity of the Courts of the Republic of Belarus» and of November 29, 2013 No. 530 «On Certain Issues of Improving the Organisation of Execution of Judgments and Other Court Orders».
 
While reviewing the constitutionality of the Law the Constitutional Court proceeds from the following.
 
1. 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 (Article 2.1); safeguarding the rights and freedoms of citizens of the Republic of Belarus shall be the supreme goal of the State (Article 21.1). According to the Constitution the Republic of Belarus is bound by the principle of the rule 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 21.1); all shall be equal before the law and have the right to equal protection of their rights and legitimate interests without any discrimination (Article 22); 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 (Article 60.1).
 
2. According to the Constitution the justice shall be administered on the basis of the adversarial proceedings and equality of the parties to the trial (Article 115.1). The implementation of this rule presupposes legal proceedings whereby parties to court trial are vested with equal procedural opportunities to vindicate their rights and legitimate interests, including a real opportunity to covey one’s position to a court. In this case solely the right to a fair, complete and effective judicial protection is exercised.
 
2.1. Articles 1.34 and 1.62 of the Law make alterations and addenda to the CEP aimed at the observance of the principle of the adversarial nature of the process and raising of the responsibility of participating in case individuals for the fullness of adduced evidence as well as for the quality of documents submitted to a court. In particular, an obligation is introduced in relation to participating in case individuals that prescribes to disclose evidence before the end of preparation of a case to a court trial or within the term established by the court adjudicating economic cases (Article 100.4 of the CEP). The right of a court to establish the term for submission of a statement of defence is set forth (Article 166 of the CEP). Articles 1.35 and 1.117 of the Law amending Articles 101.1 and 294 of the CEP enshrine the procedure of submission, examination and evaluation of evidence. Under this procedure evidence is submitted to courts considering economic cases of first and appeals instances, whereas the cassation instances review the correspondence of inferences drawn by the named courts to circumstances and evidence already established in the case. 
 
Chapter 8 “Evidence and proof of circumstances in a case” of the CEP is supplemented by a range of rules. Thus, Article 84 of the CEP is complemented by the provision prescribing to admit as written evidence in a case documents obtained by means of facsimile, electronic and other types of communication, including the Internet, as well as documents signed by use of electronic digital signature or other analogue of a handwritten signature (Article 31.1 of the Law). This rule establishes a procedural opportunity to adduce evidence obtained by means of new communicative technologies related to the date fixation or its transmission.
 
2.2 The legislator sets out provisions on electronic circulation of documents in economic proceedings. In particular, Article 55 of the CEP, which regulates rights and obligations of participating in a case individuals, is supplemented by the rule providing for the right of the named individuals to submit to a court considering economic cases documents in the electronic form (Article 1.21 of the Law).
 
Articles 1.30 and 1.66 of the Law regulate the application of videoconference communication in holding a court session and carrying out separate procedural actions (Articles 83 and 176-1 of the CEP); granting to a court of a right to notify parties to a case of the date and time of a court session by e-mail. Under Article 140.2 of the CEP set forth in a new wording a court considering economic cases is entitled to notify parties to an economic case via telegram, phoned telegram, facsimile communication, the Internet, including via e-mail, as well as by means of other types of communication ensuring the fixation of a fact of notification or a call under procedure established by law.
 
The Constitutional Court is of an opinion that the procedure determined by the Law for adducing evidence by parties to a case with the purpose to support their positions as regards all circumstances of the case, participation in its examination in open court session while settling a dispute on the merits, use of electronic circulation of documents and information technologies in economic proceedings are directed at the implementation of the constitutional principle of the adversarial proceedings and the equality of parties to a case. This principle create conditions for the thorough and complete examination of evidence that has a significance for the accurate application of the legislation in adjudicating cases, for the accessibility of judicial protection of rights of individuals and legal entities, their legitimate interests safeguarded by law.
 
3. Under the Constitution 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 Republic of Belarus as a state based on rule of law is obliged to ensure effective protection of individual rights and freedoms through the justice corresponding to requirements of the fairness and determining the court and the procedure for adjudicating a particular case.
The Law broadens the jurisdiction of economic courts.
 
3.1. Thus, the CEP is supplemented by the provision that the jurisdiction of economic courts covers complaints against the replies to the applications of legal entities, individual entrepreneurs and individuals (Article 1.16 of the Law). The mentioned Code is complemented as well by Article 266². Article 2662.1 provides that legal entity, an individual entrepreneur or an individual may address the economic court with the complaint against the reply of the organisation (individual entrepreneur) to the application, the decision to dismiss the application, the reply to the complaint to the superior organisation, if they consider that their rights and legitimate interests in the field of entrepreneurial and other economic activity are violated (Article 1.102 of the Law). This article regulates proceedings on this category of cases (terms and features of making such complaints, procedure of their consideration, types of decisions made by the court on the complaint). At the same time, Article 51 of the CEP is complemented by a new paragraph (Article 51.11), which defines the jurisdiction of this category of cases ‒ at the place of location or place of residence of the applicant (Article 1.19 of the Law).
 
