4 October 2005 № J-189/2005
The Constitutional Court of the Republic of Belarus, comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin
with participation of representatives:
of the House of Representatives of the National Assembly of the Republic of Belarus: Y.A. Kulakovsky, Head of Standing Commission on human rights, national relations and mass media; T.S. Osmolovskaya, Deputy Head of Standing Commission on human rights, national relations and mass media; L.K. Orlov, Deputy Head of Department of state, administrative and criminal legislation of Main expert and legal Department of the Secretariat;
of the Council of the Republic of the National Assembly of the Republic of Belarus - A.G. Filanovich, consultant of Department of state, administrative and criminal legislation of Main expert and legal Department of the Secretariat;
of the Council of Ministers of the Republic of Belarus and the Ministry of Internal Affairs of the Republic of Belarus - A.Y. Begoun, First Deputy Head of Department on citizenship and migration of the Ministry of Internal Affairs of the Republic of Belarus;
of the Ministry of Internal Affairs of the Republic of Belarus - A.N. Lanin, Deputy Head of Department on citizenship and migration of the Ministry of Internal Affairs of the Republic of Belarus
has examined in open Court session the case "On realization of Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002 "On the conformity between the Constitution of the Republic of Belarus and part two of Article 6 of the Law of the Republic of Belarus "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", point 13 of Rules of official registration of documents for leaving abroad of citizens of the Republic of Belarus, sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad in part of fixing five-year term of effect of an obligatory note in passport of a citizen of the Republic of Belarus who is leaving abroad temporary".
The Court session was attended by: V.N. Vyshkevich -Deputy Chairman of the Supreme Court of the Republic of Belarus; L.G. Kozyreva - Deputy Chairman of the Supreme Economic Court of the Republic of Belarus; A.V. Ivanovsky - Deputy Procurator-General of the Republic of Belarus; A.S. Petrash - First Deputy Minister of Justice of the Republic of Belarus.
The proceedings were brought by the Constitutional Court of 5 September 2005 as a result of the proposal of the Council of Ministers of the Republic of Belarus on the grounds of Article 116 of the Constitution, Articles 42 of the Law "On the Constitutional Court of the Republic of Belarus" and Article 76 of the Rules of Procedure of the Constitutional Court.
The Council of Ministers of the Republic of Belarus in its proposal has raised the issue on changing the terms of realization of Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002 "On realization of Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002 "On the conformity between the Constitution of the Republic of Belarus and part two of Article 6 of the Law of the Republic of Belarus "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", point 13 of Rules of official registration of documents for leaving abroad of citizens of the Republic of Belarus, sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad in part of fixing five-year term of effect of an obligatory note in passport of a citizen of the Republic of Belarus who is leaving abroad temporary" (hereinafter is also refered to as Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002). Proposal of the Government is justified by the fact that the works as regards creation of Automated System of Frontier Control (hereinafter is also refered to as ASFC), that makes it possible to exercise control over the persons, transportation and goods crossing the boarder, as well as concerning finishing the creation of the system of registration, the function of which will allow to use the national passport as the document for exiting the Republic of Belarus without making a note, may not be finalized by the time period fixed in Judgment of 27 September 2002 due to inadequate financing.
Having heard V.Z. Shuklin, Judge-speaker, representatives as litigants, the specialist, having analyzed the relevant provisions of the Constitution, the laws, other enforceable enactments of the Republic of Belarus, as well as having studied the opinions of the competent state bodies that are responsible for the execution of Judgment of 27 September 2002, the Constitutional Court found the following.
Judgment of 27 September 2002 noted that the norms of part two of Article 6 of the Law "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", point 13 of Rules of official registration of documents for leaving abroad of citizens of the Republic of Belarus, sub-item 25.1 of point 25 of Instruction on procedure of drawing up passport of a citizen of the Republic of Belarus for leaving abroad in part of fixing five-year term of effect of an obligatory note in passport of a citizen of the Republic of Belarus who is going abroad temporary are not fully in line with the Constitution of the Republic of Belarus, since the obligation to put down the note in the passport that is determined for all the citizens of the Republic of Belarus who wish to leave abroad temporary and the absolute majority of which has no restrictions for exit shall belittle their rights and is not in proportion with the values guaranteed by the Constitution.
