4 October 2006 № D-196/2006
The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, V.Z. Shuklin, has examined on the ground of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus application on the issue of necessity of timely and reliable informing citizens and legal entities about technical normative legal acts that are adopting (issuing) by republican state bodies and officials and about the time periods of their enforcement.
Analysis of provisions of the Constitution and other acts of legislation of the Republic of Belarus that regulate by some other way the procedure of adoption, publication and informing citizens and legal entities of technical normative legal acts signified about the following.
Declaration of the Republic of Belarus in the Constitution as the state ruled by law shall presuppose the obligation of state bodies and officials to act on the basis of the Constitution and the acts of legislation enacted in accordance therewith, to publish or promulgate the normative acts of state bodies by some other means specified in law (Articles 1, 7 and other Articles of the Constitution).
Citizens of the Republic of Belarus shall be guaranteed the right to receive, store and disseminate complete, reliable and timely information of the activities of state bodies (Article 34 of the Constitution). The same direction, in particular, has the requirement of part five of Article 104 of the Constitution, according to which the laws, decrees of the President shall be subject to immediate publication after their signature and shall become valid ten days after their publication, unless the law determines another term.
Under Article 52 of the Constitution everyone who is on the territory of the Republic of Belarus shall abide by its Constitution and laws. However, for the fulfillment of this constitutional requirement citizens must have the possibility to familiarize timely themselves with the content of the adopted normative legal acts.
The Law "On normative legal acts of the Republic of Belarus" (hereinafter is also referred to as the Law), Provision on official publication and enforcement of legal acts of the Republic of Belarus approved by Decree of the President of the Republic of Belarus of 10 December 1998 No. 22 (with alterations and addenda), Decree of the President of the Republic of Belarus of 20 July 1998 No. 369 "On National register of legal acts of the Republic of Belarus" (with alterations and addenda) specify the procedure of official publication of normative legal acts and their enforcement. There is the stipulation that normative legal acts shall be subject to inclusion into the National register of legal acts of the Republic of Belarus (hereinafter is also referred to as the National register) which is under the authority of the National center of legal information of the Republic of Belarus (hereinafter is also referred to as NCLI) and shall be subject to official publication in edition of the National register. Electronic version of the National register is the exact electronic copy of its publication and shall be based in the National legal Internet-portal of the Republic of Belarus simultaneously with appearance of the relevant issue of the publication. Identicalness of the content of the text of the publication of the National register and its electronic version shall be secured by NCLI.
The Law stipulates also the procedure of settlement of legal collisions, removal from and bridging of gaps in normative legal acts, conditions of their realization, ban on their retroactivity, as well as other requirements. Normative legal acts of republican state bodies shall have binding force on the whole territory of the Republic of Belarus (Articles 66-78).
In accordance with the alterations of 2002 the scope of effect of the Law has ceased to cover the technical normative legal acts (Article 4 of the Law). According to Article 1 of the Law, technical normative legal acts, in particular, shall be technical regulations, state standards of the Republic of Belarus, veterinary and sanitary norms and rules, sanitary norms, rules and hygienic norms, norms and rules of fire safety, as well as other acts approved (enforced) under the procedure stipulated by the legislation of the Republic of Belarus.
The Constitutional Court emphasizes that technical normative legal acts that shall be adopted by republican state bodies and officials are also binding for execution by citizens and by legal entities on the whole territory of the Republic of Belarus. They are the basis for the adoption of local normative legal acts. In a number of instances for the violation of the norms of technical normative legal acts citizens shall bear juridical responsibility, including administrative and criminal liability. This circumstance the more so shall assume the necessity of timely and full informing citizens and legal entities of those technical normative legal acts the content of which involves their rights and obligations.
Analysis of legislation that regulates adoption of technical normative legal acts signifies that they shall be adopted (issued) by ministries of architecture and building, public health, labour and social protection, natural resources and environmental protection, trade, by other republican state bodies. These acts shall determine the technical conditions and norms in the definite sphere of activities, directed to the protection of life, health, human heredity, other rights and freedoms of citizens, rights of consumers, environmental protection. Peculiarities of adoption of technical normative legal acts and other acts by ministries of labour and social protection, public health, energetics, as well as by other republican state bodies that contain state normative requirements for protection of labour are specified in Resolution of the Council of Ministers of the Republic of Belarus of 10 February 2003 No. 150 "On state normative requirements for protection of labour in the Republic of Belarus". The given Resolution of the Council of Ministers stipulated that the requirements of labour protection are binding for their fulfillment by legal entities and natural persons while carrying out by them of any types of activities, but the procedure and conditions of bringing the specified technical normative legal acts to the universal notice are not determined.
Examination of practice of publication of technical normative legal acts shall signify that the information about their adoption shall be published in departmental registers, and the acts shall be spread by organizations that are subordinated to republican state bodies, interested persons on paid basis. Certain organizations in question for these purposes have electronic data bases of technical normative legal acts that shall be adopted by higher ministries.