The Law of the Republic of Belarus «On Applications of Individuals and Legal Entities» enshrines the right of the applicants to make a complaint against replies to applications and decisions to dismiss applications in accordance with the established order (Article 7.7). At the same time, Article 20 of the Law (Article 20.3, 20.4 and 20.6) provides for the possibility to make a complaint against replies before the court.
 
The Constitutional Court draws attention to the provision of Article 2662.3 of the CEP, according to which the complaint against the reply to the application may be filed in the economic court not later than one month from the date of receipt by the applicant of the response of the superior body on the application (in the absence of a mandatory pre-trial procedure of appeal ‒ from the date of receipt by the applicant of the response of the organisation (individual entrepreneur), or from the date of expiration of one month from filing of the complaint against the reply on the application to the superior organisation, if the applicant has not received its answer.
 
When evaluating this provision, the Constitutional Court is grounded on Article 60.1 of the Constitution which states that every subject of legal relationship in case of a violation of his rights and freedoms may apply to the court for their protection. The constitutional provision does not contain indication of the admissibility of judicial protection only after the pre-trial settlement of the dispute and the inadmissibility of the administration of justice without its application. As the Constitutional Court stated earlier (the Decision of December 30, 2010 «On the Conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Codes of the Republic of Belarus on Improvement of Economic Judicial Proceedings» to the Constitution of the Republic of Belarus» and the Decision of July 7, 2011 «On the Conformity of the Law of the Republic of Belarus «On Applications of Individuals and Legal Entities» to the Constitution of the Republic of Belarus») the possibility to use the pre-trial settlement of the dispute in order to protect the rights, freedoms and legitimate interests serves as an additional legal remedy and is not a limitation of the constitutional right to judicial protection, as well as not a limitation of the court's jurisdiction.
 
3.2. In accordance with Article 1.88 of the Law the CEP is supplemented by the Chapter 25 (Articles 2301-2305), which regulates proceedings on the applications of supervisory bodies to extend the suspension (the ban) of the activity. In particular, it is provided that the application for extension of the suspension (the ban) of activities shall be submitted to the economic court before the expiration of the period of the suspension (the ban) of the activity specified in the request (order) of the supervisory body and shall be considered by the economic court within the period of not more than ten days from the date of the ruling on fixing the case for trial, in exceptional cases ‒ up to one month (Articles 2301 and 2303 of the CEP). These additions are made to the CEP taking into consideration the provisions of the Edict of the President of the Republic of Belarus of July 26, 2012 No. 332 «On Certain Measures of Improvement of the Control (Supervision) Activity in the Republic of Belarus».
 
Based on the fact that the suspension and prohibition of activities limit the right of entities to carry out activities and they can be used only in the cases specified by legislative acts by the authorised supervisory body or court solely for the purpose of ensuring national security, protection of life and health of individuals, environmental protection, and extended ‒ only by a court decision (paragraph 5.2 of the Regulation on the organisation and carrying out of inspections, approved by the Edict of the President of the Republic of Belarus of October 16, 2009 No. 510). The Law enshrines that in such cases the request for extension of the suspension (the ban) of activities shall include additional grounds for requirements with confirmation of threat for national security, damage to life and health of the population, the environment by continuation of the suspended (forbidden) activity (Article 230².3 of the CEP). Possibility of the extension of the suspension (ban) of activities only by a court decision with confirmation of grounds for the necessity of such an extension provides for additional guarantees for protection of the rights of entities which activities are suspended (forbidden).
 
According to the Constitutional Court, the legal regulation of the proceedings on applications of control (supervision) bodies to extend the suspension (the ban) of activities and proceedings on the complaints against replies of legal entities, individual entrepreneurs and individuals is aimed at ensuring timely and effective mechanism for the implementation of the constitutional right to judicial protection, including the recourse to.
 
4. The constitutional provisions that the individual, his rights, freedoms and guarantees for their realisation shall be the supreme goal and value of society and the State and everyone shall be guaranteed protection of one's rights and freedoms by a competent, independent and impartial court within time periods specified by law as well as the corresponding to them Article 14.1 of the International Covenant on Civil and Political Rights, Articles 7, 8 and 10 of the Universal Declaration of Human Rights lead to the conclusion, that justice per se can be recognised as such only if it meets the requirements of fairness and provides an effective restoration of rights.
 
