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On January 22, 2015 the press conference of Chairman of the Constitutional Court of the Republic of Belarus Petr P. Miklashevich on the theme “On Constitutional Legality in the Republic of Belarus in 2014” took place at the National Press Centre
In his speech Chairman of the Constitutional Court focused on the content of the Message to the President of the Republic of Belarus and the Houses of the National Assembly of the Republic of Belarus “On Constitutional Legality in the Republic of Belarus in 2014”, adopted by the Constitutional Court on January 20, 2015.
The past year 2014 was marked by important events ‒ the 20th anniversary of the Constitution of the Republic of Belarus and the 20th anniversary of the Constitutional Court.
On the basis of the Constitution which enshrines the key principles of the society and the state, the mechanism of implementation of state power, the rights and freedoms of individuals the Republic of Belarus has been effectively developing and has been strengthening for two decades by the establishment of civil and social accord.
1. The Constitution of the Republic of Belarus is the basis of a strategy for sustainable development of the society and the State. Its principles and rules guarantee not only the rights and freedoms of individuals, but also the stability of the constitutional order, that permits to determine the development prospects of the Republic of Belarus as a democratic social State based on the rule of law.
Evolutional constitutional development is based on the fundamental constitutional principles of priority of the human rights and freedoms and guarantees of their implementation, mutual responsibility of the State and individuals, democracy, separation of state power and interaction of its bodies, the rule of law, equality and justice, as well as on other principles enshrined directly in the Constitution or resulting from its provisions.
In modern conditions dynamic and often unpredictable development of social relations provides for an appropriate legal regulation on the basis of the Constitution. Reveal of multifaceted content of constitutional principles, their consistent and purposeful application to changing legal relations, their implementation in the legislation and law-enforcement are necessary conditions for ensuring the dynamism of the constitutional and legal regulation.
2. The Constitutional Court protecting the constitutionally guaranteed human rights and freedoms, the constitutional order, ensuring the supremacy of the Constitution formulates legal positions in its judgments and decisions by interpreting the constitutional principles and rules with regard to specific legal relations. This activity of the Constitutional Court contributes to effectiveness of the constitutional and legal regulation, strengthening of constitutional legality.
The constitutional provisions on the Constitutional Court as the body to review the constitutionality of normative acts in the state were developed in 2014 in the Code of the Republic of Belarus on Judicial System and Status of Judges as well as in the Law of the Republic of Belarus “On Constitutional Proceedings”. At the same time legal regulation of the procedure of consideration of cases by the Constitutional Court, making judgments and decisions upon them and their execution, performance of procedural actions by the participants of constitutional proceedings was improved.
3. When evaluating constitutional legality in rule-making and law-enforcement the Constitutional Court notes positive trends of system ensuring of the supremacy of the Constitution in the legislation and establishment of the constitutional legal order in all fields of public and social life.
55 laws reviewed in 2014 by the Constitutional Court in the exercise of preliminary review were recognised, in whole, to be conforming to the Constitution.
The analysis of cases and other materials examined and considered by the Constitutional Court testifies about respect and development of the constitutional principles and rules in the legislative process, ensuring the rule of law, improving the efficiency of the constitutional and legal regulation.
It was recommended to the legislator to eliminate legal gaps, legal uncertainty and collisions revealed in some laws by means of further improvement of legal regulation of appropriate relations.
4. In 2014 in the exercise of subsequent constitutional review the Constitutional Court on the proposal of the House of Representatives of the National Assembly of the Republic of Belarus considered the case on the constitutionality of certain provisions of the Code of Criminal Procedure (Articles 29.1.7, 250.1, 279.1 and 303.1.1).
The proceedings were initiated on the basis of the initiative application submitted to the House of Representatives of an individual believing that the fact of the termination of the criminal case on non-rehabilitating ground without the consent of the close relatives as well as its possible legal consequences significantly affect the honour and good name of the deceased and legitimate interests of his close relatives and that violates the provisions of Articles 26 and 60 of the Constitution enshrining the presumption of innocence and the right of everyone to judicial protection.
The Constitutional Court in its Judgment recognised certain provisions of the Code of Criminal Procedure to be unconstitutional to the extent these provisions enable 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 because such regulation does not ensure the possibility of rehabilitation of the deceased in order to protect his dignity, honour and good name.
5. In 2014 the Constitutional Court has realised its powers on making decisions on elimination of gaps, collisions and legal uncertainty in normative legal acts.