The Constitutional Court emphasized that the most reasonable variant that shall allow the citizens of the Republic of Belarus to realize in more full manner the enshrined in Article 30 of the Constitution right to move freely, to leave the Republic of Belarus and to return to it without hindrance, is the establishment of the procedure under which the national passport that meets international standards will be subject to use for exit abroad without putting down the note. As for the exclusion of leaving for abroad of the citizens who have provisional restrictions, promotive will be creation of modern centralized registration (accounting) of persons with respect to whom under the Constitution of the Republic of Belarus restrictions of their rights for temporary exit abroad are admissible.
The Constitutional Court in its Judgment of 27 September 2002 had also emphasized that the obligatory note in passport which is fixed in term and in actual fact has the nature of permission, does not lead to the achievement of the goals under the Law "On procedure of exit and enter the Republic of Belarus of citizens of the Republic of Belarus", since in practice to go abroad may in reality the citizens who have no those notes in their passports, as well as citizens whose passports contain those notes but restrictions appeared after their putting down and the notes have not been annulled timely.
The Constitutional Court has proposed the Council of Ministers of the Republic of Belarus, other state bodies that are authorized to solve the specified issues, to complete, as soon as possible, but on or before 31 December 2005 creation of such a system of accounting the use of which shall make it possible to use the national passport as a document for exit the Republic of Belarus without putting down the note.
Having analyized the process of execution of Judgment of 27 September 2002, the Constitutional Court emphasizes that the Council of Ministers and other authorized state bodies had taken certain measures as regards its realization. In particular, taking into account the term for execution of the Judgment of 27 September 2002, the five-year term of effect of the not in the passport for temporary exit the Republic of Belarus was changed by the Council of Ministers form the time period of one year up to the five-year term and, depending on the effective period of the note in the passport, there have been fixed the differentiated rates for collecting the national tax. There have been continued the work concerning setting up ASFC, and the number of crossing points equipped with such a sytem was increased from 5 in 2002 to 24 in 2005 (the total number of effective crossing points is 59). It was established during the Court session that the operational control with respect to the persons who, in accordance with the legislation, have restrictions of their rights to exit abroad, shall be exercised both at crossing points, equipped with ASFC and at those crossing points that are not equipped therewith.
The Constitutional Court emphasizes that Judgment of 27 September 2002 had been subject to adoption during the period of realization in the Republic of Belarus of the state programs that stipulate creation of ASFC, in particular, the State program on strengthening the crime prevention for 2001 - 2003, approved by Decree of the President of the Republic of Belarus of 15 May 2001 No. 266 and the Complex program for development of near frontier infrastructure of the Republic of Belarus that was approved by Resolution of the Council of Ministers of the Republic of Belarus of 14 April 1999 No. 515. During the period of 2002 - 2005 under realization there were the relevant programs within the Union State of Belarus and Russia, where their tasks among otheres were development of intercommunication service and equipment of the crossing points with borderline control technology. Moreover, Resolution of the Council of Ministers of the Republic of Belarus of 4 November 2004 No. 1397 had approved the State program for creation of joint integrated telecommunication network of the State Customs Committee and the State Borderguard Committee for 2004 - 2006.
Under Article 59 of the Constitution the state shall take all measures at its disposal to create the domestic and international order necessary for exercising in full the rights and liberties of citizens of the Republic of Belarus that are specified in the Republic of Belarus.
The Constitutional Court, by fixing in its Judgment of 27 September 2002 term for its fulfillment of more than three years, had taken into account as much as possible the arguments of the participants of the sitting of the court and proceeded from the fact that within the specified period the authorized state bodies were bound to fulfill the given Judgment within the framework of the state programs stipulating establishment of ASFC in the crossing points. In addtion, the Constitutional Court pays attention to the fact that the law obedient citizens of the Republic of Belarus, while making the notes in the passports after adoption of Judgment of 27 September 2002, were guided by the terms it fixed (i.e. till 31 December 2005), as well as the terms fixed by the relevant programs considering that the authorized state bodies will take all the necessary measures. In addition, taking into account the terms for the fulfillment of Judgment of 27 September 2002, the Government in October 2003 has already set instead of five-year term of effect of the note in the passport the differentiated time limit - from one year up to five years.
However, as it results from the materials presented before the Constitutional Court, the state bodies that are authorized to settle the specified issues failed to take the necessary measures in full as regards the fulfillment of Judgment of 27 September 2002 and did not finished the work related to creation of such a system of registration, the function of which would make it possible to use the national passport as a document for exit the Republic of Belarus without making a note, there have been also no searching out of other additional sources of financing.