One of the important factors determining the efficiency of restoration of the infringed right is timeliness of the protection of the rights of persons involved in the case. Justice meets the requirement of fairness if the consideration and resolution of the case by the court are carried out within a reasonable time. Observance of a reasonable period in the economic proceedings also provides legal certainty and stability in the field of civil circulation. In pursuing these aims, Article 134.1 of the CEP contains a provision that the deadlines for performing procedural actions may be established by the Code or other laws. In cases when the procedural time limits have not been established they shall be fixed by the court considering the economic cases. Terms provided by law cover a time limit for filing a cassation (protest). Thus, according to the new wording of Article 285.2 of the CEP at the request of the person, who filed a cassation appeal (protest), deadline for such an appeal (protest) can be recovered on condition that the request is filed not later than six months from the date of entry into force of the judgment appealed and if the court considering the economic cases, court of appeal found the reason for missing the term of cassation (protest) as valid (Article 1.112 of the Law).
 
According to the Constitutional Court a deadline established by Law for the filing of the appeal (protest) is aimed at ensuring an appropriate balance between the principle of legal certainty and the right to a fair trial that imply a legal and valid court decision. The restoration of the missed term and, as a result, the institution of the appeal proceedings may take place only within limited reasonable period and in cases of substantial objective circumstances, which prevented the person concerned, seeking reinstatement of missed term, to protect his rights neither in first and appeal courts, nor within the framework of the time period provided for filling a cassational appeal.
 
5. It follows from provisions of the Constitution prescribing that the State shall guarantee the rights and freedoms of the citizens of Belarus enshrined in the Constitution, laws and the state's international obligations as well as that the State shall ensure to everyone protection of his rights and freedoms by a competent, independent and impartial court of law within time periods specified in law (Article 21.3, 60.1) in conjunction with legal rule that the rulings of courts shall be mandatory for all individuals and officials (Article 115.2) that the protection of the violated rights may not be recognised as effective if the court act is not executed in due time.
 
Such an approach complies with Article 2 of the International Covenant on Civil and Political Rights obliging the states to ensure to any person, whose rights and freedoms are violated, effective remedies.
 
Thus the Constitutional Court pays attention to Article 6.1 of the Convention on Protection of Human Rights and Fundamental Freedoms in its interpretation by the European Court of Human Rights which believes that execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6, and that the right of everyone would be illusory if a state domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party (Case of Hornsby v. Greece, Judgment of March 19, 1997 (paragraph 40), etc.).
 
The Constitutional Court considers that the requirement of timely and effective execution of the rulings follows from the above-mentioned provisions of the Constitution and the international instruments and predetermines a duty of the state to ensure implementation of this requirement and to establish the appropriate organisational legal mechanism of execution of court rulings.
 
A number of provisions of Article 1 of the Law are aimed at the implementation of constitutional principles and rules. They make alterations and addenda to Articles of the CEP regulating executive proceedings: on granting the status of a writ of execution to acts of executors of the court in cases established by CEP (Article 329.4); on conferring on executors of the court the right to suspend transactions on accounts of individuals, individual entrepreneurs and legal entities in banks and (or) non-bank financial organisations (Articles 351 and 375); on establishing an opportunity of an executor of the court to submit to the court considering economic cases adductions on issues determined by the Code, in particular on taking measures to ensure an execution of writs of executions (Article 327); on expanding a list of measures aimed to ensure an execution of writs of executions (Article 348); on procedure for holding electronic tenders (Articles 352, 382, 384-388, 401), etc.
 
The Constitutional Court draws attention that Article 1.137 of the Law provides for restrictions of rights of individuals and legal entities, in particular as regards the accomplishment of executive actions by an executive of the court (Article 351 of the CEP). Additionally, Article 1.133 of the Law enshrines an obligation of a debtor to produce to an executor of the court the information on his property, sources of income as well as to indicate grounds for all his owing pecuniary claims (Article 345-1 of the CEP). These rules of the Law limit constitutional rights of individuals to protection against unlawful interference with the private life (Article 28 of the Constitution).
 
According to Article 23.1 of the Constitution the restriction of rights and freedoms shall be permitted only in the instances specified by law in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons. On this basis the Constitutional Court holds that the fixation of rights of executors of the court as regards the accomplishment of his executive actions determined by a new wording of Article 351 of the CEP as well as the imposing of appropriate obligations on debtors are reasonable, lawful and directed at timely and effective execution of writs of execution with the purpose to protect rights and legitimate interests of other persons.
 
6.  According to Article 7 of the Constitution of the Republic of Belarus shall be bound by the principle of the rule of law. In the Message «On the Constitutional Legality in the Republic of Belarus in 2012» the Constitutional Court stated that the implementation in the rule-making of the principle of the rule of law and of the principle of legal certainty based on it involves the creation of the legal system where normative legal acts are in interconnection, comply with each other and ensure clarity, accuracy, consistency and coherence of legal norms.
 