Particular technical normative legal acts until 2002 were published in the National register and are contained in model data bank of legal information of NCLI.
In accordance with Resolution of the Council of Ministers of the Republic of Belarus of 30 June 2004 No. 781 "On National fund of technical normative legal acts in the field of technical setting and standardization", the Committee on standardization, metrology and certification under the Council of Ministers of the Republic of Belarus (at present - State committee on standardization) jointly with the Ministry on architecture and building of the Republic of Belarus in co-operation with other republican state bodies, international and foreign organizations on technical setting, standardization, metrology there had been created the National fund of technical normative legal acts in the field of technical setting and standardization (hereinafter is also referred to as the National fund). Instruction approved by Resolution of the Committee on standardization, metrology and certification under the Council of Ministers of the Republic of Belarus and the Ministry on architecture and building of the Republic of Belarus of 23 July 2004 No. 34/18 related to activities of the National fund stipulates informational services of legal entities and natural persons, as well as free access to information of the National fund that is based in the official sites of the state bodies in question.
At the same time, the National fund contains the limited list of technical normative legal acts (technical regulations, state standards etc.) stipulated by Article 8 of the Law of the Republic of Belarus "On technical setting and standardization". There is no procedure of adoption, enforcement and informing citizens and legal entities of other technical normative legal acts which are adopted (issued) by republican state bodies and officials and that is not in conformity with the Constitution and the legislative acts of the Republic of Belarus.
Taking into account the importance of informing citizens and legal entities of technical normative legal acts, Decree of the President of the Republic of Belarus of 22 May 2006 No. 333 envisages that state bodies may forward to NCLI technical normative legal acts for their inclusion in the National register.
In addition, according to the available data, ministries on emergency situations, agriculture and foodstuffs, department on aviation of the Ministry of transport and communications, Main sanitary inspector of the Republic of Belarus shall forward the information about the adopted technical normative legal acts, and in a number of cases the texts of these acts for their location at the model bank of data of legal information of NCLI.
According to the Provision on the procedure of spreading of legal information in the Republic of Belarus approved by Decree of the President of the Republic of Belarus of 1 December 1998 No. 565 (with alterations and addenda), model bank of data of legal information shall be granted free of charge to the National library, to the Presidential library, to state bodies and to other organizations. Moreover, model bank of data of legal information shall be granted to legal entities, to individual entrepreneurs and to citizens on paid basis.
In the opinion of the Constitutional Court, in this situation it would be reasonable to secure unique and complex approach to specification of the procedure of adoption, publication or informing citizens and legal entities by some other means of technical normative legal acts.
The Constitutional Court deems also that it should be determined the procedure of enforcement of technical normative legal acts in order for the persons that are under their effect to have real possibility to familiarize themselves with the content of these acts. In the opinion of the Constitutional Court, at the stage of adoption of technical normative legal acts there should be taken into account other requirements stipulated in the Law "On normative legal acts of the Republic of Belarus". For the period before the relevant legislative regulation, technical normative legal acts or information about their adoption could be included obligatory in the model bank of data of legal information of NCLI. Official publication of technical normative legal acts could be realized in addendum to the publication of the National register or in the other mass media, where the information on adoption of technical normative legal acts, time periods of their adoption, the source of publication and brief information could be located operatively.
On the grounds of above stated and guiding by Article 40, part one of Article 116 of the Constitution, Articles 1, 7, 36, 38, 40, 401 of the Law "On the Constitutional Court of the Republic of Belarus" the Constitutional Court
RULED:
1. To emphasize that technical normative legal acts which are adopting (issuing) by republican state bodies and officials shall be binding for their fulfillment by citizens and by legal entities. Due to that, citizens and legal entities before the enforcement of those acts must have the possibility to familiarize themselves in good time with their content, whereas in certain instances violation of the norms of the acts in question entails juridical liability, including administrative and criminal liability.
2. For the purposes of improvement of the procedure of informing citizens and legal entities of technical normative legal acts which are adopting by republican state bodies and officials, to propose the Administration of the President of the Republic of Belarus and the Council of Ministers of the Republic of Belarus to consider the issue on securing of unique and complex approach to specification of the procedure of adoption, publication or informing citizens and legal entities by some other means of technical normative legal acts. For the period before the legislative regulation of the given issue with the purpose of securing proper familiarization of citizens and legal entities with the content of technical normative legal acts which are adopting (issuing) by republican state bodies and officials to stipulate the provisional procedure of their preparation, adoption, enforcement and bringing to the universal notice.
3. The present Decision shall come into legal force from the date of its adoption.
4. To publish the present Decision in accordance with the legislation.
Presiding Officer —
Chairman of the Constitutional Court
of the