The Constitutional Court underlines that making the note in the passport shall be only a partial measure of disclosing the persons with respect to whom, in accordance with the legislation, there were emerged temporary limitations for going outside the Republic of Belarus. As it has been found by the Constitutional Court in its sitting, that from among 350,000 citizens who made their application to the bodies of interior for making them the note in 2004, only 514 citizens were refused in drawing up the documents for exit. However, after making the note in the passport there may be also appeared the limitations for exit for the persons who know information that is of the state secrecy; persons with respect to whom there were brought the criminal case; persons convicted for the commitment of the criminal offence etc. (Articles 5 of the Law "On procedure of exit of the Republic of Belarus and enter the Republic of Belarus of citizens of the Republic of Belarus". The indicated persons may be revealed in good order only while exercising proper control at the border, since even the presence of the notes in the passports of the citizens at the posts of border control may be refused in going outside the Republic of Belarus, due to the fact that during the period of effect of the notes in the passports (from one year to five years) there had to be originated the circumstances preventing from their exit. Data of the Ministry of Internal Affairs of the Republic of Belarus shall signify that the annulement of the notes in the passports of citizens shall be carried out only after one or three months from the date of origination of those circumstances. The Constitutional Court considers that the practice of annulement of the notes (during, as a rule, three months period) in the passports of persons with respect to whom, owing to the effect of the law, there were come out restrictions for temporary exit the Republic of Belarus shall diminish significantly the effectiveness of the existing system of control.
The Constitutional Court also emphasizes that although the note in the passport of the citizen of the Republic of Belarus does not have in full the controlling function, but under conditions of absence of active system of registration of persons, with respect to whom there were stipulated temporary restrictions for exit abroad, this note may be preserved at the present stage as a subsidiary measure of controlling and supplementing the border control.
Grounded on the abovestated and guided by Articles 116 of the Constitution, Articles 42 of the Law "On the Constitutional Court of the Republic of Belarus", Article 76 of the Rules of Procedure of the Constitutional Court, the Constitutional Court
RULED:
1. To emphasize that the Constitutional Court of the Republic of Belarus by adopting its Judgment of 27 September 2002 that is related to making in the passport of the citizen of the Republic of Belarus the note for exit the Republic of Belarus, as well as guiding by the necessity of securing the balance of interests of an individual, society and the state, had taken into account at most the proposals of the authorized state bodies that are responsible for the realization in practice the constitutional norm on freedom of movement in cas of exit the Republic of Belarus and enter the Republic of Belarus as regards the time periods for creation of the system of registration of persons, the function of which shall make it possible to use the national passport as a document for exit the Republic of Belarus and enter the Republic of Belarus without making the note, and fixed the time period of more than three years for its execution.
2. To find that the state bodies that are responsible for the execution of the Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002 failed to take all the necessary measures as regards its duely realization.
3. Proceeding from the necessity of protection of the state and individual interests, as well as taking into account the motion of the Council of Ministers of the Republic of Belarus supported by the house of Representatives of the National Assembly of the Republic of Belarus - the initiator of the proceedings of 2002 on verification of the constitutionality of the relevant enforceable enactments, to prolong the time period for execution of the Judgment of the Constitutional Court of the Republic of Belarus of 27 September 2002 till creation of the relevant system of registration of persons who are restricted lawfully as for their exit the Republic of Belarus and enter the Republic of Belarus, considering that just the bodies subordinated to the Council of Ministers of the Republic of Belarus, by force of the requirements of Articles 2, 30, 59 and other Articles of the Constitution of the Republic of Belarus, shall be responsible before the citizens of the Republic of Belarus for the earlest possible securing in full scope the constitutional right to freedom of movement.
4. To propose the Council of Ministers of the Republic of Belarus and the subordinated bodies thereto that are responsible for the realization in practice of the constitutional norm related to the freedom of movement:
to inform citizens about perspectives of abolishment in future of the note in the passport and the possible legal regulation of the procedure of exit the Republic of Belarus and enter the Republic of Belarus;
for the period of preservation of the notes in the passports for going for abroad to take additional measures concerning simplification of the procedure of their writing down (reduction of the terms for obligatory adoption of the relevant decisions included), especially with respect to the citizens where the notes in the passports thereof have been made previously and are not annulled.
5. To publish the present Judgment within ten days period of time from the date of adoption in "Zvyazda", "Narodnaya gazeta", as well as in National register of legal acts of the Republic of Belarus and in "Vesnik Kanstytutsijnaga Suda Respubliki Belarus".
6. The present Judgment shall come into legal force from the day of its proclamation, is final and subject to no appeal or protest.
Presiding Officer — Chairman of the of the