A number of alterations and addenda to the CEP are aimed at implementation of the constitutional principle of the rule of law.
 
6.1. The Law makes alterations and addenda to the rules of the CEP taking into consideration the provisions of the Law «On Arbitration Courts». Thus, it is provided that in addition to cases of appeal against the decisions of international arbitration courts situated in the territory of the Republic of Belarus, the jurisdiction of economic courts of regions (city of Minsk) also covers the decisions of arbitration courts and other permanent arbitral bodies; jurisdiction on consideration of these cases is determined by the location of the arbitration body which made the decision (Articles 46, 251 of the CEP). Provisions of the Law (Article 1.38-42) establish the procedure of taking measures by the economic court to ensure the claim considered by the international arbitration court, arbitration court, other permanent arbitration body (Articles 113-115, 117, 119 of the CEP).
 
6.2. In order to harmonize the rules of the CEP with the provisions of the Decree of the President of the Republic of Belarus of November 29, 2013 No. 6 the Code is amended regarding the renaming of economic courts to courts considering economic cases; definition of system of courts considering economic affairs (Article 1.1 and Article 1.2 of the Law). According to the alterations to Article 1 of the CEP economic cases include cases on for economic (business) disputes arising from civil, land, financial and other legal relationship, cases arising from administrative and other public legal relationship, cases on the establishment of the facts of legal significance (legal facts), cases of written proceedings, other cases specified by legislative acts (Article 1.2 of the Law).
 
6.3. According to the Law (Article 56.1) the CEP is complemented by Article 155¹, which establishes the rights and obligations of the parties during the conciliation procedure, including the right to choose a conciliator.
 
The Decision of the Constitutional Court on July 8, 2013 «On the Conformity of the Law of the Republic of Belarus «On Making Alterations and Addenda to Certain Codes of the Republic of Belarus on the Development of Mediation» to the Constitution of the Republic of Belarus» draws attention to the fact that, according to Article 1 of the CEP the conciliator is a person appointed by the court considering economic cases in accordance with the CEP for negotiations between the parties during the conciliation procedure in the court considering economic cases. At the same time, conciliation procedure is defined as mediation conducted in accordance with the CEP after the initiation of the proceedings in the court considering economic cases. However, the Law of the Republic of Belarus «On Mediation» establishes that mediation is negotiations of parties with participation of a mediator to settle the dispute (disputes) between the parties through the establishment of a mutually acceptable agreement; for the mediation the parties shall choose the mediator by mutual agreement (Article 1.4, Article 12.1).
 
Based on the above-mentioned, the Constitutional Court notes that the addition to the CEP of the rule on the right of the parties to choose a conciliator (Article 1551) with maintain of provisions providing that the conciliator shall be appointed by the court considering economic cases (Articles 1, 156 of the CEP) does not fully take into account the legal position set out in the Decision of the Constitutional Court of July 8, 2013, according to which the legislator in order to ensure uniform legal regulation of the use of mediation was proposed to make appropriate alterations to the CEP while improving the legislation in order to harmonize its provisions with the provisions of the Law on Mediation, stipulating participation of an impartial person (the mediator) chosen by mutual agreement of the parties in the negotiations of the parties in order to assist them to settle the dispute (disputes).
 
7. A number of alterations and addenda made to the CEP (paragraphs 53, 67, 70 and others of Article 1 of the Law) are aimed to unify economic and civil procedural legislation regarding provisions providing for dismissal of the complaint for default in appearance of the applicant at a trial without valid excuse; optimisation of the economic proceedings and exclusion of its excessive formality in the preparation of the trial record and while making a separate procedural action outside the trial; clarification of a number of rules, ensuring their harmonization with other rules for further improvement of the proceedings as real mechanisms to protect the violated rights of individuals who have applied for judicial protection in economic proceedings.
 
Thus, the provisions of the Law comply with the constitutional principles and provisions and are aimed at improving the judicial protection of the rights and legally protected interests of individuals and organisations.
 
The Law is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within competence in accordance with Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with Article 98.1.1 of the Constitution. 
 
In view of the foregoing the Constitutional Court concludes that the Law is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.
Guided by Article 116.1, Article 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 103-105 of the Law of the Republic of Belarus “On the Constitutional Proceedings”, the Constitutional Court of the Republic of Belarus
 
RULED:
1. To recognise the Law of the Republic of Belarus “On Making Alterations and Addenda to Certain Laws of the Republic of Belarus on Improvement of Economic Judicial Proceedings” to be conforming to the Constitution of the Republic of Belarus.
2. The present Decision shall come into force since the date of its adoption.
3. 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