Applications of individuals and organisations submitted to the Constitutional Court are the basis for initiation of proceedings concerning this category of cases. In practice such opportunity for individuals to address the Constitutional Court can be considered as a specific form of direct access to constitutional justice.
Thus, for example:
in order to ensure the constitutional principle of the rule of law, guarantees of the protection of the constitutional rights of individuals having family obligations in labour relations the Constitutional Court in its decision pointed out the necessity to eliminate legal uncertainty in the Labour Code of the Republic of Belarus caused by the absence of a clear and precise definition of the circle of individuals having the right to the guarantees for unmarried mothers in case of the conclusion or termination of the labour contract;
in order to ensure the proper realisation of the constitutional right to social security as well as the principle of social justice the Constitutional Court recognised it necessary to eliminate legal uncertainty and proposed to the Council of Ministers of the Republic of Belarus to take an appropriate resolution in order to ensure (by means of legal regulation of the procedure of submission of documents for granting a pension by labour, employment and social protection bodies) the possibility of personal identification in exceptional cases not only by the passport of the citizen of the Republic of Belarus but by other documents.
6. In 2014 8 decisions of the Constitutional Court were executed. Legal positions stated in these decisions were taken into account by the legislator by making appropriate alterations and addenda:
the Code of Economic Procedure was supplemented with an article granting the right to the parties to choose the conciliator during the conciliation procedure (mediation) (1551);
the Code of Civil Procedure was supplemented with rules regulating features of consideration and settlement of individual’s complaints about notification on the possibility of their placement in activity therapy centre (paragraph 62 of Chapter 29);
the Criminal Code was amended and provides for the possibility of release from punishment or commutation of punishment for a person suffering from another serious disease impeding to serve a sentence regardless of the time of appearance of the disease (Article 29).
Legal positions stated in the decisions of the Constitutional Court were introduced by rule-making bodies in a number of other normative legal acts.
In the final part of his speech Chairman of the Constitutional Court gave some conclusions and proposals stated in the Message.
Firstly, dynamic development of the social and economic processes predetermines the necessity of timely and sometimes anticipatory legal regulation of social relations. It should be taken into account that stable fundamental constitutional provisions on the constitutional order, human rights and freedoms is a constitutional basis for a long-term and dynamic legislative regulation.
Legal regulation of social relations requires the necessity of taking into consideration the fundamental constitutional principles of priority of human rights and freedoms, the rule of law, equality and justice, that permits to consistently orientate the legislative process to the development of constitutional values and achievement of constitutional goals.
Secondly, at the present stage certainty of legal rules, complete and consistent enshrining of normative will is an important condition for the ordering of social life, conscious subordination of individuals to the law.
The Constitutional Court has consistently drawn attention of rule-making bodies to the necessity of absolute observance of the principle of legal certainty, according to which any normative legal act should be of a certain nature, effectively regulate legal relations and contain proportionate measures of legal regulation. Precise, clear and unambiguous statement of legal rules establishing requirements for the actions of individuals and legal entities, limits of possible, due and forbidden conduct.
Thirdly, it has repeatedly stated in the decisions of the Constitutional Court that free and unimpeded access to justice enshrined in international instruments is an achievement of modern civilisation, an integral part of the fundamental constitutional right of individuals and legal entities to judicial protection.
The Constitutional Court considers that at the present time in order to ensure free access to justice it is reasonable to issue legislative acts affecting the rights and freedoms of individuals in both official languages ‒ Belarusian and Russian in accordance with the provisions of Article 17 of the Constitution on equality of the two official languages.
Fourthly, with the entry of the Republic of Belarus in the Eurasian Economic Union issues of predictability of legal regulation, correlation of national and supranational legislation have become actual. Therefore the Constitutional Court draws attention of the legislator to the necessity of absolute observance of the supremacy of the Constitution in the legislative process, consistent development of constitutional values and principles that permits to achieve a flexible, dynamic and extremely precise modern legal regulation which meets at most the needs of the society and the State.
Fifthly, in order to ensure constitutional legality constant purposeful activity of all state bodies and officials on management of state affairs and human life in accordance with the provisions of the Constitution, and on the part of individuals ‒ faithful and responsible execution of constitutional duties are required.
At the same time creation of appropriate conditions and equal opportunities for implementation of the rights and freedoms of individuals, legitimate interests of legal entities is an essential function of democratic social state based on the rule of law, formation of which has consistently carried out in the Republic of Belarus.
In the second part of the press conference Chairman of the Constitutional Court answered journalists' questions.